PRECIOSO and LARO

LAW OFFICES
Zone 3, Camp Evangelista Patag, Cagayan de Oro City

July 24, 2018

MA. VICTORIA M. GIRAO

COL JAGS (MNSA)
Office of the Army Judge Advocate
Forth Bonifacio, Metro Manila

Col. Girao:

Greetings!

This pertains to OAJA#35CY’18, GSO/6517 dated January 18, 2018

relative to the declaration of Legal Beneficiaries of the late SSg Leo R. Badlisan
Jr., which disqualified my clients, Spouses Leo S. Badlisan and Norma R.
Badlisanas as legal beneficiaries of the decedent, which was referred to the
undersigned for appropriate legal action.

In this connection, paragraph 4(b) of the said Order provides that:

“b. The parents of the decedent Norma R. Badlisan and Leo S.

Badlisan are disqualified from receiving pension benefits. The
entitlement of a soldier’s parent/s to the pension only arises in
default of the surviving spouse and/or surviving children. Thus, the
presence of a child, legitimate or illegitimate, but acknowledged, will
disqualify the parent(s) of a deceased soldier.”.

With all due respect to the foregoing opinion/findings of the Office of the
Army Judge Advocate disqualifying my clients, the undersigned counsel begs to
disagree and requests for the reconsideration of the foregoing opinion of the on
the ground that under Article 889 in relation to Article 890 of the R.A. 386, One
half (1/2) of the estate of the SSg Leo R. Barlisan Jr., which includes all benefits
he is entitled as a soldier goes to his legitimate parents (Spouses Leo and Norma
Badlisan) to be divided equally between them.

The law provides that:

“Art. 889. The legitime of legitimate parents or ascendants

consists of one-half of the hereditary estates of their children
and descendants.

The children or descendants may freely dispose of the other

half, subject to the rights of illegitimate children and of the
surviving spouse as hereinafter provided. (809a)

Art. 890. The legitime reserved for the legitimate parents shall
be divided between them equally; if one of the parents should
have died, the whole shall pass to the survivor.
 XXX.”

The foregoing provisions clearly entitles the surviving parents of the

deceased serviceman to be given their just and fair share of the inheritance
consisting of one-half of the hereditary estate of the late SSg. Leo R. Badlisan
Jr., as a matter of right considering that it is the law itself that reserved it in their
favor. There being legal reservation for their benefit, my clients’ right to demand
and receive the same could not possibly be denied by mere provision of
Presidential Decree No. 1638, the latter being contrary to law. Unless and until
the aforecited provisions of law are repealed, the same are valid and subsisting.
It is the humble submission of the undersigned that the Articles 889 and 890 of
the New Civil Code could not be repealed by Section 22 in relation to Section 25
(c) of Presidential Decree No. 1638. Be it noted that in our jurisdiction, a law duly
passed by congress could not be repealed by a mere Presidential Decree. To do
so would be violative to the principle of separation of powers. In fact, the contrary
is controlling. An executive enactment such as Presidential Decree No. 1638
must conform and must not be contrary to the New Civil Code to be valid and
enforceable.

Looking into the definition of gratuity, we find the following in Moreno's

Philippine Law Dictionary, to wit:

Something given freely, or without recompense; a gift;

something voluntarily given in return for a favor or services; a
bounty; a tip. -Pirovano v. De la Rama Steamship Co., 96 Phil.
357.

That paid to the beneficiary for past services rendered purely

out of the generosity of the giver or grantor.-Peralta v. Auditor
General, 100 Phil. 1054.

Said definition clearly shows that gratuity is given as a gift by the Philippine
Government in recognition and by reason of the services rendered by the
decedent as a soldier. Being given by reason of the services rendered, definitely,
it belongs exclusively to the estate or inheritance left by the decedent. Needless
to state, gratuity is part of the retirement benefits being given by the government
to servicemen who successfully rendered the required service.

Running in the same vein, it is worthy to mention that the retirement

benefits (including the contested gratuity) of the decedent whatever maybe the
nature and kind, form part of the estate of the deceased serviceman. Thus, the
benefits must be distributed in accordance to the rules of succession pursuant to
Articles 889-890 of the New Civil Code as a matter of right, including the monthly
gratuity from which my clients were excluded and deprived from receiving. Such
exclusion and deprivation of my clients right is clearly contrary to the aforecited
provision of law. In fact my clients were included as primary beneficiary of the
decedent as appearing in his Summary Information Sheet on file with his unit
which was confirmed by Special Orders Number 109 dated January 26, 2018,
wherein my clients were indicated as next of kin.

Moreover, nothing in the said law would clearly disqualify my clients from
being an heir of decedent contrary to the assertion of the Office of the Army
Judge Advocate.
 It bears stressing that the instant Order was issued without giving my
clients reasonable opportunity to be heard and explain their position on the
matter and accordingly to submit documents to substantiate their claims. In fact,
when my clients went to the Office of the Army Judge Advocate at Fort Bonifacio,
Metro Manila, in order to be clarified of the tenor and contents of the Order, the
Office practically ignored them. The instant Order was never explained to them.

We must be mindful that retirement laws just like any other social
legislation must be interpreted liberally in favor of the pensioner or the estate as
the case may be. It is for this reason that in case of doubt as to its interpretation
and application, the retirement laws must be resolved in favor of the pensioner
and in the instant case, to the surviving heirs of SSg Leo R. Badlisan Jr., namely
his illegitimate children and his surviving parents.

In the light of the foregoing, it is respectfully prayed that OAJA#35CY’18,

GSO/6517 dated January 18, 2018 relative to the declaration of the legal
beneficiaries of SSg Leo R. Badlisan Jr., Serial No. 822923 PA be reconsidered.

Accordingly and as a matter of due course, it is also respectfully prayed

that a corresponding Order be issued by the Office of the Army Judge Advocate
declaring the surviving parents of the decedent, Spouses Leo S. Badlisan and
Norma R. Badlisan as primary legal beneficiaries of the decedent concurring with
the illegitimate children of the decedent as such are entitled to receive all
retirement benefits including the contested monthly gratuity (pension) by reason
of the separation of the decedent from the service.

Respectfully submitted.

ATTY. JOHN M. LARO

Counsel
Spouses Leo S. Badlisan and Norma R. Badlisan

Copy furnished to:

Office of the Army Judge Advocate

4th Infantry Division, Philippine Army
Camp Evangelista, Patag,
Cagayan de Oro City

Enclosures:

1. Certificate of Live Birth of SSg. Leo R. Badlisan Jr.;

2. Certificate of No Marriage of SSg. Leo R. Badlisan Jr.;
3. Certificate of Death SSg. Leo R. Badlisan Jr.; and
4. Marriage Contract of Spouses Leo S. Badlisan and Norma R. Badlisan