A.M. No. RTJ-92-802 July 5, 1993 OFFICE OF THE COURT ADMINISTRATOR, complainant, vs.HON. GENARO C.

GINES, as Presiding Judge, Branch 26; MA. GORGONIA L. FLORES, Court Interpreter and Officer-in-Charge, Branch 26; ROSIE M. MUNAR, Stenographic Reporter, Branch 26, PACITA B. DIAZ, Staff Assistant IV, Office of the Clerk of Court; MA. CONCEPCION B. DIAZ, Staff Assistant I, Branch 26, and ALFREDO V. LACSAMANA, JR., Staff Assistant II, Branch 26, all of the RTC, San Fernando, La Union, respondents. This case was initiated by the Office of the Court Administrator with the filing of an administrative complaint which reads: Pursuant to the Resolution of the Court En Banc, dated July 30, 1991, the undersigned hereby institutes this administrative complaint against Judge Genaro C. Gines, Presiding Judge, Branch 26; Ma. Gorgonia L. Flores, Court Interpreter and Officer-in- Charge, Branch 26; Rosie M. Munar, Stenographic Reporter, Branch 26; Pacita B. Diaz, Staff Assistant IV, Office of the Clerk of Court; Ma. Concepcion B. Diaz, Staff Assistant I, Branch 26; and Mr. Alfredo V. Lacsamana, Jr., Staff II, Branch 26, all of the RTC, San Fernando, La Union, for Dishonesty; Violation of par. (e), Sec. 3 of R.A. 3019 (Anti-Graft and Corrupt Practices Act) as amended; and Violation of Administrative Order No. 6, dated June 30, 1975, Circular No. 7, dated September 23, 1974, and Administrative Order No. 1, dated January 28, 1988, by virtue of their collective illegal acts involving deliberate and surreptitious assignment of cases at the Docketing and Receiving Section, Office of the Clerk of Court, RTC, San Fernando, La Union. 1. This complaint is substantially anchored on the Report submitted by Atty. Aurora P. Sanglay, Clerk of Court, RTC, San Fernando, La Union, relative to her investigation of the alleged anomaly in the non-raffling of cases in the said Court, and the Affidavit-complaint of Ma. Concepcion B. Diaz dated September 19, 1991, implicating other court personnel involved in the aforestated irregularity; 2. Atty. Sanglay, in her Report, averred that: 2.1. From April 3, 1989 to April, 1991, there were forty-four (44) Special Proceedings cases, twenty-seven (27) Land Registration cases, six (6) Civil Cases, and three (3) Criminal Cases which were directly assigned to the RTC, Branch 26, San Fernando, La Union, without passing through the mandatory, raffling procedure, of cases except for three (3) special proceedings cases which were assigned to Branch 27, which anomaly had been going on since 1986; 2.2. Pacita Diaz, Ma. Concepcion Diaz and Alfredo Lacsamana, Jr. were the court employees in-charge in (sic) the receiving and docketing of the Land Registration Cases, Special Proceedings cases and Civil Cases, respectively; and 2.3. There is a probability that the aforesaid clerks, who were in-charge of receiving the cases, did not submit deliberately to the Officer-inCharge, some of the cases received from mandatory raffling in compliance with the Administrative Orders/Circulars of the Supreme Court. 3. In the Affidavit-Complaint dated September 19, 1991, of Ma. Concepcion B. Diaz, which was received by the Office of the Court Administrator on September 20,1991, she asserted, inter alia, that: 3.1. She blamed Judge Genaro C. Gines, Presiding Judge, RTC, Branch 26, San Fernando, La Union, Ma. Gorgonia Flores, Court Interpreter and Officer-In-Charge, same Court, and Rosie Munar, Stenographic Reporter, same Court, for applying pressures and intimidations to her in order that the cases of their choice may no longer be forwarded to the proper Officer-in-Charge; 3.2. Several petitions have been prepared by the (sic) Judge Gines himself in coordination with his Stenographer Rosie Munar and Court Interpreter Ma. Gorgonia Flores, some of which are as follows: 3.2.1. Special Proceeding No. 1965 where the petitioner, who alleged himself to be a resident of San Fernando, La Union, is actually a resident of Sta. Cruz, Ilocos Sur and the Aunt of Judge Gines. The required bond of P500.00 therein has not yet been posted: and 3.2.2. Special Proceeding No. 1967 where the Office of the Solicitor General and other parties were not furnished with copies of the petition upon the instruction of Judge Gines. The respondents were then required to answer the complaint. Separate motions for an extension of time to file their answers were made by the respondents, but only respondents Pacita Diaz and Ma. Concepcion Diaz filed their Answer within the extended period. The Resolution which granted the others the extension warned them that no further postponements would be granted. Notwithstanding such caveat, however, they again asked for another extension. In the Resolution of 28 May 1992, this Court ruled, inter alia, that: It appearing that said respondents have not taken this case seriously, and considering the prior warning in the Resolution of 7 May 1992, the above motions for another extension of time to file the Answers are hereby DENIED. The respondent Judge and respondents Flores, Munar and Lacsamana are deemed to have waived the filing of their Answer. As it turned out, respondents Flores, Munar and Lacsamana were able to post their joint Answers on 15 May 1992 the last day of the additional period they had prayed for in their second motion which was eventually denied in the aforementioned Resolution. Respondents then filed a motion to reconsider the Resolution of 28 May 1992; the same was denied in the Resolution of 14 July 1992. This latter resolution likewise denied the respondent Judge's motion to reconsider the 7 May 1992 Resolution wherein he prayed that his answer (actually a Comment), dated 14 May 1992, be admitted. However, this Court resolved that the said comment be attached to the record of the instant case. In the same 14 July 1992 Resolution, the instant case was referred to Mr. Justice Nathanael P. De Pano, Jr. of the Court of Appeals for investigation, report, and recommendation. On 31 March 1993, Justice De Pano, Jr. submitted his 26-page REPORT. It appears therefrom that on 2 September 1992, he issued an order (a) requiring the parties to file respective affidavits which shall serve as their direct testimonies in this case subject, however, to crossexamination by the adverse parties and (b) setting the initial hearing of the case for 28 September 1992. Respondents Pacita Diaz and Ma. Concepcion Diaz submitted their joint affidavit, dated 9 September 1992, as well as the affidavits of Fortunata Gualberto, retired branch clerk of court of Branch 27 of the Regional Trial Court (RTC) in San Fernando, La Union, and Consolacion M. Dulay, Clerk III of the same Branch 27. Respondents Gorgonia Flores, Rosie Munar and Alfredo Lacsamana likewise submitted their individual affidavits which are all dated 14 September 1992. Respondent Judge Gines, for his part, filed a manifestation dated 17 September 1992, adopting his 14 May 1992 Comment as his direct testimony as well as the aforesaid affidavits of respondents Flores, Munar and Lacsamana.

At the hearing on 28 September 1992, the parties entered into a stipulation of facts. They agreed on the status and personal circumstances of the parties as stated in the affidavits, as well as the descriptions of their respective positions in the RTC in San Fernando, La Union; the assumption into office of the respondent Judge in January of 1987; the non-membership of the respondent Judge and the other respondents in the raffle committee; and the procedure prescribed for the raffling of cases filed with the RTC in San Fernando, La Union. The respondents then marked as exhibits their affidavits and other documents. It further appears from the REPORT that no testimonial evidence was offered by the parties. While the complainant wanted to present Atty. Sanglay, the respondents admitted her report and agreed to dispense with her testimony. The complainant then marked in evidence the following documents: (1) the undated Report of Atty. Aurora Sanglay to the Executive Judge, as Exhibit "A"; (2) the 17 June 1991 Letter of Atty. Aurora Sanglay addressed to the Executive Judge, with annexes, as Exhibit "B"; (3) the Joint Affidavit of Pacita and Ma. Concepcion Diaz dated 11 September 1992, as Exhibit "C"; (4) the Compliance of respondents Flores, Munar and Lacsamana, Jr., as Exhibit "D"; (5) the Affidavit of respondent Flores dated 14 September 1992, as Exhibit "E"; (6) the Affidavit of Romeo Hermosura dated 14 September 1992, as Exhibit "F"; (7) the Affidavit of Teodorico Basilio dated 14 September 1992, as Exhibit "G"; (8) the Affidavit of respondent Munar, dated 14 September 1992, as Exhibit "H"; (9) the Affidavit of respondent Lacsamana, Jr. dated 14 September 1992, as Exhibit "I"; and (10) the Manifestation of respondent Judge Gines dated 17 September 1992, as Exhibit "J". It appears that counsel for the complainant expressed a desire to cross-examine respondents Flores, Munar and Lacsamana but that the latter's counsel objected on the ground of possible selfincrimination. These three respondents further manifested that they were not presenting any evidence against the other respondents. Respondents Pacita Diaz and Concepcion Diaz likewise manifested, through counsel, that they will not present evidence on account of the possibility of self-incrimination. Respondent Judge Gines did not present his evidence. Justice De Pano, Jr. then made the following observations, findings and conclusions in his REPORT: Executive Judge Braulio Yaranon of the San Fernando, La Union Regional Trial Court, in a letter dated June 20, 1991, transmitted to the Court, the report dated June 17, 1991, of Attorney Aurora Sanglay, the said Court's Clerk of Court, on the subject of cases that had not been raffled by the appropriate committee on raffle but which nevertheless, found their way mostly, to Branch 26 of the said Court (presided over by respondent Genaro Gines from January 1987) and Branch 27 (the letter and its annexes were later marked Exhibit B). In 1986, the report states, 6 criminal cases, 9 civil cases, 51 special proceeding cases and 9 land registration cases, (a total of 75 cases) did not pass through the raffle committee but went directly to the branch which apparently acted on the cases without question. In 1987, 8 criminal cases, 9 civil cases, 13 special proceedings cases, 2 land registration cases (a total of 32 cases) did not pass through the raffle committee. In 1988, 9 civil cases, 18 special proceedings cases and 2 land registration cases (a total of 29 cases) went directly to the branches mentioned. A total of 136 cases from 1986 to 1988, Attorney Sanglay reports, went from filing/docketing direct to two branches without undergoing the mandated raffle by the raffle committee. The more germane report, one which demonstrates the continuing perpetuation of the above obviously illegal and nefarious system of directing cases filed with the Regional Trial Court of San Fernando, La Union to Branches 26 and 27 of that court, is the undated report of Clerk of Court Aurora P. Sanglay to Executive Judge Braulio Yaranon, and received by his office on June 6, 1991. The letter, uncontroverted, is marked Exhibit A, Court Administrator, and it reads thus: In compliance to (sic) your memorandum dated May 23, 1991, directing the undersigned to make an investigation re the matter of cases filed before my office (Office of the Clerk of Court), which did not undergo the mandatory raffle procedure, herewith are my findings: The period covered by my investigation is from April 3, 1989 to April 1991. In summary, during this period, there were FORTY-FOUR (44) Special Cases, TWENTY-SEVEN (27) Land Registration Cases, SIX (6) Civil Cases, and THREE (3) Criminal Cases which did not pass through raffle, but which were instead directed to specific RTC Branches, particularly Branch 26 and Branch 27. A great majority of these cases however were assigned to Branch 26. Attached is the list of these cases mentioned for your reference. This data obtained (sic) by counterchecking the Minutes of previous raffles covering the period of my investigation vis-a-vis the corresponding docket books. Until your memorandum dated May 24, 1991, the following persons were in-charge of receiving and docketing the following kinds of cases: Mrs. Pacita Diaz Land Registration Cases Miss Ma. Concepcion Diaz Special Proceedings Cases Mr. Alfredo Lacsamana Civil Cases Criminal Cases were docketed by Mr. Vicente Tatunay of the Prosecutor's Office and received by either Mr. Alfredo Lacsamana, Jr., the person handling all cases filed for raffle, or Mr. Oscarlito Fantastico or any of the clerks in the OCC, in his absence. Supposed to be, all these filed cases are to be turned over to Mr. Alfredo Lacsamana, Jr. for raffle, but as per my findings, some of these cases were not at all included in the mandatory raffle, but were instead directed to specific RTC Branches. The possibility is not remote that these clerks in-charge of receiving their respective cases deliberately did not submit some of their received cases for raffle. A lapse in the system and poor monitoring also provided for this thing to happen. Instances are common where a client/lawyer is allowed possession of the papers to be filed at certain critical stages of the receiving process, specifically after the docketing and payment of filing fees, and after said stages, the possibility is not likewise remote that these papers are not submitted to the person in-charge of the raffle. The undersigned had already instituted procedures, i.e. centralized receiving, payment of filing fees, docketing, and has strengthen (sic) monitoring of the cases and the number of cases filed to prevent occurrence (sic) of similar nature. (Exhibit A, Court Administrator, pp. 76-77, rec., 3rd Folder.) Clerk of Court Sanglay's report includes 44 special proceedings cases, 27 land registration cases, 6 civil cases and 3 criminal cases or a total of 80 cases that did not pass through raffle from April, 1989 to April, 1991 but found their way directly to Branches 26 and 27 of the Regional

Trial Court of San Fernando, La union. Of these 80 cases, all, except 3, found their way to Branch 26, occupied by respondent Judge Genaro Gines who, as he admits, was assigned in (sic) that branch since January, 1987. The respondents here are Judge Genaro Gines, the incumbent presiding judge of Branch 26 of the RTC in Judicial Region No. 1 based in San Fernando, La Union; Pacita Diaz, a staff member in that court now retired in the period covered by the Sanglay report, in charge of filing and docketing of land registration cases; Pacita Diaz's daughter, Ma. Concepcion Diaz, another staff member in Branch 26, during the period covered by the Sanglay report, the clerk in charge of the filing and docketing of special proceedings cases; Alfredo Lacsamana, Jr., in the period covered by the Sanglay report the clerk in-charge of the filing and docketing of civil cases; Rosie Munar, court stenographic reporter; and Ma. Gorgonia Flores, court interpreter and the Officer-in-Charge of Branch 26. Francisco Lacsamana, Jr., additionally, was assigned to gather all cases filed and docketed in the week civil, criminal, special proceedings, land one day before the weekly raffle, and to transmit these newly filed cases to the Committee on Raffle. Ma. Gorgonia Flores, Officer-in-Charge of Branch 26, oversees the administrative machinery of Branch 26 (pp. 8-9, t.s.n., September 28, 1992). The respondents felt that since the Court Administrator limited himself to the sworn statement and report of Clerk of Court Attorney Aurora Sanglay, they were not called upon to present evidence in their behalf as it would amount to self-incrimination. They refused to testify; they refused to be cross-examined. Your investigator informs the Court that the Sanglay affidavit and report are uncontroverted. Admissions in the sworn statements forming part of the record are utilized in this report in addition to the stipulated facts. The respondents are charged in the administrative complaint: (1) for dishonesty, in violation of paragraph (e), section 3 of Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act, as amended; (2) for violation of Administrative Order No. 6, dated June 30, 1975; (3) for violation of Circular No. 7, dated September 23, 1974; and (4) for violation of Administrative Order No. 1, dated January 28, 1988. The last three, Supreme Court issues, have to do with the creation of a raffle committee in multi-branch Regional Trial Courts, with supervision of the raffle of newly-filled cases; with the manner of raffling cases, and establish the policy that no case, in multi-branch trial courts, may be assigned to any branch or sala unless it had undergone the raffle process. Supreme Court Circular No. 7, September 23, 1974 mandates that in courts with several branches, cases shall be assigned to the different branches only by raffle. "No case may be assigned to any branch without being raffled." (Part I) And immediately after raffle, the Executive Judge is mandated by the said Circular to indicate the particular branch to which the case is raffled, "the same to be written in words and in figures on the cover of the Rollo and on the first page of the original complaint or information and initialled by the Execut ive Judge and the two other officers who attended said raffle." (Part III). The same circular created a raffle committee of three, composed of the Executive Judge and two other judges of the court. The Executive Judge, supervises the Raffle. Administrative Circular No. 1, (January 28, 1988) reiterates strict compliance with Administrative Order No. 6 (June 30, 1975) and Circular No. 7 (September 23, 1974 Raffle of cases, this later Circular required, must be "in open session in the presence of lawyers and spectators . . . . ." (Section 8.1). The Court in this later Circular restated the res ipso loquitor (sic) rule regarding the conduct and removal of judges (Section 5.2). It is therefore, beyond cavil, that under the rules governing the administration of courts, all cases filed in court must go through the raffle committee for assignment. No case must be assigned, in multi-branch courts, unless it is raffled by the Raffle Committee. The 80 cases involved in this case, filed from April 1989 to April 1991, were not raffled, but were directly assigned to, or taken by, Branch 26 (except 3) under respondent Judge Gines. Respondent Judge Gines must know, under the above Supreme Court acts, at a simple glance on the cover of the rollo and the first page of every such record, whether a case was assigned to him after going through raffle or not. Cases assigned to his branch, after going through the required raffle, show on the face of the rollo, in words and in figures, the branch to which the case is assigned, authenticated by the initials of the Executive Judge and the two other members of the Committee. From January 1987, when respondent Judge Gines was appointed to Branch 26, the respondent judge had received unraffled cases, considered them and decided them. He had done so, apparently, not because he was a maniac of a worker, nor because he loved his work but for reasons unspoken in this case. Why should a sane judge accept additional cases for study and decision, in addition to his regular load, without any benefit or consideration? Here obviously, the res ipso loquitor (sic) doctrine applies. Among the administrative officers charged here, Alfredo Lacsamana, Jr., as stipulated, gathers all the cases filed and docketed in any particular week, for transmittal to the Committee on Raffle. He prepared the cases for raffle, including the preparation of the pieces of paper properly written on, to be picked in the raffle. It was his job to do so. He was assigned to do so; he admitted so. That he did not do so is obvious from the Sanglay Report from 1989 to 1991, he failed to transmit 80 cases and these cases found their way (except for 3) to respondent Judge Gines. The Sanglay report is not controverted. It was Lacsamana's job to collect all cases docketed, and to transmit them to the Raffle Committee. 80 such cases he did collect and failed to report to the Raffle Committee from April, 1989 to April, 1991. The Diazes, in the period covered by the Sanglay report had apparently fallen out with respondent Judge Gines and respondents Flores, Munar and Lacsamana. In an affidavit dated September 18, 1991 executed by respondent Ma. Concepcion Diaz, the following passages appear, to wit: xxx xxx xxx The conflict between the Diazes and the other respondents deem (sic) to have arisen from the suspicion the respondent Judge entertained that the Diazes had 'squealed' on him to the Executive Judge, the Honorable Braulio Yaranon. This is contained in the Diazes Joint Affidavit dated September 9, 1992 (Marked C-Diaz), in the following passage: xxx xxx xxx As to the two other respondents, respondents Ma. Gorgonia Flores, who is officer-in-charge of Branch 26 and Rosie Munar, court interpreter, there appears to be no evidence. The record shows that when the Court Administrator's lawyers rested their case with the presentation of the Sanglay report, the respondents refused to be cross-examined on their sworn statements. Consequently, each sworn statement lost value as evidence against the other respondents. However, it may be easily inferred that as court officer-in-charge, respondent Flores was in (sic)-duty

bound to supervise the work of her subalterns. The non-raffling of 80 cases during the period covered from April, 1989 to April 1991 reflects her failure to do her job. xxx xxx xxx The Supreme Court orders and circulars complained of as having been violated, are directed to district judges, while Section 3, paragraph (e) of RA 3019 is inclusive in scope, penalizing public officers for causing undue injury to any party . . . . or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative a (sic) judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. . . . The prosecution had limited itself to presenting the Sanglay report. It is apparent that we must take the Diazes' statement that they were pressured to do that which they had to do, and whatever it was, was done without consent, and against their will. However, under the facts here, all the cases filed docketed in Branch 26 were collected by respondent Lacsamana, Jr., who was in (sic) duty bound to forward the cases to the Raffle Committee. That 80 such cases did not find their way to the Committee, but ended up as 80 extra cases (except 3) in the docket load of the respondent judge, means at the very least that Lacsamana, Jr., failed to perform his job. The respondent judge in accepting or securing, such 80 cases, (minus 3) that did not pass through raffle, for his action and resolution, and which he eventually resolved violated all the Supreme Court circulars on the matter with the help and cooperation of respondent Lacsamana, Jr. Evidently, respondent judge must have received undue benefits and advantages (which have not been demonstrated in this case) in securing this extra load of cases, benefits and advantages coming from the party benefited (sic) by his action, and at the same time, granted the parties involved in the some (sic) 80 cases that did not undergo raffle, undue and unwarranted benefits resulting from the bias and partiality in their favor coming from the respondent judge. As earlier observed, a single glance at the cover and first page of each of the 80 or so rollos would show that they were unraffled, and yet, the respondent judge knowing that such cases were unraffled, secured the said cases, considered them and decided or resolved them, in violation of law. It would appear, therefore, that the respondent judge is guilty of the charges in the administrative complaint. Along with him as guilty, is respondent Alfredo Lacsamana, Jr. This conclusion is bolstered by, among other things, the Diazes' statement that cases were indeed directly secured by the respondent judge without their undergoing raffle. With respect to the other respondents, it could be deduced that the respondent Ma. Gorgonia Flores, as officer-in-charge of Branch 26, would have known that Alfredo Lacsamana, Jr. was not doing his job of forwarding all docketed cases to the Raffle Committee faithfully. He then recommends: WHEREFORE, it is respectfully recommended: 1. That respondent Judge Genaro C. Gines be appropriately penalized for violation of all the Supreme Court orders and circulars mentioned in the Administrative Complaint for the period covered from April 1989 to April 1991, plus apparent violation of Section 3, paragraph (e) of R.A. 3019; 2. That respondent Alfredo Lacsamana, Jr. for his apparent failure to do his job, be, likewise appropriately penalized, at least with a 6month suspension without pay; and 3. That respondent Ma. Gorgonia Flores be likewise penalized with a 3-month suspension without pay; and 4. That the other respondents be warned against committing any such violations. The continuing deliberate violations of Administrative Order No. 6 (dated 30 June 1975), Circular No. 7 (dated 23 September 1974) and Administrative Order No. 1 (dated 28 January 1988) for the years reported in Atty. Sanglay's report, and their belated discovery boggle our minds. The irregularities should have been easily discovered by the respondent Judge either because the fact that a case has not been properly raffled off is at once discernible on the cover of the records and on the first page of the original of the initial pleading (complaint, information, etc.), or because plain common sense would have told him that something was wrong somewhere as an unusual number of cases of the same class had been "assigned" to his sala. That he had failed to appreciate the physical evidence or, at the very least, exhibit surprise at the unusual number of cases is quite amazing. Thus, we are loathe to grant him the benefit of the doubt and conclude that he had no interest whatsoever in having those cases raffled off to him and that he only loved to work more than the others. Given the circumstances of this case, we cannot merely cut him some slack and assume good faith on his part; he deserves no such treatment. As the investigating Justice himself assessed the situation: . . . . The 80 cases involved in this case, filed from April 1989 to April 1991, were not raffled, but were directly assigned to, or taken by, Branch 26 (except 3) under respondent Judge Gines. Respondent Judge Gines, must know, under the above Supreme Court acts, at a simple glance on the cover of the rollo and the first page of every such record, whether a case was assigned to him after going through raffle or not. . . . From January 1987, when respondent Judge Gines was appointed to Branch 26, the respondent judge had received unraffled cases, considered them and decided them. He had done so, apparently, not because he was a maniac of a worker, nor because he loved his work but for reasons unspoken in this case. Why should a sane judge accept additional cases for study and decision, in addition to his regular load, without any benefit or consideration? Here, obviously, the res ipso loquitor (sic) doctrine applies. The irregularity and violations of the aforementioned administrative orders and circular could not have been committed so blatantly, brazenly and openly for an unusually long period of time if the respondent Judge did not have the cooperation of some of the court employees. We therefore agree with the investigating Justice that such support and cooperation were extended by subordinates who likewise had something to do with the raffle of cases. Hence, the findings on the degree of participation, either by commission or omission, of respondents Flores and Lacsamana are sustained. In his report, the investigating Justice absolves the Diazes and Munar from responsibility in the aforesaid irregularities. With respect to respondent Pacita Diaz, the case has become moot as she died on 10 February 1993. 1 Thus, the case is dismissed insofar as she is concerned.

On the other hand, while we find no evidence to link respondent Munar to the aforementioned irregularities, we hold that respondent Ma. Concepcion Diaz is not entirely blameless. In her affidavit of 18 September 1991, the relevant portions of which are quoted in the REPORT of Justice de Pano, she explicitly admitted: 11. In my explanation dated May 27, 1991 to the Memorandum of Judge Yaranon, while I might have made an admission that I was the clerk receiving cases that later turned out to be unraffled, I placed the direct blame on Judge Gines and my two officemates, namely, Mrs. Ma. Gorgonia L. Flores and Mrs. Rosie Munar who had applied all sorts of pressures upon me, including series (sic) of intimidation and, insinuations in order that cases of their choice receive (sic) by me may no longer be forwarded to the proper officer-in-charge of the raffle, but to them directly in Branch 26. 2 It is to be noted that Ma. Concepcion did not elaborate on the nature of such intimidation and insinuations. In view of the fact, however, that she was in charge of receiving and docketing special proceedings cases, and that out of the controversial 80 unraffled cases, 44 were special proceedings cases, her participation could, by no means, be considered as insignificant. And even if the alleged "intimidation" and "insinuations" were true, they still would not exculpate her in view of the length of time involved, the number of cases questioned and the absence of proof that such intimidation and insinuations were persistent, continuous and irresistible. It is thus clear that she had, by neglecting her duty, allowed herself to be used by the other respondents. A far more serious matter which has escaped the attention of the investigating Justice involves the charges set forth under paragraph 3 of the Administrative Complaint, particularly on the preparation by the respondent Judge, allegedly in coordination with respondents Munar and Flores, of petitions in certain cases, some of which are (a) Special Proceeding No. 1965 wherein it is made to appear that the petitioner therein an aunt of the respondent Judge and a resident of Sta. Cruz, Ilocos Sur resides in San Fernando, La Union, and (b) Special Proceeding No. 1967 wherein the Office of the Solicitor General and the other parties were not furnished with copies of the petition upon order of the respondent Judge. Not having undergone the prescribed raffle procedure, these two cases were directly assigned to the respondent Judge who then acted thereon. The said petitions, the pertinent orders issued in the course of the proceedings therein and the minutes thereof were attached by the respondent Judge to his 14 May 1993 Comment, which he had adopted as his direct testimony pursuant to his 17 September 1992 Manifestation (Exhibit "J"). These documents provide conclusive proof of more serious irregularities amounting to either gross ignorance or malicious disregard of applicable procedural laws, grave misconduct, grave abuse of authority and conduct prejudicial to the best interest of the service. The respondent Judge made a mockery of the judicial process as it is obvious that he had displayed a special interest in these cases; in fact, he even caused the cases to be excluded from the raffle. A careful review of the abovementioned petitions will reveal that the designation "Branch 26," indicating the branch presided over by the respondent Judge, has been originally typewritten as part of the caption, and not merely entered in the blank space reserved for the branch to which the case may subsequently be raffled off. It is to be further observed that the petition in Special Proceeding No. 1965 was subscribed and sworn to before respondent Flores in her capacity as the Officer-in-Charge of the Office of the Clerk of Court, Branch 26. Special Proceeding No. 1965 involves a petition for guardianship over the person and property of a certain Juan R. Lagmay. The said petition was filed by Regina Lagmay Valdez who claims to be a resident of Poblacion, San Fernando, La Union on 24 September 1990, and alleges that Juan R. Lagmay is "presently residing at No. 2579 Pamintuan Village, Mabalacat, Pampanga." Upon its filing, the respondent Judge immediately issued an order (a) giving due course to the petition, (b) directing that notices be served to Juan Lagmay's nearest of kin, namely Bonifacia Lagmay, Lilia Gumangan and Mariano Lagmay, all residents of Las-ud, Sta. Cruz, Ilocos Sur and (c) directing the latter to submit their opposition to the petition, if any, on or before 8 October 1990 at 8:30 a.m. 4 No order setting the case for hearing at that particular date, time and place was issued. It would appear, however, that this 24 September 1990 order was considered by the respondent Judge as the order setting the case for hearing on 8 October 1990 because respondent Flores prepared the Minutes of the alleged proceedings conducted on 8 October 1990. 5 The said Minutes show that the following exhibits were offered for jurisdictional purposes,: (1) Notice of hearing, as Exhibit "A" and (b) the dorsal side of Exhibit "A," purportedly to show that Juan Lagmay's nearest of kin were furnished with the notice of hearing, as Exhibit "A-1. " Said Minutes further disclose that the petitioner therein was not assisted by counsel; that respondent Flores acted as Interpreter while respondent Munar acted as Stenographer; and that since no opposition was filed therein, the testimony of the petitioner was received. The latter then allegedly declared that she is a resident of Poblacion, San Fernando, La Union; she is Juan Lagmay's niece as he is her father's brother; and Juan Lagmay is an American citizen, single, childless, a resident of 2579 Pamintuan Village, Mabalacat, Pampanga and a retired seaman receiving pension from the Social Security Administration of the United States of America in the amount of $550.00 a month. Thereafter, the respondent Judge issued an order appointing petitioner Regina Valdez as the guardian of the person and property of Juan R. Lagmay, and directing her to take her oath as such upon the filing of a bond of P500.00, after which she would be issued letters of guardianship. Without the bond having first been filed, however, respondent Flores administered the oath to Regina Valdez. Thereafter, or on 18 October 1990, respondent Flores issued to the latter her letters of guardianship. A closer examination of the so-called proofs of notice of hearing to the nearest of kin, consisting supposedly of "registry return receipts," reveals that there are no entries in the blanks reserved for information on the name of sender, name of post office, municipality or province where the same post office is located, registry number and case number. It is not likewise indicated therein when the addressees received the "registered" letter. In view thereof, the conclusion that the so-called notices were not sent at all is inevitable. Respondent Judge knew or ought to have known that his court was not the proper venue for the case because the person sought to be placed under guardianship was alleged to be a resident of Mabalacat, Pampanga. Section 1, Rule 92 of the Revised Rules of Court provides that: Guardianship of the person or estate of a minor or incompetent may be instituted in the Court of First Instance of the province, or in the justice of the peace court of the municipality, or in the municipal court of the chartered city where the minor or incompetent resides,. . . . (emphasis supplied). Worse, the aforesaid Order of 24 September 1990 did not even direct that notice be served on Juan Lagmay, the very party sought to be placed under guardianship. Such an omission, therefore, clearly violated Section 3, Rule 93 of the Revised Rules of Court which directs the court to fix the time and place for hearing and cause reasonable notice to be given to the person named in the petition, including the minor if above 14 years of age or the incompetent himself. We have ruled that service of notice to the minor above 14 years of age or the incompetent is jurisdictional. 8 Failing to have notice sent to Juan Lagmay, respondent Judge had no jurisdiction to proceed with the hearing on 8 October 1990, receive the petitioner's testimony, if he did at all, and thereafter appoint her as Juan Lagmay's guardian. Nor was the respondent Judge

justified in issuing on 22 January 1990 pursuant to the petitioner's 17 January 1990 motion an order appointing deputy sheriffs Oscar Fantastico and Romualdo Baladad as special sheriffs to take custody over the person of Juan Lagmay from one Florencio "Boy" Cortes of Bolinao, Pangasinan. In the said order, respondent Judge further directed Boy Cortes "to release from his custody and deliver the person of said Juan R. Lagmay, a.k.a. John R. Lagmay to the aforementioned special sheriffs immediately upon receipt of this Order, under pain of contempt." 10 Based on the special sheriffs' report, however, Boy Cortes did not release Juan Lagmay because the latter was too weak and sickly to travel. This refusal prompted the respondent Judge to order Boy Cortes' arrest (for contempt) and confinement until he shall have complied with the said order. It was respondent Flores who forwarded the warrant of arrest to the PNP Regional Command at San Fernando, La Union for its service. Having acquired no jurisdiction to hear the case and appoint Regina Valdez as Juan Lagmay's guardian, respondent Judge acted clearly beyond his authority when he designated special sheriffs to take custody of Juan Lagmay, directed the person who had custody over the latter to deliver him to the said special sheriffs and ordered the arrest of the said person who refused to surrender custody. And even if we are to assume, for the sake of argument, that the respondent Judge had validly acquired jurisdiction over the case and appointed Regina Lagmay as guardian, and that Boy Cortes did in fact refuse to deliver Juan Lagmay to the special sheriffs, he (respondent Judge) would still be guilty of gross ignorance of the law for ordering Cortes' arrest and confinement. In such a situation, the petitioner's remedy would be to file a petition for habeas corpus, and not to have Boy Cortes cited for contempt, much less arrested. We shall now focus our attention to Special Proceeding No. 1967. It is very strange proceeding. The case involves a petition for the "judicial confirmation of the de facto adoption" of Cecilia Averion filed on 11 October 1990. The petitioner therein alleges that she and her late husband, Fernando Averion who died in 1987 "adopted" Cecilia Averion in 1967; only 1 year and 3 months old at the time, Cecilia was supposedly given up by her natural parents, the whereabouts of whom remain unknown. Petitioner further avers that she and her husband, during his lifetime, reared the child and gave her all their love, attention, care and understanding. They also provided her with an edu cation and considered her as their own child. Hence, the petition was filed "for the purpose of judicially confirming the de facto adoption of Cecilia Averion by herein petitioner and her late husband." 14 The said petition was not accompanied by the written consent of Cecilia Averion who, at the time of filing, was already of legal age. On the very day the petition was filed, respondent Judge forthwith issued a Notice of Hearing which provided that the petition would be heard on 31 October 1990; it was likewise ordered therein that "a copy of this notice be published once a week for three consecutive weeks at the expense of the petitioner in a newspaper of general circulation in La Union and in the Philippines." From the so-called Minutes of the proceedings of 31 October 1990, 16 as prepared by respondent, Flores, it appears that the following exhibits were offered to establish the jurisdiction of the court: (1) the affidavit of the Editor of the North Tribune, "a newspaper of general circulation in La Union and Northern Luzon provinces," published in San Fernando, La Union, as Exhibit "A"; (2) clippings of the published order in the 10, 17 and 24 October 1990 issues of the North Tribune, as Exhibits "A-l," "A-2" and "A-3," respectively; and (3) the entire issues of the North Tribune for 10, 17 and 24 October 1990, as Exhibits "B," "B-1" and "B-2," respectively. It may further be gleaned from the said Minutes that since no opposition was registered by any other party, the petitioner's testimony was received by the court. On 6 November 1990, the respondent Judge handed down a decision 17 granting the petition and decreeing as follows: WHEREFORE, this Court hereby approves the petition and hereby confirms the de facto adoption of Cecilia Averion by herein petitioner and her late spouse Fernando Averion retroactive to the year 1967. The remedy pursued in Special Proceeding No. 1967 is certainly unusual as we are not aware of any prescribed action that may be instituted for the judicial confirmation of a de facto adoption. Nor do our adjective and substantive laws on adoption provide for such a proceeding. In fact, the only proper and authorized procedure relative to adoption is outlined in the rule on adoption itself. 18 That Cecilia Averion had been treated by the petitioner and her husband as their own child during the former's minority may only provide compelling reasons to grant the decree of adoption notwithstanding her (Cecilia's) having attained the age of majority. This is one of the exceptions provided by the Family Code to the rule that a person of legal age cannot be adopted. 19 In "confirming" the so-called de facto adoption and decreeing the same to be "retroactive to the year 1967," respondent Judge has carved a name for himself in history for, as already pointed out, no action or proceeding for judicial confirmation of a de facto adoption is authorized in this jurisdiction. Furthermore, by its very nature and purpose, a decree of adoption can never be made to retroact. Lastly, considering that the petitioner's husband had died in 1987, or three years before the petition was filed, he could not now be resurrected for purposes of the adoption, be in fact declared an adopter and be subsequently bound by the decree to the prejudice of his heirs. Then too, respondent Judge completely disregarded the fact that Cecilia Averion had submitted no written consent to the adoption at the time of the filing of the petition or at any subsequent date a manifest infirmity. Nor was Cecilia called to testify in the case. Moreover there seems to be an irregularity in the publication of the notice of hearing. It is to be observed that as indicated in the upper right hand corner of the first page of the petition, the proceeding was instituted on 11 October 1990. If this were so, the notice of hearing which was issued by the respondent Judge on that same date 20 could not have been published in the North Tribune in its 10 October 1990 issue. In his affidavit, the Editor of the said newspaper disclosed that the notice was indeed published on 10 October 1990. All told, respondent Judge completely ignored the procedural rules on adoption and promulgated guidelines for himself to suit his own purpose and design. Hence, it is evident that Special Proceeding No. 1965 and Special Proceeding No. 1967 were not only directly filed with the court of the respondent Judge without passing through the raffle procedure, the two cases were also resolved by the latter in a manner that may be characterized by gross ignorance or the brazen and blatant disregard of the applicable procedural laws, grave misconduct, palpable abuse of authority and conduct prejudicial to the best interest of the service. He is therefore unfit to continue in the service a day longer. He has evidently forgotten that the administration of justice is a sacred task. Upon assumption to office, a judge ceases to be an ordinary mortal. He becomes "the visible representation of the law and, more importantly, of justice." A judge must be the embodiment of competence, integrity and independence, and should be studiously careful to avoid even the slightest infraction of the law, lest it be a demoralizing example to others.

As shown in the above disquisitions, respondent Flores was a willing participant in the commission of the irregularities in both proceedings. On the other hand, however, respondent Munar's participation has not been substantiated. Before closing, we would like to point out that per our Resolution of 2 March 1993, we referred to Justice De Pano for inclusion in his investigation the 29 January 1993 letter of Executive Judge Braulio Yaranon which was addressed to Deputy Court Administrator Juanito Bernard. 24 In his letter, Judge Yaranon informs the latter about matters discovered in the course of the audit which are more serious than the "illegal raffling" of cases. He then exposes alleged case fixing and illegal office practices committed on a large scale by a syndicate composed principally of court officers and personnel, and describes the modus operandi of those involved as follows: The operation in a particular case, starts with "AMBULANCE CHASING"; after arrangements are made with a prospective applicant/petitioner, a petition is prepared by the syndicate; the same is then signed personally by the petitioner/applicant; and the oath for purposes of verification, is administered also by the syndicate. The petition/application is then filed with the Office of the Clerk of Court, where syndicate members receive and docket the case in the docket book of Branch 26; the case is deliberately separated from the cases that are turned over to the Raffle Committee, and is directly turned over to Branch 26. Care is taken that the date of filing is made to coincide with the scheduled day for raffling of cases (Tuesdays). On the same date of filing, the ORDER setting the case for initial hearing, is issued by Branch 26. On the date of initial hearing, a lawyercontact of the syndicate enters an appearance for the petitioner/applicant, and he then presents jurisdictional facts. On the very same day of initial hearing (in special proceedings) and without any ACTUAL HEARING (in special proceedings and land registration cases), for the reception of evidence on the material allegations of facts in the application/petition, a DECISION is forthwith issued. Judge Yaranon then partly concludes: Just one aspect of the matter is herein submitted for consideration. The issuance of a DECISION without any previous hearing being held for the reception of evidence by the applicant/petitioner, constitutes FALSIFICATION OF A PUBLIC DOCUMENT by a public officer, under Article 171, Revised Penal Code committed by: 2. Causing it to appear that persons have participated in an act or proceeding when they did not in fact so participate; . . . ( par. 2, Art. 171, Revised Penal Code). According to Justice De Pano, he received the 2 March 1993 Resolution just as he was about to write his report in this case. He then suggests that the matter subject thereof be treated separately and that "appropriate, charges be leveled against the respondent Judge principally, and his cohorts with the Tanod Bayan, for criminal prosecution." Indeed, the referral of Judge Yaranon's letter to Justice De Pano may have been too late. In any event, the charges proffered therein may be separately dealt with. IN THE LIGHT OF ALL THE FOREGOING, judgment is hereby rendered: (1) DISMISSING from the service respondent Judge GENARO C. GINES with prejudice to re-employment, in the government, including government-owned or controlled corporations, and with forfeiture of all benefits except earned leave credits. This dismissal shall be immediately executory and said respondent Judge is hereby ordered to forthwith vacate his position and desist from performing any further official function; (2) SUSPENDING from office respondents MA. GORGONIA L. FLORES and ALFREDO V. LACSAMANA, JR. for a period of six (6) months each, without pay; (3) SUSPENDING from office respondent MA. CONCEPCION B. DIAZ, for a period of three (3) months, without, pay. The foregoing suspensions shall take effect immediately upon the service of a copy of this Decision on the aforenamed respondents MA. GORGONIA L. FLORES, ALFREDO V. LACSAMANA, JR. and MA. CONCEPCION B. DIAZ. The periods of their respective suspensions shall not be charged against their leave credits, if any; (4) DISMISSING this case as against respondent PACITA B. DIAZ in view of her demise; and (5) DISMISSING this case as against respondent ROSIE M. MUNAR for lack of substantial evidence. The Office of the Court Administrator is hereby directed to evaluate the 29 January 1993 letter of Executive Judge Braulio Yaranon subject of the 2 March 1993 Resolution of this Court in this case and to submit to this Court appropriate recommendations thereon within fifteen (15) days from receipt of a copy of this Decision. SO ORDERED. G.R. No. 97906 May 21, 1992 REPUBLIC OF THE PHILIPPINES, petitioner, vs.COURT OF APPEALS and MAXIMO WONG, respondents. REGALADO, J.: Petitioner seeks to set aside the judgment of respondent Court of Appeals 1 in affirmance of the decision of the court a quo 2 granting the petition filed by herein private respondent Maximo Wong for the change of his name to Maximo Alcala, Jr. which was his name prior to his adoption by Hoong Wong and Concepcion Ty Wong. The facts are undisputed. Private respondent Maximo Wong is the legitimate son of Maximo Alcala, Sr. and Segundina Y. Alcala. When he was but two and a half years old and then known as Maximo Alcala, Jr., and his sister Margaret Alcala, was then nine years old, they were, with the consent of their natural parents 3 and by order of the court in Special Case No. 593 4 issued on September 9, 1967, adopted by spouses Hoong Wong and Concepcion Ty Wong, both naturalized Filipinos. Hoong Wong, now deceased, was an insurance agent while Concepcion Ty Wong was a high school teacher. They decided to adopt the children as they remained childless after fifteen years of marriage. The couples showered their adopted children with parental love and reared them as their own children. Upon reaching the age of twenty-two, herein private respondent, by then married and a junior Engineering student at Notre Dame University, Cotabato City, filed a petition to change his name to Maximo Alcala, Jr. It was averred that his use of the surname Wong embarrassed and isolated him from his relatives and friends, as the same suggests a Chinese ancestry when in truth and in fact he is a Muslim Filipino residing in a Muslim community, and he wants to erase any implication whatsoever of alien nationality; that he is being ridiculed for carrying a Chinese surname, thus hampering his business and social life; and that his adoptive mother does not oppose his desire to revert to his former surname.

As earlier stated, on July 2, 1986, the matter was resolved in favor of private respondent, the trial court decreeing that, the jurisdictional requirements having been fully complied with, petitioner's prayer to change his name from Maximo Wong to Maximo Alcala, Jr. was granted. 5 On appeal to respondent court, and over the opposition of petitioner Republic through the Solicitor General, the decision of the court below was affirmed in full, hence, this petition for review on certiorari. The lone issue to be settled is whether or not the reasons given by private respondent in his petition for change of name are valid, sufficient and proper to warrant the granting of said petition. The Solicitor General contends that private respondent's allegations of ridicule and/or isolation from family and friends were unsubstantiated and cannot justify the petition for change of name. He claims that for private respondent to cast aside the name of his adoptive father is crass ingratitude to the memory of the latter and to his adoptive mother who is still alive, despite her consent to the petition for change of name. Further, the Solicitor General posits that the reversion of Maximo Wong to his old name violates Articles 341 and 365 of the Civil Code, which requires an adopted child to use the surname of the adopter, and would identify him with his parents by nature, thus giving t he impression that he has severed his relationship with his adoptive parents. 6 In refutation, private respondent argues that he did as the law required, that is, upon adoption he used the surname of the adopter. However, being already emancipated, he can now decide what is best for and by himself. It is at this time that he realized that the Chinese name he carries causes him undue ridicule and embarrassment and affects his business and social life. In fact, his adoptive mother, being aware of his predicament, gave her consent to the petition for change of name, albeit making it clear that the same shall in no way affect the legal adoption, and even underwent the rigors of trial to substantiate her sworn statement. If his adoptive mother does not take offense nor feel any resentment, abhorrence or insecurity about his desire to change his name, private respondent avers that there can be no possible prejudice on her, much less the State. 7 We feel that we should preface our review of this case with a clear comprehension of the legal significance of a person's name. For all practical and legal purposes, a man's name is the designation by which he is known and called in the community in which be lives and is best known. It is defined as the word or combination of words by which a person is distinguished from other individuals and, also, as the label or appellation which he bears for the convenience of the world at large addressing him, of in speaking of or dealing with him. 8 Names are u sed merely as one method of indicating the identity of persons; they are descriptive of persons for identification, since, the identity is the essential thing and it has frequently been held that, when identity is certain, a variance in, or misspelling of, the name is immaterial. 9 The names of individuals usually have two parts: the given name or proper name, and the surname or family name. The given or proper name is that which is given to the individual at birth or baptism, to distinguish him from other individuals. The name or family name is that which identifies the family to which he belongs and is continued from parent to child. The given name may be freely selected by the parents for the child; but the surname to which the child is entitled is fixed by law. 10 A name is said to have the following characteristics: (1) It is absolute, intended to protect the individual from being confused with others. (2) It is obligatory in certain respects, for nobody can be without a name. (3) It is fixed, unchangeable, or immutable, at least at the start, and may be changed only for good cause and by judicial proceedings. (4) It is outside the commerce of man, and, therefore, inalienable and intransmissible by act inter vivos or mortis causa. (5) It is imprescriptible. 11 Title XIII, Book I of the Civil Code, in Articles 364 to 380, provides the substantive rules which regulate the use of surnames. Considering the subject and personalities involved in this present review, particular attention must be called to Article 365 which mandates that "(a)n adopted child shall bear the surname of the adopter," in correlation with Article 341 on the effects of adoption, among which is to"(e)ntitle the adopted person to use the adopter's surname." This same entitlement of an adopted child is maintained in Article 39(3), Title II of Presidential Decree No. 603, otherwise known as the Child and Youth Welfare Code. More recently, Executive Order No. 209, as amended by Executive Order No. 227, or the Family Code, echoes the same statutory right of an adopted child to use the surname of the adopter. 12 Clearly, from the very wordings of the law, it may be inferred that this use of the surname of the adopter by the adopted child is both an obligation and a right. Under Article 376 by the Civil Code, "(n)o person can change his name or surname without judicial authority." The application for change of name thereunder involves a special proceeding governed by and conducted under the strictures of Rule 103 of the Rules of Court and one which involves substantial changes, with the declared objective of such judicial proceedings being the prevention of fraud. The purpose of the statutory procedure authorizing a change of personal name is simply to have, wherever possible, a record of the change, and in keeping with the object of the statute, court to which application is made should normally make its decree recording such change of name. 13 A change of name is a special proceeding to establish the status of a person involving his relation with others, that is, his legal position in, or with regard to, the rest of the community. It is a proceeding in rem 14 and, as such, strict compliance with all jurisdictional requirements, particularly on publication, is essential in order to vest the court with jurisdiction thereover. 15 For this purpose, the only name that may be changed is the true or official name recorded in the civil register. 16 To digress a little for purposes of clarification, the change of name contemplated under Article 376 and reglementarily implemented by Rule 103 must not be confused with and cannot be effected through the summary proceeding proposed in Article 412 of the some Code, as procedurally regulated by Rule 108 of the Rules, which refers only to correction of clerical errors, such as those which are visible to the eye or obvious to the understanding, or an error made by a clerk or transcriber, or a mistake in copying or writing, or some harmless or innocuous change, 17 and not those which will involve substantial changes. 18 Turning now to the case at bar, we are guided by the jurisprudential dictum that the State has an interest in the names borne by individuals and entities for the purpose of identification, and a change of name is not a matter of right but of sound judicial discretion, to be exercised in the light of reasons adduced and the consequences that will likely follow; 19 it is a privilege which may be granted only upon a showing of a proper or reasonable cause or compelling reason therefor. 20

We find unacceptable the assertion of the Solicitor General that private respondent's allegation of ridicule and embarrassment due to the use of his present surname is unsubstantiated. The testimony of private respondent in the lower court bears out the existence of valid cause in his bid for change of name: ATTY. DUMAMBA: Q Now, after adoption, when you went to school, what did you use as your surname? A "Wong," sir. Q Now, after you adopted the surname "Wong?" in your studies, what did you observe? A I observed that "Wong" as a surname embarrassed me to my friends and when I go with Chinese friends I cannot talk Chinese. I am living in Campo Muslim, a Muslim community but no one can believe that I am Muslim. I have a little business of Furniture but I have little (sic) customer because no one believes me that I am Muslim. Q You want to inform this Honorable Court that this family name you are using which is "Wong" embarrassed you from (sic) your friends and relatives and also cause(d) damage to your business? A Yes sir. xxx xxx xxx ATTY. DUMAMBA: Q Now, considering that according to you, you are embarrassed because of the family name you are using, your friends shy away from you and it is a handicap in your business, what is your desire for the Court to do in order to help you? A Change my family name. Q From "Wong" to what do you want your surname changed? A "Alcala, Jr.", sir. xxx xxx xxx COURT: Q What is your purpose in changing your family name from Maximo Wong to Maximo Alcala, Jr.? A I feel embarrassed to my friends and also to my relatives and as I said I have a little business of furniture and only a few customers buying for the fact that they don't believe I am Muslim. Cross. ATTY. SERO: With the permission of the Honorable Court. Q Your father's name is Maximo Alcala, Sr., is he still alive? A Yes, sir. Q And what does your father say to this proposed changed (sic) of your name, your family name to your real family name given to you? A Yes, sir. Q They have no objection to it? A No, sir. Q Stated before this Honorable Court, the purpose why you wanted to change your name from "Wong" to "Alcala" is so that to avoid embarrassment because you are a Muslim and your Muslim relatives think that you are Chinese. A Yes, sir. Q Not for the purpose to hide anything or what not? A No, sir. The foregoing testimony of private respondent is materially corroborated by the testimony of private respondent's adoptive mother: Q Now, what did you observe to (sic) your son Maximo Wong after you and your husband adopted him? A When I adopted him and he used the surname "Wong" I observed that some of his relatives, cousins and friends seem to shy away from him and despise him in school that is why I agreed to change his name. We uphold these observations in the decision of respondent appellate court: The purpose of the law an allowing of change of name as contemplated by the provisions of Rule 103 of the Rules of Court is to give a person an opportunity to improve his personality and to provide his best interest. (Calderon vs. Republic, 19 SCRA 721). In granting or denying the petition for change of name, the question of proper and reasonable cause is left to the discretion of the court. The evidence presented need only be satisfactory to the court and not all the best evidence available is required. (Uy vs. Republic, L-22712, Nov. 25, 1965; Nacionales vs. Republic, L-18067, April 29, 1966; both cases cited in 1 SCRA 843). In the present case, We believe that the court a quo had exercised its discretion judiciously when it granted the petition. From the testimony of petitioner-appellee and of his adopter mother Concepcion Ty-Wong, We discern that said appellee was prompted to file the petition for change of name because of the embarrassment and ridicule his family name "Wong" brings in his dealings with his relatives and friends, he being a Muslim Filipino and living in a Muslim community. Another cause is his desire to improve his social a nd business life. It has been held that in the absence of prejudice to the state or any individual, a sincere desire to adopt a Filipino name to erase signs of a former alien nationality which only hamper(s) social and business life, is a proper and reasonable cause for change of name (Uy vs. Republic, L-22712, Nov. 25, 1965, Que Liong Sian vs. Republic, L-23167, Aug. 17, 1967, 20 SCRA 1074). Justice dictates that a person should be allowed to improve his social standing as long as in doing so, he does not cause prejudice or injury to the interest of the State or other persons (Calderon vs. Republic, supra). Nothing whatsoever is shown in the record of this case that such prejudice or injury to the interest of the state or of other persons would result in the change of petitioner's name. It bears stressing at this point that to justify a request for change of name, petitioner must show not only some proper or compelling reason therefor but also that he will be prejudiced by the use of his true and official name. Among the grounds for change of name which have been held valid are: (a) When the name is ridiculous, dishonorable or extremely difficult to write or pronounce; (b) When the change results as a legal consequence, as in legitimation; (c) When the change will avoid confusion; (d) Having continuously used and been known since childhood by a Filipino name, unaware of her alien parentage; (e) A sincere desire to adopt a Filipino name to erase signs of former alienage,

all in good faith and without prejudicing anybody; and (f) When the surname causes embarrassment and there is no showing that the desired change of name was for a fraudulent purpose or that the change of name would prejudice public interest. In granting or denying petitions for change of name, the question of proper and reasonable cause is left to the sound discretion of the court. The evidence presented need only be satisfactory to the court and not all the best evidence available. Summarizing, in special proceedings for change of name, what is involved is not a mere matter of allowance or disallowance of the request, but a judicious evaluation of the sufficiency and propriety of the justifications advanced in support thereof, mindful of the consequent results in the event of its grant and with the sole prerogative for making such determination being lodged in the courts. While it is true that the statutory fiat under Article 365 of the Civil Code is to the effect that an adopted child shall bear the surname of the adopter, it must nevertheless be borne in mind that the change of the surname of the adopted child is more an incident rather than the object of adoption proceedings. 30 The act of adoption fixes a status, viz., that of parent and child. More technically, it is an act by which relations of paternity and affiliation are recognized as legally existing between persons not so related by nature. It has been defined as the taking into one's family of the child of another as son or daughter and heir and conferring on it a title to the rights and privileges of such. The purpose of an adoption proceeding is to effect this new status of relationship between the child and its adoptive parents, the change of name which frequently accompanies adoption being more an incident than the object of the proceeding. 31 The welfare of the child is the primary consideration in the determination of an application for adoption. On this point, there is unanimous agreement. 32 It is the usual effect of a decree of adoption to transfer from the natural parents to the adoptive parents the custody of the child's person, the duty of obedience owing by the child, and all other legal consequences and incidents of the natural relation, in the same manner as if the child had been born of such adoptive parents in lawful wedlock, subject, however, to such limitations and restrictions as may be by statute imposed. 33 More specifically under the present state of our law, the Family Code, superseding the pertinent provisions of the Civil Code and of the Child and Youth Welfare Code on the matter, 34 relevantly provides in this wise with regard to the issue involved in this case: Art. 189. Adoption shall have the following effects: (1) For civil purposes, the adopted shall be deemed to be the legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising from the relationship of parent and child, including the right of the adopted to use the surname of the adopters; (Emphasis supplied.) xxx xxx xxx The Solicitor General maintains the position that to sustain the change of name would run counter to the behest of Article 365 of the Civil Code and the ruling in Manuel vs. Republic 35 that "one should not be allowed to use a surname which otherwise he is not permitted to employ under the law," and would set a bad example to other persons who might also seek a change of their surnames on lame excuses. 36 While we appreciate the Solicitor General's apprehensions and concern, we find the same to be unfounded. We do not believe that by reverting to his old name, private respondent would then be using a name which he is prohibited by law from using. True, the law prescribes the surname that a person may employ; but the law does not go so far as to unqualifiedly prohibit the use of any other surname, and only subjects such recourse to the obtention of the requisite judicial sanction. What the law does not prohibit, it permits. If we were to follow the argument of the Solicitor General to its conclusion, then there will never be any possibility or occasion for any person, regardless of status, to change his name, in view of the supposed subsequent violation of the legal imperative on the use of surnames in the event that the petition is granted. Rule 103 of the Rules of Court would then be rendered inutile. This could hardly have been the intendment of the law. A petition for change of name is a remedy allowed under our law only by way of exception to the mandatory provisions of the Civil Code on the use of surnames. The law fixes the surname that may be used by a person, at least inceptively, and it may be changed only upon judicial permission granted in the exercise of sound discretion. Section 1 of Rule 103, in specifying the parties who may avail of said remedy, uses the generic term "persons" to signify all natural persons regardless of status. If a legitimate person may, under certain judicially accepted exceptional circumstances, petition the court for a change of name, we do not see any legal basis or logic in discriminating against the availment of such a remedy by an adopted child. In other words, Article 365 is not an exception, much less can it bar resort, to Rule 103. We are of the view that the circumstances herein obtaining are within the ambit of the established exceptions and find merit in private respondent's submission: Rule 103 of the Rules of Court has its primordial purpose which (State) is to give a person in opportunity to improve his personality and provide his best interest (Calderon vs. Republic, 19 SCRA 721). In the instant case, the court a quo found the petition of Maximo Wong for change of name justifiable after due hearing, thus its factual findings and appreciation of testimonies count heavily and need not be disturbed unless for strong and cogent reasons because the trial court is in a better position to examine real evidence as well as to observe the demeanor of the witnesses while testifying in the case (Baliwag Transit, Inc. vs. CA, 147 SCRA 82). Moreover, the trial court could take judicial notice of other existing factors in the community where herein respondent lives which it considers material in its judicious determination of the case. . . . Additionally, herein respondent is already of age and as such he can decide what is best for him. His experience with regards (sic) his social and business dealings is personal and it is only him (sic) who can attest to the same. Finding his predicament's proper remedy is solely through legal process, herein respondent accordingly filed a petition pursuant to Rule 103 of the Rules of Court which was granted by the Court a quo. 37 Besides, we have faith in the circumspection of our lower courts and that, in the exercise of their discretion, said courts shall consider petitions for change of name only on cogent and meritorious grounds as would justify the granting of such applications. We do not expect our trial courts to cater or give in to the whim or caprice of an applicant, aside from the fact that there is always the safeguard and corrective interdiction of appellate review.

It is not fair to construe the desired reversion of private respondent to the use of the name of his parents by nature as cross ingratitude. To go by the Solicitor General's suggestion that private respondent should have his adoption revoked if he wants to use the surname of his natural father would be to exact too clear a toll for making use of an appropriate and valid remedy available under the law. Herein private respondent, before he filed the petition for change of name, asked for his adoptive mother's permission to do so: Q Now, in filing this petition for change of surname, you had talked with your adopted mother? A Yes, sir. Q Did you ask permission from her whether she wants you to change the surname? A Yes, sir. 38 True enough, the above testimony of private respondent was confirmed by his adoptive mother in this manner: Q How are you related to Maximo Wong? A My adopted son. Q He is your adopted son, did your son talk to you when he filed this petition for change of his surname? A Yes, he even tried to ask me and I said, alright if you want to change. xxx xxx xxx Q Now, when you agreed to the filing of this petition for change of name, did you reduce your consent in writing? A Yes, sir, I agreed also so that his business will prosper because he is already Alcila and not Wong because Wong they said is Chinese. 39 As proof of her assent to the filing of said petition (her husband having already passed away), Concepcion Ty Vda. de Wong executed an affidavit in Cotabato City on May 27, 1985, with these textual declarations: That I am the same and identical person, who is the surviving adapted (sic) parent of Maximo Wong. That I personally discovered it myself from the time my adapted (sic) son Maximo used the surname of my late husband Wong, his relatives and childhood friends shy away from him because he is branded as a son of a chinese which is different from them whose parents are muslim Filipinos; That I pity my son who is often rediculed (sic) by his friends and relatives because of his family name Wong, hence, in order not to humper (sic) his social and business life in the future, I am voluntarily and of my own free will without being forced, coerced, or intimidated give (sic) my consent to his desire to change his desire to change his surname without affecting however the legal adoption granted by the Court on September 9, 1967, making him as one of my legal and compulsory heir (sic). That I am executing this affidavit to attest to the truth of all the above mentioned facts and for all legal intent (sic) and purposes. There could be no other plausible reason for private respondent to first secure has adoptive mother's consent before resorting to the questioned legal recourse other than the parental respect and reverence which is owed by and to be expected of a dutiful chil d. If private respondent was such an ingrate, as the Solicitor General would have us believe, he would not have bothered to seek his adoptive mother's counsel. In the same breath, had his adoptive mother regarded him as an ungrateful adoptee, she would not have executed the affidavit above quoted, much less testify in his behalf at the hearing of his petition. Moreover, worthy of note is the fact that private respondent's adoptive mother emphasized that she executed the above affidavit "without affecting the legal adoption granted by the Court on September 9, 1967, making him as one of my legal and compulsory heir(s)." This is incontrovertible proof that she never entertained any misgivings or reservations with respect to her consent to his petition. This likewise dispels any possible confusion as to private respondent's legal status or adoptive paternity and his successional rights. Concordantly, we have heretofore held that a change of name does not define or effect a change in one's existing family relations or in the rights and duties flowing therefrom. It does not alter one's legal capacity, civil status or citizenship; what is altered is only the name. WHEREFORE, the petition is DENIED and the decision of respondent Court of Appeals is hereby AFFIRMED in toto.SO ORDERED. IN THE MATTER OF THE ADOPTION OF STEPHANIE NATHY ASTORGA GARCIA HONORATO B. CATINDIG, petitioner. SANDOVAL-GUTIERREZ, J.: May an illegitimate child, upon adoption by her natural father, use the surname of her natural mother as her middle name? This is the issue raised in the instant case. The facts are undisputed. On August 31, 2000, Honorato B. Catindig, herein petitioner, filed a petition[1] to adopt his minor illegitimate child Stephanie Nathy Astorga Garcia. He alleged therein, among others, that Stephanie was born on June 26, 1994;[2] that her mother is Gemma Astorga Garcia; that Stephanie has been using her mothers middle name and surname; and that he is now a widower and qualified to be her adopting parent. He prayed that Stephanies middle name Astorga be changed to Garcia, her mothers surname, and that her surname Garcia be changed to Catindig, his surname. On March 23, 2001,[3] the trial court rendered the assailed Decision granting the adoption, thus: After a careful consideration of the evidence presented by the petitioner, and in the absence of any opposition to the petition, this Court finds that the petitioner possesses all the qualifications and none of the disqualification provided for by law as an adoptive parent, and that as such he is qualified to maintain, care for and educate the child to be adopted; that the grant of this petition would redound to the best interest and welfare of the minor Stephanie Nathy Astorga Garcia. The Court further holds that the petitioners care and custody of the child since her birth up to the present constitute more than enough compliance with the requirement of Article 35 of Presidential Decree No. 603.

WHEREFORE, finding the petition to be meritorious, the same is GRANTED. Henceforth, Stephanie Nathy Astorga Garcia is hereby freed from all obligations of obedience and maintenance with respect to her natural mother, and for civil purposes, shall henceforth be the petitioners legitimate child and legal heir. Pursuant to Article 189 of the Family Code of the Philippines, the minor shall be known as STEPHANIE NATHY CATINDIG. Upon finality of this Decision, let the same be entered in the Local Civil Registrar concerned pursuant to Rule 99 of the Rules of Court. Let copy of this Decision be furnished the National Statistics Office for record purposes. SO ORDERED.[4] On April 20, 2001, petitioner filed a motion for clarification and/or reconsideration[5] praying that Stephanie should be allowed to use the surname of her natural mother (GARCIA) as her middle name. On May 28, 2001,[6] the trial court denied petitioners motion for reconsideration holding that there is no law or jurisprudence allowing an adopted child to use the surname of his biological mother as his middle name. Hence, the present petition raising the issue of whether an illegitimate child may use the surname of her mother as her middle name when she is subsequently adopted by her natural father. Petitioner submits that the trial court erred in depriving Stephanie of a middle name as a consequence of adoption because: (1) there is no law prohibiting an adopted child from having a middle name in case there is only one adopting parent; (2) it is customary for every Filipino to have as middle name the surname of the mother; (3) the middle name or initial is a part of the name of a person; (4) adoption is for the benefit and best interest of the adopted child, hence, her right to bear a proper name should not be violated; (5) permitting Stephanie to use the middle name Garcia (her mothers surname) avoids the stigma of her illegitimacy; and; (6) her continued use of Garcia as her middle name is not opposed by either the Catindig or Garcia families. The Republic, through the Office of the Solicitor General (OSG), agrees with petitioner that Stephanie should be permitted to use, as her middle name, the surname of her natural mother for the following reasons: First, it is necessary to preserve and maintain Stephanies filiation with her natural mother because under Article 189 of the Family Code, she remains to be an intestate heir of the latter. Thus, to prevent any confusion and needless hardship in the future, her rela tionship or proof of that relationship with her natural mother should be maintained. Second, there is no law expressly prohibiting Stephanie to use the surname of her natural mother as her middle name. What the law does not prohibit, it allows. Last, it is customary for every Filipino to have a middle name, which is ordinarily the surname of the mother. This custom has been recognized by the Civil Code and Family Code. In fact, the Family Law Committees agreed that the initial or surname of the mother should immediately precede the surname of the father so that the second name, if any, will be before the surname of the mother.[7] We find merit in the petition. Use Of Surname Is Fixed By Law For all practical and legal purposes, a man's name is the designation by which he is known and called in the community in which he lives and is best known. It is defined as the word or combination of words by which a person is distinguished from other individuals and, also, as the label or appellation which he bears for the convenience of the world at large addressing him, or in speaking of or dealing with him.[8] It is both of personal as well as public interest that every person must have a name. The name of an individual has two parts: (1) the given or proper name and (2) the surname or family name. The given or proper name is that which is given to the individual at birth or at baptism, to distinguish him from other individuals. The surname or family name is that which identifies the family to which he belongs and is continued from parent to child. The given name may be freely selected by the parents for the child, but the surname to which the child is entitled is fixed by law.[9] Thus, Articles 364 to 380 of the Civil Code provides the substantive rules which regulate the use of surname[10] of an individual whatever may be his status in life, i.e., whether he may be legitimate or illegitimate, an adopted child, a married woman or a previously married woman, or a widow, thus: Art. 364. Legitimate and legitimated children shall principally use the surname of the father. Art. 365. An adopted child shall bear the surname of the adopter. xxx Art. 369. Children conceived before the decree annulling a voidable marriage shall principally use the surname of the father. Art. 370. A married woman may use: (1) Her maiden first name and surname and add her husband's surname, or (2) Her maiden first name and her husband's surname or (3) Her husband's full name, but prefixing a word indicating that she is his wife, such as Mrs. Art. 371. In case of annulment of marriage, and the wife is the guilty party, she shall resume her maiden name and surname. If she is the innocent spouse, she may resume her maiden name and surname. However, she may choose to continue employing her former husband's surname, unless:

(1) The court decrees otherwise, or (2) She or the former husband is married again to another person. Art. 372. When legal separation has been granted, the wife shall continue using her name and surname employed before the legal separation. Art. 373. A widow may use the deceased husband's surname as though he were still living, in accordance with Article 370. Art. 374. In case of identity of names and surnames, the younger person shall be obliged to use such additional name or surname as will avoid confusion. Art. 375. In case of identity of names and surnames between ascendants and descendants, the word Junior can be used only by a son. Grandsons and other direct male descendants shall either: (1) Add a middle name or the mother's surname, (2) Add the Roman numerals II, III, and so on. x x x Law Is Silent As To The Use Of Middle Name As correctly submitted by both parties, there is no law regulating the use of a middle name. Even Article 176[11] of the Family Code, as amended by Republic Act No. 9255, otherwise known as An Act Allowing Illegitimate Children To Use The Surname Of Their Father, is silent as to what middle name a child may use. The middle name or the mothers surname is only considered in Article 375(1), quoted above, in case there is identity of names and surnames between ascendants and descendants, in which case, the middle name or the mothers surname shall be added. Notably, the law is likewise silent as to what middle name an adoptee may use. Article 365 of the Civil Code merely provides that an adopted child shall bear the surname of the adopter. Also, Article 189 of the Family Code, enumerating the legal effects of adoption, is likewise silent on the matter, thus: "(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising from the relationship of parent and child, including the right of the adopted to use the surname of the adopters; x x x However, as correctly pointed out by the OSG, the members of the Civil Code and Family Law Committees that drafted the Family Code recognized the Filipino custom of adding the surname of the childs mother as his middle name. In the Minutes of the Joint Meeting of the Civil Code and Family Law Committees, the members approved the suggestion that the initial or surname of the mother should immediately precede the surname of the father, thus Justice Caguioa commented that there is a difference between the use by the wife of the surname and that of the child because the fathers surname indicates the family to which he belongs, for which reason he would insist on the use of the fathers surname by the child but that, if he wants to, the child may also use the surname of the mother. Justice Puno posed the question: If the child chooses to use the surname of the mother, how will his name be written? Justice Caguioa replied that it is up to him but that his point is that it should be mandatory that the child uses the surname of the father and permissive in the case of the surname of the mother. Prof. Baviera remarked that Justice Caguioas point is covered by the present Article 364, which reads: Legitimate and legitimated children shall principally use the surname of the father. Justice Puno pointed out that many names change through no choice of the person himself precisely because of this misunderstanding. He then cited the following example: Alfonso Ponce Enriles correct surname is Ponce since the mothers surname is Enrile but everybody calls him Atty. Enrile. Justice Jose Gutierrez Davids family name is Gutierrez and his mothers surname is David but they all call him Justice David. Justice Caguioa suggested that the proposed Article (12) be modified to the effect that it shall be mandatory on the child to use the surname of the father but he may use the surname of the mother by way of an initial or a middle name. Prof. Balane stated that they take note of this for inclusion in the Chapter on Use of Surnames since in the proposed Article (10) they are just enumerating the rights of legitimate children so that the details can be covered in the appropriate chapter. xxx Justice Puno remarked that there is logic in the simplification suggested by Justice Caguioa that the surname of the father should always be last because there are so many traditions like the American tradition where they like to use their second given name and the Latin tradition, which is also followed by the Chinese wherein they even include the Clan name. xxx Justice Puno suggested that they agree in principle that in the Chapter on the Use of Surnames, they should say that initial or surname of the mother should immediately precede the surname of the father so that the second name, if any, will be before the surname of the mother. Prof. Balane added that this is really the Filipino way. The Committee approved the suggestion.[12] (Emphasis supplied) In the case of an adopted child, the law provides that the adopted shall bear the surname of the adopters.[13] Again, it is silent whether he can use a middle name. What it only expressly allows, as a matter of right and obligation, is for the adoptee to bear the surname of the adopter, upon issuance of the decree of adoption. The Underlying Intent of Adoption Is In Favor of the

Adopted Child Adoption is defined as the process of making a child, whether related or not to the adopter, possess in general, the rights accorded to a legitimate child. It is a juridical act, a proceeding in rem which creates between two persons a relationship similar to that which results from legitimate paternity and filiation. The modern trend is to consider adoption not merely as an act to establish a relationship of paternity and filiation, but also as an act which endows the child with a legitimate status.[17] This was, indeed, confirmed in 1989, when the Philippines, as a State Party to the Convention of the Rights of the Child initiated by the United Nations, accepted the principle that adoption is impressed with social and moral responsibility, and that its underlying intent is geared to favor the adopted child.[18] Republic Act No. 8552, otherwise known as the Domestic Adoption Act of 1998,[19] secures these rights and privileges for the adopted.[20] One of the effects of adoption is that the adopted is deemed to be a legitimate child of the adopter for all intents and purposes pursuant to Article 189[21] of the Family Code and Section 17[22] Article V of RA 8552.[23] Being a legitimate child by virtue of her adoption, it follows that Stephanie is entitled to all the rights provided by law to a legitimate child without discrimination of any kind, including the right to bear the surname of her father and her mother, as discussed above. This is consistent with the intention of the members of the Civil Code and Family Law Committees as earlier discussed. In fact, it is a Filipino custom that the initial or surname of the mother should immediately precede the surname of the father. Additionally, as aptly stated by both parties, Stephanies continued use of her mothers surname (Garcia) as her middle name will maintain her maternal lineage. It is to be noted that Article 189(3) of the Family Code and Section 18[24], Article V of RA 8552 (law on adoption) provide that the adoptee remains an intestate heir of his/her biological parent. Hence, Stephanie can well assert or claim her hereditary rights from her natural mother in the future. Moreover, records show that Stephanie and her mother are living together in the house built by petitioner for them at 390 Tumana, San Jose, Baliuag, Bulacan. Petitioner provides for all their needs. Stephanie is closely attached to both her mother and father. She calls them Mama and Papa. Indeed, they are one normal happy family. Hence, to allow Stephanie to use her mothers surname as her middle name will not only sustain her continued loving relationship with her mother but will also eliminate the stigma of her illegitimacy. Liberal Construction of Adoption Statutes In Favor Of Adoption It is a settled rule that adoption statutes, being humane and salutary, should be liberally construed to carry out the beneficent purposes of adoption.[25] The interests and welfare of the adopted child are of primary and paramount consideration,[26] hence, every reasonable intendment should be sustained to promote and fulfill these noble and compassionate objectives of the law.[27] Lastly, Art. 10 of the New Civil Code provides that: In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail. This provision, according to the Code Commission, is necessary so that it may tip the scales in favor of right and justice when the law is doubtful or obscure. It will strengthen the determination of the courts to avoid an injustice which may apparently be authorized by some way of interpreting the law.[28] Hence, since there is no law prohibiting an illegitimate child adopted by her natural father, like Stephanie, to use, as middle name her mothers surname, we find no reason why she should not be allowed to do so. WHEREFORE, the petition is GRANTED. The assailed Decision is partly MODIFIED in the sense that Stephanie should be allowed to use her mothers surname GARCIA as her middle name. Let the corresponding entry of her correct and complete name be entered in the decree of adoption. SO ORDERED. G.R. No. 143989 July 14, 2003

ISABELITA S. LAHOM, petitioner, vs. JOSE MELVIN SIBULO (previously referred to as "DR. MELVIN S. LAHOM"), respondent. VITUG, J.: The bliss of marriage and family would be to most less than complete without children. The realization could have likely prodded the spouses Dr. Diosdado Lahom and Isabelita Lahom to take into their care Isabelita's nephew Jose Melvin Sibulo and to bring him up as their own. At the tender age of two, Jose Melvin enjoyed the warmth, love and support of the couple who treated the child like their own. Indeed, for years, Dr. and Mrs. Lahom fancied on legally adopting Jose Melvin. Finally, in 1971, the couple decided to file a petition for adoption. On 05 May 1972, an order granting the petition was issued that made all the more intense than before the feeling of affection of the spouses for Melvin. In keeping with the court order, the Civil Registrar of Naga City changed the name "Jose Melvin Sibulo" to "Jose Melvin Lahom." A sad turn of events came many years later. Eventually, in December of 1999, Mrs. Lahom commenced a petition to rescind the decree of adoption before the Regional Trial Court (RTC), Branch 22, of Naga City. In her petition, she averred "7. That x x x despite the proddings and pleadings of said spouses, respondent refused to change his surname from Sibulo to Lahom, to the frustrations of petitioner particularly her husband until the latter died, and even before his death he had made known his desire to revoke respondent's adoption, but was prevented by petitioner's supplication, however with his further request upon petitioner to give to charity whatever properties or interest may pertain to respondent in the future. xxx xxx xxx

"10. That respondent continued using his surname Sibulo to the utter disregard of the feelings of herein petitioner, and his records with the Professional Regulation Commission showed his name as Jose Melvin M. Sibulo originally issued in 1978 until the present, and in all his dealings and activities in connection with his practice of his profession, he is Jose Melvin M. Sibulo. xxx xxx xxx "13. That herein petitioner being a widow, and living alone in this city with only her household helps to attend to her, has yearned for the care and show of concern from a son, but respondent remained indifferent and would only come to Naga to see her once a year. "14. That for the last three or four years, the medical check-up of petitioner in Manila became more frequent in view of a leg ailment, and those were the times when petitioner would need most the care and support from a love one, but respondent all the more remained callous and utterly indifferent towards petitioner which is not expected of a son. "15. That herein respondent has recently been jealous of petitioner's nephews and nieces whenever they would find time to visit her, respondent alleging that they were only motivated by their desire for some material benefits from petitioner. "16. That in view of respondent's insensible attitude resulting in a strained and uncomfortable relationship between him and petitioner, the latter has suffered wounded feelings, knowing that after all respondent's only motive to his adoption is his expectancy of his alleged rights over the properties of herein petitioner and her late husband, clearly shown by his recent filing of Civil Case No. 99-4463 for partition against petitioner, thereby totally eroding her love and affection towards respondent, rendering the decree of adoption, considering respondent to be the child of petitioner, for all legal purposes, has been negated for which reason there is no more basis for its existence, hence this petition for revocation,"1 Prior to the institution of the case, specifically on 22 March 1998, Republic Act (R.A.) No. 8552, also known as the Domestic Adoption Act, went into effect. The new statute deleted from the law the right of adopters to rescind a decree of adoption. Section 19 of Article VI of R.A. No. 8552 now reads: "SEC. 19. Grounds for Rescission of Adoption. Upon petition of the adoptee, with the assistance of the Department if a minor or if over eighteen (18) years of age but is incapacitated, as guardian/counsel, the adoption may be rescinded on any of the following grounds committed by the adopter(s): (a) repeated physical and verbal maltreatment by the adopter(s) despite having undergone counseling; (b) attempt on the life of the adoptee; (c) sexual assault or violence; or (d) abandonment and failure to comply with parental obligations. "Adoption, being in the best interest of the child, shall not be subject to rescission by the adopter(s). However, the adopter(s) may disinherit the adoptee for causes provided in Article 919 of the Civil Code." (emphasis supplied) Jose Melvin moved for the dismissal of the petition, contending principally (a) that the trial court had no jurisdiction over the case and (b) that the petitioner had no cause of action in view of the aforequoted provisions of R.A. No. 8552. Petitioner asseverated, by way of opposition, that the proscription in R.A. No. 8552 should not retroactively apply, i.e., to cases where the ground for rescission of the adoption vested under the regime of then Article 3482 of the Civil Code and Article 1923 of the Family Code. In an order, dated 28 April 2000, the trial court held thusly: "On the issue of jurisdiction over the subject matter of the suit, Section 5(c) of R.A. No. 8369 confers jurisdiction to this Court, having been designated Family Court in A.M. No. 99-11-07 SC. "On the matter of no cause of action, the test on the sufficiency of the facts alleged in the complaint, is whether or not, admitting the facts alleged, the Court could render a valid judgment in accordance with the prayer of said complaint (De Jesus, et al. vs. Belarmino, et al., 95 Phil. 365). "Admittedly, Section 19, Article VI of R.A. No. 8552 deleted the right of an adopter to rescind an adoption earlier granted under the Family Code. Conformably, on the face of the petition, indeed there is lack of cause of action. "Petitioner however, insists that her right to rescind long acquired under the provisions of the Family Code should be respected. Assuming for the sake of argument, that petitioner is entitled to rescind the adoption of respondent granted on May 5, 1972, said right should have been exercised within the period allowed by the Rules. From the averments in the petition, it appears clear that the legal grounds for the petition have been discovered and known to petitioner for more than five (5) years, prior to the filing of the instant petition on December 1, 1999, hence, the action if any, had already prescribed. (Sec. 5, Rule 100 Revised Rules of Court) "WHEREFORE, in view of the foregoing consideration, the petition is ordered dismissed."4 Via a petition for review on certiorari under Rule 45 of the 1997 Rules of Court, petitioner raises the following questions; viz: 1. May the subject adoption, decreed on 05 May 1972, still be revoked or rescinded by an adopter after the effectivity of R.A. No. 8552? 2. In the affirmative, has the adopter's action prescribed? A brief background on the law and its origins could provide some insights on the subject. In ancient times, the Romans undertook adoption to assure male heirs in the family.5 The continuity of the adopter's family was the primary purpose of adoption and all matters relating to it basically focused on the rights of the adopter. There was hardly any mention about the rights of the adopted.6 Countries, like Greece, France, Spain and England, in an effort to preserve inheritance within the family, neither allowed nor recognized adoption.7 It was only much later when adoption was given an impetus in law and still later when the welfare of the child became a paramount concern.8 Spain itself which previously disfavored adoption ultimately relented and accepted the Roman law concept of adoption which, subsequently, was to find its way to the archipelago. The Americans came and introduced their own ideas on adoption which, unlike most countries in Europe, made the interests of the child an overriding consideration.9 In the early part of the century just passed, the rights of children invited universal attention;

the Geneva Declaration of Rights of the Child of 1924 and the Universal Declaration of Human Rights of 1948,10 followed by the United Nations Declarations of the Rights of the Child,11 were written instruments that would also protect and safeguard the rights of adopted children. The Civil Code of the Philippines12 of 1950 on adoption, later modified by the Child and Youth Welfare Code13 and then by the Family Code of the Philippines,14 gave immediate statutory acknowledgment to the rights of the adopted. In 1989, the United Nations initiated the Convention of the Rights of the Child. The Philippines, a State Party to the Convention, accepted the principle that adoption was impressed with social and moral responsibility, and that its underlying intent was geared to favor the adopted child. R.A. No. 8552 secured these rights and privileges for the adopted. Most importantly, it affirmed the legitimate status of the adopted child, not only in his new family but also in the society as well. The new law withdrew the right of an adopter to rescind the adoption decree and gave to the adopted child the sole right to sever the legal ties created by adoption. Petitioner, however, would insist that R.A. No. 8552 should not adversely affect her right to annul the adoption decree, nor deprive the trial court of its jurisdiction to hear the case, both being vested under the Civil Code and the Family Code, the laws then in force. The concept of "vested right" is a consequence of the constitutional guaranty of due process15 that expresses a present fixed interest which in right reason and natural justice is protected against arbitrary state action;16 it includes not only legal or equitable title to the enforcement of a demand but also exemptions from new obligations created after the right has become vested.17 Rights are considered vested when the right to enjoyment is a present interest,18 absolute, unconditional, and perfect19 or fixed and irrefutable. In Republic vs. Court of Appeals,20 a petition to adopt Jason Condat was filed by Zenaida C. Bobiles on 02 February 1988 when the Child and Youth Welfare Code (Presidential Decree No. 603) allowed an adoption to be sought by either spouse or both of them. After the trial court had rendered its decision and while the case was still pending on appeal, the Family Code of the Philippines (Executive Order No. 209), mandating joint adoption by the husband and wife, took effect. Petitioner Republic argued that the case should be dismissed for having been filed by Mrs. Bobiles alone and without being joined by the husband. The Court concluded that the jurisdiction of the court is determined by the statute in force at the time of the commencement of the action. The petition to adopt Jason, having been filed with the court at the tim e when P.D. No. 603 was still in effect, the right of Mrs. Bobiles to file the petition, without being joined by her husband, according to the Court had become vested. In Republic vs. Miller,21 spouses Claude and Jumrus Miller, both aliens, sought to adopt Michael Madayag. On 29 July 1988, the couple filed a petition to formalize Michael's adoption having theretofore been taken into their care. At the time the action was commenced, P.D. No. 603 allowed aliens to adopt. After the decree of adoption and while on appeal before the Court of Appeals, the Family Code was enacted into law on 08 August 1988 disqualifying aliens from adopting Filipino children. The Republic then prayed for the withdrawal of the adoption decree. In discarding the argument posed by the Republic, the Supreme Court ruled that the controversy should be resolved in the light of the law governing at the time the petition was filed. It was months after the effectivity of R.A. No. 8552 that herein petitioner filed an action to revoke the decree of adoption granted in 1975. By then, the new law,22 had already abrogated and repealed the right of an adopter under the Civil Code and the Family Code to rescind a decree of adoption. Consistently with its earlier pronouncements, the Court should now hold that the action for rescission of the adoption decree, having been initiated by petitioner after R.A. No. 8552 had come into force, no longer could be pursued. Interestingly, even before the passage of the statute, an action to set aside the adoption is subject to the five-year bar rule under Rule 10023 of the Rules of Court and that the adopter would lose the right to revoke the adoption decree after the lapse of that period. The exercise of the right within a prescriptive period is a condition that could not fulfill the requirements of a vested right entitled to protection. It must also be acknowledged that a person has no vested right in statutory privileges.24 While adoption has often been referred to in the context of a "right," the privilege to adopt is itself not naturally innate or fundamental but rather a right merely created by statute.25 It is a privilege that is governed by the state's determination on what it may deem to be for the best interest and welfare of the child.26 Matters relating to adoption, including the withdrawal of the right of an adopter to nullify the adoption decree, are subject to regulation by the State.27 Concomitantly, a right of action given by statute may be taken away at anytime before it has been exercised.28 While R.A. No. 8552 has unqualifiedly withdrawn from an adopter a consequential right to rescind the adoption decree even in cases where the adoption might clearly turn out to be undesirable, it remains, nevertheless, the bounden duty of the Court to apply the law. Dura lex sed lex would be the hackneyed truism that those caught in the law have to live with. It is still noteworthy, however, that an adopter, while barred from severing the legal ties of adoption, can always for valid reasons cause the forfeiture of certain benefits otherwise accruing to an undeserving child. For instance, upon the grounds recognized by law, an adopter may deny to an adopted child his legitime and, by a will and testament, may freely exclude him from having a share in the disposable portion of his estate. WHEREFORE, the assailed judgment of the court a quo is AFFIRMED. No costs. SO ORDERED. G.R. No. 164948 June 27, 2006 DIWATA RAMOS LANDINGIN Petitioner, vs. REPUBLIC OF THE PHILIPPINES, Respondent. CALLEJO, SR., J.: Assailed in this petition for review on certiorari under Rule 45 of the Rules of Court is the Decision1 of the Court of Appeals in CA-G.R. CV No. 77826 which reversed the Decision2 of the Regional Trial Court (RTC) of Tarlac City, Branch 63 in Civil Case No. 2733 granting the Petition for Adoption of the petitioner herein. The Antecedents On February 4, 2002, Diwata Ramos Landingin, a citizen of the United States of America (USA), of Filipino parentage and a resident of Guam, USA, filed a petition3 for the adoption of minors Elaine Dizon Ramos who was born on August 31, 1986;4 Elma Dizon Ramos, who was born on September 7, 1987;5 and Eugene Dizon Ramos who was born on August 5, 1989.6 The minors are the natural children of Manuel Ramos, petitioners brother, and Amelia Ramos. Landingin, as petitioner, alleged in her petition that when Manuel died on May 19, 1990,7 the children were left to their paternal grandmother, Maria Taruc Ramos; their biological mother, Amelia, went to Italy, re-married there and now has two children by her second marriage and no longer communicated with her children by Manuel Ramos nor with her in-laws from the time she left up to the institution of the adoption; the

minors are being financially supported by the petitioner and her children, and relatives abroad; as Maria passed away on November 23, 2000, petitioner desires to adopt the children; the minors have given their written consent8 to the adoption; she is qualified to adopt as shown by the fact that she is a 57-year-old widow, has children of her own who are already married, gainfully employed and have their respective families; she lives alone in her own home in Guam, USA, where she acquired citizenship, and works as a restaurant server. She came back to the Philippines to spend time with the minors; her children gave their written consent9 to the adoption of the minors. Petitioners brother, Mariano Ramos, who earns substantial income, signified his willingness and commitment to support the minors while in petitioners custody. Petitioner prayed that, after due hearing, judgment be rendered in her favor, as follows: WHEREFORE, it is most respectfully prayed to this Honorable Court that after publication and hearing, judgment be rendered allowing the adoption of the minor children Elaine Dizon Ramos, Elma Dizon Ramos, and Eugene Dizon Ramos by the petitioner, and ordering that the minor childrens name follow the family name of petitioner. Petitioner prays for such other reliefs, just and equitable under the premises.10 On March 5, 2002, the court ordered the Department of Social Welfare and Development (DSWD) to conduct a case study as mandated by Article 34 of Presidential Decree No. 603, as amended, and to submit a report thereon not later than April 4, 2002, the date set for the initial hearing of the petition.11 The Office of the Solicitor General (OSG) entered its appearance12 but deputized the City Prosecutor of Tarlac to appear in its behalf.13 Since her petition was unopposed, petitioner was allowed to present her evidence ex parte.14 The petitioner testified in her behalf. She also presented Elaine Ramos, the eldest of the adoptees, to testify on the written consent executed by her and her siblings.15 The petitioner marked in evidence the Affidavit of Consent purportedly executed by her children Ann, Errol, Dennis and Ricfel Branitley, all surnamed Landingin, and notarized by a notary public in Guam, USA, as proof of said consent.16 On May 24, 2002, Elizabeth Pagbilao, Social Welfare Officer II of the DSWD, Field Office III, Tarlac, submitted a Child Study Report, with the following recommendation: In view of the foregoing, undersigned finds minors Elaine, Elma & Eugene all surnamed Ramos, eligible for adoption because of the following reasons: 1. Minors surviving parent, the mother has voluntarily consented to their adoption by the paternal aunt, Diwata Landingin this is in view of her inability to provide the parental care, guidance and support they need. An Affidavit of Consent was executed by the mother which is hereto attached. 2. The three minors subject for adoption have also expressed their willingness to be adopted and joins the petitioners in Guam, USA in the future. A joint Affidavit of consent is hereto attached. The minors developed close attachment to the petitioners and they regarded her as second parent. 3. The minors are present under the care of a temporary guardian who has also family to look after. As young adolescents they really need parental love, care, guidance and support to ensure their protection and well being. In view of the foregoing, it is hereby respectfully recommended that minors Elaine D. Ramos, Elma D. Ramos and Eugene D. Ramos be adopted by their maternal aunt Diwata Landingin. Trial custody is hereby further recommended to be dispensed with considering that they are close relatives and that close attachments was already developed between the petitioner and the 3 minors.17 Pagbilao narrated what transpired during her interview, as follows: The mother of minors came home together with her son John Mario, this May 2002 for 3 weeks vacation. This is to enable her appear for the personal interview concerning the adoption of her children. The plan for the adoption of minors by their paternal aunt Diwata Landingin was conceived after the death of their paternal grandmother and guardian. The paternal relatives including the petitioner who attended the wake of their mother were very much concerned about the well-being of the three minors. While preparing for their adoption, they have asked a cousin who has a family to stay with minors and act as their temporary guardian. The mother of minors was consulted about the adoption plan and after weighing the benefits of adoption to her children, she voluntarily consented. She realized that her children need parental love, guidance and support which she could not provide as she already has a second family & residing in Italy. Knowing also that the petitioners & her children have been supporting her children up to the present and truly care for them, she believes her children will be in good hands. She also finds petitioners in a better position to provide a secured and bright future to her children.18 However, petitioner failed to present Pagbilao as witness and offer in evidence the voluntary consent of Amelia Ramos to the adoption; petitioner, likewise, failed to present any documentary evidence to prove that Amelia assents to the adoption. On November 23, 2002, the court, finding merit in the petition for adoption, rendered a decision granting said petition. The dispositive portion reads: WHEREFORE, it is hereby ordered that henceforth, minors Elaine Dizon Ramos, Elma Dizon Ramos, Eugene Dizon Ramos be freed from all legal obligations obedience and maintenance from their natural parents and that they be declared for all legal intents and purposes the children of Diwata Ramos Landingin. Trial custody is dispensed with considering that parent-children relationship has long been established between the children and the adoptive parents. Let the surnames of the children be changed from "Dizon-Ramos" to "Ramos-Landingin." Let a copy of this decision be furnished the Local Civil Registrar of Tarlac, Tarlac for him to effect the corresponding changes/amendment in the birth certificates of the above-mentioned minors. SO ORDERED.19

The OSG appealed20 the decision to the Court of Appeals on December 2, 2002. In its brief21 for the oppositor-appellant, the OSG raised the following arguments: I . THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE THE LACK OF CONSENT OF THE PROPOSED ADOPTEES BIOLOGICAL MOTHER. II. THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE THE LACK OF THE WRITTEN CONSENT OF THE PETITIONERS CHILDREN AS REQUIRED BY LAW. III. THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE PETITIONERS FAILURE TO ESTABLISH THAT SHE IS IN A POSITION TO SUPPORT THE PROPOSED ADOPTEES. On April 29, 2004, the CA rendered a decision22 reversing the ruling of the RTC. It held that petitioner failed to adduce in evidence the voluntary consent of Amelia Ramos, the childrens natural mother. Moreover, the affidavit of consent of the petitioners children could not also be admitted in evidence as the same was executed in Guam, USA and was not authenticated or acknowledged before a Philippine consular office, and although petitioner has a job, she was not stable enough to support the children. The dispositive portion of the CA decision reads: WHEREFORE, premises considered, the appealed decision dated November 25, 2002 of the Regional Trial Court, Branch 63, Tarlac City in Spec. Proc. No. 2733 is hereby REVERSED and SET ASIDE. SO ORDERED.23 Petitioner filed a Motion for Reconsideration24 on May 21, 2004, which the CA denied in its Resolution dated August 12, 2004.25 Petitioner, thus, filed the instant petition for review on certiorari26 on September 7, 2004, assigning the following errors: 1. THAT THE HONORABLE LOWER COURT HAS OVERLOOKED AND MISAPPLIED SOME FACTS AND CIRCUMSTANCES WHICH ARE OF WEIGHT AND IMPORTANCE AND WHICH IF CONSIDERED WOULD HAVE AFFECTED THE RESULT OF THE CASE. 2. THAT THE HONORABLE LOWER COURT ERRED IN CONCLUDING THAT THE PETITIONER-APPELLEE IS NOT FINANCIALLY CAPABLE TO SUPPORT THE THREE CHILDREN.27 The issues raised by the parties in their pleadings are the following: (a) whether the petitioner is entitled to adopt the minors without the written consent of their biological mother, Amelia Ramos; (b) whether or not the affidavit of consent purportedly executed by the petitioner-adopters children sufficiently complies with the law; and (c) whether or not petitioner is financially capable of supporting the adoptees. The Courts Ruling The petition is denied for lack of merit. It has been the policy of the Court to adhere to the liberal concept, as stated in Malkinson v. Agrava,28 that adoption statutes, being humane and salutary, hold the interest and welfare of the child to be of paramount consideration and are designed to provide homes, parental care and education for unfortunate, needy or orphaned children and give them the protection of society and family in the person of the adopter as well as to allow childless couples or persons to experience the joys of parenthood and give them legally a child in the person of the adopted for the manifestation of their natural parental instincts. Every reasonable intendment should thus be sustained to promote and fulfill these noble and compassionate objectives of the law.29 However, in Cang v. Court of Appeals,30 the Court also ruled that the liberality with which this Court treats matters leading to adoption insofar as it carries out the beneficent purposes of the law to ensure the rights and privileges of the adopted child arising therefrom, ever mindful that the paramount consideration is the overall benefit and interest of the adopted child, should be understood in its proper context and perspective. The Courts position should not be misconstrued or misinterpreted as to extend to inferences beyond the contemplation of law and jurisprudence. Thus, the discretion to approve adoption proceedings is not to be anchored solely on best interests of the child but likewise, with due regard to the natural rights of the parents over the child.31 Section 9 of Republic Act No. 8552, otherwise known as the Domestic Adoption Act of 1998, provides: Sec. 9. Whose Consent is Necessary to the Adoption. - After being properly counseled and informed of his/her right to give or withhold his/her approval of the adoption, the written consent of the following to the adoption is hereby required: (a) The adoptee, if ten (10) years of age or over; (b) The biological parent(s) of the child, if known, or the legal guardian, or the proper government instrumentality which has legal custody of the child; (c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s) and adoptee, if any; (d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter, if living with said adopter and the latters souse, if any; (e) The spouse, if any, of the person adopting or to be adopted. The general requirement of consent and notice to the natural parents is intended to protect the natural parental relationship from unwarranted interference by interlopers, and to insure the opportunity to safeguard the best interests of the child in the manner of the proposed adoption.32 Clearly, the written consent of the biological parents is indispensable for the validity of a decree of adoption. Indeed, the natural right of a parent to his child requires that his consent must be obtained before his parental rights and duties may be terminated and re-established in adoptive parents. In this case, petitioner failed to submit the written consent of Amelia Ramos to the adoption. We note that in her Report, Pagbilao declared that she was able to interview Amelia Ramos who arrived in the Philippines with her son, John Mario in May 2002. If said Amelia Ramos was in the Philippines and Pagbilao was able to interview her, it is incredible that the latter would not require Amelia Ramos to execute a Written Consent to the adoption of her minor children. Neither did the petitioner bother to present Amelia Ramos as witness in support of the petition.

Petitioner, nonetheless, argues that the written consent of the biological mother is no longer necessary because when Amelias husband died in 1990, she left for Italy and never came back. The children were then left to the guidance and care of their paternal grandmother. It is the paternal relatives, including petitioner, who provided for the childrens financial needs. Hence, Amelia, the biological mother, had effectively abandoned the children. Petitioner further contends that it was by twist of fate that after 12 years, when the petition for adoption was pending with the RTC that Amelia and her child by her second marriage were on vacation in the Philippines. Pagbilao, the DSWD social worker, was able to meet her, and during the meeting, Amelia intimated to the social worker that she conformed to the adoption of her three children by the petitioner. Petitioners contention must be rejected. When she filed her petition with the trial court, Rep. Act No. 8552 was already in effect. Section 9 thereof provides that if the written consent of the biological parents cannot be obtained, the written consent of the legal guardian of the minors will suffice. If, as claimed by petitioner, that the biological mother of the minors had indeed abandoned them, she should, thus have adduced the written consent of their legal guardian. Ordinarily, abandonment by a parent to justify the adoption of his child without his consent, is a conduct which evinces a settled purpose to forego all parental duties.33 The term means neglect and refusal to perform the filial and legal obligations of love and support. If a parent withholds presence, love, care, the opportunity to display filial affection, and neglects to lend support and maintenance, the parent, in effect, abandons the child.34 Merely permitting the child to remain for a time undisturbed in the care of others is not such an abandonment.35 To dispense with the requirement of consent, the abandonment must be shown to have existed at the time of adoption.36 In this case, petitioner relied solely on her testimony and that of Elaine Ramos to prove her claim that Amelia Ramos had abandoned her children. Petitioners testimony on that matter follows: Q Where is the mother of these three children now? A She left for Italy on November 20, 1990, sir. Q At the time when Amelia Ramos left for Italy, was there an instance where she communicated with the family? A None, sir. Q How about with her children? A None, sir. Q Do you know what place in Italy did she reside? A I do not know, sir. Q Did you receive any news about Amelia Ramos? A What I know, sir, was that she was already married with another man. Q From whom did you learn that? A From others who came from Italy, sir. Q Did you come to know whether she has children by her second marriage? A Yes, sir, she got two kids.37 Elaine, the eldest of the minors, testified, thus: Q Where is your mother now? A In Italy, sir. Q When did your mother left for Italy? A After my father died, sir. Q How old were you when your mother left for Italy in 1990? A Two years old, sir. Q At the time when your mother left for Italy, did your mother communicate with you? A No, sir. However, the Home Study Report of the DSWD Social Worker also stated the following: IV. Background of the Case: xxxx Since the mother left for Italy, minors siblings had been under the care and custody of their maternal grandmother. However, she died in Nov. 2001 and an uncle, cousin of their deceased father now serves as their guardian. The petitioner, together with her children and other relatives abroad have been supporting the minor children financially, even during the time that they were still living with their natural parents. Their mother also sends financial support but very minimal.39 xxxx V. Background Information about the Minors Being Sought for Adoption: xxxx As the eldest she tries her best to be a role model to her younger siblings. She helps them in their lessons, works and has fun with them. She also encourages openness on their problems and concerns and provides petty counseling. In serious problems she already consult (sic) her mother and petitioner-aunt.40 xxxx In their 5 years of married life, they begot 3 children, herein minors, Amelia recalled that they had a happy and comfortable life. After the death of her husband, her in-laws which include the petitioner had continued providing support for them. However being ashamed of just depending on the support of her husbands relatives, she decided to work abroad. Her parents are also in need of financial help as they are undergoing maintenance medication. Her parents mortgaged their farm land which she used in going to Italy and worked as domestic helper.

When she left for Italy in November 1990, she entrusted her 3 children to the care & custody of her mother-in-law who returned home for good, however she died on November 2000. While working in Italy, she met Jun Tayag, a married man from Tarlac. They became live-in partners since 1995 and have a son John Mario who is now 2 years old. The three of them are considered Italian residents. Amelia claimed that Mr. Tayag is planning to file an annulment of his marriage and his wife is amenable to it. He is providing his legitimate family regular support. Amelia also sends financial support ranging from P10,000-P15,000 a month through her parents who share minimal amount of P3,000-P5,000 a month to his (sic) children. The petitioner and other paternal relatives are continuously providing support for most of the needs & education of minors up to present.41 Thus, when Amelia left for Italy, she had not intended to abandon her children, or to permanently sever their mother-child relationship. She was merely impelled to leave the country by financial constraints. Yet, even while abroad, she did not surrender or relinquish entirely her motherly obligations of rearing the children to her now deceased mother-in-law, for, as claimed by Elaine herself, she consulted her mother, Amelia, for serious personal problems. Likewise, Amelia continues to send financial support to the children, though in minimal amounts as compared to what her affluent in-laws provide. Let it be emphasized, nevertheless, that the adoption of the minors herein will have the effect of severing all legal ties between the biological mother, Amelia, and the adoptees, and that the same shall then be vested on the adopter.42 It would thus be against the spirit of the law if financial consideration were to be the paramount consideration in deciding whether to deprive a person of parental authority over his/her children. More proof has to be adduced that Amelia has emotionally abandoned the children, and that the latter will not miss her guidance and counsel if they are given to an adopting parent.43 Again, it is the best interest of the child that takes precedence in adoption. Section 34, Rule 132 of the Rules of Court provides that the Court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. The offer of evidence is necessary because it is the duty of the Court to rest its findings of fact and its judgment only and strictly upon the evidence offered by the parties. Unless and until admitted by the court in evidence for the purpose or purposes for which such document is offered, the same is merely a scrap of paper barren of probative weight. Mere identification of documents and the markings thereof as exhibits do not confer any evidentiary weight on documents unless formally offered.44 Petitioner failed to offer in evidence Pagbilaos Report and of the Joint Affidavit of Consent purportedly executed by her children; the authenticity of which she, likewise, failed to prove. The joint written consent of petitioners children45 was notarized on January 16, 2002 in Guam, USA; for it to be treated by the Rules of Court in the same way as a document notarized in this country it needs to comply with Section 2 of Act No. 2103,46 which states: Section 2. An instrument or document acknowledged and authenticated in a foreign country shall be considered authentic if the acknowledgment and authentication are made in accordance with the following requirements: (a) The acknowledgment shall be made before (1) an ambassador, minister, secretary of legation, charg d affaires, consul, vice-consul, or consular agent of the Republic of the Philippines, acting within the country or place to which he is accredited, or (2) a notary public or officer duly authorized by law of the country to take acknowledgments of instruments or documents in the place where the act is done. (b) The person taking the acknowledgment shall certify that the person acknowledging the instrument or document is known to him, and that he is the same person who executed it, and acknowledged that the same is his free act and deed. The certificate shall be under his official seal, if he is by law required to keep a seal, and if not, his certificate shall so state. In case the acknowledgment is made before a notary public or an officer mentioned in subdivision (2) of the preceding paragraph, the certificate of the notary public or the officer taking the acknowledgment shall be authenticated by an ambassador, minister, secretary of legation, charg de affaires, consul, vice-consul, or consular agent of the Republic of the Philippines, acting within the country or place to which he is accredited. The officer making the authentication shall certify under his official seal that the person who took the acknowledgment was at the time duly authorized to act as notary public or that he was duly exercising the functions of the office by virtue of which he assumed to act, and that as such he had authority under the law to take acknowledgment of instruments or documents in the place where the acknowledgment was taken, and that his signature and seal, if any, are genuine. As the alleged written consent of petitioners legitimate children did not comply with the afore-cited law, the same can at best be treated by the Rules as a private document whose authenticity must be proved either by anyone who saw the document executed or written; or by evidence of the genuineness of the signature or handwriting of the makers.47 Since, in the instant case, no further proof was introduced by petitioner to authenticate the written consent of her legitimate children, the same is inadmissible in evidence. In reversing the ruling of the RTC, the CA ruled that petitioner was not stable enough to support the children and is only relying on the financial backing, support and commitment of her children and her siblings.48 Petitioner contradicts this by claiming that she is financially capable as she has worked in Guam for 14 years, has savings, a house, and currently earns $5.15 an hour with tips of not less than $1,000.00 a month. Her children and siblings have likewise committed themselves to provide financial backing should the need arise. The OSG, again in its comment, banks on the statement in the Home Study Report that "petitioner has limited income." Accordingly, it appears that she will rely on the financial backing of her children and siblings in order to support the minor adoptees. The law, however, states that it is the adopter who should be in a position to provide support in keeping with the means of the family. Since the primary consideration in adoption is the best interest of the child, it follows that the financial capacity of prospective parents should also be carefully evaluated and considered. Certainly, the adopter should be in a position to support the would-be adopted child or children, in keeping with the means of the family.

According to the Adoption Home Study Report49 forwarded by the Department of Public Health & Social Services of the Government of Guam to the DSWD, petitioner is no longer supporting her legitimate children, as the latter are already adults, have individual lives and families. At the time of the filing of the petition, petitioner was 57 years old, employed on a part-time basis as a waitress, earning $5.15 an hour and tips of around $1,000 a month. Petitioners main intention in adopting the children is to bring the latter to Guam, USA. She has a house at Quitugua Subdivision in Yigo, Guam, but the same is still being amortized. Petitioner likewise knows that the limited income might be a hindrance to the adoption proceedings. Given these limited facts, it is indeed doubtful whether petitioner will be able to sufficiently handle the financial aspect of rearing the three children in the US. She only has a part-time job, and she is rather of age. While petitioner claims that she has the financial support and backing of her children and siblings, the OSG is correct in stating that the ability to support the adoptees is personal to the adopter, as adoption only creates a legal relation between the former and the latter. Moreover, the records do not prove nor support petitioners allegation that her siblings and her children are financially able and that they are willing to support the minors herein. The Court, therefore, again sustains the ruling of the CA on this issue. While the Court recognizes that petitioner has only the best of intentions for her nieces and nephew, there are legal infirmities that militate against reversing the ruling of the CA. In any case, petitioner is not prevented from filing a new petition for adoption of the herein minors. WHEREFORE, premises considered, the petition is hereby DENIED. SO ORDERED. G.R. No. 89420 July 31, 1991 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROSALINO DUNGO, accused-appellant. PARAS, J.:p This is an automatic review of the Decision * of the Regional Trial Court of the Third Judicial Region, Branch 54, Macabebe, Pampanga, convicting the accused of the crime of murder. The pertinent facts of the case are: On March 24, 1987, the prosecuting attorney of the Province of Pampanga filed an information charging Rosalino Dungo, the defendantappellant herein, with the felony of murder, committed as follows: That on or about the 16th day of March, 1987 in the Municipality of Apalit, Province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused ROSALINO DUNGO, armed with a knife, with deliberate intent to kill, by means of treachery and with evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and stab Mrs. Belen Macalino Sigua with a knife hitting her in the chest, stomach, throat and other parts of the body thereby inflicting upon her fatal wounds which directly caused the death of said Belen Macalino Sigua. All contrary to law, and with the qualifying circumstance of alevosia, evident premeditation and the generic aggravating circumstance of disrespect towards her sex, the crime was committed inside the field office of the Department of Agrarian Reform where public authorities are engaged in the discharge of their duties, taking advantage of superior strength and cruelty. (Record, p. 2) On arraignment, accused-appellant Rosalino Dungo pleaded not guilty to the crime charged. Trial on the merits thereafter ensued. The prosecution, through several witnesses, has established that on March 16, 1987 between the hours of 2:00 and 3:00 o'clock in the afternoon, a male person, identified as the accused, went to the place where Mrs. Sigua was holding office at the Department of Agrarian Reform, Apalit, Pampanga. After a brief talk, the accused drew a knife from the envelope he was carrying and stabbed Mrs. Sigua several times. Accomplishing the morbid act, he went down the staircase and out of the DAR's office with blood stained clothes, carrying along a bloodied bladed weapon. (TSN, pp. 4-19, 33-46, April 13, 1987; TSN, pp. 5-21, 28-38, April 20, 1987). The autopsy report (Exh. "A") submitted by Dra. Melinda dela Cruz Cabugawan reveals that the victim sustained fourteen (14) wounds, five (5) of which were fatal. Rodolfo Sigua, the husband of the deceased, testified that, sometime in the latter part of February, 1987, the accused Rosalino Dungo inquired from him concerning the actuations of his wife (the victim) in requiring so many documents from the accused. Rodolfo Sigua explained to the accused the procedure in the Department of Agrarian Reform but the latter just said "never mind, I could do it my own way." Rodolfo Sigua further testified that his wife's annual salary is P17,000.00, and he spent the amount of P75,000.00 for the funeral and related expenses due to the untimely death of his wife. (TSN, pp. 4-21, April 22, 1987). The accused, in defense of himself, tried to show that he was insane at the time of the commission of the offense. The defense first presented the testimony of Andrea Dungo, the wife of the accused. According to her, her husband had been engaged in farming up to 1982 when he went to Lebanon for six (6) months. Later, in December 1983, her husband again left for Saudi Arabia and worked as welder. Her husband did not finish his two-year contract because he got sick. Upon his arrival, he underwent medical treatment. He was confined for one week at the Macabali Clinic. Thereafter he had his monthly check-up. Because of his sickness, he was not able to resume his farming. The couple, instead, operated a small store which her husband used to tend. Two weeks prior to March 16, 1987, she noticed her husband to be in deep thought always; maltreating their children when he was not used to it before; demanding another payment from his customers even if the latter had paid; chasing any child when their children quarrelled with other children. There were also times when her husband would inform her that his feet and head were on fire when in truth they were not. On the fateful day of March 16, 1987, at around noon time, her husband complained to her of stomach ache; however, they did not bother to buy medicine as he was immediately relieved of the pain therein. Thereafter, he went back to the store. When Andrea followed him to the store, he was no longer there. She got worried as he was not in his proper mind. She looked for him. She returned home only when she was informed that her husband had arrived. While on her way home, she heard from people the words "mesaksak" and "menaksak" (translated as "stabbing" and "has stabbed"). She saw her husband in her parents-in-law's house with people milling around, including the barangay officials. She instinctively asked her husband why he did such

act, but he replied, "that is the only cure for my ailment. I have a cancer in my heart." Her husband further said that if he would not be able to kill the victim in a number of days, he would die, and that he chose to live longer even in jail. The testimony on the statements of her husband was corroborated by their neighbor Thelma Santos who heard their conversation. (See TSN, pp. 12-16, July 10, 1987). Turning to the barangay official, her husband exclaimed, "here is my wallet, you surrender me." However, the barangay official did not bother to get the wallet from him. That same day the accused went to Manila. (TSN, pp. 6-39, June 10, 1981) Dra. Sylvia Santiago and Dr. Nicanor Echavez of the National Center for Mental Health testified that the accused was confined in the mental hospital, as per order of the trial court dated August 17, 1987, on August 25, 1987. Based on the reports of their staff, they concluded that Rosalino Dungo was psychotic or insane long before, during and after the commission of the alleged crime and that his insanity was classified under organic mental disorder secondary to cerebro-vascular accident or stroke. (TSN, pp. 4-33, June 17, 1988; TSN, pp. 5-27, August 2, 1988). Rosalino Dungo testified that he once worked in Saudi Arabia as welder. However, he was not able to finish his two-year contract when he got sick. He had undergone medical treatment at Macabali Clinic. However, he claimed that he was not aware of the stabbing incident nor of the death of Mrs. Belen Sigua. He only came to know that he was accused of the death of Mrs. Sigua when he was already in jail. (TSN, pp. 5-14, July 15, 1988) Rebuttal witnesses were presented by the prosecution. Dr. Vicente Balatbat testified that the accused was his patient. He treated the accused for ailments secondary to a stroke. While Dr. Ricardo Lim testified that the accused suffered from oclusive disease of the brain resulting in the left side weakness. Both attending physicians concluded that Rosalino Dungo was somehow rehabilitated after a series of medical treatment in their clinic. Dr. Leonardo Bascara further testified that the accused is functioning at a low level of intelligence. (TSN, pp. 620, September 1, 1988; TSN, pp. 4-29, November 7, 1988). On January 20, 1989, the trial court rendered judgment the dispositive portion of which reads: WHEREFORE, finding the accused guilty beyond reasonable doubt as principal for the crime of murder, the Court hereby renders judgment sentencing the accused as follows: 1. To suffer the penalty of reclusion perpetua and the accessories of the law; 2. To indemnify the family of the victim in the amount of P75,000.00 as actual damage, P20,000.00 as exemplary damages and P30,000.00 as moral damages. SO ORDERED. (p. 30, Rollo) The trial court was convinced that the accused was sane during the perpetration of the criminal act. The act of concealing a fatal weapon indicates a conscious adoption of a pattern to kill the victim. He was apprehended and arrested in Metro Manila which indicates that he embarked on a flight in order to evade arrest. This to the mind of the trial court is another indication that the accused was sane when he committed the crime. It is an exercise in futility to inquire into the killing itself as this is already admitted by the defendant-appellant. The only pivotal issue before us is whether or not the accused was insane during the commission of the crime changed. One who suffers from insanity at the time of the commission of the offense charged cannot in a legal sense entertain a criminal intent and cannot be held criminally responsible for his acts. His unlawful act is the product of a mental disease or a mental defect. In order that insanity may relieve a person from criminal responsibility, it is necessary that there be a complete deprivation of intelligence in committing the act, that is, that the accused be deprived of cognition; that he acts without the least discernment; that there be complete absence or deprivation of the freedom of the will. (People v. Puno, 105 SCRA 151) It is difficult to distinguish sanity from insanity. There is no definite defined border between sanity and insanity. Under foreign jurisdiction, there are three major criteria in determining the existence of insanity, namely: delusion test, irresistible impulse test, and the right and wrong test. Insane delusion is manifested by a false belief for which there is no reasonable basis and which would be incredible under the given circumstances to the same person if he is of compos mentis. Under the delusion test, an insane person believes in a state of things, the existence of which no rational person would believe. A person acts under an irresistible impulse when, by reason of duress or mental disease, he has lost the power to choose between right and wrong, to avoid the act in question, his free agency being at the time destroyed. Under the right and wrong test, a person is insane when he suffers from such perverted condition of the mental and moral faculties as to render him incapable of distinguishing between right and wrong. (See 44 C.J.S. 2) So far, under our jurisdiction, there has been no case that lays down a definite test or criterion for insanity. However, We can apply as test or criterion the definition of insanity under Section 1039 of the Revised Administrative Code, which states that insanity is "a manifestation in language or conduct, of disease or defect of the brain, or a more or less permanently diseased or disordered condition of the mentality, functional or organic, and characterized by perversion, inhibition, or by disordered function of the sensory or of the intellective faculties, or by impaired or disordered volition." Insanity as defined above is evinced by a deranged and perverted condition of the mental faculties which is manifested in language or conduct. An insane person has no full and clear understanding of the nature and consequence of his act. Thus, insanity may be shown by surrounding circumstances fairly throwing light on the subject, such as evidence of the alleged deranged person's general conduct and appearance, his acts and conduct inconsistent with his previous character and habits, his irrational acts and beliefs, and his improvident bargains. Evidence of insanity must have reference to the mental condition of the person whose sanity is in issue, at the very time of doing the act which is the subject of inquiry. However, it is permissible to receive evidence of his mental condition for a reasonable period both before and after the time of the act in question. Direct testimony is not required nor the specific acts of derangement essential to establish insanity as a defense. The vagaries of the mind can only be known by outward acts: thereby we read the thoughts, motives and emotions of a person; a nd through which we determine whether his acts conform to the practice of people of sound mind. (People v. Bonoan, 64 Phil. 87)

In the case at bar, defense's expert witnesses, who are doctors of the National Center for Mental Health, concluded that the accused was suffering from psychosis or insanity classified under organic mental disorder secondary to cerebro-vascular accident or stroke before, during and after the commission of the crime charged. (Exhibit L, p. 4). Accordingly, the mental illness of the accused was characterized by perceptual disturbances manifested through impairment of judgment and impulse control, impairment of memory and disorientation, and hearing of strange voices. The accused allegedly suffered from psychosis which was organic. The defect of the brain, therefore, is permanent. Dr. Echavez, defense's expert witness, admitted that the insanity of the accused was permanent and did not have a period for normal thinking. To quote Q Is there such a lucid intervals? A In this case, considering the nature of the organic mental disorder, the lucid intervals unfortunately are not present, sir. (TSN, p. 36, August 2, 1988) However, Dr. Echavez disclosed that the manifestation or the symptoms of psychosis may be treated with medication. (TSN, p. 26, August 2, 1988). Thus, although the defect of the brain is permanent, the manifestation of insanity is curable. Dr. Echavez further testified that the accused was suffering from psychosis since January of 1987, thus: Q In your assessment of the patient, did you determine the length of time the patient has been mentally ill? A From his history, the patient started (sic) or had a stroke abroad. If I may be allowed to scan my record, the record reveals that the patient had a stroke in Riyadh about seven (7) months before his contract expired and he was brought home. Sometime in January of 1987, the first manifestation is noted on the behavioral changes. He was noted to be in deep thought, pre-occupied self, complaining of severe headache, deferment of sleep and loss of appetite; and that was about January of 1987, Sir. (TSN, pp. 21-22, August 2, 1988) The defense reposed their arguments on the findings of the doctors of the National Center for Mental Health, specifically on Dr. Echavez's assessment that the accused has been insane since January of 1987 or three (3) months before the commission of the crime charged. The doctors arrived at this conclusion based on the testimonies of the accused's wife and relatives, and after a series of medical and psychological examinations on the accused when he was confined therein. However, We are still in quandary as to whether the accused was really insane or not during the commission of the offense. The prosecution aptly rebutted the defense proposition, that the accused, though he may be insane, has no lucid intervals. It is an undisputed fact that a month or few weeks prior to the commission of the crime charged the accused confronted the husband of the victim concerning the actuations of the latter. He complained against the various requirements being asked by the DAR office, particularly against the victim. We quote hereunder the testimony of Atty. Rodolfo C. Sigua: Q In the latter part of February 1987 do you remember having met the accused Rosalino Dungo? A Yes, sir. Q Where? A At our residence, sir, at San Vicente, Apalit, Pampanga. Q Could you tell us what transpired in the latter part of February 1987, when you met the accused at your residence? A Accused went to our residence. When I asked him what he wanted, accused told me that he wanted to know from my wife why she was asking so many documents: why she was requiring him to be interviewed and file the necessary documents at the Office of the DAR. Furthermore, he wanted to know why my wife did not want to transfer the Certificate of Land Transfer of the landholding of his deceased father in his name. xxx xxx xxx Q When the accused informed you in the latter part of February 1987 that your wife the late Belen Macalino Sigua was making hard for him the transfer of the right of his father, what did you tell him? A I asked the accused, "Have you talked or met my wife? Why are you asking this question of me?" Q What was his answer? A Accused told me that he never talked nor met my wife but sent somebody to her office to make a request for the transfer of the landholding in the name of his deceased father in his name. Q When you informed him about the procedure of the DAR, what was the comment of the accused? A The accused then said, "I now ascertained that she is making things difficult for the transfer of the landholding in the name of my father and my name." (TSN, pp. 5-7, April 22, 1987) If We are to believe the contention of the defense, the accused was supposed to be mentally ill during this confrontation. However, it is not usual for an insane person to confront a specified person who may have wronged him. Be it noted that the accused was supposed to be suffering from impairment of the memory, We infer from this confrontation that the accused was aware of his acts. This event proves that the accused was not insane or if insane, his insanity admitted of lucid intervals. The testimony of defense witness Dr. Nicanor Echavez is to the effect that the appellant could have been aware of the nature of his act at the time he committed it. To quote: Q Could you consider a person who is undergoing trial, not necessarily the accused, when asked by the Court the whereabouts of his lawyer he answered that his lawyer is not yet in Court and that he is waiting for his counsel to appear and because his counsel did not appear, he asked for the postponement of the hearing of the case and to reset the same to another date. With those facts, do you consider him insane? A I cannot always say that he is sane or insane, sir. Q In other words, he may be sane and he may be insane? A Yes, sir. COURT :Q How about if you applied this to the accused, what will be your conclusion? A Having examined a particular patient, in this particular case, I made a laboratory examination, in short all the assessment necessary to test the behavior of the patient, like for example praying for postponement and fleeing from the scene of the crime is one situation to

consider if the patient is really insane or not. If I may elaborate to explain the situation of the accused, the nature of the illness, the violent behavior, then he appears normal he can reason out and at the next moment he burst out into violence regardless motivated or unmotivated. This is one of the difficulties we have encountered in this case. When we deliberated because when we prepared this case we have really deliberation with all the members of the medical staff so those are the things we considered. Like for example he shouted out "Napatay ko si Mrs. Sigua!" at that particular moment he was aware of what he did, he knows the criminal case. COURT : Q With that statement of yours that he was aware when he shouted that he killed the victim in this case, Mrs. Sigua, do we get it that he shouted those words because he was aware when he did the act? A The fact that he shouted, Your Honor, awareness is there. (TSN, pp. 37-41, August 2, 1983; emphasis supplied) Insanity in law exists when there is a complete deprivation of intelligence. The statement of one of the expert witnesses presented by the defense, Dr. Echavez, that the accused knew the nature of what he had done makes it highly doubtful that accused was insane when he committed the act charged. As stated by the trial court: The Court is convinced that the accused at the time that he perpetrated the act was sane. The evidence shows that the accused, at the time he perpetrated the act was carrying an envelope where the fatal weapon was hidden. This is an evidence that the accused consciously adopted a pattern to kill the victim. The suddenness of the attack classified the killing as treacherous and therefore murder. After the accused ran away from the scene of the incident after he stabbed the victim several times, he was apprehended and arrested in Metro Manila, an indication that he took flight in order to evade arrest. This to the mind of the Court is another indicia that he was conscious and knew the consequences of his acts in stabbing the victim (Rollo, p. 63) There is no ground to alter the trial court's findings and appreciation of the evidence presented. (People v. Claudio, 160 SCRA 646). The trial court had the privilege of examining the deportment and demeanor of the witnesses and therefore, it can discern if such witnesses were telling the truth or not. Generally, in criminal cases, every doubt is resolved in favor of the accused. However, in the defense of insanity, doubt as to the fact of insanity should be resolved in fervor of sanity. The burden of proving the affirmative allegation of insanity rests on the defense. Thus: In considering the plea of insanity as a defense in a prosecution for crime, the starting premise is that the law presumes all persons to be of sound mind. (Art. 800, Civil Code: U.S. v. Martinez, 34 Phil. 305) Otherwise stated, the law presumes all acts to be voluntary, and that it is improper to presume that acts were done unconsciously (People v. Cruz, 109 Phil. 288). . . . Whoever, therefore, invokes insanity as a defense has the burden of proving its existence. (U.S. v. Zamora, 52 Phil. 218) (People v. Aldemita, 145 SCRA 451) The quantum of evidence required to overthrow the presumption of sanity is proof beyond reasonable doubt. Insanity is a defense in a confession and avoidance and as such must be proved beyond reasonable doubt. Insanity must be clearly and satisfactorily proved in order to acquit an accused on the ground of insanity. Appellant has not successfully discharged the burden of overcoming the presumption that he committed the crime as charged freely, knowingly, and intelligently. Lastly, the State should guard against sane murderer escaping punishment through a general plea of insanity. (People v. Bonoan, supra) PREMISES CONSIDERED, the questioned decision is hereby AFFIRMED without costs. SO ORDERED. G.R. No. 1265 April 18, 1903 EVARISTO PAYNAGA, petitioner-appellee, vs.GEORGE N. WOLFE, Warden of Bilibid Prison, respondent-appellant. COOPER, J.: The petitioner, Evaristo Paynaga, applied to the Hon. B.S. Ambler, judge of the Court of First Instance, for a writ of habeas corpus, and states in his application that he is unlawfully detained and imprisoned by George N. Wolfe, Warden of Bilibid Prison, in the city of Manila. On the 5th day of January, 1898, the petitioner was convicted and sentenced by the Spanish authorities to two years' imprisonment for the crime of desertion from the Spanish army. He made his escape on the 18th day of October, 1898, and was rearrested on the 20th day of January, 1903. The answer to the petition and the commitment show that the petitioner had been sentenced by ordinary court-martial to two years' prision correccional militar and that he should commence to serve his sentence on January 5, 1898. The petitioner claims that he comes within the provisions of the proclamation of amnesty and pardon issued by the President of the United States on the 4th day of July, 1902, and prays for his discharge under the same. The judge of the Court of First Instance, after hearing the case, decidd that the petitoner came within the amnesty proclamation, and directed that, upon taking the oath of allegiance required by the proclamation, he be discharged from custody. An appeal has been taken by Government from this decision. It is contended by counsel for the petitoner that Act No. 654, providing for appeals in habeas corpus proceedngs, is in the nature of an ex post facto law, and that having been enacted subsequent to petitioner's right to petition for habeas corpus, this appeal should not be entertained. In the decison of this court in the case of Frank Mekin vs. George N. Wolfe, rendered on the 27th of March, 1903, 1 this question was passed upon by this court, and it was there held that habeas corpus is a civil proceeding brought to enforce a civil right, and is entirely distinct from the criminal proceedings under which the prisoner has been tried and convicted, and that the doctrine off ex post facto law can not be applied to the case.

The Amnesty Proclamation grants a full and complete pardon and amnesty to all persons in the Philippine Archipelago who have pzrticipated in the insurrection against the authority and sovereignty of the Kingdom of spain at divers times from August, 1896, until the cession of the Archipelago by that Kingdom to the United States, and those engaged in the insurrection against the authority and sovereignty of the United States, or who have given aid and copmfort to persons participating in said insurrection, "for the offenses of treason or sedition, and for all offenses political in their character committed in the course of such insurrection pursuant to orders issued by the civil, military, or insurrectionary authorities or wich grew out of internal political feuds or dissensions between Filipinos and Spaniards or the Spanish authorities or which resulted from internal political feuds or dissensions among the Filipinos themselves during either of said insurrections." There is no claim whatever that the defendant participated in either of these insurrections, nor that the charcter of the offense for which he was convicted was of the nature embraced in the proclamation. He was convicted of desertion, a violation of the laws pertaining to the military establishment of spain. The defendant clearly is not entitled to the benefits of the Amnesty Proclamation. It is not a case of this Government trying and convicting a person charged with desertion from the Spanish army. The defendant was convicted during the Spanish sovereignty of the offense of desertion, and is simply serving out his sentence for that offense. Article XII of the Treaty of Peace between the United States and spain provides that judgments rendered in criminal matters before the date of the treaty "shall be deemed to be final, and shall be executed in due form by competent authority in the territory within which such judgment should be carried out." Under this clause of the treaty, it is incumbent upon this government to execute the judgment in this case. The judgment of the Court of First Instance directing the discharge of the prisoner from custody is reversed and the petitioner is remanded to the custody of the respondent, to be kept in his charge until the expiration of the term for which the petitioner has been sentenced. The costs of proceedings is adjudged against the petitioner. G.R. No. L-29169 August 19, 1968 ROGER CHAVEZ, petitioner, vs. THE HONORABLE COURT OF APPEALS, THE PEOPLE OF THE PHILIPPINES and THE WARDEN OF THE CITY JAIL OF MANILA, respondents. SANCHEZ, J.: The thrust of petitioner's case presented in his original and supplementary petitions invoking jurisdiction of this Court is that he is entitled, on habeas corpus, to be freed from imprisonment upon the ground that in the trial which resulted in his conviction1 he was denied his constitutional right not to be compelled to testify against himself. There is his prayer, too, that, should he fail in this, he be granted the alternative remedies of certiorari to strike down the two resolutions of the Court of Appeals dismissing his appeal for failure to file brief, and of mandamus to direct the said court to forward his appeal to this Court for the reason that he was raising purely questions of law. The indictment in the court below the third amended information upon which the judgment of conviction herein challenged was rendered, was for qualified theft of a motor vehicle, one (1) Thunderbird car, Motor No. H9YH-143003, with Plate No. H-16648 Pasay City '62 together with its accessories worth P22,200.00. Accused were the following: Petitioner herein, Roger Chavez, Ricardo Sumilang alias "Romeo Vasquez", Edgardo P. Pascual alias "Ging" Pascual, Pedro Rebullo alias "Pita", Luis Asistio alias "Baby" Asistio, Lorenzo Meneses alias "Lory" Meneses, Peter Doe, Charlie Doe and Paul Doe.2 Averred in the aforesaid information was that on or about the 14th day of November, 1962, in Quezon City, the accused conspired, with intent of gain, abuse of confidence and without the consent of the owner thereof, Dy Sun Hiok y Lim, in asporting the motor vehicle above-described. Upon arraignment, all the accused, except the three Does who have not been identified nor apprehended, pleaded not guilty.1wph1.t On July 23, 1963, trial commenced before the judge presiding Branch IX of the Court of First Instance of Rizal in Quezon City. The trial opened with the following dialogue, which for the great bearing it has on this case, is here reproduced:. COURT: The parties may proceed. FISCAL GRECIA: Our first witness is Roger Chavez [one of the accused]. ATTY. CARBON [Counsel for petitioner Chavez]: I am quite taken by surprise, as counsel for the accused Roger Chavez, with this move of the Fiscal in presenting him as his witness. I object. COURT: On what ground, counsel? . ATTY. CARBON: On the ground that I have to confer with my client. It is really surprising that at this stage, without my being notified by the Fiscal, my client is being presented as witness for the prosecution. I want to say in passing that it is only at this very moment that I come to know about this strategy of the prosecution. COURT (To the Fiscal): You are not withdrawing the information against the accused Roger Chavez by making [him a] state witness?. FISCAL GRECIA: I am not making him as state witness, Your Honor. I am only presenting him as an ordinary witness. ATTY. CARBON: As a matter of right, because it will incriminate my client, I object. COURT: The Court will give counsel for Roger Chavez fifteen minutes within which to confer and explain to his client about the giving of his testimony. xxx xxx xxx COURT: [after the recess] Are the parties ready? . FISCAL:We are ready to call on our first witness, Roger Chavez. ATTY. CARBON:

As per understanding, the proceeding was suspended in order to enable me to confer with my client. I conferred with my client and he assured me that he will not testify for the prosecution this morning after I have explained to him the consequences of what will transpire. COURT: What he will testify to does not necessarily incriminate him, counsel. And there is the right of the prosecution to ask anybody to act as witness on the witness-stand including the accused. If there should be any question that is incriminating then that is the time for counsel to interpose his objection and the court will sustain him if and when the court feels that the answer of this witness to the question would incriminate him. Counsel has all the assurance that the court will not require the witness to answer questions which would incriminate him. But surely, counsel could not object to have the accused called on the witnessstand. ATTY. CARBON: I submit. xxx xxx xxx ATTY. CRUZ [Counsel for defendants Pascual and Meneses]: . MAY IT PLEASE THE COURT: This incident of the accused Roger Chavez being called to testify for the prosecution is something so sudden that has come to the knowledge of this counsel. This representation has been apprised of the witnesses embraced in the information. For which reason I pray this court that I be given at least some days to meet whatever testimony this witness will bring about. I therefore move for postponement of today's hearing. COURT:The court will give counsel time within which to prepare his cross-examination of this witness. ATTY. CRUZ: I labored under the impression that the witnesses for the prosecution in this criminal case are those only listed in the information. I did not know until this morning that one of the accused will testify as witness for the prosecution. COURT: That's the reason why the court will go along with counsels for the accused and will give them time within which to prepare for their cross-examination of this witness. The court will not defer the taking of the direct examination of the witness. Call the witness to the witness stand. EVIDENCE FOR THE PROSECUTION ROGER CHAVEZ, 31 years old, single, buy and sell merchant, presently detained at the Manila Police Department headquarters, after being duly sworn according to law, declared as follows: ATTY. IBASCO [Counsel for defendant Luis Asistio]: WITH THE LEAVE OF THE COURT: This witness, Roger Chavez is one of the accused in this case No. Q-5311. The information alleges conspiracy. Under Rule 123, Section 12, it states: 'The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration.' COURT: That is premature, counsel. Neither the court nor counsels for the accused know what the prosecution events to establish by calling this witness to the witness stand. ATTY. IBASCO:I submit. COURT: The Fiscal may proceed.3 And so did the trial proceed. It began with the "direct examination" of Roger Chavez by "Fiscal Grecia". Came the judgment of February 1, 1965. The version of the prosecution as found by the court below may be briefly narrated as follows: A few days before November 12, 1962, Roger Chavez saw Johnson Lee, a Chinese, driving a Thunderbird car. With Ricardo Sumilang (movie actor Romeo Vasquez) in mind, whom he knew was in the market for such a car, Chavez asked Lee whether his car was for sale. Lee answered affirmatively and left his address with Chavez. Then, on November 12, Chavez met Sumilang at a barbershop informed him about the Thunderbird. But Sumilang said that he had changed his mind about buying a new car. Instead, he told Chavez that he wanted to mortgage his Buick car for P10,000.00 to cover an indebtedness in Pasay City. Upon the suggestion of Chavez, they went to see Luis Asistio, who he knew was lending money on car mortgages and who, on one occasion, already lent Romeo Vasquez P3,000.00 on the same Buick car. Asistio however told the two that he had a better idea on how to raise the money. His plan was to capitalize on Romeo Vasquez'

reputation as a wealthy movie star, introduce him as a buyer to someone who was selling a car and, after the deed of sale is signed, by trickery to run away with the car. Asistio would then register it, sell it to a third person for a profit. Chavez known to be a car agent was included in the plan. He furnished the name of Johnson Lee who was selling his Thunderbird. 1wph1.t In the morning of November 14, Chavez telephoned Johnson Lee and arranged for an appointment. Sometime in the afternoon. Chavez and Sumilang met Lee in his Thunderbird on Highway 54. Sumilang was introduced as the interested buyer. Sumilang's driver inspected the car, took the wheel for a while. After Sumilang and Lee agreed on the purchase price (P21.000.00), they went to Binondo to Johnson Lee's cousin, Dy Sun Hiok, in whose name the car was registered. Thereafter, they went to see a lawyer notary public in Quezon City, known to Chavez for the drafting of the deed of sale. After the deed of sale was drawn up, it was signed by Sumilang as the vendee, Dy Sun Hiok the vendor, and Sumilang's driver and Johnson Lee the witnesses thereto. As payment was to be made at Eugene's restaurant in Quezon City, all of them then drove in the Thunderbird car to that place. The deed of sale and other papers remained in the pockets of Johnson Lee. At Eugene's, a man approached Sumilang with a note which stated that the money was ready at the Dalisay Theater. Sumilang then wrote on the same note that the money should be brought to the restaurant. At the same time he requested Lee to exhibit the deed of sale of the car to the note bearer.4 Then, the two Chinese were left alone in the restaurant. For Sumilang, who had left the table to pose for pictures with some fans and come back, again left never to return. So did Chavez, who disappeared after he left on the pretext of buying cigarettes. The two Chinese could not locate Sumilang and Chavez. They went out to the place where the Thunderbird was parked, found that it was gone. They then immediately reported its loss to the police. Much later, the NBI recovered the already repainted car and impounded it. Right after the meeting at Eugene's, Chavez, Sumilang and Asistio converged that same day at Barrio Fiesta, a restaurant at Highway 54 near the Balintawak monument in Caloocan. There, Asistio handed to Sumilang P1,000.00 cash and a golf set worth P800.00 as the latter's share in the transaction. On the 14th of November, the registration of the car was transferred in the name of Sumilang in Cavite City, and three days later, in the name of Asistio in Caloocan. From the court's decision, Ricardo Sumilang's version, corroborated in part by Asistio, may be condensed as follows: In the last week of September, 1962, Sumilang saw Roger Chavez at a gas station. The latter informed him that there was a Thunderbird from Clark Field for sale for a price between P20,000.00 and P22,000.00. Chavez said that it could be held for him with a down payment of P10,000.00. To raise this sum, Sumilang and Chavez, on October 1, went to the house of a certain Nena Hernaez de los Reyes who wrote out a check for P5,000.00 as a loan to Sumilang. That check was exhibited in court. Sumilang and Chavez then went to Pasay City to see a certain Mario Baltazar, an agent of the Pasay City Mayor, and Narsing Cailles, Chief of the Fire Department. Sumilang asked the two for a P10,000-loan backed up by the P5,000.00-check aforesaid on condition that it should not be cashed immediately as there were not enough funds therefor. Baltazar and Cailles agreed to give the money the nextday as long as the check would be left with them and Sumilang would sign a promissory note for P10,000.00. Baltazar later informed Sumilang that Chavez picked up the money the next day. Four or five days afterwards, Chavez returned P4,000.00 to Sumilang because P6,000.00 was enough for the deposit. And so, Sumilang gave back the P4,000.00 to Baltazar. About the end of October or at the beginning of November, Chavez asked Sumilang for another P3,000.00. Sumilang sent Chavez to Baltazar and Cailles, with a note requesting that they accommodate him once more. He also sent a check, again without funds. Baltazar gave the money after verifying the authenticity of the note. On November 14, Chavez appeared at Sumilang's house with the news that the car was ready if Sumilang was ready with the rest of the money. So Sumilang got P9,000.00 from his mother and another P4,000.00 from his aparador. He immediately gave P6,000.00 to Chavez, intending to pay out the balance upon the car's delivery. It was then that Chavez told Sumilang that the car was already bought by a Chinese who would be the vendor. The purchase price finally agreed upon between Sumilang and Johnson Lee was P21,000.00, plus P500.00 agents commission at the expense of the buyer. Sumilang told Lee that he already paid part of the price to Chavez. At Eugene's, Chavez asked Sumilang for the balance. Sumilang accommodated. There, Sumilang, also saw a friend, "Ging" Pascual. In the course of their conversation at the bar, Sumilang mentioned the proposed transaction thru Chavez. Pascual warned that Chavez was a "smart" agent and advised that Sumilang should have a receipt for his money. A certain Bimbo, a friend of Pascual, offered to make out a receipt for Chavez to sign. After Sumilang returned from posing for some photographs with some of his fans, Bimbo showed him the receipt already signed by Chavez. Sumilang requested Pascual and Bimbo to sign the receipt as witnesses. And they did. This receipt was offered as an exhibit by the prosecution and by Sumilang. When Sumilang was ready to leave Eugene's, Johnson Lee turned over to him the deed of sale, the registration papers and the keys to the car. After shaking hands with Lee, Sumilang drove away in the car with his driver at the wheel. Two or three days afterwards, Sumilang dropped by the Barrio Fiesta on his way to a film shooting at Bulacan. He saw Asistio with many companions. Asistio liked his Thunderbird parked outside. Asistio offered to buy it from him for P22,500.00. As the offer was good, and knowing Asistio's and his friends' reputation for always getting what they wanted, Sumilang consented to the sale. Asistio tendered a down payment of P1,000.00; the balance he promised to pay the next day after negotiating with some financing company. Before said balance could be paid, the car was impounded.

The trial court gave evidence to Sumilang's averment, strengthened by Baltazar's and Cailles' corroborations, that he paid good money for the car. Sumilang was thus cleared. So was Asistio whom the trial court believed to be a mere buyer of the car. And so, the prosecution's theory of conspiracy was discounted. As to the other accused, the court found no case against Pedro Rebullo alias "Pita" and Lorenzo Meneses alias "Lory". The accused "Ging" Pascual was also acquitted for in the first place he was not identified by Johnson Lee in court. As to Roger Chavez, however, the court had this to say: "Roger Chavez does not offer any defense. As a matter of fact, his testimony as witness for the prosecution establishes his guilt beyond reasonable doubt."5 The trial court branded him "a self-confessed culprit".6 The court further continued: It is not improbable that true to the saying that misery loves company Roger Chavez tried to drag his co-accused down with him by coloring his story with fabrications which he expected would easily stick together what with the newspaper notoriety of one and the sensationalism caused by the other. But Roger Chavez' accusations of Asistio's participation is utterly uncorroborated. And coming, as it does, from a man who has had at least two convictions for acts not very different from those charged in this information, the Court would be too gullible if it were to give full credence to his words even if they concerned a man no less notorious than himself.7 The trial court then came to the conclusion that if Johnson Lee was not paid for his car, he had no one but Roger Chavez to blame. The sum of all these is that the trial court freed all the accused except Roger Chavez who was found guilty beyond reasonable doubt of the crime of qualified theft. He was accordingly sentenced to suffer an indeterminate penalty of not less than ten (10) years, one (1) day, as minimum and not more than fourteen (14) years, eight (8) months and one (1) day as maximum, to indemnify Dy Sun Hiok and/or Johnson Lee in the sum of P21,000.00 without subsidiary imprisonment in case of insolvency, to undergo the accessory penalties prescribed by law, and to pay the costs. The Thunderbird car then in the custody of the NBI was ordered to be turned over to Ricardo Sumilang, who was directed to return to Asistio the sum of P1,000.00 unless the latter chose to pay P21,500.00, representing the balance of the contract price for the car. The foregoing sentence was promulgated on March 8, 1965. Roger Chavez appealed to the Court of Appeals. On April 18, 1968, the Court of Appeals required Atty. Natividad Marquez, counsel for Roger Chavez, to show cause within ten days from notice why Chavez' appeal should not be considered abandoned and dismissed. Reason for this is that said lawyer received notice to file brief on December 28, 1967 and the period for the filing thereof lapsed on January 27, 1968 without any brief having been filed. On May 13, 1968, Atty. Marquez registered a detailed written explanation. She also stated that if she were allowed to file appellant's brief she would go along with the factual findings of the court below but will show however that its conclusion is erroneous.8 On May 14, 1968, the Court of Appeals, despite the foregoing explanation, resolved to dismiss the appeal. A move to reconsider was unavailing. For, on June 21, 1968, the Court of Appeals, through a per curiam resolution, disposed to maintain its May 14 resolution dismissing the appeal, directed the City Warden of Manila where Chavez is confined by virtue of the warrant of arrest issued by the Court of Appeals, to turn him over to Muntinlupa Bilibid Prisons pending execution of the judgment below, and ordered remand of the case to the Quezon City court for execution of judgment. It was at this stage that the present proceedings were commenced in this Court. Upon the petitions, the return, and the reply, and after hearing on oral arguments, we now come to grips with the main problem presented. We concentrate attention on that phase of the issues which relates petitioner's assertion that he was compelled to testify against himself. For indeed if this one question is resolved in the affirmative, we need not reach the others; in which case, these should not be pursued here. 1. Petitioner's plea on this score rests upon his averment, with proof, of violation of his right constitutionally entrenched against selfincrimination. He asks that the hand of this Court be made to bear down upon his conviction; that he be relieved of the effects thereof. He asks us to consider the constitutional injunction that "No person shall be compelled to be a witness against himself,"9 fully echoed in Section 1, Rule 115, Rules of Court where, in all criminal prosecutions, the defendant shall be entitled: "(e) To be exempt from being a witness against himself." . It has been said that forcing a man to be a witness against himself is at war with "the fundamentals of a republican government"; 10 that [i]t may suit the purposes of despotic power but it can not abide the pure atmosphere of political liberty and personal freedom."11 Mr. Justice Abad Santos recounts the historical background of this constitutional inhibition, thus: " "The maxim Nemo tenetur seipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which has long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, was not uncommon even in England. While the admissions of confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the questions put to him may assume an inquisitorial character, the temptation to press, the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition. The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly embedded in English, as well as in American jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the states, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment." (Brown vs. Walker, 161 U.S., 591, 597; 40 Law. ed., 819, 821)." 12 Mr. Justice Malcolm, in expressive language, tells us that this maxim was recognized in England in the early days "in a revolt against the thumbscrew and the rack." 13 An old Philippine case [1904] 14 speaks of this constitutional injunction as "older than the Government of the

United States"; as having "its origin in a protest against the inquisitorial methods of interrogating the accused person"; and as having been adopted in the Philippines "to wipe out such practices as formerly prevailed in these Islands of requiring accused persons to submit to judicial examinations, and to give testimony regarding the offenses with which they were charged." So it is then that this right is "not merely a formal technical rule the enforcement of which is left to the discretion of the court"; it is mandatory; it secures to a defendant a valuable and substantive right; 15 it is fundamental to our scheme of justice. Just a few months ago, the Supreme Court of the United States (January 29, 1968), speaking thru Mr. Justice Harlan warned that "[t]he constitutional privilege was intended to shield the guilty and imprudent as well as the innocent and foresighted." 16 It is in this context that we say that the constitutional guarantee may not be treated with unconcern. To repeat, it is mandatory; it secures to every defendant a valuable and substantive right. Taada and Fernando (Constitution of the Philippines, 4th ed., vol. I, pp. 583-584) take note of U.S. vs. Navarro, supra, which reaffirms the rule that the constitutional proscription was established on broad grounds of public policy and humanity; of policy because it would place the witness against the strongest temptation to commit perjury, and of humanity because it would be to extort a confession of truth by a kind of duress every species and degree of which the law abhors. 17 Therefore, the court may not extract from a defendant's own lips and against his will an admission of his guilt. Nor may a court as much as resort to compulsory disclosure, directly or indirectly, of facts usable against him as a confession of the crime or the tendency of which is to prove the commission of a crime. Because, it is his right to forego testimony, to remain silent, unless he chooses to take the witness stand with undiluted, unfettered exercise of his own free, genuine will. Compulsion as it is understood here does not necessarily connote the use of violence; it may be the product of unintentional statements. Pressure which operates to overbear his will, disable him from making a free and rational choice, or impair his capacity for rational judgment would in our opinion be sufficient. So is moral coercion "tending to force testimony from the unwilling lips of the defendant." 18 2. With the foregoing as guideposts, we now turn to the facts. Petitioner is a defendant in a criminal case. He was called by the prosecution as the first witness in that case to testify for the People during the first day of trial thereof. Petitioner objected and invoked the privilege of selfincrimination. This he broadened by the clear cut statement that he will not testify. But petitioner's protestations were met with the judge's emphatic statement that it "is the right of the prosecution to ask anybody to act as witness on the witness stand including the accused," and that defense counsel "could not object to have the accused called on the witness stand." The cumulative impact of all these is that accusedpetitioner had to take the stand. He was thus peremptorily asked to create evidence against himself. The foregoing situation molds a solid case for petitioner, backed by the Constitution, the law, and jurisprudence. Petitioner, as accused, occupies a different tier of protection from an ordinary witness. Whereas an ordinary witness may be compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is shot at him, 19 and accused may altogether refuse to take the witness stand and refuse to answer any and all questions. 20 For, in reality, the purpose of calling an accused as a witness for the People would be to incriminate him. 21 The rule positively intends to avoid and prohibit the certainly inhuman procedure of compelling a person "to furnish the missing evidence necessary for his conviction." 22 This rule may apply even to a co-defendant in a joint trial.23 And the guide in the interpretation of the constitutional precept that the accused shall not be compelled to furnish evidence against himself "is not the probability of the evidence but it is the capability of abuse." 24 Thus it is, that it was undoubtedly erroneous for the trial judge to placate petitioner with these words:. What he will testify to does not necessarily incriminate him, counsel. And there is the right of the prosecution to ask anybody to act as witness on the witness-stand including the accused. If there should be any question that is incriminating then that is the time for counsel to interpose his objection and the court will sustain him if and when the court feels that the answer of this witness to the question would incriminate him. Counsel has all the assurance that the court will not require the witness to answer questions which would incriminate him. But surely, counsel could not object to have the accused called on the witness stand. Paraphrasing Chief Justice Marshall in Aaron Burr's Trial, Robertsons Rep. I, 208, 244, quoted in VIII Wigmore, p. 355, 25 While a defendant's knowledge of the facts remains concealed within his bosom, he is safe; but draw it from thence, and he is exposed" to conviction. The judge's words heretofore quoted "But surely counsel could not object to have the accused called on the witness stand" wielded authority. By those words, petitioner was enveloped by a coercive force; they deprived him of his will to resist; they foreclosed choice; the realities of human nature tell us that as he took his oath to tell the truth, the whole truth and nothing but the truth, no genuine consent underlay submission to take the witness stand. Constitutionally sound consent was absent. 3. Prejudice to the accused for having been compelled over his objections to be a witness for the People is at once apparent. The record discloses that by leading questions Chavez, the accused, was made to affirm his statement given to the NBI agents on July 17, 1963 at 5:00 o'clock in the afternoon. 26 And this statement detailed the plan and execution thereof by Sumilang (Vasquez), Asistio and himself to deprive the Chinese of his Thunderbird car. And he himself proceeded to narrate the same anew in open court. He identified the Thunderbird car involved in the case. 27 The decision convicting Roger Chavez was clearly of the view that the case for the People was built primarily around the admissions of Chavez himself. The trial court described Chavez as the "star witness for the prosecution". Indeed, the damaging facts forged in the decision were drawn directly from the lips of Chavez as a prosecution witness and of course Ricardo Sumilang for the defense. There are the unequivocal statements in the decision that "even accused Chavez" identified "the very same Thunderbird that Johnson Lee had offered for sale"; that

Chavez "testimony as witness for the prosecution establishes his guilt beyond reasonable doubt and that Chavez is "a self-confessed culprit". 1wph1.t 4. With all these, we have no hesitancy in saying that petitioner was forced to testify to incriminate himself, in full breach of his constitutional right to remain silent. It cannot be said now that he has waived his right. He did not volunteer to take the stand and in his own defense; he did not offer himself as a witness; on the contrary, he claimed the right upon being called to testify. If petitioner nevertheless answered the questions inspite of his fear of being accused of perjury or being put under contempt, this circumstance cannot be counted against him. His testimony is not of his own choice. To him it was a case of compelled submission. He was a cowed participant in proceedings before a judge who possessed the power to put him under contempt had he chosen to remain silent. Nor could he escape testifying. The court made it abundantly clear that his testimony at least on direct examination would be taken right then and thereon the first day of the trial. It matters not that, after all efforts to stave off petitioner's taking the stand became fruitless, no objections to questions propounded to him were made. Here involve is not a mere question of self-incrimination. It is a defendant's constitutional immunity from being called to testify against himself. And the objection made at the beginning is a continuing one. 1wph1.t There is therefore no waiver of the privilege. "To be effective, a waiver must be certain and unequivocal, and intelligently, understandably, and willingly made; such waiver following only where liberty of choice has been fully accorded. After a claim a witness cannot properly be held to have waived his privilege on vague and uncertain evidence." 28 The teaching in Johnson vs. Zerbst 29 is this: "It has been pointed out that "courts indulge every reasonable presumption against waiver" of fundamental constitutional rights and that we "do not presume acquiescence in the loss of fundamental rights." A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege." Renuntiatio non praesumitur. The foregoing guidelines, juxtaposed with the circumstances of the case heretofore adverted to, make waiver a shaky defense. It cannot stand. If, by his own admission, defendant proved his guilt, still, his original claim remains valid. For the privilege, we say again, is a rampart that gives protection - even to the guilty. 30 5. The course which petitioner takes is correct. Habeas corpus is a high prerogative writ. 31 It is traditionally considered as an exceptional remedy to release a person whose liberty is illegally restrained such as when the accused's constitutional rights are disregarded. 32 Such defect results in the absence or loss of jurisdiction 33 and therefore invalidates the trial and the consequent conviction of the accused whose fundamental right was violated. 34 That void judgment of conviction may be challenged by collateral attack, which precisely is the function of habeas corpus. 35 This writ may issue even if another remedy which is less effective may be availed of by the defendant. 36 Thus, failure by the accused to perfect his appeal before the Court of Appeals does not preclude a recourse to the writ. 37 The writ may be granted upon a judgment already final. 38 For, as explained in Johnson vs. Zerbst, 39 the writ of habeas corpus as an extraordinary remedy must be liberally given effect 40 so as to protect well a person whose liberty is at stake. The propriety of the writ was given the nod in that case, involving a violation of another constitutional right, in this wise: Since the Sixth Amendment constitutionally entitles one charged with crime to the assistance of Counsel, compliance with this constitutional mandate is an essential jurisdictional prerequisite to a Federal Court's authority. When this right is properly waived, the assistance of Counsel is no longer a necessary element of the Court's jurisdiction to proceed to conviction and sentence. If the accused, however, is not represented by Counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his liberty. A court's jurisdiction at the beginning of trial may be lost "in the course of the proceedings" due to failure to complete the court as the Sixth Amendment requires by providing Counsel for an accused who is unable to obtain Counsel, who has not intelligently waived this constitutional guaranty, and whose life or liberty is at stake. If this requirement of the Sixth Amendment is not complied with, the court no longer has jurisdiction to proceed. The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release of habeas corpus. 41 Under our own Rules of Court, to grant the remedy to the accused Roger Chavez whose case presents a clear picture of disregard of a constitutional right is absolutely proper. Section 1 of Rule 102 extends the writ, unless otherwise expressly provided by law, "to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any pers on is withheld from the person entitled thereto. Just as we are about to write finis to our task, we are prompted to restate that: "A void judgment is in legal effect no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars any one. All acts performed under it and all claims flowing out of it are void. The parties attempting to enforce it may be responsible as trespassers. ... " 42 6. Respondents' return 43 shows that petitioner is still serving under a final and valid judgment of conviction for another offense. We should guard against the improvident issuance of an order discharging a petitioner from confinement. The position we take here is that petitioner herein is entitled to liberty thru habeas corpus only with respect to Criminal Case Q-5311 of the Court of First Instance of Rizal, Quezon City Branch, under which he was prosecuted and convicted. Upon the view we take of this case, judgment is hereby rendered directing the respondent Warden of the City Jail of Manila or the Director of Prisons or any other officer or person in custody of petitioner Roger Chavez by reason of the judgment of the Court of First Instance of Rizal, Quezon City Branch, in Criminal Case Q-5311, entitled "People of the Philippines, plaintiff, vs. Ricardo Sumilang, et al., accused," to discharge said Roger Chavez from custody, unless he is held, kept in custody or detained for any cause or reason other than the said judgment in said Criminal Case Q-5311 of the Court of First Instance of Rizal, Quezon City Branch, in which event the discharge herein directed shall be effected when such other cause or reason ceases to exist. No costs. So ordered.

G.R. No. 167193 April 19, 2006 IN THE MATTER OF THE PETITION FOR HABEAS CORPUS ENGR. ASHRAF KUNTING, Petitioner. AZCUNA, J.:

This is a petition for the issuance of a writ of habeas corpus directing Police Chief Superintendent Ismael R. Rafanan and General Robert Delfin,1 Philippine National Police (PNP) Intelligence Chief, to bring petitioner Ashraf Kunting before this Court and show cause why he is illegally detained. The antecedents are as follows: On October 19, 2001, petitioner Kunting was arrested in Malaysia for violation of the Malaysian Internal Security Act. On June 12, 2003, the Royal Malaysian Police in Kuala Lumpur, Malaysia, turned over Kunting to the PNP-IG and Task Force Salinglahi pursuant to warrants for his arrest issued by the Regional Trial Court (RTC) of Isabela City, Basilan, Branch 2, Ninth Judicial Region. Kunting was charged with four counts of Kidnapping for Ransom and Serious Illegal Detention with the RTC under separate Amended Informations, docketed as Criminal Case Nos. 3674-1187, 3537-1129, 3608-1164, and 3611-1165. Petitioner was immediately flown to the Philippines and brought to the PNP-IG at Camp Crame for booking and custodial investigation. In a letter dated July 3, 2003, Atty. Guillermo G. Danipog, Jr., Police Superintendent and Chief of the Legal Affairs Division, PNP-IG, informed the Branch Clerk of Court of the RTC that Kunting was already in the custody of the PNP-IG. Atty. Danipog requested for Kuntings temporary detention at the PNP-IG, Camp Crame, Quezon City due to the high security risks involved and prayed for the issuance of a corresponding commitment order. In a letter dated July 9, 2003, Emilio F. Enriquez, Acting Clerk of Court of the RTC, replied to the request of Atty. Danipog, thus: xxx The undersigned referred the matter to Hon. Danilo M. Bucoy, Presiding Judge of this Court, who issued the Alias Warrant of Arrest in the herein mentioned case (Criminal Case No. 3674-1187) and per his instruction, accused As[h]raf Kunting y Barreto [may be] temporarily detained thereat by virtue of the Alias Warrant of Arrest issued in this case, however considering that the accused is a high security risk, he should be brought to Isabela, Basilan as soon as the necessary security escort can be provided for his transfer, where the proper commitment order can be issued as the herein mentioned case is about to be submitted by the prosecution. Thank you ever so much for your usual cooperation extended to the Court.2 On September 15, 2003, the RTC issued an Order directing the Police Superintendent and Chief, Legal Affairs Division, PNP-IG, to immediately turn over Kunting to the trial court since Kunting filed an Urgent Motion for Reinvestigation. On November 5, 2003, PNP-IG Director Arturo C. Lomibao wrote a letter to Chief State Prosecutor Jovencito R. Zuo, Department of Justice (DOJ), requesting for representation and a motion to be filed for the transfer of the venue of the trial from Isabela City, Basilan to Pasig City, for the following reasons: (1) Several intelligence reports have been received by the PNP-IG stating that utmost effort will be exerted by the Abu Sayyaf Group (ASG) to recover the custody of Kunting from the PNP considering his importance to the ASG; and (2) there is a big possibility that Kunting may be recovered by the ASG if he will be detained in Basilan due to inadequate security facility in the municipal jail and its proximity to the area of operation of the ASG. On August 13, 2004, the RTC rendered a decision against petitioners co-accused in the consolidated Criminal Case Nos. 3608-1164, 35371129, 3674-1187, and 3611-1165, finding 17 of the accused, who were tried, guilty of the crime/s charged. On February 11, 2005, the RTC issued an Order denying Kuntings Motion to Set Case for Preliminary Investigation since the PNP-IG has not turned over Kunting. The trial court reiterated its Order dated September 15, 2003, directing the Police Superintendent and Chief, Legal Affairs Division, PNP-IG, to turn over Kunting to the court.1avvphil.net In a letter dated February 22, 2005, Police Chief Superintendent Ismael R. Rafanan reiterated the request to Chief State Prosecutor Jovencito R. Zuo to facilitate the transfer of the venue of the trial of Kuntings case, citing the same grounds in the previous letter. He added that if Kunting had been transferred to Isabela City, Basilan, he could have been one of the escapees in a jail break that occurred on April 10, 2004 as suspected ASG members were able to go scot-free. On March 15, 2005, Police Inspector Amado L. Barbasa, Jr., OIC, Legal Affairs Division, PNP-IG, filed with the RTC a Motion to Defer Implementation of the Order dated February 11, 2005, citing, among other grounds, the existence of a pending motion for the transfer of the venue of the trial of Criminal Case No. 3537-1129 against Kunting, which was allegedly filed by the DOJ before this Court. Police Inspector Barbasa prayed that the Order of the RTC dated February 11, 2005, directing the turnover of Kunting to the court, be suspended until the motion for the transfer of venue is resolved. On March 14, 2005, Kunting, by counsel, filed this petition for the issuance of a writ of habeas corpus. Kunting stated that he has been restrained of his liberty since June 12, 2003 by the PNP-IG led by Police Chief Superintendent Ismael Rafanan and assisted by PNP Intelligence Chief, General Robert Delfin. He alleged that he was never informed of the charges filed against him until he requested his family to research in Zamboanga City. It was discovered in the RTC of Isabela City, Basilan that his name appeared in the list of accused who allegedly participated in the kidnapping incident which occurred on June 2, 2001 in Lamitan, Basilan. Kunting asserted that he never participated in the kidnapping incident, so he promptly filed an Urgent Motion for Reinvestigation on September 8, 2003. He was aware that the PNP-IG requested Chief State Prosecutor Jovencito R. Zuo for representation to file a motion with this Court for the transfer of venue of his case from Isabela City, Basilan to Pasig City. Having no further information on the status of his case, he filed a Motion to Set Case for Preliminary Investigation on January 26, 2005. He stated that since no action was taken by the trial court or the DOJ, he filed this petition to put an end to his illegal detention classified in the records as "for safekeeping purposes only."

The main issue is whether the petition for habeas corpus can prosper. Under Section 1, Rule 102 of the Rules of Court, the writ of habeas corpus extends to "all case of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto." The remedy of habeas corpus has one objective: to inquire into the cause of detention of a person,3 and if found illegal, the court orders the release of the detainee.4 If, however, the detention is proven lawful, then the habeas corpus proceedings terminate.5 Section 4, Rule 102 of the Rules of Court provides when the writ is not allowed: SEC. 4. When writ not allowed or discharge authorized.If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful judgment.6 In this case, Kuntings detention by the PNP-IG was under process issued by the RTC. He was arrested by the PNP by virtue of the alias order of arrest issued by Judge Danilo M. Bucoy, RTC, Branch 2, Isabela City, Basilan. His temporary detention at PNP-IG, Camp Crame, Quezon City, was thus authorized by the trial court.1avvphil.net Moreover, Kunting was charged with four counts of Kidnapping for Ransom and Serious Illegal Detention in Criminal Case Nos. 3608-1164, 3537-1129, 3674-1187, and 3611-1165. In accordance with the last sentence of Section 4 above, the writ cannot be issued and Kunting cannot be discharged since he has been charged with a criminal offense. Bernarte v. Court of Appeals7 holds that "once the person detained is duly charged in court, he may no longer question his detention by a petition for the issuance of a writ of habeas corpus." Nevertheless, this Court notes that the RTC in its Order dated February 11, 2005 reiterated its Order dated September 15, 2003, directing the Police Superintendent and Chief, Legal Affairs Division, PNP-IG, Camp Crame, Quezon City, to turn over Kunting to the court. TThe trial court has been waiting for two years for the PNP-IG to turn over the person of Kunting for the trial of his case. The PNP-IG has delayed the turn over because it is waiting for the DOJ to request for the transfer of venue of the trial of the case from Isabela City, Basilan to Pasig City. In the absence of evidence that the DOJ has indeed filed a motion for the transfer of venue, In its Comment, the Office of the Solicitor General stated that the PNP-IG is presently awaiting the resolution of the Motion for Transfer of Venue it requested from the DOJ. In this regard, t the Police Chief Superintendent is, therefore, directed to take positive steps towards action on said motion.comply with the Order of the trial court, dated February 11, 2005, to turn over the body of petitioner Kunting to the trial court.. WHEREFORE, the instant petition for habeas corpus is hereby DISMISSED. UDK-14071 July 17, 2009 MARTIN GIBBS FLETCHER, Petitioner, vs. THE DIRECTOR OF BUREAU OF CORRECTIONS or his representative, Respondent. CORONA, J.: Petitioner Martin Gibbs Fletcher seeks his release from prison in this petition for the issuance of the writ of habeas corpus. He claims that his prison sentence of 12 to 17 years was commuted by then President Fidel V. Ramos to nine to 12 years. Since he had already served 14 years, three months and 12 days, including his good conduct allowance, his continued imprisonment is illegal.1 In its return to the writ, the Office of the Solicitor General (OSG) posited that the petition should be denied for failure to comply with Section 3, Rule 102 of the Rules of Court. In particular, the petition was neither signed nor verified by petitioner or a person on his behalf or by his purported counsel. Moreover, it was not accompanied by a copy of the cause of petitioners detention or commitment order. The OSG further opposed the issuance of the writ on the following grounds: petitioners prison sentence was never commuted by then President Ramos; he had not been granted the status of a colonist; there were other pending cases against him warranting his continued detention2 and he was put under custody by virtue of a judicial process or a valid judgment. We disagree with the OSG insofar as it argues that the petition should be dismissed for failure to comply with Section 3, Rule 102 of the Rules of Court. Strict compliance with the technical requirements for a habeas corpus petition as provided in the Rules of Court may be dispensed with where the allegations in the application are sufficient to make out a case for habeas corpus. In Angeles v. Director of New Bilibid Prison,3 we held that the formalities required for petitions for habeas corpus shall be construed liberally. The petition for the writ is required to be verified but the defect in form is not fatal.4 Indeed, in the landmark case of Villavicencio v. Lukban,5 this Court declared that it is the duty of a court to issue the writ if there is evidence that a person is unjustly restrained of his liberty within its jurisdiction even if there is no application therefor. So long as this Court sits, technicality cannot trump liberty. Therefore, a petition which is deficient in form, such as petitioners petition-letter in this case, may be entertained so long as its allegations sufficiently make out a case for habeas corpus.6 The ultimate purpose of the writ of habeas corpus is to relieve a person from unlawful restraint.7 The writ exists as a speedy and effectual remedy to relieve persons from unlawful restraint and as an effective defense of personal freedom.8 Where the restraint of liberty is allegedly authored by the State, the very entity tasked to ensure the liberty of all persons (citizens and aliens alike) within its jurisdiction, courts must be vigilant in extending the habeas corpus remedy to one who invokes it. To strictly restrict the great writ of liberty to technicalities not only defeats the spirit that animates the writ but also waters down the precious right that the writ seeks to protect, the right to liberty. To dilute the remedy that guarantees protection to the right is to negate the right itself. Thus, the Court will not unduly confine the writ of habeas corpus in the prison walls of technicality. Otherwise, it will betray its constitutional mandate to promulgate rules concerning the protection and enforcement of constitutional rights.9 Nonetheless, we agree with the OSG that petitioner is not entitled to the issuance of the writ.

The writ of habeas corpus extends to all cases of illegal confinement or detention by which any person is deprived of his liberty.10 However, Section 4, Rule 102 of the Rules of Court provides: Sec. 4. When writ not allowed or discharge authorized. If it appears that the person to be restrained of his liberty is in the custody of an officer under process issued by a court or judge; or by virtue of a judgment or order of a court of record, and that court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful judgment. (emphasis supplied)1avvphi1 Plainly stated, the writ obtains immediate relief for those who have been illegally confined or imprisoned without sufficient cause. The writ, however, should not be issued when the custody over the person is by virtue of a judicial process or a valid judgment.11 It is undisputed that petitioner was convicted of estafa in Criminal Case No. 95-995.12 On June 24, 1996, he was sentenced to imprisonment of 12 years of prision mayor as minimum to 17 years and four months of reclusion temporal as maximum, with payment of actual damages of P102,235.56.13 Based on petitioners prison records,14 he began serving his sentence on July 24, 1997. He claims that after having served good conduct time allowance for 14 years, three months and 12 days,15 he should now be released from prison. We disagree. A convict may be released on parole after serving the minimum period of his sentence. However, the pendency of another criminal case is a ground for the disqualification of such convict from being released on parole.16 Unfortunately, petitioner is again on trial in Criminal Case No. 94-6988 for estafa.17 The case was filed as early as 1996 but he was arraigned only on October 6, 2008. He pleaded not guilty to the charge against him. Pre-trial was set on January 26, 2009.18 Clearly, he is disqualified from being released on parole and consequently must serve out the entirety of his sentence. We note the issuance of a warrant for petitioners arrest on March 8, 1996, the date he was first set for arraignment in Criminal Case No. 946988. Pursuant to Section 4, Rule 102 of the Rules of Court, the writ cannot be issued and petitioner cannot be discharged since he has been charged with another criminal offense.19 His continued detention is without doubt warranted under the circumstances. Petitioner asserts that his sentence in Criminal Case No. 95-995 was commuted by then President Ramos. However, he presented no proof of such commutation. Other than indorsements by the Chief Justice,20 Public Attorneys Office21 and Undersecretary of the Department of Justice,22 no document purporting to be the commutation of his sentence by then President Ramos was attached in his petition and in his subsequent missives to this Court. His barren claim of commutation therefore deserves scant consideration, lest we be accused of usurping the Presidents sole prerogative to commute petitioners sentence in Criminal Case No. 95-995.23 Having established that petitioners continued imprisonment is by virtue of a valid judgment and court process, we see no need to discuss petitioners other arguments. WHEREFORE, the petition is hereby DISMISSED. G.R. No. 153795 August 17, 2006 MA. ESTRELITA D. MARTINEZ, Petitioner, vs Director General LEANDRO MENDOZA, Chief Superintendent NESTORIO GUALBERTO, SR., Superintendent LEONARDO ESPINA, SR., Superintendent JESUS VERSOZA, and JOHN DOES, Respondents. PANGANIBAN, CJ.: When respondents deny custody of an allegedly detained person, petitioners have the duty of establishing the fact of detention by competent and convincing evidence; otherwise, the writ of habeas corpus cannot be issued. Nonetheless, when the disappearance of a person is indubitable, the law enforcement authorities are duty-bound to investigate it with due diligence and to locate the missing person. When the wrongdoing is attributable to the police agencies and/or their agents, the aggrieved may secure the assistance of the Peoples Law Enforcement Board or the Commission on Human Rights. The Case: Before us is a Petition for Review1 under Rule 45 of the Rules of Court, seeking to reverse the March 22, 2002 Decision2 and the May 30, 2002 Resolution3 of the Court of Appeals (CA) in CA-GR SP No. 68170. The assailed Decision disposed as follows: "WHEREFORE, the decision of the court a quo is REVERSED and the petition for habeas corpus is DISMISSED."4 The assailed Resolution denied reconsideration. The Facts The antecedent facts are narrated by the CA in this wise: "Petitioners are the mother and wife, respectively, of Michael Martinez, a resident of 4570 Cattleya Road, Sun Valley Subdivision, Paraaque City, who was allegedly abducted and taken away by seven (7) persons around 7:30 in the morning of November 19, 2001 while he was walking along Magnolia Street, on his way to his mother's house at 3891 Marigold Street of the same subdivision. The abduction was reported by petitioners to the Barangay, the Paraaque Police and the Anti-Kidnapping Task Force at Camp Crame. "It appears that in the evening of November 19, 2001, the Criminal Investigation and Detection Group (CIDG) of the Philippine National Police (PNP) presented before the media a certain Phillip Medel, Jr., who allegedly executed a statement confessing to his participation in the killing of Dorothy Jones, a.k.a. Nida Blanca, naming Michael Martinez as the person who introduced him to Rod Lauren Strunk, the husband of Nida Blanca and alleged mastermind in her killing. In a televised interview with a media reporter on November 26, 2001, Medel narrated that he saw Michael Martinez at the CIDG at Camp Crame where he was being detained, and which the former allegedly reiterated when he talked to Robert Paul Martinez, a brother of Michael, on November 27, 2001 and he even described the clothes Michael was then wearing, which were

the same clothes worn by him when he was abducted. Petitioners then made representations with CIDG for the release of Michael Martinez or that they be allowed to see him, but the same were not granted. "In view thereof, petitioners filed a petition for habeas corpus with the Regional Trial Court, Branch 78, Quezon City against respondents PNP Director General Leandro Mendoza; Chief Superintendent Nestorio Gualberto, Sr., Chief of the CIDG; Senior Superintendent Leonardo Espina, Sr. and Senior Superintendent Jesus Versoza of the CIDG and members of Task Force Marsha, which is investigating the Nida Blanca murder case, for them to produce before said court the person of Michael Martinez or to justify the continued detention of his liberty. "In an Order dated November 29, 2001, the court a quo set the petition for hearing on December 3, 2001 and directed respondents to show cause why the writ of habeas corpus should not issue. "At the hearing on December 3, 2001, respondents submitted a RETURN wherein they vehemently and categorically denied any participation or involvement in the alleged abduction or disappearance of Michael Martinez as the latter was never confined and detained by them or in their custody at any given time. Respondents thus prayed for the dismissal of the petition for habeas corpus. "At the hearing conducted by the court a quo, respondents reiterated their claim that Michael Martinez is not and was never in their custody. On the other hand, petitioners presented Phillip Medel, Jr. who insisted that he saw Michael Martinez inside a room at the CIDG where he was brought before midnight of November 19, 2001 or the wee hours of November 20, 2001, that Sr. Supts. Verzosa (sic) and Espina were also in said room and that the latter even boxed Michael in the stomach. "Finding that respondents denial pale beside Medel's positive assertion that Michael Martinez is in their custody, the court a quo, in a Decision dated December 10, 2001 directed respondents to produce the body of Michael Martinez before it on December 11, 2001 at 2:00 o'clock in the afternoon. A copy of said decision was received by respondents on December 10, 2001 "On December 11, 2001, respondents filed a notice of appeal on the ground that the Decision is contrary to law and the evidence."5 Ruling of the Court of Appeals: The CA agreed with the Office of the Solicitor General (OSG) that Medels credibility was highly suspect. The appellate court opined that he had contradicted himself as to material facts. Further negating his testimony was Superintendent Espinas positive testimony that he was at home between midnight of November 19, 2001, and early morning of November 20, 2001. The CA relied on the presumption of regularity in the performance of official duties. It held that, "[a]s aptly pointed out by respondents, the CIDG itself is equally concerned with the safety of Michael Martinez relative to the final resolution of the Nida Blanca slay. For he is definitely a vital witness to his case. The PNP-CIDG has no motive whatsoever to abduct him as it never did."6 Hence, this Petition.7 Issue Petitioner has failed to make a categorical statement of the issues for the Courts consideration. She has also failed to state what relief she prays for. Nonetheless, the Court will resolve the case on the issue of whether the CA erred in reversing the trial court and dismissing the Petition for habeas corpus. The Courts Ruling: The present Petition for Review has no merit. Sole Issue: Reversible Error of the Court of Appeals Petitioner contends that it is the evaluation of the RTC -- not the CA -- that should be upheld, because the trial court had the opportunity to observe the witnesses and to determine whether they were telling the truth when they testified. On the other hand, respondents aver that their candor and the veracity of their denial of the custody or detention of Michael cannot be doubted by the Court. Their argument is even strengthened in the face of the incredible and contradictory testimony of petitioners witness, Phillip Medel Jr. Propriety of Habeas Corpus At the outset, it must be stressed that petitioners anchor for the present case is the disappearance of Michael. The matter of his alleged detention is, at best, merely consequential to his disappearance. Ostensibly, his disappearance has been established. However, the grant of relief in a habeas corpus proceeding is not predicated on the disappearance of a person, but on his illegal detention. Habeas corpus generally applies to "all cases of illegal confinement or detention by which any person is deprived of his liberty or by which the rightful custody of any person is withheld from the person entitled thereto."8 Said this Court in another case: "The ultimate purpose of the writ of habeas corpus is to relieve a person from unlawful restraint. It is devised as a speedy relief from unlawful restraint. It is a remedy intended to determine whether the person under detention is held under lawful authority."9 If the respondents are neither detaining nor restraining the applicant or the person on whose behalf the petition for habeas corpus has been filed, then it should be dismissed. This Court has ruled that this remedy has one objective -- to inquire into the cause of detention of a person: "The purpose of the writ is to determine whether a person is being illegally deprived of his liberty. If the inquiry reveals that the detention is illegal, the court orders the release of the person. If, however, the detention is proven lawful, then the habeas corpus proceedings terminate. The use of habeas corpus is thus very limited."10 Habeas corpus may not be used as a means of obtaining evidence on the whereabouts of a person,11 or as a means of finding out who has specifically abducted or caused the disappearance of a certain person.

When respondents making the return of the writ state that they have never had custody over the person who is the subject of the writ, the petition must be dismissed, in the absence of definite evidence to the contrary. "The return of the writ must be taken on its face value considering that, unless it is in some way [convincingly] traversed or denied, the facts stated therein must be taken as true"12 for purposes of the habeas corpus proceedings. Forcible Taking and Disappearance When forcible taking and disappearance -- not arrest and detention -- have been alleged, the proper remedy is not habeas corpus proceedings, but criminal investigation and proceedings. Abduction or kidnapping is a crime punishable by law. Investigations with regard to crimes are first and foremost the duty of the Philippine National Police (PNP) and the National Bureau of Investigation (NBI), not the courts. There are instances when members of the PNP -- the agency tasked with investigating crimes -- are suspected of being responsible for the disappearance of a person, who is the subject of habeas corpus proceedings. This fact will not convert the courts into -- or authorize them through habeas corpus proceedings to be -- forefront investigators, prosecutors, judges and executioners all at the same time. Much as this Court would want to resolve these disappearances speedily -- as in the present case, when it is interested in determining who are responsible for the disappearance and detention of Michael (if, indeed, he is being detained) -- it would not want to step beyond its reach and encroach on the duties of other duly established agencies. Instead of rendering justice to all,13 it may render injustice if it resorts to shortcuts through habeas corpus proceedings. In fine, this proceeding for habeas corpus cannot be used as a substitute for a thorough criminal investigation. The Department of Interior and Local Government (DILG), specifically the Peoples Law Enforcement Board (PLEB),14 is tasked to investigate abuses or wrongdoings by members of the PNP. Thus, if they or the NBI abuse or fail to perform their duties, as indicated in this case, people may refer their complaints to the PLEB, which should be part of their arsenal in the battle to resolve cases in which members of the PNP are suspected of having caused the disappearance of anyone. Removing criminals from the ranks of those tasked to promote peace and order and to ensure public safety would be a big axe blow to the mighty oak of lawlessness. Let each citizen contribute a blow, puny though it may be when done alone; but collectively we can, slowly but surely, rid our society of disorder and senseless disappearances. Going back to the present case, petitioner must establish by competent and convincing evidence that the missing person, on whose behalf the Petition was filed, is under the custody of respondents. Unfortunately, her evidence is insufficient to convince the Court that they have Michael in their custody. Moreover, "a writ of habeas corpus should not issue where it is not necessary to afford the petitioner relief or where it would be ineffective."15 Considering that respondents have persistently denied having Michael in their custody, and absent any decisive proof to rebut their denial, the Court is constrained to affirm the CAs dismissal of the Petition for habeas corpus. In view of the established fact of Michaels suspiciously felonious disappearance, we exhort the NBI and the National Anti-Kidnapping Task Force (NAKTAF) to continue their investigation into the matter, so that all persons responsible can be prosecuted for whatever crime they have committed. WHEREFORE, the Petition is DENIED, and the assailed Decision and Resolution of the Court of Appeals are AFFIRMED. No costs in this instance. Let a copy of this Decision be furnished the Commission on Human Rights and the Department of Interior and Local Government for appropriate action. SO ORDERED. G.R. No. L-14639 March 25, 1919 ZACARIAS VILLAVICENCIO, ET AL., petitioners, vs. JUSTO LUKBAN, ET AL., respondents. MALCOLM, J.: The annals of juridical history fail to reveal a case quite as remarkable as the one which this application for habeas corpus submits for decision. While hardly to be expected to be met with in this modern epoch of triumphant democracy, yet, after all, the cause presents no great difficulty if there is kept in the forefront of our minds the basic principles of popular government, and if we give expression to the paramount purpose for which the courts, as an independent power of such a government, were constituted. The primary question is Shall the judiciary permit a government of the men instead of a government of laws to be set up in the Philippine Islands? Omitting much extraneous matter, of no moment to these proceedings, but which might prove profitable reading for other departments of the government, the facts are these: The Mayor of the city of Manila, Justo Lukban, for the best of all reasons, to exterminate vice, ordered the segregated district for women of ill repute, which had been permitted for a number of years in the city of Manila, closed. Between October 16 and October 25, 1918, the women were kept confined to their houses in the district by the police. Presumably, during this period, the city authorities quietly perfected arrangements with the Bureau of Labor for sending the women to Davao, Mindanao, as laborers; with some government office for the use of the coastguard cutters Corregidor and Negros, and with the Constabulary for a guard of soldiers. At any rate, about midnight of October 25, the police, acting pursuant to orders from the chief of police, Anton Hohmann and the Mayor of the city of Manila, Justo Lukban, descended upon the houses, hustled some 170 inmates into patrol wagons, and placed them aboard the steamers that awaited their arrival. The women were given no opportunity to collect their belongings, and apparently were under the impression that they were being taken to a police station for an investigation. They had no knowledge that they were destined for a life in Mindanao. They had not been asked if they wished to depart from that region and had neither directly nor indirectly given their consent to the deportation. The involuntary guests were received on board the steamers by a representative of the Bureau of Labor and a detachment of Constabulary soldiers. The two steamers with their unwilling passengers sailed for Davao during the night of October 25. The vessels reached their destination at Davao on October 29. The women were landed and receipted for as laborers by Francisco Sales, provincial governor of Davao, and by Feliciano Yigo and Rafael Castillo. The governor and the hacendero Yigo, who appear as parties in the case, had no previous notification that the women were prostitutes who had been expelled from the city of Manila. The further happenings to

these women and the serious charges growing out of alleged ill-treatment are of public interest, but are not essential to the disposition of this case. Suffice it to say, generally, that some of the women married, others assumed more or less clandestine relations with men, others went to work in different capacities, others assumed a life unknown and disappeared, and a goodly portion found means to return to Manila. To turn back in our narrative, just about the time the Corregidor and the Negros were putting in to Davao, the attorney for the relatives and friends of a considerable number of the deportees presented an application for habeas corpus to a member of the Supreme Court. Subsequently, the application, through stipulation of the parties, was made to include all of the women who were sent away from Manila to Davao and, as the same questions concerned them all, the application will be considered as including them. The application set forth the salient facts, which need not be repeated, and alleged that the women were illegally restrained of their liberty by Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, and by certain unknown parties. The writ was made returnable before the full court. The city fiscal appeared for the respondents, Lukban and Hohmann, admitted certain facts relative to sequestration and deportation, and prayed that the writ should not be granted because the petitioners were not proper parties, because the action should have been begun in the Court of First Instance for Davao, Department of Mindanao and Sulu, because the respondents did not have any of the women under their custody or control, and because their jurisdiction did not extend beyond the boundaries of the city of Manila. According to an exhibit attached to the answer of the fiscal, the 170 women were destined to be laborers, at good salaries, on the haciendas of Yigo and Governor Sales. In open court, the fiscal admitted, in answer to question of a member of the court, that these women had been sent out of Manila without their consent. The court awarded the writ, in an order of November 4, that directed Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Francisco Sales, governor of the province of Davao, and Feliciano Yigo, an hacendero of Davao, to bring before the court the persons therein named, alleged to be deprived of their liberty, on December 2, 1918. Before the date mentioned, seven of the women had returned to Manila at their own expense. On motion of counsel for petitioners, their testimony was taken before the clerk of the Supreme Court sitting as commissioners. On the day named in the order, December 2nd, 1918, none of the persons in whose behalf the writ was issued were produced in court by the respondents. It has been shown that three of those who had been able to come back to Manila through their own efforts, were notified by the police and the secret service to appear before the court. The fiscal appeared, repeated the facts more comprehensively, reiterated the stand taken by him when pleading to the original petition copied a telegram from the Mayor of the city of Manila to the provincial governor of Davao and the answer thereto, and telegrams that had passed between the Director of Labor and the attorney for that Bureau then in Davao, and offered certain affidavits showing that the women were contained with their life in Mindanao and did not wish to return to Manila. Respondents Sales answered alleging that it was not possible to fulfill the order of the Supreme Court because the women had never been under his control, because they were at liberty in the Province of Davao, and because they had married or signed contracts as laborers. Respondent Yigo answered alleging that he did not have any of the women under his control and that therefore it was impossible for him to obey the mandate. The court, after due deliberation, on December 10, 1918, promulgated a second order, which related that the respondents had not complied with the original order to the satisfaction of the court nor explained their failure to do so, and therefore directed that those of the women not in Manila be brought before the court by respondents Lukban, Hohmann, Sales, and Yigo on January 13, 1919, unless the women should, in written statements voluntarily made before the judge of first instance of Davao or the clerk of that court, renounce the right, or unless the respondents should demonstrate some other legal motives that made compliance impossible. It was further stated that the question of whether the respondents were in contempt of court would later be decided and the reasons for the order announced in the final decision. Before January 13, 1919, further testimony including that of a number of the women, of certain detectives and policemen, and of the provincial governor of Davao, was taken before the clerk of the Supreme Court sitting as commissioner and the clerk of the Court of First Instance of Davao acting in the same capacity. On January 13, 1919, the respondents technically presented before the Court the women who had returned to the city through their own efforts and eight others who had been brought to Manila by the respondents. Attorneys for the respondents, by their returns, once again recounted the facts and further endeavored to account for all of the persons involved in the habeas corpus. In substance, it was stated that the respondents, through their representatives and agents, had succeeded in bringing from Davao with their consent eight women; that eighty-one women were found in Davao who, on notice that if they desired they could return to Manila, transportation fee, renounced the right through sworn statements; that fifty-nine had already returned to Manila by other means, and that despite all efforts to find them twenty-six could not be located. Both counsel for petitioners and the city fiscal were permitted to submit memoranda. The first formally asked the court to find Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez and Fernando Ordax, members of the police force of the city of Manila, Feliciano Yigo, an hacendero of Davao, Modesto Joaquin, the attorney for the Bureau of Labor, and Anacleto Diaz, fiscal of the city of Manila, in contempt of court. The city fiscal requested that the replica al memorandum de los recurridos, (reply to respondents' memorandum) dated January 25, 1919, be struck from the record. In the second order, the court promised to give the reasons for granting the writ of habeas corpus in the final decision. We will now proceed to do so. One fact, and one fact only, need be recalled these one hundred and seventy women were isolated from society, and then at night, without their consent and without any opportunity to consult with friends or to defend their rights, were forcibly hustled on board steamers for transportation to regions unknown. Despite the feeble attempt to prove that the women left voluntarily and gladly, that such was not the case is shown by the mere fact that the presence of the police and the constabulary was deemed necessary and that these officers of the law chose the shades of night to cloak their secret and stealthy acts. Indeed, this is a fact impossible to refute and practically admitted by the respondents. With this situation, a court would next expect to resolve the question By authority of what law did the Mayor and the Chief of Police presume to act in deporting by duress these persons from Manila to another distant locality within the Philippine Islands? We turn to the statutes and we find Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act of congress. The Governor-General can order the eviction of undesirable aliens after a hearing from the Islands. Act No. 519 of the Philippine Commission and section 733 of the Revised Ordinances of the city of Manila provide for the conviction and punishment by a court of justice of any person who is a common prostitute. Act No. 899 authorizes the return of any citizen of the United States, who may have been convicted of vagrancy, to the homeland. New York and other States have statutes providing for the commitment to the House of Refuge of women convicted of being common prostitutes. Always a

law! Even when the health authorities compel vaccination, or establish a quarantine, or place a leprous person in the Culion leper colony, it is done pursuant to some law or order. But one can search in vain for any law, order, or regulation, which even hints at the right of the Mayor of the city of Manila or the chief of police of that city to force citizens of the Philippine Islands and these women despite their being in a sense lepers of society are nevertheless not chattels but Philippine citizens protected by the same constitutional guaranties as are other citizens to change their domicile from Manila to another locality. On the contrary, Philippine penal law specifically punishes any public officer who, not being expressly authorized by law or regulation, compels any person to change his residence. In other countries, as in Spain and Japan, the privilege of domicile is deemed so important as to be found in the Bill of Rights of the Constitution. Under the American constitutional system, liberty of abode is a principle so deeply imbedded in jurisprudence and considered so elementary in nature as not even to require a constitutional sanction. Even the Governor-General of the Philippine Islands, even the President of the United States, who has often been said to exercise more power than any king or potentate, has no such arbitrary prerog ative, either inherent or express. Much less, therefore, has the executive of a municipality, who acts within a sphere of delegated powers. If the mayor and the chief of police could, at their mere behest or even for the most praiseworthy of motives, render the liberty of the citizen so insecure, then the presidents and chiefs of police of one thousand other municipalities of the Philippines have the same privilege. If these officials can take to themselves such power, then any other official can do the same. And if any official can exercise the power, then all persons would have just as much right to do so. And if a prostitute could be sent against her wishes and under no law from one locality to another within the country, then officialdom can hold the same club over the head of any citizen. Law defines power. Centuries ago Magna Charta decreed that "No freeman shall be taken, or imprisoned, or be disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we pass upon him nor condemn him, but by lawful judgment of his peers or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right." (Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1 eng. stat. at Large, 7.) No official, no matter how high, is above the law. The courts are the forum which functionate to safeguard individual liberty and to punish official transgressors. "The law," said Justice Miller, delivering the opinion of the Supreme Court of the United States, "is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives." (U.S. vs. Lee [1882], 106 U.S., 196, 220.) "The very idea," said Justice Matthews of the same high tribunal in another case, "that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself." (Yick Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All this explains the motive in issuing the writ of habeas corpus, and makes clear why we said in the very beginning that the primary question was whether the courts should permit a government of men or a governm ent of laws to be established in the Philippine Islands. What are the remedies of the unhappy victims of official oppression? The remedies of the citizen are three: (1) Civil action; (2) criminal action, and (3) habeas corpus. The first is an optional but rather slow process by which the aggrieved party may recoup money damages. It may still rest with the parties in interest to pursue such an action, but it was never intended effectively and promptly to meet any such situation as that now before us. As to criminal responsibility, it is true that the Penal Code in force in these Islands provides: Any public officer not thereunto authorized by law or by regulations of a general character in force in the Philippines who shall banish any person to a place more than two hundred kilometers distant from his domicile, except it be by virtue of the judgment of a court, shall be punished by a fine of not less than three hundred and twenty-five and not more than three thousand two hundred and fifty pesetas. Any public officer not thereunto expressly authorized by law or by regulation of a general character in force in the Philippines who shall compel any person to change his domicile or residence shall suffer the penalty of destierro and a fine of not less than six hundred and twenty-five and not more than six thousand two hundred and fifty pesetas. (Art. 211.) We entertain no doubt but that, if, after due investigation, the proper prosecuting officers find that any public officer has violated this provision of law, these prosecutors will institute and press a criminal prosecution just as vigorously as they have defended the same official in this action. Nevertheless, that the act may be a crime and that the persons guilty thereof can be proceeded against, is no bar to the instant proceedings. To quote the words of Judge Cooley in a case which will later be referred to "It would be a monstrous anomaly in the law if to an application by one unlawfully confined, ta be restored to his liberty, it could be a sufficient answer that the confinement was a crime, and therefore might be continued indefinitely until the guilty party was tried and punished therefor by the slow process of criminal procedure." (In the matter of Jackson [1867], 15 Mich., 416, 434.) The writ of habeas corpus was devised and exists as a speedy and effectual remedy to rel ieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom. Any further rights of the parties are left untouched by decision on the writ, whose principal purpose is to set the individual at liberty. Granted that habeas corpus is the proper remedy, respondents have raised three specific objections to its issuance in this instance. The fiscal has argued (l) that there is a defect in parties petitioners, (2) that the Supreme Court should not a assume jurisdiction, and (3) that the person in question are not restrained of their liberty by respondents. It was finally suggested that the jurisdiction of the Mayor and the chief of police of the city of Manila only extends to the city limits and that perforce they could not bring the women from Davao. The first defense was not presented with any vigor by counsel. The petitioners were relatives and friends of the deportees. The way the expulsion was conducted by the city officials made it impossible for the women to sign a petition for habeas corpus. It was consequently proper for the writ to be submitted by persons in their behalf. (Code of Criminal Procedure, sec. 78; Code of Civil Procedure, sec. 527.) The law, in its zealous regard for personal liberty, even makes it the duty of a court or judge to grant a writ of habeas corpus if there is evidence that within the court's jurisdiction a person is unjustly imprisoned or restrained of his liberty, though no application be made therefor. (Code of Criminal Procedure, sec. 93.) Petitioners had standing in court. The fiscal next contended that the writ should have been asked for in the Court of First Instance of Davao or should have been made returnable before that court. It is a general rule of good practice that, to avoid unnecessary expense and inconvenience, petitions for habeas

corpus should be presented to the nearest judge of the court of first instance. But this is not a hard and fast rule. The writ of habeas corpus may be granted by the Supreme Court or any judge thereof enforcible anywhere in the Philippine Islands. (Code of Criminal Procedure, sec. 79; Code of Civil Procedure, sec. 526.) Whether the writ shall be made returnable before the Supreme Court or before an inferior court rests in the discretion of the Supreme Court and is dependent on the particular circumstances. In this instance it was not shown that the Court of First Instance of Davao was in session, or that the women had any means by which to advance their plea before that court. On the other hand, it was shown that the petitioners with their attorneys, and the two original respondents with their attorney, were in Manila; it was shown that the case involved parties situated in different parts of the Islands; it was shown that the women might still be imprisoned or restrained of their liberty; and it was shown that if the writ was to accomplish its purpose, it must be taken cognizance of and decided immediately by the appellate court. The failure of the superior court to consider the application and then to grant the writ would have amounted to a denial of the benefits of the writ. The last argument of the fiscal is more plausible and more difficult to meet. When the writ was prayed for, says counsel, the parties in whose behalf it was asked were under no restraint; the women, it is claimed, were free in Davao, and the jurisdiction of the mayor and the chief of police did not extend beyond the city limits. At first blush, this is a tenable position. On closer examination, acceptance of such dictum is found to be perversive of the first principles of the writ of habeas corpus. A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient. The forcible taking of these women from Manila by officials of that city, who handed them over to other parties, who deposited them in a distant region, deprived these women of freedom of locomotion just as effectively as if they had been imprisoned. Placed in Davao without either money or personal belongings, they were prevented from exercising the liberty of going when and where they pleased. The restraint of liberty which began in Manila continued until the aggrieved parties were returned to Manila and released or until they freely and truly waived his right. Consider for a moment what an agreement with such a defense would mean. The chief executive of any municipality in the Philippines could forcibly and illegally take a private citizen and place him beyond the boundaries of the municipality, and then, when called upon to defend his official action, could calmly fold his hands and claim that the person was under no restraint and that he, the official, had no jurisdiction over this other municipality. We believe the true principle should be that, if the respondent is within the jurisdiction of the court and has it in his power to obey the order of the court and thus to undo the wrong that he has inflicted, he should be compelled to do so. Even if the pa rty to whom the writ is addressed has illegally parted with the custody of a person before the application for the writ is no reason why the writ should not issue. If the mayor and the chief of police, acting under no authority of law, could deport these women from the city of Manila to Davao, the same officials must necessarily have the same means to return them from Davao to Manila. The respondents, within the reach of process, may not be permitted to restrain a fellow citizen of her liberty by forcing her to change her domicile and to avow the act with impunity in the courts, while the person who has lost her birthright of liberty has no effective recourse. The great writ of liberty may not thus be easily evaded. It must be that some such question has heretofore been presented to the courts for decision. Nevertheless, strange as it may seem, a close examination of the authorities fails to reveal any analogous case. Certain decisions of respectable courts are however very persuasive in nature. A question came before the Supreme Court of the State of Michigan at an early date as to whether or not a writ of habeas corpus would issue from the Supreme Court to a person within the jurisdiction of the State to bring into the State a minor child under guardianship in the State, who has been and continues to be detained in another State. The membership of the Michigan Supreme Court at this time was notable. It was composed of Martin, chief justice, and Cooley, Campbell, and Christiancy, justices. On the question presented the court was equally divided. Campbell, J., with whom concurred Martin, C. J., held that the writ should be quashed. Cooley, J., one of the most distinguished American judges and law-writers, with whom concurred Christiancy, J., held that the writ should issue. Since the opinion of Justice Campbell was predicated to a large extent on his conception of the English decisions, and since, as will hereafter appear, the English courts have taken a contrary view, only the following eloquent passages from the opinion of Justice Cooley are quoted: I have not yet seen sufficient reason to doubt the power of this court to issue the present writ on the petition which was laid before us. . . . It would be strange indeed if, at this late day, after the eulogiums of six centuries and a half have been expended upon the Magna Charta, and rivers of blood shed for its establishment; after its many confirmations, until Coke could declare in his speech on the petition of right that "Magna Charta was such a fellow that he will have no sovereign," and after the extension of its benefits and securities by the petition of right, bill of rights and habeas corpus acts, it should now be discovered that evasion of that great clause for the protection of personal liberty, which is the life and soul of the whole instrument, is so easy as is claimed here. If it is so, it is important that it be determined without delay, that the legislature may apply the proper remedy, as I can not doubt they would, on the subject being brought to their notice. . . . The second proposition that the statutory provisions are confined to the case of imprisonment within the state seems to me to be based upon a misconception as to the source of our jurisdiction. It was never the case in England that the court of king's bench derived its jurisdiction to issue and enforce this writ from the statute. Statutes were not passed to give the right, but to compel the observance of rights which existed. ... The important fact to be observed in regard to the mode of procedure upon this writ is, that it is directed to and served upon, not the person confined, but his jailor. It does not reach the former except through the latter. The officer or person who serves it does not unbar the prison doors, and set the prisoner free, but the court relieves him by compelling the oppressor to release his constraint. The whole force of the writ is spent upon the respondent, and if he fails to obey it, the means to be resorted to for the purposes of compulsion are fine and imprisonment. This is the ordinary mode of affording relief, and if any other means are resorted to, they are only auxiliary to those which are usual. The place of confinement is, therefore, not important to the relief, if the guilty party is within reach of process, so that by the power of the court he can be compelled to release his grasp. The difficulty of affording redress is not increased by the confinement being beyond the limits of the state, except as greater distance may affect it. The important question is, where the power of control exercised? And I am aware of no other remedy. (In the matter of Jackson [1867], 15 Mich., 416.)

The opinion of Judge Cooley has since been accepted as authoritative by other courts. (Rivers vs. Mitchell [1881], 57 Iowa, 193; Breene vs. People [1911], Colo., 117 Pac. Rep., 1000; Ex parte Young [1892], 50 Fed., 526.) The English courts have given careful consideration to the subject. Thus, a child had been taken out of English by the respondent. A writ of habeas corpus was issued by the Queen's Bench Division upon the application of the mother and her husband directing the defendant to produce the child. The judge at chambers gave defendant until a certain date to produce the child, but he did not do so. His return stated that the child before the issuance of the writ had been handed over by him to another; that it was no longer in his custody or control, and that it was impossible for him to obey the writ. He was found in contempt of court. On appeal, the court, through Lord Esher, M. R., said: A writ of habeas corpus was ordered to issue, and was issued on January 22. That writ commanded the defendant to have the body of the child before a judge in chambers at the Royal Courts of Justice immediately after the receipt of the writ, together with the cause of her being taken and detained. That is a command to bring the child before the judge and must be obeyed, unless some lawful reason can be shown to excuse the nonproduction of the child. If it could be shown that by reason of his having lawfully parted with the possession of the child before the issuing of the writ, the defendant had no longer power to produce the child, that might be an answer; but in the absence of any lawful reason he is bound to produce the child, and, if he does not, he is in contempt of the Court for not obeying the writ without lawful excuse. Many efforts have been made in argument to shift the question of contempt to some anterior period for the purpose of showing that what was done at some time prior to the writ cannot be a contempt. But the question is not as to what was done before the issue of the writ. The question is whether there has been a contempt in disobeying the writ it was issued by not producing the child in obedience to its commands. (The Queen vs. Bernardo [1889], 23 Q. B. D., 305. See also to the same effect the Irish case of In re Matthews, 12 Ir. Com. Law Rep. [N. S.], 233; The Queen vs. Barnardo, Gossage's Case [1890], 24 Q. B. D., 283.) A decision coming from the Federal Courts is also of interest. A habeas corpus was directed to the defendant to have before the circuit court of the District of Columbia three colored persons, with the cause of their detention. Davis, in his return to the writ, stated on oath that he had purchased the negroes as slaves in the city of Washington; that, as he believed, they were removed beyond the District of Columbia before the service of the writ of habeas corpus, and that they were then beyond his control and out of his custody. The evidence tended to show that Davis had removed the negroes because he suspected they would apply for a writ of habeas corpus. The court held the return to be evasive and insufficient, and that Davis was bound to produce the negroes, and Davis being present in court, and refusing to produce them, ordered that he be committed to the custody of the marshall until he should produce the negroes, or be otherwise discharged in due course of law. The court afterwards ordered that Davis be released upon the production of two of the negroes, for one of the negroes had run away and been lodged in jail in Maryland. Davis produced the two negroes on the last day of the term. (United States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas. No. 14926. See also Robb vs. Connolly [1883], 111 U.S., 624; Church on Habeas, 2nd ed., p. 170.) We find, therefore, both on reason and authority, that no one of the defense offered by the respondents constituted a legitimate bar to the granting of the writ of habeas corpus. There remains to be considered whether the respondent complied with the two orders of the Supreme Court awarding the writ of habeas corpus, and if it be found that they did not, whether the contempt should be punished or be taken as purged. The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and Feliciano Yigo to present the persons named in the writ before the court on December 2, 1918. The order was dated November 4, 1918. The respondents were thus given ample time, practically one month, to comply with the writ. As far as the record discloses, the Mayor of the city of Manila waited until the 21st of November before sending a telegram to the provincial governor of Davao. According to the response of the attorney for the Bureau of Labor to the telegram of his chief, there were then in Davao women who desired to return to Manila, but who should not be permitted to do so because of having contracted debts. The half-hearted effort naturally resulted in none of the parties in question being brought before the court on the day named. For the respondents to have fulfilled the court's order, three optional courses were open: (1) They could have produced the bodies of the persons according to the command of the writ; or (2) they could have shown by affidavit that on account of sickness or infirmity those persons could not safely be brought before the court; or (3) they could have presented affidavits to show that the parties in question or their attorney waived the right to be present. (Code of Criminal Procedure, sec. 87.) They did not produce the bodies of the persons in whose behalf the writ was granted; they did not show impossibility of performance; and they did not present writings that waived the right to be present by those interested. Instead a few stereotyped affidavits purporting to show that the women were contended with their life in Davao, some of which have since been repudiated by the signers, were appended to the return. That through ordinary diligence a considerable number o f the women, at least sixty, could have been brought back to Manila is demonstrated to be found in the municipality of Davao, and that about this number either returned at their own expense or were produced at the second hearing by the respondents. The court, at the time the return to its first order was made, would have been warranted summarily in finding the respondents guilty of contempt of court, and in sending them to jail until they obeyed the order. Their excuses for the non-production of the persons were far from sufficient. The, authorities cited herein pertaining to somewhat similar facts all tend to indicate with what exactitude a habeas corpus writ must be fulfilled. For example, in Gossage's case, supra, the Magistrate in referring to an earlier decision of the Court, said: "We thought that, having brought about that state of things by his own illegal act, he must take the consequences; and we said that he was bound to use every effort to get the child back; that he must do much more than write letters for the purpose; that he must advertise in America, and even if necessary himself go after the child, and do everything that mortal man could do in the matter; and that the court would only accept clear proof of an absolute impossibility by way of excuse." In other words, the return did not show that every possible effort to produce the women was made by the respondents. That the court forebore at this time to take drastic action was because it did not wish to see presented to the public gaze the spectacle of a clash between executive officials and the judiciary, and because it desired to give the respondents another chance to demonstrate their good faith and to mitigate their wrong. In response to the second order of the court, the respondents appear to have become more zealous and to have shown a better spirit. Agents were dispatched to Mindanao, placards were posted, the constabulary and the municipal police joined in rounding up the women, and a steamer with free transportation to Manila was provided. While charges and counter-charges in such a bitterly contested case are to be expected, and while a critical reading of the record might reveal a failure of literal fulfillment with our mandate, we come to conclude that there

is a substantial compliance with it. Our finding to this effect may be influenced somewhat by our sincere desire to see this unhappy incident finally closed. If any wrong is now being perpetrated in Davao, it should receive an executive investigation. If any particular individual is still restrained of her liberty, it can be made the object of separate habeas corpus proceedings. Since the writ has already been granted, and since we find a substantial compliance with it, nothing further in this connection remains to be done. The attorney for the petitioners asks that we find in contempt of court Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez, and Fernando Ordax, members of the police force of the city of Manila, Modesto Joaquin, the attorney for the Bureau of Labor, Feliciano Yigo, an hacendero of Davao, and Anacleto Diaz, Fiscal of the city of Manila. The power to punish for contempt of court should be exercised on the preservative and not on the vindictive principle. Only occasionally should the court invoke its inherent power in order to retain that respect without which the administration of justice must falter or fail. Nevertheless when one is commanded to produce a certain person and does not do so, and does not offer a valid excuse, a court must, to vindicate its authority, adjudge the respondent to be guilty of contempt, and must order him either imprisoned or fined. An officer's failure to produce the body of a person in obedience to a writ of habeas corpus when he has power to do so, is a contempt committed in the face of t he court. (Ex parte Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N. C., 407.) With all the facts and circumstances in mind, and with judicial regard for human imperfections, we cannot say that any of the respondents, with the possible exception of the first named, has flatly disobeyed the court by acting in opposition to its authority. Respondents Hohmann, Rodriguez, Ordax, and Joaquin only followed the orders of their chiefs, and while, under the law of public officers, this does not exonerate them entirely, it is nevertheless a powerful mitigating circumstance. The hacendero Yigo appears to have been drawn into the case through a misconstruction by counsel of telegraphic communications. The city fiscal, Anacleto Diaz, would seem to have done no more than to fulfill his duty as the legal representative of the city government. Finding him innocent of any disrespect to the court, his counter-motion to strike from the record the memorandum of attorney for the petitioners, which brings him into this undesirable position, must be granted. When all is said and done, as far as this record discloses, the official who was primarily responsible for the unlawful deportation, who ordered the police to accomplish the same, who made arrangements for the steamers and the constabulary, who conducted the negotiations with the Bureau of Labor, and who later, as the head of the city government, had it within his power to facilitate the return of the unfortunate women to Manila, was Justo Lukban, the Mayor of the city of Manila. His intention to suppress the social evil was commendable. His methods were unlawful. His regard for the writ of habeas corpus issued by the court was only tardily and reluctantly acknowledged. It would be possible to turn to the provisions of section 546 of the Code of Civil Procedure, which relates to the penalty for disobeying the writ, and in pursuance thereof to require respondent Lukban to forfeit to the parties aggrieved as much as P400 each, which would reach to many thousands of pesos, and in addition to deal with him as for a contempt. Some members of the court are inclined to this stern view. It would also be possible to find that since respondent Lukban did comply substantially with the second order of the court, he has purged his contempt of the first order. Some members of the court are inclined to this merciful view. Between the two extremes appears to lie the correct finding. The failure of respondent Lukban to obey the first mandate of the court tended to belittle and embarrass the administration of justice to such an extent that his later activity may be considered only as extenuating his conduct. A nominal fine will at once command such respect without being unduly oppressive such an amount is P100. In resume as before stated, no further action on the writ of habeas corpus is necessary. The respondents Hohmann, Rodriguez, Ordax, Joaquin, Yigo, and Diaz are found not to be in contempt of court. Respondent Lukban is found in contempt of court and shall pay into the office of the clerk of the Supreme Court within five days the sum of one hundred pesos (P100). The motion of the fiscal of the city of Manila to strike from the record the Replica al Memorandum de los Recurridos of January 25, 1919, is granted. Costs shall be taxed against respondents. So ordered. In concluding this tedious and disagreeable task, may we not be permitted to express the hope that this decision may serve to bulwark the fortifications of an orderly government of laws and to protect individual liberty from illegal encroachment. G.R. No. 139789. May 12, 2000 ERLINDA K. ILUSORIO, petitioner, vs. ERLINDA I. BILDNER and SYLVIA K. ILUSORIO, JOHN DOE and JANE DOE, respondents. Mesm G.R. No. 139808. May 12, 2000 POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER, and SYLVIA ILUSORIO, petitioners, vs. COURT OF APPEALS and ERLINDA K. ILUSORIO, respondents. PARDO, J.: May a wife secure a writ of habeas corpus to compel her husband to live with her in conjugal bliss? The answer is no. Marital rights including coverture and living in conjugal dwelling may not be enforced by the extra-ordinary writ of habeas corpus. A writ of habeas corpus extends to all cases of illegal confinement or detention,1 or by which the rightful custody of a person is withheld from the one entitled thereto.2 Slx "Habeas corpus is a writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his capture and detention, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf."3 It is a high prerogative, common-law writ, of ancient origin, the great object of which is the liberation of those who may be imprisoned without sufficient cause.4 It is issued when one is deprived of liberty or is wrongfully prevented from exercising legal custody over another person.5 The petition of Erlinda K. Ilusorio6 is to reverse the decision7 of the Court of Appeals and its resolution8 dismissing the application for habeas corpus to have the custody of her husband, lawyer Potenciano Ilusorio and enforce consortium as the wife.

On the other hand, the petition of Potenciano Ilusorio9 is to annul that portion of the decision of the Court of Appeals giving Erlinda K. Ilusorio visitation rights to her husband and to enjoin Erlinda and the Court of Appeals from enforcing the visitation rights. The undisputed facts are as follows: Scslx Erlinda Kalaw Ilusorio is the wife of lawyer Potenciano Ilusorio. Potenciano Ilusorio is about 86 years of age possessed of extensive property valued at millions of pesos. For many years, lawyer Potenciano Ilusorio was Chairman of the Board and President of Baguio Country Club. On July 11, 1942, Erlinda Kalaw and Potenciano Ilusorio contracted matrimony and lived together for a period of thirty (30) years. In 1972, they separated from bed and board for undisclosed reasons. Potenciano lived at Urdaneta Condominium, Ayala Ave., Makati City when he was in Manila and at Ilusorio Penthouse, Baguio Country Club when he was in Baguio City. On the other hand, Erlinda lived in Antipolo City. Out of their marriage, the spouses had six (6) children, namely: Ramon Ilusorio (age 55); Erlinda Ilusorio Bildner (age 52); Maximo (age 50); Sylvia (age 49); Marietta (age 48); and Shereen (age 39). On December 30, 1997, upon Potencianos arrival from the United States, he stayed with Erlinda for about five (5) months in Antipolo City. The children, Sylvia and Erlinda (Lin), alleged that during this time, their mother gave Potenciano an overdose of 200 mg instead of 100 mg Zoloft, an antidepressant drug prescribed by his doctor in New York, U.S.A. As a consequence, Potencianos health deteriorated. On February 25, 1998, Erlinda filed with the Regional Trial Court, Antipolo City a petition10 for guardianship over the person and property of Potenciano Ilusorio due to the latters advanced age, frail health, poor eyesight and impaired judgment. On May 31, 1998, after attending a corporate meeting in Baguio City, Potenciano Ilusorio did not return to Antipolo City and instead lived at Cleveland Condominium, Makati. Slxsc On March 11, 1999, Erlinda filed with the Court of Appeals a petition for habeas corpus to have the custody of lawyer Potenciano Ilusorio. She alleged that respondents11 refused petitioners demands to see and visit her husband and prohibited Potenciano from returning to Antipolo City. After due hearing, on April 5, 1999, the Court of Appeals rendered decision the dispositive portion of which reads: "WHEREFORE, in the light of the foregoing disquisitions, judgment is hereby rendered: "(1) Ordering, for humanitarian consideration and upon petitioners manifestation, respondents Erlinda K. Ilusorio Bildner and Sylvia IlusorioYap, the administrator of Cleveland Condominium or anywhere in its place, his guards and Potenciano Ilusorios staff especially Ms. Aurora Montemayor to allow visitation rights to Potenciano Ilusorios wife, Erlinda Ilusorio and all her children, notwithstanding any list limiting visitors thereof, under penalty of contempt in case of violation of refusal thereof; xxx "(2) ORDERING that the writ of habeas corpus previously issued be recalled and the herein petition for habeas corpus be DENIED DUE COURSE, as it is hereby DISMISSED for lack of unlawful restraint or detention of the subject of the petition. "SO ORDERED."12 Hence, the two petitions, which were consolidated and are herein jointly decided. As heretofore stated, a writ of habeas corpus extends to all cases of illegal confinement or detention,13 or by which the rightful custody of a person is withheld from the one entitled thereto. It is available where a person continues to be unlawfully denied of one or more of his constitutional freedoms, where there is denial of due process, where the restraints are not merely involuntary but are unnecessary, and where a deprivation of freedom originally valid has later become arbitrary.14 It is devised as a speedy and effectual remedy to relieve persons from unlawful restraint, as the best and only sufficient defense of personal freedom.15 Jksm The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint, and to relieve a person therefrom if such restraint is illegal.16 To justify the grant of the petition, the restraint of liberty must be an illegal and involuntary deprivation of freedom of action.17 The illegal restraint of liberty must be actual and effective, not merely nominal or moral.18 The evidence shows that there was no actual and effective detention or deprivation of lawyer Potenciano Ilusorios liberty that would justify the issuance of the writ. The fact that lawyer Potenciano Ilusorio is about 86 years of age, or under medication does not necessarily render him mentally incapacitated. Soundness of mind does not hinge on age or medical condition but on the capacity of the individual to discern his actions. After due hearing, the Court of Appeals concluded that there was no unlawful restraint on his liberty. The Court of Appeals also observed that lawyer Potenciano Ilusorio did not request the administrator of the Cleveland Condominium not to allow his wife and other children from seeing or visiting him. He made it clear that he did not object to seeing them. As to lawyer Potenciano Ilusorios mental state, the Court of Appeals observed that he was of sound and alert mind, having answered all the relevant questions to the satisfaction of the court.

Being of sound mind, he is thus possessed with the capacity to make choices. In this case, the crucial choices revolve on his residence and the people he opts to see or live with. The choices he made may not appeal to some of his family members but these are choices which exclusively belong to Potenciano. He made it clear before the Court of Appeals that he was not prevented from leaving his house or seeing people. With that declaration, and absent any true restraint on his liberty, we have no reason to reverse the findings of the Court of Appeals. With his full mental capacity coupled with the right of choice, Potenciano Ilusorio may not be the subject of visitation rights against his free choice. Otherwise, we will deprive him of his right to privacy. Needless to say, this will run against his fundamental constitutional right. Es m The Court of Appeals exceeded its authority when it awarded visitation rights in a petition for habeas corpus where Erlinda never even prayed for such right. The ruling is not consistent with the finding of subjects sanity. When the court ordered the grant of visitation rights, it also emphasized that the same shall be enforced under penalty of contempt in case of violation or refusal to comply. Such assertion of raw, naked power is unnecessary. The Court of Appeals missed the fact that the case did not involve the right of a parent to visit a minor child but the right of a wife to visit a husband. In case the husband refuses to see his wife for private reasons, he is at liberty to do so without threat of any penalty attached to the exercise of his right. No court is empowered as a judicial authority to compel a husband to live with his wife. Coverture cannot be enforced by compulsion of a writ of habeas corpus carried out by sheriffs or by any other mesne process. That is a matter beyond judicial authority and is bes t left to the man and womans free choice. WHEREFORE, in G. R. No. 139789, the Court DISMISSES the petition for lack of merit. No costs. In G. R. No. 139808, the Court GRANTS the petition and nullifies the decision of the Court of Appeals insofar as it gives visitation rights to respondent Erlinda K. Ilusorio. No costs. SO ORDERED. G.R. No. L-16464 July 26, 1960 VICENTE MALINAO, BENITO ALDE, GREGORIO ARABE, AQUILINO BORDEOS, SALVADOR ADOR, and MANUEL CELEDA, petitioners, vs. MARCOS RAVELES, Sub-Provincial Warden at Borongan, Samar, respondent. BARRERA, J.: This is a petition for the issuance of a writ of habeas corpus. On November 22, 1959, the Commission on Elections, by telegram to the municipal treasurer of Borongan, Samar, issued a resolution, which (1) ordered the suspension of the 6 members1 of the municipal board of canvassers of said municipality; (2) set aside the canvass and proclamation made by said board on November 12, 1959; (3) authorized its special attorney [Atty. Ernesto Tena] to appoint the substitute members of said board; and (4) ordered a new canvass of the votes cast for all municipal officers in all the precincts of said municipality (Annex C). As authorized by the Commission, Special Attorney Tena, on November 27, 1959, appointed petitioners Vicente Malinao, Benito Alde, Gregorio Arabe, Aquilino Bordeos, Salvador Ador, and Manuel Celeda, as members of the municipal board of canvassers of Borongan (Annexes D, D-1, D-2, D-3, D-4, and D-5). On December 2, 1959, the Court of First Instance of Samar issued a series of orders, directing the board of canvassers to hold the canvass (a) on December 3, 1959 at 8:00 a. m. in the PC compound and under the supervision of the court [Annex E]; (b) at the session hall of the municipal building instead of the PC compound [Annex E-1]; (c) at the courtroom [Annex E-2] and (d) at the PC compound [Annex E-3]. In obedience to the orders of both the Commission on Elections and the court, petitioners met and started the canvass. During the course of the canvass, mayoralty candidate Victor Amasa protested and claimed that the election returns for Precincts Nos. 11-A and 20-A did not tally with the certificates issued to the watchers in the same precincts, and that the statements (election returns) had been tampered with. His Protest having been overruled, he rushed to the Court of First Instance, and filed an amended urgent motion2 asking that, in view of the discrepancy, a recount be made. He prayed for the issuance of a preliminary writ of injunction restraining the municipal board of canvassers from continuing with the canvass (Annex F). Acting on said motion, the court, on the same date (December 3, 1959), issued an order directing the municipal board of canvassers to "absolutely desist and refrain from continuing the canvassing and from making any proclamation." Armed with this preliminary writ, Amasa, with the sheriff, returned to the place of the canvassing and served the same to the petitioners. But, at this time the canvassing was far ahead, 37 of the 41 precincts having been already canvassed, including Precincts Nos. 11-A and 20-A. Believing that they were not parties to the court proceedings, as the old members of the board were the original respondents, and thinking that they were also acting under the instructions of the Commission on Elections, the present petitioners proceeded to terminate the canvass and proclaim the winner. Amasa thereupon returned to the court and made complaint, in virtue of which, the court forthwith issued the following order: Having been informed by deputy clerk of Court, Conrado Abella, who served the writ of preliminary injunction in this case that the respondent members of the Board of Canvassers, namely: Vicente Malinao, Benito Alde, Manuel Celeda, Aquilino Bordeos, Gregorio Arabe, and Salvador Aldor, continued the recanvassing upon instructions of Attorney Pablo Aosa, it is hereby ordered that the above-named respondents (herein petitioners) be arrested and be brought before this Court immediately to explain why they should not be held for contempt of Court. Brought to the court in virtue of said order of arrest, petitioners were required to explain why they should not be dealt with in comtempt, for disregarding the order of injunction. Not satisfied with their explanation, the court, on December 4, 1959, found petitioners guilty of contempt and sentenced each of them to suffer the penalty of 6 months imprisonment and to pay a fine of P1,000.00, with subsidiary imprisonment in case of insolvency.

On December 8, 195, this Court in G. R. No. L-163193 issued a preliminary writ of injunction, restraining the lower court "from enforcing the decision and/or amended decision both dated November 20, 1959, in Special Proceedings No. 1092 and from hearing said case and from taking any other action therein." On December 15, 1959, petitioners filed with the lower court a notice of appeal (Annex B), and offered to post the necessary bail bond for their release. The court, however refused to act on said notice of appeal, in view of said preliminary writ of injunction against it. On December 21, 1959, petitioners filed a motion to withdraw the appeal. On January 5, 1960, petitioners filed with this Court the present petition for a writ of habeas corpus alleging, inter alia, that they are being illegally imprisoned and detained by respondent Marcos Raveles, warden of the sub-provincial jail of Borongan, and praying for the issuance of said writ directed to respondent, or to whoever acts in his place and stead, commanding him to produce the bodies of petitioners before us, at a time and place to be specified, that they may be restored to their liberty. In our resolution of January 11, 1960, we required respondent to answer the petition, and authorized petitioners' temporarily released, on January 15, 1960, after their detention for 1 month and 11 days in the sub-provincial jail at Borongan. It is not disputed that the preliminary writ of injunction (Annex G) in question was issued by the lower court, as a consequence of a prayer contained in the amended urgent motion for recount (Annex F) filed by mayoralty candidate Victor Amasa, in Case No. 1092 of said court, in view of the alleged discrepancy, between the election returns in precincts Nos. 11-A and 20-A and the certificates issued to the watchers and the tally sheets. We already held in the case of Municipal Board of Canvassers of Borongan, et al, vs. Hon. Emilio Benitez, et al. (G. R. No. L-16319, prom. June 30, 1960) that the petition for recounting filed by said mayoralty candidate Victor Amasa (in Case No. 1092), based upon the discrepancy between the election return and the certificate given to the watcher "did not, under the doctrine of the Parlade case,4 give jurisdiction to the court (Court of First Instance of Samar) to order the opening of the ballot boxes for the purpose of recounting under Sections 163 and 168 of the Revised Election Code and, consequently to annul the proclamation made on December 3, 1959" of the municipal officers-elect of Borongan, Samar. Such being the case, it follows that the lower court had no jurisdiction to issue the preliminary writ of injunction (Annex G) in question. As a necessary collary, it neither had jurisdiction to rendered the judgment of December 4, 1959 finding petitioners guilty of contempt and sentencing them accordingly. As a rule, where the court has no jurisdiction to impose the sentence, the writ of habeas corpus will lie. (2 Moran, Comments on the Rules of Court [1952 Ed.] 553.) Where the petitioner is held upon a judicial order, the writ will lie where the order is void because the court issuing it had no jurisdiction over the crime charged, or of the person of the accused where the latter had challenged on time, as in the instant case, the jurisdiction of the court over his person. (Banayo vs. President of San Pablo, 2 Phil., 413;l Collins vs., Wolfe, 4 Phil., 534; Carrington vs. Peterson, 4 Phil., 134; Davis vs. Director of Prisons, 17 Phil., 168.) Wherefore, the writ prayed for is hereby granted; the judgment of the lower court of December 4, 1959 is revoked; and the bond filed by petitioners for their temporary liberty is cancelled. So ordered. G.R. No. L-34616 December 15, 1930 HERMENEGILDO MAKAPAGAL and MARIA FIGUEROA, petitioners, vs. FRANCISCO SANTAMARIA, Acting Judge of Court of First Instance of Manila, PEDRO DE LA PENA and MARIA DE LA CRUZ, respondents. VILLA-REAL, J.: This is a certiorari proceeding instituted in this court by Hermenegildo Makapagal and Maria Figueroa against Judge Francisco Santamaria, temporarily presiding over the sixth branch of the Court of First Instance of Manila, together with Pedro de la Pena and Maria de la Cruz, asking that the judgment rendered by said judge on August 29, 1930, in the habeas corpus proceedings instituted in said court by the petitioner Hermenegildo Makapagal be vacated and set aside in so far as it sentences the latter to pay the costs, on the ground that such judgment is beyond the jurisdiction of the respondent judge, since the petitioners aforesaid obtained judgment. The respondent judge in his answer denies each and every one of the allegations of the complaint and by way of special defense contends that the judgment for costs against the petitioners herein, rendered in civil case No. 37919 of the Court of First Instance of Manila, is authorized by Act No. 1586, paragraphs (b) and (c) and that the said petitioners acquiesced in and did not appeal from said judgment. The only question, then, to be decided in these proceedings is whether, after deciding the habeas corpus proceedings in favor of the petitioners herein, who had instituted them against the respondents Pedro dela Pena and Maria de la Cruz, the respondent judge had jurisdiction to order them to pay the costs. As a general rule, the imposition of costs in special proceedings, such as a petition for habeas corpus, is provided by the law, but section 550 of the Code of Civil Procedure, while containing a provision to that effect, does not include cases in which a person is unlawfully deprived of liberty by another who is not a public official nor by virtue of proceedings had in a criminal or civil suit. In the absence of a special provision on the point, the general law regarding the imposition of costs in ordinary actions must be applied (29 Corpus Juris, 181, section 206). The general law providing for the imposition of costs in ordinary actions is contained in section 487 of the aforementioned Code, which reads as follows: SEC. 487. Costs ordinarily follow result of suit. Costs shall ordinarily be allowed to the prevailing party as a matter of course, but the court shall have power, for special reasons, to adjudge that either party shall pay the costs of an action, or that the same be divided, as may be equitable. It will be seen, then, that costs shall, ordinarily, be allowed to the prevailing party but, when special reasons exist therefor, the court shall have power to adjudge that either party shall pay the costs of an action.

Now then; Does the instant case show special reasons for making the prevailing instead of the defeated party pay the costs? In adjudging the costs against the petitioner Hermenegildo Makapagal, the court below said: The petitioner having violated the truth in falsely stating in his sworn petition that the respondents were unlawfully detaining the petitioner's child, Amado Makapagal, said petitioner must be sentenced to pay the costs. The special reason, then, upon which the respondent judge relies in adjudging costs against the petitioner Hermenegildo Makapagal, is that the latter "violated the truth in falsely stating in his sworn petition that the respondents were unlawfully detaining the petitioner's child, Amado Makapagal. But the same decision of the respondent judge contains the following: The respondents being now willing to deliver the boy Amado Makapagal to the petitioner upon being reimbursed for the expenses of maintaining the child at the rate of P15 a month from the time the lad was 11 months old to the present day, they pray the court to be absolved from the complaint with costs against the petitioner, or else that the petitioner be sentenced to pay the respondents the expenses incurred by the latter in the care and maintenance of said child at the rate of P15 monthly. The reason, then, why the respondents in the habeas corpus proceedings refused to deliver to the petitioner therein the latter's son, Amado Makapagal, is that said petitioner would not agree to reimburse them for their expenses in maintaining the child, and they stood upon this refusal in court, demanding such reimbursement. Every free citizen has the constitutional right to enjoy his liberty and he shall not be deprived of it without due process of law or by reason of debt. (Sec. 3, Act of Congress of August 29, 1916.) If it be unlawful to imprison a person for debt, even by a judicial order, it is still more so to deprive him of his liberty for debt and without due process of law. Since the detention of the child, Amado Makapagal, was made on the ground of debt, it was unlawful, and the petitioner committed no falsehood in alleging in his petition that his son was unlawfully detained. Inasmuch as the basis of the court's jurisdiction to adjudge the costs against the prevailing party instead of the defeated party, according to section 487 of the Code of Civil Procedure mentioned above, must be some special reason, and there being none, the respondent judge lacked jurisdiction to sentence the prevailing party to pay the costs. In imposing the costs on the petitioners, the respondent judge also relied upon section 785 of the Code of Civil Procedure, as amended by Act No. 1586, which reads as follows: SEC. 785. ... (b) If a person so admitted be guilty of any improper conduct or of any unjustifiable delay in the prosecution of such action or special proceeding, as the case may be, or it be made to appear that the allegation of poverty is untrue, or if the court be satisfied that the alleged cause of action is frivolous or malicious, the court shall annul such order and such party shall thereafter be deprived of all benefit of the order admitting him to prosecute or defend as herein provided, and such person shall be deemed to be guilty of contempt of court and shall be punished by a fine of not more than one hundred pesos, or by imprisonment for not more than thirty days, or both, in the discretion of the court. (c) In the cases herein provided for, judgment may be rendered for fees and costs at the conclusion of such action or special proceeding as in other cases. Paragraph (b) of section 785 of the Code of Civil Procedure as amended by Act No. 1586 punishes for contempt any person who, alleging under oath that he is a pauper in order to avoid the payment of court costs, should turn out not to be one; and paragraph (c) provides that the person thus committing a falsehood by pretending to be a pauper must pay the proper court costs. The herein petitioner Hermenegildo Makapagal committed no falsehood in claiming to be a pauper, for he really was and is so; consequently, the respondent judge erred in imposing costs on him for a falsehood of which he was not guilty.lawphi1>net The second question to be decided is whether the petitioners are precluded from instituting this certiorari proceeding due to the fact that they failed to appeal from the decision in so far as they were sentenced to pay the costs. In view of their poverty, appeal would not have been the speediest and most adequate means of protecting their rights and preventing the issuance of execution for costs against them, for they would not have been able to furnish the bond required to stay such execution, and the remedy of certiorari which they applied for was the speediest and most adequate means in the matter. For the foregoing considerations, we are of opinion, and so hold, that when a court, without special reason, sentences the prevailing party to pay the costs of an action, it exceeds its jurisdiction. By virtue whereof, the decision, which is the subject matter of the instant proceeding, is hereby reversed in so far as it sentences the petitioners to pay the costs in the habeas corpus proceedings instituted by them against the respondents Pedro dela Pena and Maria de la Cruz, decided in their favor, without special pronouncement of costs. So ordered. G.R. No. L-3994 August 16, 1950 JUANITO LLOBERA Y BAYLON, petitioner, vs. THE DIRECTOR OF PRISONS, respondent. REYES, J.: This a petition for habeas corpus. It appears that petitioner was charged in the Municipal Court of Dagupan with a violation of article 155, paragraph 4, of the Revised Penal Code, which imposes the penalty of arresto mayor or a fine not more than P200 upon any person "who, while intoxicated or otherwise, shall

cause any disturbance or scandal in public places." Pleading guilty to the complaint, petitioner was sentenced to one month's imprisonment for the specific crime charged, and to an additional penalty of 2 years, 4 months and 1 day of prision correccional under the habitual delinquency law, on account of his two previous convictions for the same offense. Petitioner has already served the one month's imprisonment; but having been committed to the New Bilibid Prisons in Muntinglupa for the service of the additional penalty imposed upon him as a habitual delinquent, he now petitions for his liberty on the ground that this additional penalty is null and void, since the habitual delinquency law (article 62, Revised Penal Code, as amended by Republic Act No. 18) applies only to the crimes of "serious or less serious physical injuries, robo, hurto, estafa, or falsificacion." and not of the crimes described in article 155 of the Revised Penal Code. The Solicitor General, vin his return, recommends approval of the petition on the ground relied upon by the petitioner as well as on the following ground: That the additional penalty of 2 years, 4 months and 1 day of prision correccional imposed by the Municipal Court of Dagupan City to the petitioner, is a punishment in excess of the power of said court to impose and is therefore void (Cruz vs. Director of Prisons, 17 Phil., 269, 272) because the additional penalty for habitual delinquency must be taken into account in determining the jurisdiction of the court (People vs. Costosa, 40 Off. Gaz., [7th Supp., No. 11], p. 157). It being obvious that the additional penalty imposed upon petitioner is void for the reasons above stated, the petition for habeas corpus must be as it is hereby granted, and petitioner ordered released from custody unless lawfully held for some other reasons. A.M. No. RTJ-05-1952 December 24, 2008 OFFICE OF THE COURT ADMINISTRATOR, complainant, vs. JUDGE NORMA C. PERELLO, former Clerk of Court LUIS C. BUCAYON II, Court Stenographers THELMA A. MANGILIT, CECILIO B. ARGAME, MARICAR N. EUGENIO, and RADIGUNDA R. LAMAN and Interpreter PAUL M. RESURRECCION, all of the Regional Trial Court, Branch 276, Muntinlupa City, respondents. LEONARDO-DE CASTRO, J.: The instant case stemmed from the judicial audit conducted by the Office of the Court Administrator (OCA) in all seven (7) branches of the Regional Trial Court in Muntinlupa City, including Branch 276 then presided by herein respondent Judge Norma C. Perello (Judge Perello). The audit was prompted by reports of perceived irregular disposition of petitions for habeas corpus by the said court. In its Memorandum1 dated January 25, 2004 and submitted to the OCA, the audit team reported that for the period 1998-2004, a total of 219 petitions for habeas corpus were assigned to Branch 276, the subject matters of which are classified into (a) hospitalization; (b) custody of minors; (c) illegal possession of firearms; and (d) violation of Republic Act (R.A.) No. 6425, otherwise known as the Dangerous Drugs Act of 1972. The records for 22 of these cases were not presented to the audit team, while the case folders of about a hundred cases did not contain copies of the decisions of conviction. The audit team also noted a huge disparity in the number of petitions for habeas corpus raffled in Branch 276 as against those raffled in the other branches, which led the team to doubt if the raffle had been conducted with strict regularity considering the fact that Judge Perello was the Executive Judge that time. The audit team likewise reported several substantive and procedural lapses relative to the disposition of habeas corpus cases in Branch 276, such as (a) failure of the branch clerk of court to present to the audit team the case folders of 22 petitions and to send notices/summons to the Office of the Solicitor General or the Office of the City Prosecutor; (b) lack of return of the writs issued to the officials of the Bureau of Corrections; (c) absence of certificate of detention/confinement from the Bureau of Corrections; (d) absence of copies of the judgment of conviction; (e) failure of the court stenographer to transcribe the stenographic notes and attach the transcript to the records of each case; and (f) failure on the part of the court interpreter to prepare the Minutes of the court sessions or hearings. Finally, the audit team observed that in some of the petitions for habeas corpus, respondent Judge Perello erred in ordering the release of the prisoners before they have served the full term of their sentence. Thus, the audit team recommended to the OCA to consider the judicial audit report as an administrative complaint against (a) Judge Perello and Clerk of Court Atty. Luis Bucayon II for gross ignorance of the law, grave abuse of discretion and grave misconduct; and (b) Court Stenographers Thelma Mangilit, Cecilio Argame, Maricar Eugenio and Radigunda Laman, and Court Interpreter Paul Resurreccion for gross inefficiency. In its Resolution dated March 2, 2005, the Court adopted the aforesaid recommendation.2 The OCA, through its 1st Indorsement dated September 9, 2005, directed the herein respondents to comment on the audit team's recommendations.3 In her Comment4 dated October 10, 2005, Judge Perello opined that "the Audit Team that evaluated these Habeas corpus cases filed with this Court are probably not lawyers, hence, are not conversant with the Constitution, with jurisprudence, and the Rules on the grant of the Writ of Habeas corpus and the retroactivity of laws." She insisted that her decisions ordering the release of the prisoners who were serving their sentence for illegal possession of firearms and violation of the Dangerous Drugs Act were in accordance with law and jurisprudence. For those convicted of illegal possession of firearms under the old law (Presidential Decree No. 1866), she applied retroactively the provisions of the amendatory law or R.A. No. 8294,5 pursuant to Article 22 of the Revised Penal Code which provides for the retroactive application of laws that are favorable to the accused even to those already convicted and serving sentence. Inasmuch as R.A. No. 8294 imposed the penalty of six (6) years only, it was incumbent upon her to grant the writs to those prisoners who have been imprisoned for eight (8) years already. For those convicted for violation of R.A. No. 6425, she applied the said law and not the amendatory law or R.A. No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, mainly because it aggravated the penalty and is therefore not favorable to them. To refute the accusations against her, Judge Perello enumerated her credentials and qualifications and alleged that most of her decisions were upheld by the Court attesting to her competence in applying the law. She claimed that in all the petitions she granted, the prisoners therein were all cleared by the National Bureau of Investigation to have no pending cases. The Bureau of Corrections was always directed to produce the records and reason for the confinement of the concerned prisoners. If from the records, the prisoner was found to have already served

more than the maximum of the imposable penalty, then she would order the release of the prisoner in open court, without fear or favor. Judge Perello asserted that she had served with utmost dedication and honesty in all her more than 40 years of government service. For his part, Atty. Luis Bucayon II, Branch Clerk of Court, explained in his Comment6 that while he failed to present the case folders and records of 22 petitions to the audit team at the time the audit was conducted at their branch, there was an agreement between him and the audit team that the latter could pick up these folders and records before the end of their audit. However, the audit team failed to return to get these case records. He claimed to be baffled as to how his alleged failure to make the records available to the audit team could constitute gross ignorance of the law, grave abuse of discretion and grave misconduct. Atty. Bucayon likewise manifested that he had transferred to the Public Attorney's Office of the Department of Justice as of July 26, 2004 and was issued a clearance by the OCA. On the other hand, Court Interpreter Paul Resurreccion averred in his Comment7 that all petitions for habeas corpus have their corresponding Minutes but these were not attached to the records because the Branch Clerk of Court refused to put his remarks and findings thereon. He further claims that he always made it a point to prepare the Minutes and his co-employees could attest to this fact. Finally, Thelma Mangilit, Cecilio Argame, Maricar Eugenio and Radigunda Laman, all Stenographers of Branch 276, submitted their Joint Comment8 dated October 12, 2005 and Joint Supplemental Comment9 dated October 19, 2005. According to them, Branch 276 had the heaviest case load among all the branches in Muntinlupa City. Despite this, they allegedly religiously attended the hearings and transcribed their notes thereafter. With respect to the petitions for habeas corpus, they saw no need to transcribe their stenographic notes as the proceedings therein were non-adversarial in nature. They prioritized those cases which were adversarial and on appeal. In the Agenda Report10 dated March 9, 2006, then Court Administrator Presbitero J. Velasco, Jr. submitted the following recommendations: 1. respondent Judge Norma C. Perello be FOUND GUILTY of GROSS IGNORANCE OF THE LAW AND JURISPRUDENCE and be meted the penalty of SUSPENSION for three (3) months without salary and benefit; 2. the complaint against Atty. Luis Bucayon be DISMISSED for being moot and academic; 3. respondents Court Stenographers Thelma Mangilit, Cecilio Argame, Maricar Eugenio and Radigunda Laman and respondent Court Interpreter Paul Resurreccion be FOUND GUILTY of SIMPLE NEGLECT OF DUTY and be FINED in the amount of Five Thousand Pesos (P5,000.00).11 The Court thereafter referred the administrative matter to Justice Conrado Molina, Consultant of OCA, for investigation, report and recommendation.12 On August 1, 2007, the Court required the parties to manifest their willingness to submit the case for decision on the basis of the pleadings filed.13 All the respondents manifested that they were submitting the case for decision. On November 21, 2007, Justice Molina submitted his report and adopted entirely the recommendations of the Court Administrator.14 We agree with the findings of the Court Administrator as adopted by the Investigating Justice, but modify the recommendation in regard to the penalty imposed upon Judge Perello. It is the contention of Judge Perello that the prisoners she released were all convicted under the old law, R.A. No. 6425, and not under the new law, R.A. No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002 which imposes the penalty of life imprisonment to death regardless of the quantity of the drug involved.15 She maintains that the provisions of R.A. No. 9165 cannot be given retroactive effect insofar as these prisoners are concerned for the main reason that it would not be favorable to them. Thus, according to Judge Perello, the provisions of R.A. No. 6425, as interpreted in the case of People v. Simon,16 must be applied to the released prisoners. Citing the Simon case, she insisted that the maximum imposable penalty for violation of R.A. No. 6425 where the quantity involved is 750 grams or less is six (6) months only, which was the reason why she ordered the immediate release of the prisoners because they had already served two (2) years of imprisonment. While we agree with respondent judge that R.A. No. 9165 cannot be retroactively applied to the prisoners involved in the cases audited, we, however, are not impressed with Judge Perello's justification in granting the writs. Such ratiocination on her part betrays a lack of understanding of the rule on graduation of penalties. Nowhere in the cited case of Simon does it state that the maximum penal ty shall be six (6) months where the quantity is less than 750 grams. The Simon case clarified the penalty to be imposed vis--vis the quantity of the drug involved, such that prision correccional shall be imposed if the drug is below 250 grams; prision mayor if the quantity is from 250 to 499 grams; and reclusion temporal if the drug is from 500 to 750 grams.17 The same case likewise declared that while modifying circumsta nces may be appreciated to determine the periods of the corresponding penalties, or even reduce the penalty by degrees, in no case should such graduation of penalties reduce the imposable penalty beyond or lower than prision correccional.18 The penalty of prision correccional is composed of three periods the minimum which ranges from 6 months and 1 day to 2 years and 4 months, the medium which is from 2 years, 4 months and 1 day to 4 years and 2 months, and the maximum which ranges from 4 yea rs, 2 months and 1 day to 6 years. As found by the audit team, Judge Perello considered only the minimum period of prision correccional in granting the writs for habeas corpus such that when the prisoners had served imprisonment for a period of two (2) years, she immediately ordered their release. This is clearly erroneous because the petition for habeas corpus cannot be granted if the accused has only served the minimum of his sentence as he must serve his sentence up to its maximum term.19 The maximum range of prision correccional is from 4 years, 2 months and 1 day to 6 years. This is the period which the prisoners must have served before their applications for writs of habeas corpus may be granted. In obstinately granting the writs of habeas corpus even if the convicted prisoners had only served the minimum period of their sentence, Judge Perello displayed a blatant disregard of the rule on graduation of penalties as well as settled jurisprudence tantamount to gross ignorance of the law. As a trial judge, respondent is the visible representation of law and justice. Under Canon 1.01 of the Code of Judicial Conduct, she is expected to be "the embodiment of competence, integrity and independence." Judges are expected to keep abreast of developments in law

and jurisprudence.20 He should strive for excellence exceeded only by his passion for truth, to the end that he be the personification of justice and the Rule of Law. When the law is sufficiently basic, a judge owes it to his office to simply apply it; anything less than that would be gross ignorance of the law.21 Judge Perello must thereby have more than a cursory knowledge of the law on graduation of penalties and the imposable penalty for violation of the Dangerous Drugs Act. Indeed, the facts obtaining in this case speak of other dubious circumstances affecting Judge Perello's integrity and competence too glaring to ignore. Notably, the record shows that Judge Perello granted the writs of habeas corpus even without the pertinent copies of detention and judgment of conviction.22 This is contrary to the provisions of Section 3(d) of Rule 102 of the Rules of Court, to wit: Sec. 3. Requisites of application therefor. - Application for the writ shall be by petition signed and verified either by the party for whose relief it is intended, of by some person in his behalf, and shall set forth: xxx xxx xxx (d) A copy of the commitment or cause of detention of such person, if it can be procured without impairing the efficiency of the remedy; xxx. The Rules clearly require that a copy of the commitment or cause of detention must accompany the application for the writ of habeas corpus. Obviously, Judge Perello deviated from the guidelines laid down in Section 3(d) of Rule 102 of the Rules of Court. It must be emphasized that rules of procedure have been formulated and promulgated by this Court to ensure the speedy and efficient administration of justice. Failure to abide by these rules undermines the wisdom behind them and diminishes respect for the rule of law. Judges should therefore administer their office with due regard to the integrity of the system of law itself, remembering that they are not depositories of arbitrary power, but judges under the sanction of law.23 Indeed, Judge Perello's stubborn unwillingness to act in accordance with the rules and settled jurisprudence shows her refusal to reform herself and to correct a wrong, tantamount to grave abuse of discretion. Be that as it may, however, we agree with the Court Administrator that there is no merit in the charge of grave misconduct leveled against Judge Perello. For grave misconduct to exist, the judicial act complained of should be corrupt or inspired by an intention to violate the law or a persistent disregard of well-known legal rules.24 Here, it appears that she was not motivated by any corrupt or vicious motive. As the Court Administrator puts it: xxx. Except for the insinuation that there has been connivance among all court staff in railroading the process of handling these cases, there was no showing that in releasing the petitioners prematurely, respondent was motivated by corrupt motives. On the contrary, respondent vehemently denies this accusation. In her comment, she stated that she protests with pain that she has always been viewed and unjustly condemned as a wrongdoer on an erroneous impression that she had benefited and had reaped riches for doing her job which she did with compassion, fairness and justice as the law and jurisprudence dictates. Indeed, if respondent judge or a court employee should be disciplined for a grave offense, the evidence against him should be competent and derived from direct knowledge. Charges based on mere suspicion should not be given credence.25 At this juncture, it is worth mentioning that Judge Perello had been previously charged with and found guilty of committing several administrative infractions, namely: (1) gross ignorance of the law for which she was suspended for six (6) months;26 (2) undue delay in transmitting to the Court of Appeals the records of a case for which she was fined P20,000.00;27 (3) dereliction of duty for which she was fined P5,000.00;28 (4) conduct unbecoming a judge for which she was admonished;29 and most recently (5) grave abuse of discretion, grave abuse of authority, knowingly rendering an unjust judgment, gross ignorance of the law and/or procedure for which she was fined in the amount of P10,000.00.30 It is therefore evident that Judge Perello had a penchant for committing infractions during her tenure. In sum, we find Judge Perello liable for ignorance of the law and jurisprudence and for abuse of discretion. These are serious charges under Section 8, Rule 140 of the Revised Rules of Court. Section 11 of the same Rule provides that any of the following sanctions may be imposed upon Judge Perello: Sec. 11. Sanctions. A. If the respondent is guilty of a serious charge, any of the following sanctions may be imposed: 1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government-owned and controlled corporations. Provided, however, that forfeiture of benefits shall in no case include accrued leave credits; 2. Suspension from office without salary and other benefits for more than three (3) but not exceeding six (6) months; or 3. A fine of more than P20,000.00 but not exceeding P40,000.00. The OCA imposed the penalty of suspension for three (3) months on Judge Perello. In view, however, of Judge Perello's compulsory retirement31 which makes suspension impossible to impose, the proper action is to impose a fine on her in the maximum amount of P40,000.00, deductible from her retirement pay. With regard to Atty. Bucayon's liability, the charges against him all pertained to his duties as Branch Clerk of Court. It must be noted that during the pendency of this administrative case against him, Atty. Bucayon had transferred to the Public Attorney's Office of the Department of Justice on July 26, 2004 and was accordingly issued a clearance by the OCA. Thus, we accept the OCA's recommendation to dismiss the charges against him for being moot. On the liability of Court Stenographers Mangilit, Argame, Eugenio and Laman, Administrative Circular 24-9032 imposes upon all court stenographers the duty to transcribe all stenographic notes and to attach the transcripts of such notes to the records of each case not later than twenty (20) days from the time the notes were taken. The records reveal that respondent stenographers failed to transcribe the stenographic notes and attach them to the records of each case. By their own admission, they did not bother to transcribe the notes as the proceedings were non-adversarial in nature. We find this explanation unacceptable considering that the requirement under the Circular applies to all proceedings whether adversarial or not.

For their shortcomings in the transcription of the stenographic notes, respondent stenographers have shown their utter lack of dedication to the functions of their office. As trial court stenographers, they know, or ought to know, that they perform an important role in running the machinery of our trial court system and that transcripts of stenographic notes are vital for the speedy disposition of cases. Their dereliction of duty which may jeopardize public faith and confidence in our judicial system should not be countenanced. We, thus, find respondent stenographers guilty of simple neglect of duty. While said offense carries a penalty of one month and one day to six months suspension under the Uniform Rules on Administrative Cases in the Civil Service,33 we deem it reasonable and sufficient to instead impose a fine of P5,000.00, as recommended by the OCA, considering that it was their first offense. While this Court is duty-bound to sternly wield a corrective hand to discipline its errant employees and to weed out those who are undesirable, this Court also has the discretion to temper the harshness of its judgment with mercy.34 Finally, as to Court Interpreter Resurreccion, the record would show that he had been remiss in his duty to prepare the Minutes of the sessions or hearings and attach them to the records of each case. He cannot escape liability by passing on the blame to the Branch Clerk of Court whom he claimed refused to put his remarks on the Minutes. Resurreccion's explanation is too flimsy to excuse him from administrative liability. Among the duties of court interpreters is to prepare and sign "all Minutes of the session."35 After every session they must prepare the Minutes and attach it. The Minutes is a very important document because it gives a brief summary of the events that took place at the session or hearing of a case. It is in fact a capsulized history of the case at a given session or hearing, for it states the date and time of the session; the names of the judge, clerk of court, court stenographer, and court interpreter who were present; the names of the counsel for the parties who appeared; the party presenting evidence; the names of witnesses who testified; the documentary evidence marked; and the date of the next hearing.36 Failure to prepare the Minutes and attach them to the records of a case constitutes simple neglect of duty and warrants disciplinary action. Accordingly, Resurreccion is hereby fined the same amount of P5,000.00 as recommended by the OCA. We take this occasion once more to impress upon all respondents that the conduct of every person connected with the administration of justice, from the presiding judge to the lowest clerk, is circumscribed with a heavy burden of responsibility. A public office is a public trust. Since public officers are accountable to the people at all times, they must strictly perform their duties and responsibilities. As the administration of justice is a sacred task, this Court condemns any omission or act that may diminish the faith of the people in the judiciary.37 IN VIEW OF THE FOREGOING, the Court finds Judge Norma C. Perello GUILTY of gross ignorance of the law and abuse of discretion, for which she is meted a fine of P40,000.00 to be deducted from her retirement benefits. Court Stenographers Thelma Mangilit, Cecilio Argame, Maricar Eugenio and Radigunda Laman, and Court Interpreter Paul Resurreccion are found GUILTY of simple neglect of duty, for which they are each meted a fine of P5,000.00, and sternly warned that a repetition of the same shall be dealt with more severely. For being moot, the charges against Atty. Luis Bucayon II are hereby DISMISSED.SO ORDERED. G.R. No. 168785 February 5, 2010 HERALD BLACK DACASIN, Petitioner, vs. SHARON DEL MUNDO DACASIN, Respondent. CARPIO, J.: The Case:For review1 is a dismissal2 of a suit to enforce a post-foreign divorce child custody agreement for lack of jurisdiction. The Facts: Petitioner Herald Dacasin (petitioner), American, and respondent Sharon Del Mundo Dacasin (respondent), Filipino, were married in Manila in April 1994. They have one daughter, Stephanie, born on 21 September 1995. In June 1999, respondent sought and ob tained from the Circuit Court, 19th Judicial Circuit, Lake County, Illinois (Illinois court) a divorce decree against petitioner.3 In its ruling, the Illinois court dissolved the marriage of petitioner and respondent, awarded to respondent sole custody of Stephanie and retained jurisdiction over the case for enforcement purposes. On 28 January 2002, petitioner and respondent executed in Manila a contract (Agreement4 ) for the joint custody of Stephanie. The parties chose Philippine courts as exclusive forum to adjudicate disputes arising from the Agreement. Respondent undertook to obtain from the Illinois court an order "relinquishing" jurisdiction to Philippine courts. In 2004, petitioner sued respondent in the Regional Trial Court of Makati City, Branch 60 (trial court) to enforce the Agreement. Petitioner alleged that in violation of the Agreement, respondent exercised sole custody over Stephanie. Respondent sought the dismissal of the complaint for, among others, lack of jurisdiction because of the Illinois courts retention of jurisdiction to enforce the divorce decree. The Ruling of the Trial Court: In its Order dated 1 March 2005, the trial court sustained respondents motion and dismissed the case for lack of jurisdiction. The trial court held that: (1) it is precluded from taking cognizance over the suit considering the Illinois courts retention of jurisdiction to enforce its divorce decree, including its order awarding sole custody of Stephanie to respondent; (2) the divorce decree is binding on petitioner following the "nationality rule" prevailing in this jurisdiction;5 and (3) the Agreement is void for contravening Article 2035, paragraph 5 of the Civil Code6 prohibiting compromise agreements on jurisdiction.7 Petitioner sought reconsideration, raising the new argument that the divorce decree obtained by respondent is void. Thus, the divorce decree is no bar to the trial courts exercise of jurisdiction over the case. In its Order dated 23 June 2005, the trial court denied reconsideration, holding that unlike in the case of respondent, the divorce decree is binding on petitioner under the laws of his nationality.Hence, this petition. Petitioner submits the following alternative theories for the validity of the Agreement to justify its enforcement by the trial court: (1) the Agreement novated the valid divorce decree, modifying the terms of child custody from sole (maternal) to joint;8 or (2) the Agreement is independent of the divorce decree obtained by respondent. The Issue--The question is whether the trial court has jurisdiction to take cognizance of petitioners suit and enforce the Agreement on the joint custody of the parties child.

The Ruling of the Court--The trial court has jurisdiction to entertain petitioners suit but not to enforce the Agreement which is void. However, factual and equity considerations militate against the dismissal of petitioners suit and call for the remand of the case to settle the question of Stephanies custody. Regional Trial Courts Vested With Jurisdiction to Enforce Contracts Subject matter jurisdiction is conferred by law. At the time petitioner filed his suit in the trial court, statutory law vests on Regional Trial Courts exclusive original jurisdiction over civil actions incapable of pecuniary estimation.9 An action for specific performance, such as petitioners suit to enforce the Agreement on joint child custody, belongs to this species of actions.10 Thus, jurisdiction-wise, petitioner went to the right court. Indeed, the trial courts refusal to entertain petitioners suit was grounded not on its lack of power to do so but on its thinking that the Illinois courts divorce decree stripped it of jurisdiction. This conclusion is unfounded. What the Illinois court retained was "jurisdiction x x x for the purpose of enforcing all and sundry the various provisions of [its] Judgment for Dissolution."11 Petitioners suit seeks the enforcement not of the "various provisions" of the divorce decree but of the post-divorce Agreement on joint child custody. Thus, the action lies beyond the zone of the Illinois courts so-called "retained jurisdiction." Petitioners Suit Lacks Cause of Action The foregoing notwithstanding, the trial court cannot enforce the Agreement which is contrary to law. In this jurisdiction, parties to a contract are free to stipulate the terms of agreement subject to the minimum ban on stipulations contrary to law, morals, good customs, public order, or public policy.12 Otherwise, the contract is denied legal existence, deemed "inexistent and void from the beginning."13 For lack of relevant stipulation in the Agreement, these and other ancillary Philippine substantive law serve as default parameters to test the validity of the Agreements joint child custody stipulations.14 At the time the parties executed the Agreement on 28 January 2002, two facts are undisputed: (1) Stephanie was under seven years old (having been born on 21 September 1995); and (2) petitioner and respondent were no longer married under the laws of the United States because of the divorce decree. The relevant Philippine law on child custody for spouses separated in fact or in law15 (under the second paragraph of Article 213 of the Family Code) is also undisputed: "no child under seven years of age shall be separated from the mother x x x."16 (This statutory awarding of sole parental custody17 to the mother is mandatory,18 grounded on sound policy consideration,19 subject only to a narrow exception not alleged to obtain here.20 ) Clearly then, the Agreements object to establish a post-divorce joint custody regime between respondent and petitioner over their child under seven years old contravenes Philippine law. The Agreement is not only void ab initio for being contrary to law, it has also been repudiated by the mother when she refused to allow joint custody by the father. The Agreement would be valid if the spouses have not divorced or separated because the law provides for joint parental authority when spouses live together.21 However, upon separation of the spouses, the mother takes sole custody under the law if the child is below seven years old and any agreement to the contrary is void. Thus, the law suspends the joint custody regime for (1) children under seven of (2) separated or divorced spouses. Simply put, for a child within this age bracket (and for commonsensical reasons), the law decides for the separated or divorced parents how best to take care of the child and that is to give custody to the separated mother. Indeed, the separated parents cannot contract away the provision in the Family Code on the maternal custody of children below seven years anymore than they can privately agree that a mother who is unemployed, immoral, habitually drunk, drug addict, insane or afflicted with a communicable disease will have sole custody of a child under seven as these are reasons deemed compelling to preclude the application of the exclusive maternal custody regime under the second paragraph of Article 213.22 It will not do to argue that the second paragraph of Article 213 of the Family Code applies only to judicial custodial agreements based on its text that "No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise." To limit this provisions enforceability to court sanctioned agreements while placing private agreements beyond its reach is to sanction a double standard in custody regulation of children under seven years old of separated parents. This effectively empowers separated parents, by the simple expedient of avoiding the courts, to subvert a legislative policy vesting to the separated mother sole custody of her children under seven years of age "to avoid a tragedy where a mother has seen her baby torn away from her."23 This ignores the legislative basis that "[n]o man can sound the deep sorrows of a mother who is deprived of her child of tender age."24 It could very well be that Article 213s bias favoring one separated parent (mother) over the other (father) encourages paternal neglect, presumes incapacity for joint parental custody, robs the parents of custodial options, or hijacks decision-making between the separated parents.25 However, these are objections which question the laws wisdom not its validity or uniform enforceability. The forum to air and remedy these grievances is the legislature, not this Court. At any rate, the rules seeming harshness or undesirability is tempered by ancillary agreements the separated parents may wish to enter such as granting the father visitation and other privileges. These arrangements are not inconsistent with the regime of sole maternal custody under the second paragraph of Article 213 which merely grants to the mother final authority on the care and custody of the minor under seven years of age, in case of disagreements.1avvphi1 Further, the imposed custodial regime under the second paragraph of Article 213 is limited in duration, lasting only until the childs seventh year. From the eighth year until the childs emancipation, the law gives the separated parents freedom, subject to the usual contractual limitations, to agree on custody regimes they see fit to adopt. Lastly, even supposing that petitioner and respondent are not barred from entering into the Agreement for the joint custody of Stephanie, respondent repudiated the Agreement by asserting sole custody over Stephanie. Respondents act effectively brought the parties back to ambit of the default custodial regime in the second paragraph of Article 213 of the Family Code vesting on respondent sole custody of Stephanie. Nor can petitioner rely on the divorce decrees alleged invalidity - not because the Illinois court lacked jurisdiction or that the divorce decree violated Illinois law, but because the divorce was obtained by his Filipino spouse26 - to support the Agreements enforceability. The argument that foreigners in this jurisdiction are not bound by foreign divorce decrees is hardly novel. Van Dorn v. Romillo27 settled the matter by holding that an alien spouse of a Filipino is bound by a divorce decree obtained abroad.28 There, we dismissed the alien divorcees Philippine suit for accounting of alleged post-divorce conjugal property and rejected his submission that the foreign divorce (obtained by the Filipino spouse) is not valid in this jurisdiction in this wise:

There can be no question as to the validity of that Nevada divorce in any of the States of the United States. The decree is binding on private respondent as an American citizen. For instance, private respondent cannot sue petitioner, as her husband, in any State of the Union. What he is contending in this case is that the divorce is not valid and binding in this jurisdiction, the same being contrary to local law and public policy. It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces the same being considered contrary to our concept of public policy and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. In this case, the divorce in Nevada released private respondent from the marriage from the standards of American law, under which divorce dissolves the marriage. xxxx Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioners husband entitled to exercise control over conjugal assets. As he is bound by the Decision of his own countrys Court, which validly exercised jurisdiction over him, and whose decision he does not repudiate, he is estopped by his own representation before said Court from asserting his right over the alleged conjugal property. (Emphasis supplied) We reiterated Van Dorn in Pilapil v. Ibay-Somera29 to dismiss criminal complaints for adultery filed by the alien divorcee (who obtained the foreign divorce decree) against his former Filipino spouse because he no longer qualified as "offended spouse" entitled to file the complaints under Philippine procedural rules. Thus, it should be clear by now that a foreign divorce decree carries as much validity against the alien divorcee in this jurisdiction as it does in the jurisdiction of the aliens nationality, irrespective of who obtained the divorce. The Facts of the Case and Nature of Proceeding Justify Remand Instead of ordering the dismissal of petitioners suit, the logical end to its lack of cause of action, we remand the case for the trial court to settle the question of Stephanies custody. Stephanie is now nearly 15 years old, thus removing the case outside of the ambit of the mandatory maternal custody regime under Article 213 and bringing it within coverage of the default standard on child custody proceedings the best interest of the child.30 As the question of custody is already before the trial court and the childs parents, by executing the Agreement, initially showed inclination to share custody, it is in the interest of swift and efficient rendition of justice to allow the parties to take advantage of the courts jurisdiction, submit evidence on the custodial arrangement best serving Stephanies interest, and let the trial court render judgment. This disposition is consistent with the settled doctrine that in child custody proceedings, equity may be invoked to serve the childs best interest.31 WHEREFORE, we REVERSE the Orders dated 1 March 2005 and 23 June 2005 of the Regional Trial Court of Makati City, Branch 60. The case is REMANDED for further proceedings consistent with this ruling. SO ORDERED.