Affinity and consanguinity as a basis for disqualification under Canon 3 section 5(f)

Problem Areas in Legal Ethics

Arellano University School of Law – Arellano Law Foundation
2019-2020

DISQUALIFICATION OF JUDICIAL OFFICERS

RRC Rule 137
Sec. 1. Disqualification of judges. - No judge or judicial officer shall sit in any case in which he, or his wife or child, is
pecuniarily interested as heir, legatee, creditor or otherwise, or in which he is related to either party within the
sixth degree of consanguinity or affinity, or to counsel within the fourth degree, computed according to the
rules of the civil law, or in which he has been executor, administrator, guardian, trustee or counsel, or in which he
has presided in any inferior court when his ruling or decision is the subject of review, without the written consent of
all parties in interest, signed by them and entered upon the record.
A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or valid
reasons other than those mentioned above.

Cont…
Sec. 2. Objection that judge disqualified, how made and effect. - If it be claimed that an official is disqualified from
sitting as above provided, the party objecting to his competency may, in writing, file with the official his
objection, stating the grounds therefor, and the official shall thereupon proceed with the trial, or withdraw
therefrom, in accordance with his determination of the question of his disqualification. His decision shall be
forthwith made in writing and filed with the other papers in the case, but no appeal or stay shall be allowed
from, or by reason of, his decision in favor of his own competency, until after final judgment in the case.

CANON 3
A JUDGE SHOULD PERFORM OFFICIAL
DUTIES HONESTLY, AND WITH IMPARTIALITY AND DILIGENCE
RULE 3.12 - A judge should take no part in a proceeding where the judge's impartiality might reasonably be
questioned. These cases include among others, proceedings where:
(a) the judge has personal knowledge of disputed evidentiary facts concerning the proceeding;
(b) the judge served as executor, administrator, guardian, trustee or lawyer in the case or matter in controversy, or a
former associate of the judge served as counsel during their association, or the judge or lawyer was a material
witness therein;
…….
(c) the judge's ruling in a lower court is the subject of review;
(d) the judge is related by consanguinity or affinity to a party litigant within the sixth degree or to counsel within
the fourth degree;
(e) the judge knows the judge's spouse or child has a financial interest, as heir, legatee, creditor, fiduciary, or
otherwise, in the subject matter in controversy or in a party to the proceeding, or any other interest that could be
substantially affected by the outcome of the proceeding.
In every instance, the judge shall indicate the legal reason for inhibition.

Definition of affinity
Affinity is defined as "the relation which one spouse because of marriage has to blood relatives of the other. The
connection existing, in consequence of marriage between each of the married persons and the kindred of the other.
The doctrine of affinity grows out of the canonical maxim that marriage makes husband and wife one. The husband
has the same relation by affinity to his wife's blood relatives as she has by consanguinity and vice versa. – PP v.
Raul Berana, G.R. No. 123544 July 29, 1999
Relationship by affinity refers to a relation by virtue of a legal bond such as marriage. Relatives by affinity therefore
are those commonly referred to as "in-laws," or stepfather, stepmother, stepchild and the like. - PP v. Atop, G.R.
Nos. 124303-05 February 10, 1998

1
Affinity denotes "the relation that one spouse has to the blood relatives of the other spouse." It is a relationship by
marriage or a familial relation resulting from marriage. It is a fictive kinship, a fiction created by law in connection
with the institution of marriage and family relations. - Tiggangay v. Judge Wacas A.M. OCA IPI No. 09-3243-RTJ
[2013]

NCC SUBSECTION 1. - Relationship

Art. 963. Proximity of relationship is determined by the number of generations. Each generation forms a degree.

Art. 964. A series of degrees forms a line, which may be either direct or collateral.
A direct line is that constituted by the series of degrees among ascendants and descendants.
A collateral line is that constituted by the series of degrees among persons who are not ascendants and
descendants, but who come from a common ancestor.

Art. 965. The direct line is either descending or ascending.

The former unites the head of the family with those who descend from him.
The latter binds a person with those from whom he descends.
Art. 966. In the line, as many degrees are counted as there are generations or persons, excluding the progenitor.

In the direct line, ascent is made to the common ancestor. Thus, the child is one degree removed from the parent,
two from the grandfather, and three from the great-grandparent.

In the collateral line, ascent is made to the common ancestor and then descent is made to the person with whom
the computation is to be made. Thus, a person is two degrees removed from his brother, three from his uncle, who
is the brother of his father, four from his first cousin, and so forth.

Art. 967. Full blood relationship is that existing between persons who have the same father and the same mother.

Half blood relationship is that existing between persons who have the same father, but not the same mother, or
the same mother, but not the same father.

2 legal theories
1. The terminated affinity view holds that relationship by affinity terminates with the dissolution of the marriage
either by death or divorce which gave rise to the relationship of affinity between the parties.
Under this view, the relationship by affinity is simply coextensive and coexistent with the marriage that produced it.
Its duration is indispensably and necessarily determined by the marriage that created it.
Thus, it exists only for so long as the marriage subsists, such that the death of a spouse ipso facto ends the
relationship by affinity of the surviving spouse to the deceased spouse’s blood relatives.
The first view admits of an exception. The relationship by affinity continues even after the death of one spouse
when there is a surviving issue. The rationale is that the relationship is preserved because of the living issue of the
marriage in whose veins the blood of both parties is commingled.

Cont…
2.The continuing affinity view maintains that relationship by affinity between the surviving spouse and the kindred
of the deceased spouse continues even after the death of the deceased spouse, regardless of whether the
marriage produced children or not.
Under this view, the relationship by affinity endures even after the dissolution of the marriage that produced
it as a result of the death of one of the parties to the said marriage.
This view considers that, where statutes have indicated an intent to benefit step-relatives or in-laws, the “tie of
affinity” between these people and their relatives-by-marriage is not to be regarded as terminated upon the
death of one of the married parties. – Intestate Estate of Gonzales vda. De Carungcong v. PP, G.R. No.
181409 February 11, 2010

2
“Blood relatives”
Relatives by consanguinity or blood relatives encompassed the following:
(1) an ascendant;
(2) a descendant;
(3) a legitimate, natural or adopted brother or sister - PP v. Atop, G.R. Nos. 124303-05 February 10, 1998

No affinity
Indeed, "there is no affinity between the blood relatives of one spouse and the blood relatives of the other. A
husband is related by affinity to his wife’s brother, but not to the wife of his wife’s brother. There is no affinity
between the husband’s brother and the wife’s sister. - Tiggangay v. Judge Wacas A.M. OCA IPI No. 09-3243-
RTJ [2013]
Is the relationship by affinity created between the husband and the blood relatives of his wife (as well as between
the wife and the blood relatives of her husband) dissolved by the death of one spouse, thus ending the marriage
which created such relationship by affinity?
If marriage gives rise to one’s relationship by affinity to the blood relatives of one’s spouse, does the extinguishment
of marriage by the death of the spouse dissolve the relationship by affinity?

“Common law” relationship not a relationship by affinity

The law cannot be stretched to include persons attached by common-law relations. Here, there is no blood
relationship or legal bond that links the appellant to his victim. Thus, the modifying circumstance of relationship
cannot be considered against him. – PP v. Atop, G.R. Nos. 124303-05 February 10, 1998

Case 1
Judge is respondent’s second cousin by affinity, the former’s [judge] aunt is married to an uncle of
respondent. The relationship notwithstanding, Judge did not inhibit himself from hearing said electoral case.
Judge, as alleged, are related within the sixth degree by affinity in that the aunt of the judge is married to the uncle
of respondent.
WON the judge is related by affinity to respondent.

Judge not disqualified

In the instant case, considering that Judge Wacas is related to his aunt by consanguinity in the third degree, it
follows by virtue of the marriage of his aunt to the uncle of Dagadag that Judge Wacas is the nephew-in-law of the
uncle of Dagadag, i.e., a relationship by affinity in the third degree.
But Judge Wacas is not related by affinity to the blood relatives of the uncle of Dagadag as they are not his in-
laws and, thus, are not related in any way to Dagadag.
In like manner, Dagadag is the nephew-in-law of the aunt of Judge Wacas but is not related by affinity to the blood
relatives of Judge Wacas’ aunt, like Judge Wacas.
In short, there is no relationship by affinity between Judge Wacas and Dagadag as they are not in-laws of each
other. Thus, Judge Wacas is not disqualified under Sec. 1 of Rule 137 to hear Election Case. - Tiggangay v. Judge
Wacas A.M. OCA IPI No. 09-3243-RTJ [2013]

Being “magbalae” is not a ground for automatic disqualification

Complainant contends that respondent judge is guilty of impropriety by refusing to inhibit himself from the case
despite the fact that one of the accused, Lope Panti, Sr., is the father-in-law of respondent judge’s daughter.
To be sure, respondent judge and accused Lope Panti, Sr. are not, strictly speaking, relatives within the meaning of
Rule 137, §1 of the Rules of Court.
Nevertheless, the close personal relations between them as parents of their respective children, being in our
culture known as “magbalaes,” should have cautioned respondent judge to inhibit himself from the case, lest
his impartiality be placed in doubt. – Agunday v. Judge Tresvalles, A.M. No. MTJ-99-1236. November 25, 1999
Complainant is the judge’s wife
Respondent issued a warrant for the arrest of complainant, knowing that the private complainant therein was
his wife, Atty. Ester Flor. – Tenenan v. Judge Flor, Jr., A.M. No. RTJ-06-1995 September 25, 2007

3
Judge’s nephew is the husband of the daughter of the counsel for the accused
It is alleged that respondent should have inhibited himself from Criminal Case No. 207096, entitled “People v.
Crisostomo Yalung, Roy Manuel M. Villasor, SG Fernando Tagle, and SG Ronan Guerrero” because respondent’s
nephew, Atty. Cris Pascua Zafra, is married to the daughter of Atty. P. M. Castillo, complainants’ defense
counsel in that case. Complainants’ claim that although respondent’s relationship is to the husband of the
daughter of their counsel, they did not want respondent to try their case because they wanted “to [avoid] any stigma
and/or cloud of doubt on any order/decision” which respondent may render on the case.

Cont..
In this case, respondent judge failed to take into account the loss of trust on the part of the complainant as to
his impartiality.
When a judge exhibits actions that give rise, fairly or unfairly, to perceptions of bias, such faith and
confidence are eroded, and he has no choice but to inhibit himself voluntarily. A judge may not be legally
prohibited from sitting in a litigation, but when circumstances appear that will induce doubt on his honest
actuation and probity in favor of either party, or incite such state of mind, he should conduct a careful
self-examination. He should exercise his discretion in a way that the people’s faith in the courts of justice is not
impaired. The better course for the judge is to disqualify himself. - Latorre v. Judge Ansaldo, A.M. No. RTJ-00-
1563 [2001]

Cont…
In any event, the grounds relied upon by complainants to support their motion, i.e., that respondent’s nephew is
the husband of the daughter of the counsel for the accused; that they lacked confidence in respondent’s
impartiality xxx have no merit.

The first is not a ground for mandatory disqualification of judges under Rule 137, par. 1 since respondent is not
even related to counsel for the accused. - Yalung v. Judge Pascua, A.M. No. MTJ-01-1342 [2001]
Father-in-law of the judge present in the proceeding
The meat of this motion for inhibition is that the father-in-law of the Presiding Judge, herein respondent, was
conspicuously present in the proceedings during which time he gave consultation to the complainant who was
reportedly his political leader and protégée.

In this case, however, respondent did not simply fail to recuse himself from cases in which his relatives were either
involved or interested, the record shows he did so to favor or protect the parties. – Siawan v. Judge Inopiquez,
Jr., A.M. No. MTJ-95-1056. May 21, 2001

Discussing the pending case with a brother

By allowing his brother to discuss with him the merits of one party’s position, Justice Sabio gave his brother the
opportunity to influence him. Any reasonable person would tend to doubt Justice Sabio’s independence and
objectivity after such a conversation with a close family member who also happens to hold a high
government position. As a magistrate, Justice Sabio has the duty to prevent any circumstance that would cast
doubt on his ability to decide a case without interference or pressure from litigants, counsels or their surrogates.
(Re: Letter of Presiding Justice Vasquez, Jr., A.M. No. 08-8-11-CA, October 15, 2008)

Judge and his nephew

Clearly, respondent judge's participation in the preliminary investigation, involving his nephew is a violation of the
afore quoted rules laid down to guide members of the judiciary. The rationale for the rule on disqualification of a
judge stems from the principle that no judge should preside in a case in which he is not wholly free,
disinterested, impartial and independent. A judge should not handle a case in which he might be perceived to
be susceptible to bias and partiality. The rule is intended to preserve the people's faith and confidence in the courts
of justice. - Perez v. Judge Suller, A.M. No. MTJ-94-936 November 6, 1995

Counsel is Judge’s nephew

4
As aptly explained by respondent in his Comment, the grounds mentioned by complainant in her motions to inhibit
are not mandatory grounds for disqualification. He is related to Atty. Hermosisima, counsel in Civil Case No.
517 only by the fifth degree of affinity, which relationship is not included in Rule 137. Complainant failed to cite
any specific act that would indicate bias, prejudice or vengeance warranting his inhibition from the cases. – Reyes v.
Judge Paderanga, A.M. No. RTJ-06-1973, March 14, 2008

“Imputed Affinity”
Judge Doyon should have immediately inhibited himself from the case upon learning of the entry of appearance of
his son’s law firm. - The incorporators of Mindanao Institute Inc., et. al. v. The United Church of Christ in the
Philippines, et. al., G.R. No. 171765, March 21, 2012

A stepdaughter has no common ancestry by her stepmother.

- Petition for cancellation and correction of entries in the record of birth, G.R. No. 177861, July 13, 2010
Thank you for your attention!!