1 Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-63915 April 24, 1985 LORENZO M.

TAADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners, vs. HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President , MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacaang Records Office, and FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents.

ESCOLIN, J.: 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, 712713, 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, 16941695, 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, 18351836, 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, 21472161, 2163-2244.

e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507, 509-510, 522, 524528, 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 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 Pambansaand for the diligent ones, ready access to the legislative recordsno 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 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.

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. 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. Footnotes
1 Section 6. The right of the people to information on matters of public concern shag be recognized, access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, shag be afforded the citizens subject to such limitation as may be provided by law. 2 Anti-Chinese League vs. Felix, 77 Phil. 1012; Costas vs. Aidanese, 45 Phil. 345; Almario vs. City Mayor, 16 SCRA 151;Parting vs. San Jose Petroleum, 18 SCRA 924; Dumlao vs. Comelec, 95 SCRA 392. 3 16 Phil. 366, 378. 4 Camacho vs. Court of Industrial Relations, 80 Phil 848; Mejia vs. Balolong, 81 Phil. 486; Republic of the Philippines vs. Encamacion, 87 Phil. 843; Philippine Blooming Mills, Inc. vs. Social Security System, 17 SCRA 1077; Askay vs. Cosalan, 46 Phil. 179. 5 1 Manresa, Codigo Civil 7th Ed., p. 146. 6 People vs. Que Po Lay, 94 Phil. 640; Balbuena et al. vs. Secretary of Education, et al., 110 Phil. 150. 7 82 SCRA 30, dissenting opinion.

8 308 U.S. 371, 374. 9 93 Phil.. 68,. 10 The report was prepared by the Clerk of Court after Acting Director Florendo S. Pablo Jr. of the Government Printing Office, failed to respond to her letter-request regarding the respective dates of publication in the Official Gazette of the presidential issuances listed therein. No report has been submitted by the Clerk of Court as to the publication or non-publication of other presidential issuances. 11 129 SCRA 174. Fernando, CJ.: 1 Separate Opinion of Justice Plana, first paragraph. He mentioned in tills connection Article 7, Sec. 21 of the Wisconsin Constitution and State ex rel. White v. Grand Superior Ct., 71 ALR 1354, citing the Constitution of Indiana, U.S.A 2 Ibid, closing paragraph. 3 Learned Hand, The Spirit of Liberty 104 (1960). 4 Cardozo, The Growth of the Law, 3 (1924). 5 Cf. Nunez v. Sandiganbayan, G.R. No. 50581-50617, January 30, 1982, 111 SCRA 433. 6 Cf. Alalayan v. National Power Corporation, L-24396, July 29, 1968, 24 SCRA 172. Teehankee, J.: 1 People vs. de Dios, G.R. No. 11003, Aug. 3l, 1959, per the late Chief Justice Paras. 2 Notes in brackets supplied. 3 Respondents: comment, pp. 14-15. Plana, J.: * See e.g., Wisconsin Constitution, Art. 7, Sec. 21: "The legislature shall provide publication of all statute laws ... and no general law shall be in force until published." See also S ate ex rel. White vs. Grand Superior Ct., 71 ALR 1354, citing Constitution of Indiana, U.S.A.

THIRD DIVISION [G.R. No. 140500. January 21, 2002] ERNESTINA BERNABE, petitioner, vs. CAROLINA ALEJO as guardian ad litem for the minor ADRIAN BERNABE, respondent. DECISION PANGANIBAN, J.: The right to seek recognition granted by the Civil Code to illegitimate children who were still minors at the time the Family Code took effect cannot be impaired or taken away. The minors have up to four years from attaining majority age within which to file an action for recognition. Statement of the Case Before us is a Petition [1] for Review on Certiorari under Rule 45 of the Rules of Court, praying for (1) the nullification of the July 7, 1999 Court of Appeals [2] (CA) Decision [3] in CA-GR CV No. 51919 and the October
i ii iii

14, 1999 CA Resolution [4] denying petitioners Motion for Reconsideration, as well as (2) the reinstatement of the two Orders issued by the Regional Trial Court (RTC) of Pasay City (Branch 109) concerning the same case. The dispositive portion of the assailed Decision reads as follows:
iv

WHEREFORE, premises considered, the order of the lower court dismissing Civil Case No. 94-0562 is REVERSED and SET ASIDE. Let the records of this case be remanded to the lower court for trial on the merits.v[5] The Facts The undisputed facts are summarized by the Court of Appeals in this wise: The late Fiscal Ernesto A. Bernabe allegedly fathered a son with his secretary of twenty-three (23) years, herein plaintiff-appellant Carolina Alejo. The son was born on September 18, 1981 and was named Adrian Bernabe. Fiscal Bernabe died on August 13, 1993, while his wife Rosalina died on December 3 of the same year, leaving Ernestina as the sole surviving heir. On May 16, 1994, Carolina, in behalf of Adrian, filed the aforesaid complaint praying that Adrian be declared an acknowledged illegitimate son of Fiscal Bernabe and as such he (Adrian) be given his share in Fiscal Bernabes estate, which is now being held by Ernestina as the sole surviving heir. On July 16, 1995, the Regional Trial Court dismissed the complaint, ruling that under the provisions of the Family Code as well as the case of Uyguangco vs. Court of Appeals, the complaint is now barred x x x.vi[6] Orders of the Trial Court In an Order dated July 26, 1995, the trial court granted Ernestina Bernabes Motion for Reconsideration of the trial courts Decision and ordered the dismissal of the Complaint for recognition. Citing Article 175 of the Family Code, the RTC held that the death of the putative father had barred the action. In its Order dated October 6, 1995, the trial court added that since the putative father had not acknowledged or recognized Adrian Bernabe in writing, the action for recognition should have been filed during the lifetime of the alleged father to give him the opportunity to either affirm or deny the childs filiation. Ruling of the Court of Appeals On the other hand, the Court of Appeals ruled that in the interest of justice, Adrian should be allowed to prove that he was the illegitimate son of Fiscal Bernabe. Because the boy was born in 1981, his rights are governed by Article 285 of the Civil Code, which allows an action for recognition to be filed within four years after the child has attained the age of majority. The subsequent enactment of the Family Code did not take away that right. Hence, this appeal. Issues In her Memorandum, I
viii vii

[7]

[8]

petitioner raises the following issues for our consideration:

Whether or not respondent has a cause of action to file a case against petitioner, the legitimate daughter of the putative father, for recognition and partition with accounting after the putative fathers death in the absence of any written acknowledgment of paternity by the latter. II Whether or not the Honorable Court of Appeals erred in ruling that respondents had four years from the attainment of minority to file an action for recognition as provided in Art. 285 of the Civil Code, in complete disregard of its repeal by the [express] provisions of the Family Code and the applicable jurisprudence as held by the Honorable Court of Appeals. III Whether or not the petition for certiorari filed by the petition[er] is fatally defective for failure to implead the Court of Appeals as one of the respondents.ix[9] The Courts Ruling The Petition has no merit. First and Second Issues: Period to File Action for Recognition Because the first and the second issues are interrelated, we shall discuss them jointly. Petitioner contends that respondent is barred from filing an action for recognition, because Article 285 of the Civil Code has been supplanted by the provisions of the Family Code. She argues that the latter Code should be given retroactive effect, since no vested right would be impaired. We do not agree. Article 285 of the Civil Code provides the period for filing an action for recognition as follows: ART. 285. The action for the recognition of natural children may be brought only during the lifetime of the presumed parents, except in the following cases: (1) (2) If the father or mother died during the minority of the child, in which case the latter may file the action before the expiration of four years from the attainment of his majority; If after the death of the father or of the mother a document should appear of which nothing had been heard and in which either or both parents recognize the child.

In this case, the action must be commenced within four years from the finding of the document. The two exceptions provided under the foregoing provision, have however been omitted by Articles 172, 173 and 175 of the Family Code, which we quote: ART. 172. The filiation of legitimate children is established by any of the following: (1) The record of birth appearing in the civil register or a final judgment; or

(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) (2) The open and continuous possession of the status of a legitimate child; or Any other means allowed by the Rules of Court and special laws.

ART. 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action. The action already commenced by the child shall survive notwithstanding the death of either or both of the parties. ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same, evidence as legitimate children. The action must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent. Under the new law, an action for the recognition of an illegitimate child must be brought within the lifetime of the alleged parent. The Family Code makes no distinction on whether the former was still a minor when the latter died. Thus, the putative parent is given by the new Code a chance to dispute the claim, considering that illegitimate children are usually begotten and raised in secrecy and without the legitimate family being aware of their existence. x x x The putative parent should thus be given the opportunity to affirm or deny the childs filiation, and this, he or she cannot do if he or she is already dead. [10]
x

Nonetheless, the Family Code provides the caveat that rights that have already vested prior to its enactment should not be prejudiced or impaired as follows: ART. 255. This Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws. The crucial issue to be resolved therefore is whether Adrians right to an action for recognition, which was granted by Article 285 of the Civil Code, had already vested prior to the enactment of the Family Code. Our answer is affirmative. A vested right is defined as one which is absolute, complete and unconditional, to the exercise of which no obstacle exists, and which is immediate and perfect in itself and not dependent upon a contingency x x x. [11] Respondent however contends that the filing of an action for recognition is procedural in nature and that as a general rule, no vested right may attach to [or] arise from procedural laws. [12]
xi xii

Bustos v. Lucero

xiii

[13]

distinguished substantive from procedural law in these words:

x x x. Substantive law creates substantive rights and the two terms in this respect may be said to be synonymous. Substantive rights is a term which includes those rights which one enjoys under the legal system prior to the disturbance of normal relations. Substantive law is that part of the law which creates, defines and regulates rights, or which regulates the rights and duties which give rise to a cause of action; that part of the law which courts are established to administer; as opposed to adjective or remedial law, which prescribes the method of enforcing rights or obtains redress for their invasion.xiv[14] (Citations omitted)

Recently, in Fabian v. Desierto, substantive:

xv

[15] the

Court laid down the test for determining whether a rule is procedural or

[I]n determining whether a rule prescribed by the Supreme Court, for the practice and procedure of the lower courts, abridges, enlarges, or modifies any substantive right, the test is whether the rule really regulates procedure, that is, the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for a disregard or infraction of them. If the rule takes away a vested right, it is not procedural. If the rule creates a right such as the right to appeal, it may be classified as a substantive matter; but if it operates as a means of implementing an existing right then the rule deals merely with procedure.xvi[16] Applying the foregoing jurisprudence, we hold that Article 285 of the Civil Code is a substantive law, as it gives Adrian the right to file his petition for recognition within four years from attaining majority age. Therefore, the Family Code cannot impair or take Adrians right to file an action for recognition, because that right had already vested prior to its enactment. Uyguangco v. Court of Appeals [17] is not applicable to the case at bar, because the plaintiff therein sought recognition as an illegitimate child when he was no longer a minor. On the other hand, in Aruego Jr. v. Court of Appeals [18] the Court ruled that an action for recognition filed while the Civil Code was in effect should not be affected by the subsequent enactment of the Family Code, because the right had already vested.
xvii xviii

Not Limited to Natural Children To be sure, Article 285 of the Civil Code refers to the action for recognition of natural children. Thus, petitioner contends that the provision cannot be availed of by respondent, because at the time of his conception, his parents were impeded from marrying each other. In other words, he is not a natural child. A natural child is one whose parents, at the time of conception, were not disqualified by any legal impediment from marrying each other. Thus, in De Santos v. Angeles, [19] the Court explained:
xix

A childs parents should not have been disqualified to marry each other at the time of conception for him to qualify as a natural child.xx[20] A strict and literal interpretation of Article 285 has already been frowned upon by this Court in the aforesaid case of Aruego, which allowed minors to file a case for recognition even if their parents were disqualified from marrying each other. There, the Complaint averred that the late Jose Aruego Sr., a married man, had an extramarital liason with Luz Fabian. Out of this relationship were born two illegitimate children who in 1983 filed an action for recognition. The two children were born in 1962 and 1963, while the alleged putative father died in 1982. In short, at the time of their conception, the two childrens parents were legally disqualified from marrying each other. The Court allowed the Complaint to prosper, even though it had been filed almost a year after the death of the presumed father. At the time of his death, both children were still minors. Moreover, in the earlier case Divinagracia v. Rovira, [21] the Court said that the rules on voluntary and compulsory acknowledgment of natural children, as well as the prescriptive period for filing such action, may likewise be applied to spurious children. Pertinent portions of the case are quoted hereunder:
xxi

The so-called spurious children, or illegitimate children other than natural children, commonly known as bastards, include those adulterous children or those born out of wedlock to a married woman cohabiting with a man other than her husband or to a married man cohabiting with a woman other than his wife. They are entitled to support and successional rights. But their filiation must be duly proven.

How should their filiation be proven? Article 289 of the Civil Code allows the investigation of the paternity or maternity or spurious children under the circumstances specified in articles 283 and 284 of the Civil Code. The implication is that the rules on compulsory recognition of natural children are applicable to spurious children. Spurious children should not be in a better position than natural children. The rules on proof of filiation of natural children or the rules on voluntary and compulsory acknowledgment for natural children may be applied to spurious children. That does not mean that spurious children should be acknowledged, as that term is used with respect to natural children. What is simply meant is that the grounds or instances for the acknowledgment of natural children are utilized to establish the filiation of spurious children. A spurious child may prove his filiation by means of a record of birth, a will, a statement before a court of record, or in any authentic writing. These are the modes of voluntary recognition of natural children. In case there is no evidence on the voluntary recognition of the spurious child, then his filiation may be established by means of the circumstances or grounds for compulsory recognition prescribed in the aforementioned articles 283 and 284. The prescriptive period for filing the action for compulsory recognition in the case of natural children, as provided for in article 285 of the Civil Code, applies to spurious children.xxii[22] (Citations omitted, italics supplied) Thus, under the Civil Code, natural children have superior successional rights over spurious ones. [23] However, Rovira treats them as equals with respect to other rights, including the right to recognition granted by Article 285.
xxiii

To emphasize, illegitimate children who were still minors at the time the Family Code took effect and whose putative parent died during their minority are thus given the right to seek recognition (under Article 285 of the Civil Code) for a period of up to four years from attaining majority age. This vested right was not impaired or taken away by the passage of the Family Code. Indeed, our overriding consideration is to protect the vested rights of minors who could not have filed suit, on their own, during the lifetime of their putative parents. As respondent aptly points out in his Memorandum, [24] the State as parens patriae should protect a minors right. Born in 1981, Adrian was only seven years old when the Family Code took effect and only twelve when his alleged father died in 1993. The minor must be given his day in court.
xxiv

Third Issue: Failure to Implead the CA Under Section 4(a) of Rule 45 of the current Rules of Court, it is no longer required to implead the lower courts or judges x x x either as petitioners or respondents. Under Section 3, however, the lower tribunal should still be furnished a copy of the petition. Hence, the failure of petitioner to implead the Court of Appeals as a party is not a reversible error; it is in fact the correct procedure. WHEREFORE, the Petition is hereby DENIED and the assailed Decision and Resolution AFFIRMED. Costs against petitioner. SO ORDERED. Melo, (Chairman), Sandoval-Gutierrez, and Carpio, JJ., concur.

Vitug, J., no part. Relationship with family.

i[1] Rollo, pp. 3-14. The Petition was signed by Atty. Wenceslao B. Trinidad. ii[2] Special First Division; penned by J. Jesus M. Elbinias (presiding justice and Division chairman); concurred in by JJ Delilah Vidallon Magtolis and Edgardo P. Cruz (members). iii[3] Rollo, pp. 33-37. iv[4] Rollo, p. 18. J. Andres B. Reyes Jr. signed for J. Magtolis who was on leave. v[5] Assailed Decision, p. 5; Rollo, p. 37. vi[6] Assailed Decision, pp. 1-2; Rollo, pp. 33-34. vii[7] This case was deemed submitted for decision on August 16, 2000, upon this Courts receipt of petitioners Memorandum signed by Atty. Jose Allan M. Tebelin. Respondents Memorandum, signed by Attys. Felix D. Carao Jr. and R.A.V. Saguisag, was received by this Court on August 14, 2000. viii[8] Rollo, pp. 103-116; original underscored and in upper case. ix[9] Memorandum for petitioner, p. 4; Rollo, p. 106. x[10] Alicia V. Sempio-Diy, Handbook on the Family Code (1995 ed.), p. 282. xi[11] Reyes v. Commission on Audit, 305 SCRA 512, 518, March 29, 1999, per Pardo, J. xii[12] Medina Investigation & Security Corporation v. Court of Appeals, GR No. 144074, March 20, 2001, per Gonzaga-Reyes, J. xiii[13] 81 Phil. 648, March 8, 1949. xiv[14] Ibid., pp. 649-650, per Tuason, J. xv[15] 295 SCRA 470, 492, September 16, 1998. xvi[16] Ibid., p. 492, per Regalado, J. xvii[17] 178 SCRA 684, October 26, 1989. xviii[18] 254 SCRA 711, March 13, 1996. xix[19] 251 SCRA 206, December 12, 1995. xx[20] Ibid., p. 212, per Romero, J. xxi[21] 72 SCRA 307, August 10, 1976. xxii[22] Ibid., pp. 314-315, per Aquino, J. (later CJ).

xxiii[23] Cf. Jose C. Vitug, Compendium of Civil Law and Jurisprudence, (1993 rev. ed.), p.218. xxiv[24] Pages 12-15. 3 Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-32116 April 2l, 1981 RURAL BANK OF CALOOCAN, INC. and JOSE O. DESIDERIO, JR., petitioners, vs. THE COURT OF APPEALS and MAXIMA CASTRO, respondents.

DE CASTRO, * J.: This is a petition for review by way of certiorari of the decision 1 of the Court of Appeals in CAG.R. No. 39760-R entitled "Maxima Castro, plaintiff-appellee, versus Severino Valencia, et al., defendants; Rural Bank of Caloocan, Inc., Jose Desiderio, Jr. and Arsenio Reyes, defendants-appellants," which affirmed in toto the decision of the Court of First Instance of Manila in favor of plaintiff- appellee, the herein private respondent Maxima Castro. On December 7, 1959, respondent Maxima Castro, accompanied by Severino Valencia, went to the Rural Bank of Caloocan to apply for an industrial loan. It was Severino Valencia who arranged everything about the loan with the bank and who supplied to the latter the personal data required for Castro's loan application. On December 11, 1959, after the bank approved the loan for the amount of P3,000.00, Castro, accompanied by the Valencia spouses, signed a promissory note corresponding to her loan in favor of the bank. On the same day, December 11, 1959, the Valencia spouses obtained from the bank an equal amount of loan for P3,000.00. They signed a promissory note (Exhibit "2") corresponding to their loan in favor of the bank and had Castro affixed thereon her signature as co-maker. The two loans were secured by a real-estate mortgage (Exhibit "6") on Castro's house and lot of 150 square meters, covered by Transfer Certificate of Title No. 7419 of the Office of the Register of Deeds of Manila. On February 13, 1961, the sheriff of Manila, thru Acting Chief Deputy Sheriff Basilio Magsambol, sent a notice of sheriff's sale addressed to Castro, announcing that her property covered by T.C.T. No. 7419 would be sold at public auction on March 10, 1961 to satisfy the obligation covering the two promissory notes plus interest and attorney's fees.

Upon request by Castro and the Valencias and with conformity of the bank, the auction sale that was scheduled for March 10, 1961 was postponed for April 10, 1961. But when April 10, 1961 was subsequently declared a special holiday, the sheriff of Manila sold the property covered by T.C.T. No. 7419 at a public auction sale that was held on April 11, 1961, which was the next succeeding business day following the special holiday. Castro alleged that it was only when she received the letter from the Acting Deputy Sheriff on February 13, 1961, when she learned for the first time that the mortgage contract (Exhibit "6") which was an encumbrance on her property was for P6.000.00 and not for P3,000.00 and that she was made to sign as co-maker of the promissory note (Exhibit "2") without her being informed of this. On April 4, 1961, Castro filed a suit denominated "Re: Sum of Money," against petitioners Bank and Desiderio, the Spouses Valencia, Basilio Magsambol and Arsenio Reyes as defendants in Civil Case No. 46698 before the Court of First Instance of Manila upon the charge, amongst others, that thru mistake on her part or fraud on the part of Valencias she was induced to sign as co-maker of a promissory note (Exhibit "2") and to constitute a mortgage on her house and lot to secure the questioned note. At the time of filing her complaint, respondent Castro deposited the amount of P3,383.00 with the court a quo in full payment of her personal loan plus interest. In her amended complaint, Castro prayed, amongst other, for the annulment as far as she is concerned of the promissory note (Exhibit "2") and mortgage (Exhibit "6") insofar as it exceeds P3,000.00; for the discharge of her personal obligation with the bank by reason of a deposit of P3,383.00 with the court a quo upon the filing of her complaint; for the annulment of the foreclosure sale of her property covered by T.C.T. No. 7419 in favor of Arsenio Reyes; and for the award in her favor of attorney's fees, damages and cost. In their answers, petitioners interposed counterclaims and prayed for the dismissal of said complaint, with damages, attorney's fees and costs. 2 The pertinent facts arrived from the stipulation of facts entered into by the parties as stated by respondent Court of Appeals are as follows:
Spawning the present litigation are the facts contained in the following stipulation of facts submitted by the parties themselves: 1. That the capacity and addresses of all the parties in this case are admitted . 2. That the plaintiff was the registered owner of a residential house and lot located at Nos. 12681270 Carola Street, Sampaloc, Manila, containing an area of one hundred fifty (150) square meters, more or less, covered by T.C.T. No. 7419 of the Office of the Register of Deeds of Manila; 3. That the signatures of the plaintiff appearing on the following documents are genuine: a) Application for Industrial Loan with the Rural Bank of Caloocan, dated December 7, 1959 in the amount of P3,000.00 attached as Annex A of this partial stipulation of facts;

b) Promissory Note dated December 11, 1959 signed by the plaintiff in favor of the Rural Bank of Caloocan for the amount of P3,000.00 as per Annex B of this partial stipulation of facts; c) Application for Industrial Loan with the Rural Bank of Caloocan, dated December 11, 1959, signed only by the defendants, Severino Valencia and Catalina Valencia, attached as Annex C, of this partial stipulation of facts; d) Promissory note in favor of the Rural Bank of Caloocan, dated December 11, 1959 for the amount of P3000.00, signed by the spouses Severino Valencia and Catalina Valencia as borrowers, and plaintiff Maxima Castro, as a co-maker, attached as Annex D of this partial stipulation of facts; e) Real estate mortgage dated December 11, 1959 executed by plaintiff Maxima Castro, in favor of the Rural Bank of Caloocan, to secure the obligation of P6,000.00 attached herein as Annex E of this partial stipulation of facts; All the parties herein expressly reserved their right to present any evidence they may desire on the circumstances regarding the execution of the above-mentioned documents. 4. That the sheriff of Manila, thru Acting Chief Deputy Sheriff, Basilio Magsambol, sent a notice of sheriff's sale, address to the plaintiff, dated February 13, 1961, announcing that plaintiff's property covered by TCT No. 7419 of the Register of Deeds of the City of Manila, would be sold at public auction on March 10, 1961 to satisfy the total obligation of P5,728.50, plus interest, attorney's fees, etc., as evidenced by the Notice of Sheriff's Sale and Notice of Extrajudicial Auction Sale of the Mortgaged property, attached herewith as Annexes F and F-1, respectively, of this stipulation of facts; 5. That upon the request of the plaintiff and defendants-spouses Severino Valencia and Catalina Valencia, and with the conformity of the Rural Bank of Caloocan, the Sheriff of Manila postponed the auction sale scheduled for March 10, 1961 for thirty (30) days and the sheriff reset the auction sale for April 10, 1961; 6. That April 10, 1961 was declared a special public holiday; (Note: No. 7 is omitted upon agreement of the parties.) 8. That on April 11, 1961, the Sheriff of Manila, sold at public auction plaintiff's property covered by T.C.T. No. 7419 and defendant, Arsenio Reyes, was the highest bidder and the corresponding certificate of sale was issued to him as per Annex G of this partial stipulation of facts; 9. That on April 16, 1962, the defendant Arsenio Reyes, executed an Affidavit of Consolidation of Ownership, a copy of which is hereto attached as Annex H of this partial stipulation of facts; 10. That on May 9, 1962, the Rural Bank of Caloocan Incorporated executed the final deed of sale in favor of the defendant, Arsenio Reyes, in the amount of P7,000.00, a copy of which is attached as Annex I of this partial stipulation of facts; 11. That the Register of Deeds of the City of Manila issued the Transfer Certificate of Title No. 67297 in favor of the defendant, Arsenio Reyes, in lieu of Transfer Certificate of Title No. 7419 which was in the name of plaintiff, Maxima Castro, which was cancelled; 12. That after defendant, Arsenio Reyes, had consolidated his title to the property as per T.C.T. No. 67299, plaintiff filed a notice of lis pendens with the Register of Deeds of Manila and the same was annotated in the back of T.C.T. No. 67299 as per Annex J of this partial stipulation of facts; and

13. That the parties hereby reserved their rights to present additional evidence on matters not covered by this partial stipulation of facts. WHEREFORE, it is respectfully prayed that the foregoing partial stipulation of facts be approved and admitted by this Honorable Court.

As for the evidence presented during the trial, We quote from the decision of the Court of Appeals the statement thereof, as follows:
In addition to the foregoing stipulation of facts, plaintiff claims she is a 70-year old widow who cannot read and write the English language; that she can speak the Pampango dialect only; that she has only finished second grade (t.s.n., p. 4, December 11, 1964); that in December 1959, she needed money in the amount of P3,000.00 to invest in the business of the defendant spouses Valencia, who accompanied her to the defendant bank for the purpose of securing a loan of P3,000.00; that while at the defendant bank, an employee handed to her several forms already prepared which she was asked to sign on the places indicated, with no one explaining to her the nature and contents of the documents; that she did not even receive a copy thereof; that she was given a check in the amount of P2,882.85 which she delivered to defendant spouses; that sometime in February 1961, she received a letter from the Acting Deputy Sheriff of Manila, regarding the extrajudicial foreclosure sale of her property; that it was then when she learned for the first time that the mortgage indebtedness secured by the mortgage on her property was P6,000.00 and not P3,000.00; that upon investigation of her lawyer, it was found that the papers she was made to sign were: (a) Application for a loan of P3,000.00 dated December 7, 1959 (Exh. B-1 and Exh. 1); (b) Promissory note dated December 11, 1959 for the said loan of P3,000.00 (Exh- B-2); (c) Promissory note dated December 11, 1959 for P3,000.00 with the defendants Valencia spouses as borrowers and appellee as co-maker (Exh. B-4 or Exh. 2). The auction sale set for March 10, 1961 was postponed co April 10, 1961 upon the request of defendant spouses Valencia who needed more time within which to pay their loan of P3,000.00 with the defendant bank; plaintiff claims that when she filed the complaint she deposited with the Clerk of Court the sum of P3,383.00 in full payment of her loan of P3,000.00 with the defendant bank, plus interest at the rate of 12% per annum up to April 3, 1961 (Exh. D). As additional evidence for the defendant bank, its manager declared that sometime in December, 1959, plaintiff was brought to the Office of the Bank by an employee- (t.s.n., p 4, January 27, 1966). She wept, there to inquire if she could get a loan from the bank. The claims he asked the amount and the purpose of the loan and the security to he given and plaintiff said she would need P3.000.00 to be invested in a drugstore in which she was a partner (t.s.n., p. 811. She offered as security for the loan her lot and house at Carola St., Sampaloc, Manila, which was promptly investigated by the defendant bank's inspector. Then a few days later, plaintiff came back to the bank with the wife of defendant Valencia A date was allegedly set for plaintiff and the defendant spouses for the processing of their application, but on the day fixed, plaintiff came without the defendant spouses. She signed the application and the other papers pertinent to the loan after she was interviewed by the manager of the defendant. After the application of plaintiff was made, defendant spouses had their application for a loan also prepared and signed (see Exh. 13). In his interview of plaintiff and defendant spouses, the manager of the bank was able to gather that plaintiff was in joint venture with the defendant spouses wherein she agreed to invest P3,000.00 as additional capital in the laboratory owned by said spouses (t.s.n., pp. 16-17) 3

The Court of Appeals, upon evaluation of the evidence, affirmed in toto the decision of the Court of First Instance of Manila, the dispositive portion of which reads:
FOR ALL THE FOREGOING CONSIDERATIONS, the Court renders judgment and: (1) Declares that the promissory note, Exhibit '2', is invalid as against plaintiff herein; (2) Declares that the contract of mortgage, Exhibit '6', is null and void, in so far as the amount thereof exceeds the sum of P3,000.00 representing the principal obligation of plaintiff, plus the interest thereon at 12% per annum; (3) Annuls the extrajudicial foreclosure sale at public auction of the mortgaged property held on April 11, 1961, as well as all the process and actuations made in pursuance of or in implementation thereto; (4) Holds that the total unpaid obligation of plaintiff to defendant Rural Bank of Caloocan, Inc., is only the amount of P3,000.00, plus the interest thereon at 12% per annum, as of April 3, 1961, and orders that plaintiff's deposit of P3,383.00 in the Office of the Clerk of Court be applied to the payment thereof; (5) Orders defendant Rural Bank of Caloocan, Inc. to return to defendant Arsenio Reyes the purchase price the latter paid for the mortgaged property at the public auction, as well as reimburse him of all the expenses he has incurred relative to the sale thereof; (6) Orders defendants spouses Severino D. Valencia and Catalina Valencia to pay defendant Rural Bank of Caloocan, Inc. the amount of P3,000.00 plus the corresponding 12% interest thereon per annum from December 11, 1960 until fully paid; and Orders defendants Rural Bank of Caloocan, Inc., Jose Desiderio, Jr. and spouses Severino D. Valencia and Catalina Valencia to pay plaintiff, jointly and severally, the sum of P600.00 by way of attorney's fees, as well as costs. In view of the conclusion that the court has thus reached, the counterclaims of defendant Rural Bank of Caloocan, Inc., Jose Desiderio, Jr. and Arsenio Reyes are hereby dismissed, as a corollary The Court further denies the motion of defendant Arsenio Reyes for an Order requiring Maxima Castro to deposit rentals filed on November 16, 1963, resolution of which was held in abeyance pending final determination of the case on the merits, also as a consequence of the conclusion aforesaid. 4

Petitioners Bank and Jose Desiderio moved for the reconsideration 5 of respondent court's decision. The motion having been denied, 6 they now come before this Court in the instant petition, with the following Assignment of Errors, to wit:
I THE COURT OF APPEALS ERRED IN UPHOLDING THE PARTIAL ANNULMENT OF THE PROMISSORY NOTE, EXHIBIT 2, AND THE MORTGAGE, EXHIBIT 6, INSOFAR AS THEY AFFECT RESPONDENT MAXIMA CASTRO VIS-A-VIS PETITIONER BANK DESPITE THE TOTAL ABSENCE OF EITHER ALLEGATION IN THE COMPLAINT OR COMPETENT PROOF IN THE EVIDENCE OF ANY FRAUD OR OTHER UNLAWFUL CONDUCT COMMITTED OR PARTICIPATED IN BY PETITIONERS IN PROCURING THE EXECUTION OF SAID

CONTRACTS FROM RESPONDENT CASTRO. II THE COURT OF APPEALS ERRED IN IMPUTING UPON AND CONSIDERING PREJUDICIALLY AGAINST PETITIONERS, AS BASIS FOR THE PARTIAL ANNULMENT OF THE CONTRACTS AFORESAID ITS FINDING OF FRAUD PERPETRATED BY THE VALENCIA SPOUSES UPON RESPONDENT CASTRO IN UTTER VIOLATION OF THE RES INTER ALIOS ACTA RULE. III THE COURT OF APPEAL ERRED IN NOT HOLDING THAT, UNDER THE FACTS FOUND BY IT, RESPONDENT CASTRO IS UNDER ESTOPPEL TO IMPUGN THE REGULARITY AND VALIDITY OF HER QUESTIONED TRANSACTION WITH PETITIONER BANK. IV THE COURT OF APPEALS ERRED IN NOT FINDING THAT, BETWEEN PETITIONERS AND RESPONDENT CASTRO, THE LATTER SHOULD SUFFER THE CONSEQUENCES OF THE FRAUD PERPETRATED BY THE VALENCIA SPOUSES, IN AS MUCH AS IT WAS THRU RESPONDENT CASTRO'S NEGLIGENCE OR ACQUIESCENSE IF NOT ACTUAL CONNIVANCE THAT THE PERPETRATION OF SAID FRAUD WAS MADE POSSIBLE. V THE COURT OF APPEALS ERRED IN UPHOLDING THE VALIDITY OF THE DEPOSIT BY RESPONDENT CASTRO OF P3,383.00 WITH THE COURT BELOW AS A TENDER AND CONSIGNATION OF PAYMENT SUFFICIENT TO DISCHARGE SAID RESPONDENT FROM HER OBLIGATION WITH PETITIONER BANK. VI THE COURT OF APPEALS ERRED IN NOT DECLARING AS VALID AND BINDING UPON RESPONDENT CASTRO THE HOLDING OF THE SALE ON FORECLOSURE ON THE BUSINESS DAY NEXT FOLLOWING THE ORIGINALLY SCHEDULED DATE THEREFOR WHICH WAS DECLARED A HOLIDAY WITHOUT NECESSITY OF FURTHER NOTICE THEREOF.

The issue raised in the first three (3) assignment of errors is whether or not respondent court correctly affirmed the lower court in declaring the promissory note (Exhibit 2) invalid insofar as they affect respondent Castro vis-a-vis petitioner bank, and the mortgage contract (Exhibit 6) valid up to the amount of P3,000.00 only. Respondent court declared that the consent of Castro to the promissory note (Exhibit 2) where she signed as co-maker with the Valencias as principal borrowers and her acquiescence to the mortgage contract (Exhibit 6) where she encumbered her property to secure the amount of P6,000.00 was obtained by fraud perpetrated on her by the Valencias who had abused her confidence, taking advantage of her old age and ignorance of her financial need. Respondent court added that "the mandate of fair play decrees that she should be relieved of her obligation under the contract" pursuant to Articles 24 7 and 1332 8 of the Civil Code.

The decision in effect relieved Castro of any liability to the promissory note (Exhibit 2) and the mortgage contract (Exhibit 6) was deemed valid up to the amount of P3,000.00 only which was equivalent to her personal loan to the bank. Petitioners argued that since the Valencias were solely declared in the decision to be responsible for the fraud against Castro, in the light of the res inter alios acta rule, a finding of fraud perpetrated by the spouses against Castro cannot be taken to operate prejudicially against the bank. Petitioners concluded that respondent court erred in not giving effect to the promissory note (Exhibit 2) insofar as they affect Castro and the bank and in declaring that the mortgage contract (Exhibit 6) was valid only to the extent of Castro's personal loan of P3,000.00. The records of the case reveal that respondent court's findings of fraud against the Valencias is well supported by evidence. Moreover, the findings of fact by respondent court in the matter is deemed final. 9 The decision declared the Valencias solely responsible for the defraudation of Castro. Petitioners' contention that the decision was silent regarding the participation of the bank in the fraud is, therefore, correct. We cannot agree with the contention of petitioners that the bank was defrauded by the Valencias. For one, no claim was made on this in the lower court. For another, petitioners did not submit proof to support its contention. At any rate, We observe that while the Valencias defrauded Castro by making her sign the promissory note (Exhibit 2) and the mortgage contract (Exhibit 6), they also misrepresented to the bank Castro's personal qualifications in order to secure its consent to the loan. This must be the reason which prompted the bank to contend that it was defrauded by the Valencias. But to reiterate, We cannot agree with the contention for reasons above-mentioned. However, if the contention deserves any consideration at all, it is in indicating the admission of petitioners that the bank committed mistake in giving its consent to the contracts. Thus, as a result of the fraud upon Castro and the misrepresentation to the bank inflicted by the Valencias both Castro and the bank committed mistake in giving their consents to the contracts. In other words, substantial mistake vitiated their consents given. For if Castro had been aware of what she signed and the bank of the true qualifications of the loan applicants, it is evident that they would not have given their consents to the contracts. Pursuant to Article 1342 of the Civil Code which provides:
Art. 1342. Misrepresentation by a third person does not vitiate consent, unless such misrepresentation has created substantial mistake and the same is mutual.

We cannot declare the promissory note (Exhibit 2) valid between the bank and Castro and the mortgage contract (Exhibit 6) binding on Castro beyond the amount of P3,000.00, for while the contracts may not be invalidated insofar as they affect the bank and Castro on the ground of fraud because the bank was not a participant thereto, such may however be invalidated on the ground of substantial mistake mutually committed by them as a consequence of the fraud and misrepresentation inflicted by the Valencias. Thus, in the case of Hill vs. Veloso, 10 this Court declared that a contract may be annulled on the ground of vitiated consent if deceit by a

third person, even without connivance or complicity with one of the contracting parties, resulted in mutual error on the part of the parties to the contract. Petitioners argued that the amended complaint fails to contain even a general averment of fraud or mistake, and its mention in the prayer is definitely not a substantial compliance with the requirement of Section 5, Rule 8 of the Rules of Court. The records of the case, however, will show that the amended complaint contained a particular averment of fraud against the Valencias in full compliance with the provision of the Rules of Court. Although, the amended complaint made no mention of mistake being incurred in by the bank and Castro, such mention is not essential in order that the promissory note (Exhibit 2) may be declared of no binding effect between them and the mortgage (Exhibit 6) valid up to the amount of P3,000.00 only. The reason is that the mistake they mutually suffered was a mere consequence of the fraud perpetrated by the Valencias against them. Thus, the fraud particularly averred in the complaint, having been proven, is deemed sufficient basis for the declaration of the promissory note (Exhibit 2) invalid insofar as it affects Castro vis-a-vis the bank, and the mortgage contract (Exhibit 6) valid only up to the amount of P3,000.00. The second issue raised in the fourth assignment of errors is who between Castro and the bank should suffer the consequences of the fraud perpetrated by the Valencias. In attributing to Castro an consequences of the loss, petitioners argue that it was her negligence or acquiescence if not her actual connivance that made the fraud possible. Petitioners' argument utterly disregards the findings of respondent Court of Appeals wherein petitioners' negligence in the contracts has been aptly demonstrated, to wit:
A witness for the defendant bank, Rodolfo Desiderio claims he had subjected the plaintiffappellee to several interviews. If this were true why is it that her age was placed at 61 instead of 70; why was she described in the application (Exh. B-1-9) as drug manufacturer when in fact she was not; why was it placed in the application that she has income of P20,000.00 when according to plaintiff-appellee, she his not even given such kind of information -the true fact being that she was being paid P1.20 per picul of the sugarcane production in her hacienda and 500 cavans on the palay production. 11

From the foregoing, it is evident that the bank was as much , guilty as Castro was, of negligence in giving its consent to the contracts. It apparently relied on representations made by the Valencia spouses when it should have directly obtained the needed data from Castro who was the acknowledged owner of the property offered as collateral. Moreover, considering Castro's personal circumstances her lack of education, ignorance and old age she cannot be considered utterly neglectful for having been defrauded. On the contrary, it is demanded of petitioners to exercise the highest order of care and prudence in its business dealings with the Valencias considering that it is engaged in a banking business a business affected with public interest. It should have ascertained Castro's awareness of what she was signing or made her understand what obligations she was assuming, considering that she was giving accommodation to, without any consideration from the Valencia spouses. Petitioners further argue that Castro's act of holding the Valencias as her agent led the bank to believe that they were authorized to speak and bind her. She cannot now be permitted to deny the authority of the Valencias to act as her agent for one who clothes another with

apparent authority as her agent is not permitted to deny such authority. The authority of the Valencias was only to follow-up Castro's loan application with the bank. They were not authorized to borrow for her. This is apparent from the fact that Castro went to the Bank to sign the promissory note for her loan of P3,000.00. If her act had been understood by the Bank to be a grant of an authority to the Valencia to borrow in her behalf, it should have required a special power of attorney executed by Castro in their favor. Since the bank did not, We can rightly assume that it did not entertain the notion, that the Valencia spouses were in any manner acting as an agent of Castro. When the Valencias borrowed from the Bank a personal loan of P3,000.00 evidenced by a promissory note (Exhibit 2) and mortgaged (Exhibit 6) Castro's property to secure said loan, the Valencias acted for their own behalf. Considering however that for the loan in which the Valencias appeared as principal borrowers, it was the property of Castro that was being mortgaged to secure said loan, the Bank should have exercised due care and prudence by making proper inquiry if Castro's consent to the mortgage was without any taint or defect. The possibility of her not knowing that she signed the promissory note (Exhibit 2) as co-maker with the Valencias and that her property was mortgaged to secure the two loans instead of her own personal loan only, in view of her personal circumstances ignorance, lack of education and old age should have placed the Bank on prudent inquiry to protect its interest and that of the public it serves. With the recent occurrence of events that have supposedly affected adversely our banking system, attributable to laxity in the conduct of bank business by its officials, the need of extreme caution and prudence by said officials and employees in the discharge of their functions cannot be over-emphasized. Question is, likewise, raised as to the propriety of respondent court's decision which declared that Castro's consignation in court of the amount of P3,383.00 was validly made. It is contended that the consignation was made without prior offer or tender of payment to the Bank, and it therefore, not valid. In holding that there is a substantial compliance with the provision of Article 1256 of the Civil Code, respondent court considered the fact that the Bank was holding Castro liable for the sum of P6,000.00 plus 12% interest per annum, while the amount consigned was only P3,000.00 plus 12% interest; that at the time of consignation, the Bank had long foreclosed the mortgage extrajudicially and the sale of the mortgage property had already been scheduled for April 10, 1961 for non-payment of the obligation, and that despite the fact that the Bank already knew of the deposit made by Castro because the receipt of the deposit was attached to the record of the case, said Bank had not made any claim of such deposit, and that therefore, Castro was right in thinking that it was futile and useless for her to make previous offer and tender of payment directly to the Bank only in the aforesaid amount of P3,000.00 plus 12% interest. Under the foregoing circumstances, the consignation made by Castro was valid. if not under the strict provision of the law, under the more liberal considerations of equity. The final issue raised is the validity or invalidity of the extrajudicial foreclosure sale at public auction of the mortgaged property that was held on April 11, 1961. Petitioners contended that the public auction sale that was held on April 11, 1961 which was the next business day after the scheduled date of the sale on April 10, 1961, a special public holiday, was permissible and valid pursuant to the provisions of Section 31 of the Revised

Administrative Code which ordains:

Pretermission of holiday. Where the day, or the last day, for doing any act required or permitted by law falls on a holiday, the act may be done on the next succeeding business day.

Respondent court ruled that the aforesaid sale is null and void, it not having been carried out in accordance with Section 9 of Act No. 3135, which provides:
Section 9. Notice shall be given by posting notices of the sale for not less than twenty days in at least three public places of the municipality or city where the property is situated, and if such property is worth more than four hundred pesos, such notice shall also be published once a week for at least three consecutive weeks in a newspaper of general circulation in the municipality or city.

We agree with respondent court. The pretermission of a holiday applies only "where the day, or the last day for doing any act required or permitted by law falls on a holiday," or when the last day of a given period for doing an act falls on a holiday. It does not apply to a day fixed by an office or officer of the government for an act to be done, as distinguished from a period of time within which an act should be done, which may be on any day within that specified period. For example, if a party is required by law to file his answer to a complaint within fifteen (15) days from receipt of the summons and the last day falls on a holiday, the last day is deemed moved to the next succeeding business day. But, if the court fixes the trial of a case on a certain day but the said date is subsequently declared a public holiday, the trial thereof is not automatically transferred to the next succeeding business day. Since April 10, 1961 was not the day or the last day set by law for the extrajudicial foreclosure sale, nor the last day of a given period but a date fixed by the deputy sheriff, the aforesaid sale cannot legally be made on the next succeeding business day without the notices of the sale on that day being posted as prescribed in Section 9, Act No. 3135. WHEREFORE, finding no reversible error in the judgment under review, We affirm the same in toto. No pronouncement as to cost. SO ORDERED. Teehankee (Acting, C.J.) Makasiar, Fernandez, Guerrero and Melencio-Herrera, JJ., concur.

Footnotes
* Mr. Justice de Castro was designated to sit with the First Division under Special Order No. 225. 1 Rollo, pp. 112-133. 2 Record on Appeal, pp. 84-89. 3 Rollo, pp. 112-117. 4 Rollo, pp. 117-118. 5 Motion for Reconsideration, Rollo, pp. 134-167.

6 Resolution of the Court of Appeals, dated May 25, 1970, Rollo, p. 168. 7 Art. 24. In all contractual property or other relations, when one of the parties is at a disadvantage on account of his moral dependence, ignorance, indigence, mental weakness, tender age or other handicap, the courts must be vigilant for his protection. 8 Art. 1332. When one of the parties is unable to read or if the contract is in a language not understood by him, and mistake or fraud is alleged, the person enforcing the contract must show that the terms thereof have been fully explained to the former. 9 Guico vs. Mayuga 63 Phil. 328; Velasco vs. Court of Appeals, 90 Phil. 688; Fonacier vs. Court of Appeals, 96 Phil. 417. 10 31 Phil. 160. 11 pp. 13-14, CA decision.

4 EN BANC [G.R. No. 124893. April 18, 1997] LYNETTE G. GARVIDA, petitioner, vs. FLORENCIO G. SALES, JR., THE HONORABLE COMMISSION ON ELECTIONS, ELECTION OFFICER DIONISIO F. RIOS and PROVINCIAL SUPERVISOR NOLI PIPO, respondents.

DECISION
PUNO, J.: Petitioner Lynette G. Garvida seeks to annul and set aside the order dated May 2, 1996 of respondent Commission on Elections (COMELEC) en banc suspending her proclamation as the duly elected Chairman of the Sangguniang Kabataan of Barangay San Lorenzo, Municipality of Bangui, Ilocos Norte. The facts are undisputed. The Sangguniang Kabataan (SK) elections nationwide was scheduled to be held on May 6, 1996. On March 16, 1996, petitioner applied for registration as member and voter of the Katipunan ng Kabataan of Barangay San Lorenzo, Bangui, Ilocos Norte. The Board of Election Tellers, however, denied her application on the ground that petitioner, who was then twenty-one years and ten (10) months old, exceeded the age limit for membership in the Katipunan ng Kabataan as laid down in Section 3 [b] of COMELEC Resolution No. 2824. On April 2, 1996, petitioner filed a "Petition for Inclusion as Registered Kabataang Member and Voter" with the Municipal Circuit Trial Court, Bangui-Pagudpud-Adams-Damalneg, Ilocos Norte. In a decision dated April 18, 1996, the said court found petitioner qualified and ordered her registration as member and voter in the Katipunan ng Kabataan.[1] The Board of Election Tellers appealed to the Regional Trial Court, Bangui, Ilocos Norte.[2] The presiding judge of the Regional Trial Court, however, inhibited himself from acting on the appeal due to his close association with petitioner.[3] On April 23, 1996, petitioner filed her certificate of candidacy for the position of Chairman, Sangguniang Kabataan, Barangay San Lorenzo, Municipality of Bangui, Province of Ilocos Norte. In a letter dated April 23, 1996, respondent Election Officer Dionisio F. Rios, per advice of Provincial

Election Supervisor Noli Pipo,[4] disapproved petitioner's certificate of candidacy again due to her age. [5] Petitioner, however, appealed to COMELEC Regional Director Filemon A. Asperin who set aside the order of respondents and allowed petitioner to run.[6] On May 2, 1996, respondent Rios issued a memorandum to petitioner informing her of her ineligibility and giving her 24 hours to explain why her certificate of candidacy should not be disapproved.[7] Earlier and without the knowledge of the COMELEC officials, private respondent Florencio G. Sales, Jr., a rival candidate for Chairman of the Sangguniang Kabataan, filed with the COMELEC en banc a "Petition of Denial and/or Cancellation of Certificate of Candidacy" against petitioner Garvida for falsely representing her age qualification in her certificate of candidacy. The petition was sent by facsimile[8] and registered mail on April 29, 1996 to the Commission on Elections National Office, Manila. On May 2, 1996, the same day respondent Rios issued the memorandum to petitioner, the COMELEC en banc issued an order directing the Board of Election Tellers and Board of Canvassers of Barangay San Lorenzo to suspend the proclamation of petitioner in the event she won in the election. The order reads as follows: "Acting on the Fax "Petition for Denial And/Or Cancellation of Certificate of Candidacy" by petitioner Florencio G. Sales, Jr. against Lynette G. Garvida, received on April 29, 1996, the pertinent allegations of which reads: xxx 5. That the said respondent is disqualified to become a voter and a candidate for the SK for the reason that she will be more than twenty-one (21) years of age on May 6, 1996; that she was born on June 11, 1974 as can be gleaned from her birth certificate, a copy of which is hereto attached and marked as Annex "A"; 6. That in filing her certificate of candidacy as candidate for SK of Bgy. San Lorenzo, Bangui, Ilocos Norte, she made material representation which is false and as such, she is disqualified; that her certificate of candidacy should not be given due course and that said candidacy must be cancelled; x x x." the Commission, it appearing that the petition is meritorious, hereby DIRECTS the Board of Election Tellers/Board of Canvassers of Barangay San Lorenzo, Bangui, Ilocos Norte, to suspend the proclamation of Lynette G. Garvida in the event she garners the highest number of votes for the position of Sangguniang Kabataan [sic]. Meantime, petitioner is hereby required to submit immediately ten (10) copies of his petition and to pay the filing and legal research fees in the amount of P510.00. SO ORDERED."[9] On May 6, 1996, election day, petitioner garnered 78 votes as against private respondent's votes of 76. [10] In accordance with the May 2, 1996 order of the COMELEC en banc, the Board of Election Tellers did not proclaim petitioner as the winner. Hence, the instant petition for certiorari was filed on May

27, 1996. On June 2, 1996, however, the Board of Election Tellers proclaimed petitioner the winner for the position of SK chairman, Barangay San Lorenzo, Bangui, Ilocos Norte.[11] The proclamation was "without prejudice to any further action by the Commission on Elections or any other interested party."[12] On July 5, 1996, petitioner ran in the Pambayang Pederasyon ng mga Sangguniang Kabataan for the municipality of Bangui, Ilocos Norte. She won as Auditor and was proclaimed one of the elected officials of the Pederasyon.[13] Petitioner raises two (2) significant issues: the first concerns the jurisdiction of the COMELEC en banc to act on the petition to deny or cancel her certificate of candidacy; the second, the cancellation of her certificate of candidacy on the ground that she has exceeded the age requirement to run as an elective official of the SK. I Section 532 (a) of the Local Government Code of 1991 provides that the conduct of the SK elections is under the supervision of the COMELEC and shall be governed by the Omnibus Election Code.[14] The Omnibus Election Code, in Section 78, Article IX, governs the procedure to deny due course to or cancel a certificate of candidacy, viz: "Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. -- A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twentyfive days from the time of filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before election." In relation thereto, Rule 23 of the COMELEC Rules of Procedure provides that a petition to deny due course to or cancel a certificate of candidacy for an elective office may be filed with the Law Department of the COMELEC on the ground that the candidate has made a false material representation in his certificate. The petition may be heard and evidence received by any official designated by the COMELEC after which the case shall be decided by the COMELEC itself.[15] Under the same Rules of Procedure, jurisdiction over a petition to cancel a certificate of candidacy lies with the COMELEC sitting in Division, not en banc. Cases before a Division may only be entertained by the COMELEC en banc when the required number of votes to reach a decision, resolution, order or ruling is not obtained in the Division. Moreover, only motions to reconsider decisions, resolutions, orders or rulings of the COMELEC in Division are resolved by the COMELEC en banc.[16] It is therefore the COMELEC sitting in Divisions that can hear and decide election cases. This is clear from Section 3 of the said Rules thus: "Sec. 3. The Commission Sitting in Divisions. -- The Commission shall sit in two (2) Divisions to hear and decide protests or petitions in ordinary actions, special actions, special cases, provisional remedies, contempt and special proceedings except in accreditation of citizens' arms of the Commission."[17]

In the instant case, the COMELEC en banc did not refer the case to any of its Divisions upon receipt of the petition. It therefore acted without jurisdiction or with grave abuse of discretion when it entertained the petition and issued the order of May 2, 1996.[18] II The COMELEC en banc also erred when it failed to note that the petition itself did not comply with the formal requirements of pleadings under the COMELEC Rules of Procedure. These requirements are: "Sec. 1. Filing of Pleadings. -- Every pleading, motion and other papers must be filed in ten (10) legible copies. However, when there is more than one respondent or protestee, the petitioner or protestant must file additional number of copies of the petition or protest as there are additional respondents or protestees. Sec. 2. How Filed. -- The documents referred to in the immediately preceding section must be filed directly with the proper Clerk of Court of the Commission personally, or, unless otherwise provided in these Rules, by registered mail. In the latter case, the date of mailing is the date of filing and the requirement as to the number of copies must be complied with. Sec. 3. Form of Pleadings, etc. -- (a) All pleadings allowed by these Rules shall be printed, mimeographed or typewritten on legal size bond paper and shall be in English or Filipino. x x x." Every pleading before the COMELEC must be printed, mimeographed or typewritten in legal size bond paper and filed in at least ten (10) legible copies. Pleadings must be filed directly with the proper Clerk of Court of the COMELEC personally, or, by registered mail. In the instant case, the subject petition was not in proper form. Only two (2) copies of the petition were filed with the COMELEC.[19] Also, the COMELEC en banc issued its Resolution on the basis of the petition transmitted by facsimile, not by registered mail. A facsimile or fax transmission is a process involving the transmission and reproduction of printed and graphic matter by scanning an original copy, one elemental area at a time, and representing the shade or tone of each area by a specified amount of electric current.[20] The current is transmitted as a signal over regular telephone lines or via microwave relay and is used by the receiver to reproduce an image of the elemental area in the proper position and the correct shade.[21] The receiver is equipped with a stylus or other device that produces a printed record on paper referred to as a facsimile.[22] Filing a pleading by facsimile transmission is not sanctioned by the COMELEC Rules of Procedure, much less by the Rules of Court. A facsimile is not a genuine and authentic pleading. It is, at best, an exact copy preserving all the marks of an original.[23] Without the original, there is no way of determining on its face whether the facsimile pleading is genuine and authentic and was originally signed by the party and his counsel. It may, in fact, be a sham pleading. The uncertainty of the authenticity of a facsimile pleading should have restrained the COMELEC en banc from acting on the petition and issuing the questioned order. The COMELEC en banc should have waited until it received the petition filed by registered mail.

III To write finis to the case at bar, we shall now resolve the issue of petitioner's age. The Katipunan ng Kabataan was originally created by Presidential Decree No. 684 in 1975 as the Kabataang Barangay, a barangay youth organization composed of all residents of the barangay who were at least 15 years but less than 18 years of age.[24] The Kabataang Barangay sought to provide its members a medium to express their views and opinions and participate in issues of transcendental importance.[25] Its affairs were administered by a barangay youth chairman together with six barangay youth leaders who were actual residents of the barangay and were at least 15 years but less than 18 years of age.[26] In 1983, Batas Pambansa Blg. 337, then the Local Government Code, raised the maximum age of the Kabataang Barangay members from "less than 18 years of age" to "not more than 21 years of age." The Local Government Code of 1991 changed the Kabataang Barangay into the Katipunan ng Kabataan. It, however, retained the age limit of the members laid down in B.P. 337 at 15 but not more than 21 years old.[27] The affairs of the Katipunan ng Kabataan are administered by the Sangguniang Kabataan (SK) composed of a chairman and seven (7) members who are elected by the Katipunan ng Kabataan.[28] The chairman automatically becomes ex-officio member of the Sangguniang Barangay.[29] A member of the SK holds office for a term of three (3) years, unless sooner removed for cause, or becomes permanently incapacitated, dies or resigns from office.[30] Membership in the Katipunan ng Kabataan is subject to specific qualifications laid down by the Local Government Code of 1991, viz: "Sec. 424. Katipunan ng Kabataan. -- The katipunan ng kabataan shall be composed of all citizens of the Philippines actually residing in the barangay for at least six (6) months, who are fifteen (15) but not more than twenty-one (21) years of age, and who are duly registered in the list of the sangguniang kabataan or in the official barangay list in the custody of the barangay secretary." A member of the Katipunan ng Kabataan may become a candidate for the Sangguniang Kabataan if he possesses the following qualifications: "Sec. 428. Qualifications. -- An elective official of the sangguniang kabataan must be a citizen of the Philippines, a qualified voter of the katipunan ng kabataan, a resident of the barangay for at least one (1) year immediately prior to election, at least fifteen (15) years but not more than twenty-one (21) years of age on the day of his election, able to read and write Filipino, English, or the local dialect, and must not have been convicted of any crime involving moral turpitude." Under Section 424 of the Local Government Code, a member of the Katipunan ng Kabataan must be: (a) a Filipino citizen; (b) an actual resident of the barangay for at least six months; (c) 15 but not more than 21 years of age; and (d) duly registered in the list of the Sangguniang Kabataan or in the official barangay list. Section 428 of the Code requires that an elective official of the Sangguniang

Kabataan must be: (a) a Filipino citizen; (b) a qualified voter in the Katipunan ng Kabataan; (c) a resident of the barangay at least one (1) year immediately preceding the election; (d) at least 15 years but not more than 21 years of age on the day of his election; (e) able to read and write; and (f) must not have been convicted of any crime involving moral turpitude. For the May 6, 1996 SK elections, the COMELEC interpreted Sections 424 and 428 of the Local Government Code of 1991 in Resolution No. 2824 and defined how a member of the Katipunan ng Kabataan becomes a qualified voter and an elective official. Thus: "Sec. 3. Qualifications of a voter. -- To be qualified to register as a voter in the SK elections, a person must be: a) a citizen of the Philippines; b) fifteen (15) but not more than twenty-one (21) years of age on election day, that is, he must have been born between May 6, 1975 and May 6, 1981, inclusive; and c) a resident of the Philippines for at least one (1) year and actually residing in the barangay wherein he proposes to vote for at least six (6) months immediately preceding the elections." xxx "Sec. 6. Qualifications of elective members. -- An elective official of the SK must be: a) a qualified voter; b) a resident in the barangay for at least one (1) year immediately prior to the elections; and c) able to read and write Filipino or any Philippine language or dialect or English. Cases involving the eligibility or qualification of candidates shall be decided by the city/municipal Election Officer (EO) whose decision shall be final." A member of the Katipunan ng Kabataan may be a qualified voter in the May 6, 1996 SK elections if he is: (a) a Filipino citizen; (b) 15 but not more than 21 years of age on election day, i.e., the voter must be born between May 6, 1975 and May 6, 1981, inclusive; and (c) a resident of the Philippines for at least one (1) year and an actual resident of the barangay at least six (6) months immediately preceding the elections. A candidate for the SK must: (a) possess the foregoing qualifications of a voter; (b) be a resident in the barangay at least one (1) year immediately preceding the elections; and (c) able to read and write. Except for the question of age, petitioner has all the qualifications of a member and voter in the Katipunan ng Kabataan and a candidate for the Sangguniang Kabataan. Petitioner's age is admittedly beyond the limit set in Section 3 [b] of COMELEC Resolution No. 2824. Petitioner, however, argues that Section 3 [b] of Resolution No. 2824 is unlawful, ultra vires and beyond the scope of Sections 424 and 428 of the Local Government Code of 1991. She contends that the Code itself does not provide that the voter must be exactly 21 years of age on election day. She urges that so long as she did not

turn twenty-two (22) years old, she was still twenty-one years of age on election day and therefore qualified as a member and voter in the Katipunan ng Kabataan and as candidate for the SK elections. A closer look at the Local Government Code will reveal a distinction between the maximum age of a member in the Katipunan ng Kabataan and the maximum age of an elective SK official. Section 424 of the Code sets a member's maximum age at 21 years only. There is no further provision as to when the member shall have turned 21 years of age. On the other hand, Section 428 provides that the maximum age of an elective SK official is 21 years old "on the day of his election." The addition of the phrase "on the day of his election" is an additional qualification. The member may be more than 21 years of age on election day or on the day he registers as member of the Katipunan ng Kabataan. The elective official, however, must not be more than 21 years old on the day of election. The distinction is understandable considering that the Code itself provides more qualifications for an elective SK official than for a member of the Katipunan ng Kabataan. Dissimilum dissimilis est ratio.[31] The courts may distinguish when there are facts and circumstances showing that the legislature intended a distinction or qualification.[32] The qualification that a voter in the SK elections must not be more than 21 years of age on the day of the election is not provided in Section 424 of the Local Government Code of 1991. In fact the term "qualified voter" appears only in COMELEC Resolution No. 2824.[33] Since a "qualified voter" is not necessarily an elective official, then it may be assumed that a "qualified voter" is a "member of the Katipunan ng Kabataan." Section 424 of the Code does not provide that the maximum age of a member of the Katipunan ng Kabataan is determined on the day of the election. Section 3 [b] of COMELEC Resolution No. 2824 is therefore ultra vires insofar as it sets the age limit of a voter for the SK elections at exactly 21 years on the day of the election. The provision that an elective official of the SK should not be more than 21 years of age on the day of his election is very clear. The Local Government Code speaks of years, not months nor days. When the law speaks of years, it is understood that years are of 365 days each.[34] One born on the first day of the year is consequently deemed to be one year old on the 365th day after his birth -- the last day of the year.[35] In computing years, the first year is reached after completing the first 365 days. After the first 365th day, the first day of the second 365-day cycle begins. On the 365th day of the second cycle, the person turns two years old. This cycle goes on and on in a lifetime. A person turns 21 years old on the 365th day of his 21st 365-day cycle. This means on his 21st birthday, he has completed the entire span of 21 365-day cycles. After this birthday, the 365-day cycle for his 22nd year begins. The day after the 365th day is the first day of the next 365-day cycle and he turns 22 years old on the 365th day. The phrase "not more than 21 years of age" means not over 21 years, not beyond 21 years. It means 21 365-day cycles. It does not mean 21 years and one or some days or a fraction of a year because that would be more than 21 365-day cycles. "Not more than 21 years old" is not equivalent to "less than 22 years old," contrary to petitioner's claims. The law does not state that the candidate be less than 22 years on election day. In P.D. 684, the law that created the Kabataang Barangay, the age qualification of a barangay youth official was expressly stated as "x x x at least fifteen years of age or over but less than eighteen x x x."[36] This provision clearly states that the youth official must be at least 15 years old and may be 17 years and a fraction of a year but should not reach the age of eighteen years. When the Local Government Code increased the age limit of members of the youth organization to 21 years, it did not reenact the provision in such a way as to make the youth "at least 15 but less than 22 years old." If the

intention of the Code's framers was to include citizens less than 22 years old, they should have stated so expressly instead of leaving the matter open to confusion and doubt.[37] Former Senator Aquilino Q. Pimentel, the sponsor and principal author of the Local Government Code of 1991 declared that one of the reasons why the Katipunan ng Kabataan was created and the Kabataang Barangay discontinued was because most, if not all, Kabataang Barangay leaders were already over 21 years of age by the time President Aquino assumed power.[38] They were not the "youth" anymore. The Local Government Code of 1991 fixed the maximum age limit at not more than 21 years[39] and the only exception is in the second paragraph of Section 423 which reads: "Sec. 423. Creation and Election. -- a) x x x;

b) A sangguniang kabataan official who, during his term of office, shall have passed the age of twenty-one (21) years shall be allowed to serve the remaining portion of the term for which he was elected." The general rule is that an elective official of the Sangguniang Kabataan must not be more than 21 years of age on the day of his election. The only exception is when the official reaches the age of 21 years during his incumbency. Section 423 [b] of the Code allows him to serve the remaining portion of the term for which he was elected. According to Senator Pimentel, the youth leader must have "been elected prior to his 21st birthday."[40] Conversely, the SK official must not have turned 21 years old before his election. Reading Section 423 [b] together with Section 428 of the Code, the latest date at which an SK elective official turns 21 years old is on the day of his election. The maximum age of a youth official must therefore be exactly 21 years on election day. Section 3 [b] in relation to Section 6 [a] of COMELEC Resolution No. 2824 is not ultra vires insofar as it fixes the maximum age of an elective SK official on the day of his election. In the case at bar, petitioner was born on June 11, 1974. On March 16, 1996, the day she registered as voter for the May 6, 1996 SK elections, petitioner was twenty-one (21) years and nine (9) months old. On the day of the elections, she was 21 years, 11 months and 5 days old. When she assumed office on June 1, 1996, she was 21 years, 11 months and 20 days old and was merely ten (10) days away from turning 22 years old. Petitioner may have qualified as a member of the Katipunan ng Kabataan but definitely, petitioner was over the age limit for elective SK officials set by Section 428 of the Local Government Code and Sections 3 [b] and 6 of Comelec Resolution No. 2824. She was ineligible to run as candidate for the May 6, 1996 Sangguniang Kabataan elections. The requirement that a candidate possess the age qualification is founded on public policy and if he lacks the age on the day of the election, he can be declared ineligible.[41] In the same vein, if the candidate is over the maximum age limit on the day of the election, he is ineligible. The fact that the candidate was elected will not make the age requirement directory, nor will it validate his election.[42] The will of the people as expressed through the ballot cannot cure the vice of ineligibility.[43] The ineligibility of petitioner does not entitle private respondent, the candidate who obtained the highest number of votes in the May 6, 1996 elections, to be declared elected.[44] A defeated candidate cannot be deemed elected to the office.[45] Moreover, despite his claims,[46] private respondent has failed to prove that the electorate themselves actually knew of petitioner's ineligibility and that they

maliciously voted for her with the intention of misapplying their franchises and throwing away their votes for the benefit of her rival candidate.[47] Neither can this Court order that pursuant to Section 435 of the Local Government Code petitioner should be succeeded by the Sangguniang Kabataan member who obtained the next highest number of votes in the May 6, 1996 elections.[48] Section 435 applies when a Sangguniang Kabataan Chairman "refuses to assume office, fails to qualify,[49] is convicted of a felony, voluntarily resigns, dies, is permanently incapacitated, is removed from office, or has been absent without leave for more than three (3) consecutive months." The question of the age qualification is a question of eligibility.[50] Being "eligible" means being "legally qualified; capable of being legally chosen."[51] Ineligibility, on the other hand, refers to the lack of the qualifications prescribed in the Constitution or the statutes for holding public office.[52] Ineligibility is not one of the grounds enumerated in Section 435 for succession of the SK Chairman. To avoid a hiatus in the office of SK Chairman, the Court deems it necessary to order that the vacancy be filled by the SK member chosen by the incumbent SK members of Barangay San Lorenzo, Bangui, Ilocos Norte by simple majority from among themselves. The member chosen shall assume the office of SK Chairman for the unexpired portion of the term, and shall discharge the powers and duties, and enjoy the rights and privileges appurtenant to said office. IN VIEW WHEREOF, the petition is dismissed and petitioner Lynette G. Garvida is declared ineligible for being over the age qualification for candidacy in the May 6, 1996 elections of the Sangguniang Kabataan, and is ordered to vacate her position as Chairman of the Sangguniang Kabataan of Barangay San Lorenzo, Bangui, Ilocos Norte. The Sangguniang Kabataan member voted by simple majority by and from among the incumbent Sangguniang Kabataan members of Barangay San Lorenzo, Bangui, Ilocos Norte shall assume the office of Sangguniang Kabataan Chairman of Barangay San Lorenzo, Bangui, Ilocos Norte for the unexpired portion of the term. SO ORDERED. Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Vitug, Kapunan, Mendoza, Francisco, Panganiban, and Torres, Jr., JJ., concur. Hermosisima, J., on leave.

5 Republic of the Philippines SUPREME COURT Manila

EN BANC G.R. No. L-29131 August 27, 1969

NATIONAL MARKETING CORPORATION, plaintiff-appellant, vs. MIGUEL D. TECSON, ET AL., defendants, MIGUEL D. TECSON, defendant-appellee, THE INSURANCE COMMISSIONER, petitioner. Government Corporate Counsel Leopoldo M. Abellera and Trial Atty. Antonio M. Brillantes for plaintiff-appellant. Antonio T. Lacdan for defendant-appellee. Office of the Solicitor General for petitioner. CONCEPCION, C.J.: This appeal has been certified to us by the Court of Appeals only one question of law being involved therein. On November 14, 1955, the Court of First Instance of Manila rendered judgment, in Civil Case No. 20520 thereof, entitled "Price Stabilization Corporation vs. Miguel D. Tecson and Alto Surety and Insurance Co., Inc.," the dispositive part of which reads as follows: For the foregoing consideration, the Court decides this case: (a) Ordering the defendants Miguel D. Tecson and Alto Surety Insurance Co., Inc. to pay jointly and severally plaintiff PRATRA the sum of P7,200.00 plus 7% interest from May 25, 1960 until the amount is fully paid, plus P500.00 for attorney's fees, and plus costs; (b) ordering defendant Miguel D. Tecson to indemnify his co-defendant Alto Surety & Insurance Co., Inc. on the cross-claim for all the amounts it would be made to pay in this decision, in case defendant Alto Surety & Insurance Co., Inc. pay the amount adjudged to plaintiff in this decision. From the date of such payment defendant Miguel D. Tecson would pay the Alto Surety & Insurance Co., Inc., interest at 12% per annum until Miguel D. Tecson has fully reimbursed plaintiff of the said amount. Copy of this decision was, on November 21, 1955, served upon the defendants in said case. On December 21, 1965, the National Marketing Corporation, as successor to all the properties, assets, rights, and choses in action of the Price Stabilization Corporation, as plaintiff in that case and judgment creditor therein, filed, with the same court, a complaint, docketed as Civil Case No. 63701 thereof, against the same defendants, for the revival of the judgment rendered in said Case No. 20520. Defendant Miguel D. Tecson moved to dismiss said complaint, upon the ground of lack of jurisdiction over the subject matter thereof and prescription of action. Acting upon the motion and plaintiff's opposition thereto, said Court issued, on February 14, 1966, an order reading: Defendant Miguel Tecson seeks the dismissal of the complaint on the ground of lack of jurisdiction and prescription. As for lack of jurisdiction, as the amount involved is less than

P10,000 as actually these proceedings are a revival of a decision issued by this same court, the matter of jurisdiction must be admitted. But as for prescription. Plaintiffs admit the decision of this Court became final on December 21, 1955. This case was filed exactly on December 21, 1965 but more than ten years have passed a year is a period of 365 days (Art. 13, CCP). Plaintiff forgot that 1960, 1964 were both leap years so that when this present case was filed it was filed two days too late. The complaint insofar as Miguel Tecson is concerned is, therefore, dismissed as having prescribed.1wph1.t The National Marketing Corporation appealed from such order to the Court of Appeals, which, on March 20, 1969t certified the case to this Court, upon the ground that the only question therein raised is one of law, namely, whether or not the present action for the revival of a judgment is barred by the statute of limitations. Pursuant to Art. 1144(3) of our Civil Code, an action upon a judgment "must be brought within ten years from the time the right of action accrues," which, in the language of Art. 1152 of the same Code, "commences from the time the judgment sought to be revived has become final." This, in turn, took place on December 21, 1955, or thirty (30) days from notice of the judgment which was received by the defendants herein on November 21, 1955 no appeal having been taken therefrom. 1 The issue is thus confined to the date on which ten (10) years from December 21, 1955 expired. Plaintiff-appellant alleges that it was December 21, 1965, but appellee Tecson maintains otherwise, because "when the laws speak of years ... it shall be understood that years are of three hundred sixty-five days each" according to Art. 13 of our Civil Code and, 1960 and 1964 being leap years, the month of February in both had 29 days, so that ten (10) years of 365 days each, or an aggregate of 3,650 days, from December 21, 1955, expired on December 19, 1965. The lower court accepted this view in its appealed order of dismissal. Plaintiff-appellant insists that the same "is erroneous, because a year means a calendar year (Statutory Construction, Interpretation of Laws, by Crawford, p. 383) and since what is being computed here is the number of years, a calendar year should be used as the basis of computation. There is no question that when it is not a leap year, December 21 to December 21 of the following year is one year. If the extra day in a leap year is not a day of the year, because it is the 366th day, then to what year does it belong? Certainly, it must belong to the year where it falls and, therefore, that the 366 days constitute one year." 2 The very conclusion thus reached by appellant shows that its theory contravenes the explicit provision of Art. 13 of the Civil Code of the Philippines, limiting the connotation of each "year" as the term is used in our laws to 365 days. Indeed, prior to the approval of the Civil Code of Spain, the Supreme Court thereof had held, on March 30, 1887, that, when the law spoke of months, it meant a "natural" month or "solar" month, in the absence of express provision to the contrary. Such provision was incorporated into the Civil Code of Spain, subsequently promulgated. Hence, the same Supreme Court declared 3 that, pursuant to Art. 7 of said Code, "whenever months ... are referred to in the law, it shall be understood that the months are of 30 days," not the "natural," or "solar" or "calendar" months, unless they are "designated by name," in which case "they shall be computed by the actual number of days they have. This concept was later, modified in the Philippines, by Section 13 of the Revised Administrative Code, Pursuant to which, "month shall be understood to refer to a calendar month." 4 In

the language of this Court, in People vs. Del Rosario, 5 with the approval of the Civil Code of the Philippines (Republic Act 386) ... we have reverted to the provisions of the Spanish Civil Code in accordance with which a month is to be considered as the regular 30-day month ... and not the solar or civil month," with the particularity that, whereas the Spanish Code merely mentioned "months, days or nights," ours has added thereto the term "years" and explicitly ordains that "it shall be understood that years are of three hundred sixty-five days." Although some members of the Court are inclined to think that this legislation is not realistic, for failure to conform with ordinary experience or practice, the theory of plaintiff-appellant herein cannot be upheld without ignoring, if not nullifying, Art. 13 of our Civil Code, and reviving Section 13 of the Revised Administrative Code, thereby engaging in judicial legislation, and, in effect, repealing an act of Congress. If public interest demands a reversion to the policy embodied in the Revised Administrative Code, this may be done through legislative process, not by judicial decree. WHEREFORE, the order appealed from should be as it is hereby affirmed, without costs. It is so ordered. Dizon, Makalintal, Sanchez, Castro, Fernando, Capistrano, Teehankee and Barredo, JJ., concur. Reyes, J.B.L., and Zaldivar, JJ., are on leave. Footnotes
1

Sec. 1, Rule 39, in relation to Sec. 3, Rule 31, Rules of Court. Emphasis ours. Decision of April 6, 1895. Guzman v. Lichauco, 42 Phil. 292; Gutierrez v. Carpio, 53 Phil. 334, 335-336. 97 Phil. 70-71. 6 Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. L-19671

November 29, 1965

PASTOR B. TENCHAVEZ, plaintiff-appellant, vs. VICENTA F. ESCAO, ET AL., defendants-appellees.

I. V. Binamira & F. B. Barria for plaintiff-appellant. Jalandoni & Jarnir for defendants-appellees. REYES, J.B.L., J.: Direct appeal, on factual and legal questions, from the judgment of the Court of First Instance of Cebu, in its Civil Case No. R-4177, denying the claim of the plaintiff-appellant, Pastor B. Tenchavez, for legal separation and one million pesos in damages against his wife and parents-in-law, the defendantsappellees, Vicente, Mamerto and Mena,1 all surnamed "Escao," respectively.2 The facts, supported by the evidence of record, are the following: Missing her late afternoon classes on 24 February 1948 in the University of San Carlos, Cebu City, where she was then enrolled as a second year student of commerce, Vicenta Escao, 27 years of age (scion of a well-to-do and socially prominent Filipino family of Spanish ancestry and a "sheltered colegiala"), exchanged marriage vows with Pastor Tenchavez, 32 years of age, an engineer, ex-army officer and of undistinguished stock, without the knowledge of her parents, before a Catholic chaplain, Lt. Moises Lavares, in the house of one Juan Alburo in the said city. The marriage was the culmination of a previous love affair and was duly registered with the local civil register. Vicenta's letters to Pastor, and his to her, before the marriage, indicate that the couple were deeply in love. Together with a friend, Pacita Noel, their matchmaker and go-between, they had planned out their marital future whereby Pacita would be the governess of their first-born; they started saving money in a piggy bank. A few weeks before their secret marriage, their engagement was broken; Vicenta returned the engagement ring and accepted another suitor, Joseling Lao. Her love for Pastor beckoned; she pleaded for his return, and they reconciled. This time they planned to get married and then elope. To facilitate the elopement, Vicenta had brought some of her clothes to the room of Pacita Noel in St. Mary's Hall, which was their usual trysting place. Although planned for the midnight following their marriage, the elopement did not, however, materialize because when Vicente went back to her classes after the marriage, her mother, who got wind of the intended nuptials, was already waiting for her at the college. Vicenta was taken home where she admitted that she had already married Pastor. Mamerto and Mena Escao were surprised, because Pastor never asked for the hand of Vicente, and were disgusted because of the great scandal that the clandestine marriage would provoke (t.s.n., vol. III, pp. 1105-06). The following morning, the Escao spouses sought priestly advice. Father Reynes suggested a recelebration to validate what he believed to be an invalid marriage, from the standpoint of the Church, due to the lack of authority from the Archbishop or the parish priest for the officiating chaplain to celebrate the marriage. The recelebration did not take place, because on 26 February 1948 Mamerto Escao was handed by a maid, whose name he claims he does not remember, a letter purportedly coming from San Carlos college students and disclosing an amorous relationship between Pastor Tenchavez and Pacita Noel; Vicenta translated the letter to her father, and thereafter would not agree to a new marriage. Vicenta and Pastor met that day in the house of Mrs. Pilar Mendezona. Thereafter, Vicenta continued living with her parents while Pastor returned to his job in Manila. Her letter of 22 March 1948 (Exh. "M"), while still solicitous of her husband's welfare, was not as endearing as her previous letters when their love was aflame.

Vicenta was bred in Catholic ways but is of a changeable disposition, and Pastor knew it. She fondly accepted her being called a "jellyfish." She was not prevented by her parents from communicating with Pastor (Exh. "1-Escao"), but her letters became less frequent as the days passed. As of June, 1948 the newlyweds were already estranged (Exh. "2-Escao"). Vicenta had gone to Jimenez, Misamis Occidental, to escape from the scandal that her marriage stirred in Cebu society. There, a lawyer filed for her a petition, drafted by then Senator Emmanuel Pelaez, to annul her marriage. She did not sign the petition (Exh. "B-5"). The case was dismissed without prejudice because of her non-appearance at the hearing (Exh. "B-4"). On 24 June 1950, without informing her husband, she applied for a passport, indicating in her application that she was single, that her purpose was to study, and she was domiciled in Cebu City, and that she intended to return after two years. The application was approved, and she left for the United States. On 22 August 1950, she filed a verified complaint for divorce against the herein plaintiff in the Second Judicial District Court of the State of Nevada in and for the County of Washoe, on the ground of "extreme cruelty, entirely mental in character." On 21 October 1950, a decree of divorce, "final and absolute", was issued in open court by the said tribunal. In 1951 Mamerto and Mena Escao filed a petition with the Archbishop of Cebu to annul their daughter's marriage to Pastor (Exh. "D"). On 10 September 1954, Vicenta sought papal dispensation of her marriage (Exh. "D"-2). On 13 September 1954, Vicenta married an American, Russell Leo Moran, in Nevada. She now lives with him in California, and, by him, has begotten children. She acquired American citizenship on 8 August 1958. But on 30 July 1955, Tenchavez had initiated the proceedings at bar by a complaint in the Court of First Instance of Cebu, and amended on 31 May 1956, against Vicenta F. Escao, her parents, Mamerto and Mena Escao, whom he charged with having dissuaded and discouraged Vicenta from joining her husband, and alienating her affections, and against the Roman Catholic Church, for having, through its Diocesan Tribunal, decreed the annulment of the marriage, and asked for legal separation and one million pesos in damages. Vicenta claimed a valid divorce from plaintiff and an equally valid marriage to her present husband, Russell Leo Moran; while her parents denied that they had in any way influenced their daughter's acts, and counterclaimed for moral damages. The appealed judgment did not decree a legal separation, but freed the plaintiff from supporting his wife and to acquire property to the exclusion of his wife. It allowed the counterclaim of Mamerto Escao and Mena Escao for moral and exemplary damages and attorney's fees against the plaintiffappellant, to the extent of P45,000.00, and plaintiff resorted directly to this Court. The appellant ascribes, as errors of the trial court, the following: 1. In not declaring legal separation; in not holding defendant Vicenta F. Escao liable for damages and in dismissing the complaint;. 2. In not holding the defendant parents Mamerto Escano and the heirs of Doa Mena Escao liable for damages;.

3 In holding the plaintiff liable for and requiring him to pay the damages to the defendant parents on their counterclaims; and. 4. In dismissing the complaint and in denying the relief sought by the plaintiff. That on 24 February 1948 the plaintiff-appellant, Pastor Tenchavez, and the defendant-appellee, Vicenta Escao, were validly married to each other, from the standpoint of our civil law, is clearly established by the record before us. Both parties were then above the age of majority, and otherwise qualified; and both consented to the marriage, which was performed by a Catholic priest (army chaplain Lavares) in the presence of competent witnesses. It is nowhere shown that said priest was not duly authorized under civil law to solemnize marriages. The chaplain's alleged lack of ecclesiastical authorization from the parish priest and the Ordinary, as required by Canon law, is irrelevant in our civil law, not only because of the separation of Church and State but also because Act 3613 of the Philippine Legislature (which was the marriage law in force at the time) expressly provided that SEC. 1. Essential requisites. Essential requisites for marriage are the legal capacity of the contracting parties and consent. (Emphasis supplied) The actual authority of the solemnizing officer was thus only a formal requirement, and, therefore, not essential to give the marriage civil effects,3 and this is emphasized by section 27 of said marriage act, which provided the following: SEC. 27. Failure to comply with formal requirements. No marriage shall be declared invalid because of the absence of one or several of the formal requirements of this Act if, when it was performed, the spouses or one of them believed in good faith that the person who solemnized the marriage was actually empowered to do so, and that the marriage was perfectly legal. The good faith of all the parties to the marriage (and hence the validity of their marriage) will be presumed until the contrary is positively proved (Lao vs. Dee Tim, 45 Phil. 739, 745; Francisco vs. Jason, 60 Phil. 442, 448). It is well to note here that in the case at bar, doubts as to the authority of the solemnizing priest arose only after the marriage, when Vicenta's parents consulted Father Reynes and the archbishop of Cebu. Moreover, the very act of Vicenta in abandoning her original action for annulment and subsequently suing for divorce implies an admission that her marriage to plaintiff was valid and binding. Defendant Vicenta Escao argues that when she contracted the marriage she was under the undue influence of Pacita Noel, whom she charges to have been in conspiracy with appellant Tenchavez. Even granting, for argument's sake, the truth of that contention, and assuming that Vicenta's consent was vitiated by fraud and undue influence, such vices did not render her marriage ab initio void, but merely voidable, and the marriage remained valid until annulled by a competent civil court. This was never done, and admittedly, Vicenta's suit for annulment in the Court of First Instance of Misamis was dismissed for non-prosecution. It is equally clear from the record that the valid marriage between Pastor Tenchavez and Vicenta Escao remained subsisting and undissolved under Philippine law, notwithstanding the decree of absolute divorce that the wife sought and obtained on 21 October 1950 from the Second Judicial

District Court of Washoe County, State of Nevada, on grounds of "extreme cruelty, entirely mental in character." At the time the divorce decree was issued, Vicenta Escao, like her husband, was still a Filipino citizen.4 She was then subject to Philippine law, and Article 15 of the Civil Code of the Philippines (Rep. Act No. 386), already in force at the time, expressly provided: Laws relating to family rights and duties or to the status, condition and legal capacity of persons are binding upon the citizens of the Philippines, even though living abroad. The Civil Code of the Philippines, now in force, does not admit absolute divorce, quo ad vinculo matrimonii; and in fact does not even use that term, to further emphasize its restrictive policy on the matter, in contrast to the preceding legislation that admitted absolute divorce on grounds of adultery of the wife or concubinage of the husband (Act 2710). Instead of divorce, the present Civil Code only provides for legal separation (Title IV, Book 1, Arts. 97 to 108), and, even in that case, it expressly prescribes that "the marriage bonds shall not be severed" (Art. 106, subpar. 1). For the Philippine courts to recognize and give recognition or effect to a foreign decree of absolute divorce betiveen Filipino citizens could be a patent violation of the declared public policy of the state, specially in view of the third paragraph of Article 17 of the Civil Code that prescribes the following: Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, policy and good customs, shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. Even more, the grant of effectivity in this jurisdiction to such foreign divorce decrees would, in effect, give rise to an irritating and scandalous discrimination in favor of wealthy citizens, to the detriment of those members of our polity whose means do not permit them to sojourn abroad and obtain absolute divorces outside the Philippines. From this point of view, it is irrelevant that appellant Pastor Tenchavez should have appeared in the Nevada divorce court. Primarily because the policy of our law cannot be nullified by acts of private parties (Civil Code,Art. 17, jam quot.); and additionally, because the mere appearance of a non-resident consort cannot confer jurisdiction where the court originally had none (Area vs. Javier, 95 Phil. 579). From the preceding facts and considerations, there flows as a necessary consequence that in this jurisdiction Vicenta Escao's divorce and second marriage are not entitled to recognition as valid; for her previous union to plaintiff Tenchavez must be declared to be existent and undissolved. It follows, likewise, that her refusal to perform her wifely duties, and her denial of consortium and her desertion of her husband constitute in law a wrong caused through her fault, for which the husband is entitled to the corresponding indemnity (Civil Code, Art. 2176). Neither an unsubstantiated charge of deceit nor an anonymous letter charging immorality against the husband constitute, contrary to her claim, adequate excuse. Wherefore, her marriage and cohabitation with Russell Leo Moran is technically "intercourse with a person not her husband" from the standpoint of Philippine Law, and entitles plaintiff-appellant Tenchavez to a decree of "legal separation under our law, on the basis of adultery" (Revised Penal Code, Art. 333). The foregoing conclusions as to the untoward effect of a marriage after an invalid divorce are in accord with the previous doctrines and rulings of this court on the subject, particularly those that were rendered under our laws prior to the approval of the absolute divorce act (Act 2710 of the Philippine

Legislature). As a matter of legal history, our statutes did not recognize divorces a vinculo before 1917, when Act 2710 became effective; and the present Civil Code of the Philippines, in disregarding absolute divorces, in effect merely reverted to the policies on the subject prevailing before Act 2710. The rulings, therefore, under the Civil Code of 1889, prior to the Act above-mentioned, are now, fully applicable. Of these, the decision in Ramirez vs. Gmur, 42 Phil. 855, is of particular interest. Said this Court in that case: As the divorce granted by the French Court must be ignored, it results that the marriage of Dr. Mory and Leona Castro, celebrated in London in 1905, could not legalize their relations; and the circumstance that they afterwards passed for husband and wife in Switzerland until her death is wholly without legal significance. The claims of the very children to participate in the estate of Samuel Bishop must therefore be rejected. The right to inherit is limited to legitimate, legitimated and acknowledged natural children. The children of adulterous relations are wholly excluded. The word "descendants" as used in Article 941 of the Civil Code cannot be interpreted to include illegitimates born of adulterous relations. (Emphasis supplied) Except for the fact that the successional rights of the children, begotten from Vicenta's marriage to Leo Moran after the invalid divorce, are not involved in the case at bar, the Gmur case is authority for the proposition that such union is adulterous in this jurisdiction, and, therefore, justifies an action for legal separation on the part of the innocent consort of the first marriage, that stands undissolved in Philippine law. In not so declaring, the trial court committed error. True it is that our ruling gives rise to anomalous situations where the status of a person (whether divorced or not) would depend on the territory where the question arises. Anomalies of this kind are not new in the Philippines, and the answer to them was given in Barretto vs. Gonzales, 58 Phil. 667: The hardship of the existing divorce laws in the Philippine Islands are well known to the members of the Legislature. It is the duty of the Courts to enforce the laws of divorce as written by Legislature if they are constitutional. Courts have no right to say that such laws are too strict or too liberal. (p. 72) The appellant's first assignment of error is, therefore, sustained. However, the plaintiff-appellant's charge that his wife's parents, Dr. Mamerto Escao and his wife, the late Doa Mena Escao, alienated the affections of their daughter and influenced her conduct toward her husband are not supported by credible evidence. The testimony of Pastor Tenchavez about the Escao's animosity toward him strikes us to be merely conjecture and exaggeration, and are belied by Pastor's own letters written before this suit was begun (Exh. "2-Escao" and "Vicenta," Rec. on App., pp. 270-274). In these letters he expressly apologized to the defendants for "misjudging them" and for the "great unhappiness" caused by his "impulsive blunders" and "sinful pride," "effrontery and audacity" [sic]. Plaintiff was admitted to the Escao house to visit and court Vicenta, and the record shows nothing to prove that he would not have been accepted to marry Vicente had he openly asked for her hand, as good manners and breeding demanded. Even after learning of the clandestine marriage, and despite their shock at such unexpected event, the parents of Vicenta proposed and arranged that the marriage be recelebrated in strict conformity with the canons of their religion upon advice that the previous one was canonically defective. If no recelebration of the marriage ceremony was had it was not due to defendants Mamerto Escao and his wife, but to the refusal of Vicenta to proceed with it. That the spouses Escao did not seek to compel or induce their daughter to assent to the recelebration

but respected her decision, or that they abided by her resolve, does not constitute in law an alienation of affections. Neither does the fact that Vicenta's parents sent her money while she was in the United States; for it was natural that they should not wish their daughter to live in penury even if they did not concur in her decision to divorce Tenchavez (27 Am. Jur. 130-132). There is no evidence that the parents of Vicenta, out of improper motives, aided and abetted her original suit for annulment, or her subsequent divorce; she appears to have acted independently, and being of age, she was entitled to judge what was best for her and ask that her decisions be respected. Her parents, in so doing, certainly cannot be charged with alienation of affections in the absence of malice or unworthy motives, which have not been shown, good faith being always presumed until the contrary is proved. SEC. 529. Liability of Parents, Guardians or Kin. The law distinguishes between the right of a parent to interest himself in the marital affairs of his child and the absence of rights in a stranger to intermeddle in such affairs. However, such distinction between the liability of parents and that of strangers is only in regard to what will justify interference. A parent isliable for alienation of affections resulting from his own malicious conduct, as where he wrongfully entices his son or daughter to leave his or her spouse, but he is not liable unless he acts maliciously, without justification and from unworthy motives. He is not liable where he acts and advises his child in good faith with respect to his child's marital relations in the interest of his child as he sees it, the marriage of his child not terminating his right and liberty to interest himself in, and be extremely solicitous for, his child's welfare and happiness, even where his conduct and advice suggest or result in the separation of the spouses or the obtaining of a divorce or annulment, or where he acts under mistake or misinformation, or where his advice or interference are indiscreet or unfortunate, although it has been held that the parent is liable for consequences resulting from recklessness. He may in good faith take his child into his home and afford him or her protection and support, so long as he has not maliciously enticed his child away, or does not maliciously entice or cause him or her to stay away, from his or her spouse. This rule has more frequently been applied in the case of advice given to a married daughter, but it is equally applicable in the case of advice given to a son. Plaintiff Tenchavez, in falsely charging Vicenta's aged parents with racial or social discrimination and with having exerted efforts and pressured her to seek annulment and divorce, unquestionably caused them unrest and anxiety, entitling them to recover damages. While this suit may not have been impelled by actual malice, the charges were certainly reckless in the face of the proven facts and circumstances. Court actions are not established for parties to give vent to their prejudices or spleen. In the assessment of the moral damages recoverable by appellant Pastor Tenchavez from defendant Vicente Escao, it is proper to take into account, against his patently unreasonable claim for a million pesos in damages, that (a) the marriage was celebrated in secret, and its failure was not characterized by publicity or undue humiliation on appellant's part; (b) that the parties never lived together; and (c) that there is evidence that appellant had originally agreed to the annulment of the marriage, although such a promise was legally invalid, being against public policy (cf. Art. 88, Civ. Code). While appellant is unable to remarry under our law, this fact is a consequence of the indissoluble character of the union that appellant entered into voluntarily and with open eyes rather than of her divorce and her second marriage. All told, we are of the opinion that appellant should recover P25,000 only by way of moral damages and attorney's fees.

With regard to the P45,000 damages awarded to the defendants, Dr. Mamerto Escao and Mena Escao, by the court below, we opine that the same are excessive. While the filing of this unfounded suit must have wounded said defendants' feelings and caused them anxiety, the same could in no way have seriously injured their reputation, or otherwise prejudiced them, lawsuits having become a common occurrence in present society. What is important, and has been correctly established in the decision of the court below, is that said defendants were not guilty of any improper conduct in the whole deplorable affair. This Court, therefore, reduces the damages awarded to P5,000 only. Summing up, the Court rules: (1) That a foreign divorce between Filipino citizens, sought and decreed after the effectivity of the present Civil Code (Rep. Act 386), is not entitled to recognition as valid in this jurisdiction; and neither is the marriage contracted with another party by the divorced consort, subsequently to the foreign decree of divorce, entitled to validity in the country; (2) That the remarriage of divorced wife and her co-habitation with a person other than the lawful husband entitle the latter to a decree of legal separation conformably to Philippine law; (3) That the desertion and securing of an invalid divorce decree by one consort entitles the other to recover damages; (4) That an action for alienation of affections against the parents of one consort does not lie in the absence of proof of malice or unworthy motives on their part. WHEREFORE, the decision under appeal is hereby modified as follows; (1) Adjudging plaintiff-appellant Pastor Tenchavez entitled to a decree of legal separation from defendant Vicenta F. Escao; (2) Sentencing defendant-appellee Vicenta Escao to pay plaintiff-appellant Tenchavez the amount of P25,000 for damages and attorneys' fees; (3) Sentencing appellant Pastor Tenchavez to pay the appellee, Mamerto Escao and the estate of his wife, the deceased Mena Escao, P5,000 by way of damages and attorneys' fees. Neither party to recover costs. Bengzon, C.J., Bautista Angelo, Concepcion, Dizon, Regala, Makalintal, Bengzon, J.P. and Zaldivar, JJ., concur.

Footnotes
1

The latter was substituted by her heirs when she died during the pendency of the case in the trial court.

The original complaint included the Roman Catholic Church as a defendant, sought to be enjoined from acting on a petition for the ecclesiastical annulment of the marriage between Pastor Tenchavez and Vicenta Escao; the case against the defendant Church was dismissed on a joint motion.
3

In the present Civil Code the contrary rule obtains (Art. 53). She was naturalized as an American citizen only on 8 August 1958. 7 Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 174689

October 22, 2007

ROMMEL JACINTO DANTES SILVERIO, petitioner, vs. REPUBLIC OF THE PHILIPPINES, respondent. DECISION CORONA, J.: When God created man, He made him in the likeness of God; He created them male and female. (Genesis 5:1-2) Amihan gazed upon the bamboo reed planted by Bathala and she heard voices coming from inside the bamboo. "Oh North Wind! North Wind! Please let us out!," the voices said. She pecked the reed once, then twice. All of a sudden, the bamboo cracked and slit open. Out came two human beings; one was a male and the other was a female. Amihan named the man "Malakas" (Strong) and the woman "Maganda" (Beautiful). (The Legend of Malakas and Maganda) When is a man a man and when is a woman a woman? In particular, does the law recognize the changes made by a physician using scalpel, drugs and counseling with regard to a persons sex? May a person successfully petition for a change of name and sex appearing in the birth certificate to reflect the result of a sex reassignment surgery? On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a petition for the change of his first name and sex in his birth certificate in the Regional Trial Court of Manila, Branch 8. The petition, docketed as SP Case No. 02-105207, impleaded the civil registrar of Manila as respondent.

Petitioner alleged in his petition that he was born in the City of Manila to the spouses Melecio Petines Silverio and Anita Aquino Dantes on April 4, 1962. His name was registered as "Rommel Jacinto Dantes Silverio" in his certificate of live birth (birth certificate). His sex was registered as "male." He further alleged that he is a male transsexual, that is, "anatomically male but feels, thinks and acts as a female" and that he had always identified himself with girls since childhood.1 Feeling trapped in a mans body, he consulted several doctors in the United States. He underwent psychological examination, hormone treatment and breast augmentation. His attempts to transform himself to a "woman" culminated on January 27, 2001 when he underwent sex reassignment surgery2 in Bangkok, Thailand. He was thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a plastic and reconstruction surgeon in the Philippines, who issued a medical certificate attesting that he (petitioner) had in fact undergone the procedure. From then on, petitioner lived as a female and was in fact engaged to be married. He then sought to have his name in his birth certificate changed from "Rommel Jacinto" to "Mely," and his sex from "male" to "female." An order setting the case for initial hearing was published in the Peoples Journal Tonight, a newspaper of general circulation in Metro Manila, for three consecutive weeks.3 Copies of the order were sent to the Office of the Solicitor General (OSG) and the civil registrar of Manila. On the scheduled initial hearing, jurisdictional requirements were established. No opposition to the petition was made. During trial, petitioner testified for himself. He also presented Dr. Reysio-Cruz, Jr. and his American fianc, Richard P. Edel, as witnesses. On June 4, 2003, the trial court rendered a decision4 in favor of petitioner. Its relevant portions read: Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for any unlawful motive but solely for the purpose of making his birth records compatible with his present sex. The sole issue here is whether or not petitioner is entitled to the relief asked for. The [c]ourt rules in the affirmative. Firstly, the [c]ourt is of the opinion that granting the petition would be more in consonance with the principles of justice and equity. With his sexual [re-assignment], petitioner, who has always felt, thought and acted like a woman, now possesses the physique of a female. Petitioners misfortune to be trapped in a mans body is not his own doing and should not be in any way taken against him. Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be caused to anybody or the community in granting the petition. On the contrary, granting the petition would bring the much-awaited happiness on the part of the petitioner and her [fianc] and the realization of their dreams.

Finally, no evidence was presented to show any cause or ground to deny the present petition despite due notice and publication thereof. Even the State, through the [OSG] has not seen fit to interpose any [o]pposition. WHEREFORE, judgment is hereby rendered GRANTING the petition and ordering the Civil Registrar of Manila to change the entries appearing in the Certificate of Birth of [p]etitioner, specifically for petitioners first name from "Rommel Jacinto" to MELY and petitioners gender from "Male" to FEMALE. 5 On August 18, 2003, the Republic of the Philippines (Republic), thru the OSG, filed a petition for certiorari in the Court of Appeals.6 It alleged that there is no law allowing the change of entries in the birth certificate by reason of sex alteration. On February 23, 2006, the Court of Appeals7 rendered a decision8 in favor of the Republic. It ruled that the trial courts decision lacked legal basis. There is no law allowing the change of either name or sex in the certificate of birth on the ground of sex reassignment through surgery. Thus, the Court of Appeals granted the Republics petition, set aside the decision of the trial court and ordered the dismissal of SP Case No. 02-105207. Petitioner moved for reconsideration but it was denied.9 Hence, this petition. Petitioner essentially claims that the change of his name and sex in his birth certificate is allowed under Articles 407 to 413 of the Civil Code, Rules 103 and 108 of the Rules of Court and RA 9048.10 The petition lacks merit. A Persons First Name Cannot Be Changed On the Ground of Sex Reassignment Petitioner invoked his sex reassignment as the ground for his petition for change of name and sex. As found by the trial court: Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for any unlawful motive but solely for the purpose of making his birth records compatible with his present sex. (emphasis supplied) Petitioner believes that after having acquired the physical features of a female, he became entitled to the civil registry changes sought. We disagree. The State has an interest in the names borne by individuals and entities for purposes of identification.11 A change of name is a privilege, not a right.12 Petitions for change of name are controlled by statutes.13 In this connection, Article 376 of the Civil Code provides: ART. 376. No person can change his name or surname without judicial authority. This Civil Code provision was amended by RA 9048 (Clerical Error Law). In particular, Section 1 of RA 9048 provides:

SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname. No entry in a civil register shall be changed or corrected without a judicial order, except for clerical or typographical errors and change of first name or nickname which can be corrected or changed by the concerned city or municipal civil registrar or consul general in accordance with the provisions of this Act and its implementing rules and regulations. RA 9048 now governs the change of first name.14 It vests the power and authority to entertain petitions for change of first name to the city or municipal civil registrar or consul general concerned. Under the law, therefore, jurisdiction over applications for change of first name is now primarily lodged with the aforementioned administrative officers. The intent and effect of the law is to exclude the change of first name from the coverage of Rules 103 (Change of Name) and 108 (Cancellation or Correction of Entries in the Civil Registry) of the Rules of Court, until and unless an administrative petition for change of name is first filed and subsequently denied.15 It likewise lays down the corresponding venue,16 form17 and procedure. In sum, the remedy and the proceedings regulating change of first name are primarily administrative in nature, not judicial. RA 9048 likewise provides the grounds for which change of first name may be allowed: SECTION 4. Grounds for Change of First Name or Nickname. The petition for change of first name or nickname may be allowed in any of the following cases: (1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce; (2) The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that first name or nickname in the community; or (3) The change will avoid confusion. Petitioners basis in praying for the change of his first name was his sex reassignment. He intended to make his first name compatible with the sex he thought he transformed himself into through surgery. However, a change of name does not alter ones legal capacity or civil status.18 RA 9048 does not sanction a change of first name on the ground of sex reassignment. Rather than avoiding confusion, changing petitioners first name for his declared purpose may only create grave complications in the civil registry and the public interest. Before a person can legally change his given name, he must present proper or reasonable cause or any compelling reason justifying such change.19 In addition, he must show that he will be prejudiced by the use of his true and official name.20 In this case, he failed to show, or even allege, any prejudice that he might suffer as a result of using his true and official name. In sum, the petition in the trial court in so far as it prayed for the change of petitioners first name was not within that courts primary jurisdiction as the petition should have been filed with the local civil registrar concerned, assuming it could be legally done. It was an improper remedy because the proper remedy was administrative, that is, that provided under RA 9048. It was also filed in the wrong venue as the proper venue was in the Office of the Civil Registrar of Manila where his birth certificate is kept. More importantly, it had no merit since the use of his true and official name does not prejudice him at all. For all these reasons, the Court of Appeals correctly dismissed petitioners petition in so far as the

change of his first name was concerned. No Law Allows The Change of Entry In The Birth Certificate As To Sex On the Ground of Sex Reassignment The determination of a persons sex appearing in his birth certificate is a legal issue and the court must look to the statutes.21 In this connection, Article 412 of the Civil Code provides: ART. 412. No entry in the civil register shall be changed or corrected without a judicial order. Together with Article 376 of the Civil Code, this provision was amended by RA 9048 in so far as clerical or typographical errors are involved. The correction or change of such matters can now be made through administrative proceedings and without the need for a judicial order. In effect, RA 9048 removed from the ambit of Rule 108 of the Rules of Court the correction of such errors.22 Rule 108 now applies only to substantial changes and corrections in entries in the civil register.23 Section 2(c) of RA 9048 defines what a "clerical or typographical error" is: SECTION 2. Definition of Terms. As used in this Act, the following terms shall mean: xxx xxx xxx

(3) "Clerical or typographical error" refers to a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled place of birth or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records: Provided, however, That no correction must involve the change of nationality, age, status or sex of the petitioner. (emphasis supplied) Under RA 9048, a correction in the civil registry involving the change of sex is not a mere clerical or typographical error. It is a substantial change for which the applicable procedure is Rule 108 of the Rules of Court. The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of Court are those provided in Articles 407 and 408 of the Civil Code:24 ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register. ART. 408. The following shall be entered in the civil register: (1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of name.

The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those that occur after birth.25 However, no reasonable interpretation of the provision can justify the conclusion that it covers the correction on the ground of sex reassignment. To correct simply means "to make or set aright; to remove the faults or error from" while to change means "to replace something with something else of the same kind or with something that serves as a substitute."26 The birth certificate of petitioner contained no error. All entries therein, including those corresponding to his first name and sex, were all correct. No correction is necessary. Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts (such as legitimations, acknowledgments of illegitimate children and naturalization), events (such as births, marriages, naturalization and deaths) and judicial decrees (such as legal separations, annulments of marriage, declarations of nullity of marriages, adoptions, naturalization, loss or recovery of citizenship, civil interdiction, judicial determination of filiation and changes of name). These acts, events and judicial decrees produce legal consequences that touch upon the legal capacity, status and nationality of a person. Their effects are expressly sanctioned by the laws. In contrast, sex reassignment is not among those acts or events mentioned in Article 407. Neither is it recognized nor even mentioned by any law, expressly or impliedly. "Status" refers to the circumstances affecting the legal situation (that is, the sum total of capacities and incapacities) of a person in view of his age, nationality and his family membership.27 The status of a person in law includes all his personal qualities and relations, more or less permanent in nature, not ordinarily terminable at his own will, such as his being legitimate or illegitimate, or his being married or not. The comprehensive term status include such matters as the beginning and end of legal personality, capacity to have rights in general, family relations, and its various aspects, such as birth, legitimation, adoption, emancipation, marriage, divorce, and sometimes even succession.28 (emphasis supplied) A persons sex is an essential factor in marriage and family relations. It is a part of a persons legal capacity and civil status. In this connection, Article 413 of the Civil Code provides: ART. 413. All other matters pertaining to the registration of civil status shall be governed by special laws. But there is no such special law in the Philippines governing sex reassignment and its effects. This is fatal to petitioners cause. Moreover, Section 5 of Act 3753 (the Civil Register Law) provides: SEC. 5. Registration and certification of births. The declaration of the physician or midwife in attendance at the birth or, in default thereof, the declaration of either parent of the newborn child, shall be sufficient for the registration of a birth in the civil register. Such declaration shall be exempt from documentary stamp tax and shall be sent to the local civil registrar not later than thirty days after the birth, by the physician or midwife in attendance at the birth or by either parent of the newborn child.

In such declaration, the person above mentioned shall certify to the following facts: (a) date and hour of birth; (b) sex and nationality of infant; (c) names, citizenship and religion of parents or, in case the father is not known, of the mother alone; (d) civil status of parents; (e) place where the infant was born; and (f) such other data as may be required in the regulations to be issued. xxx xxx xxx (emphasis supplied)

Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the time of birth.29 Thus, the sex of a person is determined at birth, visually done by the birth attendant (the physician or midwife) by examining the genitals of the infant. Considering that there is no law legally recognizing sex reassignment, the determination of a persons sex made at the time of his or her birth, if not attended by error,30 is immutable.31 When words are not defined in a statute they are to be given their common and ordinary meaning in the absence of a contrary legislative intent. The words "sex," "male" and "female" as used in the Civil Register Law and laws concerning the civil registry (and even all other laws) should therefore be understood in their common and ordinary usage, there being no legislative intent to the contrary. In this connection, sex is defined as "the sum of peculiarities of structure and function that distinguish a male from a female"32 or "the distinction between male and female."33 Female is "the sex that produces ova or bears young"34 and male is "the sex that has organs to produce spermatozoa for fertilizing ova."35 Thus, the words "male" and "female" in everyday understanding do not include persons who have undergone sex reassignment. Furthermore, "words that are employed in a statute which had at the time a well-known meaning are presumed to have been used in that sense unless the context compels to the contrary."36 Since the statutory language of the Civil Register Law was enacted in the early 1900s and remains unchanged, it cannot be argued that the term "sex" as used then is something alterable through surgery or something that allows a post-operative male-to-female transsexual to be included in the category "female." For these reasons, while petitioner may have succeeded in altering his body and appearance through the intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry for that reason. Thus, there is no legal basis for his petition for the correction or change of the entries in his birth certificate. Neither May Entries in the Birth Certificate As to First Name or Sex Be Changed on the Ground of Equity The trial court opined that its grant of the petition was in consonance with the principles of justice and equity. It believed that allowing the petition would cause no harm, injury or prejudice to anyone. This is wrong. The changes sought by petitioner will have serious and wide-ranging legal and public policy consequences. First, even the trial court itself found that the petition was but petitioners first step towards his eventual marriage to his male fianc. However, marriage, one of the most sacred social institutions, is a special contract of permanent union between a man and a woman.37 One of its essential requisites is the legal capacity of the contracting parties who must be a male and a female.38 To grant the changes sought by petitioner will substantially reconfigure and greatly alter the laws on marriage and family relations. It will allow the union of a man with another man who has undergone sex reassignment (a male-to-female post-operative transsexual). Second, there are various laws which

apply particularly to women such as the provisions of the Labor Code on employment of women,39 certain felonies under the Revised Penal Code40 and the presumption of survivorship in case of calamities under Rule 131 of the Rules of Court,41 among others. These laws underscore the public policy in relation to women which could be substantially affected if petitioners petition were to be granted. It is true that Article 9 of the Civil Code mandates that "[n]o judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the law." However, it is not a license for courts to engage in judicial legislation. The duty of the courts is to apply or interpret the law, not to make or amend it. In our system of government, it is for the legislature, should it choose to do so, to determine what guidelines should govern the recognition of the effects of sex reassignment. The need for legislative guidelines becomes particularly important in this case where the claims asserted are statute-based. To reiterate, the statutes define who may file petitions for change of first name and for correction or change of entries in the civil registry, where they may be filed, what grounds may be invoked, what proof must be presented and what procedures shall be observed. If the legislature intends to confer on a person who has undergone sex reassignment the privilege to change his name and sex to conform with his reassigned sex, it has to enact legislation laying down the guidelines in turn governing the conferment of that privilege. It might be theoretically possible for this Court to write a protocol on when a person may be recognized as having successfully changed his sex. However, this Court has no authority to fashion a law on that matter, or on anything else. The Court cannot enact a law where no law exists. It can only apply or interpret the written word of its co-equal branch of government, Congress. Petitioner pleads that "[t]he unfortunates are also entitled to a life of happiness, contentment and [the] realization of their dreams." No argument about that. The Court recognizes that there are people whose preferences and orientation do not fit neatly into the commonly recognized parameters of social convention and that, at least for them, life is indeed an ordeal. However, the remedies petitioner seeks involve questions of public policy to be addressed solely by the legislature, not by the courts. WHEREFORE, the petition is hereby DENIED. Costs against petitioner. SO ORDERED. Puno, C.J., Chairperson, Sandoval-Gutierrez, Azcuna, Garcia, JJ., concur.

Footnotes
1

Petitioner went for his elementary and high school, as well as his Bachelor of Science in Statistics and Master of Arts, in the University of the Philippines. He took up Population

Studies Program, Master of Arts in Sociology and Doctor of Philosophy in Sociology at the University of Hawaii, in Manoa, Hawaii, U.S.A. Rollo, p. 48.
2

This consisted of "penectomy [surgical removal of penis] bilateral oschiectomy [or orchiectomy which is the surgical excision of the testes] penile skin inversion vaginoplasty [plastic surgery of the vagina] clitoral hood reconstruction and augmentation mammoplasty [surgical enhancement of the size and shape of the breasts]." Id.
3

On January 23, 2003, January 30, 2003 and February 6, 2003. Penned by Judge Felixberto T. Olalia, Jr. Rollo, pp. 51-53. Id., pp. 52-53 (citations omitted). Docketed as CA-G.R. SP No. 78824. Special Sixth Division.

Penned by Associate Justice Arcangelita M. Romilla-Lontok with Associate Justices Marina L. Buzon and Aurora Santiago-Lagman concurring. Rollo, pp. 25-33.
9

Resolution dated September 14, 2006, id., pp. 45-46.

10

An Act Authorizing the City or Municipal Civil Registrar or the Consul General to Correct a Clerical or Typographical Error in an Entry and/or Change of First Name or Nickname in the Civil Register Without Need of a Judicial Order, Amending for the Purpose Articles 376 and 412 of the Civil Code of the Philippines.
11

Wang v. Cebu City Civil Registrar, G.R. No. 159966, 30 March 2005, 454 SCRA 155. Id. K v. Health Division, Department of Human Resources, 277 Or. 371, 560 P.2d 1070 (1977).

12

13

14

Under Section 2 (6) of RA 9048, "first name" refers to a name or nickname given to a person which may consist of one or more names in addition to the middle names and last names. Thus, the term "first name" will be used here to refer both to first name and nickname.
15

The last paragraph of Section 7 of RA 9048 provides: SECTION 7. Duties and Powers of the Civil Registrar General. xxx xxx xxx Where the petition is denied by the city or municipal civil registrar or the consul general, the petitioner may either appeal the decision to the civil registrar general or file the appropriate petition with the proper court.

16

SECTION 3. Who May File the Petition and Where. Any person having direct and personal interest in the correction of a clerical or typographical error in an entry and/or change of first name or nickname in the civil register may file, in person, a verified petition with the local civil registry office of the city or municipality where the record being sought to be corrected or changed is kept. In case the petitioner has already migrated to another place in the country and it would not be practical for such party, in terms of transportation expenses, time and effort to appear in person before the local civil registrar keeping the documents to be corrected or changed, the petition may be filed, in person, with the local civil registrar of the place where the interested party is presently residing or domiciled. The two (2) local civil registrars concerned will then communicate to facilitate the processing of the petition. Citizens of the Philippines who are presently residing or domiciled in foreign countries may file their petition, in person, with the nearest Philippine Consulates. The petitions filed with the city or municipal civil registrar or the consul general shall be processed in accordance with this Act and its implementing rules and regulations. All petitions for the clerical or typographical errors and/or change of first names or nicknames may be availed of only once.
17

SECTION 5. Form and Contents of the Petition. The petition shall be in the form of an affidavit, subscribed and sworn to before any person authorized by the law to administer oaths. The affidavit shall set forth facts necessary to establish the merits of the petition and shall show affirmatively that the petitioner is competent to testify to the matters stated. The petitioner shall state the particular erroneous entry or entries, which are sought to be corrected and/or the change sought to be made. The petition shall be supported with the following documents: (1) A certified true machine copy of the certificate or of the page of the registry book containing the entry or entries sought to be corrected or changed; (2) At least two (2) public or private documents showing the correct entry or entries upon which the correction or change shall be based; and (3) Other documents which the petitioner or the city or municipal civil registrar or the consul general may consider relevant and necessary for the approval of the petition. In case of change of first name or nickname, the petition shall likewise be supported with the documents mentioned in the immediately preceding paragraph. In addition, the petition shall be published at least once a week for two (2) consecutive weeks in a newspaper of general circulation. Furthermore, the petitioner shall submit a certification from the appropriate law enforcement agencies that he has no pending case or no criminal record.
18

Republic v. Court of Appeals, G.R. No. 97906, 21 May 1992, 209 SCRA 189.

19

Supra note 11. Id. In re Ladrach, 32 Ohio Misc.2d 6, 513 N.E.2d 828 (1987). Lee v. Court of Appeals, 419 Phil. 392 (2001). Id. Co v. Civil Register of Manila, G.R. No. 138496, 23 February 2004, 423 SCRA 420. Id. Id. Beduya v. Republic of the Philippines, 120 Phil. 114 (1964). Salonga, Jovito, Private International Law, 1995 Edition, Rex Bookstore, p. 238.

20

21

22

23

24

25

26

27

28

29

This, of course, should be taken in conjunction with Articles 407 and 412 of the Civil Code which authorizes the recording of acts, events and judicial decrees or the correction or change of errors including those that occur after birth. Nonetheless, in such cases, the entries in the certificates of birth are not be corrected or changed. The decision of the court granting the petition shall be annotated in the certificates of birth and shall form part of the civil register in the Office of the Local Civil Registrar. (Co v. Civil Register of Manila, supra note 24)
30

The error pertains to one where the birth attendant writes "male" or "female" but the genitals of the child are that of the opposite sex.
31

Moreover, petitioners female anatomy is all man-made. The body that he inhabits is a male body in all aspects other than what the physicians have supplied.
32

Blacks Law Dictionary, 8th edition (2004), p.1406. Words and Phrases, volume 39, Permanent Edition, p. 106.

33

34

In re Application for Marriage License for Nash, 2003-Ohio-7221 (No. 2002-T-0149, slip op., Not Reported in N.E.2d, 2003 WL 23097095 (Ohio App. 11 Dist., December 31, 2003), citing Websters II New College Dictionary (1999).
35

Id. Standard Oil Co. v. United States, 221 U.S. 1 (1911), 31 S.Ct. 502, 55 L.Ed. 619. Article 1, Family Code.

36

37

38

Article 2(1), Id.

39

These are Articles 130 to 138 of the Labor Code which include nightwork prohibition, facilities for women, prohibition on discrimination and stipulation against marriage, among others.
40

These include Article 333 on adultery, Articles 337 to 339 on qualified seduction, simple seduction and acts of lasciviousness with the consent of the offended party and Articles 342 and 343 on forcible and consented abduction, among others.
41

Section 3(jj)(4).

8 Republic of the Philippines SUPREME COURT Manila SECOND DIVISION REPUBLIC OF THE PHILIPPINES, Petitioner, - versus JENNIFER B. CAGANDAHAN, Respondent.G.R. No. 166676 Present: Quisumbing, J., Chairperson, Carpio Morales, Tinga, VELASCO, JR., and BRION, JJ. Promulgated: September 12, 2008x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION QUISUMBING, J.: This is a petition for review under Rule 45 of the Rules of Court raising purely questions of law and seeking a reversal of the Decision[1] dated January 12, 2005 of the Regional Trial Court (RTC), Branch 33 of Siniloan, Laguna, which granted the Petition for Correction of Entries in Birth Certificate filed by Jennifer B. Cagandahan and ordered the following changes of entries in Cagandahans birth certificate: (1) the name "Jennifer Cagandahan" changed to "Jeff Cagandahan" and (2) gender from "female" to "male." The facts are as follows. On December 11, 2003, respondent Jennifer Cagandahan filed a Petition for Correction of Entries in Birth Certificate2 before the RTC, Branch 33 of Siniloan, Laguna. In her petition, she alleged that she was born on January 13, 1981 and was registered as a female

in the Certificate of Live Birth but while growing up, she developed secondary male characteristics and was diagnosed to have Congenital Adrenal Hyperplasia (CAH) which is a condition where persons thus afflicted possess both male and female characteristics. She further alleged that she was diagnosed to have clitoral hyperthropy in her early years and at age six, underwent an ultrasound where it was discovered that she has small ovaries. At age thirteen, tests revealed that her ovarian structures had minimized, she has stopped growing and she has no breast or menstrual development. She then alleged that for all interests and appearances as well as in mind and emotion, she has become a male person. Thus, she prayed that her birth certificate be corrected such that her gender be changed from female to male and her first name be changed from Jennifer to Jeff. The petition was published in a newspaper of general circulation for three (3) consecutive weeks and was posted in conspicuous places by

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

The RTC granted respondents petition in a Decision dated January 12, 2005 which reads: The Court is convinced that petitioner has satisfactorily shown that he is entitled to the reliefs prayed [for]. Petitioner has adequately presented to the Court very clear and convincing proofs for the granting of his petition. It was medically proven that petitioners body produces male hormones, and first his body as well as his action and feelings are that of a male. He has chosen to be male. He is a normal person and wants to be acknowledged and identified as a male. WHEREFORE, premises considered, the Civil Register of Pakil, Laguna is hereby ordered to make the following corrections in the birth [c]ertificate of Jennifer Cagandahan upon payment of the prescribed fees: a) By changing the name from Jennifer Cagandahan to JEFF CAGANDAHAN; and b) By changing the gender from female to MALE.

It is likewise ordered that petitioners school records, voters registry, baptismal certificate, and other pertinent records are hereby amended to conform with the foregoing corrected data. SO ORDERED.[3] Thus, this petition by the Office of the Solicitor General (OSG) seeking a reversal of the abovementioned ruling. The issues raised by petitioner are: THE TRIAL COURT ERRED IN GRANTING THE PETITION CONSIDERING THAT: I. THE REQUIREMENTS OF RULES 103 AND 108 OF THE RULES OF COURT HAVE NOT BEEN COMPLIED WITH; AND, II. CORRECTION OF ENTRY UNDER RULE 108 DOES NOT ALLOW CHANGE OF "SEX" OR "GENDER" IN THE BIRTH CERTIFICATE, WHILE RESPONDENTS MEDICAL

CONDITION, i.e., CONGENITAL ADRENAL HYPERPLASIA DOES NOT MAKE HER A "MALE."4 Simply stated, the issue is whether the trial court erred in ordering the correction of entries in the birth certificate of respondent to change her sex or gender, from female to male, on the ground of her medical condition known as CAH, and her name from "Jennifer" to "Jeff," under Rules 103 and 108 of the Rules of Court. The OSG contends that the petition below is fatally defective for non-compliance with Rules 103 and 108 of the Rules of Court because while the local civil registrar is an indispensable party in a petition for cancellation or correction of entries under Section 3, Rule 108 of the Rules of Court, respondents petition before the court a quo did not implead the local civil registrar.5 The OSG further contends respondents petition is fatally defective since it failed to state that respondent is a bona fide resident of the province where the petition was filed for at least three (3) years prior to the date of such filing as

mandated under Section 2(b), Rule 103 of the Rules of Court.6 The OSG argues that Rule 108 does not allow change of sex or gender in the birth certificate and respondents claimed medical condition known as CAH does not make her a male.7 On the other hand, respondent counters that although the Local Civil Registrar of Pakil, Laguna was not formally named a party in the Petition for Correction of Birth Certificate, nonetheless the Local Civil Registrar was furnished a copy of the Petition, the Order to publish on December 16, 2003 and all pleadings, orders or processes in the course of the proceedings,8 respondent is actually a male person and hence his birth certificate has to be corrected to reflect his true sex/gender,9 change of sex or gender is allowed under Rule 108,10 and respondent substantially complied with the requirements of Rules 103 and 108 of the Rules of Court.11 Rules 103 and 108 of the Rules of Court provide:

Rule 103 CHANGE OF NAME Section 1. Venue. A person desiring to change his name shall present the petition to the Regional Trial Court of the province in which he resides, [or, in the City of Manila, to the Juvenile and Domestic Relations Court]. Sec. 2. Contents of petition. A petition for change of name shall be signed and verified by the person desiring his name changed, or some other person on his behalf, and shall set forth: (a) That the petitioner has been a bona fide resident of the province where the petition is filed for at least three (3) years prior to the date of such filing; (b) The cause for which the change of the petitioner's name is sought; (c) The name asked for. Sec. 3. Order for hearing. If the petition filed is sufficient in form and substance, the court, by

an order reciting the purpose of the petition, shall fix a date and place for the hearing thereof, and shall direct that a copy of the order be published before the hearing at least once a week for three (3) successive weeks in some newspaper of general circulation published in the province, as the court shall deem best. The date set for the hearing shall not be within thirty (30) days prior to an election nor within four (4) months after the last publication of the notice. Sec. 4. Hearing. Any interested person may appear at the hearing and oppose the petition. The Solicitor General or the proper provincial or city fiscal shall appear on behalf of the Government of the Republic. Sec. 5. Judgment. Upon satisfactory proof in open court on the date fixed in the order that such order has been published as directed and that the allegations of the petition are true, the court shall, if proper and reasonable cause appears for changing the name of the petitioner, adjudge that such name be changed in accordance with the prayer of the petition.

Sec. 6. Service of judgment. Judgments or orders rendered in connection with this rule shall be furnished the civil registrar of the municipality or city where the court issuing the same is situated, who shall forthwith enter the same in the civil register. Rule 108 CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY Section 1. Who may file petition. Any person interested in any act, event, order or decree concerning the civil status of persons which has been recorded in the civil register, may file a verified petition for the cancellation or correction of any entry relating thereto, with the Regional Trial Court of the province where the corresponding civil registry is located. Sec. 2. Entries subject to cancellation or correction. Upon good and valid grounds, the following entries in the civil register may be

cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d) legal separations; (e) judgments of annulments of marriage; (f) judgments declaring marriages void from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of natural children; (j) naturalization; (k) election, loss or recovery of citizenship; (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary emancipation of a minor; and (o) changes of name. Sec. 3. Parties. When cancellation or correction of an entry in the civil register is sought, the civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding. Sec. 4. Notice and publication. Upon the filing of the petition, the court shall, by an order, fix the time and place for the hearing of the same, and cause reasonable notice thereof to be given to the persons named in the petition. The court shall also cause the order to be published once a

week for three (3) consecutive weeks in a newspaper of general circulation in the province. Sec. 5. Opposition. The civil registrar and any person having or claiming any interest under the entry whose cancellation or correction is sought may, within fifteen (15) days from notice of the petition, or from the last date of publication of such notice, file his opposition thereto. Sec. 6. Expediting proceedings. The court in which the proceedings is brought may make orders expediting the proceedings, and may also grant preliminary injunction for the preservation of the rights of the parties pending such proceedings. Sec. 7. Order. After hearing, the court may either dismiss the petition or issue an order granting the cancellation or correction prayed for. In either case, a certified copy of the judgment shall be served upon the civil registrar concerned who shall annotate the same in his record.

The OSG argues that the petition below is fatally defective for non-compliance with Rules 103 and 108 of the Rules of Court because respondents petition did not implead the local civil registrar. Section 3, Rule 108 provides that the civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties to the proceedings. Likewise, the local civil registrar is required to be made a party in a proceeding for the correction of name in the civil registry. He is an indispensable party without whom no final determination of the case can be had.[12] Unless all possible indispensable parties were duly notified of the proceedings, the same shall be considered as falling much too short of the requirements of the rules.13 The corresponding petition should also implead as respondents the civil registrar and all other persons who may have or may claim to have any interest that would be affected thereby.14 Respondent, however, invokes Section 6,[15] Rule 1 of the Rules of Court which states that courts shall construe the Rules liberally to promote their

objectives of securing to the parties a just, speedy and inexpensive disposition of the matters brought before it. We agree that there is substantial compliance with Rule 108 when respondent furnished a copy of the petition to the local civil registrar. The determination of a persons sex appearing in his birth certificate is a legal issue and the court must look to the statutes. In this connection, Article 412 of the Civil Code provides: ART. 412. No entry in a civil register shall be changed or corrected without a judicial order. Together with Article 376[16] of the Civil Code, this provision was amended by Republic Act No. 9048[17] in so far as clerical or typographical errors are involved. The correction or change of such matters can now be made through administrative proceedings and without the need for a judicial order. In effect, Rep. Act No. 9048 removed from the ambit of Rule 108 of the Rules of Court the correction of such errors.

Rule 108 now applies only to substantial changes and corrections in entries in the civil register.18 Under Rep. Act No. 9048, a correction in the civil registry involving the change of sex is not a mere clerical or typographical error. It is a substantial change for which the applicable procedure is Rule 108 of the Rules of Court.19 The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of Court are those provided in Articles 407 and 408 of the Civil Code: ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register. ART. 408. The following shall be entered in the civil register: (1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of natural children; (10)

naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of name. The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those that occur after birth.20 Respondent undisputedly has CAH. This condition causes the early or "inappropriate" appearance of male characteristics. A person, like respondent, with this condition produces too much androgen, a male hormone. A newborn who has XX chromosomes coupled with CAH usually has a (1) swollen clitoris with the urethral opening at the base, an ambiguous genitalia often appearing more male than female; (2) normal internal structures of the female reproductive tract such as the ovaries, uterus and fallopian tubes; as the child grows older, some features start to appear male, such as deepening of the voice, facial hair, and failure to menstruate at puberty. About 1 in 10,000 to

18,000 children are born with CAH. CAH is one of many conditions[21] that involve intersex anatomy. During the twentieth century, medicine adopted the term "intersexuality" to apply to human beings who cannot be classified as either male or female.[22] The term is now of widespread use. According to Wikipedia, intersexuality "is the state of a living thing of a gonochoristic species whose sex chromosomes, genitalia, and/or secondary sex characteristics are determined to be neither exclusively male nor female. An organism with intersex may have biological characteristics of both male and female sexes." Intersex individuals are treated in different ways by different cultures. In most societies, intersex individuals have been expected to conform to either a male or female gender role. [23] Since the rise of modern medical science in Western societies, some intersex people with ambiguous external genitalia have had their genitalia surgically modified to resemble either male or female genitals.[24] More commonly, an

intersex individual is considered as suffering from a "disorder" which is almost always recommended to be treated, whether by surgery and/or by taking lifetime medication in order to mold the individual as neatly as possible into the category of either male or female. In deciding this case, we consider the compassionate calls for recognition of the various degrees of intersex as variations which should not be subject to outright denial. "It has been suggested that there is some middle ground between the sexes, a no-mans land for those individuals who are neither truly male nor truly female."[25] The current state of Philippine statutes apparently compels that a person be classified either as a male or as a female, but this Court is not controlled by mere appearances when nature itself fundamentally negates such rigid classification. In the instant case, if we determine respondent to be a female, then there is no basis for a change in the birth certificate entry for gender. But if we determine, based on medical testimony

and scientific development showing the respondent to be other than female, then a change in the subjects birth certificate entry is in order. Biologically, nature endowed respondent with a mixed (neither consistently and categorically female nor consistently and categorically male) composition. Respondent has female (XX) chromosomes. However, respondents body system naturally produces high levels of male hormones (androgen). As a result, respondent has ambiguous genitalia and the phenotypic features of a male. Ultimately, we are of the view that where the person is biologically or naturally intersex the determining factor in his gender classification would be what the individual, like respondent, having reached the age of majority, with good reason thinks of his/her sex. Respondent here thinks of himself as a male and considering that his body produces high levels of male hormones (androgen) there is preponderant biological

support for considering him as being male. Sexual development in cases of intersex persons makes the gender classification at birth inconclusive. It is at maturity that the gender of such persons, like respondent, is fixed. Respondent here has simply let nature take its course and has not taken unnatural steps to arrest or interfere with what he was born with. And accordingly, he has already ordered his life to that of a male. Respondent could have undergone treatment and taken steps, like taking lifelong medication,[26] to force his body into the categorical mold of a female but he did not. He chose not to do so. Nature has instead taken its due course in respondents development to reveal more fully his male characteristics. In the absence of a law on the matter, the Court will not dictate on respondent concerning a matter so innately private as ones sexuality and lifestyle preferences, much less on whether or not to undergo medical treatment to reverse the male tendency due to CAH. The Court will not

consider respondent as having erred in not choosing to undergo treatment in order to become or remain as a female. Neither will the Court force respondent to undergo treatment and to take medication in order to fit the mold of a female, as society commonly currently knows this gender of the human species. Respondent is the one who has to live with his intersex anatomy. To him belongs the human right to the pursuit of happiness and of health. Thus, to him should belong the primordial choice of what courses of action to take along the path of his sexual development and maturation. In the absence of evidence that respondent is an "incompetent"[27] and in the absence of evidence to show that classifying respondent as a male will harm other members of society who are equally entitled to protection under the law, the Court affirms as valid and justified the respondents position and his personal judgment of being a male. In so ruling we do no more than give respect to (1) the diversity of nature; and (2) how an

individual deals with what nature has handed out. In other words, we respect respondents congenital condition and his mature decision to be a male. Life is already difficult for the ordinary person. We cannot but respect how respondent deals with his unordinary state and thus help make his life easier, considering the unique circumstances in this case. As for respondents change of name under Rule 103, this Court has held that a change of name is not a matter of right but of judicial discretion, to be exercised in the light of the reasons adduced and the consequences that will follow.[28] The trial courts grant of respondents change of name from Jennifer to Jeff implies a change of a feminine name to a masculine name. Considering the consequence that respondents change of name merely recognizes his preferred gender, we find merit in respondents change of name. Such a change will conform with the change of the entry in his birth certificate from female to male.

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

WE CONCUR:

CONCHITA CARPIO MORALES Associate JusticeDANTE O. TINGA Associate JusticePRESBITERO J. VELASCO, JR. Associate JusticeARTURO D. BRION Associate Justice

ATT E STATI O N

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.
LEONARDO A. QUISUMBING Associate Justice Chairperson

C E R T I FI CAT I O N

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.
REYNATO S. PUNO Chief Justice

Rollo, pp. 29-32. Penned by Judge Florenio P. Bueser.

2 3

Id. at 33-37. Id. at 31-32.

4 5 6 7 8 9

Id. at 97. Id. at 99. Id. at 103. Id. at 104. Id. at 136. Id. at 127.

10 11 12

Id. at 134. Id. at 136.

Republic v. Court of Appeals, G.R. No. 103695, March 15, 1996, 255 SCRA 99, 106. Ceruila v. Delantar, G.R. No. 140305, December 9, 2005, 477 SCRA 134, 147.
14 13

Republic v. Benemerito, G.R. No. 146963, March 15, 2004, 425 SCRA 488, 492.

15

SEC. 6. Construction.- These Rules shall be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding. Art. 376. No person can change his name or surname without judicial authority.

16

An Act Authorizing the City or Municipal Civil Registrar or the Consul General to Correct a Clerical or Typographical Error in an Entry and/or Change of First Name or Nickname in the Civil Registrar Without Need of a Judicial

17

Order, Amending for this Purpose Articles 376 and 412 of the Civil Code of the Philippines. Approved, March 22, 2001. Silverio v. Republic of the Philippines, G.R. No. 174689, October 19, 2007, 537 SCRA 373, 388.
19 20 21 18

Id. at 389. Id. at 389.

(1) 5-alpha reductase deficiency; (2) androgen insensitivity syndrome; (3) aphallia; (4) clitoromegaly; (5) congenital adrenal hyperplasia; (6) gonadal dysgenesis (partial & complete); (7) hypospadias; (8) Kallmann syndrome; (9) Klinefelter syndrome; (10) micropenis; (11) mosaicism involving sex chromosomes; (12) MRKH (mullerian agenesis; vaginal agenesis; congenital absence of vagina); (13) ovo-testes (formerly called "true hermaphroditism"); (14) partial androgen insensitivity syndrome; (15) progestin induced virilization; (16) Swyer syndrome; (17) Turner syndrome. [Intersexuality

<http://en.wikipedia.org/wiki/Intersexual> (visited August 15, 2008).] Intersexuality <http://en.wikipedia.org/wiki/Intersexual> (visited August 15, 2008). Intersexuality <http://en.wikipedia.org/wiki/Intersexual> (visited August 15, 2008), citing Gagnon and Simon 1973. Intersexuality <http://en.wikipedia.org/wiki/Intersexual> (visited August 15, 2008).
25 24 23 22

M.T. v. J.T. 140 N.J. Super 77 355 A. 2d 204.

The goal of treatment is to return hormone levels to normal. This is done by taking a form of cortisol (dexamethasone), fludrocortisone, or hydrocortisone) every day. Additional doses of medicine are needed during times of stress, such as severe illness or surgery. xxxx

26

Parents of children with congenital adrenal hyperplasia should be aware of the side effects of steroid therapy. They should report signs of infection and stress to their health care provider because increases in medication may be required. In additional, steroid medications cannot be stopped suddenly, or adrenal insufficiency will result. xxxx The outcome is usually associated with good health, but short stature may result even with treatment. Males have normal fertility. Females may have a smaller opening of the vagina and lower fertility. Medication to treat this disorder must be continued for life. (Congenital Adrenal Hyperplasia <http://www.nlm.nih.gov/medlineplus/encyclope dia.html>.) The word "incompetent" includes persons suffering the penalty of civil interdiction or who are hospitalized lepers, prodigals, deaf and dumb who are unable to read and write, those
27

who are of unsound mind, even though they have lucid intervals, and persons not being of unsound mind, but by reason of age, disease, weak mind, and other similar causes, cannot, without outside aid, take care of themselves and manage their property, becoming thereby an easy prey for deceit and exploitation. (See Sec. 2 of Rule 92 of the Rules of Court)
28

Yu v. Republic of the Philippines, 123 Phil. 1106, 1110 (1966).

9 Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 46529

January 23, 1940

THE ASIATIC PETROLEUM (P.I.), LTD., plaintiff-appellant, vs. CO QUICO, defendant-appellee. Ross, Lawrence, Selph & Carrascoso for the appellant. Leon T. Zavalla for the appellee. LAUREL, J.: On October 13, 1927, the defendant-appellee entered into a contract of agency with the appellant corporation (Exhibit A-1) by virtue of which the former became sales agent on commission of the latter. It was stipulated that the defendant appellee was to sell the gasoline, kerosene and other petroleum products of the plaintiff corporation in cash and subject to other conditions, among which was that the defendant-appellee was to render proper accounting. On the date of the filing of the complaint, May 24, 1933, the defendant-appellee was in default in the sum of P2,123.80, after deducting the cash bond filed by the appellee, without rendering account to the plaintiff-appellant, left

for China. The appellant in its complaint sought to recover two items: one for P2,123.80 and the other for P109.67, and prayed for preliminary attachment of appellee's properties. On May 26, 1933, the trial court issued a preliminary attachment upon defendant's deposit with the Mercantile Bank of China. According to the Bank Commissioner, in his capacity as receiver of the Bank, defendant at the time had deposits with the Mercantile Bank of China in the amount of P3,421.61 and in Foreign Currency Savings Account the amount of Amoy S3,403.16. However, on August 21, 1933, the Bank Commissioner revised his reply, stating that the defendant had transferred said deposits to his son, Co Chio. By order of the trial court dated June 6, 1933, the defendant was ordered summoned by publication because his whereabouts was unknown. The order further provided that the clerk of court shall mail a copy of the order and of the complaint to the defendant at his last known address, Tarlac, Tarlac. Defendant defaulted and the court, on November 17, 1933, rendered its decision, sentencing the defendant to pay to the plaintiffs the total amount prayed for in the complaint. A writ of execution was issued by the court and levy was made on the deposits of the defendant-appellee with the Mercantile Bank of China. In view, however, of the transfer made by the appellee to his son, Co Chio, his deposits with the said Bank, the execution was returned unsatisfied and an alias writ of execution was issued by the court addressed to the Provincial Sheriff of Tarlac, where appellee was supposed to have some property. But according to the return of the provincial sheriff, the defendant had no property subject to execution. The appellant applied to the court for another alias writ of execution which was issued and levied on said deposits. The Mercantile Bank of China replied that they had made a notation of said levy and payments would be made in due course, making reference to their letters to the appellant respectively dated, May 27 and August 21, 1933. Co Chio, the transferee of said deposit made written statement (Exhibit H) which stated, among other things, that his father, Co Quico, the appellee herein was the real owner of said deposits. On August 20, 1938, special appearance was entered by counsel for the appellee solely for the purpose of having all proceedings had in this case declared null and void. On the same date, his counsel filed a motion to that effect, alleging as grounds therefor, first, that the court had not acquired jurisdiction over the person of the defendant; and, second, that the defendant had been deprived of his property without due process of law. After memoranda had been presented by both parties, the lower court issued the order now appealed from, the dispositive part of which reads: In view of the foregoing considerations, the court hereby sets aside and declares null and void all proceedings heretofore had in this case, except the filing of the complaint. This case is therefore reopened, and the defendant shall at once be summoned in accordance with law. The trial court in the foregoing order avoided its order of November 17, 1933 and set aside all the proceedings theretofore had, on the ground that the action was strictly one in personam against a nonresident who was summoned by publication and did not appear. The question presented is one of jurisdiction with reference to the proceedings that resulted in the issuance of the lower court's judgment of November 17, 1933. It should be observed that the complaint filed in this case sought for a writ of attachment on the sworn allegation that the defendant had disposed of part of his property and was disposing of the rest with intent to defraud his creditors; that in view thereof, the lower court, on May 26, 1933, issued the corresponding writ of attachment which was duly served on the Mercantile Bank of China then in the process of liquidation, which Bank acknowledged that the defendant had a deposit in current account in

the amount of P3,421.61 and in foreign currency savings account the amount of S3,403.16 in Amoy currency; and that the Bank subsequently noted the garnishment of the defendant's deposit covered by receiver's certificate of proof of claim No. 207 in the amounts thus indicated. It is evident, then, that the defendant-appellee in this case although he was outside of the Philippines at the time this action was instituted against him, possessed property found and located here and that such property was within the reach of our courts. It is well to emphasize in this connection the general proposition that all property within a State is subject to the jurisdiction of its courts, and they have the right to adjudicate title thereto, to enforce liens thereupon, and to subject it to the payment of the debts of its owners, whether resident or not. The sovereign power may lay hands on any and all persons and property within its borders, and where, as in our case, the functions of government are departmentalized, what is within the reach of executive and legislative action, must also be within the reach of the judiciary. The modern tendency in this regard is to make no distinction between mobility and immobility of property established by the time-honored principles of lex rei sitae and mobilia personam sequuntur. We find it neither necessary nor fruitful to indulge in any characterization as to whether the present proceedings should be described as those in rem or quasi in rem. Such characterization is of no legal significance in this connection. The situs of the res is clear no less than the garnishment of the res at the commencement of the action, and reasonable notice and opportunity to be heard presumptively had by virtue of the publication of the summons in accordance with the provisions of section 398 of the Code of Civil Procedure. The order of September 12, 1938, of the Court of First Instance of Manila is accordingly reversed, with costs against the plaintiff-appellee, Co Quico. So ordered. Avancea, C. J., Villa-Real, Imperial and Diaz, JJ., concur. 10 Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-23678 June 6, 1967

TESTATE ESTATE OF AMOS G. BELLIS, deceased. PEOPLE'S BANK and TRUST COMPANY, executor. MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS, oppositors-appellants, vs. EDWARD A. BELLIS, ET AL., heirs-appellees. Vicente R. Macasaet and Jose D. Villena for oppositors appellants. Paredes, Poblador, Cruz and Nazareno for heirs-appellees E. A. Bellis, et al. Quijano and Arroyo for heirs-appellees W. S. Bellis, et al. J. R. Balonkita for appellee People's Bank & Trust Company. Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman. BENGZON, J.P., J.:

This is a direct appeal to Us, upon a question purely of law, from an order of the Court of First Instance of Manila dated April 30, 1964, approving the project of partition filed by the executor in Civil Case No. 37089 therein.1wph1.t The facts of the case are as follows: Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United States." By his first wife, Mary E. Mallen, whom he divorced, he had five legitimate children: Edward A. Bellis, George Bellis (who pre-deceased him in infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman; by his second wife, Violet Kennedy, who survived him, he had three legitimate children: Edwin G. Bellis, Walter S. Bellis and Dorothy Bellis; and finally, he had three illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis. On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after all taxes, obligations, and expenses of administration are paid for, his distributable estate should be divided, in trust, in the following order and manner: (a) $240,000.00 to his first wife, Mary E. Mallen; (b) P120,000.00 to his three illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam Palma Bellis, or P40,000.00 each and (c) after the foregoing two items have been satisfied, the remainder shall go to his seven surviving children by his first and second wives, namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal shares.1wph1.t Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of San Antonio, Texas, U.S.A. His will was admitted to probate in the Court of First Instance of Manila on September 15, 1958. The People's Bank and Trust Company, as executor of the will, paid all the bequests therein including the amount of $240,000.00 in the form of shares of stock to Mary E. Mallen and to the three (3) illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis, various amounts totalling P40,000.00 each in satisfaction of their respective legacies, or a total of P120,000.00, which it released from time to time according as the lower court approved and allowed the various motions or petitions filed by the latter three requesting partial advances on account of their respective legacies. On January 8, 1964, preparatory to closing its administration, the executor submitted and filed its "Executor's Final Account, Report of Administration and Project of Partition" wherein it reported, inter alia, the satisfaction of the legacy of Mary E. Mallen by the delivery to her of shares of stock amounting to $240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis in the amount of P40,000.00 each or a total of P120,000.00. In the project of partition, the executor pursuant to the "Twelfth" clause of the testator's Last Will and Testament divided the residuary estate into seven equal portions for the benefit of the testator's seven legitimate children by his first and second marriages. On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective oppositions to the project of partition on the ground that they were deprived of their legitimes as illegitimate children and, therefore, compulsory heirs of the deceased. Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is evidenced by the registry receipt submitted on April 27, 1964 by the executor.1

After the parties filed their respective memoranda and other pertinent pleadings, the lower court, on April 30, 1964, issued an order overruling the oppositions and approving the executor's final account, report and administration and project of partition. Relying upon Art. 16 of the Civil Code, it applied the national law of the decedent, which in this case is Texas law, which did not provide for legitimes. Their respective motions for reconsideration having been denied by the lower court on June 11, 1964, oppositors-appellants appealed to this Court to raise the issue of which law must apply Texas law or Philippine law. In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi, applied by this Court in Aznar v. Christensen Garcia, L-16749, January 31, 1963. Said doctrine is usually pertinent where the decedent is a national of one country, and a domicile of another. In the present case, it is not disputed that the decedent was both a national of Texas and a domicile thereof at the time of his death.2 So that even assuming Texas has a conflict of law rule providing that the domiciliary system (law of the domicile) should govern, the same would not result in a reference back (renvoi) to Philippine law, but would still refer to Texas law. Nonetheless, if Texas has a conflicts rule adopting the situs theory (lex rei sitae) calling for the application of the law of the place where the properties are situated, renvoi would arise, since the properties here involved are found in the Philippines. In the absence, however, of proof as to the conflict of law rule of Texas, it should not be presumed different from ours.3 Appellants' position is therefore not rested on the doctrine of renvoi. As stated, they never invoked nor even mentioned it in their arguments. Rather, they argue that their case falls under the circumstances mentioned in the third paragraph of Article 17 in relation to Article 16 of the Civil Code. Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent, in intestate or testamentary successions, with regard to four items: (a) the order of succession; (b) the amount of successional rights; (e) the intrinsic validity of the provisions of the will; and (d) the capacity to succeed. They provide that ART. 16. Real property as well as personal property is subject to the law of the country where it is situated. However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may he the nature of the property and regardless of the country wherein said property may be found. ART. 1039. Capacity to succeed is governed by the law of the nation of the decedent. Appellants would however counter that Art. 17, paragraph three, of the Civil Code, stating that Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. prevails as the exception to Art. 16, par. 2 of the Civil Code afore-quoted. This is not correct. Precisely, Congress deleted the phrase, "notwithstanding the provisions of this and the next preceding article" when they incorporated Art. 11 of the old Civil Code as Art. 17 of the new Civil Code, while

reproducing without substantial change the second paragraph of Art. 10 of the old Civil Code as Art. 16 in the new. It must have been their purpose to make the second paragraph of Art. 16 a specific provision in itself which must be applied in testate and intestate succession. As further indication of this legislative intent, Congress added a new provision, under Art. 1039, which decrees that capacity to succeed is to be governed by the national law of the decedent. It is therefore evident that whatever public policy or good customs may be involved in our System of legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For it has specifically chosen to leave, inter alia, the amount of successional rights, to the decedent's national law. Specific provisions must prevail over general ones. Appellants would also point out that the decedent executed two wills one to govern his Texas estate and the other his Philippine estate arguing from this that he intended Philippine law to govern his Philippine estate. Assuming that such was the decedent's intention in executing a separate Philippine will, it would not alter the law, for as this Court ruled in Miciano v. Brimo, 50 Phil. 867, 870, a provision in a foreigner's will to the effect that his properties shall be distributed in accordance with Philippine law and not with his national law, is illegal and void, for his national law cannot be ignored in regard to those matters that Article 10 now Article 16 of the Civil Code states said national law should govern. The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and that under the laws of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the provision of the will and the amount of successional rights are to be determined under Texas law, the Philippine law on legitimes cannot be applied to the testacy of Amos G. Bellis. Wherefore, the order of the probate court is hereby affirmed in toto, with costs against appellants. So ordered. Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur.

Footnotes
1

He later filed a motion praying that as a legal heir he be included in this case as one of the oppositors-appellants; to file or adopt the opposition of his sisters to the project of partition; to submit his brief after paying his proportionate share in the expenses incurred in the printing of the record on appeal; or to allow him to adopt the briefs filed by his sisters but this Court resolved to deny the motion.
2

San Antonio, Texas was his legal residence. Lim vs. Collector, 36 Phil. 472; In re Testate Estate of Suntay, 95 Phil. 500.