G.R. No. 220149 - Concurring Opinion

G.R. No. 220149, July 27, 2021,
♦ Decision, Hernando, [J]
♦ Concurring Opinion, Perlas-Bernabe, [J]
♦ Concurring Opinion, Caguioa, [J]
♦ Concurring Opinion, Lazaro-Javier, [J]

[ G.R. No. 220149, July 27, 2021 ]

LUISITO G. PULIDO, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

CONCURRING OPINION

LAZARO-JAVIER, J.:

I humbly submit my views on the evolving jurisprudence on the first two elements of the crime of bigamy as defined and penalized in Article 349, of the Revised Penal Code.

Bigamy has been defined, as follows:

ARTICLE 349. Bigamy. — The penalty of prisión mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings.

The elements of this crime are: (a) the offender has been legally married; (b) the marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the [Family Code]; (c) that he contracts a second or subsequent marriage; and (d) the second or subsequent marriage has all the essential requisites for validity.1

The first element of bigamy must be
interpreted to allow an accused to prove
reasonable doubt as to its existence in the
same criminal case for bigamy where he or
she is being tried.

A. Elements of Bigamy

The first two elements of bigamy are: (a) the offender has been legally married; (b) the marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the [Family Code] .... For purposes of the present petition, they are the critical matters of substance we have to look into.

These first two elements of bigamy are derived from Article 349 which states in part "... before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings."

B. Second Element of Bigamy – Legally Dissolved

What does legally dissolved mean? Dissolution is the act of bringing to an end.2 Thus, "[u]nder contract law, dissolution is the cancellation or termination of a contract or other legal relationship by the parties. For example, dissolution of marriage."3

Dissolution is the result of any event or proceeding that terminates the marital bond – (i) a marriage ended by divorce obtained outside the Philippines where divorce is valid by the alien spouse,4 (ii) nullified marriage due to the absence of the essential or formal elements of marriage,5 or (iii) annulled marriage due to a defect in any of the essential requisites.6

The second element stresses the legal nature of the dissolution. This means that the dissolution should not only be factual but also "that which is according to law,"7 "deriving authority from or founded on law" or "established by law."8 Clearly, the second element of bigamy requires a legal act or proceeding that terminates the marriage and proves its termination.

Jurisprudence has it that a marriage ended by divorce or annulment should have been already legally ended before the second marriage was contracted. This timeline is important not only because it is mentioned in Article 349 but also because prior to the divorce or annulment, the married person has just no capacity to marry.

On the other hand, jurisprudence has vacillated with respect to null marriages. There are intertwined two issues:

(i) How and in what proceeding does one prove a null marriage?

(ii) Must the marriage be already nullified before the second marriage was contracted?

On the first issue, one school of thought equates a null marriage with a marriage ended by divorce or an annulled marriage. In the case of the last two, they require a direct proceeding for this purpose. For there is simply no remedy recognized in and by law whereby divorce or annulment is granted as a collateral issue in a proceeding principally involving another matter. This school of thought extends the rule to null marriages on account of Article 40, Family Code,9 which states:

ARTICLE 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. (n)

Another school of thought believes that a null marriage need not be proved by a judicial declaration of nullity of this marriage.10 The null marriage may be declared as such in the same proceeding where such declaration is necessary to determine the principal issue, such as in a criminal proceeding for bigamy – the declaration being merely for the purpose of determining the presence of the first two elements of this crime.

On the second issue, one school of thought holds that a null marriage ought already to be a legally determined fact prior to the celebration of the second marriage.11 This means that the nullity cannot be proved during the trial of the bigamy case but must be shown by a judicial decree of nullity obtained elsewhere.

A variation of this school of thought believes that it does not matter that the judicial decree of nullity was obtained after the celebration of the second marriage or even after the institution of the criminal case for bigamy,12 since its effect retroacts to the legally fictional beginning of time.

The opposing school of thought rejects altogether the idea that a judicial decree is the sole proof of a null marriage or that nullity cannot be proved in the same criminal case for bigamy. This school of thought champions the idea that (i) nullity can be established in the same criminal case for bigamy by evidence relevant to the claim of nullity, (ii) this nullity has the effect of proving that there was no valid marriage since the beginning of time, and (iii) thus it does not matter when the marriage is adjudged to be null whether before or after the second marriage was contracted.13

C. Justice Caguioa's Reflections

For his articulate and excellently argued reflections, the revered Justice Caguioa opines that a null marriage can be established in the same proceeding where the criminal case for bigamy is being tried. This means that a judicial declaration of nullity of marriage is not necessary to disprove elements one and two of bigamy. This supports the conclusion that on the basis of the meaning of Article 40 of the Family Code derived from both its text and original meaning - this judicial declaration is essential only for purposes of remarriage, not for defending oneself in a bigamy case.

D. My Reflections

The starting point in understanding the crime of bigamy, as in other crimes, is the basic rule of statutory construction that penal statutes are to be liberally construed in favor of the accused and that every reasonable doubt must then be resolved in favor of the accused. This means that:

.... the courts must not bring cases within the provision of a law that are not clearly embraced by it. In short, no act can be pronounced criminal unless it is clearly made so by statute prior to its commission (nullum crimen, nulla poena, sine lege). So, too, no person who is not clearly within the terms of a statute can be brought within them.14

The analytical tool refers to the words defining the crime and the elements of the crime inferred from these words. Hence, to determine one's liability for bigamy or any other crime, the acts and omissions attributed to the accused must be matched to the text of the penal law itself. The analysis must center on each of the elements of the crime. More, every element of the crime corresponding to its definition in the statute must be established beyond reasonable doubt.

I respectfully submit that our discourse here ought to focus on the first element of bigamy – the offender has been legally married; in other words, the prior marriage must be valid. This first element must be interpreted to allow an accused to prove reasonable doubt as to its existence in the same criminal case for bigamy where this accused is being tried.

Let me expound:

One. I agree that the text itself of Article 40 of the Family Code does not support the view that an accused charged with bigamy must prove the judicial declaration of nullity of the first marriage to be exculpated of this crime. It expressly requires the judicial declaration only for the purpose of remarriage.

Should this requirement be extended to a criminal prosecution for bigamy? There is nothing in the text to support making such an inference.

The text does not say and others or including remarriage to signal that the requirement can be demanded in other unmentioned circumstances.

Indeed –

It is a settled rule of statutory construction that the express mention of one person, thing, or consequence implies the exclusion of all others.

The rule is expressed in the familiar maxim, expressio unius est exclusio alterius.

The rule of expressio unius est exclusio alterius is formulated in a number of ways. One variation of the rule is the principle that what is expressed puts an end to that which is implied. Expressum facit cessare tacitum. Thus, where a statute, by its terms, is expressly limited to certain matters, it may not, by interpretation or construction, be extended to other matters.15

This ordinary and precise meaning of the text of Article 40 is bolstered by the two gentlemen's reference to the original intent of its framers behind this provision – which is to require the judicial declaration only for purposes of remarriage.

A further boost to this understanding of Article 40 is Article 53, Family Code, which declares a subsequent marriage void if it is celebrated without the judgment of absolute nullity of the prior marriage. Article 53 proves that Article 40 relates solely to the event of a remarriage, not to the crime of bigamy or a criminal case for this crime or any other crime for that matter.

Two. If at all, the requirement of a judicial declaration is found in the second element of bigamy – "the marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the [Family Code]," which is derived from Article 349's "... before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings."

In the case of an absent spouse, Article 349 expressly requires a negative averment and proof of a court declaration of absence or presumptive death prior to the celebration of the subsequent marriage.

In other situations involving null marriages, what Article 349 expressly requires is a negative averment and proof of the legal dissolution of the prior marriage obtained before the celebration of the subsequent marriage.

Legal dissolution happens only when there is a formal declaration to that effect. That declaration can only be made by a court of law.

To be sure, legal dissolution will not occur if the declaration is done only collaterally, such as when the cause of the legal dissolution is raised as a defense to some action.

For example, a marriage is not legally dissolved when a court declares who the heirs of a deceased are even though the court declares the marriage to be void in the course of that action, as the declaration was made only to resolve the principal issue of determining the identities of the deceased's heirs.

To illustrate further, in a criminal case for bigamy, a court's declaration that the prior marriage is void does not mean that the prior marriage has been "legally dissolved." The declaration was made solely to resolve the presence or absence of this element.

Hence, if we were to consider just the second element, an accused in a bigamy case, after the prosecution has proved the negative, i.e., that the prior marriage had not been legally dissolved, the burden of evidence shifts to the accused to prove that such legal dissolution had in truth taken place, the only evidence being the judicial declaration of a legal dissolution. Anything less will not prove a "legally dissolved" marriage.

To repeat, a marriage is not legally dissolved through a collateral declaration in a separate action that the marriage is void. This declaration may help in determining the principal issue, but this declaration will not cause the legal dissolution of the prior marriage.

Three. However, the second element is not the only consideration in deciding whether a judicial declaration is the only evidence an accused in a bigamy case can offer to disprove the prosecution's cause and obtain an acquittal.

Notably, there is also the first element – the offender has been legally married.

The first element means that the prior marriage is a valid marriage. As held in Lasanas v. People,16 citing Tenebro v. Court of Appeals,17 "[a] plain reading of [Article 349 of the Revised Penal Code], therefore, would indicate that the provision penalizes the mere act of contracting a second or subsequent marriage during the subsistence of a valid marriage."

Proof by the prosecution of the first element comes from the offer of the marriage certificate of the prior marriage. This is the prima facie evidence of the validity of this marriage. The burden of evidence shifts to the accused to disprove the validity of the marriage. The accused disproves the validity of the prior marriage by casting mere reasonable doubt thereon.

In practical terms, this means raising reasonable doubt on the absence of the formal or essential requisites or the presence of the other causes of a null marriage. Obviously, the reference must be to null marriages because annullable or voidable marriages or the fact of divorce for that matter presupposes the validity of the marriages until legally dissolved – absent a legal dissolution, the marriage remains valid and binding. On the other hand, a null marriage is void from the beginning of time.

The best evidence to prove the invalidity of the prior marriage is a judicial declaration of this marriage's nullity. But short of this best evidence, an accused in a bigamy case has the constitutional right to cast reasonable doubt on the prosecution evidence on the first element in the same criminal case the accused is being tried.

In criminal cases, the burden is upon the prosecution to prove every element of the crime charged beyond a reasonable doubt. The failure to do so even on a single element entitles the accused to an acquittal.

It is contrary to the Constitution to require an accused to disprove the first element of bigamy only by presenting a judicial declaration of the prior marriage's nullity. This is because the burden of an accused to achieve such result is just to cast reasonable doubt on the first element of this crime.

What is meant by proof beyond a reasonable doubt? Rule 133 of the Rules of Court defines this standard of proof:

SECTION 2. Proof Beyond Reasonable Doubt. - In a criminal case, the defendant is entitled to an acquittal, unless his guilt is shown beyond a reasonable doubt. Proof beyond a reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind.

In practice, there is proof beyond a reasonable doubt where the judge can conclude: "All the above, as established during trial, lead to no other conclusion than the commission of the crime as prescribed in the law."18 It involves asking these questions and getting answers to these questions:

From the prosecution evidence that the judge accepts, must the presence of each of the elements of the crime charged and therefore the conviction of the accused inevitably and logically follow as a matter of course?

Or, is there any other rational or reasonable explanation for the evidence that I accept than the presence of each of the elements of the crime charged or the accused's conviction for such crime?

Or, is there a doubt as to the existence of any of the elements of the crime charged that can be reasonably explained on account or on the basis of the evidence or lack of evidence of the Prosecution?

A judicial declaration is not the only means to disprove the first element. Admittedly though, it is the best evidence of the fact contrary to the first element. But a doubt provided it is reasonable is enough. In the words of a foreign case law:

I am in full agreement with the following conclusion of Wood J.A. (at p. 525):

With respect to those of a contrary view, it is difficult to think of a more accurate statement than that which defines reasonable doubt as a doubt for which one can give a reason, so long as the reason given is logically connected to the evidence. An inability to give such a reason for the doubt one entertains is the first and most obvious indication that the doubt held may not be reasonable. In this respect, I agree with the United States Court of Appeals, District of Columbia Circuit, in U.S. v. Dale, 991 F.2d 819 (1993) at p.853: "The instruction ... fairly convey[s] that the requisite doubt must be 'based on reason' as distinguished from fancy, whim or conjecture."

In the end, while recognizing that the perfect charge was unattainable, Wood J.A. none the less approved as a "constitution-ally sufficient definition of reasonable doubt" ordinarily sufficient to explain the standard of proof to juries, British Columbia Supreme Court Justice Murray's standard form of jury instructions (at pp. 541-2):

You will note that the Crown must establish the accused's guilt beyond a "reasonable doubt", not beyond "any doubt".ℒαwρhi৷ A reasonable doubt is exactly what it says -a doubt based on reason- on the logical processes of the mind. It is not a fanciful or speculative doubt, nor is it a doubt based upon sympathy or prejudice. It is the sort of doubt which, if you ask yourself "why do I doubt?"-you can assign a logical reason by way of an answer.

A logical reason in this context means a reason connected either to the evidence itself, including any conflict you may find exists after considering the evidence as a whole, or to an absence of evidence which in the circumstances of this case you believe is essential to a conviction.

.....

You must not base your doubt on the proposition that nothing is certain or impossible or that anything is possible. You are not entitled to set up a standard of absolute certainty and to say that the evidence does not measure up to that standard. In many things it is impossible to prove absolute certainty.19

Four. Applying these principles here, petitioner should be acquitted because the prior marriage has been shown to be a nullity, contrary to the first element of bigamy. The evidence on this is a judgment declaring the nullity of the prior marriage. This is the best evidence to prove the failure of the prosecution to prove the first element beyond a reasonable doubt. Any other relevant and admissible evidence offered in the same criminal proceeding for bigamy would have also disestablished the prosecution's claim of the validity of the prior marriage.

It also does not matter that the judgment came only after the celebration of the subsequent bigamous marriage and during the pendency of the present criminal case. For the cause of the invalidity of the prior marriage is one that makes it void from the beginning of time. Its nullity retroacts to that point in time and thus establishes the absence of a subsisting valid marriage.

E. Conclusion

It appears surreal to me that the discussion on bigamy has taken a life of its own quite unlike the standard analysis in criminal cases. Instead of examining each of the elements of this crime, as defined in Article 349, the discourse from the past till today has focused on the impact of Article 40 of the Family Code.

To be sure, Article 40, as ably argued by Justice Caguioa, is not and has never been dispositive of this issue in the prosecution of bigamy cases.1aшphi1 The history, original intent, text and related provision of Article 40 point to its relevance only for the purpose of remarriage.

However, the second element of bigamy, as supported by the clear wording of Article 349, requires a negative averment and proof of the legal dissolution of the prior marriage or the judgment of presumptive death or absence in the case of absentees. Thus, to disprove the second element, an accused would be hard-pressed to produce that legal dissolution which would only mean the court judgment or decree of dissolution. This is because legal dissolution cannot take place by means of a mere collateral declaration.

Nonetheless, the first element of bigamy requires the validity of the prior marriage. In disestablishing this first element, an accused may adduce in the same criminal case for bigamy evidence that would cast reasonable doubt on its existence. The evidence need not be a judicial declaration though this is indeed the best evidence. It could be any relevant and admissible evidence proving any of the causes of a null marriage. This is a constitutional right of an accused owing to the standard of proof in criminal cases, the burden of the prosecution to discharge this standard of proof, and the corollary presumption of innocence in favor of the accused. This right cannot be taken away from an accused such as when this Court has interpreted Article 40 the way it has.

A last point. Much has been said about the difference between the Article 349 and Article 350 of The Revised Penal Code. These penal provisions each state:

Article 349 Article 350

ARTICLE 349. Bigamy. - The penalty of prisión mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings. ARTICLE 350. Marriage Contracted Against Provisions of Laws. - The penalty of prisión correccional in its medium and maximum periods shall be imposed upon any person who, without being included in the provisions of the next preceding article, shall contract marriage knowing that the requirements of the law have not been complied with or that the marriage is in disregard of a legal impediment.

If either of the contracting parties shall obtain the consent of the other by means of violence, intimidation or fraud, he shall be punished by the maximum period of the penalty provided in the next preceding paragraph.

I respectfully submit that the glaring difference between them is the presence of at least two successive marriages in Article 349, which would not be the situation in Article 350.

While both would involve at least one defective marriage, Article 349 entails more than one marriage.

Thus, a person who marries another without first obtaining a judicial declaration of nullity of that person's prior marriage would potentially be captured by both Articles 349 and 350.

However, it is the prosecution's lookout if the person could prove the invalidity of the prior marriage on causes attributable to null marriages, contrary to the first element of bigamy.

On the other hand, a prosecution under Article 350 will not have to deal with such complications because the knowing non-compliance with the legal requirements when the person contracts the subsequent marriage would be enough to find them20 guilty.

Respectfully submitted.

Footnotes

1 Sarto v. People, 826 Phil. 745 (2018).

2 US Legal, US Legal.com at https://definitions.uslegal.com/d/dissolution/ (last accessed July 2, 2021).

3 Id.

4 Sarto v. People, supra note 1.

5 See e.g., Family Code, Articles 4, 35-38, 41, 40 in relation to 53.

6 Id., Articles 4, 45.

7 The Free Dictionary by Farlex at https://legal-dictionary.thefreedictionary.com/legal (last accessed on July 2, 2021).

8 Merriam-Webster at https://www.merriam-webster.com/dictionary/legal (last accessed on July 2, 2021).

9 See e.g., Vitangcol v. People, 778 Phil. 326 (2016).

10 See e.g., Castillo v. De Leon Castillo, 784 Phil 667 (2016); People v. Aragon, 100 Phil. 1033 (1957).

11 See e.g., Vitangcol v. People, supra note 9.

12 See e.g., the ponencia.

13 See e.g., People v. Mendoza, 95 Phil. 845 (1954).

14 Causing v. Commission on Elections, 742 Phil. 539 (2014).

15 Malinias v. Commission on Elections, 439 Phil. 326, 335 (2002).

16 736 Phil. 734 (2014).

17 467 Phil. 723 (2004).

18 761 Phil. 356 (2015).

19 R. v. Lifchus, 1996 CanLII 6631 (MB CA), < http://canlii.ca/t/1npkc >. last accessed on July 2, 2021.

20 I purposely used "them" to reflect gender neutrality and be inclusive of all forms of gender association or non-association or different associations, i.e., male, female undetermined, unaffiliated, ungendered.

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