RULE 131 (g) That a thing delivered by one to another
belonged to the latter;
Burden of Proof and Presumptions
Section 1. Burden of proof. — Burden of proof is the
duty of a party to present evidence on the facts in
issue necessary to establish his claim or defense by
the amount of evidence required by law. (1a, 2a)
Section 2. Conclusive presumptions. — The following
are instances of conclusive presumptions:
(a) Whenever a party has, by his own
declaration, act, or omission, intentionally
and deliberately led to another to believe a
particular thing true, and to act upon such
belief, he cannot, in any litigation arising out
of such declaration, act or omission, be
permitted to falsify it:
(b) The tenant is not permitted to deny the
title of his landlord at the time of
commencement of the relation of landlord
and tenant between them. (3a)
Section 3. Disputable presumptions. — The following
presumptions are satisfactory if uncontradicted, but
may be contradicted and overcome by other
evidence:
(a) That a person is innocent of crime or
wrong;
(b) That an unlawful act was done with an
unlawful intent;
(c) That a person intends the ordinary
consequences of his voluntary act;
(d) That a person takes ordinary care of his
concerns;
(e) That evidence willfully suppressed would
be adverse if produced;
(f) That money paid by one to another was
due to the latter;
(s) That a negotiable instrument was given
or indorsed for a sufficient consideration;
(h) That an obligation delivered up to the
debtor has been paid;
(i) That prior rents or installments had been
paid when a receipt for the later one is
produced;
(j) That a person found in possession of a
thing taken in the doing of a recent wrongful
act is the taker and the doer of the whole act;
otherwise, that things which a person
possess, or exercises acts of ownership
over, are owned by him;
(k) That a person in possession of an order
on himself for the payment of the money, or
the delivery of anything, has paid the money
or delivered the thing accordingly;
(l) That a person acting in a public office was
regularly appointed or elected to it;
(m) That official duty has been regularly
performed;
(n) That a court, or judge acting as such,
whether in the Philippines or elsewhere, was
acting in the lawful exercise of jurisdiction;
(o) That all the matters within an issue raised
in a case were laid before the court and
passed upon by it; and in like manner that all
matters within an issue raised in a dispute
submitted for arbitration were laid before the
arbitrators and passed upon by them;
(p) That private transactions have been fair
and regular;
(q) That the ordinary course of business has
been followed;
(r) That there was a sufficient consideration
for a contract;
(t) That an endorsement of negotiable
instrument was made before the instrument
was overdue and at the place where the
instrument is dated;
(u) That a writing is truly dated;
(v) That a letter duly directed and mailed was
received in the regular course of the mail;
(w) That after an absence of seven years, it
being unknown whether or not the absentee
still lives, he is considered dead for all
purposes, except for those of succession.
The absentee shall not be considered dead for the
purpose of opening his succession till after an
absence of ten years. If he disappeared after the age
of seventy-five years, an absence of five years shall
be sufficient in order that his succession may be
opened.
The following shall be considered dead for all
purposes including the division of the estate among
the heirs:
(1) A person on board a vessel lost
during a sea voyage, or an aircraft
with is missing, who has not been
heard of for four years since the
loss of the vessel or aircraft;
(2) A member of the armed forces
who has taken part in armed
hostilities, and has been missing for
four years;
(3) A person who has been in
danger of death under other
circumstances and whose
existence has not been known for
four years;
(4) If a married person has been
absent for four consecutive years,
 the spouse present may contract a
subsequent marriage if he or she
has well-founded belief that the
absent spouse is already death. In
case of disappearance, where there
is a danger of death the
circumstances hereinabove
provided, an absence of only two
years shall be sufficient for the
purpose of contracting a
subsequent marriage. However, in
any case, before marrying again,
the spouse present must institute a
summary proceedings as provided
in the Family Code and in the rules
for declaration of presumptive death
of the absentee, without prejudice
to the effect of reappearance of the
absent spouse.
(x) That acquiescence resulted from a belief
that the thing acquiesced in was
conformable to the law or fact;
(y) That things have happened according to
the ordinary course of nature and ordinary
nature habits of life;
(z) That persons acting as copartners have
entered into a contract of copartneship;
(aa) That a man and woman deporting
themselves as husband and wife have
entered into a lawful contract of marriage;
(bb) That property acquired by a man and a
woman who are capacitated to marry each
other and who live exclusively with each
other as husband and wife without the
benefit of marriage or under void marriage,
has been obtained by their joint efforts, work
or industry.
(cc) That in cases of cohabitation by a man
and a woman who are not capacitated to
marry each other and who have acquire
properly through their actual joint
contribution of money, property or industry,
such contributions and their corresponding
shares including joint deposits of money and
evidences of credit are equal.
(dd) That if the marriage is terminated and
the mother contracted another marriage
within three hundred days after such
termination of the former marriage, these
rules shall govern in the absence of proof to
the contrary:
(1) A child born before one hundred
eighty days after the solemnization
of the subsequent marriage is
considered to have been conceived
during such marriage, even though
it be born within the three hundred
days after the termination of the
former marriage.
(2) A child born after one hundred
eighty days following the
celebration of the subsequent
marriage is considered to have
been conceived during such
marriage, even though it be born
within the three hundred days after
the termination of the former
marriage.
(ee) That a thing once proved to exist
continues as long as is usual with things of
the nature;
(ff) That the law has been obeyed;
(gg) That a printed or published book,
purporting to be printed or published by
public authority, was so printed or published;
(hh) That a printed or published book,
purporting contain reports of cases adjudged
in tribunals of the country where the book is
published, contains correct reports of such
cases;
(ii) That a trustee or other person whose duty
it was to convey real property to a particular
person has actually conveyed it to him when
such presumption is necessary to perfect the
title of such person or his successor in
interest;
(jj) That except for purposes of succession,
when two persons perish in the same
calamity, such as wreck, battle, or
conflagration, and it is not shown who died
first, and there are no particular
circumstances from which it can be inferred,
the survivorship is determined from the
probabilities resulting from the strength and
the age of the sexes, according to the
following rules:
1. If both were under the age of
fifteen years, the older is deemed to
have survived;
2. If both were above the age sixty,
the younger is deemed to have
survived;
3. If one is under fifteen and the
other above sixty, the former is
deemed to have survived;
4. If both be over fifteen and under
sixty, and the sex be different, the
male is deemed to have survived, if
the sex be the same, the older;
5. If one be under fifteen or over
sixty, and the other between those
ages, the latter is deemed to have
survived.
(kk) That if there is a doubt, as between two
or more persons who are called to succeed
each other, as to which of them died first,
whoever alleges the death of one prior to the
other, shall prove the same; in the absence
of proof, they shall be considered to have
died at the same time. (5a)
Section 4. No presumption of legitimacy or
illegitimacy. — There is no presumption of legitimacy
of a child born after three hundred days following the
dissolution of the marriage or the separation of the
spouses. Whoever alleges the legitimacy or
illegitimacy of such child must prove his allegation. (6)
G.R. No. 167684 July 31, 2006
JAIME O.SEVILLA, petitioner,
vs.
CARMELITA N. CARDENAS, respondent.
DECISION
CHICO-NAZARIO, J.:
This Petition for Review on Certiorari seeks the
reversal of the Decision1 of the Court of Appeals in
CA-G.R. CV No. 74416 dated 20 December 2004
which set aside the Decision2 of the Regional Trial
Court (RTC) of Makati City, in Civil Case No. 94-1285
dated 25 January 2002.
In a Complaint3 dated 28 March 1994 filed by Jaime
O. Sevilla before the RTC, he claimed that on 19 May
1969, through machinations, duress and intimidation
employed upon him by Carmelita N. Cardenas and
the latter's father, retired Colonel Jose Cardenas of
the Armed forces of the Philippines, he and Carmelita
went to the City Hall of Manila and they were
introduced to a certain Reverend Cirilo D. Gonzales, a
supposed Minister of the Gospel. On the said date,
the father of Carmelita caused him and Carmelita to
sign a marriage contract before the said Minister of
the Gospel. According to Jaime, he never applied for
a marriage license for his supposed marriage to
Carmelita and never did they obtain any marriage
license from any Civil Registry, consequently, no
marriage license was presented to the solemnizing
officer.
For her part, Carmelita refuted these allegations of
Jaime, and claims that she and Jaime were married
civilly on 19 May 1969,4 and in a church ceremony
thereafter on 31 May 19695 at the Most Holy
Redeemer Parish in Quezon City. Both marriages
were registered with the local civil registry of Manila
and the National Statistics Office. He is estopped from
invoking the lack of marriage license after having
been married to her for 25 years.
The trial court made the following findings:
In support of his complaint, plaintiff [Jaime]
testified that on May 19, 1969, he and
defendant [Carmelita] appeared before a
certain Rev. Cirilo D. Gonzales, a Minister of
the Gospel, at the city hall in Manila where
they executed a Marriage Contract (Exh. "A")
in civil rites. A certain Godofredo Occena
who, plaintiff alleged, was an aide of
defendant's father accompanied them, and
who, together with another person, stood as
witness to the civil wedding. That although
marriage license no. 2770792 allegedly
issued in San Juan, Rizal on May 19, 1969
was indicated in the marriage contract, the
same was fictitious for he never applied for
any marriage license, (Ibid., p. 11). Upon
verifications made by him through his lawyer,
Atty. Jose M. Abola, with the Civil Registry of
San Juan, a Certification dated March 11,
1994 (Exh. "E") was issued by Rafael D.
Aliscad, Jr., Local Civil Registrar of San
Juan, that "no marriage license no. 2770792
was ever issued by said office." On May 31,
1969, he and defendant were again wed, this
time in church rites, before Monsignor Juan
Velasco at the Most Holy Redeemer Parish
Church in Brixton Hills, Quezon City, where
they executed another marriage contract
(Exh. "F") with the same marriage license no.
2770792 used and indicated. Preparations
and expenses for the church wedding and
reception were jointly shared by his and
defendant's parents. After the church
wedding, he and defendant resided in his
house at Brixton Hills until their first son,
Jose Gabriel, was born in March 1970. As
his parents continued to support him
financially, he and defendant lived in Spain
for some time, for his medical studies.
Eventually, their marital relationship turned
bad because it became difficult for him to be
married he being a medical student at that
time. They started living apart in 1976, but
they underwent family counseling before
they eventually separated in 1978. It was
during this time when defendant's second
son was born whose paternity plaintiff
questioned. Plaintiff obtained a divorce
decree against defendant in the United
States in 1981 and later secured a judicial
separation of their conjugal partnership in
1983.
Atty. Jose M. Abola, then counsel for the
plaintiff, himself manifested that when his
service was engaged by plaintiff, and after
the latter narrated to him the circumstances
of his marriage, he made inquiries with the
Office of Civil Registry of San Juan where
the supposed marriage license was obtained
and with the Church of the Most Holy
Redeemer Parish where the religious
wedding ceremony was celebrated. His
request letters dated March 3, 1994 (Exh.
"J"), March 7, 1994 (Exh. "L"), March 9, 1994
(Exh. "M") and March 11, 1994 (Exh. "K")
were all sent to and received by the Civil
Registrar of San Juan, who in reply thereto,
issued Certifications dated March 4, 1994
(Exh. "I"), and March 11, 1994 (Exh. "E") and
September 20, 1994 (Exh. "C"), that "no
marriage license no. 2770792 was ever
issued by that office." Upon his inquiry, the
Holy Redeemer Parish Church issued him a
certified copy of the marriage contract of
plaintiff and defendant (Exh. "F") and a
Certificate of Marriage dated April 11, 1994
(Exh. "G"), wherein it noted that it was a
"purely religious ceremony, having been
civilly married on May 19, 1969 at the City
Hall, Manila, under Marriage License No.
2770792 issued at San Juan, Rizal on May
19, 1969."
Perlita Mercader, Registration Officer III of
the Local Registry of San Juan, identified the
Certificates dated March 4, 1994, March 11,
1994 and September 20, 1994 issued by
Rafael Aliscad, Jr., the Local Civil Registrar,
and testified that their office failed to locate
the book wherein marriage license no.
2770792 may have been registered (TSN, 8-
6-96, p. 5).
Defendant Carmelita Cardenas testified that
she and plaintiff had a steady romantic
relationship after they met and were
introduced to each other in October 1968. A
model, she was compelled by her family to
join the Mutya ng Pilipinas beauty pageant
when plaintiff who was afraid to lose her,
asked her to run away with him to Baguio.
Because she loved plaintiff, she turned back
on her family and decided to follow plaintiff in
Baguio. When they came back to Manila,
she and plaintiff proceeded to the latter's
home in Brixton Hills where plaintiff's mother,
Mrs. Sevilla, told her not to worry. Her
parents were hostile when they learned of
the elopement, but Mrs. Sevilla convinced
them that she will take care of everything,
and promised to support plaintiff and
defendant. As plaintiff was still fearful he
may lose her, he asked her to marry him in
civil rites, without the knowledge of her
family, more so her father (TSN, 5-28-98, p.
4) on May 19, 1969, before a minister and
where she was made to sign documents.
After the civil wedding, they had lunch and
later each went home separately. On May
31, 1969, they had the church wedding,
which the Sevilla family alone prepared and
arranged, since defendant's mother just
came from hospital. Her family did not
participate in the wedding preparations.
Defendant further stated that there was no
sexual consummation during their
honeymoon and that it was after two months
when they finally had sex. She learned from
Dr. Escudero, plaintiff's physician and one of
their wedding sponsors that plaintiff was
undergoing psychiatric therapy since age 12
(TSN, 11-2-98, p. 15) for some traumatic
problem compounded by his drug habit. She
found out plaintiff has unusual sexual
behavior by his obsession over her knees of
which he would take endless pictures of.
Moreover, plaintiff preferred to have sex with
her in between the knees which she called
"intrafemural sex," while real sex between
them was far and between like 8 months,
hence, abnormal. During their marriage,
plaintiff exhibited weird sexual behavior
which defendant attributed to plaintiff's drug
addiction (TSN, 11-5-98, pp. 5-8). A
compulsive liar, plaintiff has a bad temper
who breaks things when he had tantrums.
Plaintiff took drugs like amphetamines,
benzedrine and the like, "speed" drugs that
kept him from sleep and then would take
barbiturates or downers, like "mogadon."
Defendant tried very hard to keep plaintiff
away from drugs but failed as it has become
a habit to him. They had no fixed home since
they often moved and partly lived in Spain
for about four and a half years, and during all
those times, her mother-in-law would send
some financial support on and off, while
defendant worked as an English teacher.
Plaintiff, who was supposed to be studying,
did nothing. Their marriage became
unbearable, as plaintiff physically and
verbally abused her, and this led to a break
up in their marriage. Later, she learned that
plaintiff married one Angela Garcia in 1991
in the United States.
Jose Cardenas, father of defendant, testified
that he was not aware of the civil wedding of
his daughter with the plaintiff; that his
daughter and grandson came to stay with
him after they returned home from Spain and
have lived with him and his wife ever since.
His grandsons practically grew up under his
care and guidance, and he has supported
his daughter's expenses for medicines and
hospital confinements (Exhs. "9" and "10").
Victoria Cardenas Navarro, defendant's
sister, testified and corroborated that it was
plaintiff's family that attended to all the
preparations and arrangements for the
church wedding of her sister with plaintiff,
and that she didn't know that the couple wed
in civil rites some time prior to the church
wedding. She also stated that she and her
parents were still civil with the plaintiff inspite
of the marital differences between plaintiff
and defendant.
As adverse witness for the defendant,
plaintiff testified that because of
irreconcilable differences with defendant and
in order for them to live their own lives, they
agreed to divorce each other; that when he
applied for and obtained a divorce decree in
the United States on June 14, 1983 (Exh.
"13"), it was with the knowledge and consent
of defendant who in fact authorized a certain
Atty. Quisumbing to represent her (TSN, 12-
7-2000, p. 21). During his adverse testimony,
plaintiff identified a recent certification dated
July 25, 2000 (Exh. "EE") issued by the
Local Civil Registrar of San Juan, that the
marriage license no. 2770792, the same
marriage license appearing in the marriage
contract (Exh. "A"), is inexistent, thus
appears to be fictitious.6
In its Decision dated 25 January 2002, declaring the
nullity of the marriage of the parties, the trial court
made the following justifications:
Thus, being one of the essential requisites
for the validity of the marriage, the lack or
absence of a license renders the marriage
void ab initio. It was shown under the various
certifications (Exhs. "I", "E", and "C") earlier
issued by the office of the Local Civil
Registrar of the Municipality of San Juan,
and the more recent one issued on July 25,
2000 (Exh. "EE") that no marriage license
no. 2770792 was ever issued by that office,
hence, the marriage license no. 2770792
appearing on the marriage contracts
executed on May 19, 1969 (Exh. "A") and on
May 31, 1969 (Exh. "F") was fictitious. Such
a certification enjoys probative value under
the rules on evidence, particularly Section
28, Rule 132 of the Rules of Court, x x x.
xxxx
WHEREFORE, the Court hereby declares
the civil marriage between Jaime O. Sevilla
and Carmelita N. Cardenas solemnized by
Rev. Cirilo D. Gonzales at the Manila City
Hall on May 19, 1969 as well as their
contract of marriage solemnized under
religious rites by Rev. Juan B. Velasco at the
Holy Redeemer Parish on May 31, 1969,
NULL and VOID for lack of the requisite
marriage license. Let the marriage contract
of the parties under Registry No. 601 (e-69)
of the registry book of the Local Civil
Registry of Manila be cancelled.
Let copies of this Decision be duly recorded
in the proper civil and property registries in
accordance with Article 52 of the Family
Code. Likewise, let a copy hereof be
forwarded the Office of the Solicitor General
for its record and information.7
Carmelita filed an appeal with the Court of Appeals. In
a Decision dated 20 December 2004, the Court of
Appeals disagreed with the trial court and held:
In People v. De Guzman (G.R. No. 106025,
February 9, 1994), the Supreme Court
explained that: "The presumption of
regularity of official acts may be rebutted
by affirmative evidence of irregularity or
failure to perform a duty. The presumption,
however, prevails until it is overcome by no
less than clear and convincing evidence to
the contrary. Thus, unless the presumption is
rebutted, it becomes conclusive."
In this case, We note that a certain Perlita
Mercader of the local civil registry of San
Juan testified that they "failed to locate the
book wherein marriage license no.
2770792 is registered," for the reason that
"the employee handling is already
retired." With said testimony We cannot
therefore just presume that the marriage
license specified in the parties' marriage
contract was not issued for in the end the
failure of the office of the local civil registrar
of San Juan to produce a copy of the
marriage license was attributable not to the
fact that no such marriage license was
issued but rather, because it "failed to locate
the book wherein marriage license no.
2770792 is registered." Simply put, if the
pertinent book were available for scrutiny,
there is a strong possibility that it would have
contained an entry on marriage license no.
2720792.
xxxx
Indeed, this Court is not prepared to annul
the parties' marriage on the basis of a mere
perception of plaintiff that his union with
defendant is defective with respect to an
essential requisite of a marriage contract, a
perception that ultimately was not
substantiated with facts on record.8
Jaime filed a Motion for Reconsideration dated 6
January 2005 which the Court of Appeals denied in a
Resolution dated 6 April 2005.
This denial gave rise to the present Petition filed by
Jaime.
He raises the following issues for Resolution.
1. Whether or not a valid marriage license
was issued in accordance with law to the
parties herein prior to the celebration of the
marriages in question;
2. Whether or not the Court of Appeals
correctly applied and relied on the
presumption of regularity of officials acts,
particularly the issuance of a marriage
license, arising solely from the contents of
the marriage contracts in question which
show on their face that a marriage license
was purportedly issued by the Local Civil
Registry of San Juan, Metro Manila, and
3. Whether or not respondent could validly
invoke/rely upon the presumption of validity
of a marriage arising from the admitted "fact
of marriage."9
At the core of this controversy is the determination of
whether or not the certifications from the Local Civil
Registrar of San Juan stating that no Marriage
License No. 2770792 as appearing in the marriage
contract of the parties was issued, are sufficient to
declare their marriage as null and void ab initio.
We agree with the Court of Appeals and rule in the
negative.
Pertinent provisions of the Civil Code which was the
law in force at the time of the marriage of the parties
are Articles 53,10 5811 and 80.12
Based on the foregoing provisions, a marriage license
is an essential requisite for the validity of marriage.
The marriage between Carmelita and Jaime is of no
exception.
At first glance, this case can very well be easily
dismissed as one involving a marriage that is null and
void on the ground of absence of a marriage license
based on the certifications issued by the Local Civil
Registar of San Juan. As ruled by this Court in the
case of Cariño v. Cariño13:
[A]s certified by the Local Civil Registrar of
San Juan, Metro Manila, their office has no
record of such marriage license. In Republic
v. Court of Appeals, the Court held that such
a certification is adequate to prove the non-
issuance of a marriage license. Absent any
circumstance of suspicion, as in the present
case, the certification issued by the local civil
registrar enjoys probative value, he being the
officer charged under the law to keep a
record of all date relative to the issuance of a
marriage license.
Such being the case, the presumed validity
of the marriage of petitioner and the
deceased has been sufficiently overcome. It
then became the burden of petitioner to
prove that their marriage is valid and that
they secured the required marriage license.
Although she was declared in default before
the trial court, petitioner could have squarely
met the issue and explained the absence of
a marriage license in her pleadings before
the Court of Appeals and this Court. But
petitioner conveniently avoided the issue and
chose to refrain from pursuing an argument
that will put her case in jeopardy. Hence, the
presumed validity of their marriage cannot
stand.
It is beyond cavil, therefore, that the
marriage between petitioner Susan Nicdao
and the deceased, having been solemnized
without the necessary marriage license, and
not being one of the marriages exempt from
the marriage license requirement, is
undoubtedly void ab initio.
The foregoing Decision giving probative value to the
certifications issued by the Local Civil Registrar
should be read in line with the decision in the earlier
case of Republic v. Court of Appeals,14 where it was
held that:
The above Rule authorized the custodian of
documents to certify that despite diligent
search, a particular document does not
 exist in his office or that a particular entry
of a specified tenor was not to be found
in a register. As custodians of public
documents, civil registrars are public officers
charged with the duty, inter alia, of
maintaining a register book where they are
required to enter all applications for marriage
licenses, including the names of the
applicants, the date the marriage license
was issued and such other relevant data.
(Emphasis supplied.) (SGD)RAFAEL D. ALISCAD, JR.
Local Civil Registrar
Thus, the certification to be issued by the Local Civil
Registrar must categorically state that the document
does not exist in his office or the particular entry could
not be found in the register despite diligent search.
Such certification shall be sufficient proof of lack or
absence of record as stated in Section 28, Rule 132
of the Rules of Court:
SEC. 28. Proof of lack of record. – a written
statement signed by an officer having the
custody of an official record or by his deputy
that after diligent search, no record or entry
of a specified tenor is found to exist in the
records of his office, accompanied by a
certificate as above provided, is admissible
as evidence that the records of his office
contain no such record or entry.
We shall now proceed to scrutinize whether the
certifications by the Local Civil Registrar of San Juan
in connection with Marriage License No. 2770792
complied with the foregoing requirements and
deserved to be accorded probative value. (SGD)RAFAEL D. ALISCAD, JR.
Local Civil Registrar
The first Certification15 issued by the Local Civil
Registrar of San Juan, Metro Manila, was dated 11
March 1994. It reads:
TO WHOM IT MAY CONCERN:
No Marriage License Number 2770792 were
(sic) ever issued by this Office. With regards
(sic) to Marriage License Number
2880792,16 we exert all effort but we cannot
find the said number.
Hope and understand our loaded work
cannot give you our full force locating the
above problem.
San Juan, Metro Manila
March 11, 1994
The second certification17 was dated 20 September
1994 and provides:
(SGD)RAFAEL D. ALISCAD, JR.
Local Civil Registrar
TO WHOM IT MAY CONCERN:
This is to certify that no marriage license
Number 2770792 were ever issued by this
Office with regards to Marriage License
Number 2880792, we exert all effort but we
cannot find the said number.
Hope and understand our loaded work
cannot give you our full force locating the
above problem.
San Juan, Metro Manila
September 20, 1994
The third Certification,18 issued on 25 July 2000,
states:
TO WHOM IT MAY CONCERN:
This is to certify that according to the records
of this office, no Marriage License
Application was filed and no Marriage
License No. 2770792 allegedly dated May
19, 1969 was issued by this Office to MR.
JAIME O. SEVILLA and MS. CARMELITA
CARDENAS-SEVILLA.
This is to further certify that the said
application and license do not exist in our
Local Civil Registry Index and, therefore,
appear to be fictitious.
This certification is being issued upon the
request of the interested party for whatever
legal intent it may serve.
San Juan, Metro Manila
July 25, 2000
Note that the first two certifications bear the statement
that "hope and understand our loaded work cannot
give you our full force locating the above problem." It
could be easily implied from the said statement that
the Office of the Local Civil Registrar could not exert
its best efforts to locate and determine the existence
of Marriage License No. 2770792 due to its "loaded
work." Likewise, both certifications failed to state with
absolute certainty whether or not such license was
issued.
This implication is confirmed in the testimony of the
representative from the Office of the Local Civil
Registrar of San Juan, Ms. Perlita Mercader, who
stated that they cannot locate the logbook due to the
fact that the person in charge of the said logbook had
already retired. Further, the testimony of the said
person was not presented in evidence. It does not
appear on record that the former custodian of the
logbook was deceased or missing, or that his
testimony could not be secured. This belies the claim
that all efforts to locate the logbook or prove the
material contents therein, had been exerted.
As testified to by Perlita Mercader:
Q Under the subpoena duces tecum, you
were required to bring to this Court among
other things the register of application of/or
(sic) for marriage licenses received by the
Office of the :Local Civil Registrar of San
Juan, Province of Rizal, from January 19,
1969 to May 1969. Did you bring with you
those records?
A I brought may 19, 1969, sir.
Q Is that the book requested of you under
no. 3 of the request for subpoena?
A Meron pang January. I forgot, January . . .
Q Did you bring that with you?
A No, sir.
Q Why not?
A I cannot locate the book. This is the
only book.
Q Will you please state if this is the register
of marriage of marriage applications that
your office maintains as required by the
manual of the office of the Local Civil
Registrar?
COURT
May I see that book and the portion
marked by the witness.
xxxx
COURT
Why don't you ask her direct
question whether marriage license
2880792 is the number issued by
their office while with respect to
license no. 2770792 the office of
the Local Civil Registrar of San
Juan is very definite about it it was
never issued. Then ask him how
about no. 2880792 if the same was
ever issued by their office. Did you
ask this 2887092, but you could not
find the record? But for the moment
you cannot locate the books?
Which is which now, was this
issued or not?
A The employee handling it is already
retired, sir.19
Given the documentary and testimonial evidence to
the effect that utmost efforts were not exerted to
locate the logbook where Marriage License No.
2770792 may have been entered, the presumption of
regularity of performance of official function by the
Local Civil Registrar in issuing the certifications, is
effectively rebutted.
According to Section 3(m),20 Rule 131 of the Rules of
Court, the presumption that official duty has been
regularly performed is among the disputable
presumptions.
In one case, it was held:
A disputable presumption has been defined
as a species of evidence that may be
accepted and acted on where there is no
other evidence to uphold the contention for
which it stands, or one which may be
overcome by other evidence. One such
disputable/rebuttable presumption is that an
official act or duty has been regularly
performed. x x x.21
The presumption of regularity of official acts may be
rebutted by affirmative evidence of irregularity or
failure to perform a duty.22
The presumption of regularity of performance of
official duty is disputable and can be overcome by
other evidence as in the case at bar where the
presumption has been effectively defeated by the
tenor of the first and second certifications.
Moreover, the absence of the logbook is not
conclusive proof of non-issuance of Marriage License
No. 2770792. It can also mean, as we believed true in
the case at bar, that the logbook just cannot be found.
In the absence of showing of diligent efforts to search
for the said logbook, we cannot easily accept that
absence of the same also means non-existence or
falsity of entries therein.
Finally, the rule is settled that every intendment of the
law or fact leans toward the validity of the marriage,
the indissolubility of the marriage bonds.23 The courts
look upon this presumption with great favor. It is not to
be lightly repelled; on the contrary, the presumption is
of great weight.24
The Court is mindful of the policy of the 1987
Constitution to protect and strengthen the family as
the basic autonomous social institution and marriage
as the foundation of the family. Thus, any doubt
should be resolved in favor of the validity of the
marriage.25
The parties have comported themselves as husband
and wife and lived together for several years
producing two offsprings,26 now adults themselves. It
took Jaime several years before he filed the petition
for declaration of nullity. Admittedly, he married
another individual sometime in 1991.27 We are not
ready to reward petitioner by declaring the nullity of
his marriage and give him his freedom and in the
process allow him to profit from his own deceit and
perfidy.28
Our Constitution is committed to the policy of
strengthening the family as a basic social institution.
Our family law is based on the policy that marriage is
not a mere contract, but a social institution in which
the State is vitally interested. The State can find no
stronger anchor than on good, solid and happy
families. The break-up of families weakens our social
and moral fabric; hence, their preservation is not the
concern of the family members alone.29
"The basis of human society throughout the civilized
world is x x x marriage. Marriage in this jurisdiction is
not only a civil contract, but it is a new relation, an
institution in the maintenance of which the public is
deeply interested. Consequently, every intendment of
the law leans toward legalizing matrimony. Persons
dwelling together in apparent matrimony are
presumed, in the absence of any counterpresumption
or evidence special to the case, to be in fact married.
The reason is that such is the common order of
society, and if the parties were not what they thus
hold themselves out as being, they would be living in
the constant violation of decency and of law. A
presumption established by our Code of Civil
Procedure is `that a man and a woman deporting
themselves as husband and wife have entered into a
lawful contract of marriage.' Semper praesumitur pro
matrimonio – Always presume marriage."30

This jurisprudential attitude towards marriage is based

on the prima facie presumption that a man and a
woman deporting themselves as husband and wife
have entered into a lawful contract of marriage.31

By our failure to come to the succor of Jaime, we are

not trifling with his emotion or deepest sentiments. As
we have said in Carating-Siayngco v.
Siayngco,32 regrettably, there are situations like this
one, where neither law nor society can provide the
specific answers to every individual problem.

WHEREFORE, premises considered, the instant

Petition is DENIED. The Decision of the Court of
Appeals dated 20 December 2004 and the Resolution
dated 6 April 2005 are AFFIRMED. Costs against the
petitioner.

SO ORDERED.

Panganiban, C.J., Ynares-Santiago, Austria-Martinez,

Callejo, Sr., J.J., concur.
G.R. No. 148220 June 15, 2005
ROSENDO HERRERA, petitioner,
vs.
ROSENDO ALBA, minor, represented by his
mother ARMI A. ALBA, and HON. NIMFA CUESTA-
VILCHES, Presiding Judge, Branch 48, Regional
Trial Court, Manila, respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for review1 to set aside the
Decision2 dated 29 November 2000 of the Court of
Appeals ("appellate court") in CA-G.R. SP No. 59766.
The appellate court affirmed two Orders3 issued by
Branch 48 of the Regional Trial Court of Manila ("trial
court") in SP No. 98-88759. The Order dated 3
February 2000 directed Rosendo Herrera
("petitioner") to submit to deoxyribonucleic acid
("DNA") paternity testing, while the Order dated 8
June 2000 denied petitioner’s motion for
reconsideration.
The Facts
On 14 May 1998, then thirteen-year-old Rosendo
Alba ("respondent"), represented by his mother Armi
Alba, filed before the trial court a petition for
compulsory recognition, support and damages
against petitioner. On 7 August 1998, petitioner filed
his answer with counterclaim where he denied that he
is the biological father of respondent. Petitioner also
denied physical contact with respondent’s mother.
Respondent filed a motion to direct the taking of DNA
paternity testing to abbreviate the proceedings. To
support the motion, respondent presented the
testimony of Saturnina C. Halos, Ph.D. When she
testified, Dr. Halos was an Associate Professor at De
La Salle University where she taught Cell Biology.
She was also head of the University of the Philippines
Natural Sciences Research Institute ("UP-NSRI"), a
DNA analysis laboratory. She was a former professor
at the University of the Philippines in Diliman, Quezon
City, where she developed the Molecular Biology
Program and taught Molecular Biology. In her
testimony, Dr. Halos described the process for DNA
paternity testing and asserted that the test had an
accuracy rate of 99.9999% in establishing paternity.4
Petitioner opposed DNA paternity testing and
contended that it has not gained acceptability.
Petitioner further argued that DNA paternity testing
violates his right against self-incrimination.
The Ruling of the Trial Court
In an Order dated 3 February 2000, the trial court
granted respondent’s motion to conduct DNA
paternity testing on petitioner, respondent and Armi
Alba. Thus:
In view of the foregoing, the motion of the petitioner
is GRANTED and the relevant individuals, namely:
the petitioner, the minor child, and respondent are
directed to undergo DNA paternity testing in a
laboratory of their common choice within a period of
thirty (30) days from receipt of the Order, and to
submit the results thereof within a period of ninety
(90) days from completion. The parties are further
reminded of the hearing set on 24 February 2000 for
the reception of other evidence in support of the
petition.
IT IS SO ORDERED.5 (Emphasis in the original)
Petitioner filed a motion for reconsideration of the 3
February 2000 Order. He asserted that "under the
present circumstances, the DNA test [he] is
compelled to take would be inconclusive, irrelevant
and the coercive process to obtain the requisite
specimen…, unconstitutional."
In an Order dated 8 June 2000, the trial court denied
petitioner’s motion for reconsideration.6
On 18 July 2000, petitioner filed before the appellate
court a petition for certiorari under Rule 65 of the
1997 Rules of Civil Procedure. He asserted that the
trial court rendered the Orders dated 3 February 2000
and 8 June 2000 "in excess of, or without jurisdiction
and/or with grave abuse of discretion amounting to
lack or excess of jurisdiction." Petitioner further
contended that there is "no appeal nor any [other]
plain, adequate and speedy remedy in the ordinary
course of law." Petitioner maintained his previous
objections to the taking of DNA paternity testing. He
submitted the following grounds to support his
objection:
1. Public respondent misread and misapplied
the ruling in Lim vs. Court of Appeals (270
SCRA 2).
2. Public respondent ruled to accept DNA
test without considering the limitations on,
and conditions precedent for the admissibility
of DNA testing and ignoring the serious
constraints affecting the reliability of the test
as admitted by private respondent’s "expert"
witness.
3. Subject Orders lack legal and factual
support, with public respondent relying on
scientific findings and conclusions unfit for
judicial notice and unsupported by experts in
the field and scientific treatises.
4. Under the present circumstances the DNA
testing petitioner [is] compelled to take will
be inconclusive, irrelevant and the coercive
process to obtain the requisite specimen
from the petitioner, unconstitutional.7
The Ruling of the Court of Appeals
On 29 November 2000, the appellate court issued a
decision denying the petition and affirming the
questioned Orders of the trial court. The appellate
court stated that petitioner merely desires to correct
the trial court’s evaluation of evidence. Thus, appeal
is an available remedy for an error of judgment that
the court may commit in the exercise of its jurisdiction.
The appellate court also stated that the proposed
DNA paternity testing does not violate his right
against self-incrimination because the right applies
only to testimonial compulsion. Finally, the appellate
court pointed out that petitioner can still refute a
possible adverse result of the DNA paternity testing.
The dispositive portion of the appellate court’s
decision reads:
WHEREFORE, foregoing premises considered, the
Petition is hereby DENIED DUE COURSE, and
ordered dismissed, and the challenged orders of the
Trial Court AFFIRMED, with costs to Petitioner.
SO ORDERED.8
Petitioner moved for reconsideration, which the
appellate court denied in its Resolution dated 23 May
2001.9
Issues
Petitioner raises the issue of whether a DNA test is a
valid probative tool in this jurisdiction to determine
filiation. Petitioner asks for the conditions under which
DNA technology may be integrated into our judicial
system and the prerequisites for the admissibility of
DNA test results in a paternity suit.10
Petitioner further submits that the appellate court
gravely abused its discretion when it authorized the
trial court "to embark in [sic] a new procedure xxx to
determine filiation despite the absence of legislation
to ensure its reliability and integrity, want of official
recognition as made clear in Lim vs. Court of
Appeals and the presence of technical and legal
constraints in respect of [sic] its
implementation."11 Petitioner maintains that the
proposed DNA paternity testing violates his right
against self-incrimination.12
The Ruling of the Court
The petition has no merit.
Before discussing the issues on DNA paternity
testing, we deem it appropriate to give an overview of
a paternity suit and apply it to the facts of this case.
We shall consider the requirements of the Family
Code and of the Rules of Evidence to establish
paternity and filiation.
An Overview of the Paternity and Filiation Suit
Filiation proceedings are usually filed not just to
adjudicate paternity but also to secure a legal right
associated with paternity, such as
citizenship,13 support (as in the present case), or Paternity and filiation disputes can easily become
inheritance. The burden of proving paternity is on the credibility contests. We now look to the law, rules, and
person who alleges that the putative father is the governing jurisprudence to help us determine what
biological father of the child. There are four significant evidence of incriminating acts on paternity and filiation
procedural aspects of a traditional paternity action are allowed in this jurisdiction.
which parties have to face: a prima facie case,
affirmative defenses, presumption of legitimacy, and Laws, Rules, and Jurisprudence Establishing Filiation
physical resemblance between the putative father and
child.14
The relevant provisions of the Family Code provide as
follows:
A prima facie case exists if a woman declares that
she had sexual relations with the putative father. In
our jurisdiction, corroborative proof is required to carry ART. 175. Illegitimate children may establish their
the burden forward and shift it to the putative father.15 illegitimate filiation in the same way and on the same
evidence as legitimate children.
There are two affirmative defenses available to the
putative father. The putative father may show xxx
incapability of sexual relations with the mother,
because of either physical absence or ART. 172. The filiation of legitimate children is
impotency.16 The putative father may also show that established by any of the following:
the mother had sexual relations with other men at the
time of conception. (1) The record of birth appearing in the civil
register or a final judgment; or
A child born to a husband and wife during a valid
marriage is presumed legitimate.17 The child’s
(2) An admission of legitimate filiation in a
legitimacy may be impugned only under the strict public document or a private handwritten
standards provided by law.18
instrument and signed by the parent
concerned.
Finally, physical resemblance between the putative
father and child may be offered as part of evidence of In the absence of the foregoing evidence, the
paternity. Resemblance is a trial technique unique to legitimate filiation shall be proved by:
a paternity proceeding. However, although likeness is
a function of heredity, there is no mathematical
formula that could quantify how much a child must or (1) The open and continuous possession of
must not look like his biological father.19 This kind of the status of a legitimate child; or
evidence appeals to the emotions of the trier of fact.
(2) Any other means allowed by the Rules of
In the present case, the trial court encountered three Court and special laws.
of the four aspects. Armi Alba, respondent’s mother,
put forward a prima facie case when she asserted The Rules on Evidence include provisions on
that petitioner is respondent’s biological father. Aware pedigree. The relevant sections of Rule 130 provide:
that her assertion is not enough to convince the trial
court, she offered corroborative proof in the form of
SEC. 39. Act or declaration about pedigree.—The act
letters and pictures. Petitioner, on the other hand,
or declaration of a person deceased, or unable to
denied Armi Alba’s assertion. He denied ever having
testify, in respect to the pedigree of another person
sexual relations with Armi Alba and stated that
related to him by birth or marriage, may be received in
respondent is Armi Alba’s child with another man.
evidence where it occurred before the controversy,
Armi Alba countered petitioner’s denial by submitting
and the relationship between the two persons is
pictures of respondent and petitioner side by side, to
shown by evidence other than such act or declaration.
show how much they resemble each other.
The word "pedigree" includes relationship, family
genealogy, birth, marriage, death, the dates when and
the places where these facts occurred, and the
names of the relatives. It embraces also facts of
family history intimately connected with pedigree.
SEC. 40. Family reputation or tradition regarding
pedigree.—The reputation or tradition existing in a
family previous to the controversy, in respect to the
pedigree of any one of its members, may be received
in evidence if the witness testifying thereon be also a
member of the family, either by consanguinity or
affinity. Entries in family bibles or other family books
or charts, engraving on rings, family portraits and the
like, may be received as evidence of pedigree.
This Court’s rulings further specify what incriminating
acts are acceptable as evidence to establish filiation.
In Pe Lim v. CA,20 a case petitioner often cites, we
stated that the issue of paternity still has to be
resolved by such conventional evidence as the
relevant incriminating verbal and written acts by the
putative father. Under Article 278 of the New Civil
Code, voluntary recognition by a parent shall be made
in the record of birth, a will, a statement before a court
of record, or in any authentic writing. To be effective,
the claim of filiation must be made by the putative
father himself and the writing must be the writing of
the putative father.21 A notarial agreement to support
a child whose filiation is admitted by the putative
father was considered acceptable evidence.22 Letters
to the mother vowing to be a good father to the child
and pictures of the putative father cuddling the child
on various occasions, together with the certificate of
live birth, proved filiation.23 However, a student
permanent record, a written consent to a father’s
operation, or a marriage contract where the putative
father gave consent, cannot be taken as authentic
writing.24 Standing alone, neither a certificate of
baptism25 nor family pictures26 are sufficient to
establish filiation.
So far, the laws, rules, and jurisprudence seemingly
limit evidence of paternity and filiation to incriminating
acts alone. However, advances in science show that
sources of evidence of paternity and filiation need not
be limited to incriminating acts. There is now almost
universal scientific agreement that blood grouping
tests are conclusive on non-paternity, although
inconclusive on paternity.27
In Co Tao v. Court of Appeals,28 the result of the
blood grouping test showed that the putative father
was a "possible father" of the child. Paternity was
imputed to the putative father after the possibility of
paternity was proven on presentation during trial of
facts and circumstances other than the results of the
blood grouping test.
In Jao v. Court of Appeals,29 the child, the mother,
and the putative father agreed to submit themselves
to a blood grouping test. The National Bureau of
Investigation ("NBI") conducted the test, which
indicated that the child could not have been the
possible offspring of the mother and the putative
father. We held that the result of the blood grouping
test was conclusive on the non-paternity of the
putative father.
The present case asks us to go one step further. We
are now asked whether DNA analysis may be
admitted as evidence to prove paternity.
DNA Analysis as Evidence
DNA is the fundamental building block of a person’s
entire genetic make-up. DNA is found in all human
cells and is the same in every cell of the same
person. Genetic identity is unique. Hence, a person’s
DNA profile can determine his identity.30
DNA analysis is a procedure in which DNA extracted
from a biological sample obtained from an individual
is examined. The DNA is processed to generate a
pattern, or a DNA profile, for the individual from whom
the sample is taken. This DNA profile is unique for
each person, except for identical twins.31 We quote
relevant portions of the trial court’s 3 February 2000
Order with approval:
Everyone is born with a distinct genetic blueprint
called DNA (deoxyribonucleic acid). It is exclusive
to an individual (except in the rare occurrence of
identical twins that share a single, fertilized egg), and
DNA is unchanging throughout life. Being a
component of every cell in the human body, the DNA
of an individual’s blood is the very DNA in his or her
skin cells, hair follicles, muscles, semen, samples
from buccal swabs, saliva, or other body parts.
The chemical structure of DNA has four bases. They
are known as A (adenine), G (guanine), C (cystosine)
and T(thymine). The order in which the four bases
appear in an individual’s DNA determines his or her
physical makeup. And since DNA is a double-
stranded molecule, it is composed of two specific
paired bases, A-T or T-A and G-C orC-G. These are
called "genes."
Every gene has a certain number of the above base
pairs distributed in a particular sequence. This gives a
person his or her genetic code. Somewhere in the
DNA framework, nonetheless, are sections that differ.
They are known as "polymorphic loci," which are the
areas analyzed in DNA typing (profiling, tests,
fingerprinting, or analysis/DNA fingerprinting/genetic
tests or fingerprinting). In other words, DNA typing
simply means determining the "polymorphic loci."
How is DNA typing performed? From a DNA sample
obtained or extracted, a molecular biologist may
proceed to analyze it in several ways. There are five
(5) techniques to conduct DNA typing. They are:
the RFLP (restriction fragment length polymorphism);
"reverse dot blot" or HLA DQ a/Pm loci which was
used in 287 cases that were admitted as evidence by
37 courts in the U.S. as of November 1994; mtDNA
process; VNTR (variable number tandem repeats);
and the most recent which is known as the PCR-
([polymerase] chain reaction) based STR (short
tandem repeats) method which, as of 1996, was
availed of by most forensic laboratories in the world.
PCR is the process of replicating or copying DNA in
an evidence sample a million times through repeated
cycling of a reaction involving the so-called DNA
polymerize enzyme. STR, on the other hand, takes
measurements in 13 separate places and can match
two (2) samples with a reported theoretical error rate
of less than one (1) in a trillion.
Just like in fingerprint analysis, in DNA
typing, "matches" are determined. To illustrate, when
DNA or fingerprint tests are done to identify a suspect
in a criminal case, the evidence collected from the
crime scene is compared with the "known" print. If a
substantial amount of the identifying features are the
same, the DNA or fingerprint is deemed to be
a match. But then, even if only one feature of the
DNA or fingerprint is different, it is deemed not to
have come from the suspect.
As earlier stated, certain regions of human DNA show
variations between people. In each of these regions, a
person possesses two genetic types
called "allele", one inherited from each parent. In [a]
paternity test, the forensic scientist looks at a number
of these variable regions in an individual to produce a
DNA profile. Comparing next the DNA profiles of the
mother and child, it is possible to determine which half
of the child’s DNA was inherited from the mother. The
other half must have been inherited from the
biological father. The alleged father’s profile is then
examined to ascertain whether he has the DNA types
in his profile, which match the paternal types in the
child. If the man’s DNA types do not match that of the
child, the man is excluded as the father. If the DNA
types match, then he is not excluded as the
father.32 (Emphasis in the original)
Although the term "DNA testing" was mentioned in the
1995 case of People v. Teehankee, Jr.,33 it was only
in the 2001 case of Tijing v. Court of Appeals34 that
more than a passing mention was given to DNA
analysis. In Tijing,we issued a writ of habeas
corpus against respondent who abducted petitioners’
youngest son. Testimonial and documentary evidence
and physical resemblance were used to establish
parentage. However, we observed that:
Parentage will still be resolved using conventional
methods unless we adopt the modern and scientific
ways available. Fortunately, we have now the facility
and expertise in using DNA test for identification and
parentage testing. The University of the Philippines
Natural Science Research Institute (UP-NSRI) DNA
Analysis Laboratory has now the capability to conduct
DNA typing using short tandem repeat (STR)
analysis. xxx For it was said, that courts should apply
the results of science when completely obtained in aid
of situations presented, since to reject said result is to
deny progress. Though it is not necessary in this case
to resort to DNA testing, in [the] future it would be
useful to all concerned in the prompt resolution of
parentage and identity issues.
Admissibility of DNA Analysis as Evidence
The 2002 case of People v. Vallejo35 discussed DNA
analysis as evidence. This may be considered a 180
degree turn from the Court’s wary attitude towards
DNA testing in the 1997 Pe Lim case,36 where we
stated that "DNA, being a relatively new science, xxx
has not yet been accorded official recognition by our
courts." In Vallejo, the DNA profile from the vaginal
swabs taken from the rape victim matched the
accused’s DNA profile. We affirmed the accused’s
conviction of rape with homicide and sentenced him
to death. We declared:
In assessing the probative value of DNA evidence,
therefore, courts should consider, among other things,
the following data: how the samples were collected,
how they were handled, the possibility of
contamination of the samples, the procedure followed
in analyzing the samples, whether the proper
standards and procedures were followed in
conducting the tests, and the qualification of the
analyst who conducted the tests.37
Vallejo discussed the probative value, not
admissibility, of DNA evidence. By 2002, there was no
longer any question on the validity of the use of DNA
analysis as evidence. The Court moved from the
issue of according "official recognition" to DNA
analysis as evidence to the issue of observance of
procedures in conducting DNA analysis.
In 2004, there were two other cases that had a
significant impact on jurisprudence on DNA
testing: People v. Yatar38 and In re: The Writ of
Habeas Corpus for Reynaldo de Villa.39 In Yatar, a
match existed between the DNA profile of the semen
found in the victim and the DNA profile of the blood
sample given by appellant in open court. The Court,
following Vallejo’s footsteps, affirmed the conviction
of appellant because the physical evidence,
corroborated by circumstantial evidence, showed
appellant guilty of rape with homicide. In De Villa, the
convict-petitioner presented DNA test results to prove
that he is not the father of the child conceived at the
time of commission of the rape. The Court ruled that a
difference between the DNA profile of the convict-
petitioner and the DNA profile of the victim’s child
does not preclude the convict-petitioner’s commission
of rape.
In the present case, the various pleadings filed by
petitioner and respondent refer to two United States
cases to support their respective positions on the
admissibility of DNA analysis as evidence: Frye v.
U.S.40 and Daubert v. Merrell Dow
Pharmaceuticals.41 In Frye v. U.S., the trial court
convicted Frye of murder. Frye appealed his
conviction to the Supreme Court of the District of
Columbia. During trial, Frye’s counsel offered an
expert witness to testify on the result of a systolic
blood pressure deception test42 made on defendant.
The state Supreme Court affirmed Frye’s conviction
and ruled that "the systolic blood pressure deception
test has not yet gained such standing and scientific
recognition among physiological and psychological
authorities as would justify the courts in admitting
expert testimony deduced from the discovery,
development, and experiments thus far made."
The Fryestandard of general acceptance states as
follows:
Just when a scientific principle or discovery crosses
the line between the experimental and demonstrable
stages is difficult to define. Somewhere in this twilight
zone the evidential force of the principle must be
recognized, and while courts will go a long way in
admitting expert testimony deduced from a well
recognized scientific principle or discovery, the thing
from which the deduction is made must be sufficiently
established to have gained general acceptance in the
particular field in which it belongs.
In 1989, State v.
Schwartz43 modified the Frye standard. Schwartz
was charged with stabbing and murder. Bloodstained
articles and blood samples of the accused and the
victim were submitted for DNA testing to a
government facility and a private facility. The
prosecution introduced the private testing facility’s
results over Schwartz’s objection. One of the issues
brought before the state Supreme Court included the
admissibility of DNA test results in a criminal
proceeding. The state Supreme Court concluded that:
While we agree with the trial court that forensic DNA
typing has gained general acceptance in the scientific
community, we hold that admissibility of specific test
results in a particular case hinges on the laboratory’s
compliance with appropriate standards and controls,
and the availability of their testing data and results.44
In 1993, Daubert v. Merrell Dow Pharmaceuticals,
Inc.45 further modified the Frye-
Schwartz standard.Daubert was a product liability
case where both the trial and appellate courts denied
the admissibility of an expert’s testimony because it
failed to meet the Frye standard of "general
acceptance." The United States Supreme Court ruled
that in federal trials, the Federal Rules of Evidence
have superseded the Frye standard. Rule 401 defines
relevant evidence, while Rule 402 provides the
foundation for admissibility of evidence. Thus:
Rule 401. "Relevant evidence" is defined as that
which has any "tendency to make the existence of
any fact that is of consequence to the determination
of the action more probable or less probable than it
would be without the evidence.
Rule 402. All relevant evidence is admissible, except
as otherwise provided by the Constitution of the
United States, by Act of Congress, by these rules, or
by other rules prescribed by the Supreme Court
pursuant to statutory authority. Evidence which is not
relevant is not admissible.
Rule 702 of the Federal Rules of Evidence governing
expert testimony provides:
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an
opinion or otherwise.
Daubert cautions that departure from
the Frye standard of general acceptance does not
mean that the Federal Rules do not place limits on the
admissibility of scientific evidence. Rather, the judge
must ensure that the testimony’s reasoning or method
is scientifically valid and is relevant to the issue.
Admissibility would depend on factors such as (1)
whether the theory or technique can be or has been
tested; (2) whether the theory or technique has been
subjected to peer review and publication; (3) the
known or potential rate of error; (4) the existence and
maintenance of standards controlling the technique’s
operation; and (5) whether the theory or technique is
generally accepted in the scientific community.
Another product liability case, Kumho Tires Co. v.
Carmichael,46 further modified the Daubert standard.
This led to the amendment of Rule 702 in 2000 and
which now reads as follows:
If scientific, technical or other specialized knowledge
will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an
opinion or otherwise, if (1) the testimony is based
upon sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the
witness has applied the principles and methods
reliably to the facts of the case.
We now determine the applicability in this jurisdiction
of these American cases. Obviously, neither the Frye-
Schwartz standard nor the Daubert-Kumho standard
is controlling in the Philippines.47 At best, American
jurisprudence merely has a persuasive effect on our
decisions. Here, evidence is admissible when it is
relevant to the fact in issue and is not otherwise
excluded by statute or the Rules of Court.48 Evidence
is relevant when it has such a relation to the fact in
issue as to induce belief in its existence or non-
existence.49 Section 49 of Rule 130, which governs
the admissibility of expert testimony, provides as
follows:
The opinion of a witness on a matter requiring special
knowledge, skill, experience or training which he is
shown to possess may be received in evidence.
This Rule does not pose any legal obstacle to the
admissibility of DNA analysis as evidence. Indeed,
even evidence on collateral matters is allowed "when
it tends in any reasonable degree to establish the
probability or improbability of the fact in issue."50
Indeed, it would have been convenient to merely refer
petitioner to our decisions in Tijing,
Vallejo and Yatar to illustrate that DNA analysis is
admissible as evidence. In our jurisdiction, the
restrictive tests for admissibility established by Frye-
Schwartz and Daubert-Kumho go into the weight of
the evidence.
Probative Value of DNA Analysis as Evidence
Despite our relatively liberal rules on admissibility, trial
courts should be cautious in giving credence to DNA
analysis as evidence. We reiterate our statement
in Vallejo:
In assessing the probative value of DNA evidence,
therefore, courts should consider, among other things,
the following data: how the samples were collected,
how they were handled, the possibility of
contamination of the samples, the procedure followed
in analyzing the samples, whether the proper
standards and procedures were followed in
conducting the tests, and the qualification of the
analyst who conducted the tests.51]
We also repeat the trial court’s explanation of DNA
analysis used in paternity cases:
In [a] paternity test, the forensic scientist looks at a
number of these variable regions in an individual to
produce a DNA profile. Comparing next the DNA
profiles of the mother and child, it is possible to
determine which half of the child’s DNA was inherited
from the mother. The other half must have been
inherited from the biological father. The alleged
father’s profile is then examined to ascertain whether
he has the DNA types in his profile, which match the
paternal types in the child. If the man’s DNA types do
not match that of the child, the man is excluded as
the father. If the DNA types match, then he
is not excluded as the father.52
It is not enough to state that the child’s DNA profile
matches that of the putative father. A complete match
between the DNA profile of the child and the DNA
profile of the putative father does not necessarily
establish paternity. For this reason, following the
highest standard adopted in an American
jurisdiction,53 trial courts should require at least 99.9%
as a minimum value of the Probability of Paternity
("W") prior to a paternity inclusion. W is a numerical
estimate for the likelihood of paternity of a putative
father compared to the probability of a random match
of two unrelated individuals. An appropriate reference
population database, such as the Philippine
population database, is required to compute for W.
Due to the probabilistic nature of paternity inclusions,
W will never equal to 100%. However, the accuracy of
W estimates is higher when the putative father,
mother and child are subjected to DNA analysis
compared to those conducted between the putative
father and child alone.54
DNA analysis that excludes the putative father from
paternity should be conclusive proof of non-paternity.
If the value of W is less than 99.9%, the results of the
DNA analysis should be considered as corroborative
evidence. If the value of W is 99.9% or higher, then
there is refutable presumption of paternity.55 This
refutable presumption of paternity should be
subjected to the Vallejo standards.
Right Against Self-Incrimination
Section 17, Article 3 of the 1987 Constitution provides
that "no person shall be compelled to be a witness
against himself." Petitioner asserts that obtaining
samples from him for DNA testing violates his right
against self-incrimination. Petitioner ignores our
earlier pronouncements that the privilege is applicable
only to testimonial evidence. Again, we quote relevant
portions of the trial court’s 3 February 2000 Order with
approval:
his or her own defenses.57 Where the evidence to aid
this investigation is obtainable through the facilities of
modern science and technology, such evidence
should be considered subject to the limits established
by the law, rules, and jurisprudence.
WHEREFORE, we DISMISS the petition. We AFFIRM
the Decision of the Court of Appeals dated 29
November 2000 in CA-G.R. SP No. 59766. We also
AFFIRM the Orders dated 3 February 2000 and 8
June 2000 issued by Branch 48 of the Regional Trial
Court of Manila in Civil Case No. SP-98-88759.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Quisumbing, Ynares-
Santiago, and Azcuna, JJ., concur.

Obtaining DNA samples from an accused in a criminal

case or from the respondent in a paternity case,
contrary to the belief of respondent in this action, will
not violate the right against self-incrimination. This
privilege applies only to evidence that
is "communicative" in essence taken under duress
(People vs. Olvis, 154 SCRA 513, 1987). The
Supreme Court has ruled that the right against self-
incrimination is just a prohibition on the use of
physical or moral compulsion to extort communication
(testimonial evidence) from a defendant, not an
exclusion of evidence taken from his body when it
may be material. As such, a defendant can be
required to submit to a test to extract virus from his
body (as cited in People vs. Olvis, Supra); the
substance emitting from the body of the accused was
received as evidence for acts of lasciviousness (US
vs. Tan Teng, 23 Phil. 145); morphine forced out of
the mouth was received as proof (US vs. Ong Siu
Hong, 36 Phil. 735); an order by the judge for the
witness to put on pair of pants for size was allowed
(People vs. Otadora, 86 Phil. 244); and the court can
compel a woman accused of adultery to submit for
pregnancy test (Villaflor vs. Summers, 41 Phil. 62),
since the gist of the privilege is the restriction
on "testimonial compulsion."56

The policy of the Family Code to liberalize the rule on

the investigation of the paternity and filiation of
children, especially of illegitimate children, is without
prejudice to the right of the putative parent to claim
G.R. No. 132164 October 19, 2004
CIVIL SERVICE COMMISSION, petitioner,
vs.
ALLYSON BELAGAN, respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
When the credibility of a witness is sought to be
impeached by proof of his reputation, it is necessary
that the reputation shown should be that which
existed before the occurrence of the circumstances
out of which the litigation arose,1 or at the time of the
trial and prior thereto, but not at a period remote from
the commencement of the suit.2 This is because a
person of derogatory character or reputation can still
change or reform himself.
For our resolution is the petition for review
on certiorari of the Court of Appeals’ Decision3 dated
January 8, 1998, in CA-G.R. SP. No. 44180, the
dispositive portion of which reads:
"WHEREFORE, Resolution No. 966213
dated September 23, 1996 and Resolution
No. 972423 dated April 11, 1997 of the
respondent Civil Service Commission are
hereby set aside. The complaint against
petitioner Allyson Belagan filed by
Magdalena Gapuz is hereby DISMISSED.
The dismissal of petitioner Belagan is lifted
and he is hereby ordered to be immediately
reinstated to his position without loss of
seniority, retirement, backwages and other
rights and benefits.
SO ORDERED."
The instant case stemmed from two (2) separate
complaints filed respectively by Magdalena Gapuz,
founder/directress of the "Mother and Child Learning
Center," and Ligaya Annawi, a public school teacher
at Fort Del Pilar Elementary School, against
respondent Dr. Allyson Belagan, Superintendent of
the Department of Education, Culture and Sports
(DECS), all from Baguio City. Magdalena charged
respondent with sexual indignities and harassment,
while Ligaya accused him of sexual harassment and
various malfeasances.
Magdalena’s sworn complaint alleges that sometime
in March 1994, she filed an application with the DECS
Office in Baguio City for a permit to operate a pre-
school. One of the requisites for the issuance of the
permit was the inspection of the school premises by
the DECS Division Office. Since the officer assigned
to conduct the inspection was not present, respondent
volunteered his services. Sometime in June 1994,
respondent and complainant visited the school. In the
course of the inspection, while both were descending
the stairs of the second floor, respondent suddenly
placed his arms around her shoulders and kissed her
cheek. Dumbfounded, she muttered, "Sir, is this part
of the inspection? Pati ba naman kayo sa DECS wala
ng values?" Respondent merely sheepishly smiled. At
that time, there were no other people in the area.
Fearful that her application might be jeopardized and
that her husband might harm respondent, Magdalena
just kept quiet.
Several days later, Magdalena went to the DECS
Division Office and asked respondent, "Sir, kumusta
yung application ko?" His reply was "Mag-date muna
tayo." She declined, explaining that she is married.
She then left and reported the matter to DECS
Assistant Superintendent Peter Ngabit.
Magdalena never returned to the DECS Division
Office to follow up her application. However, she was
forced to reveal the incidents to her husband when he
asked why the permit has not yet been released.
Thereupon, they went to the office of the respondent.
He merely denied having a personal relationship with
Magdalena.
Thereafter, respondent forwarded to the DECS
Regional Director his recommendation to approve
Magdalena’s application for a permit to operate a pre-
school.
Sometime in September 1994, Magdalena read from
a local newspaper that certain female employees of
the DECS in Baguio City were charging a high-
ranking DECS official with sexual harassment. Upon
inquiry, she learned that the official being complained
of was respondent. She then wrote a letter-complaint
for sexual indignities and harassment to former DECS
Secretary Ricardo Gloria.
On October 4, 1994, respondent was placed under
suspension.
On the part of Ligaya Annawi, she alleged in her
complaint that on four separate occasions,
respondent touched her breasts, kissed her cheek,
touched her groins, embraced her from behind and
pulled her close to him, his organ pressing the lower
part of her back.
Ligaya also charged respondent with: (1) delaying the
payment of the teachers’ salaries; (2) failing to
release the pay differentials of substitute
teachers; (3) willfully refusing to release the teachers’
uniforms, proportionate allowances and productivity
pay; and (4) failing to constitute the Selection and
Promotion Board, as required by the DECS rules and
regulations.
The DECS conducted a joint investigation of the
complaints of Magdalena and Ligaya. In his defense,
respondent denied their charge of sexual harassment.
However, he presented evidence to disprove Ligaya’s
imputation of dereliction of duty.
On January 9, 1995, the DECS Secretary rendered a
Joint Decision4 finding respondent guilty of four (4)
counts of sexual "indignities or harassments"
committed against Ligaya; and two (2) counts of
"sexual advances or indignities" against Magdalena.
He was ordered dismissed from the service. The
dispositive portion of the Joint Decision reads:
"WHEREFORE, foregoing disquisitions duly
considered, decision is hereby rendered in
the two above-entitled cases, finding:
a) Respondent Dr. Allyson Belagan,
Superintendent of the DECS
Baguio City Schools Division
GUILTY of the four counts of sexual
indignities or harassments
committed against the person and
honor of complainant Miss Ligaya
Annawi, a Baguio City public school
 teacher, while in the performance of
his official duties and taking
advantage of his office. He is,
however, ABSOLVED of all the
other charges of administrative
malfeasance or dereliction of duty.
b) Respondent Baguio City
Superintendent Allyson Belagan
likewise GUILTY of the two counts
of sexual advances or indignities
committed against the person and
honor of complainant Mrs.
Magdalena Gapuz, a private school
teacher of Baguio City, while in the
performance of his official duties
and taking advantage of his office.
Consequently, respondent Allyson Belagan
is HEREBY ORDERED DISMISSED from
the government service, with prejudice to
reinstatement and all his retirement benefits
and other remunerations due him are
HEREBY DECLARED FORFEITED in favor
of the government.
SO ORDERED."5
Upon appeal, the Civil Service Commission (CSC), on
September 23, 1996, promulgated Resolution No.
9662136affirming the Decision of the DECS Secretary
in the case filed by Magdalena but dismissing the
complaint of Ligaya. The CSC ruled that respondent’s
transgression against Magdalena constitutes grave
misconduct. Thus:
"The acts of Belagan are serious breach of
good conduct since he was holding a
position which requires the incumbent
thereof to maintain a high degree of moral
uprightness. As Division Superintendent,
Belagan represents an institution tasked to
mold the character of children. Furthermore,
one of his duties is to ensure that teachers in
his division conduct themselves properly and
observe the proper discipline. Any improper
behavior on his part will seriously impair his
moral ascendancy over the teachers and
students which can not be
tolerated. Therefore, his misconduct
towards an applicant for a permit to
operate a private pre-school cannot be
treated lightly and constitutes the offense
of grave misconduct.
WHEREFORE, respondent Allyson Belagan
is hereby found guilty of grave
misconduct and imposed the penalty
of DISMISSAL from the service with all the
accessory penalties. The decision of the
DECS Secretary is modified accordingly."7
On October 29, 1996, respondent seasonably filed a
motion for reconsideration, contending that he has
never been charged of any offense in his thirty-seven
(37) years of service. By contrast, Magdalena was
charged with several offenses before the Municipal
Trial Court (MTC) of Baguio City, thus:
"1. Criminal Case No. 43416 for LIGHT
ORAL DEFAMATION (December 3, 1980)
2. Criminal Case No. 45629 for SLIGHT
PHYSICAL INJURIES (May 13, 1982)
3. Criminal Case No. 45630 for GRAVE
THREATS (May 13, 1982)
4. Criminal Case No. 45914 for GRAVE
THREATS (June 24, 1982)
5. Criminal Case No. 51532 for MALICIOUS
MISCHIEF (January 25, 1985)
6. Criminal Case No. 51533 for LIGHT
THREATS (January 25, 1985)
7. Criminal Case No. 51556 for GRAVE
ORAL DEFAMATION (January 30, 1985)
8. Criminal Case No. 51818 for LIGHT ORAL
DEFAMATION (March 18, 1985)
9. Criminal Case No. 51819 for GRAVE
ORAL DEFAMATION (March 18, 1985)
10. Criminal Case No. 51820 for
MALICIOUS MISCHIEF (March 18, 1985)
11. Criminal Case No. 51821 for UNJUST
VEXATION (March 18, 1985)
12. Criminal Case No. 62173 for UNJUST
VEXATION (May 29, 1991)
13. Criminal Case No. 62172 for GRAVE
ORAL DEFAMATION (May 29, 1991)
14. Criminal Case No. 62754 for GRAVE
ORAL DEFAMATION (December 2, 1986)
15. Criminal Case No. 55642 for GRAVE
ORAL DEFAMATION (December 2, 1986)
16. Criminal Case No. 55423 for GRAVE
ORAL DEFAMATION (October 24, 1986)
17. Criminal Case No. 55846 for GRAVE
ORAL DEFAMATION (November 4, 1986)
18. Criminal Case No. 55800 for GRAVE
ORAL DEFAMATION (January 7, 1987)
19. Criminal Case No. 57312 for UNJUST
VEXATION (November 29, 1987)
20. Criminal Case No. 55643 for SLIGHT
PHYSICAL INJURIES (December 13, 1985)
21. Criminal Case No. 53404 for UNJUST
VEXATION (December 13, 1985)
22. Criminal Case No. 55422 for UNJUST
VEXATION (October 24, 1986)"8
In addition, the following complaints against
Magdalena were filed with the Barangay Chairmen of
Barangay Gabriela Silang and Barangay Hillside, both
in Baguio City:
"1. Ordana vs. Gapuz (Brgy. Case No. 11-
19-02-A) for GRAVE THREATS, UNJUST
VEXATION, RUMOR MONGERING
2. Teresita De Los Santos vs. Gapuz (Brgy.
Case No. 86-8-26-8) for GRAVE THREATS
& ORAL DEFAMATION
3. Mrs. Conchita Ballesteros vs. Gapuz
(Brgy. Case No. 029) for ORAL
DEFAMATION and FALSE ACCUSATION
4. Mrs. Clara Baoas vs. Gapuz (Brgy. Case
No. 030) for HARASSMENT and THREATS
5. GABRIELA SILANG TANOD FORCES vs.
Gapuz (Case No. 031) for HABITUAL
TROUBLE MAKER
6. Pablo Ortiz vs. Gapuz (November 1,
1979) for ORAL DEFAMATION
7. C. Ballesteros vs. Gapuz (September 11,
1978) for ORAL DEFAMATION
8. Mrs. Liza Ancheta vs. Gapuz (September
27, 1978) for RUMOR MONGERING
9. Mr. Pananin (Beneco Personnel) (October
8, 1978) for ORAL DEFAMATION
10. Mrs. Minda Valdez vs. Gapuz (November
6, 1978) for ORAL DEFAMATION
11. WOMEN’S CLUB vs. GAPUZ (February
9, 1979) for ORAL DEFAMATION
12. Vistro Salcedo case (May 8, 1979)
Where Mrs. Gapuz was spreading
rumors against Barangay Captain and Police
Chief
13. Demolition Scandal (May 10, 1979)
Where she called all the residents of
their Barangay for an emergency meeting
and where she shouted invectives against
the residents
14. Incident of June 13, 1979
Mrs. Gapuz shouted invectives against
the Barangay Sanitary Inspector
15. Incident of August 25, 1979
Mrs. Gapuz shouted invectives against
the servants of Mr. De Leon
16. Incident of August 26, 1979
Mrs. Gapuz terrorized the council
meeting
17. Incident of September 2, 1978
Mrs. Clara Baoas was harassed by Mrs.
Gapuz
18. Incident of September 9, 1979
Mrs. Gapuz quarreled with Mrs. C.
Ballesteros during the council meeting
19. Incident of September 10, 1979
Mrs. Gapuz was hurling invectives along
her alley in the early morning
20. Incident of September 13, 1979
Mrs. Gapuz tapped electric wire from
Mrs. Tessie de los Santos with the latter’s
consent
21. Incident of September 21, 1979
Mrs. Gapuz was shouting and hurling
invectives scandalously around her
residence
22. Incident of September 21, 1979
Mrs. Gapuz was shouting, complaining
about alleged poisoned sardines near the
premises of her residence which killed her
hen.
23. Incident of September 23, 1979
Mrs. Gapuz was shouting unpleasant
words around the neighborhood. She did not
like the actuations of a bayanihan group near
the waiting shed."9
Respondent claimed that the numerous cases filed
against Magdalena cast doubt on her character,
integrity, and credibility.
In its Resolution No. 97242310 dated April 11, 1997,
the CSC denied respondent’s motion for
reconsideration, holding that:
"The character of a woman who was the
subject of a sexual assault is of minor
significance in the determination of the guilt
or innocence of the person accused of
having committed the offense. This is so
because even a prostitute or a woman of ill
repute may become a victim of said offense.
As such, the fact that complainant
Magdalena Gapuz is shown to have had
cases before the regular courts for various
offenses and was condemned by her
community for wrongful behavior does not
discount the possibility that she was in fact
telling the truth when she cried about the
lecherous advances made to her by the
respondent. x x x"
Respondent then filed with the Court of Appeals a
petition for review. As stated earlier, it reversed the
CSC Resolutions and dismissed Magdalena’s
complaint.
The Appellate Court held that Magdalena is an
unreliable witness, her character being questionable.
Given her aggressiveness and propensity for trouble,
"she is not one whom any male would attempt to steal
a kiss." In fact, her "record immediately raises an
alarm in any one who may cross her path."11 In
absolving respondent from the charges, the Appellate
Court considered his "unblemished" service record for
37 years.
Unsatisfied, the CSC, through the Solicitor General,
filed the instant petition raising the following
assignments of error:
"I. The Supreme Court may rule on factual
issues raised on appeal where the Court of
Appeals misappreciated the facts.
Furthermore, where the findings of the Court
of Appeals and the trial court are contrary to
each other, the Supreme Court may review
the record and evidence. The Court of
Appeals erred in not giving credence to the
testimony of complainant Magdalena Gapuz
 despite convincing and overwhelming signs
of its truthfulness.
II. The Court of Appeals committed
reversible error when it failed to give due
weight to the findings of the DECS, which
conducted the administrative investigation,
specifically with respect to the credibility of
the witnesses presented.
III. The Court of Appeals erred in ruling that
respondent should be penalized under Sec.
22 (o) of the Omnibus Rules Implementing
Book V and not Sec. 22 (e) of said rules."12
In his comment, respondent maintains that
Magdalena’s derogatory record undermines the verity
of her charge and that the Court of Appeals is correct
in dismissing it.
The petition is impressed with merit.
The pivotal issue before us is whether complaining
witness, Magdalena Gapuz, is credible. This is a
question of fact which, as a general rule, is not
subject to this Court’s review.
It is a rule of long standing that factual findings of the
Court of Appeals, if supported by substantial
evidence, are conclusive and binding on the parties
and are not reviewable by this Court.13 This Court is,
after all, not a trier of facts. One of the exceptions,
however, is when the findings of the Court of Appeals
are contrary to those of the trial court or a quasi-
judicial body, like petitioner herein.14
Here, the Court of Appeals and the CSC are poles
apart in their appreciation of Magdalena’s derogatory
record. While the former considered it of "vital and
paramount importance" in determining the truth of her
charge, the latter dismissed it as of "minor
significance." This contrariety propels us to the
elusive area of character and reputation evidence.
Generally, the character of a party is regarded as
legally irrelevant in determining a controversy.15 One
statutory exception is that relied upon by respondent,
i.e., Section 51 (a) 3, Rule 130 of the Revised Rules
on Evidence, which we quote here:
"SEC. 51. Character evidence not generally
admissible; exceptions. –
(a) In Criminal Cases:
xxx xxx
(3) The good or bad moral
character of the offended
party may be proved if it
tends to establish in any
reasonable degree the
probability or improbability
of the offense charged."
It will be readily observed that the above provision
pertains only to criminal cases, not to administrative
offenses. And even assuming that this technical rule
of evidence can be applied here, still, we cannot
sustain respondent’s posture.
Not every good or bad moral character of the
offended party may be proved under this provision.
Only those which would establish the probability or
improbability of the offense charged. This means that
the character evidence must be limited to the traits
and characteristics involved in the type of offense
charged.16 Thus, on a charge of rape - character for
chastity, on a charge of assault - character for
peaceableness or violence, and on a charge of
embezzlement - character for honesty.17 In one rape
case, where it was established that the alleged victim
was morally loose and apparently uncaring about her
chastity, we found the conviction of the accused
doubtful.18
In the present administrative case for sexual
harassment, respondent did not offer evidence that
has a bearing on Magdalena’s chastity. What he
presented are charges for grave oral defamation,
grave threats, unjust vexation, physical injuries,
malicious mischief, etc. filed against her. Certainly,
these pieces of evidence are inadmissible under the
above provision because they do not establish the
probability or improbability of the offense charged.
Obviously, in invoking the above provision, what
respondent was trying to establish is Magdalena’s
lack of credibility and not the probability or the
improbability of the charge. In this regard, a different
provision applies.
Credibility means the disposition and intention to tell
the truth in the testimony given. It refers to a person’s
integrity, and to the fact that he is worthy of belief. 19 A
witness may be discredited by evidence attacking his
general reputation for truth,20 honesty21 or
integrity.22 Section 11, Rule 132 of the same Revised
Rules on Evidence reads:
"SEC. 11. Impeachment of adverse party’s
witness. –A witness may be impeached by
the party against whom he was called, by
contradictory evidence, by evidence that
his general reputation for truth, honesty,
or integrity is bad, or by evidence that he
has made at other times statements
inconsistent with his present testimony, but
not by evidence of particular wrongful
acts, except that it may be shown by the
examination of the witness, or the record of
the judgment, that he has been convicted
of an offense."
Although she is the offended party, Magdalena, by
testifying in her own behalf, opened herself to
character or reputation attack pursuant to the principle
that a party who becomes a witness in his own behalf
places himself in the same position as any other
witness, and may be impeached by an attack on his
character or reputation.23
With the foregoing disquisition, the Court of Appeals
is correct in holding that the character or reputation of
a complaining witness in a sexual charge is a proper
subject of inquiry. This leads us to the ultimate
question – is Magdalena’s derogatory record sufficient
to discredit her credibility?
A careful review of the record yields a negative
answer.
First, most of the twenty-two (22) cases filed with the
MTC of Baguio City relate to acts committed in the
80’s, particularly, 1985 and 1986. With respect to the
complaints filed with the Chairmen of Barangay
Gabriela Silang and Barangay Hillside, the acts
complained of took place in 1978 to 1979. In the
instant administrative case, the offense was
committed in 1994. Surely, those cases and
complaints are no longer reliable proofs of
Magdalena’s character or reputation. The Court of
Appeals, therefore, erred in according much weight to
such evidence. Settled is the principle that evidence
of one’s character or reputation must be confined to a
time not too remote from the time in question.24 In
other words, what is to be determined is the character
or reputation of the person at the time of the trial and
prior thereto, but not at a period remote from the
commencement of the suit.25 Hence, to say that
Magdalena’s credibility is diminished by proofs of
tarnished reputation existing almost a decade ago is
unreasonable. It is unfair to presume that a person
who has wandered from the path of moral
righteousness can never retrace his steps again.
Certainly, every person is capable to change or
reform.
Second, respondent failed to prove that Magdalena
was convicted in any of the criminal cases specified
by respondent. The general rule prevailing in a great
majority of jurisdictions is that it is not permissible to
show that a witness has been arrested or that he has
been charged with or prosecuted for a criminal
offense, or confined in jail for the purpose of impairing
his credibility.26 This view has usually been based
upon one or more of the following grounds or
theories: (a) that a mere unproven charge against the
witness does not logically tend to affect his credibility,
(b) that innocent persons are often arrested or
accused of a crime, (c) that one accused of a crime is
presumed to be innocent until his guilt is legally
established, and (d) that a witness may not be
impeached or discredited by evidence of particular
acts of misconduct.27 Significantly, the same Section
11, Rule 132 of our Revised Rules on Evidence
provides that a witness may not be impeached by
evidence of particular wrongful acts. Such evidence is
rejected because of the confusion of issues and the
waste of time that would be involved, and because
the witness may not be prepared to expose the falsity
of such wrongful acts.28 As it happened in this case,
Magdalena was not able to explain or rebut each of
the charges against her listed by respondent.
But more than anything else, what convinces us to
sustain the Resolution of the CSC is the fact that it is
supported by substantial evidence. As aptly pointed
out by the Solicitor General, Magdalena testified in a
straightforward, candid and spontaneous manner. Her
testimony is replete with details, such as the number
of times she and respondent inspected the pre-
school, the specific part of the stairs where
respondent kissed her, and the matter about her
transient boarders during summer. Magdalena would
not have normally thought about these details if she
were not telling the truth. We quote her testimony
during the cross-examination conducted by DECS
Assistant Secretary Romeo Capinpin and
Undersecretary Antonio Nachura, thus:
"Q Was there any conversation between you
and Dr. Belagan during the inspection on the
first floor and the second floor?
A There was, sir. It was a casual
conversation that we had with regard to my
family, background, how the school came
about, how I started with the project. That
was all, sir.
Q Nothing about any form of sexual
harassment, in words or in deeds?
A Sir, because he inspected the second floor
twice, sir. We went up to the stairs twice, sir.
Q Why?
A I really don’t know what was the reason
behind, sir. But on the second inspection, sir,
I told him that as of that time I had some
transients with me. I was making use of the
premises for transients because that was
summer then, sir. And I already started
paying the place so I said, ‘Sir, I have some
transients with me in the evening’ and he
said, You know Mrs. Gapuz, I am interested
to stay in one of the rooms as one your
boarders. But I respectfully declined saying,
‘Sir, I think for delicadeza I cannot accept
you. Not that I don’t want you to be here but
people might think that I am keeping you
here and that would prejudice my permit, sir.’
ASEC R. CAPINPIN:
Q When did the alleged kissing occur? Was
it during the first time that you went up with
him or the second time?
A No, sir, on the second time, sir.
Q Second time?
A Yes, sir. We were going down, sir.
Q And you were going down?
A Yes, sir.
Q Do you recall what portion of the stairs
where you were during the alleged kissing?
A Sir, on the topmost of the stairs.
Q Before you went down?
A Yes, sir. At the topmost because there is a
base floor going up to the stairs and it has 16
steps.
Q So, it was not on the 16th step but still on
the topmost?
A Yes sir.
Q Part of the floor of the building?
A Yes, sir. Topmost, sir?
ASEC R. CAPINPIN:
Q Will you kindly tell us your relative position
at that time?
A Sir, on the second time that we went up
and I mentioned about these transients that I
had then and he wanted to stay in the place
in one of the rooms and then I declined and I
was still showing the rooms simultaneously.
On the last, the biggest room that I had, he
said, ‘No. Never mind, I am not going to see
 that anymore.’ So he waited for me there
and upon reaching the place, as I was to
step down on the first step going down, he
placed his arm and held me tightly and
planted the kiss on my cheek, sir.
Q You said that he wanted to stay in one of
the rooms?
A Yes, sir, as a boarder.
Q Is that room used for transients?
A During that time, sir, during the
summertime, I made use of the time to get
some transients.
Q And he was telling you that he wanted to
occupy one of the rooms?
A Yes, but I declined, sir for delicadeza.
Q At that time, there were no transients yet.
A When he came over for the inspection sir,
nobody was there."29
The above testimony does not stand in isolation. It is
corroborated by Peter Ngabit, DECS Assistant
Division Superintendent. Ngabit testified that
Magdalena reported to him that respondent kissed
her and asked her for a "date."
"Q I would like to call your attention to Exhibit
‘A’ which is the affidavit of Mrs. Magdalena
B. Gapuz, particularly item no. 8, and may I
read for your information – ‘That the Monday
after the incident, I went to the DECS
Division Office expecting to get favorable
recommendation from the DECS Regional
Office for the issuance of my permit. That I
proceeded to the Superintendent and asked
him, ‘Sir, kumusta ‘yung application ko’ and
he said, ‘mag date muna tayo’ but I refused
and explained that I am married, after which
I proceeded to the Office of Asst.
Superintendent Peter Ngabit to relate the
incident and then left the Division Office.’ Do
you remember if Mrs. Gapuz went to your
Office on the particular day?
A Yes, sir.
Q What time was that?
A I cannot remember, sir.
Q Was it morning, afternoon?
A I think it was in the morning, sir.
Q Morning.
A Yes, sir.
Q Early morning?
A About noon, sir.
Q What transpired between you and Mrs.
Gapuz in your office?
A When she came to my Office, she was
relating about that and she was even
insulting me saying among others that I was
a useless fixture in that Office because I
cannot do anything with the processing of
her paper or application.
Q It says here that she would relate the
incident to you. Did she relate any
incident?
A Yes, she did sir.
Q What was that incident all about?
A She was saying that when Mr. Belagan
went to visit her school, he stole a kiss
from her and that she was saying that
when she asked Supt. Belagan for her
papers, she was asked for a date before
the Indorsement. After that, she left."30
With Magdalena’s positive testimony and that of
Ngabit, how can we disregard the findings of the
DECS and the CSC? Surely, we cannot debunk it
simply because of the Court of Appeals’ outdated
characterization of Magdalena as a woman of bad
reputation. There are a number of cases where the
triers of fact believe the testimony of a witness of bad
character31 and refuse to believe one of good
character.32 As a matter of fact, even a witness who
has been convicted a number of times is worthy of
belief, when he testified in a straightforward and
convincing manner.33
At this juncture, it bears stressing that more than
anybody else, it is the DECS investigating officials
who are in a better position to determine whether
Magdalena is telling the truth considering that they
were able to hear and observe her deportment and
manner of testifying.34
In reversing the CSC’s Resolutions, the Court of
Appeals ruled that "there is ample evidence to show
that Magdalena had a motive" in accusing
respondent, i.e., to pressure him to issue a permit.
This is unconvincing. The record shows that
respondent had already issued the permit when
Magdalena filed her letter-complaint. Indeed, she had
no more reason to charge respondent
administratively, except of course to vindicate her
honor.
Petitioner prays that we sustain its ruling penalizing
respondent for grave misconduct and not merely for
disgraceful or immoral conduct which is punishable by
suspension for six (6) months and one (1) day to one
(1) year for the first offense.35 Misconduct means
intentional wrongdoing or deliberate violation of a rule
of law or standard of behavior, especially by a
government official.36 To constitute an administrative
offense, misconduct should relate to or be connected
with the performance of the official functions and
duties of a public officer.37 In grave misconduct as
distinguished from simple misconduct, the elements
of corruption, clear intent to violate the law or flagrant
disregard of established rule, must be
manifest.38 Corruption as an element of grave
misconduct consists in the act of an official or
fiduciary person who unlawfully and wrongfully uses
his station or character to procure some benefit for
himself or for another person, contrary to duty and the
rights of others.39 This is apparently present in
respondent’s case as it concerns not only a stolen
kiss but also a demand for a "date," an unlawful
consideration for the issuance of a permit to operate a
pre-school. Respondent’s act clearly constitutes grave
misconduct, punishable by dismissal.40
Conformably with our ruling in a similar case of sexual
harassment,43 and respondent’s length of service,
unblemished record in the past and numerous
awards,44 the penalty of suspension from office
without pay for one (1) year is in order.

We are, however, not inclined to impose the penalty
of dismissal from the service. Respondent has served
the government for a period of 37 years, during which,
he made a steady ascent from an Elementary Grade
School Teacher to Schools Division Superintendent.
In devoting the best years of his life to the education
department, he received numerous awards.41 This is
the first time he is being administratively charged. He
is in the edge of retirement. In fact, he had filed his
application for retirement when Magdalena filed her
complaint. Section 16, Rule XIV, of the Rules
Implementing Book V of Executive Order No. 292
provides:
"SEC. 16. In the determination of penalties to
be imposed, mitigating and aggravating
circumstances may be considered. x x x."
The mitigating circumstances are enumerated in
Section 53, Rule IV, of the Uniform Rules on
Administrative Cases in the Civil Service,42 which
reads in part:
While we will not condone the wrongdoing of public
officers and employees, however, neither will we
negate any move to recognize and remunerate their
lengthy service in the government.
WHEREFORE, the petition is GRANTED. The
Decision of the Court of Appeals dated January 8,
1998 in CA-G.R. SP No. 44180 is REVERSED. The
CSC Resolution Nos. 966213 and 972423
are AFFIRMED, subject to the modification that
respondent ALLYSON
BELAGAN is SUSPENDED from office without pay
for ONE (1) YEAR, with full credit of his preventive
suspension.
SO ORDERED.
Davide, Jr., Puno, Panganiban, Quisumbing, Ynares-
Santiago, Carpio, Austria-Martinez, Corona, Carpio
Morales, Callejo, Sr., Azcuna*, Tinga, Chico-
Nazario, and Garcia, JJ., concur.

"SEC. 53. Extenuating, Mitigating,

Aggravating, or Alternative Circumstances. –
In the determination of the penalties to be
imposed, mitigating, aggravating and
alternative circumstances attendant to the
commission of the offense shall be
considered.

The following circumstances shall be appreciated:

xxx xxx

j. length of service

xxx xxx

l. and other analogous cases."

G.R. No. 159618 February 1, 2011
BAYAN MUNA, as represented by Rep. SATUR
OCAMPO, Rep. CRISPIN BELTRAN, and Rep. LIZA
L. MAZA,Petitioner,
vs.
ALBERTO ROMULO, in his capacity as Executive
Secretary, and BLAS F. OPLE, in his capacity as
Secretary of Foreign Affairs, Respondents.
DECISION
VELASCO, JR., J.:
The Case
This petition1 for certiorari, mandamus and prohibition
under Rule 65 assails and seeks to nullify the Non-
Surrender Agreement concluded by and between the
Republic of the Philippines (RP) and the United
States of America (USA).
The Facts
Petitioner Bayan Muna is a duly registered party-list
group established to represent the marginalized
sectors of society. Respondent Blas F. Ople, now
deceased, was the Secretary of Foreign Affairs during
the period material to this case. Respondent Alberto
Romulo was impleaded in his capacity as then
Executive Secretary.2
Rome Statute of the International Criminal Court
Having a key determinative bearing on this case is the
Rome Statute3 establishing the International Criminal
Court (ICC) with "the power to exercise its jurisdiction
over persons for the most serious crimes of
international concern x x x and shall be
complementary to the national criminal
jurisdictions."4 The serious crimes adverted to cover
those considered grave under international law, such
as genocide, crimes against humanity, war crimes,
and crimes of aggression.5
On December 28, 2000, the RP, through Charge
d’Affaires Enrique A. Manalo, signed the Rome
Statute which, by its terms, is "subject to ratification,
acceptance or approval" by the signatory states.6 As
of the filing of the instant petition, only 92 out of the
139 signatory countries appear to have completed the
ratification, approval and concurrence process. The
Philippines is not among the 92.
RP-US Non-Surrender Agreement
On May 9, 2003, then Ambassador Francis J.
Ricciardone sent US Embassy Note No. 0470 to the
Department of Foreign Affairs (DFA) proposing the
terms of the non-surrender bilateral agreement
(Agreement, hereinafter) between the USA and the
RP.
Via Exchange of Notes No. BFO-028-037 dated May
13, 2003 (E/N BFO-028-03, hereinafter), the RP,
represented by then DFA Secretary Ople, agreed with
and accepted the US proposals embodied under the
US Embassy Note adverted to and put in effect
the Agreement with the US government. In esse,
the Agreement aims to protect what it refers to and
defines as "persons" of the RP and US from frivolous
and harassment suits that might be brought against
them in international tribunals.8 It is reflective of the
increasing pace of the strategic security and defense
partnership between the two countries. As of May 2,
2003, similar bilateral agreements have been effected
by and between the US and 33 other countries.9
The Agreement pertinently provides as follows:
1. For purposes of this Agreement, "persons"
are current or former Government officials,
employees (including contractors), or military
personnel or nationals of one Party.
2. Persons of one Party present in the
territory of the other shall not, absent the
express consent of the first Party,
(a) be surrendered or transferred by
any means to any international
tribunal for any purpose, unless
such tribunal has been established
by the UN Security Council, or
(b) be surrendered or transferred by
any means to any other entity or
third country, or expelled to a third
country, for the purpose of
surrender to or transfer to any
international tribunal, unless such
tribunal has been established by
the UN Security Council.
3. When the [US] extradites, surrenders, or
otherwise transfers a person of the
Philippines to a third country, the [US] will
not agree to the surrender or transfer of that
person by the third country to any
international tribunal, unless such tribunal
has been established by the UN Security
Council, absent the express consent of the
Government of the Republic of the
Philippines [GRP].
4. When the [GRP] extradites, surrenders, or
otherwise transfers a person of the [USA] to
a third country, the [GRP] will not agree to
the surrender or transfer of that person by
the third country to any international tribunal,
unless such tribunal has been established by
the UN Security Council, absent the express
consent of the Government of the [US].
5. This Agreement shall remain in force until
one year after the date on which one party
notifies the other of its intent to terminate the
Agreement. The provisions of this
Agreement shall continue to apply with
respect to any act occurring, or any
allegation arising, before the effective date of
termination.
In response to a query of then Solicitor General
Alfredo L. Benipayo on the status of the non-
surrender agreement, Ambassador Ricciardone
replied in his letter of October 28, 2003 that the
exchange of diplomatic notes constituted a legally
binding agreement under international law; and that,
under US law, the said agreement did not require the
advice and consent of the US Senate.10
In this proceeding, petitioner imputes grave abuse of
discretion to respondents in concluding and ratifying
theAgreement and prays that it be struck down as
unconstitutional, or at least declared as without force
and effect.
For their part, respondents question petitioner’s
standing to maintain a suit and counter that
the Agreement, being in the nature of an executive
agreement, does not require Senate concurrence for
its efficacy. And for reasons detailed in their
comment, respondents assert the constitutionality of
the Agreement.
The Issues
I. WHETHER THE [RP] PRESIDENT AND
THE [DFA] SECRETARY x x x GRAVELY
ABUSED THEIR DISCRETION
AMOUNTING TO LACK OR EXCESS OF
JURISDICTION FOR CONCLUDING
THE RP-US NON SURRENDER
AGREEMENT BY MEANS OF [E/N] BFO-
028-03 DATED 13 MAY 2003, WHEN THE
PHILIPPINE GOVERNMENT HAS
ALREADY SIGNED THE ROME STATUTE
OF THE [ICC] ALTHOUGH THIS IS
PENDING RATIFICATION BY THE
PHILIPPINE SENATE.
A. Whether by entering into the x x
x Agreement Respondents gravely
abused their discretion when they
capriciously abandoned, waived
and relinquished our only legitimate
recourse through the Rome Statute
of the [ICC] to prosecute and try
"persons" as defined in the x x
x Agreement, x x x or literally any
conduit of American interests, who
have committed crimes of
genocide, crimes against humanity,
war crimes and the crime of
aggression, thereby abdicating
Philippine Sovereignty.
B. Whether after the signing and
pending ratification of the Rome
Statute of the [ICC] the [RP]
President and the [DFA] Secretary
x x x are obliged by the principle of
good faith to refrain from doing all
acts which would substantially
impair the value of the undertaking
as signed.
C. Whether the x x
x Agreement constitutes an act
which defeats the object and
purpose of theRome Statute of the
International Criminal Court and
contravenes the obligation of good
faith inherent in the signature of the
President affixed on the Rome
Statute of the International Criminal
Court, and if so whether the x x
x Agreement is void and
unenforceable on this ground.
D. Whether the RP-US Non-
Surrender Agreement is void and
unenforceable for grave abuse of
discretion amounting to lack or
excess of jurisdiction in connection
with its execution.
II. WHETHER THE RP-US NON
SURRENDER AGREEMENT IS VOID AB
INITIO FOR CONTRACTING
OBLIGATIONS THAT ARE EITHER
IMMORAL OR OTHERWISE AT VARIANCE
WITH UNIVERSALLY RECOGNIZED
PRINCIPLES OF INTERNATIONAL LAW.
III. WHETHER THE x x x AGREEMENT IS
VALID, BINDING AND
EFFECTIVE WITHOUT THE
CONCURRENCE BY AT LEAST TWO-
THIRDS (2/3) OF ALL THE MEMBERS OF
THE SENATE x x x.11
The foregoing issues may be summarized into
two: first, whether or not the Agreement was
contracted validly, which resolves itself into the
question of whether or not respondents gravely
abused their discretion in concluding it; and second,
whether or not the Agreement, which has not been
submitted to the Senate for concurrence, contravenes
and undermines the Rome Statute and other treaties.
But because respondents expectedly raised it, we
shall first tackle the issue of petitioner’s legal
standing.
The Court’s Ruling
This petition is bereft of merit.
Procedural Issue: Locus Standi of Petitioner
Petitioner, through its three party-list representatives,
contends that the issue of the validity or invalidity of
theAgreement carries with it constitutional
significance and is of paramount importance that
justifies its standing. Cited in this regard is what is
usually referred to as the emergency powers
cases,12 in which ordinary citizens and taxpayers
were accorded the personality to question the
constitutionality of executive issuances.
Locus standi is "a right of appearance in a court of
justice on a given question."13 Specifically, it is "a
party’s personal and substantial interest in a case
where he has sustained or will sustain direct injury as
a result"14 of the act being challenged, and "calls for
more than just a generalized grievance."15 The term
"interest" refers to material interest, as distinguished
from one that is merely incidental.16 The rationale for
requiring a party who challenges the validity of a law
or international agreement to allege such a personal
stake in the outcome of the controversy is "to assure
the concrete adverseness which sharpens the
presentation of issues upon which the court so largely
depends for illumination of difficult constitutional
questions."17
Locus standi, however, is merely a matter of
procedure and it has been recognized that, in some
cases, suits are not brought by parties who have been
personally injured by the operation of a law or any
other government act, but by concerned citizens,
taxpayers, or voters who actually sue in the public
interest.18 Consequently, in a catena of cases,19 this
Court has invariably adopted a liberal stance on locus
standi.
Going by the petition, petitioner’s representatives
pursue the instant suit primarily as concerned citizens
raising issues of transcendental importance, both for
the Republic and the citizenry as a whole.
When suing as a citizen to question the validity of a
law or other government action, a petitioner needs to
meet certain specific requirements before he can be
clothed with standing. Francisco, Jr. v.
Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc.20 expounded on this
requirement, thus:
In a long line of cases, however, concerned citizens,
taxpayers and legislators when specific requirements
have been met have been given standing by this
Court.
When suing as a citizen, the interest of the petitioner
assailing the constitutionality of a statute must be
direct and personal. He must be able to show, not
only that the law or any government act is invalid, but
also that he sustained or is in imminent danger of
sustaining some direct injury as a result of its
enforcement, and not merely that he suffers thereby
in some indefinite way. It must appear that the person
complaining has been or is about to be denied some
right or privilege to which he is lawfully entitled or that
he is about to be subjected to some burdens or
penalties by reason of the statute or act complained
of. In fine, when the proceeding involves the assertion
of a public right, the mere fact that he is a citizen
satisfies the requirement of personal interest.21
In the case at bar, petitioner’s representatives have
complied with the qualifying conditions or specific
requirements exacted under the locus standi rule. As
citizens, their interest in the subject matter of the
petition is direct and personal. At the very least, their
assertions questioning the Agreement are made of a
public right, i.e., to ascertain that the Agreement did
not go against established national policies, practices,
and obligations bearing on the State’s obligation to
the community of nations.
At any event, the primordial importance to Filipino
citizens in general of the issue at hand impels the
Court to brush aside the procedural barrier posed by
the traditional requirement of locus standi, as we have
done in a long line of earlier cases, notably in the old
but oft-cited emergency powers
cases22 and Kilosbayan v. Guingona, Jr.23In cases of
transcendental importance, we wrote again in Bayan
v. Zamora,24 "The Court may relax the standing
requirements and allow a suit to prosper even where
there is no direct injury to the party claiming the right
of judicial review."
Moreover, bearing in mind what the Court said
in Tañada v. Angara, "that it will not shirk, digress
from or abandon its sacred duty and authority to
uphold the Constitution in matters that involve grave
abuse of discretion brought before it in appropriate
cases, committed by any officer, agency,
instrumentality or department of the
government,"25 we cannot but resolve head on the
issues raised before us. Indeed, where an action of
any branch of government is seriously alleged to have
infringed the Constitution or is done with grave abuse
of discretion, it becomes not only the right but in fact
the duty of the judiciary to settle it. As in this petition,
issues are precisely raised putting to the fore the
propriety of the Agreement pending the ratification of
the Rome Statute.
Validity of the RP-US Non-Surrender Agreement
Petitioner’s initial challenge against
the Agreement relates to form, its threshold posture
being that E/N BFO-028-03 cannot be a valid medium
for concluding the Agreement.
Petitioners’ contention––perhaps taken unaware of
certain well-recognized international doctrines,
practices, and jargons––is untenable. One of these is
the doctrine of incorporation, as expressed in Section
2, Article II of the Constitution, wherein the Philippines
adopts the generally accepted principles of
international law and international jurisprudence as
part of the law of the land and adheres to the policy of
peace, cooperation, and amity with all nations.26 An
exchange of notes falls "into the category of inter-
governmental agreements,"27 which is an
internationally accepted form of international
agreement. The United Nations Treaty Collections
(Treaty Reference Guide) defines the term as follows:
An "exchange of notes" is a record of a routine
agreement, that has many similarities with the private
law contract. The agreement consists of the exchange
of two documents, each of the parties being in the
possession of the one signed by the representative of
the other. Under the usual procedure, the accepting
State repeats the text of the offering State to record
its assent. The signatories of the letters may be
government Ministers, diplomats or departmental
heads. The technique of exchange of notes is
frequently resorted to, either because of its speedy
procedure, or, sometimes, to avoid the process of
legislative approval.28
In another perspective, the terms "exchange of notes"
and "executive agreements" have been used
interchangeably, exchange of notes being considered
a form of executive agreement that becomes binding
through executive action.29 On the other hand,
executive agreements concluded by the President
"sometimes take the form of exchange of notes and at
other times that of more formal documents
denominated ‘agreements’ or ‘protocols.’"30 As former
US High Commissioner to the Philippines Francis B.
Sayre observed in his work, The Constitutionality of
Trade Agreement Acts:
The point where ordinary correspondence between
this and other governments ends and agreements –
whether denominated executive agreements or
exchange of notes or otherwise – begin, may
sometimes be difficult of ready ascertainment.31 x x x
It is fairly clear from the foregoing disquisition that E/N
BFO-028-03––be it viewed as the Non-Surrender
Agreement itself, or as an integral instrument of
acceptance thereof or as consent to be bound––is a
recognized mode of concluding a legally binding
international written contract among nations.
Senate Concurrence Not Required
Article 2 of the Vienna Convention on the Law of
Treaties defines a treaty as "an international
agreement concluded between states in written form
and governed by international law, whether embodied
in a single instrument or in two or more related
instruments and whatever its particular
designation."32 International agreements may be in
the form of (1) treaties that require legislative
concurrence after executive ratification; or (2)
executive agreements that are similar to treaties,
except that they do not require legislative concurrence
and are usually less formal and deal with a narrower
range of subject matters than treaties.33
Under international law, there is no difference
between treaties and executive agreements in terms
of their binding effects on the contracting states
concerned,34 as long as the negotiating functionaries
have remained within their powers.35 Neither, on the
domestic sphere, can one be held valid if it violates
the Constitution.36 Authorities are, however, agreed
that one is distinct from another for accepted reasons
apart from the concurrence-requirement aspect.37 As
has been observed by US constitutional scholars, a
treaty has greater "dignity" than an executive
agreement, because its constitutional efficacy is
beyond doubt, a treaty having behind it the authority
of the President, the Senate, and the people;38 a
ratified treaty, unlike an executive agreement, takes
precedence over any prior statutory enactment.39
Petitioner parlays the notion that the Agreement is of
dubious validity, partaking as it does of the nature of a
treaty; hence, it must be duly concurred in by the
Senate. Petitioner takes a cue from Commissioner of
Customs v. Eastern Sea Trading, in which the Court
reproduced the following observations made by US
legal scholars: "[I]nternational agreements involving
political issues or changes of national policy and
those involving international arrangements of a
permanent character usually take the form of treaties
[while] those embodying adjustments of detail
carrying out well established national policies and
traditions and those involving arrangements of a more
or less temporary nature take the form of executive
agreements." 40
Pressing its point, petitioner submits that the subject
of the Agreement does not fall under any of the
subject-categories that are enumerated in the Eastern
Sea Trading case, and that may be covered by an
executive agreement, such as commercial/consular
relations, most-favored nation rights, patent rights,
trademark and copyright protection, postal and
navigation arrangements and settlement of claims.
In addition, petitioner foists the applicability to the
instant case of Adolfo v. CFI of Zambales and
Merchant,41holding that an executive agreement
through an exchange of notes cannot be used to
amend a treaty.
We are not persuaded.
The categorization of subject matters that may be
covered by international agreements mentioned
in Eastern Sea Trading is not cast in stone. There are
no hard and fast rules on the propriety of entering, on
a given subject, into a treaty or an executive
agreement as an instrument of international relations.
The primary consideration in the choice of the form of
agreement is the parties’ intent and desire to craft an
international agreement in the form they so wish to
further their respective interests. Verily, the matter of
form takes a back seat when it comes to effectiveness
and binding effect of the enforcement of a treaty or an
executive agreement, as the parties in either
international agreement each labor under the pacta
sunt servanda42 principle.
As may be noted, almost half a century has elapsed
since the Court rendered its decision in Eastern Sea
Trading. Since then, the conduct of foreign affairs has
become more complex and the domain of
international law wider, as to include such subjects as
human rights, the environment, and the sea. In fact, in
the US alone, the executive agreements executed by
its President from 1980 to 2000 covered subjects
such as defense, trade, scientific cooperation,
aviation, atomic energy, environmental cooperation,
peace corps, arms limitation, and nuclear safety,
among others.43 Surely, the enumeration in Eastern
Sea Trading cannot circumscribe the option of each
state on the matter of which the international
agreement format would be convenient to serve its
best interest. As Francis Sayre said in his work
referred to earlier:
x x x It would be useless to undertake to discuss here
the large variety of executive agreements as such
concluded from time to time. Hundreds of executive
agreements, other than those entered into under the
trade-agreement act, have been negotiated with
foreign governments. x x x They cover such subjects
as the inspection of vessels, navigation dues, income
tax on shipping profits, the admission of civil air craft,
custom matters and commercial relations generally,
international claims, postal matters, the registration of
trademarks and copyrights, etc. x x x
And lest it be overlooked, one type of executive
agreement is a treaty-authorized44 or a treaty-
implementing executive agreement,45 which
necessarily would cover the same matters subject of
the underlying treaty.
But over and above the foregoing considerations is
the fact that––save for the situation and matters
contemplated in Sec. 25, Art. XVIII of the
Constitution46––when a treaty is required, the
Constitution does not classify any subject, like that
involving political issues, to be in the form of, and
ratified as, a treaty. What the Constitution merely
prescribes is that treaties need the concurrence of the
Senate by a vote defined therein to complete the
ratification process.
Petitioner’s reliance on Adolfo47 is misplaced, said
case being inapplicable owing to different factual
milieus. There, the Court held that an executive
agreement cannot be used to amend a duly ratified
and existing treaty, i.e., the Bases Treaty. Indeed, an
executive agreement that does not require the
concurrence of the Senate for its ratification may not
be used to amend a treaty that, under the
Constitution, is the product of the ratifying acts of the
Executive and the Senate. The presence of a treaty,
purportedly being subject to amendment by an
executive agreement, does not obtain under the
premises.
Considering the above discussion, the Court need not
belabor at length the third main issue raised, referring
to the validity and effectivity of the Agreement without
the concurrence by at least two-thirds of all the
members of the Senate. The Court has, in Eastern
Sea Trading,48 as reiterated in Bayan,49 given
recognition to the obligatory effect of executive
agreements without the concurrence of the Senate:
x x x [T]he right of the Executive to enter into binding
agreements without the necessity of subsequent
Congressional approval has been confirmed by long
usage. From the earliest days of our history, we have
entered executive agreements covering such subjects
as commercial and consular relations, most favored-
nation rights, patent rights, trademark and copyright
protection, postal and navigation arrangements and
the settlement of claims. The validity of these has
never been seriously questioned by our courts.
The Agreement Not in Contravention of the Rome
Statute
It is the petitioner’s next contention that
the Agreement undermines the establishment of the
ICC and is null and void insofar as it unduly restricts
the ICC’s jurisdiction and infringes upon the effectivity
of the Rome Statute. Petitioner posits that
the Agreement was constituted solely for the purpose
of providing individuals or groups of individuals with
immunity from the jurisdiction of the ICC; and such
grant of immunity through non-surrender agreements
allegedly does not legitimately fall within the scope of
Art. 98 of the Rome Statute. It concludes that state
parties with non-surrender agreements are prevented
from meeting their obligations under the Rome
Statute, thereby constituting a breach of Arts.
27,50 86,51 8952 and 9053 thereof.
Petitioner stresses that the overall object and purpose
of the Rome Statute is to ensure that those
responsible for the worst possible crimes are brought
to justice in all cases, primarily by states, but as a last
resort, by the ICC; thus, any agreement—like the non-
surrender agreement—that precludes the ICC from
exercising its complementary function of acting when
a state is unable to or unwilling to do so, defeats the
object and purpose of the Rome Statute.
Petitioner would add that the President and the DFA
Secretary, as representatives of a signatory of the
Rome Statute, are obliged by the imperatives of good
faith to refrain from performing acts that substantially
devalue the purpose and object of the Statute, as
signed. Adding a nullifying ingredient to
the Agreement, according to petitioner, is the fact that
it has an immoral purpose or is otherwise at variance
with a priorly executed treaty.
Contrary to petitioner’s pretense, the Agreement does
not contravene or undermine, nor does it differ from,
the Rome Statute. Far from going against each other,
one complements the other. As a matter of fact, the
principle of complementarity underpins the creation of
the ICC. As aptly pointed out by respondents and
admitted by petitioners, the jurisdiction of the ICC is to
"be complementary to national criminal jurisdictions
[of the signatory states]."54 Art. 1 of the Rome Statute
pertinently provides:
Article 1
The Court
An International Crimininal Court ("the Court") is
hereby established. It x x x shall have the power to
exercise its jurisdiction over persons for the most
serious crimes of international concern, as referred to
in this Statute, and shall be complementary to
national criminal jurisdictions. The jurisdiction and
functioning of the Court shall be governed by the
provisions of this Statute. (Emphasis ours.)
Significantly, the sixth preambular paragraph of the
Rome Statute declares that "it is the duty of every
State to exercise its criminal jurisdiction over those
responsible for international crimes." This provision
indicates that primary jurisdiction over the so-called
international crimes rests, at the first instance, with
the state where the crime was committed;
secondarily, with the ICC in appropriate situations
contemplated under Art. 17, par. 155 of the Rome
Statute.
Of particular note is the application of the principle
of ne bis in idem56 under par. 3 of Art. 20, Rome
Statute, which again underscores the primacy of the
jurisdiction of a state vis-a-vis that of the ICC. As far
as relevant, the provision states that "no person who
has been tried by another court for conduct x x x
[constituting crimes within its jurisdiction] shall be tried
by the [International Criminal] Court with respect to
the same conduct x x x."
The foregoing provisions of the Rome Statute, taken
collectively, argue against the idea of jurisdictional
conflict between the Philippines, as party to the non-
surrender agreement, and the ICC; or the idea of the
Agreement substantially impairing the value of the
RP’s undertaking under the Rome Statute. Ignoring
for a while the fact that the RP signed the Rome
Statute ahead of the Agreement, it is abundantly clear
to us that the Rome Statute expressly recognizes the
primary jurisdiction of states, like the RP, over serious
crimes committed within their respective borders, the
complementary jurisdiction of the ICC coming into
play only when the signatory states are unwilling or
unable to prosecute.
Given the above consideration, petitioner’s
suggestion––that the RP, by entering into
the Agreement, violated its duty required by the
imperatives of good faith and breached its
commitment under the Vienna Convention57 to refrain
from performing any act tending to impair the value of
a treaty, e.g., the Rome Statute––has to be rejected
outright. For nothing in the provisions of
the Agreement, in relation to the Rome Statute, tends
to diminish the efficacy of the Statute, let alone
defeats the purpose of the ICC. Lest it be overlooked,
the Rome Statute contains a proviso that enjoins the
ICC from seeking the surrender of an erring person,
should the process require the requested state to
perform an act that would violate some international
agreement it has entered into. We refer to Art. 98(2)
of the Rome Statute, which reads:
Article 98
Cooperation with respect to waiver of immunity
and consent to surrender
xxxx
2. The Court may not proceed with a request for
surrender which would require the requested State to
act inconsistently with its obligations under
international agreements pursuant to which the
consent of a sending State is required to surrender a
person of that State to the Court, unless the Court can
first obtain the cooperation of the sending State for
the giving of consent for the surrender.
Moreover, under international law, there is a
considerable difference between a State-Party and a
signatory to a treaty. Under the Vienna Convention on
the Law of Treaties, a signatory state is only obliged
to refrain from acts which would defeat the object and
purpose of a treaty;58 whereas a State-Party, on the
other hand, is legally obliged to follow all the
provisions of a treaty in good faith.
In the instant case, it bears stressing that the
Philippines is only a signatory to the Rome Statute
and not a State-Party for lack of ratification by the
Senate. Thus, it is only obliged to refrain from acts
which would defeat the object and purpose of the
Rome Statute. Any argument obliging the Philippines
to follow any provision in the treaty would be
premature.
As a result, petitioner’s argument that State-Parties
with non-surrender agreements are prevented from
meeting their obligations under the Rome Statute,
specifically Arts. 27, 86, 89 and 90, must fail. These
articles are only legally binding upon State-Parties,
not signatories.
Furthermore, a careful reading of said Art. 90 would
show that the Agreement is not incompatible with the
Rome Statute. Specifically, Art. 90(4) provides that
"[i]f the requesting State is a State not Party to this
Statute the requested State, if it is not under an
international obligation to extradite the person to the
requesting State, shall give priority to the request for
surrender from the Court. x x x" In applying the
provision, certain undisputed facts should be pointed
out: first, the US is neither a State-Party nor a
signatory to the Rome Statute; and second, there is
an international agreement between the US and the
Philippines regarding extradition or surrender of
persons, i.e., the Agreement. Clearly, even assuming
that the Philippines is a State-Party, the Rome Statute
still recognizes the primacy of international
agreements entered into between States, even when
one of the States is not a State-Party to the Rome
Statute.
Sovereignty Limited by International Agreements
Petitioner next argues that the RP has, through
the Agreement, abdicated its sovereignty by
bargaining away the jurisdiction of the ICC to
prosecute US nationals, government
officials/employees or military personnel who commit
serious crimes of international concerns in the
Philippines. Formulating petitioner’s argument a bit
differently, the RP, by entering into the Agreement,
does thereby abdicate its sovereignty, abdication
being done by its waiving or abandoning its right to
seek recourse through the Rome Statute of the ICC
for erring Americans committing international crimes
in the country.
We are not persuaded. As it were, the Agreement is
but a form of affirmance and confirmance of the
Philippines’ national criminal jurisdiction. National
criminal jurisdiction being primary, as explained
above, it is always the responsibility and within the
prerogative of the RP either to prosecute criminal
offenses equally covered by the Rome Statute or to
accede to the jurisdiction of the ICC. Thus, the
Philippines may decide to try "persons" of the US, as
the term is understood in the Agreement, under our
national criminal justice system. Or it may opt not to
exercise its criminal jurisdiction over its erring citizens
or over US "persons" committing high crimes in the
country and defer to the secondary criminal
jurisdiction of the ICC over them. As to "persons" of
the US whom the Philippines refuses to prosecute,
the country would, in effect, accord discretion to the
US to exercise either its national criminal jurisdiction
over the "person" concerned or to give its consent to
the referral of the matter to the ICC for trial. In the
same breath, the US must extend the same privilege
to the Philippines with respect to "persons" of the RP
committing high crimes within US territorial
jurisdiction.
In the context of the Constitution, there can be no
serious objection to the Philippines agreeing to
undertake the things set forth in the Agreement.
Surely, one State can agree to waive jurisdiction—to
the extent agreed upon—to subjects of another State
due to the recognition of the principle of extraterritorial
immunity. What the Court wrote inNicolas v.
Romulo59—a case involving the implementation of the
criminal jurisdiction provisions of the RP-US Visiting
Forces Agreement—is apropos:
Nothing in the Constitution prohibits such agreements
recognizing immunity from jurisdiction or some
aspects of jurisdiction (such as custody), in relation to
long-recognized subjects of such immunity like Heads
of State, diplomats and members of the armed forces
contingents of a foreign State allowed to enter
another State’s territory. x x x
To be sure, the nullity of the subject non-surrender
agreement cannot be predicated on the postulate that
some of its provisions constitute a virtual abdication of
its sovereignty. Almost every time a state enters into
an international agreement, it voluntarily sheds off
part of its sovereignty. The Constitution, as drafted,
did not envision a reclusive Philippines isolated from
the rest of the world. It even adheres, as earlier
stated, to the policy of cooperation and amity with all
nations.60
By their nature, treaties and international agreements
actually have a limiting effect on the otherwise
encompassing and absolute nature of sovereignty. By
their voluntary act, nations may decide to surrender or
waive some aspects of their state power or agree to
limit the exercise of their otherwise exclusive and
absolute jurisdiction. The usual underlying
consideration in this partial surrender may be the
greater benefits derived from a pact or a reciprocal
undertaking of one contracting party to grant the
same privileges or immunities to the other. On the
rationale that the Philippines has adopted the
generally accepted principles of international law as
part of the law of the land, a portion of sovereignty
may be waived without violating the
Constitution.61 Such waiver does not amount to an
unconstitutional diminution or deprivation of
jurisdiction of Philippine courts.62
Agreement Not Immoral/Not at Variance
with Principles of International Law
Petitioner urges that the Agreement be struck down
as void ab initio for imposing immoral obligations
and/or being at variance with allegedly universally
recognized principles of international law. The
immoral aspect proceeds from the fact that
the Agreement, as petitioner would put it, "leaves
criminals immune from responsibility for unimaginable
atrocities that deeply shock the conscience of
humanity; x x x it precludes our country from
delivering an American criminal to the [ICC] x x x."63
The above argument is a kind of recycling of
petitioner’s earlier position, which, as already
discussed, contends that the RP, by entering into
the Agreement, virtually abdicated its sovereignty and
in the process undermined its treaty obligations under
the Rome Statute, contrary to international law
principles.64
The Court is not persuaded. Suffice it to state in this
regard that the non-surrender agreement, as aptly
described by the Solicitor General, "is an assertion by
the Philippines of its desire to try and punish crimes
under its national law. x x x The agreement is a
recognition of the primacy and competence of the
country’s judiciary to try offenses under its national
criminal laws and dispense justice fairly and
judiciously."
Petitioner, we believe, labors under the erroneous
impression that the Agreement would allow Filipinos
and Americans committing high crimes of
international concern to escape criminal trial and
punishment. This is manifestly incorrect. Persons who
may have committed acts penalized under the Rome
Statute can be prosecuted and punished in the
Philippines or in the US; or with the consent of the RP
or the US, before the ICC, assuming, for the nonce,
that all the formalities necessary to bind both
countries to the Rome Statute have been met. For
perspective, what the Agreement contextually
prohibits is the surrender by either party of individuals
to international tribunals, like the ICC, without the
consent of the other party, which may desire to
prosecute the crime under its existing laws. With the
view we take of things, there is nothing immoral or
violative of international law concepts in the act of the
Philippines of assuming criminal jurisdiction pursuant
to the non-surrender agreement over an offense
considered criminal by both Philippine laws and the
Rome Statute.
No Grave Abuse of Discretion
Petitioner’s final point revolves around the necessity
of the Senate’s concurrence in the Agreement. And
without specifically saying so, petitioner would argue
that the non-surrender agreement was executed by
the President, thru the DFA Secretary, in grave abuse
of discretion.
The Court need not delve on and belabor the first
portion of the above posture of petitioner, the same
having been discussed at length earlier on. As to the
second portion, We wish to state that petitioner
virtually faults the President for performing, through
respondents, a task conferred the President by the
Constitution—the power to enter into international
agreements.
By constitutional fiat and by the nature of his or her
office, the President, as head of state and
government, is the sole organ and authority in the
external affairs of the country.65 The Constitution
vests in the President the power to enter into
international agreements, subject, in appropriate
cases, to the required concurrence votes of the
Senate. But as earlier indicated, executive
agreements may be validly entered into without such
concurrence. As the President wields vast powers
and influence, her conduct in the external affairs of
the nation is, as Bayan would put it, "executive
altogether." The right of the President to enter into or
ratify binding executive agreements has been
confirmed by long practice.66
In thus agreeing to conclude the Agreement thru E/N
BFO-028-03, then President Gloria Macapagal-
Arroyo, represented by the Secretary of Foreign
Affairs, acted within the scope of the authority and
discretion vested in her by the Constitution. At the end
of the day, the President––by ratifying, thru her
deputies, the non-surrender agreement––did nothing
more than discharge a constitutional duty and
exercise a prerogative that pertains to her office.
While the issue of ratification of the Rome Statute is
not determinative of the other issues raised herein, it
may perhaps be pertinent to remind all and sundry
that about the time this petition was interposed, such
issue of ratification was laid to rest in Pimentel, Jr. v.
Office of the Executive Secretary.67 As the Court
emphasized in said case, the power to ratify a treaty,
the Statute in that instance, rests with the President,
subject to the concurrence of the Senate, whose role
relative to the ratification of a treaty is limited merely
to concurring in or withholding the ratification. And
concomitant with this treaty-making power of the
President is his or her prerogative to refuse to submit
a treaty to the Senate; or having secured the latter’s
consent to the ratification of the treaty, refuse to ratify
it.68 This prerogative, the Court hastened to add, is
the President’s alone and cannot be encroached upon
via a writ of mandamus. Barring intervening events,
then, the Philippines remains to be just a signatory to
the Rome Statute. Under Art. 12569 thereof, the final
acts required to complete the treaty process and,
thus, bring it into force, insofar as the Philippines is
concerned, have yet to be done.
Agreement Need Not Be in the Form of a Treaty
On December 11, 2009, then President Arroyo signed
into law Republic Act No. (RA) 9851, otherwise known
as the "Philippine Act on Crimes Against International
Humanitarian Law, Genocide, and Other Crimes
Against Humanity." Sec. 17 of RA 9851, particularly
the second paragraph thereof, provides:
Section 17. Jurisdiction. – x x x x
In the interest of justice, the relevant Philippine
authorities may dispense with the investigation or
prosecution of a crime punishable under this Act if
another court or international tribunal is already
conducting the investigation or undertaking the
prosecution of such crime. Instead, the
authorities may surrender or extradite suspected or
accused persons in the Philippines to the appropriate
international court, if any, or to another State pursuant
to the applicable extradition laws and treaties.
(Emphasis supplied.)
A view is advanced that the Agreement amends
existing municipal laws on the State’s obligation in
relation to grave crimes against the law of nations,
i.e., genocide, crimes against humanity and war
crimes. Relying on the above-quoted statutory
proviso, the view posits that the Philippine is required
to surrender to the proper international tribunal those
persons accused of the grave crimes defined under
RA 9851, if it does not exercise its primary jurisdiction
to prosecute them.
The basic premise rests on the interpretation that if it
does not decide to prosecute a foreign national for
violations of RA 9851, the Philippines has only two
options, to wit: (1) surrender the accused to the
proper international tribunal; or (2) surrender the
accused to another State if such surrender is
"pursuant to the applicable extradition laws and
treaties." But the Philippines may exercise these
options only in cases where "another court or
international tribunal is already conducting the
investigation or undertaking the prosecution of such
crime;" otherwise, the Philippines must prosecute the
crime before its own courts pursuant to RA 9851.
Posing the situation of a US national under
prosecution by an international tribunal for any crime
under RA 9851, the Philippines has the option to
surrender such US national to the international
tribunal if it decides not to prosecute such US national
here. The view asserts that this option of the
Philippines under Sec. 17 of RA 9851 is not subject to
the consent of the US, and any derogation of Sec. 17
of RA 9851, such as requiring the consent of the US
before the Philippines can exercise such option,
requires an amendatory law. In line with this scenario,
the view strongly argues that the Agreement prevents
the Philippines—without the consent of the US—from
surrendering to any international tribunal US nationals
accused of crimes covered by RA 9851, and, thus, in
effect amends Sec. 17 of RA 9851. Consequently, the
view is strongly impressed that the Agreement cannot
be embodied in a simple executive agreement in the
form of an exchange of notes but must be
implemented through an extradition law or a treaty
with the corresponding formalities.
Moreover, consonant with the foregoing view, citing
Sec. 2, Art. II of the Constitution, where the
Philippines adopts, as a national policy, the "generally
accepted principles of international law as part of the
law of the land," the Court is further impressed to
perceive the Rome Statute as declaratory of
customary international law. In other words, the
Statute embodies principles of law which constitute
customary international law or custom and for which
reason it assumes the status of an enforceable
domestic law in the context of the aforecited
constitutional provision. As a corollary, it is argued
that any derogation from the Rome Statute principles
cannot be undertaken via a mere executive
agreement, which, as an exclusive act of the
executive branch, can only implement, but cannot
amend or repeal, an existing law. The Agreement, so
the argument goes, seeks to frustrate the objects of
the principles of law or alters customary rules
embodied in the Rome Statute.
Prescinding from the foregoing premises, the view
thus advanced considers the Agreement inefficacious,
unless it is embodied in a treaty duly ratified with the
concurrence of the Senate, the theory being that a
Senate- ratified treaty partakes of the nature of a
municipal law that can amend or supersede another
law, in this instance Sec. 17 of RA 9851 and the
status of the Rome Statute as constitutive of
enforceable domestic law under Sec. 2, Art. II of the
Constitution.
We are unable to lend cogency to the view thus
taken. For one, we find that the Agreement does not
amend or is repugnant to RA 9851. For another, the
view does not clearly state what precise principles of
law, if any, theAgreement alters. And for a third, it
does not demonstrate in the concrete how
the Agreement seeks to frustrate the objectives of the
principles of law subsumed in the Rome Statute.
Far from it, as earlier explained, the Agreement does
not undermine the Rome Statute as the former merely
reinforces the primacy of the national jurisdiction of
the US and the Philippines in prosecuting criminal
offenses committed by their respective citizens and
military personnel, among others. The jurisdiction of
the ICC pursuant to the Rome Statute over high
crimes indicated thereat is clearly and unmistakably
complementary to the national criminal jurisdiction of
the signatory states.
Moreover, RA 9851 clearly: (1) defines and
establishes the crimes against international
humanitarian law, genocide and other crimes against
humanity;70 (2) provides penal sanctions and criminal
liability for their commission;71 and (3) establishes
special courts for the prosecution of these crimes and
for the State to exercise primary criminal
jurisdiction.72 Nowhere in RA 9851 is there a proviso
that goes against the tenor of theAgreement.
The view makes much of the above quoted second
par. of Sec. 17, RA 9851 as requiring the Philippine
State to surrender to the proper international tribunal
those persons accused of crimes sanctioned under
said law if it does not exercise its primary jurisdiction
to prosecute such persons. This view is not entirely
correct, for the above quoted proviso clearly
provides discretion to the Philippine State on
whether to surrender or not a person accused of the
crimes under RA 9851. The statutory proviso uses the
word "may." It is settled doctrine in statutory
construction that the word "may" denotes discretion,
and cannot be construed as having mandatory
effect.73Thus, the pertinent second pararagraph of
Sec. 17, RA 9851 is simply permissive on the part of
the Philippine State.1avvphi1
Besides, even granting that the surrender of a person
is mandatorily required when the Philippines does not
exercise its primary jurisdiction in cases where
"another court or international tribunal is already
conducting the investigation or undertaking the
prosecution of such crime," still, the tenor of
the Agreement is not repugnant to Sec. 17 of RA
9851. Said legal proviso aptly provides that the
surrender may be made "to another State pursuant to
the applicable extradition laws and treaties." The
Agreement can already be considered a treaty
following this Court’s decision in Nicolas v.
Romulo74 which cited Weinberger v. Rossi.75 In
Nicolas, We held that "an executive agreement is a
‘treaty’ within the meaning of that word in international
law and constitutes enforceable domestic law vis-à-
vis the United States."76
Likewise, the Philippines and the US already have an
existing extradition treaty, i.e., RP-US Extradition
Treaty, which was executed on November 13, 1994.
The pertinent Philippine law, on the other hand, is
Presidential Decree No. 1069, issued on January 13,
1977. Thus, the Agreement, in conjunction with the
RP-US Extradition Treaty, would neither violate nor
run counter to Sec. 17 of RA 9851.
The view’s reliance on Suplico v. Neda77 is similarly
improper. In that case, several petitions were filed
questioning the power of the President to enter into
foreign loan agreements. However, before the
petitions could be resolved by the Court, the Office of
the Solicitor General filed a Manifestation and Motion
averring that the Philippine Government decided not
to continue with the ZTE National Broadband Network
Project, thus rendering the petition moot. In resolving
the case, the Court took judicial notice of the act of
the executive department of the Philippines (the
President) and found the petition to be indeed moot.
Accordingly, it dismissed the petitions.
In his dissent in the abovementioned case, Justice
Carpio discussed the legal implications of an
executive agreement. He stated that "an executive
agreement has the force and effect of law x x x [it]
cannot amend or repeal prior laws."78 Hence, this
argument finds no application in this case seeing as
RA 9851 is a subsequent law, not a prior one.
Notably, this argument cannot be found in the ratio
decidendi of the case, but only in the dissenting
opinion.
The view further contends that the RP-US Extradition
Treaty is inapplicable to RA 9851 for the reason that
under par. 1, Art. 2 of the RP-US Extradition Treaty,
"[a]n offense shall be an extraditable offense if it is
punishable under the laws in both Contracting Parties
x x x,"79 and thereby concluding that while the
Philippines has criminalized under RA 9851 the acts
defined in the Rome Statute as war crimes, genocide
and other crimes against humanity, there is no similar
legislation in the US. It is further argued that, citing
U.S. v. Coolidge, in the US, a person cannot be tried
in the federal courts for an international crime unless
Congress adopts a law defining and punishing the
offense.
This view must fail.
On the contrary, the US has already enacted
legislation punishing the high crimes mentioned
earlier. In fact, as early as October 2006, the US
enacted a law criminalizing war crimes. Section 2441,
Chapter 118, Part I, Title 18 of the United States
Code Annotated (USCA) provides for the criminal
offense of "war crimes" which is similar to the war
crimes found in both the Rome Statute and RA 9851,
thus:
(a) Offense – Whoever, whether inside or
outside the United States, commits a war
crime, in any of the circumstances described
in subsection (b), shall be fined under this
title or imprisoned for life or any term of
years, or both, and if death results to the
victim, shall also be subject to the penalty of
death.
(b) Circumstances – The circumstances
referred to in subsection (a) are that the
person committing such war crime or the
victim of such war crime is a member of the
Armed Forces of the United States or a
national of the United States (as defined in
Section 101 of the Immigration and
Nationality Act).
(c) Definition – As used in this Section the
term "war crime" means any conduct –
(1) Defined as a grave breach in
any of the international conventions
signed at Geneva 12 August 1949,
or any protocol to such convention
to which the United States is a
party;
(2) Prohibited by Article 23, 25, 27
or 28 of the Annex to the Hague
Convention IV, Respecting the
Laws and Customs of War on Land,
signed 18 October 1907;
(3) Which constitutes a grave
breach of common Article 3 (as
defined in subsection [d]) when
committed in the context of and in
association with an armed conflict
not of an international character; or
(4) Of a person who, in relation to
an armed conflict and contrary to
the provisions of the Protocol on
Prohibitions or Restrictions on the
Use of Mines, Booby-Traps and
Other Devices as amended at
Geneva on 3 May 1996 (Protocol II
as amended on 3 May 1996), when
the United States is a party to such
Protocol, willfully kills or causes
serious injury to civilians.801avvphi1
Similarly, in December 2009, the US adopted a law
that criminalized genocide, to wit:
§1091. Genocide
(a) Basic Offense – Whoever, whether in the
time of peace or in time of war and with
specific intent to destroy, in whole or in
substantial part, a national, ethnic, racial or
religious group as such–
(1) kills members of that group;
(2) causes serious bodily injury to
members of that group;
(3) causes the permanent
impairment of the mental faculties
of members of the group through
drugs, torture, or similar techniques;
(4) subjects the group to conditions
of life that are intended to cause the
physical destruction of the group in
whole or in part;
(5) imposes measures intended to
prevent births within the group; or
(6) transfers by force children of the
group to another group;
shall be punished as provided in subsection (b).81
Arguing further, another view has been advanced that
the current US laws do not cover every crime listed
within the jurisdiction of the ICC and that there is a
gap between the definitions of the different crimes
under the US laws versus the Rome Statute. The
view used a report written by Victoria K. Holt and
Elisabeth W. Dallas, entitled "On Trial: The US
Military and the International Criminal Court," as its
basis.
At the outset, it should be pointed out that the report
used may not have any weight or value under
international law. Article 38 of the Statute of the
International Court of Justice (ICJ) lists the sources of
international law, as follows: (1) international
conventions, whether general or particular,
establishing rules expressly recognized by the
contesting states; (2) international custom, as
evidence of a general practice accepted as law; (3)
the general principles of law recognized by civilized
nations; and (4) subject to the provisions of Article 59,
judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as
subsidiary means for the determination of rules of law.
The report does not fall under any of the foregoing
enumerated sources. It cannot even be considered as
the "teachings of highly qualified publicists." A highly
qualified publicist is a scholar of public international
law and the term usually refers to legal scholars or
"academic writers."82 It has not been shown that the
authors83 of this report are highly qualified publicists.
Few believed there were wide differences between
the crimes under the jurisdiction of the Court and
crimes within the Uniform Code of Military Justice that
would expose US personnel to the Court. Since US
military lawyers were instrumental in drafting the
elements of crimes outlined in the Rome Statute, they
ensured that most of the crimes were consistent with
those outlined in the UCMJ and gave strength to
complementarity for the US. Small areas of potential
gaps between the UCMJ and the Rome Statute,
military experts argued, could be addressed through
existing military laws.87 x x x
The report went on further to say that "[a]ccording to
those involved, the elements of crimes laid out in the
Rome Statute have been part of US military doctrine
for decades."88 Thus, the argument proffered cannot
stand.
Nonetheless, despite the lack of actual domestic
legislation, the US notably follows the doctrine of
incorporation. As early as 1900, the esteemed Justice
Gray in The Paquete Habana89 case already held
international law as part of the law of the US, to wit:
International law is part of our law, and must be
ascertained and administered by the courts of justice
of appropriate jurisdiction as often as questions of
right depending upon it are duly presented for their
determination. For this purpose, where there is no
treaty and no controlling executive or legislative act or
judicial decision, resort must be had to the customs
and usages of civilized nations, and, as evidence of
these, to the works of jurists and commentators who
by years of labor, research, and experience have
made themselves peculiarly well acquainted with the
subjects of which they treat. Such works are resorted
to by judicial tribunals, not for the speculations of their
authors concerning what the law ought to be, but for
the trustworthy evidence of what the law really
is.90(Emphasis supplied.)
Thus, a person can be tried in the US for an
international crime despite the lack of domestic
legislation. The cited ruling in U.S. v.
Coolidge,91 which in turn is based on the holding in
U.S. v. Hudson,92 only applies to common law and not
to the law of nations or international law.93 Indeed, the
Court in U.S. v. Hudson only considered the question,
"whether the Circuit Courts of the United States can
exercise a common law jurisdiction in criminal
cases."94 Stated otherwise, there is no common law
crime in the US but this is considerably different from
international law.
The US doubtless recognizes international law as part
of the law of the land, necessarily including
international crimes, even without any local
statute.95 In fact, years later, US courts would apply
international law as a source of criminal liability
despite the lack of a local statute criminalizing it as
such. So it was that in Ex Parte Quirin96 the US
Supreme Court noted that "[f]rom the very beginning
of its history this Court has recognized and applied
the law of war as including that part of the law of
nations which prescribes, for the conduct of war, the
status, rights and duties of enemy nations as well as
of enemy individuals."97 It went on further to explain
that Congress had not undertaken the task of
codifying the specific offenses covered in the law of
war, thus:
It is no objection that Congress in providing for the
trial of such offenses has not itself undertaken to
codify that branch of international law or to mark its
precise boundaries, or to enumerate or define by
statute all the acts which that law condemns. An Act
of Congress punishing ‘the crime of piracy as defined
by the law of nations is an appropriate exercise of its
constitutional authority, Art. I, s 8, cl. 10, ‘to define
and punish’ the offense since it has adopted by
reference the sufficiently precise definition of
international law. x x x Similarly by the reference in
the 15th Article of War to ‘offenders or offenses that x
x x by the law of war may be triable by such military
commissions. Congress has incorporated by
reference, as within the jurisdiction of military
commissions, all offenses which are defined as such
by the law of war x x x, and which may constitutionally
be included within that jurisdiction.98 x x x (Emphasis
supplied.)
This rule finds an even stronger hold in the case of
crimes against humanity. It has been held that
genocide, war crimes and crimes against humanity
have attained the status of customary international
law. Some even go so far as to state that these
crimes have attained the status of jus cogens.99
Customary international law or international custom is
a source of international law as stated in the Statute
of the ICJ.100 It is defined as the "general and
consistent practice of states recognized and followed
by them from a sense of legal obligation."101 In order
to establish the customary status of a particular norm,
two elements must concur: State practice, the
objective element; and opinio juris sive necessitates,
the subjective element.102
State practice refers to the continuous repetition of
the same or similar kind of acts or norms by
States.103 It is demonstrated upon the existence of the
following elements: (1) generality; (2) uniformity and
consistency; and (3) duration.104 While, opinio juris,
the psychological element, requires that the state
practice or norm "be carried out in such a way, as to
be evidence of a belief that this practice is rendered
obligatory by the existence of a rule of law requiring
it."105
"The term ‘jus cogens’ means the ‘compelling
law.’"106 Corollary, "a jus cogens norm holds the
highest hierarchical position among all other
customary norms and principles."107 As a result, jus
cogens norms are deemed "peremptory and non-
derogable."108 When applied to international crimes,
"jus cogens crimes have been deemed so
fundamental to the existence of a just international
legal order that states cannot derogate from them,
even by agreement."109
These jus cogens crimes relate to the principle of
universal jurisdiction, i.e., "any state may exercise
jurisdiction over an individual who commits certain
heinous and widely condemned offenses, even when
no other recognized basis for jurisdiction
exists."110 "The rationale behind this principle is that
the crime committed is so egregious that it is
considered to be committed against all members of
the international community"111 and thus granting
every State jurisdiction over the crime.112
Therefore, even with the current lack of domestic
legislation on the part of the US, it still has both the
doctrine of incorporation and universal jurisdiction to
try these crimes.
Consequently, no matter how hard one insists, the
ICC, as an international tribunal, found in the Rome
Statute is not declaratory of customary international
law.
The first element of customary international law, i.e.,
"established, widespread, and consistent practice on
the part of States,"113 does not, under the premises,
appear to be obtaining as reflected in this simple
reality: As of October 12, 2010, only 114114 States
have ratified the Rome Statute, subsequent to its
coming into force eight (8) years earlier, or on July 1,
2002. The fact that 114 States out of a total of
194115 countries in the world, or roughly 58.76%, have
ratified the Rome Statute casts doubt on whether or
not the perceived principles contained in the Statute
have attained the status of customary law and should
be deemed as obligatory international law. The
numbers even tend to argue against the urgency of
establishing international criminal courts envisioned in
the Rome Statute. Lest it be overlooked, the
Philippines, judging by the action or inaction of its top
officials, does not even feel bound by the Rome
Statute. Res ipsa loquitur. More than eight (8) years
have elapsed since the Philippine representative
signed the Statute, but the treaty has not been
transmitted to the Senate for the ratification process.
And this brings us to what Fr. Bernas, S.J. aptly said
respecting the application of the concurring elements,
thus:
Custom or customary international law means "a
general and consistent practice of states followed by
them from a sense of legal obligation [opinio juris] x x
x." This statement contains the two basic elements of
custom: the material factor, that is how the states
behave, and the psychological factor or subjective
factor, that is, why they behave the way they do.
xxxx
The initial factor for determining the existence of
custom is the actual behavior of states. This
includes several elements: duration, consistency, and
generality of the practice of states.
The required duration can be either short or long. x x
x Philippine Constitution,1 the State is required to
xxxx
Duration therefore is not the most important element.
More important is the consistency and the generality
of the practice. x x x
xxxx
Once the existence of state practice has been
established, it becomes necessary to determine
why states behave the way they do. Do states
behave the way they do because they consider it
obligatory to behave thus or do they do it only as a
matter of courtesy? Opinio juris, or the belief that a
certain form of behavior is obligatory, is what makes
practice an international rule. Without it, practice is
not law.116 (Emphasis added.)
Evidently, there is, as yet, no overwhelming
consensus, let alone prevalent practice, among the
different countries in the world that the prosecution of
internationally recognized crimes of genocide, etc.
should be handled by a particular international
criminal court.
Absent the widespread/consistent-practice-of-states
factor, the second or the psychological element must
be deemed non-existent, for an inquiry on why states
behave the way they do presupposes, in the first
place, that they are actually behaving, as a matter of
settled and consistent practice, in a certain manner.
This implicitly requires belief that the practice in
question is rendered obligatory by the existence of a
rule of law requiring it.117Like the first element, the
second element has likewise not been shown to be
present.
Further, the Rome Statute itself rejects the concept of
universal jurisdiction over the crimes enumerated
therein as evidenced by it requiring State
consent.118 Even further, the Rome Statute
specifically and unequivocally requires that: "This
Statute is subject to ratification, acceptance or
approval by signatory States."119 These clearly negate
the argument that such has already attained
customary status.
More importantly, an act of the executive branch with
a foreign government must be afforded great respect.
The power to enter into executive agreements has
long been recognized to be lodged with the President.
As We held in Neri v. Senate Committee on
Accountability of Public Officers and Investigations,
"[t]he power to enter into an executive agreement is in
essence an executive power. This authority of the
President to enter into executive agreements without
the concurrence of the Legislature has traditionally
been recognized in Philippine jurisprudence." 120 The
rationale behind this principle is the inviolable doctrine
of separation of powers among the legislative,
executive and judicial branches of the government.
Thus, absent any clear contravention of the law,
courts should exercise utmost caution in declaring
any executive agreement invalid.
In light of the above consideration, the position or
view that the challenged RP-US Non-Surrender
Agreement ought to be in the form of a treaty, to be
effective, has to be rejected.
WHEREFORE, the petition for certiorari, mandamus
and prohibition is hereby DISMISSED for lack of
merit. No costs.
SO ORDERED.
DISSENTING OPINION
CARPIO, J.:
I dissent.
The RP-US Non-Surrender Agreement (Agreement)
violates existing municipal laws on the Philippine
State’s obligation to prosecute persons responsible
for any of the international crimes of genocide, war
crimes and other crimes against humanity. Being a
mere executive agreement that is indisputably inferior
to municipal law, the Agreement cannot prevail over a
prior or subsequent municipal law inconsistent with it.
First, under existing municipal laws arising from the
incorporation doctrine in Section 2, Article II of the
surrender to the proper international tribunal persons
accused of grave international crimes, if the State
itself does not exercise its primary jurisdiction to
prosecute such persons.
Second, and more importantly, Republic Act No. 9851
(RA 9851) or the Philippine Act on Crimes Against
International Humanitarian Law, Genocide, and Other
Crimes Against Humanity requires that the RP-US
Non-Surrender Agreement, which is in derogation of
the duty of the Philippines to prosecute those accused
of grave international crimes, should be ratified as a
treaty by the Senate before the Agreement can take
effect.
Section 2 of RA 9851 adopts as a State policy the
following:
Section 2. Declaration of Principles and State
Policies. -
(a) x x x
xxx
(e) The most serious crimes of concern to
the international community as a whole must
not go unpunished and their effective
 prosecution must be ensured by taking
measures at the national level, in order to
put an end to impunity for the perpetrators of
these crimes and thus contribute to the
prevention of such crimes, it being the duty
of every State to exercise its criminal
jurisdiction over those responsible for
international crimes. (Emphasis supplied)
To implement this State policy, Section 17 of RA 9851
provides:
Section 17. Jurisdiction. - The State shall exercise
jurisdiction over persons, whether military or civilian,
suspected or accused of a crime defined and
penalized in this Act, regardless of where the crime is
committed, provided, any one of the following
conditions is met:
(a) The accused is a Filipino citizen;
(b) The accused, regardless of citizenship
or residence, is present in the
Philippines; or
(c) The accused has committed the said
crime against a Filipino citizen.
In the interest of justice, the relevant Philippine
authorities may dispense with the investigation or
prosecution of a crime punishable under this Act if
another court or international tribunal
is already conducting the investigation or
undertaking the prosecution of such crime.
Instead, the authorities may surrender or extradite
suspected or accused persons in the Philippines
to the appropriate international court, if any, or to
another State pursuant to the applicable
extradition laws and treaties. (Boldfacing,
italicization and underscoring supplied)
Section 2(e) and Section 17 impose on the
Philippines the "duty" to prosecute a person present
in the Philippines, "regardless of citizenship or
residence" of such person, who is accused of
committing a crime under RA 9851 "regardless of
where the crime is committed." The Philippines is
expressly mandated by law to prosecute the accused
before its own courts.
If the Philippines decides not to prosecute such
accused, the Philippines has only two options. First, it
may surrender the accused to the "appropriate
international court" such as the International Criminal
Court (ICC). Or second, it may surrender the accused
to another State if such surrender is "pursuant to
the applicable extradition laws and treaties."
Under the second option, the Philippines must have
an applicable extradition law with the other State, or
both the Philippines and the other State must be
signatories to an applicable treaty. Such applicable
extradition law or treaty must not frustrate the
Philippine State policy, which embodies a generally
accepted principle of international law, that it is "the
duty of every State to exercise its criminal jurisdiction
over those responsible for international crimes."
In any case, the Philippines can exercise either
option only if "another court or international
tribunal isalready conducting the investigation or
undertaking the prosecution of such crime." In
short, the Philippines should surrender the accused to
another State only if there is assurance or guarantee
by the other State that the accused will be prosecuted
under the other State's criminal justice system. This
assurance or guarantee springs from the principle of
international law that it is "the duty of every State to
exercise its criminal jurisdiction over those
responsible for international crimes."
There is at present no "applicable" extradition law
or treaty allowing the surrender to the United
States of U.S. nationals accused of crimes under
RA 9851, specifically, Crimes against International
Humanitarian Law or War Crimes,2 Genocide,3 and
Other Crimes against Humanity.4
The RP-US Extradition Treaty cannot be considered
an applicable extradition law or treaty. Paragraph 1,
Article 2 of the RP-US Extradition Treaty provides:
"An offense shall be an extraditable offense if it
is punishable under the laws in both Contracting
Parties xxx."5
The rule in the United States is that a person cannot
be tried in the federal courts for an international crime
unless the U.S. Congress adopts a law defining and
punishing the offense.6 In Medellin v. Texas,7 the U.S.
Supreme Court held that "while treaties ῾may
comprise international commitments ... they are
not domestic law unless Congress has either
enacted implementing statutes or the treaty itself
conveys an intention that it be self-executing’ and
is ratified on these terms." The U.S. Congress has
not enacted legislation to implement the Geneva
Conventions of 1949 (Geneva Conventions)8 which is
one of the foundations of the principles of
International Humanitarian Law. While the U.S.
Senate has ratified the Geneva Conventions,9 the
ratification was not intended to make the Geneva
Conventions self-executing under U.S. domestic
law.10
The United States has not ratified the Rome Statute
of International Criminal Court (Rome Statute). While
the Philippines has also not ratified the Rome Statute,
it has criminalized under RA 9851 all the acts defined
in the Rome Statute as Genocide, War Crimes and
Other Crimes against Humanity. There is no similar
legislation in the United States.
Not all crimes punishable under the Rome Statute are
considered crimes under U.S. laws. A report11 based
partly on interviews with representatives of the U.S.
delegation in Rome stated: "The domestic laws of the
United States xxx do not cover every crime listed
within the jurisdiction of the [International Criminal]
Court."12 The report further explained
the gap between the definitions of Genocide, War
Crimes and Other Crimes against Humanity, under
the Rome Statute and under U.S. domestic laws, in
this wise:13
ICC Statute in Contrast to the US Code
In conversations with both proponents and opponents
of the Court, many suggested that while the US has
objected to the Court’s potential authority
over US service members, what really lies behind that
concern is the recognition that those most vulnerable
to the scrutiny of the Court are notably higher up in
the chain of command: the civilian and senior military
leadership.
Legal experts, both in the military and outside, pointed
out that there were more likely to be "gaps" between
the US Code and the Rome Statute than gaps with
the Uniform Code of Military Justice. After retirement,
military personnel are not covered by the UCMJ, but
instead would be held accountable to the US Code, in
particular Title 10 and Title 18. For some retired
military personnel, this was an area of some concern.
These individuals offered that former leaders, in
particular the "Henry Kissingers of the world," are
most at risk. Indeed, they stressed that as the
main concern for the US: that the Court will take
up cases of former senior civilian leadership and
military officials who, acting under the laws of
war, are no longer covered by the UCMJ and
therefore, potentially open to gaps in federal law
where the US ability to assert complementarity is
nebulous. The fear is that they could be subject to
ICC prosecution for actions they did previously in
uniform.
One legal scholar pointed out that several crimes
defined within the Rome Statute do not appear on
the US books (e.g., apartheid, persecution,
enslavement, and extermination.) While similar
laws exist, it would be within the competency of
the Chief Prosecutor to argue before the Pre-Trial
Chamber14that in fact, the US does not have laws
to prosecute for the crimes that have been
committed. A similar situation arose in 1996, when
Congressman Walter Jones (R-NC) determined
through a series of investigations that civilians serving
overseas under a contract with the US military were
not covered under the UCMJ. It had been assumed
that the US Code gave US primacy over civilians
serving in a military capacity, but instead it was
discovered that if a civilian serving with a military unit
deployed overseas is accused of war crime, the
foreign state whose territory the crimes were
committed in would in fact have primary jurisdiction to
try the case. Therefore, Rep. Jones authored the
"War Crimes Act of 1996," which was designed to
cover civilian serving in a military capacity.15
To ensure that no gaps exist between the US
Code, the UCMJ, and the crimes within the
Court’s jurisdiction, a similar effort could be
made. This process would need to identify first
where crimes exist in the Statute that are not
covered in some context through Title 10 and Title
18 of the US Code and then draft legislation –
modeled after the War Crimes Act – designed to
fill gaps. This would protect former US service
members and senior civilian leadership from ICC
prosecution.
There is very little discussion today about the gaps in
law. Scholars are aware of the potential gaps and see
this area as one where the US might be able to move
forward to clarify legal ambiguities that may exist, and
to make corrections to US laws. This exercise would
strengthen the US assertion of complementarity.
(Emphasis supplied)
The same report added, "At Rome, the U.S. was
concerned with the definition of crimes, especially the
definition of war crimes and, to lesser extent, the
definition of crimes against humanity xxx;"16 that the
crime of genocide was acceptable to the U.S.
delegation; and that throughout the negotiations, the
U.S. position was to seek one hundred percent
assurance that U.S. service members would only be
held accountable to U.S. systems of justice.17
With the existing gap between the crimes of
Genocide, War Crimes and Other Crimes against
Humanity under the Rome Statute - now all
criminalized in the Philippines under RA 9851 on the
one hand, and U.S. domestic laws on the other, these
crimes cannot be considered "punishable under the
laws in both Contracting Parties" as required under
the RP-US Extradition Treaty, and hence, cannot be
considered as extraditable offenses under the treaty.
The crimes considered as Genocide, War Crimes,
and Other Crimes against Humanity under the Rome
Statute and RA 9851 may not necessarily be
considered as such crimes under United States laws.
Consequently, the RP-US Extradition Treaty does not
qualify as an "applicable"extradition law or
treaty under Section 17 of RA 9851, which allows the
Philippines to surrender to another state a person
accused of Genocide, War Crimes and Other Crimes
against Humanity. In short, the Philippines cannot
surrender to the United States a U.S. national
accused of any of these grave international
crimes, when the United States does not have the
same or similar laws to prosecute such crimes.
Neither is the RP-US Non-Surrender Agreement an
"applicable" extradition law or treaty as required in
Section 17 of RA 9851. Thus, the Agreement cannot
be implemented by the Philippine Government in the
absence of an applicable extradition law or treaty
allowing the surrender to the United States of U.S.
nationals accused of crimes under RA 9851.
If a U.S. national is under investigation or prosecution
by an international tribunal for any crime punishable
under RA 9851, the Philippines has the option to
surrender such U.S. national to the international
tribunal if the Philippines decides not to prosecute
such U.S. national in the Philippines. This option of
the Philippine Government under Section 17 of RA
9851 is not subject to the consent of the United
States. Any derogation from Section 17, such as
requiring the consent of the United States before
the Philippines can exercise such option, requires
an amendment to RA 9851 by way of either an
extradition law or treaty. Such an amendment
cannot be embodied in a mere executive
agreement or an exchange of notes such as the
assailed Agreement.
Section 17 of RA 9851 has clearly raised to
a statutory level the surrender to another State of
persons accused of any crime under RA 9851. Any
agreement in derogation of Section 17, such as the
surrender to the U.S. of a U.S. national accused of an
act punishable under RA 9851 but not punishable
under U.S. domestic laws, or the non-surrender to an
international tribunal, without U.S. consent, of a U.S.
national accused of a crime under RA 9851, cannot
be made in a mere executive agreement or an
exchange of notes. Such surrender or non-
surrender, being contrary to Section 17 of RA
9851, can only be made in an amendatory law,
such as a subsequent extradition law or treaty.
Moreover, Section 17 of RA 9851 allows the
surrender to another State only "if another court xxx
is alreadyconducting the investigation or
undertaking the prosecution of such crime." This
means that only if the other State is already
investigating or prosecuting the crime can the
Philippines surrender the accused to such other
State. The RP-US Non-Surrender Agreement does
not require that the United States must already be
investigating or prosecuting the crime before the
Philippines can surrender the accused. In fact, a U.S.
national accused of a crime under RA 9851 may not
even be chargeable of such crime in the U.S.
because the same act may not be a crime under U.S.
domestic laws. In such a case, the U.S. cannot even
conduct an investigation of the accused, much less
prosecute him for the same act. Thus, the RP-US
Non-Surrender Agreement violates the condition in
Section 17 of RA 9851 that the other State
must already be investigating or prosecuting the
accused for the crime penalized under RA 9851
before the Philippines can surrender such accused.
To repeat, the assailed Agreement prevents the
Philippines, without the consent of the United
States, from surrendering to any international tribunal
U.S. nationals accused of crimes under RA 9851.
Such consent is not required under RA 9851which
mandates that any non-surrender without the consent
of another State must be embodied in an extradition
law or treaty. The assailed Agreement also dispenses
with the condition in Section 17 that before the
Philippines can surrender the accused to the United
States, the accused must already be under
investigation or prosecution by the United States for
the crime penalized under RA 9851, a condition that
may be impossible to fulfill because not all crimes
under RA 9851 are recognized as crimes in the
United States. Thus, the Agreement violates
Section 17 of RA 9851 as well as existing
municipal laws arising from the incorporation
doctrine of the Constitution. The Agreement cannot
be embodied in a simple executive agreement or an
exchange of notes, but must be implemented through
an extradition law or a treaty ratified with the
concurrence of at least two-thirds of all the members
of the Senate.
In international law, there is no difference between
treaties and executive agreements on their binding
effect upon party states, as long as the negotiating
functionaries have remained within their
powers.18 However, while the differences in
nomenclature and form of various types of
international agreements are immaterial in
international law, they have significance in the
municipal law of the parties.19 An example is the
requirement of concurrence of the legislative body
with respect to treaties, whereas with respect to
executive agreements, the head of State may act
alone to enforce such agreements.20
The 1987 Philippine Constitution provides: "No treaty
or international agreement shall be valid and effective
unless concurred in by at least two-thirds of all the
Members of the Senate."21 This express constitutional
requirement makes treaties different from executive
agreements, which require no legislative concurrence.
An executive agreement can only implement, and not
amend or repeal, an existing law. As I have discussed
inSuplico v. National Economic and Development
Authority,22 although an executive agreement has the
force and effect of law, just like implementing rules of
executive agencies, it cannot amend or repeal prior
laws, but must comply with the laws it
implements.23 An executive agreement, being an
exclusive act of the Executive branch, does not have
the status of a municipal law.24 Acting alone, the
Executive has no law-making power; and while it has
rule-making power, such power must be exercised
consistent with the law it seeks to implement.25
Thus, an executive agreement cannot amend or
repeal a prior law, but must comply with State
policy embodied in an existing municipal
law.26 This also means that an executive
agreement, which at the time of its execution
complies with then existing law, is deemed
amended or repealed by a subsequent law
inconsistent with such executive agreement.
Under no circumstance can a mere executive
agreement prevail over a prior or subsequent law
inconsistent with such executive agreement.
This is clear from Article 7 of the Civil Code, which
provides:
Article 7. x x x
Administrative or executive acts, orders and
regulations shall be valid only when they are not
contrary to the laws or the Constitution. (Emphasis
supplied)
An executive agreement like the assailed
Agreement is an executive act of the
President. Under Article 7 of the Civil Code, an
executive agreement contrary to a prior law is void.
Similarly, an executive agreement contrary to a
subsequent law becomes void upon the effectivity of
such subsequent law. Since Article 7 of the Civil Code
provides that "executive acts shall be valid only when
they are not contrary to the laws," once an executive
act becomes contrary to law such executive act
becomes void even if it was valid prior to the
enactment of such subsequent law.
A treaty, on the other hand, acquires the status of a
municipal law upon ratification by the Senate. Hence,
a treaty may amend or repeal a prior law and vice-
versa.27 Unlike an executive agreement, a treaty may
change state policy embodied in a prior and existing
law.
In the United States, from where we adopted the
concept of executive agreements, the prevailing view
is thatexecutive agreements cannot alter existing
law but must conform to all statutory
requirements.28 The U.S. State Department made a
distinction between treaties and executive
agreements in this manner:
x x x it may be desirable to point out here the well-
recognized distinction between an executive
agreement and a treaty. In brief, it is that the former
cannot alter the existing law and must conform to
all statutory enactments, whereas a treaty, if ratified
by and with the advice and consent of two-thirds of
the Senate, as required by the Constitution, itself
becomes the supreme law of the land and takes
precedence over any prior statutory
enactments.29 (Emphasis supplied)
The Agreement involved in this case is an executive
agreement entered into via an exchange of
notes.30 The parties to the Agreement (RP and US)
agree not to surrender each other’s nationals31 to any
international tribunal or to a third party for the purpose
of surrendering to any international tribunal, without
the other’s consent, pursuant to the pronounced
objective of "protect[ing] Philippine and American
personnel from frivolous and harassment suits that
might be brought against them in international
tribunals."32 The Agreement amends existing
Philippine State policy as embodied in municipal
law arising from generally accepted principles of
international law which form part of the law of the
land. The Agreement also runs counter to RA 9851
which criminalized wholesale all acts defined as
international crimes in the Rome Statute, an
international treaty which the Philippines has signed
but has still to ratify.33 The Agreement frustrates the
objectives of generally accepted principles of
international law embodied in the Rome Statute.
Thus, considering its nature, the Agreement should
be embodied not in an executive agreement, but in a
treaty which, under the Philippine Constitution, shall
be valid and effective only if concurred in by at least
two-thirds of all the members of the Senate.
The 1987 Philippine Constitution states as one of its
principles, as follows:
The Philippines x x x adopts the generally accepted
principles of international law as part of the law of the
land and adheres to the policy of peace, equality,
justice, freedom, cooperation, and amity with all
nations.34
This constitutional provision enunciates the doctrine
of incorporation which mandates that the Philippines
is bound by generally accepted principles of
international law which automatically form part of
Philippine law by operation of the Constitution.35
In Kuroda v. Jalandoni,36 this Court held that this
constitutional provision "is not confined to the
recognition of rules and principles of international law
as contained in treaties to which our government may
have been or shall be a signatory." The pertinent
portion of Kuroda states:
It cannot be denied that the rules and regulation
of The Hague and Geneva Conventions form part
of and are wholly based on the generally accepted
principles of international law. x x x Such rule and
principles, therefore, form part of the law of our
nation even if the Philippines was not a signatory
to the conventions embodying them, for our
Constitution has been deliberately general and
extensive in its scope and is not confined to the
recognition of rules and principles of international law
as contained in treaties to which our government may
have been or shall be a signatory.37 (Emphasis
supplied)
Hence, generally accepted principles of international
law form part of Philippine laws even if they do not
derive from treaty obligations of the Philippines.38
Generally accepted principles of international law, as
referred to in the Constitution, include customary
international law.39 Customary international law is one
of the primary sources of international law under
Article 38 of the Statute of the International Court of
Justice.40 Customary international law consists of acts
which, by repetition of States of similar international
acts for a number of years, occur out of a sense of
obligation, and taken by a significant number of
States.41 It is based on custom, which is a clear and
continuous habit of doing certain actions, which has
grown under the aegis of the conviction that these
actions are, according to international law, obligatory
or right.42 Thus, customary international law requires
the concurrence of two elements: "[1] the established,
wide-spread, and consistent practice on the part of
the States; and [2] a psychological element known
as opinion juris sive necessitatis (opinion as to law or
necessity). Implicit in the latter element is a belief that
the practice in question is rendered obligatory by the
existence of a rule of law requiring it."43
Some customary international laws have been
affirmed and embodied in treaties and conventions. A
treaty constitutes evidence of customary law if it is
declaratory of customary law, or if it is intended to
codify customary law. In such a case, even a State
not party to the treaty would be bound
thereby.44 A treaty which is merely a formal
expression of customary international law is
enforceable on all States because of their
membership in the family of nations.45 For
instance, the Vienna Convention on Consular
Relations is binding even on non-party States
because the provisions of the Convention are mostly
codified rules of customary international law binding
on all States even before their codification into the
Vienna Convention.46 Another example is the Law of
the Sea, which consists mostly of codified rules of
customary international law, which have been
universally observed even before the Law of the Sea
was ratified by participating States.47
Corollarily, treaties may become the basis of
customary international law. While States which are
not parties to treaties or international agreements are
not bound thereby, such agreements, if widely
accepted for years by many States, may transform
into customary international laws, in which case, they
bind even non-signatory States.48
In Republic v. Sandiganbayan,49 this Court held that
even in the absence of the Constitution,50 generally
accepted principles of international law remain part of
the laws of the Philippines. During the interregnum, or
the period after the actual takeover of power by the
revolutionary government in the Philippines, following
the cessation of resistance by loyalist forces up to 24
March 1986 (immediately before the adoption of the
Provisional Constitution), the 1973 Philippine
Constitution was abrogated and there was no
municipal law higher than the directives and orders of
the revolutionary government. Nevertheless, this
Court ruled that even during this period, the
provisions of the International Covenant on Civil and
Political Rights and the Universal Declaration of
Human Rights, to which the Philippines is a signatory,
remained in effect in the country. The Covenant and
Declaration are based on generally accepted
principles of international law which are applicable in
the Philippines even in the absence of a constitution,
as during the interregnum. Consequently, applying
the provisions of the Covenant and the Declaration,
the Filipino people continued to enjoy almost the
same rights found in the Bill of Rights despite the
abrogation of the 1973 Constitution.
The Rome Statute of the International Criminal Court
was adopted by 120 members of the United Nations
(UN) on 17 July 1998.51 It entered into force on 1 July
2002, after 60 States became party to the Statute
through ratification or accession.52 The adoption of
the Rome Statute fulfilled the international
community’s long-time dream of creating a permanent
international tribunal to try serious international
crimes. The Rome Statute, which established an
international criminal court and formally declared
genocide, war crimes and other crimes against
humanity as serious international crimes, codified
generally accepted principles of international law,
including customary international laws. The
principles of law embodied in the Rome Statute were
already generally accepted principles of international
law even prior to the adoption of the Statute.
Subsequently, the Rome Statute itself has been
widely accepted and, as of November 2010, it has
been ratified by 114 states, 113 of which are
members of the UN.53
There are at present 192 members of the UN. Since
113 member states have already ratified the Rome
Statute, more than a majority of all the UN members
have now adopted the Rome Statute as part of their
municipal laws. Thus, the Rome Statute itself is
generally accepted by the community of nations as
constituting a body of generally accepted principles of
international law. The principles of law found in the
Rome Statute constitute generally accepted
principles of international law enforceable in the
Philippines under the Philippine Constitution. The
principles of law embodied in the Rome Statute are
binding on the Philippines even if the Statute has yet
to be ratified by the Philippine Senate. In short, the
principles of law enunciated in the Rome Statute are
now part of Philippine domestic law pursuant to
Section 2, Article II of the 1987 Philippine
Constitution.
Article 89(1) of the Rome Statute provides as follows:
Surrender of persons to the Court
1. The Court may transmit a request for the
arrest and surrender of a person, together
with the material supporting the request
outlined in article 91, to any State on the
territory of which that person may be found
and shall request the cooperation of that
State in the arrest and surrender of such a
person. States Parties shall, in accordance
with the provisions of this Part and the
procedure under their national law, comply
with requests for arrest and surrender.
xxxx
It is a principle of international law that a
person accused of genocide, war crimes
and other crimes against humanity shall
be prosecuted by the international
community. A State where such a person
may be found has the primary jurisdiction
to prosecute such person, regardless of
nationality and where the crime was
committed. However, if a State does not
exercise such primary jurisdiction, then
such State has the obligation to turn over
the accused to the international tribunal
vested with jurisdiction to try such
person. This principle has been codified
in Section 2(e) and Section 17 of RA 9851.
Moreover, Section 15 of RA 9851 has
expressly adopted "[r]elevant and
applicable international human rights
instruments" as sources of international law
in the application and interpretation of RA
9851, thus:
Section 15. Applicability of International
Law. - In the application and interpretation of
this Act, Philippine courts shall be guided by
the following sources:
(a) x x x
xxx
(e) The rules and principles of
customary international law;
xxx
(g) Relevant and applicable
international human rights
instruments;
(h) Other relevant international
treaties and conventions ratified or
acceded to by the Republic of the
Philippines; and
x x x. (Emphasis supplied)
The Rome Statute is the most relevant and
applicable international human rights
instrument in the application and
interpretation of RA 9851. Section 15(g) of
RA 9851 authorizes the use of the Rome
Statute as a source of international law even
though the Philippines is not a party to the
Rome Statute. Section 15(g) does not
require ratification by the Philippines to such
relevant and applicable international human
rights instruments. International human
rights instruments to which the Philippines is
a party are governed by Section 15(h),
referring to treaties or conventions "ratified or
acceded to" by the Philippines, which
constitute a different category of sources of
international law under Section 15 of RA
9851. Thus, Section 15(g) and Section 15(h)
refer to different instruments, the former to
international human rights instruments to
which the Philippines is not a party, and the
latter to international human rights
instruments to which the Philippines is a
party. By mandate of Section 15 of RA 9851,
both categories of instruments are sources
of international law in the application and
interpretation of RA 9851.
However, paragraph 2 of the assailed RP-
US Non-Surrender Agreement provides as
follows:
2. Persons of one Party present in the
territory of the other shall not, absent the
express consent of the first Party,
(a) be surrendered or transferred by
any means to any international
tribunal for any purpose, unless
such tribunal has been established
by the UN Security Council, or
(b) be surrendered or transferred by
any means to any other entity or
third country, or expelled to a third
country, for the purpose of
surrender to or transfer to any
international tribunal, unless such
tribunal has been established by
the UN Security Council.
Clearly, the Agreement is in derogation of Article
89(1) of the Rome Statute. While Article 98(2) of the
Rome Statute, which states as follows:
2. The Court may not proceed with a request for
surrender which would require the requested State to
act inconsistently with its obligations
under international agreements pursuant to which
the consent of a sending State is required to
surrender a person of that State to the Court, unless
the Court can first obtain the cooperation of the
sending State for the giving of consent for the
surrender." (Emphasis supplied)
allows for derogation of Article 89(1) if there is
an international agreement between States allowing
such derogation, such international agreement, being
in derogation of an existing municipal law insofar as
the Philippines is concerned, must be embodied in a
treaty and ratified by the Philippine Senate. Article
98(2) does not ipso facto allow a derogation of Article
89(1), but requires a further act, that is, the execution
of an international agreement. Since such
international agreement is in derogation of Article
89(1) of the Rome Statute and Section 17 of RA
8951, such international agreement must be
ratified by the Senate to become valid and
effective.
Incidentally, the RP-US Non-Surrender Agreement
allows the Philippines to surrender, even without
U.S. consent, a U.S. national accused of a crime
under RA 9851 provided that the surrender is made to
an "international tribunal xxx established by the UN
Security Council." The United States agrees to this
because it has a veto power in the UN Security
Council, a blocking power which it does not have, and
cannot have, in the International Criminal Court.
The International Criminal Court created under the
Rome Statute was designed to complement the
efforts of states to prosecute their own citizens
domestically while ensuring that those who violate
international law would be brought to justice.54 A state
is given a chance to exercise complementarity55 by
informing the ICC of its choice to investigate and
prosecute its own nationals through its own domestic
courts.56 Thus, the State has the primary jurisdiction
to investigate and prosecute its own nationals in its
custody who may have committed the grave
international crimes specified in the Rome Statute.
Under the same precept, Article 98(2) of the Rome
Statute allows the State of the accused to act
consistently with its obligations under international
agreements, and the ICC "may not proceed with a
request for surrender" which would require such State
to act otherwise. The ICC steps in and assumes
jurisdiction only if the State having primary jurisdiction
and custody of the accused refuses to fulfill its
international duty to prosecute those responsible for
grave international crimes.
The United States has not ratified the Rome Statute,
and instead, entered into bilateral non-surrender
agreements with countries, citing its ability to do so
under Article 98(2) of the Rome Statute.57 These
agreements, also called Bilateral Immunity
Agreements (BIA),58 were intended as "means [to
provide] assurances that no U.S. citizen would be
handed over to the (International Criminal) Court
for investigation and prosecution of alleged
crimes that fell within the Court’s jurisdiction.
xxx"59 There is currently an argument within the
international community about the use of Article 98
agreements, as negotiated by the U.S. after the
adoption of the Rome Statute, and whether they
should be recognized as having precedent over ICC’s
authority.60 When Article 98 was originally included in
the Rome Statute, it was intended to cover Status of
Forces Agreements (SOFAs) and Status of Missions
Agreements (SOMAs),61 which establish the
responsibilities of a nation sending troops to another
country, as well as where jurisdiction lies between the
U.S. and the host government over criminal and civil
issues involving the deployed personnel.62 However,
under the BIAs, the standard definition of "persons"
covered is "current or former Government officials,
employees (including contractors), or military
personnel or nationals of one party."63 The Bush
Administration64 contends that "such bilateral non-
surrender agreements are Article 98(2) agreements
and that all US citizens of whatever character are
covered by any such agreement, xxx [and this] US
position on scope of the bilateral non-surrender
agreements, namely that it includes US citizens
acting in their private capacity, ῾is legally supported
by the text, the negotiating record, and
precedent.’"65 Meanwhile, international legal
scholars and members of the US JAG Corps
involved in the drafting of the Rome Statute
expressed frustration with the "expansive use of
Article 98 agreements to apply to all Americans,
not just those individuals usually covered in
SOFAs and SOMAs."66 There are even those who
contend that since the BIAs do not deal solely with the
conduct of official business, rather, they apply to a
wide variety of persons who may be on the territory of
either party for any purpose at any time, then "the
Rome Statute does not authorize these agreements
and by adhering to them, the countries will violate
their obligations to the [ICC] under the
Statute."67> Regardless of these contentions,
however, the ultimate judge as to what agreement
qualifies under Article 98(2) of the Rome Statute is
the ICC itself.68
The assailed RP-US Non-Surrender Agreement
covers "officials, employees, military personnel,
and nationals." Under the Agreement, the Philippines
is not allowed, without U.S. consent, to surrender to
an international tribunal, including the ICC, U.S.
nationals — whether military personnel or plain
civilians — accused of genocide, war crimes and
other crimes against humanity, that is, the crimes
covered by the Rome Statute and RA 9851. Whether
or not this Agreement would be recognized by the
ICC as an "international agreement" qualified under
Article 98(2) depends on the ICC itself. In the
domestic sphere, however, the Agreement, being in
derogation of the generally accepted principles of
international law embodied in Article 89(1) of the
Rome Statute, as well as being contrary to the
provisions of Section 17 of RA 9851, should be
ratified by the Philippine Senate to be valid and
effective.
In sum, any derogation from the generally accepted
principles of international law embodied in the Rome
Statute, which principles have the status of municipal
law in this country, cannot be undertaken through a
mere executive agreement because an executive
agreement cannot amend existing laws. A law or a
treaty ratified by the Philippine Senate is necessary to
amend, for purposes of domestic law, a derogable
principle of international law, such as Article 89(1) of
the Rome Statute, which has the status of municipal
law.
Likewise, any derogation from the surrender
option of the Philippines under Section 17 of RA
9851 must be embodied in an applicable
extradition law or treaty and not in a mere
executive agreement because such derogation
violates RA 9851, which is superior to, and
prevails over, a prior executive agreement
allowing such derogation. Under no circumstance
can a mere executive agreement prevail over a
prior or subsequent law inconsistent with such
executive agreement. Thus, the RP-US Non-
Surrender Agreement to be valid and effective must
be ratified by the Philippine Senate, and unless so
ratified, the Agreement is without force and effect.
Accordingly, I vote to GRANT the petition and
to DECLARE the RP-US Non-Surrender Agreement
ineffective and unenforceable unless and until ratified
by the Senate of the Philippines.
ANTONIO T. CARPIO
Associate Justice
G.R. No. L-2009 April 30, 1949
SUNRIPE COCONUT PRODUCTS CO.,
INC petitioner,
vs.
THE COURT OF INDUSTRIAL RELATIONS and
SUNSHINE COCONUT WORKERS' UNION
(CLO), respondents.
Paredes Diaz & Poblador for petitioner.
Juan R. Maralit for respondents.
PARAS, J.:
This is an appeal from a decision of the Court of
Industrial Relation holding that the parers and
"shellers" of the petitioner Sunshine Coconut
Products Co., Inc., are its laborers entitled to twelve
days sick leave (one day for each month of service),
notwithstanding the fact that they are piece-workers
under the pakiao system. The contention of the
petitioner is that said "parer" and "shellers" are
independent contractors and do not fall within the
category of employees or laborers.
The Court of Industrial Relation has relied upon the
rule laid down in the case of Philadelphia Record
Company, 69 N.L.R.B., 1232 (1946), to the effect that
when a worker possesses some attributes of an
employee and others off an independent contractor
which make him fall within an intermediate area he
may be classified under the category off an employee
when the economic factsof the relation make it more
nearly one of employment than one of independent
business enterprise with to the ends sought to be
accomplished. Counsel for the petitioner does not
dispute the correctness or applicability of the rule but
it is vigorously contended that in the case at bar the
economic facts characteristic of the independent
contractor far outweigh the economic facts indicative
of an employee. We are not called upon to rule on the
accuracyof petitioner's contention since the
conclusion of the Court of Industrial relation on the
matter is binding this Court. In other word the ruling
that the "parers" and "shellers" have the status of
employee or laborers carries the factual verdict that
economic facts showing such status outweigh those
indicative of an independent contractor. Some facts
expressly invoked by the Court of Industrial Relations
are: That the "parers" and "shellers" work under some
degree of control or supervision of the company if not
under its absolute direction; that said " parers" and
"shellers" form stable groups composed of matured
men and women who regularly work at shelling and
paring nuts that for the most part they depend on their
work in the Sunripe Coconut Products Co., Inc. For
their livelihood; that they are admittedly working in the
factory of said company alongside person who are
indisputably employed by said company. As already
stated whether these specific facts are outweighed as
contended by the petitioner by facts demonstrative of
the status of an independent contractor is a question
decided adversely to the petitioner when the Court of
Industrial Relations held that the "parers" and
"shellers" are laborers or employees.
It is also pretended for the petitioner for the petitioner
that the Court of Industrial Relations departed from
the definition of the word "employee" or "laborer"
found in the Workmen's Compensation Law namely: "
'Laborer' is used as a synonym off employee,' and it
means every person who has entered the
employment of or works under a service or
apprenticeship contract for an employer. . . ." (Section
39 [b], Workmen's Compensation Law as amended.)
The Court of Industrial relation of course adverted to
the following definition; "An employee is any person in
the service of another under a contract for hire
express or implied oral or written. " (Section 7, Labor
Union by Dangle and Scriber, p. 7, citing McDermott's
Case, 283 Mass. 74; Werner vs. Industrial Comm.,
212 Wis., 76) In essence however the ruling of the
Court of Industrial Relation does not run counter to
the definition given in the Workmen's Compensation
Law.
Counsel for the petitioner have stressed the argument
that the principal test in determining whether a worker
is an employee or an independent contractor is the
employer's right of control over the work and not
merely the right to control the result it being intimated
that the "parers" and shellers" are controlled by the
petitioner only to the extent "that the nut are pared
whole or that there is not much meat wasted." Even
under the criterion adopted by the petitioner it would
not be amiss to state thatthe requirement imposed on
the "parers" and "shellers" to the effect that the nuts
are pared whole or that there is not much meat
wasted," in effect limits or that there is not much meat
wasted," in effect limits or controls the means or
details by which said workers are to accomplish their
services.It is inconceivable that the "parers " and
"shellers" in order to meet the requirement of the
petitioners would not follow a uniform standard in the
performance of their work.
Petitioner also insists that the "parers" and "shellers"
are piece-workers under the "pakiao" system. In
answer, suffice it to observe that Commonwealth Act
No. 103, as amended expressly provides that "A
minimum wage or share shall be determined and
fixed for laborers working by the hour day or month or
by piece-work and for tenants sharing in the crop or
paid by measurement unit. . . ." (Section 5.) The
organic law of the Court of Industrial Relation
therefore even orders that laborers may be paid by
piece-work; and the facts that the "parers" and
shellers" are paid a fixed amount for a fixed number of
nuts pared or shelled does not certainly take them out
of the purview of Commonwealth Act No. 103.
It is unnecessary to discuss at length the other facts
pointed out by the petitioner in support of the
proposition that said "parers" and shellers" are
independent contractors, because a ruling on the
matter would necessarily involve a factual inquiry
which we are not authorized to makeEven so we
would undertake to advance the general remark that
inn cases of this kind wherein laborers are usually
compelled to work under condition and term dictated
by the employer a reasonably wide latitude of action
and judgment should be given to the Court of
Industrial Relations with a view to settling industrial
disputes conformably to the intents and purposes of
its organic law. Without in the least intimating that the
relation between the "parers" and "shellers" on the
one hand and the petitioner on the other as planned
out by the latter was conceived knowingly to deprive
said workersof the benefits accruing to workers who
are admittedly employees or laborersunder
Commonwealth Act No. 103 or the Workmen's
Compensation law it is not difficult to surmise that a
contrary decision is likely to set a precedent that may
tend to encourage the adoption of a similar scheme
by many other or even all employers.
The appealed decision of the Court of Industrial
Relations is therefore affirmed with costs against the
petitioner. So ordered.
Moran, C.J., Pablo, Bengzon, and Reyes, JJ., concur.
Tuason, J., concur in the result.
Separate Opinions
PERFECTO, J., concurring:
We concur in the decision as penned by Mr. Justice
Paras.
We believe that judicial notice can be taken of the fact
that the so-called "pakyaw" system mentioned in this
case as generally practiced in our country is in fact a
labor contract between employers and employees
between capitalists and laborers. Under this system
the workers continue in the economic category of
contract laborers. They do not acquire the character
of owners or managers of an independent enterprise.
The system is practiced only in labor contracts.
The "parers" and "shellers" in this case according to
the record are subjectto same degree of control or
supervision by the company for which they are
working and that very fact characterized them as
employees or laborers, entering into the service of the
company under a contract of hire or lease of services.
BRIONES, M., conforme:
Esroy conforme con la ponencia. Aunque los obreros
intersados en este asunto trabajan bajo la forma de
contrato llamada "pakyaw," esto es se les paga la
compensasion de trabajo no mediantee jornal sino a
razon de la cuantia de la labor realizada esto sin
embargo es merament los demass efectos y fines
loss obreros de que se trata forman parte de la
organizacion de trabajadores afectos a la industria de
la compania recurrente. Si se tratase de obreros
contratados bajo "pakyaw" de cuaando en cuando,
casualmente segun lo requieran la emergencia y las
necesidades incidentales de la compania
probablemente se podria sostener que no son
obreros enel seentido legal de la palabra y por tando
sin derecho a reclamar los titulos y privilegios anejos
a la condicion de obrero. Pero el presente caso es
diferente. Aqui los obreros tienen una colocacion mas
o menos permanente y forman parte como digo de la
orrganizacion de la compania al igual que los
asalariados.
FERIA, J., dissenting:
I dissent.
Under section 14 of Commonwealth Act No. 103 and
Rule 44 of the Rule of Courtby appeal by certiorari
from the decrees order or decision of the Court of
Industrial Relation to the Supreme Court lies only in
cases in which question of law are involved in the
appeal and consequently this Court can not review
said decrees, orders or decisions on question of facts.
In all judicial cases the justiciable question is always
either one of factand law or of law only if the facts on
which it is predicated are admittedor not issue. It can
never be a question of fact only because the
administration of justice consists in the application of
law to facts of each case submitted to the Court for
decision. The facts are the minor premise of the
syllogism the law applicable to the major premise and
the conclusion drawn from the syllogism is the
conclusion or finding of law necessary of the decision
of cases or lawsuit by the courts.
If the facts are admitted and only the law applicable to
the case and the conclusion of law to be drawn from
such application is in issue in an appeal the question
involved is purely of law and he Supreme Court has
jurisdiction to review and pass upon the conclusion of
law or finding of the Court of Industrial Relation.
However, if not only the law applicable and
consequently, the inference or conclusion to be drawn
from the application thereof but the facts of the case
as shown by the evidence are in issue the question
involved in an appeal is not of law but of fact, because
no question may arise before the facts to which the
law may bee applied have been finally determined or
found.
In the present appeal there is no question of law
involved because the question whether the "parers" or
"shellers" have the status of employees or laborers in
view of the facts of the case or the work they were
bound to do or the control the principal may or may
not have over their work is a question of fact, or which
"would necessarily involve a factual inquiry which we
are not authorized to do," according to the very
decision of the majority.
This Supreme Court has, therefore no jurisdiction to
review the decision of the Court of Industrial Relation
because the appeal does not involve a question of
law but of facts and this Court has no power to review
the findings of facts in the decision of the said Court
of Industrial Relation. A decision of the said Court on
question of fact is final and not appealable.
We should have dismissed the petition for certiorari
by way of appeal filed in this case from the start and
the fact that we have given it due course in order to
determine whether or not appeal lies after hearing the
adverse party, does not necessarily empower us to
pass upon the merits of the appeal and affirm or
reverse the decision appealed from. To affirm or
reverse a judgment of the Court of Industrial Relation
presupposes a review by us of the finding of fact on
which it is based which we have power to do in the
present case.
Petition for certiorari by way of appeal is therefore
dismissed. We can not review and affirm or reverse
the decision of the court of Industrial Relation in this
case. So ordered.