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.

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,

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.

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."

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,

(ii)

nullified marriage

due to the absence of the essential or formal elements of marriage,

or (iii)

annulled marriage

due to a defect in any of the essential requisites.

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

"deriving authority from or founded on law

" or "

established by law

Clearly, the

second element

of bigamy requires a

legal act

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

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

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

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.

This means that the

nullity cannot be proved during

the trial of the bigamy case but

must be shown by

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,

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.

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

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

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.

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.

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.

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,

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

presumptive death

prior to the celebration of the subsequent marriage.

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

citing

Tenebro v. Court of Appeals

"[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.

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

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."

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?

judicial declaration

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

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".

reasonable doubt

is exactly what it says -

a doubt based on reason

- on the

logical processes of the mind

. It is

not a fanciful

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.

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.

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

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

them

guilty.

Respectfully submitted.

Footnotes

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

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

Id.

Sarto v. People,

supra

note 1.

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

Id.

, Articles 4, 45.

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

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

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

See e.g., Castillo v. De Leon Castillo, 784 Phil 667 (2016); People v.

Aragon

, 100 Phil. 1033 (1957).

See e.g., Vitangcol v. People,

supra

note 9.

See e.g., the

ponencia

See e.g., People v.

Mendoza

, 95 Phil. 845 (1954).

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

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

736 Phil. 734 (2014).

467 Phil. 723 (2004).

761 Phil. 356 (2015).

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

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.

The Lawphil Project - Arellano Law Foundation