Rule 128

1. Reyes v. CA.........................................................................................................................22. Agustin v. CA.......................................................................................................................83. Salcedo v. CA....................................................................................................................234. Gaanan v. IAC...................................................................................................................275. Ramirez v. CA....................................................................................................................34

1. Reyes v. CA

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

 

G.R. No. 96492 November 26, 1992

ROMEO REYES, ANGEL PARAYAO, and EMILIO MANANGHAYA, petitioners, vs.THE COURT OF APPEALS, EUFROCINA DE LA CRUZ and VIOLETA DELOS REYES, respondents.

 

NOCON, J.:

Petitioners Romeo Reyes, Angel Parayao and Emilio Mananghaya question the respondent Court's decision promulgated on November 22, 1990, 1 which affirmed with modification the agrarian court's decision promulgated January 10, 1990, 2 which ordered them and the other defendants therein to, among others, restore possession of the disputed landholding to private respondent, Eufrocina Vda. dela Cruz. Said respondent court's decision is now final and executory as to Olympio Mendoza and Severino Aguinaldo, the other petitioners in the respondent court, since they did not appeal the same.

Since petitioners do not dispute the findings of fact of the respondent Court, the same shall be quoted verbatim and are as follows:

It appears from the records that Juan Mendoza, father of herein defendant Olympio Mendoza, is the owner of Farm Lots Nos. 46 and 106, Block 2, Psd-38453 of the Bahay Pare Estate, Bahay Pare, Candaba, Pampanga, with an area of 23,000 square meters and 19,000 square meters, respectively. Devoted to the production of palay, the lots were tenanted and cultivated by Julian dela Cruz, husband of plaintiff Eufrocina dela Cruz. Julian died on September 25, 1979.

In her complaint, Eufrocina alleged that upon the death of Julian, she succeeded him as bona fide tenant of the subject lots; that between July 7 to July 15, 1984, Olympio Mendoza, in conspiracy with the other defendants, prevented her daughter Violeta and her workers through force, intimidation, strategy and stealth, from entering and working on the subject premises; and that until the filing of the instant case, defendants had refused to vacate and surrender the lots, thus violating her tenancy rights. Plaintiff therefore prayed for judgment for the recovery of possession and damages with a writ of preliminary mandatory injunction in the meantime.

Defendants Reyes, Parayao, Aguinaldo and Mananghaya, duly elected and/or appointed barangay officials of Bahay Pare, Candaba, Pampanga, denied

interference in the tenancy relationship existing between plaintiff and defendant Mendoza, particularly in the cultivation of the latter's farm lots. Claiming that they have always exercised fairness, equity, reason and impartiality in the discharge of their official functions, they asked for the dismissal of the case and claimed moral damages and attorney's fees in the total amount of P165,000.00 (Answer with Counterclaim, Records, pp. 48-51).

For his part, defendant Mendoza raised abandonment, sublease and mortgage of the farm lots without his consent and approval, and non-payment of rentals, irrigation fees and other taxes due the government, as his defenses. He also demanded actual and exemplary damages, as well as attorney's fees (Answer, pp. 77-78).

During the pendency of the case in the lower court, Mendoza was in possession of the subject lots and had cultivated the same. Upon motion of plaintiff, the court directed its Deputy Sheriff to supervise the harvesting of the palay crops, to cause the threshing thereof and to deposit the net harvest (after deducting from the expenses incurred), in a bonded warehouse of the locality subject to the disposition of the court. 3

The respondent Court rendered judgment affirming the appealed agrarian court's decision with the modification that Lot 106 is not covered by it.

The dispositive portion of the appealed decision, which was modified, states as follows:

WHEREFORE, judgment is hereby rendered, in favor of plaintiff and against defendants:

On the Mandatory Injunction:

1. Ordering said defendants to restore possession of the landholding subject of the action to the plaintiff and enjoining said defendants and any person claiming under them to desist from molesting them or interfering with the possession and cultivation of the landholding descriptive in paragraph 3 of the complaint, to wit:

Farm Lots Nos. 46 and 106, Block 2, Psd-38453 of the Bahay Pare Estate, Bahay Pare, Candaba, Pampanga, with a total area of 23,969 square meters, more or less, owned by a certain Juan Mendoza, and devoted principally to the production of palay, as evidenced by a Certification from the Ministry of Agrarian Reform issued on July 30, 1984.

2. a) Ordering the defendants to vacate the premises of the two landholding in question and to respect the tenancy rights of plaintiff with respect to the same;

b) Ordering defendants, jointly and severally to pay unto plaintiff 220 cavans of palay or its equivalent in cash of P33,000.00 from the principal crop year of 1984, and every harvest time until defendants finally vacate and surrender possession and cultivation of the landholding in question to plaintiff.

c) the prayer for moral damages, not having been sufficiently proved, the same is denied.

d) Ordering defendants jointly and severally, to pay the costs of suit.

The awards herein provided should first be satisfied from the deposits of the harvests ordered by the Court from which the planting and harvesting expenses have been paid to defendant Olympio Mendoza; and if said net deposits with the Court or the warehouses as ordered by the Court are insufficient, then the balance should be paid by defendants, jointly and severally. 4

Defendants who are the petitioners in this case, in a Petition for Review on Certiorari, present for the consideration of the Court:

[T]he lone issue of whether or not they can be held liable, jointly and severally, with the other defendants, for the harvests of the litigated property, Lot No. 46, or the money equivalent thereof starting from the principal crop years of 1984 and every harvest time thereafter until the possession and cultivation of the aforestated landholding are finally surrendered to the private respondent. 5

It is the position of petitioners that they are not liable jointly and severally with Olympio Mendoza and Severino Aguinaldo because the present petition involves Lot No. 46, Block 2, Psd-38453 of the bahay Pare Estate, bahay Pare, Candaba, Pampanga and not Lot No. 106 of the estate, which lot was purchased by petitioner Romeo Reyes from Olympio Mendoza's father, Juan, and which he later donated to the barangay Bahay Pare of Candaba, Pampanga, for the construction of the Bahay Pare Barangay High School. 6 As to their supposed participation in the dispossession of private respondent from the disputed landholding, petitioners present the September 30, 1987 Resolution of Investigating Fiscal Jesus M. Pamintuan, as approved by Pampanga Provincial Fiscal Villamor I. Dizon, in I.S. No. 8576, 7 wherein private respondent's complaint against petitioners and the other defendants in the agrarian court for violation of P.D. 583 8 was dismissed, to show that private respondent's "point is already settled and considered closed." 9 lastly, petitioners claim that they were included in the present controversy so that their political career would be destroyed. 10

Private respondents deny petitioners' allegations and contend that it was petitioners who conspired with Olympio Mendoza and Severino Aguinaldo in ejecting them not only from Lot No. 46 but also from Lot No. 106. They maintain that it was in Farmlot No. 46 from where they were ejected and dispossessed, so much so that even if Farmlot No. 106 was removed by the Court of Appeals from the judgment, as Farmlot No. 46 was harvesting palay worth at least P33,000.00 per year since 1989, private respondents, who are entitled to the possession and peaceful enjoyment of the farmlot as provided for in Section 23 of the Agrarian Reform Law, should be compensated for the lost income by the petitioners who are solidarily liable with Olympio Mendoza and Severino Aguinaldo. 11

We find for the private respondents.

It is clear that petitioners are asking Us to re-examine all the evidence already presented and evaluated by the trial court and re-evaluated again by the respondent appellate court. Said evidence served as basis in arriving at the trial court and appellate court's findings of fact. We shall not analyze such evidence all over again but instead put finis to the factual findings in this case. Settled is the rule that only questions of law may be raised in a petition

for review on certiorari under Rule 45 of the Rules of Court 12 absent the exceptions which do not obtain in the instant case. 13

We agree with the appellate court in its retiocination, which We adopt, on why it has to dismiss the appeal. Said the Court:

In her Complaint, plaintiff-appellee alleged that she "is the tenant of Farm Lots Nos. 46 and 106 Block 2, Psd-38453 of the Bahay Pare Estate, Bahay Pare, Candaba, Pampanga, with a total area of 23,969 square meters, more or less . . ." (Complaint, Record, vol. 1, p.1). However, during Violeta's testimony, she clarified that actually only Lot No. 106, which contains an area of P19,000 square meters, is not included in this controversy (T.S.N., August 10, 1989, p. 5; May 8, 1989, p. 12). This statement was corroborated by plaintiff's counsel, Atty. Arturo Rivera, who informed the court that the 19,000 square meter lot is subject of a pending case before the MTC of Sta. Ana, Pampanga (Ibid., p. 15). The inconsistency between the averment of the complaint and the testimony of the witness should not only because there was no showing that she intended to mislead defendants and even the trial court on the subject matter of the suit. It would in the complaint since together with Lot 106 had been include in the complaint since together with Lot 46, it is owned by Olympio's father.

We also concur with the trial court's finding on the participation of the other appellants in the dispossession of appellee. They not only knew Olympio personally, some of them were even asked by Olympio to help him cultivate the land, thus lending credence to the allegation that defendant Olympio, together with his co-defendants, prevented plaintiff and her workers from entering the land through "strong arm methods". (Decision of RTC, records, vol. II p. 564).

Finally, we rule that the trial court did not err when it favorably considered the affidavits of Eufrocina and Efren Tecson (Annexes "B" and "C") although the affiants were not presented and subjected to cross-examination. Section 16 of P.D. No. 946 provides that the "Rules of Court shall not be applicable in agrarian cases even in a suppletory character." The same provision states that "In the hearing, investigation and determination of any question or controversy, affidavits and counter-affidavits may be allowed and are admissible in evidence".

Moreover, in agrarian cases, the quantum of evidence required is no more than substantial evidence. This substantial evidence rule was incorporated in section 18, P.D. No. 946 which took effect on June 17, 1976 (Castro vs. CS, G.R. No. 34613, January 26, 1989). In Bagsican vs. Hon. Court of Appeals, 141 SCRA 226, the Supreme Court defined what substantial evidence is:

Substantial evidence does not necessarily import preponderant evidence, as is required in an ordinary civil case. It has been defined to be such relevant evidence as a reasonable mind might accept as adequate to support a conclusion and its absence is not shown by stressing that there is contrary evidence on record, direct or circumstantial, for the appellate court cannot substitute its own judgment or criteria for that of the trial court in determining wherein lies the weight of evidence or what evidence is entitled to belief. 14

WHEREFORE, finding no reversible error in the decision appealed from, the petition is hereby DENIED for lack of merit. The decision of the Court of Appeals promulgated on November 22, 1990 is AFFIRMED in toto. Costs against the petitioners.

SO ORDERED.

Narvasa, C.J., Feliciano, Regalado, Nocon and Campos, JJ., concur.

 

Footnotes

1 Decision, CA-G.R. No. SP 20528 (CAR), penned by Justice Alfredo L. Benipayo and concurred in by Justices Cesar D. Francisco and Fortunato A. Vailoces.

2 Decision of the RTC, Branch XLVI, 3rd Judicial Region, San Fernando, Pampanga acting as an agrarian court; penned by Judge Norberto C. Ponce.

3 Op cit., pp. 3-4; Rollo, pp. 25-26.

4 Original Records, pp. 565-566.

5 Petitioners' Memorandum, p.7; Rollo, p. 62.

6 Petitioners' Memorandum, p. 10; Rollo, p.65.

7 Annex "B", Petition; Rollo, pp. 20-21.

8 Prescribing Penalties for the Unlawful Ejectment, Exclusion, Removal or Ouster of Tenant-farmers from their Farmholdings.

9 Petitioners' Memorandum, pp. 10-11; Rollo, pp. 65-66.

10 Petition, p. 9; Rollo, p.17.

11 Private respondents' Memorandum, pp. 4-5; Rollo, pp. 73-74.

12 Decision, Misa vs. CA, G.R. No. 97291, August 5, 1992, pp. 4-5.

13 The case of Medina v. Asistio, G.R. No. 75450, 191 SCRA 218, 223-224 (1990) enumerates several instances when findings of fact may be passed upon and reviewed by this Court, none of which obtain herein:

(1) When the conclusion is a finding grounded entirely on speculation, surmises or conjectures (Joaquin v. Navarro, 93 Phil. 257 [1953]); (2) When the inference made is manifestly mistaken, absurd or impossible (Luna v. Linatok, 74 Phil. 15 [1942]); (3) Where there is a grave abuse of discretion (Buyco v. People, 95 Phil. 453 [1955]); (4) When the judgment is based on a misapprehension of facts (Cruz v. Sosing, L-4875, Nov. 27, 1953); (5) When the findings of fact are conflicting (Casica v. Villaseca, L-9590 Ap. 30, 1957; unrep.); (6) When the Court of Appeals, in making its findings, went beyond

the issues of the case and the same is contrary to the admissions of both appellant and appellee (Evangelista v. Alto Surety and Insurance Co., 103 Phil 401 [1958]; (7) The findings of the Court of Appeals are contrary to those of the trial court (Garcia v. Court of Appeals, 33 SCRA 622 [1970]); Sacay v. Sandiganbayan, 142 SCRA 593 [1986]); (8) When the findings of fact are conclusions without citation of specific evidence on which they are based(Ibid.,); (9) When the facts set forth in the petition as well as in the petitioners' main and reply briefs are not disputed by the respondents (Ibid.,); and (10) The findings of fact of the Court of Appeals is premised on the supposed absence of evidence and is contraindicated by the evidence on record (Salazar v. Gutierrez, 33 SCRA 242 [1970]).

Ibid., p.5.

14 Decision, CA-G.R. SP 20528 (CAR), pp. 6-7; Rollo, pp. 28-29.

2. Agustin v. CA

THIRD DIVISION

[G.R. No. 162571. June 15, 2005.]

ARNEL L. AGUSTIN, petitioner, vs. HON. COURT OF APPEALS AND MINOR MARTIN JOSE PROLLAMANTE, REPRESENTED BY HIS MOTHER/GUARDIAN FE ANGELA PROLLAMANTE, respondents.

D E C I S I O N

CORONA, J p:

At issue in this petition for certiorari 1 is whether or not the Court of Appeals (CA) gravely erred in exercising its discretion, amounting to lack or excess of jurisdiction, in issuing a decision 2 and resolution 3 upholding the resolution and order of the trial court, 4 which denied petitioner's motion to dismiss private respondents' complaint for support and directed the parties to submit themselves to deoxyribonucleic acid (DNA) paternity testing. DACIHc

Respondents Fe Angela and her son Martin Prollamante sued Martin's alleged biological father, petitioner Arnel L. Agustin, for support and support pendente lite before the Regional Trial Court (RTC) of Quezon City, Branch 106. 5

In their complaint, respondents alleged that Arnel courted Fe in 1992, after which they entered into an intimate relationship. Arnel supposedly impregnated Fe on her 34th birthday on November 10, 1999. Despite Arnel's insistence on abortion, Fe, decided otherwise and gave birth to their child out of wedlock, Martin, on August 11, 2000 at the Capitol Medical Hospital in Quezon City. The baby's birth certificate was purportedly signed by Arnel as the father. Arnel shouldered the pre-natal and hospital expenses but later refused Fe's repeated requests for Martin's support despite his adequate financial capacity and even suggested to have the child committed for adoption. Arnel also denied having fathered the child.

On January 19, 2001 while Fe was carrying five-month old Martin at the Capitol Hills Golf and Country Club parking lot, Arnel sped off in his van, with the open car door hitting Fe's leg. This incident was reported to the police. In July 2001, Fe was diagnosed with leukemia and has, since then, been undergoing chemotherapy. On March 5, 2002, Fe and Martin sued Arnel for support. 6

In his amended answer, Arnel denied having sired Martin because his affair and intimacy with Fe had allegedly ended in 1998, long before Martin's conception. He claimed that Fe had at least one other secret lover. Arnel admitted that their relationship started in 1993 but "he never really fell in love with (Fe) not only because (she) had at least one secret lover, a certain Jun, but also because she proved to be scheming and overly demanding and possessive. As a result, theirs was a stormy on-and-off affair. What started as a romantic liaison between two consenting adults eventually turned out to be a case of fatal attraction where (Fe) became so obsessed with (Arnel), to the point of even entertaining the idea of marrying him, that she resorted to various devious ways and means to alienate (him) from his wife and family. . . . Unable to bear the prospect of losing his wife and children, Arnel

terminated the affair although he still treated her as a friend such as by referring potential customers to the car aircon repair shop" 7 where she worked. Later on Arnel found out that Fe had another erstwhile secret lover. In May 2000, Arnel and his entire family went to the United States for a vacation. Upon their return in June 2000, Arnel learned that Fe was telling people that he had impregnated her. Arnel refused to acknowledge the child as his because their "last intimacy was sometime in 1998." 8 Exasperated, Fe started calling Arnel's wife and family. On January 19, 2001, Fe followed Arnel to the Capitol Hills Golf and Country Club parking lot to demand that he acknowledge Martin as his child. According to Arnel, he could not get through Fe and the discussion became so heated that he had no "alternative but to move on but without bumping or hitting any part of her body." 9 Finally, Arnel claimed that the signature and the community tax certificate (CTC) attributed to him in the acknowledgment of Martin's birth certificate were falsified. The CTC erroneously reflected his marital status, as single when he was actually married and that his birth year was 1965 when it should have been 1964. 10

In his pre-trial brief filed on May 17, 2002, Arnel vehemently denied having sired Martin but expressed willingness to consider any proposal to settle the case. 11

On July 23, 2002, Fe and Martin moved for the issuance of an order directing all the parties to submit themselves to DNA paternity testing pursuant to Rule 28 of the Rules of Court. 12

Arnel opposed said motion by invoking his constitutional right against self-incrimination. 13 He also moved to dismiss the complaint for lack of cause of action, considering that his signature on the birth certificate was a forgery and that, under the law, an illegitimate child is not entitled to support if not recognized by the putative father. 14 In his motion, Arnel manifested that he had filed criminal charges for falsification of documents against Fe (I.S. Nos. 02-5723 and 02-7192) and a petition for cancellation of his name appearing in Martin's birth certificate (docketed as Civil Case No. Q-02-46669). He attached the certification of the Philippine National Police Crime Laboratory that his signature in the birth certificate was forged. EaHcDS

The trial court denied the motion to dismiss the complaint and ordered the parties to submit themselves to DNA paternity testing at the expense of the applicants. The Court of Appeals affirmed the trial court.

Thus, this petition.

In a nutshell, petitioner raises two issues: (1) whether a complaint for support can be converted to a petition for recognition and (2) whether DNA paternity testing can be ordered in a proceeding for support without violating petitioner's constitutional right to privacy and right against self-incrimination. 15

The petition is without merit. cdjur2005

First of all, the trial court properly denied the petitioner's motion to dismiss because the private respondents' complaint on its face showed that they had a cause of action against the petitioner. The elements of a cause of action are: (1) the plaintiff's primary right and the defendant's corresponding primary duty, and (2) the delict or wrongful act or omission of the defendant, by which the primary right and duty have been violated. The cause of action is determined not by the prayer of the complaint but by the facts alleged. 16

In the complaint, private respondents alleged that Fe had amorous relations with the petitioner, as a result of which she gave birth to Martin out of wedlock. In his answer, petitioner admitted that he had sexual relations with Fe but denied that he fathered Martin, claiming that he had ended the relationship long before the child's conception and birth. It is undisputed and even admitted by the parties that there existed a sexual relationship between Arnel and Fe. The only remaining question is whether such sexual relationship produced the child, Martin. If it did, as respondents have alleged, then Martin should be supported by his father Arnel. If not, petitioner and Martin are strangers to each other and Martin has no right to demand and petitioner has no obligation to give support. ScCEIA

Preliminaries aside, we now tackle the main issues.

Petitioner refuses to recognize Martin as his own child and denies the genuineness and authenticity of the child's birth certificate which he purportedly signed as the father. He also claims that the order and resolution of the trial court, as affirmed by the Court of Appeals, effectively converted the complaint for support to a petition for recognition, which is supposedly proscribed by law. According to petitioner, Martin, as an unrecognized child, has no right to ask for support and must first establish his filiation in a separate suit under Article 283 17 in relation to Article 265 18 of the Civil Code and Section 1, Rule 105 19 of the Rules of Court.

The petitioner's contentions are without merit.

The assailed resolution and order did not convert the action for support into one for recognition but merely allowed the respondents to prove their cause of action against petitioner who had been denying the authenticity of the documentary evidence of acknowledgement. But even if the assailed resolution and order effectively integrated an action to compel recognition with an action for support, such was valid and in accordance with jurisprudence. In Tayag v. Court of Appeals, 20 we allowed the integration of an action to compel recognition with an action to claim one's inheritance:

. . . In Paulino, we held that an illegitimate child, to be entitled to support and successional rights from the putative or presumed parent, must prove his filiation to the latter. We also said that it is necessary to allege in the complaint that the putative father had acknowledged and recognized the illegitimate child because such acknowledgment is essential to and is the basis of the right to inherit. There being no allegation of such acknowledgment, the action becomes one to compel recognition which cannot be brought after the death of the putative father. The ratio decidendi in Paulino, therefore, is not the absence of a cause of action for failure of the petitioner to allege the fact of acknowledgment in the complaint, but the prescription of the action. cEDaTS

Applying the foregoing principles to the case at bar, although petitioner contends that the complaint filed by herein private respondent merely alleges that the minor Chad Cuyugan is an illegitimate child of the deceased and is actually a claim for inheritance, from the allegations therein the same may be considered as one to compel recognition. Further, that the two causes of action, one to compel recognition and the other to claim inheritance, may be joined in one complaint is not new in our jurisprudence.

As early as [1922] we had occasion to rule thereon in Briz vs. Briz, et al. (43 Phil. 763. [1922]) wherein we said:

The question whether a person in the position of the present plaintiff can in any event maintain a complex action to compel recognition as a natural child and at the same time to obtain ulterior relief in the character of heir, is one which in the opinion of this court must be answered in the affirmative, provided always that the conditions justifying the joinder of the two distinct causes of action are present in the particular case. In other words, there is no absolute necessity requiring that the action to compel acknowledgment should have been instituted and prosecuted to a successful conclusion prior to the action in which that same plaintiff seeks additional relief in the character of heir. Certainly, there is nothing so peculiar to the action to compel acknowledgment as to require that a rule should be here applied different from that generally applicable in other cases. . . .

The conclusion above stated, though not heretofore explicitly formulated by this court, is undoubtedly to some extent supported by our prior decisions. Thus, we have held in numerous cases, and the doctrine must be considered well settled, that a natural child having a right to compel acknowledgment, but who has not been in fact legally acknowledged, may maintain partition proceedings for the division of the inheritance against his coheirs . . .; and the same person may intervene in proceedings for the distribution of the estate of his deceased natural father, or mother . . . In neither of these situations has it been thought necessary for the plaintiff to show a prior decree compelling acknowledgment. The obvious reason is that in partition suits and distribution proceedings the other persons who might take by inheritance are before the court; and the declaration of heirship is appropriate to such proceedings. (Emphasis supplied) HEcTAI

Although the instant case deals with support rather than inheritance, as in Tayag, the basis or rationale for integrating them remains the same. Whether or not respondent Martin is entitled to support depends completely on the determination of filiation. A separate action will only result in a multiplicity of suits, given how intimately related the main issues in both cases are. To paraphrase Tayag, the declaration of filiation is entirely appropriate to these proceedings.

On the second issue, petitioner posits that DNA is not recognized by this Court as a conclusive means of proving paternity. He also contends that compulsory testing violates his right to privacy and right against self-incrimination as guaranteed under the 1987 Constitution. These contentions have no merit.

Given that this is the very first time that the admissibility of DNA testing as a means for determining paternity has actually been the focal issue in a controversy, a brief historical sketch of our past decisions featuring or mentioning DNA testing is called for.

In the 1995 case of People v. Teehankee 21 where the appellant was convicted of murder on the testimony of three eyewitnesses, we stated as an obiter dictum that "while eyewitness identification is significant, it is not as accurate and authoritative as the scientific forms of identification evidence such as the fingerprint or the DNA test result (emphasis supplied)."

Our faith in DNA testing, however, was not quite so steadfast in the previous decade. In Pe Lim v. Court Appeals, 22 promulgated in 1997, we cautioned against the use of DNA because "DNA, being a relatively new science, (had) not as yet been accorded official recognition by our courts. Paternity (would) still have to be resolved by such conventional evidence as the relevant incriminating acts, verbal and written, by the putative father."

In 2001, however, we opened the possibility of admitting DNA as evidence of parentage, as enunciated in Tijing v. Court of Appeals: 23

A final note. Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately, we have now the facility and expertise in using DNA test for identification and parentage testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person has two (2) copies, one copy from the mother and the other from the father. The DNA from the mother, the alleged father and child are analyzed to establish parentage. Of course, being a novel scientific technique, the use of DNA test as evidence is still open to challenge. Eventually, as the appropriate case comes, courts should not hesitate to rule on the admissibility of DNA evidence. For it was said, that courts should apply the results of science when competently obtained in aid of situations presented, since to reject said result into deny progress. AHDaET

The first real breakthrough of DNA as admissible and authoritative evidence in Philippine jurisprudence came in 2002 with our en banc decision in People v. Vallejo 24 where the rape and murder victim's DNA samples from the bloodstained clothes of the accused were admitted in evidence. We reasoned that "the purpose of DNA testing (was) to ascertain whether an association exist(ed) between the evidence sample and the reference sample. The samples collected (were) subjected to various chemical processes to establish their profile."

A year later, in People v. Janson, 25 we acquitted the accused charged with rape for lack of evidence because "doubts persist(ed) in our mind as to who (were) the real malefactors. Yes, a complex offense (had) been perpetrated but who (were) the perpetrators? How we wish we had DNA or other scientific evidence to still our doubts!"

In 2004, in Tecson, et al. v. COMELEC 26 where the Court en banc was faced with the issue of filiation of then presidential candidate Fernando Poe Jr., we stated:

In case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to obtain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate child and any physical residue of the long dead parent could be resorted to. A positive match would clear up filiation or paternity. In Tijing vs. Court of Appeals, this Court has acknowledged the strong weight of DNA testing. . . .

Moreover in our en banc decision in People v. Yatar, 27 we affirmed the conviction of the accused for rape with homicide, the principal evidence for which included DNA test results. We did a lengthy discussion of DNA, the process of DNA testing and the reasons for its admissibility in the context of our own Rules of Evidence:

Deoxyribonucleic Acid, or DNA, is a molecule that encodes the genetic information in all living organisms. A person's DNA is the same in each cell and it does not change throughout a person's lifetime; the DNA in a person's blood is the same as the DNA found in his saliva, sweat, bone, the root and shaft of hair, earwax, mucus, urine, skin tissue, and vaginal and rectal cells. Most importantly, because of polymorphisms in human genetic structure, no two individuals have the same DNA, with the notable exception of identical twins. CaEIST

xxx xxx xxx

In assessing the probative value of DNA evidence, courts should consider, inter alia, the following factors: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests.

In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly qualified by the prosecution as an expert witness on DNA print or identification techniques. Based on Dr. de Ungria's testimony, it was determined that the gene type and DNA profile of appellant are identical to that of the extracts subject of examination. The blood sample taken from the appellant showed that he was of the following gene types: vWA 15/19, TH01 7/8, DHFRP29/10 and CSF1PO 10/11, which are identical with semen taken from the victim's vaginal canal. Verily, a DNA match exists between the semen found in the victim and the blood sample given by the appellant in open court during the course of the trial.

Admittedly, we are just beginning to integrate these advances in science and technology in the Philippine criminal justice system, so we must be cautious as we traverse these relatively uncharted waters. Fortunately, we can benefit from the wealth of persuasive jurisprudence that has developed in other jurisdictions. Specifically, the prevailing doctrine in the U.S. has proven instructive.

In Daubert v. Merrell Dow (509 U.S. 579 (1993); 125 L. Ed. 2d 469) it was ruled that pertinent evidence based on scientifically valid principles could be used as long as it was relevant and reliable. Judges, under Daubert, were allowed greater discretion over which testimony they would allow at trial, including the introduction of new kinds of scientific techniques. DNA typing is one such novel procedure. SATDEI

Under Philippine law, evidence is relevant when it relates directly to a fact in issue as to induce belief in its existence or non-existence. Applying the Daubert test to the case at bar, the DNA evidence obtained through PCR testing and utilizing STR analysis, and which was appreciated by the court a quo is relevant and reliable since it is reasonably based on scientifically valid principles of human genetics and molecular biology.

Significantly, we upheld the constitutionality of compulsory DNA testing and the admissibility of the results thereof as evidence. In that case, DNA samples from semen recovered from a rape victim's 'vagina were used to positively identify the accused Joel "Kawit" Yatar as the rapist. Yatar claimed that the compulsory extraction of his blood sample for DNA testing, as well as the testing itself, violated his right against self-incrimination, as embodied in both Sections 12 and 17 of Article III of the Constitution. We addressed this as follows:

The contention is untenable. The kernel of the right is not against all compulsion, but against testimonial compulsion. The right against self-incrimination is simply against the legal process of extracting from the lips of the accused an admission of guilt. It does not apply where the evidence sought to be excluded is not an incrimination but as part of object evidence.

Over the years, we have expressly excluded several kinds of object evidence taken from the person of the accused from the realm of self-incrimination. These include photographs, 28 hair, 29 and other bodily substances. 30 We have also declared as constitutional several procedures performed on the accused such as pregnancy tests for women accused of adultery, 31 expulsion of morphine from one's mouth 32 and the tracing of one's foot to determine its identity with bloody footprints. 33 In Jimenez v. Cañizares, 34 we even authorized the examination of a woman's genitalia, in an action for annulment filed by her husband, to verify his claim that she was impotent, her orifice being too small for his penis. Some of these procedures were, to be sure, rather invasive and involuntary, but all of them were constitutionally sound. DNA testing and its results, per our ruling in Yatar, 35 are now similarly acceptable. cEASTa

Nor does petitioner's invocation of his right to privacy persuade us. In Ople v. Torres, 36 where we struck down the proposed national computerized identification system embodied in Administrative Order No. 308 we said:

In no uncertain terms, we also underscore that the right to privacy does not bar all incursions into individual privacy. The right is not intended to stifle scientific and technological advancements that enhance public service and the common good. . . . Intrusions into the right must be accompanied by proper safeguards that enhance public service and the common good.

Historically, it has mostly been in the areas of legality of searches and seizures, 37 and the infringement of privacy of communication 38 where the constitutional right to privacy has been critically at issue. Petitioner's case involves neither and, as already stated, his argument that his right against self-incrimination is in jeopardy holds no water. His hollow invocation of his constitutional rights elicits no sympathy here for the simple reason that they are not in any way being violated. If, in a criminal case, an accused whose very life is at stake can be compelled to submit to DNA testing, we see no reason why, in this civil case, petitioner herein who does not face such dire consequences cannot be ordered to do the same.

DNA paternity testing first came to prominence in the United States, where it yielded its first official results sometime in 1985. In the decade that followed, DNA rapidly found widespread general acceptance. 39 Several cases decided by various State Supreme Courts reflect the total assimilation of DNA testing into their rules of procedure and evidence.

The case of Wilson v. Lumb 40 shows that DNA testing is so commonly accepted that, in some instances, ordering the procedure has become a ministerial act. The Supreme Court of St. Lawrence County, New York allowed a party who had already acknowledged paternity to subsequently challenge his prior acknowledgment. The Court, pointed out that, under the law, specifically Section 516 of the New York Family Court Act, the Family Court examiner had the duty, upon receipt of the challenge, to order DNA tests: 41

§ 516-a. Acknowledgment of paternity. (a) An acknowledgment of paternity executed pursuant to section one hundred eleven-k of the social services law or section four thousand one hundred thirty-five-b of the public health law shall establish the paternity of and liability for the support of a child pursuant to this act. Such acknowledgment must be reduced to writing and filed pursuant to section four thousand one hundred thirty-five-b of the public health law with the registrar of the district in which the birth occurred and in which the birth

certificate has been filed. No further judicial or administrative proceedings are required to ratify an unchallenged acknowledgment of paternity. aATCDI

(b) An acknowledgment of paternity executed pursuant to section one hundred eleven-k of the social services law or section four thousand one hundred thirty-five-b of the public health law may be rescinded by either signator's filing of a petition with the court to vacate the acknowledgment within the earlier of sixty days of the date of signing the acknowledgment or the date of an administrative or a judicial proceeding (including a proceeding to establish a support order) relating to the child in which either signator is a party. For purposes of this section, the "date of an administrative or a judicial proceeding" shall be the date by which the respondent is required to answer the petition. After the expiration of sixty days of the execution of the acknowledgment, either signator may challenge the acknowledgment of paternity in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof on the party challenging the voluntary acknowledgment. Upon receiving a party's challenge to an acknowledgment, the court shall order genetic marker tests or DNA tests for the determination of the child's paternity and shall make a finding of paternity, if appropriate, in accordance with this article. Neither signator's legal obligations, including the obligation for child support arising from the acknowledgment, may be suspended during the challenge to the acknowledgment except for good cause as the court may find. If a party petitions to rescind an acknowledgment and if the court determines that the alleged father is not the father of the child, or if the court finds that an acknowledgment is invalid because it was executed on the basis of fraud, duress, or material mistake of fact, the court shall vacate the acknowledgment of paternity and shall immediately provide a copy of the order to the registrar of the district in which the child's birth certificate is filed and also to the putative father registry operated by the department of social services pursuant to section three hundred seventy-two-c of the social services law. In addition, if the mother of the child who is the subject of the acknowledgment is in receipt of child support services pursuant to title six-A of article three of the social services law, the court shall immediately provide a copy of the order to the child support enforcement unit of the social services district, that provides the mother with such services. HTSAEa

(c) A determination of paternity made by any other state, whether established through the parents' acknowledgment of paternity or through an administrative or judicial process, must be accorded full faith and credit, if and only if such acknowledgment meets the requirements set forth in section 452(a)(7) of the social security act. (emphasis supplied)

DNA testing also appears elsewhere in the New York Family Court Act: 42

§532. Genetic marker and DNA tests; admissibility of records or reports of test results; costs of tests.

a) The court shall advise the parties of their right to one or more genetic marker tests or DNA tests and, on the court's own motion or the motion of any party, shall order the mother, her child and the alleged father to submit to one or more genetic marker or DNA tests of a type generally acknowledged as reliable by an accreditation body designated by the secretary of the federal department of health and human services and performed by a laboratory approved by such an accreditation body and by the commissioner of health or by a duly qualified physician to aid in the determination of whether the alleged father is or is

not the father of the child. No such test shall be ordered, however, upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman. The record or report of the results of any such genetic marker or DNA test ordered pursuant to this section or pursuant to section one hundred eleven-k of the social services law shall be received in evidence by the court pursuant to subdivision (e) of rule forty-five hundred eighteen of the civil practice law and rules where no timely objection in writing has been made thereto and that if such timely objections are not made, they shall be deemed waived and shall not be heard by the court. If the record or report of the results of any such genetic marker or DNA test or tests indicate at least a ninety-five, percent probability of paternity, the admission of such record or report shall create a rebuttable presumption of paternity, and shall establish, if unrebutted, the paternity of and liability for the support of a child pursuant to this article and article four of this act. HEITAD

(b) Whenever the court directs a genetic marker or DNA test pursuant to this section, a, report made as provided in subdivision (a) of this section may be received in evidence pursuant to rule forty-five, hundred eighteen of the civil practice law and rules if offered by any party.

(c) The cost of any test ordered pursuant to subdivision (a) of this section shall be, in the first instance, paid by the moving party. If the moving party is financially unable to pay such cost, the court may direct any qualified public health officer to conduct such test, if practicable; otherwise, the court may direct payment from the funds of the appropriate local social services district. In its order of disposition, however, the court may direct that the cost of any such test be apportioned between the parties according to their respective abilities to pay or be assessed against the party who does not prevail on the issue of paternity, unless such party is financially unable to pay. (emphasis supplied)

In R.E. v. C.E.W., 43 a decision of the Mississippi Supreme Court, DNA tests were used to prove that H.W. previously thought to be an offspring of the marriage between A.C.W. and C.E.W., was actually the child of R.E. with whom C.E.W. had, the time of conception, maintained an adulterous relationship.

In Erie County Department of Social Services on behalf of Tiffany M.H. v. Greg G., 44 the 4th Department of the New York Supreme Court's Appellate Division allowed G.G., who had been adjudicated as T.M.H.'s father by default, to have the said judgment vacated, even after six years, once he had shown through a genetic marker test that he was not the child's father. In this case,. G.G. only, requested the tests after the Department of Social Services, six years after G.G. had been adjudicated as T.M.H.'s father, sought an increase in his support obligation to her. aATHES

In Greco v. Coleman, 45 the Michigan Supreme Court while ruling on the constitutionality of a provision of law allowing non-modifiable support agreements pointed out that it was because of the difficulty of determining paternity before the advent of DNA testing that such support agreements were necessary:

As a result of DNA testing, the accuracy with which paternity can be proven has increased significantly since the parties in this lawsuit entered into their support agreement . . . (current testing methods can determine the probability of paternity to 99.999999% accuracy). However, at the time the parties before us entered into the disputed agreement,

proving paternity was a very significant obstacle to an illegitimate child's access to child support. The first reported results of modern DNA paternity testing did not occur until 1985. ("In fact, since its first reported results in 1985, DNA matching has progressed to 'general acceptance in less than a decade'"). Of course, while prior blood-testing methods could exclude some males from being the possible father of a child, those methods could not affirmatively pinpoint a particular male as being the father. Thus, when the settlement agreement between the present parties was entered in 1980, establishing paternity was a far more difficult ordeal than at present. Contested paternity actions at that time were often no more than credibility contests. Consequently, in every, contested paternity action, obtaining child support depended not merely on whether the putative father was, in fact, the child's biological father, but rather on whether the mother could prove to a court of law that she was only sexually involved with one man — the putative father. Allowing parties the option of entering into private agreements in lieu of proving paternity eliminated the risk that the mother would be unable meet her burden of proof. ITSacC

It is worth noting that amendments to Michigan's Paternity law have included the use of DNA testing: 46

§722.716 Pretrial proceedings; blood or tissue typing determinations as to mother, child, and alleged father; court order; refusal to submit to typing or identification profiling; qualifications of person conducting typing or identification profiling; compensation of expert; result of typing or identification profiling; filing summary report; objection; admissibility; presumption; burden of proof; summary disposition.

Sec. 6.

(1) In a proceeding under this act before trial, the court, upon application made by or on behalf of either party, or on its own motion, shall order that the mother, child, and alleged father submit to blood or tissue typing determinations, which may include, but are not limited to, determinations of red cell antigens, red cell isoenzymes, human leukocyte antigens, serum proteins, or DNA identification profiling, to determine whether the alleged father is likely to be, or is not, the father of the child. If the court orders a blood or tissue typing or DNA identification profiling to be conducted and a party refuses to submit to the typing or DNA identification profiling, in addition to any other remedies available, the court may do either of the following:

(a) Enter a default judgment at the request of the appropriate party.

(b) If a trial is held, allow the disclosure of the fact of the refusal unless good cause is shown for not disclosing the fact of refusal.

(2) A blood or tissue typing or DNA identification profiling shall be conducted by a person accredited for paternity determinations by a nationally recognized scientific organization, including, but not limited to, the American association of blood banks. AHCETa

xxx xxx xxx

(5) If the probability of paternity determined by the qualified person described in subsection (2) conducting the blood or tissue typing or DNA identification profiling is 99% or higher, and the DNA identification profile and summary report are admissible as provided in

subsection (4) paternity is presumed. If the results of the analysis of genetic testing material from 2 or more persons indicate a probability of paternity greater than 99%, the contracting laboratory shall conduct additional genetic paternity testing until all but 1 of the putative fathers is eliminated, unless the dispute involves 2 or more putative fathers who have identical DNA.

(6) Upon the establishment of the presumption of paternity as provided in subsection (5), either party may move for summary disposition under the court rules this section does not abrogate the right of either party to child support from the date of birth of the child if applicable under section 7. (emphasis supplied)

In Rafferty vs. Perkins, 47 the Supreme Court of Mississippi ruled that DNA test results showing paternity were sufficient to overthrow the presumption of legitimacy of a child born during the course of a marriage:

The presumption of legitimacy having been rebutted by the results of the blood test eliminating Perkins as Justin's father, even considering the evidence in the light most favorable to Perkins, we find that no reasonable jury could find that Easter is not Justin's father based upon the 99.94% probability of paternity concluded by the DNA testing.

In S.J.F. and J.C.F. v. R.C.W., 48 the North Dakota Supreme Court upheld an order for genetic testing given by the Court of Appeals, even after trial on the merits had concluded without such order being given. Significantly, when J.C.F., the mother, first filed the case for paternity and support with the District Court, neither party requested genetic testing. It was only upon appeal from dismissal of the case that the appellate court remanded the case and ordered the testing, which the North Dakota Supreme Court upheld. CacISA

The case of Kohl v. Amundson, 49 decided by the Supreme Court of South Dakota, demonstrated that even default judgments of paternity could be vacated after the adjudicated father had, through DNA testing, established non-paternity. In this case Kohl, having excluded himself as the father of Amundson's child through DNA testing, was able to have the default judgment against him vacated. He then obtained a ruling ordering Amundson to reimburse him for the amounts withheld from his wages for child support. The Court said "(w)hile Amundson may have a remedy against the father of the child, she submit(ted) no authority that require(d) Kohl to support her child. Contrary to Amundson's position, the fact that a default judgment was entered, but subsequently vacated, (did) not foreclose Kohl from obtaining a money judgment for the amount withheld from his wages."

In M.A.S v. Mississippi Dept. of Human Services, 50 another case decided by the Supreme Court of Mississippi; it was held that even if paternity was established through an earlier agreed order of filiation, child support and visitation orders could still be vacated once DNA testing established someone other than the named individual to be the biological father. The Mississippi High Court reiterated this doctrine in Williams v. Williams. 51

The foregoing considered we find no grave abuse of discretion on the part of the public respondent for upholding the orders of the trial court which both denied the petitioner's motion to dismiss and ordered him to submit himself for DNA testing. Under Rule 65 of the 1997 Rules of Civil Procedure, the remedy of certiorari is only available "when any tribunal, board or officer has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any

plain, speedy and adequate remedy in the ordinary course of law." 52 In Land Bank of the Philippines v. the Court of Appeals 53 where we dismissed a special civil action for certiorari under Rule 65 we discussed at length the nature of such a petition and just what was meant by "grave abuse of discretion":

Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction or, in other words, where the power is exercised in an arbitrary manner by reason of passion, prejudice, or personal hostility, and it must be so patent or gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. IcEaST

The special civil action for certiorari is a remedy designed for the correction of errors of jurisdiction and not errors of judgment. The raison d'etre for the rule is when a court exercises its jurisdiction, an error committed while so engaged does not deprive it of the jurisdiction being exercised when the error is committed. If it did, every error committed by a court would deprive it of its jurisdiction and every erroneous judgment would be a void judgment. In such a scenario, the administration of justice would not survive. Hence, where the issue or question involved affects the wisdom or legal soundness of the decision — not the jurisdiction of the court to render said decision — the same is beyond the province of a special civil action for certiorari.

The proper recourse of the aggrieved party from a decision of the CA is a petition for review on certiorari under Rule 45 of the Revised Rules of Court. On the other hand, if the error subject of the recourse is one of jurisdiction, or the act complained of was perpetrated by a quasi-judicial officer or agency with grave abuse of discretion amounting to lack or excess of jurisdiction, the proper remedy available to the aggrieved party is a petition for certiorari under Rule 65 of the said Rules. (emphasis supplied)

In the instant case, the petitioner has in no way shown any arbitrariness, passion, prejudice or personal hostility that would amount to grave abuse of discretion on the part of the Court of Appeals. The respondent court acted entirely within its jurisdiction in promulgating its decision and resolution, and any error made would have only been an error in judgment. As we have discussed, however, the decision of the respondent court, being firmly anchored in law and jurisprudence, was correct.

EPILOGUE

For too long, illegitimate children have been marginalized by fathers who choose to deny their existence. The growing sophistication of DNA testing technology finally provides a much needed equalizer for such ostracized and abandoned progeny. We have long believed in the merits of DNA testing and have repeatedly expressed as much in the past. This case comes at a perfect time when DNA testing has finally evolved into a dependable and authoritative form of evidence gathering. We therefore take this opportunity to forcefully reiterate our stand that DNA testing is a valid means of determining paternity.

WHEREFORE, in view of the foregoing, the petition is hereby DENIED. The Court of Appeals' decision dated January 28, 2004 in CA-G.R. SP No. 80961 is hereby AFFIRMED in toto. STcHDC

Costs against petitioner.

Panganiban, Sandoval-Gutierrez, Carpio-Morales and Garcia, JJ., concur.

Footnotes

1. Under Rule 65 of the Rules of Court.

2. CA Decision dated January 28, 2004 in CA-G.R. SP No. 80961, penned by Associate Justice Martin S. Villarama, Jr. and concurred in by Associate Justices Mario L. Guariña III and Jose C. Reyes, Jr. of the Seventeenth Division; Rollo, pp. 32-39.

3. CA Resolution dated March 8, 2004 (affirming the January 28, 2004 CA Decision) in CA-G.R. SP No. 80961, penned by Associate Justice Martin S. Villarama, Jr. and concurred in by Associate Justices Mario L. Guariña III and Jose C. Reyes, Jr. of the Seventeenth Division.; Rollo, pp. 41-43.

4. Resolution dated November 8, 2002 and order dated February 5, 2003 in Civil Case No. Q-02-46301, both penned by Presiding Judge Natividad Giron Dizon of the Regional Trial Court of Quezon City Branch 106; Rollo, pp. 157-159 and 171-172.

5. Docketed as Civil Case No. Q-02-46301, Rollo, pp. 55-60.

6. Rollo, pp. 55-60.

7. Rollo, p. 103.

8. Rollo, p. 104.

9. Rollo, p. 105.

10. Rollo, pp. 101-109.

11. Rollo, pp. 111-114.

12. Rollo, pp. 132-137.

13. Rollo, pp. 138-139.

14. Rollo, pp. 140-143.

15. Rollo, pp. 10-11 and 21.

16. Nicanor G. de Guzman, Jr. v. CA, et al., G.R. No. 92029, 20 December 1990, 192 SCRA 507.

17. Art. 283. In any of the following cases, the father is obliged to recognize the child as his natural child:

(1) In cases of rape, abduction or seduction, when the period of the offense coincides more or less with that of the conception;

(2) When the child is in continuous possession of status of a child of the alleged father by the direct acts of the latter or of his family;

(3) When the child was conceived during the time when the mother cohabited with the supposed father;

(4) When the child has in his favor any evidence or proof that the defendant is his father.

(5)

18. Art. 265. The filiation of legitimate children is proved by the record of birth appearing in the Civil Register, or by an authentic document or a final judgment.

19. SECTION 1. Venue. — Where judicial approval of a voluntary recognition of a minor natural child is required, such child or his parents shall obtain the same by filing a petition to that effect with the Court of First Instance of the province in which the child resides. In the City of Manila, the petition shall be filed in the Juvenile and Domestic Relations Court.

20. G.R. No. 95299, 9 June 1992, 209 SCRA 665.

21. 319 Phil. 128 (1995).

22. 336 Phil. 741 (1997).

23. G.R. No. 125901, 8 March 2001, 354 SCRA 17.

24. G.R. No. 144656, 9 May 2002, 382 SCRA 192.

25. G.R. No. 125938, 4 April 2003, 400 SCRA 584.

26. G.R. Nos. 161434, 161634, and 161824, 3 March 2004.

27. G.R. No. 150224, 19 May 2004.

28. People v. Gallarde, 382 Phil. 718 (2000).

29. People v. Rondero, 378 Phil. 123 (1999).

30. U.S. v. Tan Teng, 23 Phil. 145 (1912).

31. Villaflor v. Summers, 41 Phil. 62 (1920).

32. U.S. v. Ong Siu Hong, 36 Phil. 735 (1917).

33. U.S. v. Salas, 25 Phil. 337 (1913).

34. 109 Phil. 273 (1960).

35. Supra.

36. 354 Phil. 948 (1998).

37. Republic v. Sandiganbayan, et al., G.R. No. 104768, 21 July 2003, 407 SCRA 10; People v. Valdez, 363 Phil 481 (1999); Aniag v. Comelec, et al., G.R. No. 104961, 7 October 1994, 237 SCRA 424; MHP Garments v. CA, et al., G.R. No. 86720, 2 September 1994, 236 SCRA 227; 20th Century Fox v. Court of Appeals, et al., No. L-76649-51, 19 August 1988,

164 SCRA 655; People v. Burgos, 228 Phil. 1 (1986); Villanueva v. Querubin 150-C Phil. 519 (1972).

38. Waterous Drug v. NLRC, et al., 345 Phil. 982 (1997); Zulueta v. CA, et al., 324 Phil. 63 (1996).

39. Greco v. Coleman, 615 N.W. 2d 218 (Mich. 2000).

40. 181 Misc 2d 1033 (1999).

41. NYSCL, Ch. 686, Article 5, Part 1, Section 516.

42. NYSCL, Ch. 686, Article 5, Part 3, Section 532.

43. 752 So. 2d 1019 (Miss. 1999).

44. 273 AD 2d 919 (NY 2000).

45. Supra.

46. MCCLA 722.716 § 6.

47. 757 So. 2d 992 (Miss. 2000).

48. 615 N.W. 2d 533 (ND 2000).

49. 620 N.W.2d 606 (SD 2001).

50. 842 So. 2d 527 (Miss. 2003).

51. 843 So. 2d 720 (Miss. 2003).

52. Section 1, Rule 65, Rules of Court.

53. G.R. No. 129368, 25 August 2003, 409 SCRA 455.

3. Salcedo v. CA

SECOND DIVISION

[G.R. No. 110662. August 4, 1994.]

TERESITA SALCEDO-ORTANEZ, petitioner, vs. COURT OF APPEALS, HON. ROMEO F. ZAMORA, Presiding Judge, Br. 94, Regional Trial Court of Quezon city and RAFAEL S. ORTANEZ, respondents.

SYLLABUS

REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; NOT AVAILABLE TO CHALLENGE INTERLOCUTORY ORDER OF TRIAL COURT; EXCEPTION; CASE AT BAR. — The extraordinary writ of certiorari is generally not available to challenge an interlocutory order of a trial court. The proper remedy in such cases is an ordinary appeal from an adverse judgment, incorporating in said appeal the grounds for assailing the interlocutory order. However, where the assailed interlocutory order is patently erroneous and the remedy of appeal would not afford adequate and expeditious relief, the Court may allow certiorari as a mode of redress. In the present case, the trial court issued the assailed order admitting all of the evidence offered by private respondent, including tape recordings of telephone conversations of petitioner with unidentified persons. These tape recordings were made and obtained when private respondent allowed his friends from the military to wire tap his home telephone. Rep. Act No. 4200 entitled "An Act to Prohibit and Penalize Wire Tapping and other Related Violations of the Privacy of Communication, and for other purposes" expressly makes such tape recordings inadmissible in evidence. . . . . Clearly, respondents trial court and Court of Appeals failed to consider the afore-quoted provisions of the law in admitting in evidence the cassette tapes in question. Absent a clear showing that both parties to the telephone conversations allowed the recording of the same, the inadmissibility of the subject tapes is mandatory under Rep. Act No. 4200.

D E C I S I O N

PADILLA, J p:

This is a petition for review under Rule 45 of the Rules of Court which seeks to reverse the decision * of respondent Court of Appeals in CA-G.R. SP No. 28545 entitle "Teresita Salcedo-Ortanez versus Hon. Romeo F. Zamora, Presiding Judge, Br. 94, Regional Trial Court of Quezon City and Rafael S. Ortanez". prcd

The relevant facts of the case are as follows:

On 2 May 1990, private respondent Rafael S. Ortanez filed with the Regional Trial Court of Quezon City a complaint for annulment of marriage with damages against petitioner Teresita Salcedo-Ortanez, on grounds of lack of marriage license and/or psychological incapacity of the petitioner. The complaint was docketed as Civil Case No. Q-90-5360 and raffled to Branch 94, RTC of Quezon City presided over by respondent Judge Romeo F. Zamora.

Private respondent, after presenting his evidence, orally formally offered in evidence Exhibits "A" to "M"

Among the exhibits offered by private respondent were three (3) cassette tapes of alleged telephone conversations between petitioner and unidentified persons.

Petitioner submitted her Objection/Comment to private respondent's oral offer of evidence on 9 June 1992; on the same day, the trial court admitted all of private respondent's offered evidence. Cdpr

A motion for reconsideration from petitioner was denied on 23 June 1992.

A petition for certiorari was then filed by petitioner in the Court of Appeals assailing the admission in evidence of the aforementioned cassette tapes.

On 10 June 1993, the Court of appeals rendered judgment which is the subject of the present petition, which in part reads:

"It is much too obvious that the petition will have to fail, for two basic reasons:

(1) Tape recordings are not inadmissible per se. They and any other variant thereof can be admitted in evidence for certain purposes, depending on how they are presented and offered and on how the trial judge utilizes them in the interest of truth and fairness and the even handed administration of justice.

(2) A petition for certiorari is notoriously inappropriate to rectify a supposed error in admitting evidence adduced during trial. The ruling on admissibility is interlocutory; neither does it impinge on jurisdiction. If it is erroneous, the ruling should be questioned in the appeal from the judgment on the merits and not through the special civil action of certiorari. The error, assuming gratuitously that it exists, cannot be anymore than an error of law, properly correctible by appeal and not by certiorari. Otherwise, we will have the sorry spectacle of a case being subject of a counterproductive 'ping-pong' to and from the appellate court as often as a trial court is perceived to have made an error in any of its rulings with respect to evidentiary matters in the course of trial. This we cannot sanction.

WHEREFORE, the petition for certiorari being devoid of merit, is hereby DISMISSED". 1

From this adverse judgment, petitioner filed the present petition for review, stating: Cdpr

"Grounds for Allowance of the Petition"

"10. The decision of respondent [Court of Appeals] has no basis in law nor previous decisions of the Supreme Court.

10.1 In affirming the questioned order of respondent judge, the Court of Appeals has decided a question of substance not theretofore determined by the Supreme Court as the question of admissibility in evidence of tape recordings has not, thus, far, been addressed and decided squarely by the Supreme Court.

11. In affirming the questioned order of respondent judge, the Court of Appeals has likewise rendered a decision in a way not in accord with law and with applicable decisions of the Supreme Court.

11.1 Although the questioned order is interlocutory in nature, the same can still be [the] subject of a petition for certiorari." 2

The main issue to be resolved is whether or not the remedy of certiorari under Rule 65 of the Rules of Court was properly availed of by the petitioner in the Court of Appeals.

The extraordinary writ of certiorari is generally not available to challenge an interlocutory order of a trial court. The proper remedy in such cases is an ordinary appeal from an adverse judgment, incorporating in said appeal the grounds for assailing the interlocutory order. LLpr

However, where the assailed interlocutory order is patently erroneous and the remedy of appeal would not afford adequate and expeditious relief, the court may allow certiorari as a mode of redress. 3

In the present case, the trial court issued the assailed order admitting all of the evidence offered by private respondent, including tape recordings of telephone conversations of petitioner with unidentified persons. These tape recordings were made and obtained when private respondent allowed his friends from the military to wire tap his home telephone. 4

Rep. Act No. 4200 entitled "An Act to Prohibit and Penalize Wire Tapping and Other Related Violations of the Privacy of Communication, and for other purposes" expressly makes such tape recordings inadmissible in evidence. The relevant provisions of Rep. Act No. 4200 are as follows:

"Section 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape-recorder, or however otherwise described. . . ."

"Section 4. Any communication or spoken word, or the existence, contents, substance, purport, or meaning of the same or any part thereof, or any information therein contained, obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation."

Clearly, respondents trial court and Court of Appeals failed to consider the afore-quoted provisions of the law in admitting in evidence the cassette tapes in question. Absent a clear showing that both parties to the telephone conversations allowed to recording of the same, the inadmissibility of the subject tapes is mandatory under Rep. Act No. 4200. prLL

Additionally, it should be mentioned that the above-mentioned Republic Act in Section 2 thereof imposes a penalty of imprisonment of not less than six (6) months and up to six (6) years for violation of said Act. 5

We need not address the other arguments raised by the parties, involving the applicability of American jurisprudence, having arrived at the conclusion that the subject cassette tapes are inadmissible in evidence under Philippine law.

WHEREFORE, the decision of the Court of Appeals in CA-G.R. SP No. 28545 is hereby SET ASIDE. The subject cassette tapes are declared inadmissible in evidence.

SO ORDERED.

Narvasa, C.J., Regalado, Puno and Mendoza, JJ., concur.

Footnotes

* Penned by Justice Emeterio C. Culi with Justices Jainal D. Rasul and Alfredo G. Lagamon concurring.

1. Rollo, pp. 24-25.

2. Rollo, p. 11.

3. Marcelo v. de Guzman, G.R. No. L-29077, 29 June 1982, 114 SCRA 657.

4. TSN, 9 December 1992, p. 4.

5. "Sec. 2. Any person who wilfully or knowingly does or who shall aid, permit, or cause to be done any of the acts declared to be unlawful in the preceding section or who violates the provisions of the following section or of any order issued thereunder, or aids, permits, or causes such violation shall, upon conviction thereof, be punished by imprisonment for not less than six months or more than six years and with accessory penalty of perpetual absolute disqualification from public office if the offender be a public official at the time of the commission of the offense, and if the offender is an alien he shall be subject to deportation proceedings."

4. Gaanan v. IAC

SECOND DIVISION

[G.R. No. L-69809. October 16, 1986.]

EDGARDO A. GAANAN, petitioner, vs. INTERMEDIATE APPELLATE COURT and PEOPLE OF THE PHILIPPINES, respondents.

D E C I S I O N

GUTIERREZ, JR., J p:

This petition for certiorari asks for an interpretation of Republic Act (RA) No. 4200, otherwise known as the Anti-Wiretapping Act, on the issue of whether or not an extension telephone is among the prohibited devices in Section 1 of the Act, such that its use to overhear a private conversation would constitute unlawful interception of communications between the two parties using a telephone line.

The facts presented by the People and narrated in the respondent court's decision are not disputed by the petitioner.

"In the morning of October 22, 1975, complainant Atty. Tito Pintor and his client Manuel Montebon were in the living room of complainant's residence discussing the terms for the withdrawal of the complaint for direct assault which they filed with the Office of the City Fiscal of Cebu against Leonardo Laconico. After they had decided on the proposed conditions, complainant made a telephone call to Laconico (tsn, August 26, 1981, pp. 3-5).

"That same morning, Laconico telephoned appellant, who is a lawyer to come to his office and advise him on the settlement of the direct assault case because his regular lawyer, Atty. Leon Gonzaga, went on a business trip. According to the request, appellant went to the office of Laconico where he was briefed about the problem. (Exhibit 'D', tsn, April 22, 1982, pp. 4-5).

"When complainant called up, Laconico requested appellant to secretly listen to the telephone conversation through a telephone extension so as to hear personally the proposed conditions for the settlement. Appellant heard complainant enumerate the following conditions for withdrawal of the complaint for direct assault"

"(a) the P5,000.00 was no longer acceptable, and that the figure had been increased to P8,000.00. A breakdown of the P8,000.00 had been made together with other demands, to wit: (a) P5,000.00 no longer for the teacher Manuel Montebon, but for Atty. Pintor himself in persuading his client to withdraw the case for Direct Assault against Atty. Laconico before the Cebu City Fiscal's Office;

"(b) Public apology to be made by Atty. Laconico before the students of Don Bosco Technical High School;

"(c) P1,000.00 to be given to the Don Bosco Faculty club;

"(d) transfer of son of Atty. Laconico to another school or another section of Don Bosco Technical High School;

"(e) Affidavit of desistance by Atty. Laconico on the Maltreatment case earlier filed against Manuel Montebon at the Cebu City Fiscal's Office, whereas Montebon's affidavit of desistance on the Direct Assault Case against Atty. Laconico to be filed later;

"(f) Allow Manuel Montebon to continue teaching at the Don Bosco Technical School;

"(g) Not to divulge the truth about the settlement of the Direct Assault Case to the mass media;

"(h) P2,000.00 attorney's fees for Atty. Pintor. (tsn, August 26, 1981, pp. 47-48).

"Twenty minutes later, complainant called up again to ask Laconico if he was agreeable to the conditions. Laconico answered `Yes'. Complainant then told Laconico to wait for instructions on where to deliver the money. (tsn, March 10, 1983, pp. 2-12).

"Complainant called up again and instructed Laconico to give the money to his wife at the office of the then Department of Public Highways. Laconico who earlier alerted his friend Colonel Zulueta of the Criminal Investigation Service of the Philippine Constabulary, insisted that complainant himself should receive the money. (tsn, March 10, 1982, pp. 26-33). When he received the money at the Igloo Restaurant, complainant was arrested by agents of the Philippine Constabulary.

"Appellant executed on the following day an affidavit stating that he heard complainant demand P8,000.00 for the withdrawal of the case for direct assault. Laconico attached the affidavit of appellant to the complainant for robbery/extortion which he filed against complainant. Since appellant listened to the telephone conversation without complainant's consent, complainant charged appellant and Laconico with violation of the Anti-Wiretapping Act."

After trial on the merits, the lower court, in a decision dated November 22, 1982, found both Gaanan and Laconico guilty of violating Section 1 of Republic Act No. 4200. The two were each sentenced to one (1) year imprisonment with costs. Not satisfied with the decision, the petitioner appealed to the appellate court.

On August 16, 1984, the Intermediate Appellate Court affirmed the decision of the trial court, holding that the communication between the complainant and accused Laconico was private in nature and, therefore, covered by Rep. Act No. 4200; that the petitioner overheard such communication without the knowledge and consent of the complainant; and that the extension telephone which was used by the petitioner to overhear the telephone conversation between complainant and Laconico is covered in the term "device" as provided in Rep. Act No. 4200. LLphil

In this petition for certiorari, the petitioner assails the decision of the appellate court and raises the following issues; (a) whether or not the telephone conversation between the complainant and accused Laconico was private in nature; (b) whether or not an extension telephone is covered by the term "device or arrangement" under Rep. Act No. 4200; (c)

whether or not the petitioner had authority to listen or overhear said telephone conversation and (d) whether or not Rep. Act No. 4200 is ambiguous and, therefore, should be construed in favor of the petitioner.

Section 1 of Rep. Act No. 4200 provides:

"Section 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described;

It shall be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, that the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in Section 3 hereof, shall not be covered by this prohibition."

We rule for the petitioner.

We are confronted in this case with the interpretation of a penal statute and not a rule of evidence. The issue is not the admissibility of evidence secured over an extension line of a telephone by a third party. The issue is whether or not the person called over the telephone and his lawyer listening to the conversation on an extension line should both face prison sentences simply because the extension was used to enable them to both listen to an alleged attempt at extortion.

There is no question that the telephone conversation between complainant Atty. Pintor and accused Atty. Laconico was "private" in the sense that the words uttered were made between one person and another as distinguished from words between a speaker and a public. It is also undisputed that only one of the parties gave the petitioner the authority to listen to and overhear the caller's message with the use of an extension telephone line. Obviously, complainant Pintor, a member of the Philippine bar, would not have discussed the alleged demand for an P8,000.00 consideration in order to have his client withdraw a direct assault charge against Atty. Laconico filed with the Cebu City Fiscal's Office if he knew that another lawyer was also listening. We have to consider, however, that affirmance of the criminal conviction would, in effect, mean that a caller by merely using a telephone line can force the listener to secrecy no matter how obscene, criminal, or annoying the call may be. It would be the word of the caller against the listener's.

Because of technical problems caused by the sensitive nature of electronic equipment and the extra heavy loads which telephone cables are made to carry in certain areas, telephone users often encounter what are called "crossed lines". An unwary citizen who happens to pick up his telephone and who overhears the details of a crime might hesitate to inform police authorities if he knows that he could be accused under Rep. Act 4200 of using his own

telephone to secretly overhear the private communications of the would be criminals. Surely the law was never intended for such mischievous results. LibLex

The main issue in the resolution of this petition, however, revolves around the meaning of the phrase "any other device or arrangement." Is an extension of a telephone unit such a device or arrangement as would subject the user to imprisonment ranging from six months to six years with the accessory penalty of perpetual absolute disqualification for a public officer or deportation for an alien? Private secretaries with extension lines to their bosses' telephones are sometimes asked to use answering or recording devices to record business conversations between a boss and another businessman. Would transcribing a recorded message for the use of the boss be a proscribed offense? Or for that matter, would a "party line" be a device or arrangement under the law?

The petitioner contends that telephones or extension telephones are not included in the enumeration of "commonly known" listening or recording devices, nor do they belong to the same class of enumerated electronic devices contemplated by law. He maintains that in 1964, when Senate Bill No. 9 (later Rep. Act No. 4200) was being considered in the Senate, telephones and extension telephones were already widely used instruments, probably the most popularly known communication device.

Whether or not listening over a telephone party line would be punishable was discussed on the floor of the Senate. Yet, when the bill was finalized into a statute, no mention was made of telephones in the enumeration of devices "commonly known as a dictaphone or dictagraph, detectaphone or walkie talkie or tape recorder or however otherwise described." The omission was not a mere oversight. Telephone party lines were intentionally deleted from the provisions of the Act.

The respondent People argue that an extension telephone is embraced and covered by the term "device" within the context of the aforementioned law because it is not a part or portion of a complete set of a telephone apparatus. It is a separate device and distinct set of a movable apparatus consisting of a wire and a set of telephone receiver not forming part of a main telephone set which can be detached or removed and can be transferred away from one place to another and to be plugged or attached to a main telephone line to get the desired communication coming from the other party or end.

The law refers to a "tap" of a wire or cable or the use of a "device or arrangement" for the purpose of secretly overhearing, intercepting, or recording the communication. There must be either a physical interruption through a wiretap or the deliberate installation of a device or arrangement in order to overhear, intercept, or record the spoken words. LLpr

An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the other devices enumerated in Section 1 of RA No. 4200 as the use thereof cannot be considered as "tapping" the wire or cable of a telephone line. The telephone extension in this case was not installed for that purpose. It just happened to be there for ordinary office use. It is a rule in statutory construction that in order to determine the true intent of the legislature, the particular clauses and phrases of the statute should not be taken as detached and isolated expressions, but the whole and every part thereof must be considered in fixing the meaning of any of its parts. (see Commissioner of Customs v. Esso Estandard Eastern, Inc., 66 SCRA 113, 120).

In the case of Empire Insurance Company v. Rufino (90 SCRA 437, 443-444), we ruled:

"Likewise, Article 1372 of the Civil Code stipulates that `however general the terms of a contract may be, they shall not be understood to comprehend things that are distinct and cases that are different from those upon which the parties intended to agree.' Similarly, Article 1374 of the same Code provides that 'the various stipulations of a contract shall be interpreted together, attributing to the doubtful ones that sense which may result from all of them taken jointly.'

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"Consequently, the phrase `all liabilities or obligations of the decedent' used in paragraph 5(c) and 7(d) should be then restricted only to those listed in the Inventory and should not be construed as to comprehend all other obligations of the decedent. The rule that `particularization followed by a general expression will ordinarily be restricted to the former' is based on the fact in human experience that usually the minds of parties are addressed specially to the particularization, and that the generalities, though broad enough to comprehend other fields if they stood alone, are used in contemplation of that upon which the minds of the parties are centered. (Hoffman v. Eastern Wisconsin R., etc., Co., 134 Wis. 603, 607; 115 NW 383, cited in Francisco, Revised Rules of Court (Evidence), 1973 ed., pp. 180-181."

Hence, the phrase "device or arrangement" in Section 1 of RA No. 4200, although not exclusive to that enumerated therein, should be construed to comprehend instruments of the same or similar nature, that is, instruments the use of which would be tantamount to tapping the main line of a telephone. It refers to instruments whose installation or presence cannot be presumed by the party or parties being overheard because, by their very nature, they are not of common usage and their purpose is precisely for tapping, intercepting or recording a telephone conversation.

An extension telephone is an instrument which is very common especially now when the extended unit does not have to be connected by wire to the main telephone but can be moved from place to place within a radius of a kilometer or more. A person should safely presume that the party he is calling at the other end of the line probably has an extension telephone and he runs the risk of a third party listening as in the case of a party line or a telephone unit which shares its line with another. As was held in the case of Rathbun v. United States (355, U.S. 107, 2 L Ed 2d 137-138): prLL

"Common experience tells us that a call to a particular telephone number may cause the bell to ring in more than one ordinarily used instrument. Each party to a telephone conversation takes the risk that the other party may have an extension telephone and may allow another to overhear the conversation. When such takes place there has been no violation of any privacy of which the parties may complain. Consequently, one element of 605, interception, has not occurred."

In the same case, the Court further ruled that the conduct of the party would differ in no way if instead of repeating the message he held out his hand-set so that another could hear out of it and that there is no distinction between that sort of action and permitting an outsider to use an extension telephone for the same purpose.

Furthermore, it is a general rule that penal statutes must be construed strictly in favor of the accused. Thus, in case of doubt as in the case at bar, on whether or not an extension telephone is included in the phrase "device or arrangement", the penal statute must be construed as not including an extension telephone. In the case of People v. Purisima, 86 SCRA 542, 562, we explained the rationale behind the rule:

"American jurisprudence sets down the reason for this rule to be `the tenderness of the law of the rights of individuals; the object is to establish a certain rule by conformity to which mankind would be safe, and the discretion of the court limited. (United States v. Harris, 177 US 305, 44 L Ed 780, 20 S Ct 609; Braffith v. Virgin Islands (CA3) 26 F2d 646; Caudill v. State, 224 Ind 531, 69 NE2d 549; Jennings v. Commonwealth, 109 VA 821, 63 SE 1080, all cited in 73 Am Jur 2d 452.) The purpose is not to enable a guilty person to escape punishment through a technicality but to provide a precise definition of forbidden acts." (State v. Zazzaro, 20 A 2d 737, quoted in Martin's Handbook on Statutory Construction, Rev. Ed. pp. 183-184)."

In the same case of Purisima, we also ruled that in the construction or interpretation of a legislative measure, the primary rule is to search for and determine the intent and spirit of the law. A perusal of the Senate Congressional Records will show that not only did our lawmakers not contemplate the inclusion of an extension telephone as a prohibited "device or arrangement" but of greater importance, they were more concerned with penalizing the act of recording than the act of merely listening to a telephone conversation.

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Senator Tañada. Another possible objection to that is entrapment which is certainly objectionable. It is made possible by special amendment which Your Honor may introduce.

Senator Diokno. Your Honor, I would feel that entrapment would be less possible with the amendment than without it, because with the amendment the evidence of entrapment would only consist of government testimony as against the testimony of the defendant. With this amendment, they would have the right, and the government officials and the person in fact would have the right to tape record their conversation.

Senator Tañada. In case of entrapment, it would be the government.

Senator Diokno. In the same way, under this provision, neither party could record and, therefore, the court would be limited to saying: "Okay, who is more credible, the police officers or the defendant?" In these cases, as experienced lawyers, we know that the Court go with the peace offices.

(Congressional Record, Vol. III, No. 33, p. 628, March 12, 1964).

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Senator Diokno. The point I have in mind is that under these conditions, with an agent outside listening in, he could falsify the testimony and there is no way of checking it. But if you allow him to record or make a recording in any form of what is happening, then the chances of falsifying the evidence is not very much.

Senator Tañada. Your Honor, this bill is not intended to prevent the presentation of false testimony. If we could devise a way by which we could prevent the presentation of false testimony, it would be wonderful. But what this bill intends to prohibit is the use of tape record and other electronic devices to intercept private conversations which later on will be used in court.

(Congressional Record, Vol. III, No. 33, March 12, 1964, p. 629).

It can be readily seen that our lawmakers intended to discourage, through punishment, persons such as government authorities or representatives of organized groups from installing devices in order to gather evidence for use in court or to intimidate, blackmail or gain some unwarranted advantage over the telephone users. Consequently, the mere act of listening, in order to be punishable must strictly be with the use of the enumerated devices in RA No. 4200 or others of similar nature. We are of the view that an extension telephone is not among such devices or arrangements.

WHEREFORE, the petition is GRANTED. The decision of the then Intermediate Appellate Court dated August 16, 1984 is ANNULLED and SET ASIDE. The petitioner is hereby ACQUITTED of the crime of violation of Rep. Act No. 4200, otherwise known as the Anti-Wiretapping Act.

SO ORDERED.

Feria, Fernan, Alampay and Paras, JJ ., concur.

5. Ramirez v. CA

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

 

G.R. No. 93833 September 28, 1995

SOCORRO D. RAMIREZ, petitioner, vs.HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, respondents.

 

KAPUNAN, J.:

A civil case for damages was filed by petitioner Socorro D. Ramirez in the Regional Trial Court of Quezon City alleging that the private respondent, Ester S. Garcia, in a confrontation in the latter's office, allegedly vexed, insulted and humiliated her in a "hostile and furious mood" and in a manner offensive to petitioner's dignity and personality," contrary to morals, good customs and public policy." 1

In support of her claim, petitioner produced a verbatim transcript of the event and sought moral damages, attorney's fees and other expenses of litigation in the amount of P610,000.00, in addition to costs, interests and other reliefs awardable at the trial court's discretion. The transcript on which the civil case was based was culled from a tape recording of the confrontation made by petitioner. 2 The transcript reads as follows:

Plaintiff Soccoro D. Ramirez (Chuchi) — Good Afternoon M'am.

Defendant Ester S. Garcia (ESG) — Ano ba ang nangyari sa 'yo, nakalimot ka na kung paano ka napunta rito, porke member ka na, magus mbong ka kung ano ang gagawin ko sa 'yo.

CHUCHI — Kasi, naka duty ako noon.

ESG — Tapos iniwan no. (Sic)

CHUCHI — Hindi m'am, pero ilan beses na nila akong binalikan, sabing ganoon —

ESG — Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag explain ka, kasi hanggang 10:00 p.m., kinabukasan hindi ka na pumasok. Ngayon ako ang babalik sa 'yo, nag-aaply ka sa States, nag-aaply ka sa review mo, kung kakailanganin ang certification mo, kalimutan mo na kasi hindi ka sa akin makakahingi.

CHUCHI — Hindi M'am. Kasi ang ano ko talaga noon i-cocontinue ko up to 10:00 p.m.

ESG — Bastos ka, nakalimutan mo na kung paano ka pumasok dito sa hotel. Magsumbong ka sa Union kung gusto mo. Nakalimutan mo na kung paano ka nakapasok dito "Do you think that on your own makakapasok ka kung hindi ako. Panunumbyoyan na kita (Sinusumbatan na kita).

CHUCHI — Itutuloy ko na M'am sana ang duty ko.

ESG — Kaso ilang beses na akong binabalikan doon ng mga no (sic) ko.

ESG — Nakalimutan mo na ba kung paano ka pumasok sa hotel, kung on your own merit alam ko naman kung gaano ka "ka bobo" mo. Marami ang nag-aaply alam kong hindi ka papasa.

CHUCHI — Kumuha kami ng exam noon.

ESG — Oo, pero hindi ka papasa.

CHUCHI — Eh, bakit ako ang nakuha ni Dr. Tamayo

ESG — Kukunin ka kasi ako.

CHUCHI — Eh, di sana —

ESG — Huwag mong ipagmalaki na may utak ka kasi wala kang utak. Akala mo ba makukuha ka dito kung hindi ako.

CHUCHI — Mag-eexplain ako.

ESG — Huwag na, hindi ako mag-papa-explain sa 'yo, makaalala ka kung paano ka puma-rito. "Putang-ina" sasabi-sabihin mo kamag-anak ng nanay at tatay mo ang mga magulang ko.

ESG — Wala na akong pakialam, dahil nandito ka sa loob, nasa labas ka puwede ka ng hindi pumasok, okey yan nasaloob ka umalis ka doon.

CHUCHI — Kasi M'am, binbalikan ako ng mga taga Union.

ESG — Nandiyan na rin ako, pero huwag mong kalimutan na hindi ka makakapasok kung hindi ako. Kung hindi mo kinikilala yan okey lang sa akin, dahil tapos ka na.

CHUCHI — Ina-ano ko m'am na utang na loob.

ESG — Huwag na lang, hindi mo utang na loob, kasi kung baga sa no, nilapastangan mo ako.

CHUCHI — Paano kita nilapastanganan?

ESG — Mabuti pa lumabas ka na. Hindi na ako makikipagusap sa 'yo. Lumabas ka na. Magsumbong ka. 3

As a result of petitioner's recording of the event and alleging that the said act of secretly taping the confrontation was illegal, private respondent filed a criminal case before the Regional Trial Court of Pasay City for violation of Republic Act 4200, entitled "An Act to prohibit and penalize wire tapping and other related violations of private communication, and other purposes." An information charging petitioner of violation of the said Act, dated October 6, 1988 is quoted herewith:

INFORMATION

The Undersigned Assistant City Fiscal Accusses Socorro D. Ramirez of Violation of Republic Act No. 4200, committed as follows:

That on or about the 22nd day of February, 1988, in Pasay City Metro Manila, Philippines, and within the jurisdiction of this honorable court, the above-named accused, Socorro D. Ramirez not being authorized by Ester S. Garcia to record the latter's conversation with said accused, did then and there willfully, unlawfully and feloniously, with the use of a tape recorder secretly record the said conversation and thereafter communicate in writing the contents of the said recording to other person.

Contrary to law.

Pasay City, Metro Manila, September 16, 1988.

MARIANO M. CUNETAAsst. City Fiscal

Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the Information on the ground that the facts charged do not constitute an offense, particularly a violation of R.A. 4200. In an order May 3, 1989, the trial court granted the Motion to Quash, agreeing with petitioner that 1) the facts charged do not constitute an offense under R.A. 4200; and that 2) the violation punished by R.A. 4200 refers to a the taping of a communication by a person other than a participant to the communication. 4

From the trial court's Order, the private respondent filed a Petition for Review on Certiorari with this Court, which forthwith referred the case to the Court of Appeals in a Resolution (by the First Division) of June 19, 1989.

On February 9, 1990, respondent Court of Appeals promulgated its assailed Decision declaring the trial court's order of May 3, 1989 null and void, and holding that:

[T]he allegations sufficiently constitute an offense punishable under Section 1 of R.A. 4200. In thus quashing the information based on the ground that the facts alleged do not constitute an offense, the respondent judge acted in grave abuse of discretion correctible by certiorari. 5

Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration which respondent Court of Appeals denied in its Resolution 6 dated June 19, 1990. Hence, the instant petition.

Petitioner vigorously argues, as her "main and principal issue" 7 that the applicable provision of Republic Act 4200 does not apply to the taping of a private conversation by one of the parties to the conversation. She contends that the provision merely refers to the unauthorized taping of a private conversation by a party other than those involved in the communication. 8 In relation to this, petitioner avers that the substance or content of the conversation must be alleged in the Information, otherwise the facts charged would not constitute a violation of R.A. 4200. 9 Finally, petitioner agues that R.A. 4200 penalizes the taping of a "private communication," not a "private conversation" and that consequently, her act of secretly taping her conversation with private respondent was not illegal under the said act. 10

We disagree.

First, legislative intent is determined principally from the language of a statute. Where the language of a statute is clear and unambiguous, the law is applied according to its express terms, and interpretation would be resorted to only where a literal interpretation would be either impossible 11 or absurb or would lead to an injustice. 12

Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized Wire Tapping and Other Related Violations of Private Communication and Other Purposes," provides:

Sec. 1. It shall be unlawfull for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described.

The aforestated provision clearly and unequivocally makes it illegal for any person, not authorized by all the parties to any private communication to secretly record such communication by means of a tape recorder. The law makes no distinction as to whether the party sought to be penalized by the statute ought to be a party other than or different from those involved in the private communication. The statute's intent to penalize all persons unauthorized to make such recording is underscored by the use of the qualifier "any". Consequently, as respondent Court of Appeals correctly concluded, "even a (person) privy to a communication who records his private conversation with another without the knowledge of the latter (will) qualify as a violator" 13 under this provision of R.A. 4200.

A perusal of the Senate Congressional Records, moreover, supports the respondent court's conclusion that in enacting R.A. 4200 our lawmakers indeed contemplated to make illegal, unauthorized tape recording of private conversations or communications taken either by the parties themselves or by third persons. Thus:

xxx xxx xxx

Senator Tañada: That qualified only "overhear".

Senator Padilla: So that when it is intercepted or recorded, the element of secrecy would not appear to be material. Now, suppose, Your Honor, the

recording is not made by all the parties but by some parties and involved not criminal cases that would be mentioned under section 3 but would cover, for example civil cases or special proceedings whereby a recording is made not necessarily by all the parties but perhaps by some in an effort to show the intent of the parties because the actuation of the parties prior, simultaneous even subsequent to the contract or the act may be indicative of their intention. Suppose there is such a recording, would you say, Your Honor, that the intention is to cover it within the purview of this bill or outside?

Senator Tañada: That is covered by the purview of this bill, Your Honor.

Senator Padilla: Even if the record should be used not in the prosecution of offense but as evidence to be used in Civil Cases or special proceedings?

Senator Tañada: That is right. This is a complete ban on tape recorded conversations taken without the authorization of all the parties.

Senator Padilla: Now, would that be reasonable, your Honor?

Senator Tañada: I believe it is reasonable because it is not sporting to record the observation of one without his knowing it and then using it against him. It is not fair, it is not sportsmanlike. If the purpose; Your honor, is to record the intention of the parties. I believe that all the parties should know that the observations are being recorded.

Senator Padilla: This might reduce the utility of recorders.

Senator Tañada: Well no. For example, I was to say that in meetings of the board of directors where a tape recording is taken, there is no objection to this if all the parties know. It is but fair that the people whose remarks and observations are being made should know that the observations are being recorded.

Senator Padilla: Now, I can understand.

Senator Tañada: That is why when we take statements of persons, we say: "Please be informed that whatever you say here may be used against you." That is fairness and that is what we demand. Now, in spite of that warning, he makes damaging statements against his own interest, well, he cannot complain any more. But if you are going to take a recording of the observations and remarks of a person without him knowing that it is being taped or recorded, without him knowing that what is being recorded may be used against him, I think it is unfair.

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(Congression Record, Vol. III, No. 31, p. 584, March 12, 1964)

Senator Diokno: Do you understand, Mr. Senator, that under Section 1 of the bill as now worded, if a party secretly records a public speech, he would be penalized under Section 1? Because the speech is public, but the recording is done secretly.

Senator Tañada: Well, that particular aspect is not contemplated by the bill. It is the communication between one person and another person — not between a speaker and a public.

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(Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964)

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The unambiguity of the express words of the provision, taken together with the above-quoted deliberations from the Congressional Record, therefore plainly supports the view held by the respondent court that the provision seeks to penalize even those privy to the private communications. Where the law makes no distinctions, one does not distinguish.

Second, the nature of the conversations is immaterial to a violation of the statute. The substance of the same need not be specifically alleged in the information. What R.A. 4200 penalizes are the acts of secretly overhearing, intercepting or recording private communications by means of the devices enumerated therein. The mere allegation that an individual made a secret recording of a private communication by means of a tape recorder would suffice to constitute an offense under Section 1 of R.A. 4200. As the Solicitor General pointed out in his COMMENT before the respondent court: "Nowhere (in the said law) is it required that before one can be regarded as a violator, the nature of the conversation, as well as its communication to a third person should be professed." 14

Finally, petitioner's contention that the phrase "private communication" in Section 1 of R.A. 4200 does not include "private conversations" narrows the ordinary meaning of the word "communication" to a point of absurdity. The word communicate comes from the latin word communicare, meaning "to share or to impart." In its ordinary signification, communication connotes the act of sharing or imparting signification, communication connotes the act of sharing or imparting, as in a conversation, 15 or signifies the "process by which meanings or thoughts are shared between individuals through a common system of symbols (as language signs or gestures)" 16 These definitions are broad enough to include verbal or non-verbal, written or expressive communications of "meanings or thoughts" which are likely to include the emotionally-charged exchange, on February 22, 1988, between petitioner and private respondent, in the privacy of the latter's office. Any doubts about the legislative body's meaning of the phrase "private communication" are, furthermore, put to rest by the fact that the terms "conversation" and "communication" were interchangeably used by Senator Tañada in his Explanatory Note to the bill quoted below:

It has been said that innocent people have nothing to fear from their conversations being overheard. But this statement ignores the usual nature of conversations as well the undeniable fact that most, if not all, civilized people have some aspects of their lives they do not wish to expose. Free conversations are often characterized by exaggerations, obscenity, agreeable falsehoods, and the expression of anti-social desires of views not intended to be taken seriously. The right to the privacy of communication, among others, has expressly been assured by our Constitution. Needless to state here, the framers of our Constitution must have recognized the nature of conversations between individuals and the significance of man's spiritual nature, of his feelings and of his intellect. They must have known that part of the pleasures and satisfactions of life are to be found in the unaudited, and free exchange of communication between individuals — free from every unjustifiable intrusion by whatever means. 17

In Gaanan vs. Intermediate Appellate Court, 18 a case which dealt with the issue of telephone wiretapping, we held that the use of a telephone extension for the purpose of overhearing a private conversation without authorization did not violate R.A. 4200 because a telephone extension devise was neither among those "device(s) or arrangement(s)" enumerated therein, 19 following the principle that "penal statutes must be construed strictly in favor of the accused." 20 The instant case turns on a different note, because the applicable facts and circumstances pointing to a violation of R.A. 4200 suffer from no ambiguity, and the statute itself explicitly mentions the unauthorized "recording" of private communications with the use of tape-recorders as among the acts punishable.

WHEREFORE, because the law, as applied to the case at bench is clear and unambiguous and leaves us with no discretion, the instant petition is hereby DENIED. The decision appealed from is AFFIRMED. Costs against petitioner.

SO ORDERED.

Padilla, Davide, Jr. and Bellosillo JJ., concur.

Hermosisima, Jr., J., is on leave.

Footnotes

1 Docketed as Civil Case No. 88-403, Regional Trial Court, Makati, Branch 64.

2 Rollo, p. 48.

3 Rollo, pp. 47-48.

4 Rollo, p. 9.

5 Rollo, p. 37.

6 Rollo, p. 99, Annex "H".

7 Rollo, p. 13.

8 Id.

9 Rollo, p. 14.

10 Rollo, p. 14-15.

11 Pacific Oxygen and Acytelene Co. vs. Central Bank 37 SCRA 685 (1971).

12 Casela v. Court of Appeals, 35 SCRA 279 (1970).

13 Rollo, p. 33.

14 Rollo, p. 67.

15 WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 460 (1976).

16 Id.

17 CONGRESSIONAL RECORD, Vol. III, No. 31, at 573 (March 10, 1964).

18 145 SCRA 112 (1986). See also, Salcedo-Ortanez v. CA 235 SCRA 111 (1994).

19 Id., at 120.

20 Id., at 121.