Cases Concubinage
Cases Concubinage
Cases Concubinage
TORRES, J.:
This is an appeal by the defendants from the judgment rendered in this case by the Hon.
Adolph Wislizenus. Juan Casipong later withdrew his appeal, so the judgment is final in his
case (p. 16 of the record), while the appeal continues with respect to Gregoria Hongoy.
On March 5, 1909, Juan Casipong contracted civil marriage with Teodora Juanico before the
justice of the peace of the pueblo of Dumanjug, witnesses thereto being Telesforo Quirante
and Macario Pasculado, as shown in the certificate issued by the acting municipal secretary
of that municipality; but two weeks after the ceremony Casipong left his wife and removed to
the barrio of Bolocboc to live with Gregoria Hongoy, whereupon the offended wife went to
live at her mother's. For the purpose of assuring herself that her husband was really living
with another woman, according to rumors she had heard, the offended wife went in company
with one Hilaria Lumban to said barrio, where she actually saw her husband, Casipong,
maintaining marital relations with the aforesaid Gregoria Hongoy, and although she did not
see them in carnal intercourse, still she saw the two lying side by side and or several
occasions going together to different places in that barrio, and that there was no one besides
them in the house where they lived.
Accordingly, the provincial fiscal on August 24, 1910, filed a complaint in the Court of First
Instance of Cebu, charging Juan Casipong and Gregoria Hongoy with the crime of
concubinage, and instituted this cause, wherein the judge rendered decision the same day,
sentencing the defendant Casipong to one year eight months and twenty-one days of prision
correccional, and the defendant Gregoria Hongoy to two years of banishment, prohibiting her
during the period of the sentence from going within a radius of 25 kilometers of the place
where the crime was committed, the barrio of Bituon, pueblo of Dumanjug; with half the
costs against each party. From this judgment the defendants appealed, but later Casipong
withdrew his appeal, as has been stated.
The crime in this case is provided for and penalized by article 437 of the Penal Code, as
follows:
The husband who shall keep a concubine in his home, or out of it with scandal, shall be
punished with the penalty of prision correccional in its minimum and medium degrees.
From the text of this article it appears that it is an indispensable condition for convicting the
husband of concubinage outside of his home that his conduct produce scandal and set a bad
example among his neighbors, and, according to a principle laid down by the supreme court
of Spain in applying this article of the Penal Code in that country to a case analogous to the
foregoing, in a judgment of June 16, 1888, publicity of an immoral act produces scandal,
for by the bad example set it gives offense and wounds the virtuous sentiments of others.
This principle was reiterated in another judgment of February 25, 1896.
The unlawful union of a married man with a woman not his wife, when the two live
within a town and in the same house as lawful husband and wife, go together through
the streets of the town, frequent places where large crowds gather, and commit acts in
plain sight of the community without caution and with effrontery, is a procedure that
gives rises to criticism and general protest among the neighbors and by its bad example
offends the conscience and feelings of every moral person; and when these conditions
attend the conduct of a married persons it is indubitable that his concubinage with
another woman, even though she does not live in his home, carries with it the
circumstance of scandal required by the law to make his action criminal.
It is to be noted in considering such complex actions that in order to regard them as criminal
it is necessary and indispensable that they be performed by a married man and a woman, or
by both, the man being the active and the woman the passive agent, each with separate
responsibility. There fore, notwithstanding the man's withdrawal of his appeal and the fact
that the appeal taken by Gregoria Hongoy will alone be the subject of the decision, yet the
arguments bearing upon the perpetration of the crime and proof of it will necessarily affect
the man who is the alleged active agent thereof.
On this hypothesis and as a result of the hearing in this case, it is impossible to affirm that
Juan Casipong, husband of Teodora Juanico, has been living in concubinage with public
scandal with another woman, Gregoria Hongoy, because of lack of conclusive proof
demonstrating the reality of the crime with the conditions the law requires for punishing the
perpetrator thereof and his concubine.
Nothing would be easier than to adduce proofs of the criminal act, if said Casipong really
forsook his wife and unlawfully entered into relations with Gregoria Hongoy, for if they have
lived publicly in concubinage and in sight of everybody, various witnesses, residents not only
of the place of residence of the offended wife and her husband but also of the barrio of
Bolocboc, to which the unfaithful husband removed in order to live with his paramour, could
have testified. The statement of the offended wife and of the witness Hilaria Lumban, who
only once saw them together, is not sufficient to prove the aggregate of acts performed by the
two accused, with the scandal produced by the bad example set in their neighborhood.
Under the prevailing criminal procedure, the fiscals's sphere of action is quite extensive, for
he has very direct and active intervention in the trial, assuming as the Government's
representative the defense of society, which has been disturbed by the crime, and taking
public action as though he were the injured party, for the purpose of securing the offender's
punishment, whenever the crime has been proved and the guilt of the accused as the
undoubted perpetrator thereof established.
Perfunctory routine action is not sufficient performance of this duty, but a searching and
intelligent prosecution is necessary. There should be an effort to submit at the trial the best
and strongest evidence available, wherefrom must necessarily appear either the guilt or the
complete innocence of the accused.
In this case it would have been easy to have submitted abundant evidence that Juan Casipong
forsook his lawful wife and lived in concubinage in the village of Bolocboc with his
paramour Gregoria Hongoy, for there would have been more than sufficient witnesses to
testify to the actions performed by the defendants, actions not of isolated occurrence but
carried on for many days in sight of numerous result of the trial it is impossible to conclude
that the concubinage with scandal charged against the defendants has been proved, and
therefore conviction of the alleged concubine Gregoria Hongoy is not according to law.
For these reasons and from lack of proof of the facts alleged in this case, it is our opinion that
the judgment appealed from should reversed and Gregoria Hongoy, acquitted, as we hereby
do, with half of the cots in each instance de oficio. As the defendant Juan Casipong, through
withdrawal of his appeal, is now serving sentence for a crime which is held in this decision to
be not proven, this case should be respectfully brought to the attention of the Honorable, the
Governor-General, so that, if he deem it just and expedient, he may pardon the said Casipong.
So ordered.
STATEMENT
February 21, 1921, the defendant, Pedro Pitoc, was legally married to Petronila Roque in the
city of Manila. For several years prior to their marriage, the defendant, Pedro Pitoc, had
sustained illicit relations with Marcians del Basco. In a short time after the marriage, the
defendant, Pedro Pitoc, and his wife left the city of Manila and went to Calumpit, Bulacan, to
reside. Later Pedro Pitoc returned to Manila, leaving his wife at Calumpit, promising to
return March 15, 1921. For his failure to return on March 17, 1921, his wife came to Manila
to look for him, and later with Angel Roque verified the following complaint against her
husband and his paramour:
For the purposes of the law establishing divorce, the undersigned denounce and accuse Pedro
Pitoc and Marciana del Basco of the crime of concubinage, committed as follows:
That on or about the 23d day of June, 1921, and for some time prior to this date, in the city of
Manila, Philippine Islands, the said accused, Pedro Pitoc, being legally married to the
undersigned, Petronila Roque, voluntarily, illegally and criminally cohabited, lied and had
sexual intercourse with his coaccused, Marciana del Basco, who voluntarily, illegally and
criminally cohabited, lied and had sexual intercourse with the said Pedro Pitoc, knowing that
her coaccused was legally united by marriage with the complaint referred to.
Contrary to law.
They were both found guilty as charged. Pedro Pitoc was sentenced to one year, eight months
and twenty-one days of prision correccional with the accessory penalties provided by law,
and to pay one-half of the costs, from which he appeals, claiming that the evidence was not
sufficient to prove him guilty of the crime of concubinage, beyond a reasonable doubt, and
that there was no evidence that the crime was committed "under scandalous circumstances."
His codefendant did not appeal.
JOHNS, J.:
The questions involved here is the legal construction of article 437 of the Penal Code and the
amendment thereof by section 1 of Act No. 2716, as they both relate to Act No. 2710.
The provisions of articles four hundred thirty-four and four hundred and thirty-five shall be
applied in the cases falling under this article."
Article four hundred and thirty-seven of the Penal Code is hereby amended by inserting at the
end thereof the following:
"For the purposes of the law establishing divorce, the husband who, not being included in the
preceding cases, cohabits with a woman who is not his wife, shall be considered guilty of
concubinage and shall be punished with the penalty prescribed in this section for the crime of
concubinage."
It is not claimed that the defendant Pitoc kept a mistress in the conjugal dwelling, and the
evidence is not sufficient to prove, beyond a reasonable doubt, that he kept a mistress, under
"scandalous circumstances," at any other place.
Section 1 of Act No. 2716, as it amends article 437 of the Penal Code, is very awkwardly
worded, and is apparently misleading. But in the final analysis its meaning its clear. It will be
noted that article 437 specified two different grounds for invoking the penalty of prision
correccional. First, that if any married man keeps a mistress in his conjugal dwelling, or,
second, if he shall keep a mistress anywhere else under "scandalous circumstances," then he
shall be guilty of the specified crime. The purpose and intent of the amendment was to add a
third ground for the commission of the crime. When analyzed, the two acts should read. First,
that, if any married man shall keep a mistress in his conjugal dwelling or second, should keep
a mistress elsewhere under "scandalous circumstance," or, third, if he should "cohabit with a
woman who is not his wife." In either event, he would then be guilty of the crime charged in
article 437, and a conviction of either one of them would be sufficient to entitle a spouse to a
divorce under the provisions of Act No. 2710.
Although the words used in the amendment "for the purposes of the law establishing divorce"
are intended to be explanatory, they are not words of limitation, and are more or less
surplusage. That is to say, if a husband cohabits with a woman who is not his wife, he is
guilty of the crime of concubinage, regardless of whether show wants a divorce or not. The
crime is not contingent upon anything the wife may do or may not do. The crime consists in
the commission of anyone of the three specified grounds, neither of which is dependent upon
the purpose or intent of the wife to obtain a divorce.
Hence, the question involved here is whether within the meaning of the law, the defendant
cohabited "with a woman who is not his wife."
The word cohabit has many different meanings, each depending upon the sense in
which it is used. Here, we have a law intended to prohibit a married man from keeping
a mistress in his dwelling or anywhere else under "scandalous circumstances." Hence,
the meaning of the word cohabit here must relate and he confined to the subject matter
of the law itself. When used in that sense, it should be construed to mean "to dwell or
live together as husband and wife; to live together as husband and wife although not
legally married; to live together in the same house, claiming to be married; to live
together at bed and board." (Corpus Juris, vol., 11, p. 950.)
"Cohabit" means, according to Webster, first, to dwell with another in the same place;
second, to live together as husband and wife.
Bishop, in his work on Marriage, Divorce, and Separation, par. 1669, says to "cohabit" is to
dwell together, so that matrimonial cohabitation is the living together of a man and woman
ostensibly as husband and wife.
The word "cohabit" is said to mean to dwell or live together as husband and wife. And as
used in Pub. St. c. 207, par. 4, providing that whoever, having a former wife living, marries
another or continues to cohabit with such second wife, is guilty of bigamy, etc.
"Obviously the legal sense of the term, as used in Act 1877-78, p. 302, c. 7, par. 7, making it
criminal for persons not married to cohabit together, is to live together in the same house as
married persons living together or in the manner of husband and wife."
To "cohabit," according to the sense in which the word is used in a penal statute, means
dwelling together as husband and wife, or in sexual intercourse, and comprises a continued
period of time. Hence the offense is not the single act of adultery; it is cohabiting in a state of
adultery; and it may be a week, a month, a year, or longer, but still it is one offense only.
To "cohabit" means to dwell together, inhabit or reside in company, or in the same place or
country. Specifically, "to dwell or live together as husband and wife," often with reference to
persons not legally married, and usually, but not always, implying sexual intercourse. (Cox
vs. State, 23 South., 806; 117 Ala., 103; 41 L.R.A., 760; 67 Am. St. Rep., 166 [quoting Cent.
Dict.].)
Applying the facts to such definition, it is undisputed that before his marriage to Petronila
Roque, the defendant and his coaccused were living together for a number of years in illicit
relations. The defendants, Pedro Pitoc, legally married Petronila Roque in the city of Manila
on February 21, 1921, and together they went to Calumpit, Bulacan, to live. In a short time he
left his wife there and came to Manila, promising to return on March 15, twenty-three days
after their marriage. He never did return. March 17, his wife came to Manila where she found
the defendant living in the same house and under the same roof with his former paramour,
staying around her store and keeping company with her, under circumstances which strongly
tend to show that they had resumed their former relations. It is, indeed, significant that the
defendant Pitoc would leave his wife whom he married on February 21, and return to Manila
and go direct to, and obtain a room in, the same house where his former paramour was living,
and violate his promise to return tho his newly wedded wife on March 15.
Petronila Roque testified that she asked her husband if that woman, meaning his coaccused,
was his paramour, and that he answered yes, and that she asked him what would be her
situation and "he answered me that he could not abandon that woman, referring to Marciana
del Basco, and that I could do anything I pleased."
This evidence was not denied by the defendant, Pedro Pitoc. When this is considered with the
defendant's conduct and all the other evidence, surrounding facts and circumstances, the
proof is conclusive that the defendant, Pedro Pitoc, did cohabit "with a woman who is not his
wife," and that he is guilty of the crime charged.
VITUG, J.:
Concededly a highly, if not indeed the most likely, controversial provision introduced by the
Family Code is Article 36 (as amended by E.O. No. 227 dated 17 July 1987), which declares:
Art. 36. A marriage contracted by any party who, at the time of the celebration, was
psychologically incapacitated to comply with the essential marital obligations of marriage,
shall likewise be void even if such incapacity becomes manifest only after its solemnization.
The present petition for review on certiorari, at the instance of Leouel Santos ("Leouel"),
brings into fore the above provision which is now invoked by him. Undaunted by the
decisions of the court a quo 1 and the Court of Appeal, 2 Leouel persists in beseeching its
application in his attempt to have his marriage with herein private respondent, Julia Rosario
Bedia-Santos ("Julia"), declared a nullity.
It was in Iloilo City where Leouel, who then held the rank of First Lieutenant in the
Philippine Army, first met Julia. The meeting later proved to be an eventful day for Leouel
and Julia. On 20 September 1986, the two exchanged vows before Municipal Trial Court
Judge Cornelio G. Lazaro of Iloilo City, followed, shortly thereafter, by a church wedding.
Leouel and Julia lived with the latter's parents at the J. Bedia Compound, La Paz, Iloilo City.
On 18 July 1987, Julia gave birth to a baby boy, and he was christened Leouel Santos, Jr. The
ecstasy, however, did not last long. It was bound to happen, Leouel averred, because of the
frequent interference by Julia's parents into the young spouses family affairs. Occasionally,
the couple would also start a "quarrel" over a number of other things, like when and where
the couple should start living independently from Julia's parents or whenever Julia would
express resentment on Leouel's spending a few days with his own parents.
On 18 May 1988, Julia finally left for the United Sates of America to work as a nurse despite
Leouel's pleas to so dissuade her. Seven months after her departure, or on 01 January 1989,
Julia called up Leouel for the first time by long distance telephone. She promised to return
home upon the expiration of her contract in July 1989. She never did. When Leouel got a
chance to visit the United States, where he underwent a training program under the auspices
of the Armed Forces of the Philippines from 01 April up to 25 August 1990, he desperately
tried to locate, or to somehow get in touch with, Julia but all his efforts were of no avail.
Having failed to get Julia to somehow come home, Leouel filed with the regional trial Court
of Negros Oriental, Branch 30, a complaint for "Voiding of marriage Under Article 36 of the
Family Code" (docketed, Civil Case No. 9814). Summons was served by publication in a
newspaper of general circulation in Negros Oriental.
On 31 May 1991, respondent Julia, in her answer (through counsel), opposed the complaint
and denied its allegations, claiming, in main, that it was the petitioner who had, in fact, been
irresponsible and incompetent.
A possible collusion between the parties to obtain a decree of nullity of their marriage was
ruled out by the Office of the Provincial Prosecutor (in its report to the court).
On 25 October 1991, after pre-trial conferences had repeatedly been set, albeit
unsuccessfully, by the court, Julia ultimately filed a manifestation, stating that she would
neither appear nor submit evidence.
On 06 November 1991, the court a quo finally dismissed the complaint for lack of merit. 3
Leouel appealed to the Court of Appeal. The latter affirmed the decision of the trial court. 4
The petition should be denied not only because of its non-compliance with Circular 28-91,
which requires a certification of non-shopping, but also for its lack of merit.
Leouel argues that the failure of Julia to return home, or at the very least to communicate
with him, for more than five years are circumstances that clearly show her being
psychologically incapacitated to enter into married life. In his own words, Leouel asserts:
. . . (T)here is no leave, there is no affection for (him) because respondent Julia Rosario
Bedia-Santos failed all these years to communicate with the petitioner. A wife who does not
care to inform her husband about her whereabouts for a period of five years, more or less, is
psychologically incapacitated.
The family Code did not define the term "psychological incapacity." The deliberations during
the sessions of the Family Code Revision Committee, which has drafted the Code, can,
however, provide an insight on the import of the provision.
Art. 35. The following marriages shall be void from the beginning:
(7) Those marriages contracted by any party who, at the time of the celebration, was
wanting in the sufficient use of reason or judgment to understand the essential nature of
marriage or was psychologically or mentally incapacitated to discharge the essential marital
obligations, even if such lack of incapacity is made manifest after the celebration.
On subparagraph (7), which as lifted from the Canon Law, Justice (Jose B.L.) Reyes
suggested that they say "wanting in sufficient use," but Justice (Eduardo) Caguioa preferred
to say "wanting in the sufficient use." On the other hand, Justice Reyes proposed that they say
"wanting in sufficient reason." Justice Caguioa, however, pointed out that the idea is that one
is not lacking in judgment but that he is lacking in the exercise of judgment. He added that
lack of judgment would make the marriage voidable. Judge (Alicia Sempio-) Diy remarked
that lack of judgment is more serious than insufficient use of judgment and yet the latter
would make the marriage null and void and the former only voidable. Justice Caguioa
suggested that subparagraph (7) be modified to read:
"That contracted by any party who, at the time of the celebration, was psychologically
incapacitated to discharge the essential marital obligations, even if such lack of incapacity is
made manifest after the celebration."
Justice Caguioa explained that the phrase "was wanting in sufficient use of reason of
judgment to understand the essential nature of marriage" refers to defects in the mental
faculties vitiating consent, which is not the idea in subparagraph (7), but lack of appreciation
of one's marital obligations.
Judge Diy raised the question: Since "insanity" is also a psychological or mental incapacity,
why is "insanity" only a ground for annulment and not for declaration or nullity? In reply,
Justice Caguioa explained that in insanity, there is the appearance of consent, which is the
reason why it is a ground for voidable marriages, while subparagraph (7) does not refer to
consent but to the very essence of marital obligations.
Prof. (Araceli) Baviera suggested that, in subparagraph (7), the word "mentally" be deleted,
with which Justice Caguioa concurred. Judge Diy, however, prefers to retain the word
"mentally."
Justice Caguioa remarked that subparagraph (7) refers to psychological impotence. Justice
(Ricardo) Puno stated that sometimes a person may be psychologically impotent with one but
not with another. Justice (Leonor Ines-) Luciano said that it is called selective impotency.
Dean (Fortunato) Gupit stated that the confusion lies in the fact that in inserting the Canon
Law annulment in the Family Code, the Committee used a language which describes a
ground for voidable marriages under the Civil Code. Justice Caguioa added that in Canon
Law, there are voidable marriages under the Canon Law, there are no voidable marriages
Dean Gupit said that this is precisely the reason why they should make a distinction.
Justice Puno remarked that in Canon Law, the defects in marriage cannot be cured.
Justice Reyes pointed out that the problem is: Why is "insanity" a ground for void ab initio
marriages? In reply, Justice Caguioa explained that insanity is curable and there are lucid
intervals, while psychological incapacity is not.
On another point, Justice Puno suggested that the phrase "even if such lack or incapacity is
made manifest" be modified to read "even if such lack or incapacity becomes manifest."
Justice Reyes remarked that in insanity, at the time of the marriage, it is not apparent.
Justice Caguioa stated that there are two interpretations of the phrase "psychological or
mentally incapacitated" — in the first one, there is vitiation of consent because one does not
know all the consequences of the marriages, and if he had known these completely, he might
not have consented to the marriage.
Prof. Bautista stated that he is in favor of making psychological incapacity a ground for
voidable marriages since otherwise it will encourage one who really understood the
consequences of marriage to claim that he did not and to make excuses for invalidating the
marriage by acting as if he did not understand the obligations of marriage. Dean Gupit added
that it is a loose way of providing for divorce.
Justice Caguioa explained that his point is that in the case of incapacity by reason of defects
in the mental faculties, which is less than insanity, there is a defect in consent and, therefore,
it is clear that it should be a ground for voidable marriage because there is the appearance of
consent and it is capable of convalidation for the simple reason that there are lucid intervals
and there are cases when the insanity is curable. He emphasized that psychological incapacity
does not refer to mental faculties and has nothing to do with consent; it refers to obligations
attendant to marriage.
On psychological incapacity, Prof. (Flerida Ruth P.) Romero inquired if they do not consider
it as going to the very essence of consent. She asked if they are really removing it from
consent. In reply, Justice Caguioa explained that, ultimately, consent in general is effected
but he stressed that his point is that it is not principally a vitiation of consent since there is a
valid consent. He objected to the lumping together of the validity of the marriage celebration
and the obligations attendant to marriage, which are completely different from each other,
because they require a different capacity, which is eighteen years of age, for marriage but in
contract, it is different. Justice Puno, however, felt that psychological incapacity is still a kind
of vice of consent and that it should not be classified as a voidable marriage which is
incapable of convalidation; it should be convalidated but there should be no prescription. In
other words, as long as the defect has not been cured, there is always a right to annul the
marriage and if the defect has been really cured, it should be a defense in the action for
annulment so that when the action for annulment is instituted, the issue can be raised that
actually, although one might have been psychologically incapacitated, at the time the action
is brought, it is no longer true that he has no concept of the consequence of marriage.
Prof. (Esteban) Bautista raised the question: Will not cohabitation be a defense? In response,
Justice Puno stated that even the bearing of children and cohabitation should not be a sign
that psychological incapacity has been cured.
Prof. Romero opined that psychological incapacity is still insanity of a lesser degree. Justice
Luciano suggested that they invite a psychiatrist, who is the expert on this matter. Justice
Caguioa, however, reiterated that psychological incapacity is not a defect in the mind but in
the understanding of the consequences of marriage, and therefore, a psychiatrist will not be a
help.
Prof. Bautista stated that, in the same manner that there is a lucid interval in insanity, there
are also momentary periods when there is an understanding of the consequences of marriage.
Justice Reyes and Dean Gupit remarked that the ground of psychological incapacity will not
apply if the marriage was contracted at the time when there is understanding of the
consequences of marriage. 5
Justice Puno observed that under the present draft provision, it is enough to show that at the
time of the celebration of the marriage, one was psychologically incapacitated so that later on
if already he can comply with the essential marital obligations, the marriage is still void ab
initio. Justice Caguioa explained that since in divorce, the psychological incapacity may
occur after the marriage, in void marriages, it has to be at the time of the celebration of
marriage. He, however, stressed that the idea in the provision is that at the time of the
celebration of the marriage, one is psychologically incapacitated to comply with the essential
marital obligations, which incapacity continues and later becomes manifest.
Justice Puno and Judge Diy, however, pointed out that it is possible that after the marriage,
one's psychological incapacity become manifest but later on he is cured. Justice Reyes and
Justice Caguioa opined that the remedy in this case is to allow him to remarry. 6
Art. 37. A marriage contracted by any party who, at the time of the celebration, was
psychologically incapacitated, to comply with the essential obligations of marriage shall
likewise be void from the beginning even if such incapacity becomes manifest after its
solemnization.
Justice Caguioa suggested that "even if" be substituted with "although." On the other hand,
Prof. Bautista proposed that the clause "although such incapacity becomes manifest after its
solemnization" be deleted since it may encourage one to create the manifestation of
psychological incapacity. Justice Caguioa pointed out that, as in other provisions, they cannot
argue on the basis of abuse.
Judge Diy suggested that they also include mental and physical incapacities, which are lesser
in degree than psychological incapacity. Justice Caguioa explained that mental and physical
incapacities are vices of consent while psychological incapacity is not a species of vice or
consent.
Dean Gupit read what Bishop Cruz said on the matter in the minutes of their February 9,
1984 meeting:
"On the third ground, Bishop Cruz indicated that the phrase "psychological or mental
impotence" is an invention of some churchmen who are moralists but not canonists, that is
why it is considered a weak phrase. He said that the Code of Canon Law would rather express
it as "psychological or mental incapacity to discharge . . ."
Justice Caguioa remarked that they deleted the word "mental" precisely to distinguish it from
vice of consent. He explained that "psychological incapacity" refers to lack of understanding
of the essential obligations of marriage.
Justice Puno reminded the members that, at the last meeting, they have decided not to go into
the classification of "psychological incapacity" because there was a lot of debate on it and
that this is precisely the reason why they classified it as a special case.
At this point, Justice Puno, remarked that, since there having been annulments of marriages
arising from psychological incapacity, Civil Law should not reconcile with Canon Law
because it is a new ground even under Canon Law.
Prof. Romero raised the question: With this common provision in Civil Law and in Canon
Law, are they going to have a provision in the Family Code to the effect that marriages
annulled or declared void by the church on the ground of psychological incapacity is
automatically annulled in Civil Law? The other members replied negatively.
Justice Puno and Prof. Romero inquired if Article 37 should be retroactive or prospective in
application.
Justice Diy opined that she was for its retroactivity because it is their answer to the problem
of church annulments of marriages, which are still valid under the Civil Law. On the other
hand, Justice Reyes and Justice Puno were concerned about the avalanche of cases.
Dean Gupit suggested that they put the issue to a vote, which the Committee approved.
(1) Justice Reyes, Justice Puno and Prof. Romero were for prospectivity.
(2) Justice Caguioa, Judge Diy, Dean Gupit, Prof. Bautista and Director Eufemio were for
retroactivity.
Justice Caguioa suggested that they put in the prescriptive period of ten years within which
the action for declaration of nullity of the marriage should be filed in court. The Committee
approved the suggestion. 7
It could well be that, in sum, the Family Code Revision Committee in ultimately deciding to
adopt the provision with less specificity than expected, has in fact, so designed the law as to
allow some resiliency in its application. Mme. Justice Alicia V. Sempio-Diy, a member of the
Code Committee, has been quoted by Mr. Justice Josue N. Bellosillo in Salita vs. Hon.
Magtolis (G.R. No. 106429, 13 June 1994); thus: 8
The Committee did not give any examples of psychological incapacity for fear that the giving
of examples would limit the applicability of the provision under the principle of ejusdem
generis. Rather, the Committee would like the judge to interpret the provision on a case-to-
case basis, guided by experience, the findings of experts and researchers in psychological
disciplines, and by decisions of church tribunals which, although not binding on the civil
courts, may be given persuasive effect since the provision was taken from Canon Law.
A part of the provision is similar to Canon 1095 of the New Code of Canon Law, 9 which
reads:
3. who for causes of psychological nature are unable to assume the essential obligations
of marriage. (Emphasis supplied.)
Accordingly, although neither decisive nor even perhaps all that persuasive for having no
juridical or secular effect, the jurisprudence under Canon Law prevailing at the time of the
code's enactment, nevertheless, cannot be dismissed as impertinent for its value as an aid, at
least, to the interpretation or construction of the codal provision.
One author, Ladislas Orsy, S.J., in his treaties, 10 giving an account on how the third
paragraph of Canon 1095 has been framed, states:
The history of the drafting of this canon does not leave any doubt that the legislator intended,
indeed, to broaden the rule. A strict and narrow norm was proposed first:
Those who cannot assume the essential obligations of marriage because of a grave psycho-
sexual anomaly (ob gravem anomaliam psychosexualem) are unable to contract marriage (cf.
SCH/1975, canon 297, a new canon, novus);
then the same wording was retained in the text submitted to the pope (cf. SCH/1982, canon
1095, 3);
So the progress was from psycho-sexual to psychological anomaly, then the term anomaly
was altogether eliminated. it would be, however, incorrect to draw the conclusion that the
cause of the incapacity need not be some kind of psychological disorder; after all, normal and
healthy person should be able to assume the ordinary obligations of marriage.
Fr. Orsy concedes that the term "psychological incapacity" defies any precise definition since
psychological causes can be of an infinite variety.
In a book, entitled "Canons and Commentaries on Marriage," written by Ignatius Gramunt,
Javier Hervada and LeRoy Wauck, the following explanation appears:
This incapacity consists of the following: (a) a true inability to commit oneself to the
essentials of marriage. Some psychosexual disorders and other disorders of personality can be
the psychic cause of this defect, which is here described in legal terms. This particular type of
incapacity consists of a real inability to render what is due by the contract. This could be
compared to the incapacity of a farmer to enter a binding contract to deliver the crops which
he cannot possibly reap; (b) this inability to commit oneself must refer to the essential
obligations of marriage: the conjugal act, the community of life and love, the rendering of
mutual help, the procreation and education of offspring; (c) the inability must be tantamount
to a psychological abnormality. The mere difficulty of assuming these obligations, which
could be overcome by normal effort, obviously does not constitute incapacity. The canon
contemplates a true psychological disorder which incapacitates a person from giving what is
due (cf. John Paul II, Address to R. Rota, Feb. 5, 1987). However, if the marriage is to be
declared invalid under this incapacity, it must be proved not only that the person is afflicted
by a psychological defect, but that the defect did in fact deprive the person, at the moment of
giving consent, of the ability to assume the essential duties of marriage and consequently of
the possibility of being bound by these duties.
Justice Sempio-Diy 11 cites with approval the work of Dr. Gerardo Veloso, a former
Presiding Judge of the Metropolitan Marriage Tribunal of the Catholic Archdiocese of Manila
(Branch 1), who opines that psychological incapacity must be characterized by (a) gravity,
(b) juridical antecedence, and (c) incurability. The incapacity must be grave or serious such
that the party would be incapable of carrying out the ordinary duties required in marriage; it
must be rooted in the history of the party antedating the marriage, although the overt
manifestations may emerge only after the marriage; and it must be incurable or, even if it
were otherwise, the cure would be beyond the means of the party involved.
It should be obvious, looking at all the foregoing disquisitions, including, and most
importantly, the deliberations of the Family Code Revision Committee itself, that the use of
the phrase "psychological incapacity" under Article 36 of the Code has not been meant to
comprehend all such possible cases of psychoses as, likewise mentioned by some
ecclesiastical authorities, extremely low intelligence, immaturity, and like circumstances
(cited in Fr. Artemio Baluma's "Void and Voidable Marriages in the Family Code and their
Parallels in Canon Law," quoting from the Diagnostic Statistical Manual of Mental Disorder
by the American Psychiatric Association; Edward Hudson's "Handbook II for Marriage
Nullity Cases"). Article 36 of the Family Code cannot be taken and construed independently
of, but must stand in conjunction with, existing precepts in our law on marriage. Thus
correlated, "psychological incapacity" should refer to no less than a mental (not
physical) incapacity that causes a party to be truly incognitive of the basic marital
covenants that concomitantly must be assumed and discharged by the parties to the
marriage which, as so expressed by Article 68 of the Family Code, include their mutual
obligations to live together, observe love, respect and fidelity and render help and
support. There is hardly any doubt that the intendment of the law has been to confine
the meaning of "psychological incapacity" to the most serious cases of personality
disorders clearly demonstrative of an utter intensitivity or inability to give meaning and
significance to the marriage. This pschologic condition must exist at the time the
marriage is celebrated. The law does not evidently envision, upon the other hand, an
inability of the spouse to have sexual relations with the other. This conclusion is implicit
under Article 54 of the Family Code which considers children conceived prior to the judicial
declaration of nullity of the void marriage to be "legitimate."
The other forms of psychoses, if existing at the inception of marriage, like the state of a party
being of unsound mind or concealment of drug addiction, habitual alcoholism, homosexuality
or lesbianism, merely renders the marriage contract voidable pursuant to Article 46, Family
Code. If drug addiction, habitual alcholism, lesbianism or homosexuality should occur only
during the marriage, they become mere grounds for legal separation under Article 55 of the
Family Code. These provisions of the Code, however, do not necessarily preclude the
possibility of these various circumstances being themselves, depending on the degree and
severity of the disorder, indicia of psychological incapacity.
Until further statutory and jurisprudential parameters are established, every circumstance that
may have some bearing on the degree, extent, and other conditions of that incapacity must, in
every case, be carefully examined and evaluated so that no precipitate and indiscriminate
nullity is peremptorily decreed. The well-considered opinions of psychiatrists, psychologists,
and persons with expertise in psychological disciplines might be helpful or even desirable.
Art. 1. Marriage is a special contract of permanent union between a man a woman entered
into in accordance with law for the establishment of conjugal and family life. It is the
foundation of the family and an inviolable social institution whose nature, consequences, and
incidents are governed by law and not subject to stipulation, except that marriage settlements
may fix the property relations during the marriage within the limits provided by this Code.
(Emphasis supplied.)
Sec. 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly,
it shall strengthen its solidarity and actively promote its total development.
Sec. 2. Marriage, as an inviolable social institution, is the foundation of the family and shall
be protected by the State. (Article XV, 1987 Constitution).
The above provisions express so well and so distinctly the basic nucleus of our laws on
marriage and the family, and they are doubt the tenets we still hold on to.
The factual settings in the case at bench, in no measure at all, can come close to the standards
required to decree a nullity of marriage. Undeniably and understandably, Leouel stands
aggrieved, even desperate, in his present situation. Regrettably, neither law nor society itself
can always provide all the specific answers to every individual problem.
SO ORDERED.
Narvasa, C.J., Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno
Kapunan and Mendoza, JJ., concur.
RESOLUTION
CORTES, J.:
Assailed in this petition is the order of the Regional Trial Court of Cabagan, Isabela, Branch
22, dismissing the criminal information for concubinage filed against private respondents, on
the ground of lack of jurisdiction. The antecedent facts are as follows:
Upon complaint by Alma T. Aggabao, the Office of the Provincial Fiscal of Cabagan, Isabela
filed on July 25, 1986 with the Regional Trial Court of Cabagan, Isabela, Branch 22, an
information against private respondents Elvino Aggabao and Villa Suratos for the crime of
concubinage [Annex "A" to the Petition; Rollo, p. 17.] allegedly committed in September
1983. Upon being arraigned, private respondents entered a plea of not guilty [Annex "B" to
the Petition; Rollo, p. 19]. The complainant was represented before the trial court by a private
prosecutor. During the trial, private respondents filed a motion to dismiss on the ground of
lack of jurisdiction. They argued that concubinage, under Art. 334 of the Revised Penal Code
(RPC) is punishable with prision correccional in its minimum and medium periods, which is
equivalent to imprisonment of six (6) months and one (1) day to four (4) years and two (2)
months, well within the exclusive original jurisdiction of the Municipal Trial Court, and not
of the Regional Trial Court. The prosecution filed an opposition to the motion contending
that the Regional Trial Court has jurisdiction over the crime of concubinage because
destierro, the imposable penalty on the concubine [Art. 334, RPC] has a duration of six (6)
months and one (1) day to six (6) years [Art. 27, RPC]. The trial court sustained private
respondent's position and granted the motion to dismiss.
Private prosecutor, together with the assistant provincial prosecutor of Ilagan, Isabela, filed
on June 16, 1989 the instant petition assailing the order of the trial court granting the motion
to dismiss the criminal information against private respondents. In a resolution dated July 17,
1989, this Court denied the petition due to late payment of docket and legal research fees and
for lack of merit. The Solicitor General filed a motion for reconsideration of the order of the
Court denying the petition. Subsequently, the private prosecutor filed a separate motion for
reconsideration. In these motions, the Solicitor General and the private prosecutor submitted
additional arguments to support their position that the Regional Trial Court has jurisdiction
over the crime of concubinage.
At the outset, it must be stated that the petition is defective since it was not filed by the
Solicitor General. Instead, it was filed by the private prosecutor and the assistant provincial
prosecutor of Ilagan, Isabela, with the offended party, Alma T. Aggabao, being named co-
petitioner of the People of the Philippines. The Court has already ruled that while it is the
fiscal who represents the People of the Philippines in the prosecution of offenses before the
trial courts, when such criminal actions are brought to the Court of Appeals or to the Supreme
Court, it is the Solicitor General who must represent the People of the Philippines, not the
fiscal [City Fiscal of Tacloban v. Espina, G.R. No. 83996, October 21, 1988, 166 SCRA 614]
nor the private prosecutor, even with the conformity of the assistant provincial prosecutor
[People v. Dacudao, G.R. No. 81389, February 21, 1989]. Nevertheless, considering that the
Solicitor General has intervened in this case by filing a motion for reconsideration of the
Court resolution dated July 17, 1989 denying the petition, the Court has decided to forego
technicalities and to resolve the issues raised. Moreover, since it is now apparent that the only
petitioner in this case is the People of the Philippines as represented by the Solicitor General,
payment of the legal fees is not necessary in accordance with Rule 141, Sec. 16 of the
Revised Rules of Court.
Petitioner first contends that private respondents are estopped from raising the issue of
jurisdiction after the prosecution has rested its case and the defense has started to present its
evidence. Furthermore, petitioner complains that "it took two (2) years and six (6) months
before anyone to take (sic) notice of the jurisdictional infirmity [Petition, p. 5; Rollo, p. 12].
Hence, according to petitioner, private respondents are barred from raising the issue of
jurisdiction, estoppel having already set in.
The contention is without merit. In our legal system, the question of jurisdiction may be
raised at any stage of the proceedings [Rule 117, Sec. 8, Revised Rules on Criminal
Procedure; U.S. v. Castanares, 18 Phil. 210 (1911)]. It is true that in Vera v. People, G.R. No.
L-31218, February 18, 1970, 31 SCRA 711 and in People v. Munar, G.R. No. L-37642,
October 22, 1973, 53 SCRA 278, cases cited by the Solicitor General and private prosecutor
in their pleadings, the Court held that jurisdiction cannot be raised for the first time on appeal.
However, these cases can readily be distinguished from the case at bar by the fact that the
issue of jurisdiction was raised only on appeal. In the instant case, the private respondents
made the jurisdictional challenge pending the trial and before the trial court has rendered any
judgment on the merits.
Moreover, the ruling in Vera v. People and People v. Munar that jurisdiction may not be
raised for the first time on appeal, is the exception rather than the general rule.
The doctrine in those cases was first enunciated in Tijam v. Sibonghanoy, G.R. No. L-21450,
April 15, 1968, 23 SCRA 29, 35-36, where the Court stated that:
. . . a party can not invoke the jurisdiction of a court to secure affirmative relief against his
opponent and, after obtaining or failing to obtain such relief, repudiate or question that same
jurisdiction (Dean vs. Dean, 136 Or. 694, 86 A.L.R. 79). In the case just cited, by way of
explaining the rule, it was further said that the question whether the court had jurisdiction
either of the subject- matter of the action or of the parties is barred from such conduct not
because the judgment or order of the court is valid and conclusive as an adjudication, but for
the reason that such a practice can not be tolerated — obviously for reasons of public policy.
Furthermore, it has also been held that after voluntarily submitting a cause and encountering
an adverse decision on the meats, it is too late for the loser to question the jurisdiction or
power of the court ... And in Littleton vs. Burges, 16 Wyo. 58, the Court said that it is not
right for a party who has affirmed and invoked the jurisdiction of a court in a particular
matter to secure an affirmative relief, to afterwards deny that same jurisdiction to escape a
penalty.
In Calimlim v. Ramirez, G.R. No. L-34362, November 19, 1982, 118 SCRA 399 [See also
Dy v. NLRC, G.R. No. 68544, October 27, 1986, 145 SCRA 211], the Court held that the
ruling in Tijam v. Sibonghanoy is an exception to the general rule that the lack of jurisdiction
of a court may be raised at any stage of the proceedings, even on appeal. The Court stated
further that Tijam v. Sibonghanoy is an exceptional case because of the presence of laches.
The Court said:
A rule that had been settled by unquestioned acceptance and upheld in decisions so numerous
to cite is that the jurisdiction of a court over the subject-matter of the action is a matter of law
and may not be conferred by consent or agreement of the parties. The lack of jurisdiction of a
court may be raised at any stage of the proceedings, even on appeal. This doctrine has been
qualified by recent pronouncements which stemmed principally from the ruling in the cited
case of Sibonghanoy. It is to be regretted, however, that the holding in said case had been
applied to situations which were obviously not contemplated therein. The exceptional
circumstance involved in Sibonghanoy which justified the departure from the accepted
concept of non-waivability of objection to jurisdiction has been ignored and, instead a blanket
doctrine had been repeatedly upheld that rendered the supposed ruling in Sibonghanoy not as
the exception, but rather the general rule, virtually overthrowing altogether the time-honored
principle that the issue of jurisdiction is not lost by waiver or by estoppel.
In Sibonghanoy, the defense of lack of jurisdiction of the court that rendered the questioned
ruling was held to be barred by estoppel by laches. It was ruled that the lack of jurisdiction
having been raised for the first time in a motion to dismiss filed almost fifteen (15) years after
the questioned ruling had been rendered, such a plea may no longer be raised for being barred
by laches. As defined in said case, laches is "failure or neglect, for an unreasonable and
unexplained length of time, to do that which, by exercising due diligence, could or should
have been done earlier; it is negligence or omission to assert a right within a reasonable time,
warranting a presumption that the party entitled to assert has abandoned it or declined to
assert it.
The circumstances of the present case are very different from Tijam v. Sibonghanoy No
judgment has yet been rendered by the trial court in this case. And as soon as the accused
discovered the jurisdictional defect, they did not fail or neglect to file the appropriate motion
to dismiss. Hence, finding the pivotal element of laches to be absent, the Court holds that the
ruling in Tijam v. Sibonghanoy, Vera v. People and People v. Munar does not control the
present controversy. Instead, the general rule that the question of jurisdiction of a court may
be raised at any stage of the proceedings, must apply. Private respondents are not estopped
from questioning the jurisdiction of the trial court.
Having disposed of the procedural issue, the Court will now proceed with the main issue of
whether or not the Regional Trial Court has original jurisdiction over the crime of
concubinage.
The crime of concubinage is penalized by Art. 334 of the Revised Penal Code which reads as
follows:
Art. 334. Concubinage. — Any husband who shall keep a mistress in the conjugal
dwelling, or, shall have sexual intercourse, under scandalous circumstances, with a woman
who is not his wife, or shall cohabit with her in any other place shall be punished by prision
correccional in its minimum and medium periods.
According to Sec. 32 of B.P. Blg. 129, otherwise known as the Judiciary Reorganization Act
of 1980, the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial
Courts (hereinafter referred to as the inferior courts) shall exercise "[e]xclusive original
jurisdiction over all offenses punishable with imprisonment of not exceeding four years and
two months, or a fine of not more than four thousand pesos, or both such fine and
imprisonment, regardless of other imposable accessory or other penalties, including the civil
liability arising from such offenses or predicated thereon, irrespective of kind, nature, value
or amount thereof . . ." On the other hand, the "Regional Trial Courts shall exercise exclusive
original jurisdiction in all criminal cases not within the exclusive jurisdiction of any court,
tribunal, or body. . ." [Sec. 20. B.P. Blg. 129].
The penalty imposable on the husband who commits concubinage is prision correccional in
its minimum and medium periods, which ranges from six (6) months and one (1) day to four
(4) years and two (2) months. Hence, as regards the husband, there is no question that
concubinage is within the exclusive original jurisdiction of the inferior courts. The problem
concerns the concubine upon whom the imposable penalty is destierro.
The Solicitor General and the private prosecutor point out that the duration of destierro,
which is between six (6) months and one (1) day to six (6) years [Art. 27, RPC], is beyond
the jurisdiction of the inferior courts to impose. Thus, they conclude that either (1) the
Regional Trial Courts and the inferior courts have concurrent jurisdiction over the crime of
concubinage [Solicitor General's Motion for Reconsideration, p. 11; Rollo, p. 521; or (2) the
Regional Trial Courts and the inferior courts have "split jurisdiction," the latter having
jurisdiction over the crime as regards the husband and the former as regards the concubine
[Private Prosecutor's Motion for Reconsideration, p. 3; Rollo, p. 58].
These propositions are both untenable. It has already been held by the Court in Uy Chin Hua
v. Dinglasan, 86 Phil. 617 (1950) and People v. Santos, 87 Phil. 687 (1950) that a crime
punishable with the penalty of destierro is within the jurisdiction of the inferior courts. This is
so because in the scale of penalties outlined in Art. 71, destierro comes after arresto mayor. *
And since under the Judiciary Act of 1948 [Republic Act No. 296], crimes punishable with
arresto mayor are within the jurisdiction of the inferior courts, it follows that crimes
punishable with destierro are also within the jurisdiction of such courts. In explaining its
conclusion that destierro is lighter than arresto mayor and therefore cognizable by the inferior
courts, the Court, in Uy Chin Hua v. Dinglasan, supra at p. 619, stated the following:
Destierro is not a higher penalty than arresto mayor. Arresto mayor means imprisonment or
complete deprivation of liberty, whereas destierro means banishment or only a prohibition
from residing within a radius of 25 kilometers from the actual residence of the accused for a
specified length of time. The respective severities of arresto mayor and destierro must not be
judged by the duration of each of these penalties, but by the degree of deprivatin of liberty
involved. Penologists have always considered destierro lighter than arresto mayor. Such
criterion is reflected both in the old Spanish Penal Code and in our Revised Penal Code. In
the graduated scale of article 71 the lawmaker has placed destierro below arresto mayor.
There is, therefore, no basis in fact or in law for holding that destierro is a higher penalty than
arresto mayor and that an offense penalized with destierro falls under the jurisdiction of the
court of first instance.
The Court is well-aware of the fact that Uy Chin Hua v. Dinglasan and People v. Santos were
decided under the Judiciary Act of 1948 pursuant to which justices of the peace and judges of
municipal courts of chartered cities had original jurisdiction over "all offenses in which the
penalty provided by law is imprisonment for not more than six months" [Sec. 87 (b)] while
Courts of First Instance had original jurisdiction "in all criminal cases in which the penalty
provided by law is imprisonment for more than six months" [Sec. 44 (f)]. There being no
mention in said Act of crimes for which the penalty is not imprisonment, these aforecited
cases were decided on the premise that "there exists a gap in the law as to which court shall
have original jurisdiction over offenses penalized with destierro or banishment" [Uy Chin
Hua v. Dinglasan, supra, at p. 620].
Under the Judiciary Reorganization Act of 1980 (B.P. Blg. 129), the inferior courts shall
exercise exclusive original jurisdiction over "all offenses punishable with imprisonment of
not exceeding four (4) years and two (2) months [Sec. 32 (2)] while the Regional Trial Courts
shall have exclusive original jurisdiction" in all criminal cases not within the exclusive
jurisdiction of any court, tribunal or body" [Sec. 20]. Ostensibly, Sec. 20 of B. P. Blg. 129
would grant to the Regional Trial Courts jurisdiction over crimes punishable with destierro,
such as concubinage, since destierro is not an offense punishable with imprisonment of not
exceeding four (4) years and two (2) months. However, the Court, after a careful reading of
B.P. Blg. 129, is of the considered opinion that there was no intention to overturn the doctrine
laid down in Uy Chin Hua v. Dinglasan and People v. Santos. It is quite evident that among
the important factors considered in the allocation of jurisdiction between the Regional Trial
Courts and the inferior courts are the gravity of both the offense and the imposable penalty. It
is not, therefore unreasonable to state that the legislature granted to the Regional Trial Courts
jurisdiction over crimes whose penalties are harsher than those vested in the inferior courts.
And since it is already a settled rule that destierro, by its nature, is a lighter penalty than
imprisonment [Uy Chin Hua v. Dingalasan, supra], it follows that even under the Judiciary
Reorganization Act of 1980, jurisdiction over crimes punishable with destierro is vested not
in the Regional Trial Courts but in the inferior courts.
More particularly in this case, the crime of concubinage has two penalties, one for the
husband and another for the concubine. The penalty for the husband, prision correccional in
its minimum and medium periods, which ranges from six (6) months and one (1) day to four
(4) years and two (2) months, is unquestionably within the jurisdiction of the inferior courts.
Considering that Art. 344 of the Revised Penal Code states that "[t]he offended party [in the
crime of concubinage] cannot institute criminal prosecution without including both the guilty
parties," it is clearly in the interest of the orderly administration of justice that the concubine
be tried with the erring husband before the inferior courts. The legislature could not have
intended to allow the absurd situation wherein the inferior court has jurisdiction over the
crime of concubinage only as regards the husband while the Regional Trial Court has
jurisdiction over the same crime with respect to the concubine.
In fine, the Court, after a careful consideration of the pertinent laws, as well as the
jurisprudence on the matter, holds that the crime of concubinage is within the exclusive
original jurisdiction of the inferior courts. The Regional Trial Courts have no original
jurisdiction over the said crime. Hence, the court a quo committed no reversible error in
dismissing the criminal information against private respondents. At any rate, considering that
the dismissal of the case by the court a quo on the ground of lack of jurisdiction is not a bar to
another prosecution for the same offense [Rule 117, Secs. 6 and 7, Revised Rules on Criminal
Procedure] and considering further that the crime has not yet prescribed [See Art. 90, RPC],
the offended wife is not precluded from initiating the filing of another criminal information
against private respondents before the proper court.
WHEREFORE, the Court Resolved to DENY the petition for lack of merit. The
reimbursement of the legal fees paid by the private prosecutor for the filing of this petition is
hereby ORDERED.
SO ORDERED.
Fernan, C.J. (Chairman), Gutierrez, Jr., Feliciano and Bidin, JJ., concur.
GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS) and WINSTON F. GARCIA,
in his capacity as President and General Manager of the GSIS, Petitioners – versus- ARWIN
T. MAYORDOMO, Respondent. G.R. No. 191218
MENDOZA, J.:
In this petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure,
the Government Service Insurance System (GSIS) and its then President and General
Manager, Winston F. Garcia (Garcia), assail and seek to modify the July 31, 2009
Decision[1] of the Court of Appeals (CA) in CA-G.R. SP No. 105414,[2] as reiterated in its
February 5, 2010 Resolution[3] denying the motion for reconsideration thereof for lack of
merit.
The Facts:
Sta. Romana immediately restored the correct IP address assigned to Mayordomos personal
computer. Until this restoration, Liscano was deprived of access to the GSIS computer
network and prevented from performing his work as ITO. Mayordomo was verbally
reminded that he had no authority to change his IP address and warned that doing so would
result in network problems.[6]
On February 9, 2005, in the course of another network scan, Sta. Romana again encountered
the username ATMAYORDOMO. This time, an IP address, belonging to the range of the
GSIS Remote Access Server (RAS),[7] was simulated and used. Knowing that the RAS
would provide an exclusive external trafficking route to the GSIS computer system and
realizing that Mayordomo could have gained access to the entire GSIS network including its
restricted resources, Sta. Romana lost no time in reporting the matter to Rolando O. Tiu
(Tiu), Vice-President of the Resources Administration Office. Before the IT network
personnel could take any action, however, Mayordomo restored his assigned IP address.
The next day, the username ATMAYORDOMO appeared again in the scan, this time using
two (2) IP addresses of the RAS (143.44.6.1 and 143.44.6.2). With notice to Tiu,
Mayordomos personal computer was pulled out to have the glitches caused by the
unauthorized use of the said IP addresses fixed.
In his Memorandum[9] dated February 11, 2005, Tiu reported Mayordomos acts to Esperanza
R. Fallorina and Maria Corazon G. Magdurulan,[10] with emphasis on the danger of
changing IP addresses as a channel for virus proliferation that could result to loss of critical
files for all those infected and render said users unproductive. Tiu also reported that
Mayordomo changed his IP address to gain access to the internet as shown by downloaded
programs in his computer that were not allowed or unnecessary for his work.
In his written explanation[11] of the same date, Mayordomo admitted the acts imputed to him
and offered no excuse therefor. He nonetheless explained his side and claimed that the IP
address assigned to him could not access the network due to a conflict with another IP
address. Despite several verbal notices to the Information Technology Services Group
(ITSG), he was simply told that the conflict would eventually disappear. The network
conflict, however, persisted and resulted in the disruption of his work constraining him to use
another IP address to use an officemates laser printer which was only accessible thru the
Local Area Network (LAN). In his desperate need to print a set of financial reports which
were considered a rush job, Mayordomo decided not to request formal assistance in
accordance with the proper procedure. He apologized and promised not to change his IP
address again, acknowledging the hazards of such careless use of the system.
On March 7, 2007, the GSIS rendered its Decision[17] finding Mayordomo guilty of Grave
Misconduct and imposing upon him the penalty of dismissal, with forfeiture of benefits, loss
of eligibility and disqualification from government service. In said Decision, the GSIS
discussed the significance of an IP address, viz:
It is clear from the above that no two (2) PCs can have the same IP address. And in the event
where two (2) PCs end up having the same IP address, both PCs would not be able to access
the network xxx When the respondent changed his PCs IP address to that of Mr. Liscanos PC,
both the respondent and Mr. Liscano were not able to access the GSIS network. To the
respondents bad luck, the IP address he used was assigned to the PC of an ITSG personnel,
thus, the same was immediately investigated and his actions discovered.
xxx
On the other hand, the RAS is a server that is dedicated to handling users who are not on a
Local Area Network (LAN) but need remote access to it. And owing to its function, no
restrictions are imposed on the IP address of the RAS. Thus, in the instances when the
respondent simulated the IP address of the RAS, he not only jeopardized the accessibility of
the GSIS network to outside users, he also gained access to the entire GSIS network and its
other resources, including the internet, which would have otherwise been prohibited to him.
Simply put, the respondent breached the barriers that were put in place to protect the network
and its other resources from unauthorized incursions when he simulated the RAS IP address.
xxx.
Mayordomo moved for reconsideration of the decision against him arguing against the
unfairness and severity of his dismissal.[18] He argued that his act of changing his IP address
was in no way a flagrant disregard of an established rule, not only because no policy
penalizing the act existed at that time he committed it, but because his reason for doing so
even redounded to the benefit of the GSIS. Simply put, absent were the elements of
corruption and the clear intent to violate a law on his part and only the motivation to
accomplish his task reigned upon his judgment.
In its Resolution dated July 18, 2007,[19] GSIS denied the motion for lack of merit. It
explained that the nonexistence of a policy prohibiting the unauthorized changing of IP
addresses might relieve Mayordomo from an administrative offense of violation of
reasonable office rules and regulations, his actions and its effects on the GSIS network
system fall within the ambit of grave misconduct xxx [T]he assignment of, alteration or
changing of IP addresses is vested solely on the ITSG. Respondent not being a member of the
ITSG clearly had no authority to alter his IP address, whatever may have been his
justification for doing so.
On September 14, 2007, Mayordomo filed an appeal[20] with the Civil Service Commission
(CSC) which dismissed it in Resolution 080713,[21] for failure to comply with the
indispensable requirements under Section 46 of the Uniform Rules on Administrative Cases
in the Civil Service.[22] On reconsideration, however, the CSC ruled on the merits of the
case and affirmed the findings of the GSIS, thus:
The CSC rejected Mayordomos defense of good faith in view of the previous verbal warnings
he received. By changing the IP address of his personal computer for the second time, after
notice of its hazardous effects to the system, Mayordomo committed an act that was
inherently wrong. According to the CSC:
A perusal of the Motion for Reconsideration shows that Mayordomo did not present new
evidence which would materially affect the subject Resolution. xxx Movant has the repetitive
averments that there was no existing company policy that prohibited GSIS employees from
changing their IP addresses, and as such, there was no clear-cut penalty for the said offense;
that by changing his IP address, he was in good faith and meant no harm to the GSIS; that his
acts do not constitute Grave Misconduct.
To these, the Commission emphasizes that in the first place, the act which Mayordomo
committed was one that is inherently wrong. Moreover, the express warning and prohibition
given by the GSIS officials when he was first caught changing his IP address is and
constitutes the rule that obviously made the act he committed, prohibited.
xxx
Further, since the same act/s undoubtedly caused undue prejudice to the government, in the
sense that it exposed the GSIS system to immense risk, movant is correctly found likewise
guilty of Conduct Prejudicial to the Best Interest of the Service. But since this second offense
has a lighter penalty, such is subsumed under the more grievous offense of Grave
Misconduct, which is punishable with the supreme administrative penalty of dismissal.[24]
Undaunted, Mayordomo elevated the case to the CA by way of a petition for review under
Rule 43 of the Rules of Court. Mayordomo argued that the above CSC Resolutions were
issued with grave abuse of discretion amounting to lack or in excess of jurisdiction. He
reiterated his arguments before the GSIS and the CSC, as follows: that he did not commit so
grave an offense to warrant his dismissal from service; that the GSIS miserably failed to
present evidence showing illwill or bad faith on his part; that his act of changing his IP
address was not punishable because no existing company policy was in effect at that time
and, in fact, it was only nine months after his act was complained of, when the GSIS issued a
policy/guideline on the matter; that the Memorandum issued earlier by the Vice-President of
the Human Resource Office sufficiently served as his penalty for his careless acts; and that
granting that he should be penalized anew, his length of service and work performance
should be considered for him to merit a lighter penalty than that of dismissal.
On July 31, 2009, the CA partly granted the petition.[25] According to the appellate court,
while Mayordomo failed to exercise prudence in resorting to changing his IP address, it could
not be said that this act was characterized by a wrongful use of station or character to procure
personal benefit contrary to duty and rights of others. GSIS failed to prove that Mayordomo
acted out of a sinister motive in resorting to such acts or in order to gain a personal benefit
therefrom. The records would only show that Mayordomo did so when he was faced with the
conflict of his own IP address with others and the urgency of his office tasks. In meting out
this penalty for Simple and not Grave Misconduct, the CA took into consideration
Mayordomos length of service in the government and his fairly clean record prior to the
incident. The dispositive portion of the CA Decision thus reads:
WHEREFORE, the petition is PARTLY GRANTED. Resolution No. 080713 and Resolution
No. 081524 of the Civil Service Commission are AFFIRMED with MODIFICATION.
Finding petitioner Arwin T. Mayordomo guilty of simple misconduct this Court hereby
imposes upon him the penalty of suspension of one (1) month and one (1) day.
SO ORDERED.[26]
Hence, this recourse by the petitioners ascribing serious errors on the part of the CA in
modifying the penalty imposed on Mayordomo:
I.
THE HONORABLE COURT OF APPEALS COMMITTED ERROR IN DOWNGRADING
THE OFFENSE TO SIMPLE MISCONDUCT AS IT FAILED TO CONSIDER THE FACT
THAT RESPONDENT ALTERED HIS ASSIGNED IP ADDRESS NOT ONLY ONCE
BUT FOUR (4) TIMES, DESPITE WARNING.
II.
THE HONORABLE COURT OF APPEALS ERRED IN NOT ACCORDING RESPECT
AND CREDIT TO THE FINDINGS OF THE PETITIONERS AND THE CSC, WHICH
WERE SUPPORTED BY MORE THAN THE REQUIRED SUSTANTIAL EVIDENCE.
The petitioners contend that Mayordomo, from the outset, had full knowledge of the nature,
purpose, and importance of an IP address and the dire consequences of changing the same. In
committing computer identity and capacity theft,[27] Mayordomo is guilty of Grave
Misconduct, and even Dishonesty, as shown by substantial evidence. Hence, the CA erred in
giving credence to his assertion that his act of changing his IP address was not attended by
corruption and sinister motive, considering that he freely chose to traverse a tortuous path of
changing his IP address, to simply print a document for his alleged rush work. While the
latter task is simply akin to the goal of reaching Tibet from Nepal,[28] Mayordomo took the
most difficult route, that of changing his IP address, and worse, into the most powerful IP
address in GSIS. For petitioners, Mayordomos dubious motive is shown by his desire to get
to the top, with all the privileges, advantages and practically limitless vista of taking that
topmost perch.[29]
For his part, Mayordomo reasons out that during the time when the GSIS FMAD was in the
peak of activities, he was constrained to alter his IP address because of the failure of the
ITSG to fix a conflict which effectively disrupted his work. He claims to have no reason to
cause harm to the system and to the GSIS in general, because in the first place, he was not
informed of the hazards of changing IP addresses. It was only by November 10, 2005, or nine
months after the incident, when the GSIS issued a policy/ guideline[30] on the matter.
Here, Mayordomos act of having repeatedly changed his IP address without authority, despite
previous warnings, shows that he did not exercise prudence in dealing with officework and
his officemates. After the first warning he received from the ITSG, Mayordomo should have
realized that his unauthorized act brought inconvenience, not only to a fellow employee,
Liscano, but to the entire GSIS, which was actually deprived of service from a paid
employee. As if he did not understand the repercussions of his act, he again toyed with his IP
address and deliberately ignored the importance of necessary clearance before engaging in
any extraordinary measure. Worse, he chose the RAS and gained access to the entire GSIS
network, putting the system in a vulnerable state of security. When Mayordomo was alerted
by the hazardous effects of using an IP address other than his, he should have realized that, a
fortiori, using a RAS IP address would expose the GSIS system into a more perilous
situation.
Indeed, prudence and good sense could have saved Mayordomo from his current tribulation,
but he was unfortunately stubborn to imbibe advice of caution. His claim that he was obliged
to change his IP address due to the inaction of the ITSG in resolving the problem with his
own IP address, cannot exonerate him from responsibility. Obviously, choosing the RAS IP
address to replace his own was way too drastic from sensible conduct expected of a
government employee. Surely, there were other available means to improve his situation of
alleged hampered performance of duties for failure to access the system due to IP conflict.
Certainly, gaining access to the exclusive external trafficking route to the GSIS computer
system was not one of them.
The Court neither loses sight of the undisputed fact that Vice-President J. Fernando U.
Campanas Memorandum stated that the ITSG discovered unauthorized and unnecessary
downloaded programs in Mayordomos personal computer when it was pulled out. Hence,
despite his insistence that exigency was his sole reason in altering his IP address, sheer
common sense and evidence to the contrary belie this.
Mayordomo likewise fails to convince the Court to adhere to his position that the lack of
official policy and guidelines at the time of commission makes the act of unauthorized
alteration of IP addresses exempt from punishment. While official policy and guidelines
apprise covered employees of offenses carrying specific penalties, the Court may not close its
eyes from the fact that actual notice of the dangers of changing his IP address was made
known to Mayordomo, right after the first incident. The CSC was correct in holding that
subsequent to the first warning, Mayordomo was fully aware that changing his IP address
without acquiescence from the ITSG, was inherently wrong.
In the same vein, proof of the alleged damage caused by Mayordomos act to the GSIS system
and its use by the general public, is not necessary. The inaccessibility, unnecessary
interruption, and downtime to the GSIS network as may be experienced by outside users, is
obvious. Proof that the public was inconvenienced in using the GSIS website is not necessary
in order to conclude that the unauthorized changing of IP address can produce pernicious
effects to the orderly administration of government services. It is well-settled that in
administrative cases, the injury sought to be remedied is not merely the loss of public money
or property. Acts that go against the established rules of conduct for government personnel,
[in this case, that of resorting to unauthorized and radical solutions, without clearance from
appropriate parties] bring harm to the civil service, whether they result in loss or not.[34]
This rule is in line with the purpose of administrative proceedings, which is mainly to protect
the public service, based on the time-honored principle that a public office is a public trust.
[35]
Albeit different in degree, both the CSC and the CA agree that Mayordomo is guilty of
misconduct in office. A long line of cases has defined misconduct as a transgression of some
established and definite rule of action, more particularly, unlawful behavior or gross
negligence by the public officer.[36] Jurisprudence has likewise firmly established that the
misconduct is grave if it involves any of the additional elements of corruption, willful intent
to violate the law or to disregard established rules, which must be proved by substantial
evidence.[37]
To warrant dismissal from the service, the misconduct must be grave, serious, important,
weighty, momentous, and not trifling. The misconduct must imply wrongful intention and not
a mere error of judgment.[38] Corruption as an element of grave misconduct consists in the
act of an official or employee who unlawfully or wrongfully uses her station or character to
procure some benefit for herself or for another, at the expense of the rights of others.
Nonetheless, a person charged with grave misconduct may be held liable for simple
misconduct if the misconduct does not involve any of the additional elements to qualify the
misconduct as grave. Grave misconduct necessarily includes the lesser offense of simple
misconduct.[39]
Based on the foregoing rule, the CA designated Mayordomos offense as Simple Misconduct,
on the ground that the elements particular to Grave Misconduct were not adequately proven
by the GSIS on which the burden of proof lay. There being no clear and convincing evidence
to show that Mayordomo changed his IP address for personal or selfish needs, the CA found
that his act could not be said to have been tainted with corruption.
The Court is inclined to disagree with the CA not only in downgrading the offense from
Grave Misconduct to Simple Misconduct, but on the nature of the offense charged itself. The
Court indeed finds Mayordomo administratively liable, but modifies the designation of the
offense and the penalty imposed by the CA.
The Court has come to a determination that the administrative offense committed by the
respondent is not misconduct. To constitute misconduct, the act or acts must have a direct
relation to and be connected with the performance of official duties.[40] The duties of
Mayordomo as a member of the GSIS FMAD surely do not involve the modification of IP
addresses. The act was considered unauthorized, precisely because dealing with the GSIS
networks IP addresses is strictly reserved for ITSG personnel who are expectedly
knowledgeable in this field. In Manuel v. Calimag, Jr.,[41] the Court emphatically ruled:
In order to be considered as misconduct, the act must have a direct relation to and be
connected with the performance of his official duties amounting either to maladministration
or willful, intentional neglect or failure to discharge the duties of the office. Misconduct in
office has been authoritatively defined by Justice Tuazon in Lacson v. Lopez in these words:
"Misconduct in office has a definite and well-understood legal meaning. By uniform legal
definition, it is a misconduct such as affects his performance of his duties as an officer and
not such only as affects his character as a private individual. In such cases, it has been said at
all times, it is necessary to separate the character of the man from the character of the officer
x x x x It is settled that misconduct, misfeasance, or malfeasance warranting removal from
office of an officer must have direct relation to and be connected with the performance of
official duties amounting either to maladministration or willful, intentional neglect and failure
to discharge the duties of the office x x x More specifically, in Buenaventura v. Benedicto, an
administrative proceeding against a judge of the court of first instance, the present Chief
Justice defines misconduct as referring to a transgression of some established and definite
rule of action, more particularly, unlawful behavior or gross negligence by the public officer.
[Emphasis ours, citations excluded]
In Cabalitan v. Department of Agrarian Reform,[42] the Court sustained the ruling of the
CSC that the offense committed by the employee in selling fake Unified Vehicular Volume
Program exemption cards to his officemates during office hours was not grave misconduct,
but conduct prejudicial to the best interest of the service. In Mariano v. Roxas,[43] the Court
held that the offense committed by a CA employee in forging some receipts to avoid her
private contractual obligations, was not misconduct but conduct prejudicial to the best
interest of the service because her acts had no direct relation to or connection with the
performance of her official duties.
Accordingly, the complained acts of respondent Mayordomo constitute the administrative
offense of Conduct Prejudicial to the Best Interest of the Service, which need not be related
to or connected with the public officers official functions. As long as the questioned conduct
tarnishes the image and integrity of his/her public office, the corresponding penalty may be
meted on the erring public officer or employee.[44] Under the Civil Service law and rules,
there is no concrete description of what specific acts constitute the grave offense of Conduct
Prejudicial to the Best Interest of the Service. Jurisprudence, however, is instructive on this
point. The Court has considered the following acts or omissions, inter alia, as Conduct
Prejudicial to the Best Interest of the Service: misappropriation of public funds, abandonment
of office, failure to report back to work without prior notice, failure to safe keep public
records and property, making false entries in public documents and falsification of court
orders.[45] The Court also considered the following acts as conduct prejudicial to the best
interest of the service, to wit: a Judges act of brandishing a gun and threatening the
complainants during a traffic altercation; a court interpreters participation in the execution of
a document conveying complainants property which resulted in a quarrel in the latters family.
[46]
Conduct Prejudicial to the Best Interest of the Service is classified as a grave offense under
Section 22(t) of the Omnibus Rules Implementing Book V of Executive Order No. 292 and
Other Pertinent Civil Service Laws, with a corresponding penalty of suspension for six (6)
months and one (1) day to one (1) year for the first offense, and the penalty of dismissal for
the second offense.
As this is Mayordomos first case, he should be meted the penalty of six (6) months and one
(1) day.
As a final word, the Court makes clear that when an officer or employee is disciplined, the
object sought is not the punishment of that officer or employee, but the improvement of the
public service and the preservation of the publics faith and confidence in the government.[47]
The respondent is reminded that the Constitution stresses that a public office is a public trust
and public officers must at all times be accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead
modest lives. These constitutionally-enshrined principles, oft-repeated in our case law, are
not mere rhetorical flourishes or idealistic sentiments. They should be taken as working
standards by all in the public service.[48]
WHEREFORE, the July 31, 2009 Decision of the Court of Appeals in CA-G.R. SP No.
105414 affirming with modification Resolution No. 080713 and Resolution No. 081524 of
the Civil Service Commission, finding the respondent guilty of simple misconduct is
REVERSED and SET ASIDE. Respondent Arwin T. Mayordomo is declared GUILTY of
Conduct Prejudicial to the Best Interest of the Service and is suspended from service for six
(6) months and one (1) day.
SO ORDERED.