Viol. of R.A. 9262 vs. A Foreigner
Viol. of R.A. 9262 vs. A Foreigner
DECISION
PERALTA, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the
Rules of Court seeking to reverse and set aside the Orders1 dated February 19,
2010 and September 1, 2010, respectively, of the Regional Trial Court of Cebu
City (RTC-Cebu), which dismissed the criminal case entitled People of the
Philippines v. Ernst Johan Brinkman Van Wilsem, docketed as Criminal Case
No. CBU-85503, for violation of Republic Act (R.A.) No. 9262, otherwise known
as the Anti-Violence Against Women and Their Children Act of 2004.
The information, which was filed with the RTC-Cebu and raffled to Branch
20 thereof, states that:
That sometime in the year 1995 and up to the present, more or less, in the
Municipality of Minglanilla, Province of Cebu, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, did then and
there wilfully, unlawfully and deliberately deprive, refuse and still continue to
deprive his son RODERIGO NORJO VAN WILSEM, a fourteen (14) year old minor,
of financial support legally due him, resulting in economic abuse to the victim.
CONTRARY TO LAW.15
Upon motion and after notice and hearing, the RTC-Cebu issued a Hold
Departure Order against respondent.16Consequently, respondent was arrested
and, subsequently, posted bail.17 Petitioner also filed a Motion/Application of
Permanent Protection Order to which respondent filed his Opposition.18 Pending
the resolution thereof, respondent was arraigned.19 Subsequently, without the
RTC-Cebu having resolved the application of the protection order, respondent
filed a Motion to Dismiss on the ground of: (1) lack of jurisdiction over the offense
charged; and (2) prescription of the crime charged.20
WHEREFORE, the Court finds that the facts charged in the information
do not constitute an offense with respect to the accused, he being an alien, and
accordingly, orders this case DISMISSED.
The bail bond posted by accused Ernst Johan Brinkman Van Wilsem for
his provisional liberty is hereby cancelled (sic) and ordered released.
SO ORDERED.
SO ORDERED.
Hence, the present Petition for Review on Certiorari raising the following
issues:
x x x Nevertheless, the Rules do not prohibit any of the parties from filing
a Rule 45 Petition with this Court, in case only questions of law are raised or
involved. This latter situation was one that petitioners found themselves in when
they filed the instant Petition to raise only questions of law. In Republic v.
Malabanan, the Court clarified the three modes of appeal from decisions of the
RTC, to wit: (1) by ordinary appeal or appeal by writ of error under Rule 41,
whereby judgment was rendered in a civil or criminal action by the RTC in the
exercise of its original jurisdiction; (2) by a petition for review under Rule 42,
whereby judgment was rendered by the RTC in the exercise of its appellate
jurisdiction; and (3) by a petition for review on certiorari before the Supreme
Court under Rule 45. "The first mode of appeal is taken to the [Court of Appeals]
on questions of fact or mixed questions of fact and law. The second mode of
appeal is brought to the CA on questions of fact, of law, or mixed questions of
fact and law. The third mode of appealis elevated to the Supreme Court only on
questions of law." (Emphasis supplied)
There is a question of law when the issue does not call for an examination
of the probative value of the evidence presented or of the truth or falsehood of
the facts being admitted, and the doubt concerns the correct application of law
and jurisprudence on the matter. The resolution of the issue must rest solely on
what the law provides on the given set of circumstances.29
Petitioner invokes Article 19530 of the Family Code, which provides the
parent’s obligation to support his child. Petitioner contends that notwithstanding
the existence of a divorce decree issued in relation to Article 26 of the Family
Code,31 respondent is not excused from complying with his obligation to support
his minor child with petitioner.
On the other hand, respondent contends that there is no sufficient and
clear basis presented by petitioner that she, as well as her minor son, are entitled
to financial support.32 Respondent also added that by reason of the Divorce
Decree, he is not obligated to petitioner for any financial support.33
Furthermore, being still aliens, they are not in position to invoke the
provisions of the Civil Code of the Philippines, for that Code cleaves to the
principle that family rights and duties are governed by their personal law, i.e.,the
laws of the nation to which they belong even when staying in a foreign country
(cf. Civil Code, Article 15).39
In international law, the party who wants to have a foreign law applied to
a dispute or case has the burden of proving the foreign law.40 In the present case,
respondent hastily concludes that being a national of the Netherlands, he is
governed by such laws on the matter of provision of and capacity to
support.41 While respondent pleaded the laws of the Netherlands in advancing
his position that he is not obliged to support his son, he never proved the same.
It is incumbent upon respondent to plead and prove that the national law of the
Netherlands does not impose upon the parents the obligation to support their
child (either before, during or after the issuance of a divorce decree), because
Llorente v. Court of Appeals,42 has already enunciated that:
True, foreign laws do not prove themselves in our jurisdiction and our
courts are not authorized to take judicial notice of them. Like any other fact, they
must be alleged and proved.43
In view of respondent’s failure to prove the national law of the Netherlands
in his favor, the doctrine of processual presumption shall govern. Under this
doctrine, if the foreign law involved is not properly pleaded and proved, our
courts will presume that the foreign law is the same as our local or domestic or
internal law.44 Thus, since the law of the Netherlands as regards the obligation
to support has not been properly pleaded and proved in the instant case, it is
presumed to be the same with Philippine law, which enforces the obligation of
parents to support their children and penalizing the non-compliance therewith.
Moreover, while in Pilapil v. Ibay-Somera,45 the Court held that a divorce
obtained in a foreign land as well as its legal effects may be recognized in the
Philippines in view of the nationality principle on the matter of status of persons,
the Divorce Covenant presented by respondent does not completely show that
he is not liable to give support to his son after the divorce decree was issued.
Emphasis is placed on petitioner’s allegation that under the second page of the
aforesaid covenant, respondent’s obligation to support his child is specifically
stated,46 which was not disputed by respondent.
In the instant case, assuming arguendo that the English Law on the matter
were properly pleaded and proved in accordance with Section 24, Rule 132 of the
Rules of Court and the jurisprudence laid down in Yao Kee, et al. vs. Sy-
Gonzales, said foreign law would still not find applicability.
If two or more suits are instituted on the basis of the same cause of action,
the filing of one or a judgment upon the merits in any one is available as a ground
for the dismissal of the others. Moreover, foreign law should not be applied when
its application would work undeniable injustice to the citizens or residents of the
forum. To give justice is the most important function of law; hence, a law, or
judgment or contract that is obviously unjust negates the fundamental
principles of Conflict of Laws.48
Applying the foregoing, even if the laws of the Netherlands neither enforce
a parent’s obligation to support his child nor penalize the noncompliance
therewith, such obligation is still duly enforceable in the Philippines because it
would be of great injustice to the child to be denied of financial support when
the latter is entitled thereto.
As to the effect of the divorce on the Filipino wife, the Court ruled that she
should no longer be considered married to the alien spouse. Further, she should
not be required to perform her marital duties and obligations. It held:
xxxx
xxxx
Finally, we do not agree with respondent’s argument that granting, but not
admitting, that there is a legal basis for charging violation of R.A. No. 9262 in
the instant case, the criminal liability has been extinguished on the ground of
prescription of crime52 under Section 24 of R.A. No. 9262, which provides that:
SECTION 24. Prescriptive Period. – Acts falling under Sections 5(a) to 5(f) shall
prescribe in twenty (20) years. Acts falling under Sections 5(g) to 5(I) shall
prescribe in ten (10) years.
The act of denying support to a child under Section 5(e)(2) and (i) of R.A.
No. 9262 is a continuing offense,53 which started in 1995 but is still ongoing at
present. Accordingly, the crime charged in the instant case has clearly not
prescribed.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
Footnotes
following are obliged to support each other to the whole extent set forth in
the preceding article:
(1) The spouses;
(2) Legitimate ascendants and descendants;
(3) Parents and their legitimate children and the legitimate and
illegitimate children of the latter;
(4) Parents and their illegitimate children and the legitimate and
illegitimate children of the latter; and
(5) Legitimate brothers and sisters, whether of full or half-blood.
24 Annex "R" to Petition, rollo, p. 102.
25 Annex "B" to Petition, id. at 25.
26 Id.
27 Rollo, p. 10.
28 G.R. No. 194880, June 20, 2012, 674 SCRA 320.
29 Id.at 332-333.
30 Supra note 23.
31 Art. 26. All marriages solemnized outside the Philippines, in accordance
with the laws in force in the country where they were solemnized, and valid
there as such, shall also be valid in this country, except those prohibited
under Articles 35 (1), (4), (5) and (6), 3637 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly
celebrated and a divorce is thereafter validly obtained abroad by the
alien spouse capacitating him or her to remarry, the Filipino spouse
shall have capacity to remarry under Philippine law. (As amended
by Executive Order 227)
32 Comment on the Petition for Review on Certiorari, rollo, p. 123.
33 Id. at 122.
34 Supra note 23.
35 Art. 15. Laws relating to family rights and duties, or to the status,
condition and legal capacity of persons are binding upon citizens of the
Philippines, even though living abroad.
36 Supra note 7, at 24.
37 Id.
38 G.R. No. L-25441, October 26, 1968, 25 SCRA 616.
39 Id. at 625-626. (Emphasis supplied)
40 EDI-Staff builders International, Inc. v. NLRC, 563 Phil. 1, 22 (2007).
41 Annex "N" to Petition, rollo, p. 84.
42 399 Phil. 342 (2000).
43 Id. at 354. (Emphasis supplied)
44 Bank of America, NT and SA v. American Realty Corporation, 378 Phil.