G.R. No.

94723 August 21, 1997

KAREN E. SALVACION, minor, thru Federico N. Salvacion, Jr., father and Natural Guardian,
and Spouses FEDERICO N. SALVACION, JR., and EVELINA E. SALVACION, petitioners,
vs.
CENTRAL BANK OF THE PHILIPPINES, CHINA BANKING CORPORATION and GREG
BARTELLI y NORTHCOTT, respondents.

TORRES, JR., J.:

In our predisposition to discover the "original intent" of a statute, courts become the unfeeling pillars
of the status quo. Ligle do we realize that statutes or even constitutions are bundles of compromises
thrown our way by their framers. Unless we exercise vigilance, the statute may already be out of
tune and irrelevant to our day.

The petition is for declaratory relief. It prays for the following reliefs:

a.) Immediately upon the filing of this petition, an Order be issued restraining the respondents from
applying and enforcing Section 113 of Central Bank Circular No. 960;

b.) After hearing, judgment be rendered:

1.) Declaring the respective rights and duties of petitioners and respondents;

2.) Adjudging Section 113 of Central Bank Circular No. 960 as contrary to the provisions of the
Constitution, hence void; because its provision that "Foreign currency deposits shall be exempt from
attachment, garnishment, or any other order or process of any court, legislative body, government
agency or any administrative body whatsoever

i.) has taken away the right of petitioners to have the bank deposit of defendant Greg Bartelli y
Northcott garnished to satisfy the judgment rendered in petitioners' favor in violation of substantive
due process guaranteed by the Constitution;

ii.) has given foreign currency depositors an undue favor or a class privilege in violation of the equal
protection clause of the Constitution;

iii.) has provided a safe haven for criminals like the herein respondent Greg Bartelli y Northcott since
criminals could escape civil liability for their wrongful acts by merely converting their money to a
foreign currency and depositing it in a foreign currency deposit account with an authorized bank.

The antecedent facts:

On February 4, 1989, Greg Bartelli y Northcott, an American tourist, coaxed and lured petitioner
Karen Salvacion, then 12 years old to go with him to his apartment. Therein, Greg Bartelli detained
Karen Salvacion for four days, or up to February 7, 1989 and was able to rape the child once on
February 4, and three times each day on February 5, 6, and 7, 1989. On February 7, 1989, after
policemen and people living nearby, rescued Karen, Greg Bartelli was arrested and detained at the
Makati Municipal Jail. The policemen recovered from Bartelli the following items: 1.) Dollar Check
No. 368, Control No. 021000678-1166111303, US 3,903.20; 2.) COCOBANK Bank Book No.
104-108758-8 (Peso Acct.); 3.) Dollar Account — China Banking Corp., US$/A#54105028-2; 4.)
ID-122-30-8877; 5.) Philippine Money (P234.00) cash; 6.) Door Keys 6 pieces; 7.) Stuffed Doll
(Teddy Bear) used in seducing the complainant.

On February 16, 1989, Makati Investigating Fiscal Edwin G. Condaya filed against Greg Bartelli,
Criminal Case No. 801 for Serious Illegal Detention and Criminal Cases Nos. 802, 803, 804, and 805
for four (4) counts of Rape. On the same day, petitioners filed with the Regional Trial Court of Makati
Civil Case No. 89-3214 for damages with preliminary attachment against Greg Bartelli. On February
24, 1989, the day there was a scheduled hearing for Bartelli's petition for bail the latter escaped from
jail.

On February 28, 1989, the court granted the fiscal's Urgent Ex-Parte Motion for the Issuance of
Warrant of Arrest and Hold Departure Order. Pending the arrest of the accused Greg Bartelli y
Northcott, the criminal cases were archived in an Order dated February 28, 1989.

Meanwhile, in Civil Case No. 89-3214, the Judge issued an Order dated February 22, 1989 granting
the application of herein petitioners, for the issuance of the writ of preliminary attachment. After
petitioners gave Bond No. JCL (4) 1981 by FGU Insurance Corporation in the amount of
P100,000.00, a Writ of Preliminary Attachment was issued by the trial court on February 28, 1989.

On March 1, 1989, the Deputy Sheriff of Makati served a Notice of Garnishment on China Banking
Corporation. In a letter dated March 13, 1989 to the Deputy Sheriff of Makati, China Banking
Corporation invoked Republic Act No. 1405 as its answer to the notice of garnishment served on it.
On March 15, 1989, Deputy Sheriff of Makati Armando de Guzman sent his reply to China Banking
Corporation saying that the garnishment did not violate the secrecy of bank deposits since the
disclosure is merely incidental to a garnishment properly and legally made by virtue of a court order
which has placed the subject deposits in custodia legis. In answer to this letter of the Deputy Sheriff
of Makati, China Banking Corporation, in a letter dated March 20, 1989, invoked Section 113 of
Central Bank Circular No. 960 to the effect that the dollar deposits or defendant Greg Bartelli are
exempt from attachment, garnishment, or any other order or process of any court, legislative body,
government agency or any administrative body, whatsoever.

This prompted the counsel for petitioners to make an inquiry with the Central Bank in a letter dated
April 25, 1989 on whether Section 113 of CB Circular No. 960 has any exception or whether said
section has been repealed or amended since said section has rendered nugatory the substantive
right of the plaintiff to have the claim sought to be enforced by the civil action secured by way of the
writ of preliminary attachment as granted to the plaintiff under Rule 57 of the Revised Rules of Court.
The Central Bank responded as follows:

May 26, 1989

Ms. Erlinda S. Carolino

12 Pres. Osmena Avenue
South Admiral Village
Paranaque, Metro Manila
Dear Ms. Carolino:

This is in reply to your letter dated April 25, 1989 regarding your inquiry on Section 113, CB Circular
No. 960 (1983).

The cited provision is absolute in application. It does not admit of any exception, nor has the same
been repealed nor amended.

The purpose of the law is to encourage dollar accounts within the country's banking system which
would help in the development of the economy. There is no intention to render futile the basic rights
of a person as was suggested in your subject letter. The law may be harsh as some perceive it, but it
is still the law. Compliance is, therefore, enjoined.

Very truly yours,

(SGD) AGAPITO S. FAJARDO

1
Director

Meanwhile, on April 10, 1989, the trial court granted petitioners' motion for leave to serve summons
by publication in the Civil Case No. 89-3214 entitled "Karen Salvacion, et al. vs. Greg Bartelli y
Northcott." Summons with the complaint was a published in the Manila Times once a week for three
consecutive weeks. Greg Bartelli failed to file his answer to the complaint and was declared in
default on August 7, 1989. After hearing the case ex-parte, the court rendered judgment in favor of
petitioners on March 29, 1990, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered in favor of plaintiffs and against defendant, ordering the
latter:

1. To pay plaintiff Karen E. Salvacion the amount of P500,000.00 as moral damages;

2. To pay her parents, plaintiffs spouses Federico N. Salvacion, Jr., and Evelina E. Salvacion the
amount of P150,000.00 each or a total of P300,000.00 for both of them;

3. To pay plaintiffs exemplary damages of P100,000.00; and

4. To pay attorney's fees in an amount equivalent to 25% of the total amount of damages herein
awarded;

5. To pay litigation expenses of P10,000.00; plus

6. Costs of the suit.

SO ORDERED.

The heinous acts of respondent Greg Bartelli which gave rise to the award were related in graphic
detail by the trial court in its decision as follows:

The defendant in this case was originally detained in the municipal jail of Makati but was able to
escape therefrom on February 24, 1989 as per report of the Jail Warden of Makati to the Presiding
Judge, Honorable Manuel M. Cosico of the Regional Trial Court of Makati, Branch 136, where he
was charged with four counts of Rape and Serious Illegal Detention (Crim. Cases Nos. 802 to 805).
Accordingly, upon motion of plaintiffs, through counsel, summons was served upon defendant by
publication in the Manila Times, a newspaper of general circulation as attested by the Advertising
Manager of the Metro Media Times, Inc., the publisher of the said newspaper. Defendant, however,
failed to file his answer to the complaint despite the lapse of the period of sixty (60) days from the
last publication; hence, upon motion of the plaintiffs, through counsel, defendant was declared in
default and plaintiffs were authorized to present their evidence ex parte.

In support of the complaint, plaintiffs presented as witnesses the minor Karen E. Salvacion, her
father, Federico N. Salvacion, Jr., a certain Joseph Aguilar and a certain Liberato Madulio, who gave
the following testimony:

Karen took her first year high school in St. Mary's Academy in Pasay City but has recently
transferred to Arellano University for her second year.

In the afternoon of February 4, 1989, Karen was at the Plaza Fair Makati Cinema Square, with her
friend Edna Tangile whiling away her free time. At about 3:30 p.m. while she was finishing her snack
on a concrete bench in front of Plaza Fair, an American approached her. She was then alone
because Edna Tangile had already left, and she was about to go home. (TSN, Aug. 15, 1989, pp. 2
to 5)

The American asked her name and introduced himself as Greg Bartelli. He sat beside her when he
talked to her. He said he was a Math teacher and told her that he has a sister who is a nurse in New
York. His sister allegedly has a daughter who is about Karen's age and who was with him in his
house along Kalayaan Avenue. (TSN, Aug. 15, 1989, pp. 4-5)

The American asked Karen what was her favorite subject and she told him it's Pilipino. He then
invited her to go with him to his house where she could teach Pilipino to his niece. He even gave her
a stuffed toy to persuade her to teach his niece. (Id., pp. 5-6)

They walked from Plaza Fair along Pasong Tamo, turning right to reach the defendant's house along
Kalayaan Avenue. (Id., p. 6)

When they reached the apartment house, Karen noticed that defendant's alleged niece was not
outside the house but defendant told her maybe his niece was inside. When Karen did not see the
alleged niece inside the house, defendant told her maybe his niece was upstairs, and invited Karen
to go upstairs. (Id., p. 7)

Upon entering the bedroom defendant suddenly locked the door. Karen became nervous because
his niece was not there. Defendant got a piece of cotton cord and tied Karen's hands with it, and
then he undressed her. Karen cried for help but defendant strangled her. He took a packing tape and
he covered her mouth with it and he circled it around her head. (Id., p. 7)

Then, defendant suddenly pushed Karen towards the bed which was just near the door. He tied her
feet and hands spread apart to the bed posts. He knelt in front of her and inserted his finger in her
sex organ. She felt severe pain. She tried to shout but no sound could come out because there were
tapes on her mouth. When defendant withdrew his finger it was full of blood and Karen felt more pain
after the withdrawal of the finger. (Id., p. 8)

He then got a Johnson's Baby Oil and he applied it to his sex organ as well as to her sex organ.
After that he forced his sex organ into her but he was not able to do so. While he was doing it, Karen
found it difficult to breathe and she perspired a lot while feeling severe pain. She merely presumed
that he was able to insert his sex organ a little, because she could not see. Karen could not recall
how long the defendant was in that position. (Id. pp. 8-9)

After that, he stood up and went to the bathroom to wash. He also told Karen to take a shower and
he untied her hands. Karen could only hear the sound of the water while the defendant, she
presumed, was in the bathroom washing his sex organ. When she took a shower more blood came
out from her. In the meantime, defendant changed the mattress because it was full of blood. After
the shower, Karen was allowed by defendant to sleep. She fell asleep because she got tired crying.
The incident happened at about 4:00 p.m. Karen had no way of determining the exact time because
defendant removed her watch. Defendant did not care to give her food before she went to sleep.
Karen woke up at about 8:00 o'clock the following morning. (Id., pp. 9-10)

The following day, February 5, 1989, a Sunday, after a breakfast of biscuit and coke at about 8:30 to
9:00 a.m. defendant raped Karen while she was still bleeding. For lunch, they also took biscuit and
coke. She was raped for the second time at about 12:00 to 2:00 p.m. In the evening, they had rice
for dinner which defendant had stored downstairs; it was he who cooked the rice that is why it looks
like "lugaw". For the third time, Karen was raped again during the night. During those three times
defendant succeeded in inserting his sex organ but she could not say whether the organ was
inserted wholly.

Karen did not see any firearm or any bladed weapon. The defendant did not tie her hands and feet
nor put a tape on her mouth anymore but she did not cry for help for fear that she might be killed;
besides, all the windows and doors were closed. And even if she shouted for help, nobody would
hear her. She was so afraid that if somebody would hear her and would be able to call the police, it
was still possible that as she was still inside the house, defendant might kill her. Besides, the
defendant did not leave that Sunday, ruling out her chance to call for help. At nighttime he slept with
her again. (TSN, Aug. 15, 1989, pp. 12-14)

On February 6, 1989, Monday, Karen was raped three times, once in the morning for thirty minutes
after a breakfast of biscuits; again in the afternoon; and again in the evening. At first, Karen did not
know that there was a window because everything was covered by a carpet, until defendant opened
the window for around fifteen minutes or less to let some air in, and she found that the window was
covered by styrofoam and plywood. After that, he again closed the window with a hammer and he
put the styrofoam, plywood, and carpet back. (Id., pp. 14-15)

That Monday evening, Karen had a chance to call for help, although defendant left but kept the door
closed. She went to the bathroom and saw a small window covered by styrofoam and she also
spotted a small hole. She stepped on the bowl and she cried for help through the hole. She cried:
"Maawa no po kayo so akin. Tulungan n'yo akong makalabas dito. Kinidnap ako!" Somebody heard
her. It was a woman, probably a neighbor, but she got angry and said she was "istorbo". Karen
pleaded for help and the woman told her to sleep and she will call the police. She finally fell asleep
but no policeman came. (TSN, Aug. 15, 1989, pp. 15-16)
She woke up at 6:00 o'clock the following morning, and she saw defendant in bed, this time
sleeping. She waited for him to wake up. When he woke up, he again got some food but he always
kept the door locked. As usual, she was merely fed with biscuit and coke. On that day, February 7,
1989, she was again raped three times. The first at about 6:30 to 7:00 a.m., the second at about
8:30 — 9:00, and the third was after lunch at 12:00 noon. After he had raped her for the second time
he left but only for a short while. Upon his return, he caught her shouting for help but he did not
understand what she was shouting about. After she was raped the third time, he left the house.
(TSN, Aug. 15, 1989, pp. 16-17) She again went to the bathroom and shouted for help. After
shouting for about five minutes, she heard many voices. The voices were asking for her name and
she gave her name as Karen Salvacion. After a while, she heard a voice of a woman saying they will
just call the police. They were also telling her to change her clothes. She went from the bathroom to
the room but she did not change her clothes being afraid that should the neighbors call for the police
and the defendant see her in different clothes, he might kill her. At that time she was wearing a
T-shirt of the American because the latter washed her dress. (Id., p. 16)

Afterwards, defendant arrived and he opened the door. He asked her if she had asked for help
because there were many policemen outside and she denied it. He told her to change her clothes,
and she did change to the one she was wearing on Saturday. He instructed her to tell the police that
she left home and willingly; then he went downstairs but he locked the door. She could hear people
conversing but she could not understand what they were saying. (Id., p. 19)

When she heard the voices of many people who were conversing downstairs, she knocked
repeatedly at the door as hard as she could. She heard somebody going upstairs and when the door
was opened, she saw a policeman. The policeman asked her name and the reason why she was
there. She told him she was kidnapped. Downstairs, he saw about five policemen in uniform and the
defendant was talking to them. "Nakikipag-areglo po sa mga pulis," Karen added. "The policeman
told him to just explain at the precinct. (Id., p. 20)

They went out of the house and she saw some of her neighbors in front of the house. They rode the
car of a certain person she called Kuya Boy together with defendant, the policeman, and two of her
neighbors whom she called Kuya Bong Lacson and one Ate Nita. They were brought to Sub-Station
I and there she was investigated by a policeman. At about 2:00 a.m., her father arrived, followed by
her mother together with some of their neighbors. Then they were brought to the second floor of the
police headquarters. (Id., p. 21)

At the headquarters, she was asked several questions by the investigator. The written statement she
gave to the police was marked as Exhibit A. Then they proceeded to the National Bureau of
Investigation together with the investigator and her parents. At the NBI, a doctor, a medico-legal
officer, examined her private parts. It was already 3:00 in the early morning of the following day when
they reached the NBI. (TSN, Aug. 15, 1989, p. 22) The findings of the medico-legal officer has been
marked as Exhibit B.

She was studying at the St. Mary's Academy in Pasay City at the time of the incident but she
subsequently transferred to Apolinario Mabini, Arellano University, situated along Taft Avenue,
because she was ashamed to be the subject of conversation in the school. She first applied for
transfer to Jose Abad Santos, Arellano University along Taft Avenue near the Light Rail Transit
Station but she was denied admission after she told the school the true reason for her transfer. The
reason for their denial was that they might be implicated in the case. (TSN, Aug. 15, 1989, p. 46)

xxx xxx xxx

After the incident, Karen has changed a lot. She does not play with her brother and sister anymore,
and she is always in a state of shock; she has been absent-minded and is ashamed even to go out
of the house. (TSN, Sept. 12, 1989, p. 10) She appears to be restless or sad, (Id., p. 11) The father
prays for P500,000.00 moral damages for Karen for this shocking experience which probably, she
would always recall until she reaches old age, and he is not sure if she could ever recover from this
experience. (TSN, Sept. 24, 1989, pp. 10-11)

Pursuant to an Order granting leave to publish notice of decision, said notice was published in the
Manila Bulletin once a week for three consecutive weeks. After the lapse of fifteen (15) days from
the date of the last publication of the notice of judgment and the decision of the trial court had
become final, petitioners tried to execute on Bartelli's dollar deposit with China Banking Corporation.
Likewise, the bank invoked Section 113 of Central Bank Circular No. 960.

Thus, petitioners decided to seek relief from this Court.

The issues raised and the arguments articulated by the parties boil down to two:

May this Court entertain the instant petition despite the fact that original jurisdiction in petitions for
declaratory relief rests with the lower court? Should Section 113 of Central Bank Circular No. 960
and Section 8 of R.A. 6426, as amended by P.D. 1246, otherwise known as the Foreign Currency
Deposit Act be made applicable to a foreign transient?

Petitioners aver as heretofore stated that Section 113 of Central Bank Circular No. 960 providing that
"Foreign currency deposits shall be exempt from attachment, garnishment, or any other order or
process of any court, legislative body, government agency or any administrative body whatsoever."
should be adjudged as unconstitutional on the grounds that: 1.) it has taken away the right of
petitioners to have the bank deposit of defendant Greg Bartelli y Northcott garnished to satisfy the
judgment rendered in petitioners' favor in violation of substantive due process guaranteed by the
Constitution; 2.) it has given foreign currency depositors an undue favor or a class privilege in
violation of the equal protection clause of the Constitution; 3.) it has provided a safe haven for
criminals like the herein respondent Greg Bartelli y Northcott since criminals could escape civil
liability for their wrongful acts by merely converting their money to a foreign currency and depositing
it in a foreign currency deposit account with an authorized bank; and 4.) The Monetary Board, in
issuing Section 113 of Central Bank Circular No. 960 has exceeded its delegated quasi-legislative
power when it took away: a.) the plaintiffs substantive right to have the claim sought to be enforced
by the civil action secured by way of the writ of preliminary attachment as granted by Rule 57 of the
Revised Rules of Court; b.) the plaintiffs substantive right to have the judgment credit satisfied by
way of the writ of execution out of the bank deposit of the judgment debtor as granted to the
judgment creditor by Rule 39 of the Revised Rules of Court, which is beyond its power to do so.

On the other hand, respondent Central Bank, in its Comment alleges that the Monetary Board in
issuing Section 113 of CB Circular No. 960 did not exceed its power or authority because the subject
Section is copied verbatim from a portion of R.A. No. 6426 as amended by P.D. 1246. Hence, it was
not the Monetary Board that grants exemption from attachment or garnishment to foreign currency
deposits, but the law (R.A. 6426 as amended) itself; that it does not violate the substantive due
process guaranteed by the Constitution because a.) it was based on a law; b.) the law seems to be
reasonable; c.) it is enforced according to regular methods of procedure; and d.) it applies to all
members of a class.

Expanding, the Central Bank said; that one reason for exempting the foreign currency deposits from
attachment, garnishment or any other order or process of any court, is to assure the development
and speedy growth of the Foreign Currency Deposit System and the Offshore Banking System in the
Philippines; that another reason is to encourage the inflow of foreign currency deposits into the
banking institutions thereby placing such institutions more in a position to properly channel the same
to loans and investments in the Philippines, thus directly contributing to the economic development
of the country; that the subject section is being enforced according to the regular methods of
procedure; and that it applies to all foreign currency deposits made by any person and therefore
does not violate the equal protection clause of the Constitution.

Respondent Central Bank further avers that the questioned provision is needed to promote the
public interest and the general welfare; that the State cannot just stand idly by while a considerable
segment of the society suffers from economic distress; that the State had to take some measures to
encourage economic development; and that in so doing persons and property may be subjected to
some kinds of restraints or burdens to secure the general welfare or public interest. Respondent
Central Bank also alleges that Rule 39 and Rule 57 of the Revised Rules of Court provide that some
properties are exempted from execution/attachment especially provided by law and R.A. No. 6426
as amended is such a law, in that it specifically provides, among others, that foreign currency
deposits shall be exempted from attachment, garnishment, or any other order or process of any
court, legislative body, government agency or any administrative body whatsoever.

For its part, respondent China Banking Corporation, aside from giving reasons similar to that of
respondent Central Bank, also stated that respondent China Bank is not unmindful of the inhuman
sufferings experienced by the minor Karen E. Salvacion from the beastly hands of Greg Bartelli; that
it is only too willing to release the dollar deposit of Bartelli which may perhaps partly mitigate the
sufferings petitioner has undergone; but it is restrained from doing so in view of R.A. No. 6426 and
Section 113 of Central Bank Circular No. 960; and that despite the harsh effect of these laws on
petitioners, CBC has no other alternative but to follow the same.

This Court finds the petition to be partly meritorious.

Petitioner deserves to receive the damages awarded to her by the court. But this petition for
declaratory relief can only be entertained and treated as a petition for mandamus to require
respondents to honor and comply with the writ of execution in Civil Case No. 89-3214.

2
This Court has no original and exclusive jurisdiction over a petition for declaratory relief. However,
exceptions to this rule have been recognized. Thus, where the petition has far-reaching implications
3
and raises questions that should be resolved, it may be treated as one for mandamus.
Here is a child, a 12-year old girl, who in her belief that all Americans are good and in her gesture of
kindness by teaching his alleged niece the Filipino language as requested by the American,
trustingly went with said stranger to his apartment, and there she was raped by said American tourist
Greg Bartelli. Not once, but ten times. She was detained therein for four (4) days. This American
tourist was able to escape from the jail and avoid punishment. On the other hand, the child, having
received a favorable judgment in the Civil Case for damages in the amount of more than
P1,000,000.00, which amount could alleviate the humiliation, anxiety, and besmirched reputation she
had suffered and may continue to suffer for a long, long time; and knowing that this person who had
wronged her has the money, could not, however get the award of damages because of this
unreasonable law. This questioned law, therefore makes futile the favorable judgment and award of
damages that she and her parents fully deserve. As stated by the trial court in its decision,

Indeed, after hearing the testimony of Karen, the Court believes that it was undoubtedly a shocking
and traumatic experience she had undergone which could haunt her mind for a long, long time, the
mere recall of which could make her feel so humiliated, as in fact she had been actually humiliated
once when she was refused admission at the Abad Santos High School, Arellano University, where
she sought to transfer from another school, simply because the school authorities of the said High
School learned about what happened to her and allegedly feared that they might be implicated in the
case.

xxx xxx xxx

The reason for imposing exemplary or corrective damages is due to the wanton and bestial manner
defendant had committed the acts of rape during a period of serious illegal detention of his hapless
victim, the minor Karen Salvacion whose only fault was in her being so naive and credulous to
believe easily that defendant, an American national, could not have such a bestial desire on her nor
capable of committing such a heinous crime. Being only 12 years old when that unfortunate incident
happened, she has never heard of an old Filipino adage that in every forest there is a
4
snake, . . . .

If Karen's sad fate had happened to anybody's own kin, it would be difficult for him to fathom how the
incentive for foreign currency deposit could be more important than his child's rights to said award of
damages; in this case, the victim's claim for damages from this alien who had the gall to wrong a
child of tender years of a country where he is a mere visitor. This further illustrates the flaw in the
questioned provisions.

It is worth mentioning that R.A. No. 6426 was enacted in 1983 or at a time when the country's
economy was in a shambles; when foreign investments were minimal and presumably, this was the
reason why said statute was enacted. But the realities of the present times show that the country
has recovered economically; and even if not, the questioned law still denies those entitled to due
process of law for being unreasonable and oppressive. The intention of the questioned law may be
good when enacted. The law failed to anticipate the iniquitous effects producing outright injustice
and inequality such as the case before us.

It has thus been said that —

 5
But I also know, that laws and institutions must go hand in hand with the progress of the human
mind. As that becomes more developed, more enlightened, as new discoveries are made, new
truths are disclosed and manners and opinions change with the change of circumstances,
institutions must advance also, and keep pace with the times. . . We might as well require a man to
wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen
of their barbarous ancestors.

In his Comment, the Solicitor General correctly opined, thus:

The present petition has far-reaching implications on the right of a national to obtain redress for a
wrong committed by an alien who takes refuge under a law and regulation promulgated for a
purpose which does not contemplate the application thereof envisaged by the alien. More
specifically, the petition raises the question whether the protection against attachment, garnishment
or other court process accorded to foreign currency deposits by PD No. 1246 and CB Circular No.
960 applies when the deposit does not come from a lender or investor but from a mere transient or
tourist who is not expected to maintain the deposit in the bank for long.

The resolution of this question is important for the protection of nationals who are victimized in the
forum by foreigners who are merely passing through.

xxx xxx xxx

. . . Respondents China Banking Corporation and Central Bank of the Philippines refused to honor
the writ of execution issued in Civil Case No. 89-3214 on the strength of the following provision of
Central Bank Circular No. 960:

Sec. 113. Exemption from attachment. — Foreign currency deposits shall be exempt from
attachment, garnishment, or any other order or process of any court, legislative body, government
agency or any administrative body whatsoever.

Central Bank Circular No. 960 was issued pursuant to Section 7 of Republic Act No. 6426:

Sec. 7. Rules and Regulations. The Monetary Board of the Central Bank shall promulgate such rules
and regulations as may be necessary to carry out the provisions of this Act which shall take effect
after the publication of such rules and regulations in the Official Gazette and in a newspaper of
national circulation for at least once a week for three consecutive weeks. In case the Central Bank
promulgates new rules and regulations decreasing the rights of depositors, the rules and regulations
at the time the deposit was made shall govern.

The aforecited Section 113 was copied from Section 8 of Republic Act NO. 6426, as amended by
P.D. 1246, thus:

Sec. 8. Secrecy of Foreign Currency Deposits. — All foreign currency deposits authorized under this
Act, as amended by Presidential Decree No. 1035, as well as foreign currency deposits authorized
under Presidential Decree No. 1034, are hereby declared as and considered of an absolutely
confidential nature and, except upon the written permission of the depositor, in no instance shall
such foreign currency deposits be examined, inquired or looked into by any person, government
official, bureau or office whether judicial or administrative or legislative or any other entity whether
public or private: Provided, however, that said foreign currency deposits shall be exempt from
attachment, garnishment, or any other order or process of any court, legislative body, government
agency or any administrative body whatsoever.

The purpose of PD 1246 in according protection against attachment, garnishment and other court
process to foreign currency deposits is stated in its whereases, viz.:

WHEREAS, under Republic Act No. 6426, as amended by Presidential Decree No. 1035, certain
Philippine banking institutions and branches of foreign banks are authorized to accept deposits in
foreign currency;

WHEREAS, under the provisions of Presidential Decree No. 1034 authorizing the establishment of
an offshore banking system in the Philippines, offshore banking units are also authorized to receive
foreign currency deposits in certain cases;

WHEREAS, in order to assure the development and speedy growth of the Foreign Currency Deposit
System and the Offshore Banking System in the Philippines, certain incentives were provided for
under the two Systems such as confidentiality of deposits subject to certain exceptions and tax
exemptions on the interest income of depositors who are nonresidents and are not engaged in trade
or business in the Philippines;

WHEREAS, making absolute the protective cloak of confidentiality over such foreign currency
deposits, exempting such deposits from tax, and guaranteeing the vested rights of depositors would
better encourage the inflow of foreign currency deposits into the banking institutions authorized to
accept such deposits in the Philippines thereby placing such institutions more in a position to
properly channel the same to loans and investments in the Philippines, thus directly contributing to
the economic development of the country;

Thus, one of the principal purposes of the protection accorded to foreign currency deposits is "to
assure the development and speedy growth of the Foreign Currency Deposit system and the
Offshore Banking in the Philippines" (3rd Whereas).

The Offshore Banking System was established by PD No. 1034. In turn, the purposes of PD No.
1034 are as follows:

WHEREAS, conditions conducive to the establishment of an offshore banking system, such as

political stability, a growing economy and adequate communication facilities, among others, exist in
the Philippines;

WHEREAS, it is in the interest of developing countries to have as wide access as possible to the
sources of capital funds for economic development;

WHEREAS, an offshore banking system based in the Philippines will be advantageous and
beneficial to the country by increasing our links with foreign lenders, facilitating the flow of desired
investments into the Philippines, creating employment opportunities and expertise in international
finance, and contributing to the national development effort.
WHEREAS, the geographical location, physical and human resources, and other positive factors
provide the Philippines with the clear potential to develop as another financial center in Asia;

On the other hand, the Foreign Currency Deposit system was created by PD. No. 1035. Its purposes
are as follows:

WHEREAS, the establishment of an offshore banking system in the Philippines has been authorized
under a separate decree;

WHEREAS, a number of local commercial banks, as depository bank under the Foreign Currency
Deposit Act (RA No. 6426), have the resources and managerial competence to more actively
engage in foreign exchange transactions and participate in the grant of foreign currency loans to
resident corporations and firms;

WHEREAS, it is timely to expand the foreign currency lending authority of the said depository banks
under RA 6426 and apply to their transactions the same taxes as would be applicable to transaction
of the proposed offshore banking units;

It is evident from the above [Whereas clauses] that the Offshore Banking System and the Foreign
Currency Deposit System were designed to draw deposits from foreign lenders and investors (Vide
second Whereas of PD No. 1034; third Whereas of PD No. 1035). It is these deposits that are
induced by the two laws and given protection and incentives by them.

Obviously, the foreign currency deposit made by a transient or a tourist is not the kind of deposit
encouraged by PD Nos. 1034 and 1035 and given incentives and protection by said laws because
such depositor stays only for a few days in the country and, therefore, will maintain his deposit in the
bank only for a short time.

Respondent Greg Bartelli, as stated, is just a tourist or a transient. He deposited his dollars with
respondent China Banking Corporation only for safekeeping during his temporary stay in the
Philippines.

For the reasons stated above, the Solicitor General thus submits that the dollar deposit of
respondent Greg Bartelli is not entitled to the protection of Section 113 of Central Bank Circular No.
6
960 and PD No. 1246 against attachment, garnishment or other court processes.

In fine, the application of the law depends on the extent of its justice. Eventually, if we rule that the
questioned Section 113 of Central Bank Circular No. 960 which exempts from attachment,
garnishment, or any other order or process of any court, legislative body, government agency or any
administrative body whatsoever, is applicable to a foreign transient, injustice would result especially
to a citizen aggrieved by a foreign guest like accused Greg Bartelli. This would negate Article 10 of
the New Civil Code which provides that "in case of doubt in the interpretation or application of laws, it
is presumed that the lawmaking body intended right and justice to prevail. "Ninguno non deue
enriquecerse tortizeramente con dano de otro." Simply stated, when the statute is silent or
ambiguous, this is one of those fundamental solutions that would respond to the vehement urge of
conscience. (Padilla vs. Padilla, 74 Phil. 377).
It would be unthinkable, that the questioned Section 113 of Central Bank No. 960 would be used as
a device by accused Greg Bartelli for wrongdoing, and in so doing, acquitting the guilty at the
expense of the innocent.

Call it what it may — but is there no conflict of legal policy here? Dollar against Peso? Upholding the
final and executory judgment of the lower court against the Central Bank Circular protecting the
foreign depositor? Shielding or protecting the dollar deposit of a transient alien depositor against
injustice to a national and victim of a crime? This situation calls for fairness against legal tyranny.

We definitely cannot have both ways and rest in the belief that we have served the ends of justice.

IN VIEW WHEREOF, the provisions of Section 113 of CB Circular No. 960 and PD No. 1246, insofar
as it amends Section 8 of R.A. No. 6426 are hereby held to be INAPPLICABLE to this case because
of its peculiar circumstances. Respondents are hereby REQUIRED to COMPLY with the writ of
execution issued in Civil Case No. 89-3214, "Karen Salvacion, et al. vs. Greg Bartelli y Northcott, by
Branch CXLIV, RTC Makati and to RELEASE to petitioners the dollar deposit of respondent Greg
Bartelli y Northcott in such amount as would satisfy the judgment.

SO ORDERED.

Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Francisco
and Panganiban, JJ., concur.

Padilla, J., took no part.

Mendoza and Hermosisima, Jr., JJ., are on leave.

G.R. No. 18081 March 3, 1922

IN THE MATTER OF THE ESTATE OF CHEONG BOO, deceased.

MORA ADONG, petitioner-appellant,
vs.
CHEONG SENG GEE, opponent-appellant.

Kincaid, Perkins & Kincaid and P. J. Moore for petitioner-appellant.

Carlos A. Sobral for opponent-appellant.

MALCOLM, J.:

The two question presented for determination by these appeals may be framed as follows: Is
a marriage contracted in China and proven mainly by an alleged matrimonial letter, valid in
the Philippines? Are the marriage performed in the Philippines according to the rites of the
Mohammedan religion valid? As the decision of the Supreme Court on the last point will
affect marriages consummated by not less than one hundred and fifty thousand Moros who
profess the Mohammedan faith, the transcendental importance of the cause can be realized.
We proposed to give to the subject the serious consideration which it deserves.

Cheong Boo, a native of China, died intestate in Zamboanga, Philippine Islands, on August 5,
1919. He left property worth nearly P100,000. The estate of the deceased was claimed, on the
one hand, by Cheong Seng Gee, who alleged that he was a legitimate child by a marriage
contracted by Cheong Boo with Tan Dit in China in 1895. The estate was claimed, on the other
hand, by the Mora Adong who alleged that she had been lawfully married to Cheong Boo in
1896 in Basilan, Philippine Islands, and her daughters, Payang, married to Cheng Bian Chay,
and Rosalia Cheong Boo, unmarried.

The conflicting claims to the estate of Cheong Boo were ventilated in the Court of First
Instance of Zamboanga. The trial judge, the Honorable Quirico Abeto, after hearing the
evidence presented by both sides, reached the conclusion, with reference to the allegations
of Cheong Seng Gee, that the proof did not sufficiently establish the Chinese marriage, but
that because Cheong Seng Gee had been admitted to the Philippine Islands as the son of the
deceased, he should share in the estate as a natural child. With reference to the allegations of
the Mora Adong and her daughters Payang and Rosalia, the trial judge reached the
conclusion that the marriage between the Mora Adong and the deceased had been
adequately proved but that under the laws of the Philippine Islands it could not be held to be
a lawful marriage; accordingly, the daughters Payang and Rosalia would inherit as natural
children. The order of the trial judge, following these conclusions, was that there should be a
partition of the property of the deceased Cheong Boo between the natural children, Cheong
Seng Gee, Payang, and Rosalia.

From the judgment of the Judge of First Instance both parties perfected appeals. As to the
facts, we can say that we agree in substance with the findings of the trial court. As to the
legal issues submitted for decision by the numerous assignments of error, these can best be
resolved under two heads, namely: (1) The validity of the Chinese marriage; and (2) the
validity of the Mohammedan marriage.
1. Validity of the Chinese Marriage

The theory advanced on behalf of the claimant Cheong Seng Gee was that Cheong Boo was
married in the city of Amoy, China, during the second moon of the twenty-first year of the
Emperor Quang Su, or, according to the modern count, on February 16, 1985, to a young lady
named Tan Dit. Witnesses were presented who testified to having been present at the
marriage ceremony. There was also introduced in evidence a document in Chinese which in
translation reads as follows:

One hundred
years of life and Your nephew, Tan Chao, respecfully
health for both. answers the venerable Chiong Ing, father
of the bridegroom, accepting his offer of
marriage, and let this document serve as
proof of the acceptance of said marriage
which is to be celebrated during the
merry season of the flowers.

I take advantage of this occasion to wish

for your and the spouses much
happiness, a long life, and prolific issue,
as noble and great as that which you
brought forth. I consider the marriage of
your son Boo with my sister Lit Chia as a
mandate of God and I hope that they
treat each other with great love and
mutual courtesy and that both they and
their parents be very happy.

Given during the second moon of the

twenty-first year of the reign of the
Emperor Quang Su.

Cheong Boo is said to have remained in China for one year and four months after his
marriage during which time there was born to him and his wife a child named Cheong Seng
Gee. Cheong Boo then left China for the Philippine Islands and sometime thereafter took to
himself a concubine Mora by whom he had two children. In 1910, Cheong Boo was followed
to the Philippines by Cheong Seng Gee who, as appears from documents presented in
evidence, was permitted to land in the Philippine Islands as the son of Cheong Boo. The
deceased, however, never returned to his native hearth and seems never to have
corresponded with his Chinese wife or to have had any further relations with her except once
when he sent her P10.

The trial judge found, as we have said, that the proof did not sustain the allegation of the
claimant Cheong Seng Gee, that Cheong Boo had married in China. His Honor noted a strong
inclination on the part of the Chinese witnesses, especially the brother of Cheong Boo, to
protect the interests of the alleged son, Cheong Seng Gee, by overstepping the limits of
truthfulness. His Honor also noted that reliable witnesses stated that in the year 1895, when
Cheong Boo was supposed to have been in China, he was in reality in Jolo, in the Philippine
Islands. We are not disposed to disturb this appreciation of fact by the trial court. The
immigration documents only go to show the relation of parent and child existing between the
deceased Cheong Boo and his son Cheong Seng Gee and do not establish the marriage
between the deceased and the mother of Cheong Seng Gee.

Section IV of the Marriage Law (General Order No. 68) provides that "All marriages contracted
without these Islands, which would be valid by the laws of the country in which the same
were contracted, are valid in these Islands." To establish a valid foreign marriage pursuant to
this comity provision, it is first necessary to prove before the courts of the Islands the
existence of the foreign law as a question of fact, and it is then necessary to prove the
alleged foreign marriage by convincing evidence.

As a case directly in point is the leading one of Sy Joc Lieng vs. Encarnacion ([1910]), 16
Phil., 137; [1913], 228 U.S., 335). Here, the courts of the Philippines and the Supreme Court of
the United States were called upon to decide, as to the conflicting claims to the estate of a
Chinese merchant, between the descendants of an alleged Chinese marriage and the
descendants of an alleged Philippine marriage. The Supreme Courts of the Philippine Islands
and the United States united in holding that the Chinese marriage was not adequately proved.
The legal rule was stated by the United States Supreme Court to be this: A Philippine
marriage, followed by forty years of uninterrupted marital life, should not be impugned and
discredited, after the death of the husband and administration of his estate, though an
alleged prior Chinese marriage, "save upon proof so clear, strong, and unequivocal as to
produce a moral conviction of the existence of such impediment." Another case in the same
category is that of Son Cui vs. Guepangco ([1912], 22 Phil., 216).

In the case at bar there is no competent testimony as to what the laws of China in the
Province of Amoy concerning marriage were in 1895. As in the Encarnacion case, there is
lacking proof so clear, strong, and unequivocal as to produce a moral conviction of the
existence of the alleged prior Chinese marriage. Substitute twenty-three years for forty years
and the two cases are the same.

The lower court allowed the claimant, Cheong Seng Gee, the testamentary rights of an
acknowledged natural child. This finding finds some support in Exhibit 3, the affidavit of
Cheong Boo before the American Vice-Consul at Sandakan, British North Borneo. But we are
not called upon to make a pronouncement on the question, because the oppositor-appellant
indicates silent acquiescence by assigning no error.

2. Validity of the Mohammedan Marriage

The biographical data relating to the Philippine odyssey of the Chinaman Cheong Boo is
fairly complete. He appears to have first landed on Philippine soil sometime prior to the year
1896. At least, in the year las mentioned, we find him in Basilan, Philippine Islands. There he
was married to the Mora Adong according to the ceremonies prescribed by the book on
marriage of the Koran, by the Mohammedan Iman (priest) Habubakar. That a marriage
ceremony took place is established by one of the parties to the marriage, the Mora Adong, by
the Iman who solemnized the marriage, and by other eyewitnesses, one of whom was the
father of the bride, and another, the chief of the rancheria, now a municipal councilor. The
groom complied with Quranic law by giving to the bride a dowry of P250 in money and P250
in goods.

The religious rites began with the bride and groom seating themselves in the house of the
father of the bride, Marahadja Sahibil. The Iman read from the Koran. Then the Iman asked the
parents if they had any objection to the marriage. The marital act was consummated by the
groom entering the woman's mosquito net.

From the marriage day until the death of Cheong Boo, twenty-three years later, the Chinaman
and the Mora Adong cohabited as husband and wife. To them were born five children, two of
whom, Payang and Rosalia, are living. Both in his relations with Mora Adong and with third
persons during his lifetime, Cheong Boo treated Adong as his lawful wife. He admitted this
relationship in several private and public documents. Thus, when different legal documents
were executed, including decrees of registration, Cheong Boo stated that he was married to
the Mora Adong while as late as 1918, he gave written consent to the marriage of his minor
daughter, Payang.

Notwithstanding the insinuation of counsel for the Chinese appellant that the custom is
prevalent among the Moros to favor in their testimony, a relative or friend, especially when
they do not swear on the Koran to tell the truth, it seems to us that proof could not be more
convincing of the fact that a marriage was contracted by the Chinaman Cheong Boo and the
Mora Adong, according to the ceremonies of the Mohammedan religion.

It is next incumbent upon us to approach the principal question which we announced in the
very beginning of this decision, namely, Are the marriages performed in the Philippines
according to the rites of the Mohammedan religion valid? Three sections of the Marriage Law
(General Order No. 68) must be taken into consideration.

Section V of the Marriage Law provides that "Marriage may be solemnized by either a judge
of any court inferior to the Supreme Court, justice of the peace, or priest or minister of the
Gospel of any denomination . . ." Counsel, failing to take account of the word "priest," and
only considering the phrase "minister of the Gospel of any denomination" would limit the
meaning of this clause to ministers of the Christian religion. We believe this is a strained
interpretation. "Priest," according to the lexicographers, means one especially consecrated
to the service of a divinity and considered as the medium through whom worship, prayer,
sacrifice, or other service is to be offered to the being worshipped, and pardon, blessing,
deliverance, etc., obtained by the worshipper, as a priest of Baal or of Jehovah; a Buddhist
priest. "Minister of the Gospel" means all clergymen of every denomination and faith. A
"denomination" is a religious sect having a particular name. (Haggin vs. Haggin [1892], 35
Neb., 375; In re Reinhart, 9 O. Dec., 441; Hale vs. Everett [1868], 53 N. H. 9.) A Mohammedan
Iman is a "priest or minister of the Gospel," and Mohammedanism is a "denomination," within
the meaning of the Marriage Law.

The following section of the Marriage Law, No. VI, provides that "No particular form for the
ceremony of marriage is required, but the parties must declare, in the presence of the person
solemnizing the marriage, that they take each other as husband and wife." The law is quite
correct in affirming that no precise ceremonial is indispensable requisite for the creation of
the marriage contract. The two essentials of a valid marriage are capacity and consent. The
latter element may be inferred from the ceremony performed, the acts of the parties, and
habit or repute. In this instance, there is no question of capacity. Nor do we think there can
exist any doubt as to consent. While it is true that during the Mohammedan ceremony, the
remarks of the priest were addressed more to the elders than to the participants, it is likewise
true that the Chinaman and the Mora woman did in fact take each other to be husband and
wife and did thereafter live together as husband and wife. (Travers vs. Reinhardt [1907], 205
U.S., 423.

It would be possible to leave out of view altogether the two sections of the Marriage Law
which have just been quoted and discussed. The particular portion of the law which, in our
opinion, is controlling, is section IX, reading as follows: "No marriage heretofore solemnized
before any person professing to have authority therefor shall be invalid for want of such
authority or on account of any informality, irregularity, or omission, if it was celebrated with
the belief of the parties, or either of them, that he had authority and that they have been
lawfully married."

The trial judge in construing this provision of law said that he did not believe that the
legislative intention in promulgating it was to validate marriages celebrated between
Mohammedans. To quote the judge:

This provisions relates to marriages contracted by virtue of the provisions of the Spanish law
before revolutionary authorized to solemnized marriages, and it is not to be presumed that
the legislator intended by this law to validate void marriages celebrated during the Spanish
sovereignty contrary to the laws which then governed.

What authority there is for this statement, we cannot conceive. To our mind, nothing could be
clearer than the language used in section IX. Note for a moment the all embracing words
found in this section:

"No marriage" — Could more inclusive words be found? "Heretofore solemnized" — Could
any other construction than that of retrospective force be given to this phrase? "Before any
person professing to have authority therefor shall be invalid for want of such authority" —
Could stronger language than this be invoked to announce legislative intention? "Or on
account of any informality, irregularity, or omission" — Could the legislative mind frame an
idea which would more effectively guard the marriage relation against technicality? "If it was
celebrated with the belief of the parties, or either of them, that he had authority and that they
have been lawfully married" — What was the purpose of the legislator here, if it was not to
legalize the marriage, if it was celebrated by any person who thought that he had authority to
perform the same, and if either of the parties thought that they had been married? Is there
any word or hint of any word which would restrict the curative provisions of section IX of the
Marriage Law to Christian marriages? By what system of mental gymnastics would it be
possible to evolve from such precise language the curious idea that it was restricted to
marriages performed under the Spanish law before the revolutionary authorities?

In view of the importance of the question, we do not desire to stop here but would ascertain
from other sources the meaning and scope of Section IX of General Order No. 68.
The purpose of the government toward the Mohammedan population of the Philippines has,
time and again, been announced by treaty, organic law, statutory law, and executive
proclamation. The Treaty of Paris in its article X, provided that "The inhabitants of the
territories over which Spain relinquishes or cedes her sovereignty shall be secured
Instructions to the Philippine Commission imposed on every branch of the Government of
the Philippine Islands the inviolable rule "that no law shall be made respecting an
establishment of religion or prohibiting the free exercise thereof, and that the free exercise
and enjoyment of religious profession and worship, without discrimination or preference,
shall forever be allowed ... That no form of religion and no minister of religion shall be forced
upon any community or upon any citizen of the Islands; that, upon the other hand, no
minister of religion shall be interfered with or molested in following his calling, and that the
separation between state and church shall be real, entire, and absolute." The notable state
paper of President McKinley also enjoined the Commission, "to bear in mind that the
Government which they are establishing is designed . . . for the happiness, peace, and
prosperity of the people of the Philippine Islands" and that, therefore, "the measures adopted
should be made to conform to their customs, their habits, and even their prejudices. . . . The
Philippine Bill and the Jones Law reproduced the main constitutional provisions establishing
religious toleration and equality.

Executive and legislative policy both under Spain and the United States followed in the same
path. For instance, in the Treaty of April 30, 1851, entered into by the Captain General of the
Philippines and the Sultan of Sulu, the Spanish Government guaranteed "with all solemnity to
the Sultan and other inhabitants of Sulu the free exercise of their religion, with which it will
not interfere in the slightest way, and it will also respect their customs." (See further Decree
of the Governor-General of January 14, 1881.) For instance, Act No. 2520 of the Philippine
Commission, section 3, provided that "Judges of the Court of First Instance and justices of
the peace deciding civil cases in which the parties are Mohammedans or pagans, when such
action is deemed wise, may modify the application of the law of the Philippine Islands, except
laws of the United States applicable to the Philippine Islands, taking into account local laws
and customs. . . ." (See further Act No. 787, sec. 13 [ j]; Act No. 1283, sec. 6 [b]; Act No. 114 of
the Legislative Council amended and approved by the Philippine Commission; Cacho vs.
Government of the United States [1914], 28 Phil., 616.) Various responsible officials have so
oft announced the purpose of the Government not to interfere with the customs of the Moros,
especially their religious customs, as to make quotation of the same superfluous.

The retrospective provisions of the Philippine Marriage Law undoubtedly were inspired by
the governmental policy in the United States, with regard to the marriages of the Indians, the
Quakers, and the Mormons. The rule as to Indians marriages is, that a marriage between two
Indians entered into according to the customs and laws of the people at a place where such
customs and laws are in force, must be recognized as a valid marriage. The rule as to the
Society of Quakers is, that they will be left to their own customs and that their marriages will
be recognized although they use no solemnization. The rule as to Mormon marriages is that
the sealing ceremony entered into before a proper official by members of that Church
competent to contract marriage constitutes a valid marriage.

The basis of human society throughout the civilized world is that of marriage. Marriage in this
jurisdiction is not only a civil contract, but, it is a new relation, an institution in the
maintenance of which the public is deeply interested. Consequently, every intendment of the
law leans toward legalizing matrimony. Persons dwelling together in apparent matrimony are
presumed, in the absence of any counter-presumption or evidence special to the case, to be
in fact married. The reason is that such is the common order of society, and if the parties
were not what they thus hold themselves out as being, they would be living in the constant
violation of decency and of law. A presumption established by our Code of Civil Procedure is
"that a man and woman deporting themselves as husband and wife have entered into a lawful
contract of marriage.:" (Sec. 334, No. 28.) Semper praesumitur pro matrimonio — Always
presume marriage. (U. S. vs. Villafuerte and Rabano [1905], 4 Phil., 476; Son Cui vs.
Guepangco, supra; U.S. vs. Memoracion and Uri [1916], 34 Phil., 633; Teter vs. Teter [1884],
101 Ind., 129.)

Section IX of the Marriage Law is in the nature of a curative provision intended to safeguard
society by legalizing prior marriages. We can see no substantial reason for denying to the
legislative power the right to remove impediments to an effectual marriage. If the legislative
power can declare what shall be valid marriages, it can render valid, marriages which, when
they took place, were against the law. Public policy should aid acts intended to validate
marriages and should retard acts intended to invalidate marriages. (Coghsen vs. Stonington
[1822], 4 Conn, 209; Baity vs. Cranfill [1884], 91 N. C., 273.)

The courts can properly incline the scales of their decisions in favors of that solution which
will mot effectively promote the public policy. That is the true construction which will best
carry legislative intention into effect. And here the consequences, entailed in holding that the
marriage of the Mora Adong and the deceased Cheong Boo, in conformity with the
Mohammedan religion and Moro customs, was void, would be far reaching in disastrous
result. The last census shows that there are at least one hundred fifty thousand Moros who
have been married according to local custom. We then have it within our power either to
nullify or to validate all of these marriages; either to make all of the children born of these
unions bastards or to make them legitimate; either to proclaim immorality or to sanction
morality; either to block or to advance settled governmental policy. Our duty is a obvious as
the law is plain.

In moving toward our conclusion, we have not lost sight of the decisions of this court in the
cases of United States vs. Tubban ([1915]), 29 Phil., 434) and United States vs. Verzola ([1916,
33 Phil., 285). We do not, however, believe these decisions to be controlling. In the first place,
these were criminal actions and two Justice dissented.. In the second place, in the Tubban
case, the marriage in question was a tribal marriage of the Kalingas, while in the Verzola
case, the marriage had been performed during the Spanish regime by a lieutenant of the
Guardia Civil. In neither case, in deciding as to whether or not the accused should be given
the benefit of the so-called unwritten law, was any consideration given to the provisions of
section IX of General Order No. 68. We are free to admit that, if necessary, we would
unhesitatingly revoke the doctrine announced in the two cases above mentioned.

We regard the evidence as producing a moral conviction of the existence of the

Mohammedan marriage. We regard the provisions of section IX of the Marriage law as
validating marriages performed according to the rites of the Mohammedan religion.
There are other questions presented in the various assignments of error which it is
unnecessary to decide. In resume, we find the Chinese marriage not to be proved and that the
Chinaman Cheong Seng Gee has only the rights of a natural child, and we find the
Mohammedan marriage to be proved and to be valid, thus giving to the widow and the
legitimate children of this union the rights accruing to them under the law.

Judgment is reversed in part, and the case shall be returned to the lower court for a partition
of the property in accordance with this decision, and for further proceedings in accordance
with law. Without special findings as to costs in this instance, it is so ordered.

Araullo, C.J., Johnson, Street, Avanceña, Villamor, Ostrand, Johns and Romualdez, JJ.,
concur.