�

�

For our resolution is the February 11, 2005 letter-complaint^[1][1] filed by complainants Atty. Rowena V. Guanzon and Atty. Pearl R. Montesino of the Gender Watch Coalition, Assistant City Prosecutor Rosanna Saril-Toledano, Bacolod City, and Atty. Erfe del Castillo-Caldit against respondent Judge Anastacio C. Rufon of the Regional Trial Court, Branch 52, same city, for violations of the Code of Judicial Conduct and the Rule on Gender-Fair Language, use of foul, or obscene and discriminatory language, discrimination against women lawyers and litigants and unethical conduct.

In his comment^[2][2] dated January 20, 2006, respondent judge vehemently denied the charges.�

On March 14, 2006, the Court referred the case to Justice Rebecca����������� De Guia-Salvador of the Court of Appeals for investigation, report and recommendation.

On July 13, 2006, Justice Salvador set the case for preliminary conference.�� Only complainant Guanzon and respondent judge appeared.� Because of the distance between Bacolod and Manila, the parties found it quite difficult and expensive to attend subsequent hearings of the case.� Respondent submitted a pre-trial brief proposing stipulation of facts.�� Complainant Guanzon, for herself and in representation of complainant Montesino, filed a preliminary conference brief enumerating the charges in their complaint and the probable witnesses and documentary evidence they intended to present in support thereof.�� Later, complainant Guanzon submitted an affidavit of complainant Toledano, who was then a resident of the United States, imputing bias and abuse of authority to respondent for granting bail in Criminal Cases Nos. 03-24800 and 03-24801.��� Complainant Caldit executed a letter withdrawing her complaint against respondent.

In view of the parties� failure to attend the proceedings, Justice Salvador resolved the case on the bases of the pleadings and documents filed by the parties.

On March 5, 2007, Justice Salvador submitted her Report and Recommendation reproduced hereunder:

The Issue

WHETHER OR NOT SUFFICIENT CAUSE EXISTS TO HOLD RESPONDENT ADMINISTRATIVELY LIABLE FOR VIOLATION OF THE CODE OF CONDUCT FOR JUDGES AND THE RULE ON GENDER-FAIR LANGUAGE, USE OF FOUL OR OBSCENE AND DISCRIMINATORY LANGUAGE, DISCRIMINATION AGAINST WOMEN LAWYERS AND LITIGANTS AS WELL AS UNETHICAL CONDUCT.

Findings and Conclusions

A careful scrutiny of the record shows sufficient ground for a reprimand and an admonition to respondent to act with utmost temperance, sensitivity and circumspection in the discharge of his functions.

����������������� x x x���������� ����� x x x������������� x x x

Concededly, complainants in administrative proceedings have the burden of proving by substantial evidence the allegations in their complaint (Araos v. Luna-Pison, 378 SCRA 246).�� The fact that, owing to the unavailability of the parties, no hearings were conducted in the case to thresh out the issues presented by their various pleadings and incidents did not, however, totally discount the existence of factual bases for the charges leveled against respondent.�� In her November 8, 2006 affidavit (pp. 169-170, Rollo), Cynthia Bagtas-Serios significantly gave the following account of respondent�s deportment which goes into the heart of the complaint, viz.:

x x x���������������� x x x���������������� x x x

In one of the first hearings of my case, when Atty. Rowena Guanzon was not assisting me but another counsel, I was shocked when Judge Anastacio Rufon, inside the court with so many people present, said to me �next time you see your husband, open your arms and legs.�� I felt humiliated and insulted, and was glad that the hearing did not proceed because the respondent was not present.

The following day, I called Atty. Rowena Guanzon and reported Judge Rufon�s foul language and intolerable conduct to her (p. 170, ibid.).

x x x���������������� x x x���������������� x x x

Respondent had, of course, taken great pains to refute the foregoing allegations (pp. 215-219, ibid.), complete with transcript of stenographic notes taken in Civil Case No. 99-10985 (pp. 220-240, ibid.) as well as the orders issued in the case (pp. 241-243, ibid.).��� In denying the charges leveled against him, however, appropriate note may be taken of the fact that respondent�s January 20, 2006 comment admitted his use of �frank language� in court when exhorting litigants to settle their differences and his resort to �strong and colorful� words whenever he has had a drink or two, albeit after office hours (pp. 81-82, ibid.).�� Even more significantly, the July 12, 2006 letter of complainant Caldit which was attached as Annex �4� to respondent�s own Pre-Trial Brief contains the following tell-tale assertions, viz.:

x x x���������������� x x x���������������� x x x

Respondent should bear in mind that a judge holds a position in the community that is looked up to with honor and privilege (Ramos v. Barot� 420 SCRA 406).� Although judges are subject to human limitations (Misajon v. Feranil, 440 SCRA 298), it cannot be over-emphasized that no position is more demanding as regards moral righteousness and uprightness of any individual than a seat on the Bench (Resngit-Marquez v. Llamas, Jr., 385 SCRA 6).� Because a judge is always looked upon as being the visible representation of law and, from him, the people draw much of their will and awareness to obey legal mandates (Garcia v. Bueser, 425 SCRA 93), it has been rightfully ruled that moral integrity is more than a cardinal virtue in the judiciary; it is a necessity (Office of the Court Administrator v. Sayo, Jr., 381 SCRA 659).

In closing, it would be remiss not to remind respondent of the fact that all judges should always observe courtesy and civility (Fineza v. Aruelo, 385 SCRA 339) and also be temperate, patient and courteous both in conduct and language (Fidel v. Caraos, 394 SCRA 47), especially to those appearing before him (Lastimosa-Dalawampu v. Yrastorsa, Sr.� 422 SCRA 26).�� The exacting standards of conduct demanded from judges are designed to promote public confidence in the integrity and impartiality of the judiciary (Imbang v. Del Rosario, 421 SCRA 523).�� In view of the fact that public confidence in the judiciary is very easily eroded by irresponsible and improper conduct of judges (Navarro v. Tormis, 428 SCRA 37), respondent should remember to avoid improprieties and the appearance of impropriety in all of his activities (Veloso v. Caminade, 434 SCRA 7).

Recommendation

WHEREFORE, premises considered, the REPRIMAND of respondent is recommended alongside a stern admonition that he should, henceforth, take care to act with utmost temperance, sensitivity and circumspection in the discharge of his functions.

�

We sustain the finding of Justice Salvador that respondent judge uttered in open court intemperate and obscene language injurious to the sensitivity and feelings of complainants who are all women.

Judicial decorum requires a magistrate to be at all times temperate in his language,^[3][3] refraining from inflammatory or excessive rhetoric or from resorting �to language of vilification.�^[4][4]�� It is very essential that they live up to the high standards demanded by Section 6, Canon 6 of the New Code of Judicial Conduct for the Philippine Judiciary^[5][5] which provides:

SEC. 6. Judges shall maintain order and decorum in all proceedings before the court and be patient, dignified and courteous in relation to litigants, witnesses, lawyers and others with whom the judge deals in an official capacity. x x x

In Fidel v. Caraos,^[6][6] we held that although respondent judge may attribute his intemperate language to human frailty, his noble position in the bench nevertheless demands from him courteous speech in and out of the court.�� Judges are demanded to be always temperate, patient and courteous both in conduct and in language.^[7][7]

Thus, we declare respondent judge guilty of vulgar and unbecoming conduct considered a light charge under Section 10(1), Rule 140 of the Revised Rules of Court, punishable under Section 11(C) of the same Rule, by:

1.�������� A fine of not less than P1,000.00, but not exceeding P10,000.00 and/or

2.�������� Censure

3.�������� Reprimand

4. ������� Admonition with warning

�

ACCORDINGLY, respondent Judge Anastacio C. Rufon is found guilty of vulgar and unbecoming conduct and is FINED in the amount of P5,000.00, with a warning that a repetition of a similar offense in the future shall be dealt with more severely.

SO ORDERED.

�

[1][1] � Rollo, pp. 12-13.

[2][2] � Id., pp. 73-74.

[3][3] � Turqueza v. Hernando, G.R. No. L-51626, April 30, 1980, 97 SCRA 483.

[4][4] � Royeca v. Animas, G.R. No. L-39584, May 3, 1976, 71 SCRA 1.

[5][5] � Agunday v. Tresvalles, A.M. No. MTJ-99-1236, November 25, 1999, 319 SCRA 134.

[6][6] � A.M. No. MTJ-99-1224, December 12, 2002, 394 SCRA 47.

[7][7] � Seludo v. Judge Fineza, A.M. No. RTJ-04-1864, December 16, 2004, 447 SCRA 73.

OPINIONS

By Rowena Guanzon
INQ7.net
Last updated 02:20am (Mla time) 12/19/2006

REMARKABLY, at least two of the dissenting opinions of former Chief Justice Hilario G. Davide, Jr. proved to be prophetic. His and Justice Florenz Regalado’s dissenting opinion in People vs. Salarza, Jr (G.R. No. 117682, August 18, 1997) could very well be the decision of the majority if Judge Benjamin Pozon who presided over the Subic rape case is sustained on appeal by the Supreme Court.

In Salarza, Justices Davide and Regalado gave their opinion that a woman who was asleep could not have given her free will to the sexual intercourse, and the accused should have been convicted. For the two Justices, deprivation of reason need not be complete, and “unconsciousness” should not be tested by a mere physical standard, i.e., whether one was asleep, conscious or alert. Rather, the Justices wrote, what is required is that the woman was “fully informed of all considerations so as to make a free and informed decision regarding the grant of consent.” Their minority opinion is that it is only when the woman is fully informed that consent may be intelligently given.

In People vs. Genosa (GR 13591, January 15, 2004), the former Chief Justice dissented from the ruling that Battered Wife Syndrome is only a mitigating circumstance which reduced the penalty but did not exculpate the accused. About two months after, Republic Act No. 9262, otherwise called the Anti-Violence Against Women and Their Children Act of 2004, was passed, providing for Battered Woman Syndrome as a justifying circumstance notwithstanding that any of the elements of self defense is lacking.

These are but two of the notable decisions on gender and human rights of women and girl-children that stood out in the research for the book entitled, “The Davide Court: Its Contributions To Gender and Women’s Rights” published by the University of the Philippines Center for Women’s Studies and supported by The Asia Foundation and USAID. The book was launched last Dec. 14 together with “Engendering the Philippine Judiciary,” which was supported by the UN Development Fund for Women-Bangkok. “Engendering” is the book project on The Gender Justice Awards.

Former Chief Justice Davide was an honored guest during the book launch in Manila Hotel. Justice Leonardo A. Quisumbing gave a message, and Justice Ma. Alicia Austria-Martinez, Co-Chairperson of the Committee on Gender Responsive of the Judiciary gave her response. The authors of “The Davide Court” are Rowena V. Guanzon, Juline Dulnuan, F.D. Nicolas Pichay, Cecilia Papa, and Damcelle Torres. “Engendering the Philippine Judiciary” was written by Rowena V. Guanzon, Aurora de Dios, Damcelle Torres and Theresa Balayon.

The researchers and authors of “The Davide Court” hope that it will be a benchmark for future Chief Justices. While former Chief Justice Davide may not be perfect (no one is), he certainly blazed a trail in trying to mainstream gender in the Judiciary for future Chief Justices to follow or surpass, and for that he deserves recognition.

Aside from the positive quality of his decisions on cases of violence against women and girl-children, Chief Justice Davide’s term is notable for the reform of the rules of court in cases involving women and children litigants, the training of judges on gender-responsiveness, and the programs of the Committee on Gender Responsiveness of the Judiciary. He was fully aware of the gap in gender and women’s human rights awareness in the Judiciary and he took deliberate steps to bridge it. Notwithstanding the efforts of the Supreme Court, however, gender discrimination in the courts continues to be a problem in the country.

More than a thousand cases involving the human rights of women and girl-children penned by Chief Justice Davide and by other justices in his Court read by a team of enthusiastic researchers and authors to produce the book, “The Davide Court: Its Contributions to Gender and Women’s Rights.”

“The Davide Court” is a meticulous and comprehensive documentation of the extended, complicated and continuing engagement of the Philippine judiciary on one hand and the advocates of women’s human rights on the other.

The book surveys more than a thousand cases decided by the Davide Court from 1998 to 2005 involving, rape, sexual harassment, child support and other gender issues. The former Chief Justice loathed rape, judging by his high conviction rate of about 87% of the total rape cases he penned during his stay in the Supreme Court. In the year 2000 alone, former Chief Justice Davide penned 13 decisions on rape (17 if including per curiam decisions), all of them convictions. Fortunately, except for the decisions in People vs. Relox and People vs. Salarza, the Davide Court has gotten rid of the unfair “she should have” (e.g., she should have shouted, she could have fled, etc) standard in rape cases.

The book also cites some decisions of the Supreme Court before the term of former Chief Justice Davide which upheld the human rights of women. Among these are the 1988 decision in People vs. Munoz penned by Justice Abraham Sarmiento (now member of the Board of Trustees of the University of the Philippines), who wrote: “ Rape victims bear the responsibility of proving that they have been raped, that they had not invited seduction, or had not been unchaste…. On the other hand, the harsh hand of social injustice does not seem to apply to the rapists.” It was in that decision where the Supreme Court used “violence committed against women” for the first time and recognizing that it does not come in the form of physical abuse alone, and called it “gender violation.”

In 1997, Justice Florenz Regalado wrote the decision in Philippine Telegraph and Telephone Company vs. National Labor Relations Commission and De Guzman, which discussed gender discrimination at length. Justice Cecilia Munoz Palma, in 1975, penned the decision in Cabaliw et al. vs. Sadora, et al., a very useful ruling for women who demand support from the conjugal partnership of gains or from their husbands or fathers of their children, including petitions for protection orders that include support under Republic Act No. 9262. In the case of Cabaliw, the Supreme Court held that the wife who was granted an award of support and who sued to recover conjugal property which was fraudulently disposed by her estranged husband has a right as judgment creditor and therefore, she is entitled to a writ of execution.

The cases cited in The Davide Court serve as a historical marker for Chief Justice Davide and his court. The discussions and critique of the legal principles applied by the Supreme Court during his term can also serve as a road map for women’s human rights advocates pushing for reform.

The decisions of former Chief Justice Davide and Justices during his term will be discussed in this column next Tuesday.

To read the books, click http://www.bingguanzon.com/books-and-articles-byrowena-v-guanzon..

Unluckily for celebrity figure Amy Perez, her case for Nullity of Marriage was recently denied by the Supreme Court. Amy Perez filed for annulment of her marriage to musician Bricks Ferraris on the ground that he is psychologically incapacitated to fulfill his marital obligations under the Family Code such as to render love, support, and marital fidelity. 

Unfortunately, the Supreme Court held that marital infidelity by itself is not “psychological incapacity” as required by law.  The  law requires that the respondent must  personality or character disorder which is grave, incurable, and has antecedents before the marriage, or the time they said ” I do.”

Amay Perez lost her case since the Regional Trial Court (Family Court), and on appeal to the Court of Appeals and the Supreme Court.  Unluckily for her, her case fell in the division of Chief Justice Artemio Panganiban, known to be very strict in annulment cases because, it is said, of his religious background. 

Those interested can find comfort, however, in a case in which the Panganiban Court, with Justice Tinga as ponente, granted the nullity of marriage to a man whose wife was found to be a pathological liar.  See Antonio vs. Reyes ( a digest will soon be posted in this blog), a 2006 case. The chairman of the division is Justice Leonardo QA. Quisumbing, one of our “modern” justices who is gender-sensitive (perhaps his wife Dr. Purificacion Quisumbing, Chairperson of the Commission on Human Rights, can take credit for this) and has two daughters.

Facts: When her parents separated, Fe lived with her grandmother and the latter’s common-law husband, Baring. Baring sexually abused Fe since she was seven years old whenever she was left alone in the house. Baring touched Fe’s private parts, removed her panty, mounted on her and violated her. When Fe’s mother learned about Baring’s beastly acts, Baring was charged with statutory rape.

The trial court convicted Baring of statutory rape and sentenced him to death. On appeal, Baring claimed that the trial court erred in convicting him of rape despite prosecution’s failure to present the examining physician, thus depriving him of his constitutional right to confront a witness against him. He likewise impugned Fe’s credibility by pointing out that the rape was filed one year after its commission, which allegedly leaves doubt as to the identity of the culprit. He accused the lover of Fe’s mother to be the perpetrator of the alleged rape.

Decision: The Supreme Court affirmed the conviction but reduced the penalty to reclusion perpetua because Fe was already 7 years old at the time of the incident. There was, therefore, no statutory rape that would warrant the imposition of the death penalty.

A review of the transcript of the stenographic notes revealed that Baring’s counsel waived the presentation of the medico-legal officer. Hence, Baring was not deprived of his constitutional right to confront the witness.

The Supreme Court ruled that a medical certificate is not indispensable to prove the commission of rape inasmuch as the victim’s testimony alone, if credible, is sufficient to convict the accused of the crime. Besides, testimonies of rape victims who are of tender age are credible and are given full weight and credit.

Delay in reporting an incident of rape does not create any doubt over the credibility of the complainant nor can it be taken against the victim.

Baring contended that the trial court denied him his right to subject the blood on the victim’s panty for DNA testing (supposedly to prove that the lover of Fe’s mother committed the rape). It must be noted that in the prosecution of rape cases, the presentation of the bloodstained panty is not even essential. Fe’s credible testimony, standing alone, is sufficient basis for Baring’s conviction.

In commenting on the results of Fe’s medico-legal examination, the Supreme Court found occasion to discuss how the examination of a child’s vagina should be properly conducted, viz:
“This Court is disturbed by the method of physical examination done on the seven-year-old victim. We noticed that in the examiner’s effort to show the existence of abuse, the examining physician inserted his smallest finger, as shown in the medico-legal report that the ‘external vaginal orifice admits tip of the examiner’s finger.’
It bears to stress that this particular manner of establishing evidence – by determining the diameter/hymenal opening in rape cases – was a common practice in the past. With the passage of R.A. 7610, this Court has nonetheless allowed the utilization of the same kind of evidence in the prosecution of Child Abuse cases. In light however of radical medical developments and findings, specifically as to the determination of the existence of child sexual abuse, this Court deems it necessary to firmly adopt a more “child sensitive” approach in dealing with this specie or genre of crime.
In the international scientific community, recent medical studies have shown that measurement of hymenal opening is unreliable in determining and/or proving child sexual abuse –
“The diameter of the hymenal opening previously has been used as a diagnostic criterion for abuse. More recent studies have shown this to be undependable (Paradise, 1989). Factors affecting hymenal and anal diameter include the examination position (McCann, Voris, Simon, & Wells, 1990) and the degree of relaxation of the child. The anal diameter is also affected by the presence of stool in the ampulla. Hymenal diameter may increase with age and with the onset of pubertal development.”
x x x
Hence, insertion of a finger or any foreign matter inside the hymenal opening under the pretext of determining abuse is unnecessary and inappropriate. The Philippine Judicial Academy [PHILJA] training program for family court judges, through the auspices of the U.P.-P.G.H. Child Protection Unit, sanctioned that in pre-pubertal girls without active bleeding; all that is needed is an external examination with a good light source and magnification. Be that as it may, the physical findings alone will not be conclusive of child sexual abuse, for a child who gives a clear, consistent, detailed, spontaneous description of being sexually molested may still have normal genital examination. Despite the physical or laboratory findings, however, a child’s clear and convincing description of the abuse has a high rate of probability.”

Facts: Pat’s husband, who was a habitual drinker, had been beating her on several occasions. One night, Pat’s husband came home drunk. Her husband was irate at the fact that earlier that evening, Pat went to search for him. Her husband hit her and attempted to strangle her despite her pregnancy. Pat ran to the other room to escape her husband’s wrath. That evening, Pat proceeded to pack her husband’s belongings. Upon seeing the packed clothes, Pat’s husband assaulted her. As Pat’s husband attempted to wield a blade cutter on her, Pat smashed a pipe at her husband’s nape. Later, Pat shot her husband while he was sleeping with a gun which she got from the drawer in their room.

Pat was convicted of parricide for killing her husband while he was sleeping. The trial court sentenced her to death. On appeal, Pat admitted killing her husband but prayed for acquittal on the ground that she suffered from the “battered woman syndrome” (BWS), which constitutes self-defense.

Decision: The Supreme Court found the appeal to be partly meritorious. It affirmed Pat’s conviction of parricide, but reduced the penalty imposed after appreciating two mitigating circumstances, without any aggravating circumstance. Since Pat had been detained for more than the minimum penalty, the Supreme Court suggested that the director of the Bureau of Corrections look into the possibility placing Pat on parole.

The Supreme Court noted the novel concept of BWS in our jurisprudence. The existence of the BWS in a relationship does not itself establish the legal right of the woman to kill her abusive partner. “Evidence must still be considered in the context of self-defense.” The Court stated that “crucial to the BWS defense is the state of mind of the battered woman at the time of the offense – she must have actually feared imminent harm from her batterer and honestly believed in the need to kill him to save her life.” In this case, Pat explained that her husband was about to cause her and her unborn baby imminent harm. To this the Supreme Court replied that “unlawful aggression is the most essential element of self-defense, [that] it presupposes actual, sudden and unexpected attack – or imminent danger thereof – on the life of the person.” In Pat’s case, there was sufficient time interval between her husband’s unlawful aggression and her fatal attack on him. The unlawful aggression or the imminent threat has accordingly ceased. “(A)ggression, if not continuous, does not warrant self-defense.” Hence, without such aggression, Pat’s killing of her husband was not completely justified.

The Supreme Court, however, qualified that it is not discounting the possibility of self-defense as a result of the battered woman syndrome. It referred to a definition of battered woman as “one who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without concern for her rights. Battered women include wives or women in any form of intimate relationship with men. Furthermore, in order to be classified as a battered woman, the couple must go through the cycle at least twice. Any woman may find herself in an abusive relationship with a man once. If it occurs a second time, and she remains in the situation, she is defined as a battered woman.”

The Supreme Court summed up the main points vis-à-vis cases relating to BWS, as follows:

“(F)irst, each of the phases of the cycle of violence must be proven to have characterized at least two battering episodes between the appellant and her intimate partner. Second, the final acute battering episode preceding the killing of the batterer must have produced in the battered person’s mind an actual fear of an imminent harm from her batterer and an honest belief that she needed to use force in order to save her life. Third, at the time of the killing, the batterer must have posed probable – not necessarily immediate and actual – grave harm to the accused, based on a history of violence perpetrated by the former against the latter. Taken together, these circumstances could satisfy the requisites of self-defense.”

Unfortunately, in this case, the Supreme Court found that all these elements were not duly established.
N.B. Name of complainant is not her real name, to protect her privacy.

– versus –
ROSENDO ALBA, minor, represented

by his mother ARMI A. ALBA, and

HON. NIMFA CUESTA-VILCHES,

Presiding Judge, Branch 48, Promulgated:

Regional Trial Court, Manila,

Respondents. June 15, 2005

x – - – - – - – - – - – - – - – - – - – - – - – - -

Probative Value of

DNA Analysis as Evidence

Despite our relatively liberal rules on admissibility, trial courts should be cautious in giving credence to DNA analysis as evidence. We reiterate our statement in Vallejo:

In assessing the probative value of DNA evidence, therefore, courts should consider, among other things, the following data: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests.[51]

We also repeat the trial court’s explanation of DNA analysis used in paternity cases:

In [a] paternity test, the forensic scientist looks at a number of these variable regions in an individual to produce a DNA profile. Comparing next the DNA profiles of the mother and child, it is possible to determine which half of the child’s DNA was inherited from the mother. The other half must have been inherited from the biological father. The alleged father’s profile is then examined to ascertain whether he has the DNA types in his profile, which match the paternal types in the child. If the man’s DNA types do not match that of the child, the man is excluded as the father. If the DNA types match, then he is not excluded as the father.[52]

It is not enough to state that the child’s DNA profile matches that of the putative father. A complete match between the DNA profile of the child and the DNA profile of the putative father does not necessarily establish paternity. For this reason, following the highest standard adopted in an American jurisdiction,[53] trial courts should require at least 99.9% as a minimum value of the Probability of Paternity (“W”) prior to a paternity inclusion. W is a numerical estimate for the likelihood of paternity of a putative father compared to the probability of a random match of two unrelated individuals. An appropriate reference population database, such as the Philippine population database, is required to compute for W. Due to the probabilistic nature of paternity inclusions, W will never equal to 100%. However, the accuracy of W estimates is higher when the putative father, mother and child are subjected to DNA analysis compared to those conducted between the putative father and child alone.[54]

DNA analysis that excludes the putative father from paternity should be conclusive proof of non-paternity. If the value of W is less than 99.9%, the results of the DNA analysis should be considered as corroborative evidence. If the value of W is 99.9% or higher, then there is refutable presumption of paternity.[55] This refutable presumption of paternity should be subjected to the Vallejo standards.

Right Against

Self-Incrimination

Section 17, Article 3 of the 1987 Constitution provides that “no person shall be compelled to be a witness against himself.” Petitioner asserts that obtaining samples from him for DNA testing violates his right against self-incrimination. Petitioner ignores our earlier pronouncements that the privilege is applicable only to testimonial evidence. Again, we quote relevant portions of the trial court’s 3 February 2000 Order with approval:

Obtaining DNA samples from an accused in a criminal case or from the respondent in a paternity case, contrary to the belief of respondent in this action, will not violate the right against self-incrimination. This privilege applies only to evidence that is “communicative” in essence taken under duress (People vs. Olvis, 154 SCRA 513, 1987). The Supreme Court has ruled that the right against self-incrimination is just a prohibition on the use of physical or moral compulsion to extort communication (testimonial evidence) from a defendant, not an exclusion of evidence taken from his body when it may be material. As such, a defendant can be required to submit to a test to extract virus from his body (as cited in People vs. Olvis, Supra); the substance emitting from the body of the accused was received as evidence for acts of lasciviousness (US vs. Tan Teng, 23 Phil. 145); morphine forced out of the mouth was received as proof (US vs. Ong Siu Hong, 36 Phil. 735); an order by the judge for the witness to put on pair of pants for size was allowed (People vs. Otadora, 86 Phil. 244); and the court can compel a woman accused of adultery to submit for pregnancy test (Villaflor vs. Summers, 41 Phil. 62), since the gist of the privilege is the restriction on “testimonial compulsion.”[56]

The policy of the Family Code to liberalize the rule on the investigation of the paternity and filiation of children, especially of illegitimate children, is without prejudice to the right of the putative parent to claim his or her own defenses.[57] Where the evidence to aid this investigation is obtainable through the facilities of modern science and technology, such evidence should be considered subject to the limits established by the law, rules, and jurisprudence.

WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the Court of Appeals dated 29 November 2000 in CA-G.R. SP No. 59766. We also AFFIRM the Orders dated 3 February 2000 and 8 June 2000 issued by Branch 48 of the Regional Trial Court of Manila in Civil Case No. SP-98-88759.

SO ORDERED.

ANTONIO T. CARPIO

Associate Justice

WE CONCUR:

HILARIO G. DAVIDE, JR.
Chief Justice
Chairman

(G.R. NO. 154994);

CRISANTO RAFELITO G. GUALBERTO V. COURT OF APPEALS, et. al.

(G.R. No. 156254, June 28, 2005)

Panganiban, J.:

Facts

Crisanto Rafaelito Gualberto filed before the RTC of Paranaque City[1] a petition for declaration of nullity of his marriage to Joycelyn Pablo Gualberto with an ancillary prayer for the custody pendente lite of their 4-year old son, Rafaello. Crisanto alleged thatJoycelyntook away their child from their conjugal home and his school when she decided to abandon Crisanto. Despite efforts of Crisanto, he failed to seehis child.

During the hearing on the custody pendente lite, the private investigator hired by Crisanto to conduct surveillance on Joycelyn testified that Joycelyn was having lesbian relations witha certain Noreen in Cebu City.This was corroborated by the househelper of the spouses who stated that Joycelyn often leaves the house and on one occasion, she saw Joycelyn slap the child.

The trial court awarded the custody of the minor pendente lite to Crisanto. Joycelyn thereafter filed a Motion Dismiss with an ancillary prayer to lift the award of custody pendente lite but she did not present any evidence to support her motion.