“x x x.
1. Today, xxx, 2013, the petitioner, by counsel, received a duplicate original copy of the ORDER, dated xxx, 2013, of
Judge xxx of RTC, Branch xxx, Xxx City, a legible duplicate original copy of which, as received on xxx,
2013 by the petitioner, thru his undersigned counsel, together with its original improvised letter envelope, are marked
as Annexes ”A” to “A-2” hereof, supra.
The questioned Order is quoted in full below, to wit:
“O R D E R
Petitioner filed the
present case pursuant to Rule 108 of the Rules of Court seeking the deletion of
all the details on “Father” entered in the Certificate of Live Birth of the
minor x x x, alleging that said minor is not his child.
A perusal of the allegations of the
petition shows that it is an action to impugn the legitimacy of the minor
child. Thus, it should have been filed
under Articles 166 to 170 of the Family Code which refer to an action directly
impugning the legitimacy of a child.
Even if the court should consider the
present petition as filed under the aforementioned provisions of the Family
Code, it should not prosper just the same on the ground of prescription. Article 170 of the Family Code provides, to
wit:
“Art. 170. The action to impugn the legitimacy of the
child shall be brought within one year from the knowledge of the birth or its
recording in the civil register, if the husband or, in a proper case, any of
his heirs, should reside in the city or municipality where the birth took place
or was recorded.
If the husband or, in
his default, all of his heirs do not reside at the place of birth as defined in
the first paragraph or where it was recorded, the period shall be two years if
they should reside in the Philippines; and three years if abroad. If the birth of the child has been concealed
from or was unknown to the husband or his heirs, the period shall be counted
from the discovery or knowledge of the
birth of the child or of the fact of registration of said birth, whichever is
earlier.
The minor xxx was born on xxx and his
facts of birth were registered with the Local Civil Registrar of xxx City, xxx
on xxx. Thus, petitioner only had until xxx,
2011, at the latest, to file the necessary action to impugn the legitimacy of
the minor child. The present case,
however, was filed only on xxx, 2013.
WHEREFORE, the petition is hereby DISMISSED,
for not being the proper remedy and on the ground of prescription.
SO ORDERED”.
It will be noted that under Sec. 1, Rule 109 (APPEALS IN SPECIAL PROCEEDINGS), in re: Orders
or judgments from which appeals may be taken, it is provided that an interested person may appeal in special
proceedings from an order or judgment rendered by a Regional Trial Court, where such order or judgment, inter alia, “(f)
Is the final order or judgment rendered in the case, and affects the
substantial rights of the person appealing, unless it be an order granting or
denying a motion for a new trial or for reconsideration.”
X x x.
THE SOLE AND PURELY LEGAL ISSUE
RAISED IN THE PETITION
2.
The sole purely legal issue raised in this petition
is as follows:
WHETHER OR NOT THE ORDER, DATED xxx,
2013, OF THE TRIAL COURT SHOULD BE UPHELD BY THIS HONORABLE COURT.
Otherwise stated, the sole purely legal issue is as follows:
WHETHER OR NOT RULE 108 WAS A PROPER REMEDY WHEN THE PERIOD PROVIDED IN
ARTICLE 170 OF THE FAMILY CODE (TO IMPUGN THE LEGITIMACY OF A CHILD) HAD
EXPIRED.
REASONS AND ARGUMENTS RELIED UPON
FOR THE ALLOWANCE OF THE PETITION
3. There is no question that Art. 170 of the Family Code provides that “he action to impugn the
legitimacy of the child shall be brought within one year from the knowledge of
the birth or its recording in the civil register, if the husband or, in a
proper case, any of his heirs, should reside in the city or municipality where
the birth took place or was recorded”; that “if the husband or, in his default,
all of his heirs do not reside at the place of birth as defined in the first
paragraph or where it was recorded, the period shall be two years if they
should reside in the Philippines; and three years if abroad”; that “if the
birth of the child has been concealed from or was unknown to the husband or his
heirs, the period shall be counted from the discovery or knowledge of the birth of the child or of
the fact of registration of said birth, whichever is earlier.”
4. Rule 108 is a special remedy or proceeding allowed by the Supreme Court
to remedy an INJUSTICE and to promote NATURAL JUSTICE AND EQUITY, as in the case of Art. 170, supra, where the period allowed to impugn the legitimacy of a child
had expired. Rule 108 is NOT INCOMPATIBLE with Art. 170 insofar as available
procedural remedies under the Rules of Court are concerned. Otherwise, the
Petitioner would be denied of his basic rights to DUE PROCESS OF LAW, EQUAL PROTECTION OF THE LAW, and ACCESS TO
THE COURTS to seek a judicial remedy
for an injustice he has suffered and continues to suffer. If we follow the
logic of the trial court, the petitioner is now forced and indeed has no other fair
and equitable choice and option but to honor and recognize a child who is not
his biological child, per the initial DNA test conducted for the purpose, the
same to be maintained by him as a part of his genetic, hereditary and historical bloodline and his very own future,
with all its adverse biological, economic, and sociological consequences.
5. Rule 108 provides that “any person interested in any act, event, order or decree concerning the civil status of persons which has been
recorded in the civil register, may file a verified petition for the
cancellation or correction of any entry relating thereto, with the Regional
Trial Court of the province where the corresponding civil registry is located”
(Sec.1) ; that “entries subject to
cancellation or correction.—Upon good and valid grounds, the following entries
in the civil register may be cancelled or corrected: (a) births; (b) marriages;
(c) deaths; (d) legal separations; (e) judgments of annulments of marriage;
(f) judgments declaring marriages
void from the beginning; (g)
legitimations; (h) adoptions; (i) acknowledgments of natural children; (j)
naturalization; (k) election, loss or recovery of citizenship; (1) civil
interdiction; (m) judicial determination of filiation; (n) voluntary
emancipation of a minor; and (o) changes of name” (Sec. 2); that “when
cancellation or correction of an entry in the civil register is sought, the
civil registrar and all persons who have or claim any interest which would be
affected thereby shall be made parties to the proceeding” (Sec. 3); that “upon
the filing of the petition, the court shall, by an order, fix the time and
place for the hearing of the same, and cause reasonable notice thereof to be
given to the persons named in the petition” and that ”the court shall also
cause the order to be published once a week for three (3) consecutive weeks in
a newspaper of general circulation in the province” (Sec.4); that “the civil
registrar and any person having or claiming any interest under the entry whose
cancellation or correction is sought may, within fifteen (15) days from notice
of the petition, or from the last date of publication of such notice, file his
opposition thereto” (Sec. 5); that “the court in which the proceedings is
brought may make orders expediting the proceedings, and may also grant
preliminary injunction for the preservation of the rights of the parties
pending such proceedings” (Sec. 6); and that “after hearing, the court may either dismiss the petition or issue an
order granting the cancellation or correction prayed for” and that “in
either case, a certified copy of the judgment shall be served upon the civil
registrar concerned who shall annotate the same in his record”. (Sec. 7).
6. The 2001 case of “MARCELO
LEE, ALBINA LEE-YOUNG,
MARIANO LEE, PABLO LEE, HELEN LEE, CATALINO K. LEE, EUSEBIO LEE, EMMA LEE, and
TIU CHUAN, petitioners, vs. COURT OF APPEALS and
HON. LORENZO B. VENERACION and HON. JAIME T. HAMOY, in their capacities as
Presiding Judge of Branch 47, Regional Trial Court of Manila and Branch 130,
Regional Trial Court of Kalookan City, respectively and RITA K. LEE, et. al., G.R. No. 118387, October 11, 2001” is instructive.
In the
said case, the Petitioners contended that resort to Rule 108 of the Revised
Rules of Court was improper since private respondents sought to have the entry
for the name of petitioners’ mother changed from “Keh Shiok Cheng” to “Tiu
Chuan” who was a completely different
person. What
private respondents therefore sought was not merely a correction in name but a
declaration that petitioners were not born of Lee Tek Sheng’s legitimate wife,
Keh Shiok Cheng, but of his mistress, Tiu Chuan, in effect a “bastardization of
petitioners.”[16] Petitioners
thus label private respondents’ suits before the lower courts as a collateral
attack against their legitimacy in the guise of a Rule 108 proceeding.
Debunking
petitioners’ above contention, the Court of Appeals observed that the
proceedings were simply aimed at establishing a particular fact, status and/or
right. Stated differently, the thrust of said proceedings was to
establish the factual truth regarding the occurrence of certain events which
created or affected the status of persons and/or otherwise deprived said
persons of rights.
The Court
held: “It is precisely the province of a special proceeding such as the one
outlined under Rule 108 of the Revised Rules of Court to establish the status
or right of a party, or a particular fact. The petitions filed by private
respondents for the correction of entries in the petitioners’ records of birth
were intended to establish that for physical and/or biological reasons it was
impossible for Keh Shiok Cheng to have conceived and given birth to the
petitioners as shown in their birth records. Contrary to
petitioners’ contention that the petitions before the lower courts were
actually actions to impugn legitimacy, the prayer therein is not to declare
that petitioners are illegitimate children of Keh Shiok Cheng, but to establish
that the former are not the latter’s children. There is nothing to
impugn as there is no blood relation at all between Keh Shiok Cheng and
petitioners.”
Further
sanctioning private respondents’ resort to Rule 108, the Court of Appeals
adverted to a ruling of the Supreme Court in the leading case of Republic
vs. Valencia, 141 SCRA 462
(1986), where the Supreme Court affirmed the decision of Branch XI of the
then Court of First Instance (CFI) of Cebu City ordering the correction in the
nationality and civil status of petitioner’s minor children as stated in their
records of birth from “Chinese” to “Filipino”, and “legitimate” to
“illegitimate”, respectively. Although recognizing that the changes
or corrections sought to be effected were not mere clerical errors of a
harmless or innocuous nature, the Court, sitting en banc, held
therein that even substantial errors in a civil register may be corrected and
the true facts established provided the parties aggrieved by the error avail
themselves of the appropriate adversary proceeding. In the
said case, the Supreme Court also laid down the rule “that a proceeding for
correction and/or cancellation of entries in the civil register under Rule 108
ceases to be summary in nature and takes on the characteristics of an appropriate
adversary proceeding when all the procedural requirements under Rule
108 are complied with.”
The
petitioners assert, however, that making the proceedings adversarial does not
give trial courts the license to go beyond the ambit of Rule 108 which is
limited to those corrections contemplated by
Article 412 of the New
Civil Code or mere clerical errors of a harmless or innocuous nature.[24] The
petitioners point to the case of Labayo-Rowe vs. Republic,[25] which
is of a later date than Republic vs. Valencia,[26] where
this Court reverted to the doctrine laid down in earlier cases,[27] starting
with Ty Kong Tin vs. Republic,[28]prohibiting
the extension of the application of Rule 108 beyond innocuous or harmless
changes or corrections. Petitioners contend that as held in Go, et al.
vs. Civil Registrar,[29] allowing
substantial changes under Rule 108 would render the said rule unconstitutional
as the same would have the effect of increasing or modifying substantive
rights.
The
Supreme Court pointed out that in the cited case of Labayo-Rowe vs.
Republic,[30] the
reason it declared null and void the portion of the lower court’s order
directing the change of Labayo-Rowe’s civil status and the filiation of one of
her children as appearing in the latter’s record of birth, is not because Rule
108 was inappropriate to effect such changes, but because Labayo-Rowe’s
petition before the lower court failed to implead all indispensable parties to
the case.
Far from
petitioners’ theory, the Court’s ruling in Labayo-Rowe vs. Republic[32] “did
not exclude recourse to Rule 108 of the Revised Rules of Court to effect
substantial changes or corrections in entries of the civil register.” The
Court added that “the only requisite is that the proceedings under Rule 108 be
an appropriate adversary proceeding as contra-distinguished
from a summary proceeding.”
The Court
held that while it is true that in special proceedings formal pleadings and a
hearing may be dispensed with, and the remedy granted upon mere application or
motion. But this is not always the case, as when the statute
expressly provides.[34] Hence,
a special proceeding is not always summary, the Court stated. One
only has to take a look at the procedure outlined in Rule 108 to see that what
is contemplated therein is not a summary proceeding per se. It
held that: “Rule 108 requires publication of the petition three (3) times,
i.e., once a week for three (3) consecutive weeks (Sec. 4). The Rule also
requires inclusion as parties of all persons who claim any interest which would
be affected by the cancellation or correction (Sec. 3). The civil
registrar and any person in interest are also required to file their
opposition, if any, within fifteen (15) days from notice of the petition, or
from the last date of publication of such notice (Sec. 5). Last, but
not the least, although the court may make orders expediting the proceedings,
it is after hearing that the court shall either dismiss the petition or issue
an order granting the same (Sec. 7).”
The Court
added: “It is beyond doubt that the specific matters covered by the preceding
provisions include not only status but also nationality. Therefore, the Ty
Kong Tin pronouncement that Article 412 does not contemplate matters
that may affect civil status, nationality or citizenship is
erroneous. This interpretation has the effect of isolating
Article 412 from the rest
of the articles in Title XVI, Book I of the New Civil Code, in clear
contravention of the rule of statutory construction that a statute must always
be construed as a whole such that the particular meaning to be attached to any
word or phrase is ascertained from the context and the nature of the subject
treated.[46].”
Thirdly,
Republic Act No. 9048[47] which
was passed by Congress on February 8, 2001 substantially amended Article 412 of
the New Civil Code, to wit:
“SECTION 1. Authority
to Correct Clerical or Typographical Error and Change of First Name or
Nickname.- No entry in a civil register shall be changed or corrected
without a judicial order, except for clerical or typographical errors and
change of first name or nickname which can be corrected or changed by the
concerned city or municipal civil registrar or consul general in accordance
with the provisions of this Act and its implementing rules and regulations.”
The above
law speaks clearly. Clerical or typographical errors in entries of
the civil register are now to be corrected and changed without need of a
judicial order and by the city or municipal civil registrar or consul
general. The obvious effect is to remove from the ambit of Rule 108
the correction or changing of such errors in entries of the civil
register. Hence, what is left for the scope of operation of Rule 108
are substantial changes and corrections in entries of the civil register. This
is precisely the opposite of what Ty Kong Tin and other cases
of its genre had said, perhaps another indication that it was
not sound doctrine after all.”
The Court
also held that: “It may be very well said that Republic Act No. 9048 is
Congress’ response to the confusion wrought by the failure to delineate as to
what exactly is that so-called summary procedure for changes
or corrections of a harmless or innocuous nature as distinguished from that appropriate
adversary proceeding for changes or corrections of a substantial
kind. For we must admit that though we have constantly referred to
an appropriate adversary proceeding, we have failed to
categorically state just what that procedure is. Republic Act No.
9048 now embodies that summary procedure while Rule 108 is
that appropriate adversary proceeding. Be that as it
may, the case at bar cannot be decided on the basis of Republic Act No. 9048
which has prospective application. Hence, the necessity for the
preceding treatise.”
On another point, the Court
in the abovecited case held that Article 171 of the Family Code showed that it applied to instances in which the
father impugned the legitimacy of his wife’s child. The provision,
however, presupposes that
the child was the undisputed offspring of the mother. It added: “The present case alleges and shows that
Hermogena did not give birth to petitioner. In other words, the
prayer therein is not to declare that petitioner is an illegitimate child of
Hermogena, but to establish that the former is not the latter’s child at all. x
x x.”[51]
Similarly,
in Benitez-Badua vs. Court of Appeals[52],
the Court held that Articles 164, 166, 170 and 171 of the Family Code were
inapplicable.
It stated
that: “A careful reading of the above articles will show that they do not
contemplate a situation, like in the instant case, where a child is alleged not
be the child of nature or biological child of a certain couple. Rather,
these articles govern a situation where a husband (or his heirs) denies as his
own a child of his wife. Thus, under Article 166, it is the husband
who can impugn the legitimacy of said child by proving: (1) it was physically
impossible for him to have sexual intercourse, with his wife within the first
120 days of the 300 days which immediately preceded the birth of the child; (2)
that for biological or other scientific reasons, the child could not have been
his child; (3) that in case of children conceived through artificial
insemination, the written authorization or ratification by either parent was
obtained through mistake, fraud, violence, intimidation or undue
influence. Articles 170 and 171 reinforce this reading as they speak
of the prescriptive period within which the husband or any of his heirs should
file the action impugning the legitimacy of said child. Doubtless
then, the appellate court did not err when it refused to apply these articles
to the case at bench. For the case at bench is not one where the
heirs of the late Vicente are contending that petitioner is not his child by
Isabel. Rather, their clear submission is that petitioner was not born to
Vicente and Isabel.”
The
Court’s ruling in Cabatbat-Lim vs. Intermediate Appellate Court, 166 SCRA 451,
457, was apropos, viz: “Petitioners’
recourse to Article 263 of the New Civil Code [now Art. 170 of the Family Code]
is not well taken. This legal provision refers to an action to
impugn legitimacy. It is inapplicable to this case because this is
not an action to impugn the legitimacy of a child, but an action of the private
respondents to claim their inheritance as legal heirs of their childless
deceased aunt. They do not
claim that petitioner Violeta Cabatbat Lim is an illegitimate child of the
deceased, but that she is not the decedent’s child at all. Being
neither legally adopted child, nor an acknowledged natural child, nor a child
by legal fiction of Esperanza Cabatbat, Violeta is not a legal heir of the
deceased.’”[53]
On a
final point, the Court said the Petitioners claimed that private respondents’
cause of action had already prescribed
as more than five (5) years had lapsed between the registration of the latest
birth among the petitioners in 1960 and the filing of the actions in December
of 1992 and February of 1993.[54].
The Court disagreed.
The Court
held: “As correctly pointed out by the Court of Appeals, inasmuch as no law or
rule specifically prescribes a fixed time for filing the special proceeding
under Rule 108 in relation to Article 412 of the New Civil Code, it is the
following provision of the New Civil Code that applies: “Art. 1149. All
other actions whose periods are not fixed in this Code or in other laws must be
brought within five years from the time the right of action accrues.”
The Court
stated: “The right of action accrues when there exists a cause of action, which
consists of three (3) elements, namely: a) a right in favor of the plaintiff by
whatever means and under whatever law it arises or is created; b) an obligation
on the part of the defendant to respect such right; and c) an act or omission
on the part of such defendant violative of the right of the plaintiff. It
is only when the last element occurs or takes place that it can be said in law
that a cause of action has arisen.[55].”
The Court
continued: “It is indubitable that private respondents have a cause of
action. The last element of their cause of action, that is, the act
of their father in falsifying the entries in petitioners’ birth records,
occurred more than thirty (30) years ago. Strictly speaking, it was
upon this occurrence that private respondents’ right of action or right to sue
accrued. However, we must take into account the fact that it was
only sometime in 1989 that private respondents discovered that they in fact had
a cause of action against petitioners who continue to use said falsified birth
records.”
The Court
stressed: “Hence, it would result in
manifest injustice if we were to deprive private respondents of their right to
establish the truth about a fact, in this case, petitioners’ true mother, and
their real status, simply because they had discovered the dishonesty
perpetrated upon them by their common father at a much later
date. This is especially true in the case of private respondents
who, as their father’s legitimate children, did not have any reason to suspect
that he would commit such deception against them and deprive them of their sole
right to inherit from their mother’s (Keh Shiok Cheng’s) estate. It
was only sometime in 1989 that private respondents’ suspicions were aroused and
confirmed. From that time until 1992 and 1993, less than five (5)
years had lapsed.”
The Court
added: “Petitioners would have us reckon the five-year prescriptive period from
the date of the registration of the last birth among the petitioners-siblings
in 1960, and not from the date private respondents had discovered the false
entries in petitioners’ birth records in 1989. Petitioners base
their position on the fact that birth records are public documents, hence, the
period of prescription for the right of action available to the private
respondents started to run from the time of the registration of their birth
certificates in the Civil Registry. We cannot agree with petitioners’ thinking
on that point. It is true that the books making up the Civil Register and all
documents relating thereto are public documents and shall be prima
facie evidence of the facts therein contained.[56] Petitioners
liken their birth records to land titles, public documents that serve as notice
to the whole world. Unfortunately
for the petitioners, this analogy does not hold water. Unlike a
title to a parcel of land, a person’s parentage cannot be acquired by
prescription. One is either born of a particular mother or
not. It is that simple.”
RELIEF
WHEREFORE, premises considered, it is respectfully prayed
that the questioned Order, dated xxx, 2013, of the trial court be reversed and set aside and that the original
case below be revived to proceed on the
merits thereof following the procedures set by Rule 108.
FURTHER, the
petitioner prays for such and other reliefs as may be deemed just and equitable
in the premises.
Las Pinas City, xxx, 2013.
LASERNA
CUEVA-MERCADER
& ASSOCIATES LAW
OFFICES
Counsel for the Petitioner
Unit 15, Star Arcade, C. V. Starr Avenue
Philamlife Village, Las Pinas City
Tel. Nos. 872-5443; 846-2539
Fax No. 846-2539
X x x.”
