A Critical study of the provisions of the Civil Code of the Philippines on legitimacy and illegitimacy of children

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Part of The Lawyers Journal

Title: A Critical study of the provisions of the Civil Code of the Philippines on legitimacy and illegitimacy of children
Creator: Garcia, E. Voltaire
Language: English
Source: The Lawyers Journal XIX (5) May 31, 1954
Year: 1954
Subject: Civil Code of the Philippines; Legitimation of children
Rights
Abstract: [This study discusses the civil rights, obligations and social stigma that illegitimate children endured. Garcia thoroughly explained the Civil Code of the Philippines and the presumptions pertaining to this matter. Conclusions and recommendations were presented, which as follows: by eliminating the conclusive presumption of legitimacy and the prima facie presumption of illegitimacy should be reversed. Moreover, the author recommended that Articles 257, 258 and 259 of the Civil Code must be redrafted.]
Fulltext: A CRITICAL STUDY OF THE PROVISIONS OF THE CIVIL CODE OF THE PHILIPPINES ON LEGITIMACY AND ILLEGITIMACY OF CHILDREN BY E. VOLTAIRE GARCIA• I wish tc thank the members of the Board of Directors of the Philippine Lawyers Association and all delegates representing the· different ba1· asaociations throughout the length and· breadth of the Country now in convention assembled for this rare privilege and opp1n-tunity accorded me to address you ·this a.fternoon on the si1bjeet ''A Critical Study of the Provisions of the Civil Code of the Philip11ines on Legitimacy and Illegitimacy of Children", which I c~nsider of paramouilt importance not only from the point of ·view o{ civil rights and obligations but also from the point of view of t.he social stigma from . which Ulegitimate chi1dren unriasonably suffer. We all know that legitimacy is m&inly a matter of p1-esumption because of the impossibility of descending into· the mysteries of concept.ion for the purpose of the identification of the' paternit)I' Of the child <Ramirez Cabrera, Persons and Family Relations, 255) which appears to be beyond human knowledge to fathom (8 Scae.. "\·ola1 287> so that the p1-esumption of legitimacy of a child ca.n. not be destroyed even by a contrary declaration by the moiht-r CArt. 256, C.C.>. It is, the1-efore, only in the limited cases when the legitimacy of a child is impugned or sought to be established before the Courb that legitimacy may be a matter of evidence Arts. 261, 262, 268, 268, C.C.>. Even if it were scientifically possible to determine exactly the pateni.ity of a child in every case it will, undoubtedly, be still the better policy to adhere to the principles of p1-esumption of legitimacy, otherwise, every time a wife delivers a child medical experts will be prying into the utmost privacy of her conception ·resulting in scandal and embarl'asm~t not only ·to her but also to the poor husband. And, moreover, "if the question of. legitimacy were open to such attack, to be sustained or defeated by a mere p1-eponderance of evidence based largely and most frequently upon circumstances, the integrity of blood, the pride of ancestry, and its just sense of honor all would depend upon the most dubious of titles" <Sergent vs. North Cumberland, etc., 112 Ky 888>. There are physical earmarks connecting the wife, birth and child but none with reference to the husband. The relation between mother and child is a matter «Jf fact, while the relation between father and child is a matUr of presumP!i:~~~:ap=~~~ti:; :i:e ':!!~~:crc~n::~c~s~P~:n!~:.P;e;:::;~;. ~Tenn.) 410), and founded as well upon tl1e coincidence of probabilities <Sergent vs. North Cumberland Mfg. Co., 112 Dy. 88R, 891: 66 S. W. 1036, foot note, 7 C J. ;)41). The presumption, however is not one without scientific foundation. Medical experts on this' matter affirm that the shortest ·period necessary for a foetus to acquire the conditions of viability i1 six (6) months and that. intra.uterine life does not extl'nd beyond ten UO> months <8 ··scaevofa. 291l. This is also the view of Hipocrates, a natural 11hi1osophcr {J Oyuelos 172. 178i. There is, however, no fixed rule in this regard as th~re is authority to the effect that some.. times the period is tirolon~d to three hund1-ed thirteen (319> days •according to Ah"feld) or f!Ven to three hundred twenty C320l days -acccrding 1ri Schroder) which are, undoubtedly, abnormal cases and art>, therefore, valueless as a basis for a formation of ~e rt1lcs. The general average of the maximum period, according to Legrand du So.ulle, is from two hundred sev~ty five C276). to thi·ce hundred <300> days. The German Code establishes the per10.d from a minimum of one hundred eighty. one Cl81 > days to a maximum of three hundred two <802' da)ls Cl Manresa 49U. The Sr.anish ~ode (Art. 108> like that of the Ne~ ~ivil Code of the PhilipJ>ines CArt. 255) fixes a minimum penod of on~ hundred eighty ctRO) days a.nd a maximum of three hundre~ <SOO> · , The same periods are fixed by the French Code (I Cohn Y Capitant. • t.a·~·Se~nd11Na3~~~~··eo~-!~t~11~e t:w::r":· h~r1!~n~he0;l:W!ll'~~l .. onbe~ amher28,1968. ' .APR 14 1~76 THE EXPANDING CONCEPT AND ITS SIGNIFICANCE FOR PROFESSION RY ATTY. ENRIQUE FERNANDO With your. indulgence, I Propose to discuss the eJq>anding concept of libert)• and its significance fo1· those of us in the legal pro. fession. We al'e an familiar with the leading Philippine case, Rubi 11. l'rovincial 804f"d, where liberty as guaranteed by the Constitution was identified with "the right to exist and the right to be . free from arbit1·ary personal restraint or servitude." That is not all there is to it. It likewise "is dl'emed to embrac~ the right of man to enjoy the faculties with which he has been endowed by hi& . Creator, subject only to such restraints IL6 are nece~sary for the common welfare." Thus the right to libei.ty if respected enables human beings, according to the opinion by Justice Malcolm, to use t.Jieir faculties in all Jawfui waya; to live and work whet'e they will; to eain their livelihood by any lawful calling; and to pursue any avocation. It is not to be fo1•gotten that the Supreme Court in the same case gives the warning that liberty as understood in democracies is not license. For what the Constitutioa guarantees is libe.rty Under the law. Implied in the term is restraint by law for the good of the individual and for the greater good, the peace and order of society and the gener.e..l well-being. No man can do exactly ns he pleases. Every man must 2·enQuncc unbridled license. Jn the words of Mabini, as quoted in the same case, "libe1ty is freedom to do right and neve1· wrong; it is ever guided by reason and the upright and honorable conscience .of the individual.'' This is so as the liberty to be safeguarded . is, according to fOrmer Chief Justice Hughes, "libe1ty in a social organization." Arbitrary restraint is thus ruled out. but not immunity from reasonable regulatiom• arid prohibitions imposed in the interest of the com-. n1unity. The liberty of the citizens may, in the interest of public health, public order or safety, of general welfare, in other word~ through the· p1·oper exercise of the pnlice power, then be regulat.ed. linder circumstances which to us in the profession amount to due process, there may even be deprivation of it. No constitutional question arises. In that sense liberty does in deed pose, to quote from Justice Ca.rdo20, "an underlying paradox. J.,iherty in .the most literal sense is the negation of law, for law is restraint, and the absence <A restraint is anarchy. On the other hand, anarchy by destroyint restraint would leave liberty the exclusive polJsession of the strong and unsc1·upulous." Liberty would be meaningless, however, if it we1·e so. The Constitution safeguards it for all. No real contrariety or antagc.nism does exi<Jt between it :md Jaw. For there is reer.gnition, according to Cardozo of that "dome.in of free activity that cannot be touched by government or Jaw at all, whether the command is spE.cially against him or gene1·ally against him and otherli"." Ji>. every proper case ealling for the exertion of governmental power, the problem is one of harmonizing or adjusting the individual right to liberty and the community or general welfare. Necessai·ily then in times of stress, whether occasioned by internal ciiso1·der, fear from .external aggi·ession, or economic insecurity, the field of liberty may cont1·act with the expansion of state powet' occasioned by the gravity and urgency of its needs. Diminution or restriction there msy be, but never obliteration. 'there are those who think '"Jf liberty a.a freedom from interfcmmce. 1.'liat is true. There it begins, but it cannot stop there. So in the Rubi opinion, there is mention no~ only of the negative concept of liberty which is absence of restraint but likewise of its positivf' significance which is the enlargement of opportunity. Liberty is not. 31lly freedom from but fre~dom for. It is not enough that one is let alone. It is equally important that one be enabled to achieve, to realize the potentialities of his personality. It .is in that sense that the me.'\nin@'.' has expanded. It is Mo.y 81, 1954 LAWYERS JOURNAL Jl18 A CRITICAL STUDY •.. 540), the Code of Guatemala (3 Scaevo1a 291>, the S-wiss Code 'Robe1·t P. Shick, The Swiss Civil Code, p. 57). Thus, Article 25Et of the Civil <'.ode of tl:te Philippines <Republic Act 386) commonly known as the New Civil Code provides: Art. 255. Children born after one hundred and eightlt days following the celebration of the marriage, and before three hundred days following its dissolution 01· the separation of the spouses shall be presumed to be legitimate. Against this presumption no evidence shall be admitted other than that of the physice.I impossibility of the husband's having access to his wife within the first one hundred and twe11ty days of the th1·ee hundred which preceded the birth of the child. This physical impossibility mll.y be caused: CU By the impotence of the hq,sband; , <2> By the fact that the husband and wife were living separately in such a Way that access was not possible; (3) By the serious il1ness of the husband. Article 255 of t.he New Civil Code is a reproduction of Article 108 of the Civil Code of Spain, now usually referred to a8 the old Civil Code, with the addition in the New Code of what may cause the impossibility of the husband'a- access to the wife during the pe1iod of conception, namely: <I) By the impotence of tht< hUJ3ba.nd; C2) By the fact that the husband and wife were living separately, in such a way that access was not possible; (3) BM the serious illness of the 'husband. Before the New Civil Code tock effect presumptionr of legitimacy of children were governed by the Rules of Court, providinR for a conclusive presumption and a rebuttable presumption, both of which were taken from the Code of Civil Procedure <Art. Ne 190>, thue: The issue of a wife cohabiting with her husband, who is not impotent, is indisputably presumed to be legitimate, it not born within one hundred and eighty days immediately succeeding the m8.rriage, or after the expiration of three hundred days following its disrolution <Rule 123, Sec. 68, Para.. graph C; taken from Section 338, paragraph, 3 Code of Civil Procedure). That a child born in lawful wedlock, there being no divorce, absolute or f1'0m bed and board, is legitimate <Rule 123, Sec. 69, pa.r. CC; taken from Sec. 334, par. 29, Code of Civil Procedure). Tb°re seems to be no substantial difference in practical ap. plication between Article 255 of the New Civil Code and the conelusive presumption of legitimacy provided for by Rule 123, Sec. 68, paragraph C, of the Rules of Court. Under the provisions of the Rules of Court the presence of the following requisites giver rise to the conclusive presumption: Ca) marriage (b) cohabitation Cc> husband not im~ote t CdJ birth after one hundred eighty days following celebration f marri&ge or within three hundred days from dissolution. hereas, Article 255 of the Civil Code req.uires Ca) marriage d (b) birth after one hundred eighty days from celehration of marriage or within three hundred days from its diss:olution or separation of spouses to give rise to the presumption of legitimacy, which may be rebutted only by physical impossibility of access by the husba.nd to the wife during the probable period of eonoeption, resulting fronYhusband's im.. potence, or separation in such a way that aCcess was impossible or serious illne8's of husband rendering access impossible. Actually, the Civil Code CArt. 255) suppressed two essential elements of the conclusive presumption of the Rules of Court and declaMd them evidenoe thJl.t m&y overco:rne the preaumption of legitimacy provided fo.r therein. In the United States the great weight of authority is to the effect that impossibility of access by the husband to the wife during the probable period of conception overcomes the presumption of legitimacy CSee Max Radin, The Common Law of the Family, VI The National Law Library, 145). The Code Commission has not given any rea.son for a departure from the principles of the conclusive presumption of the RU.lea of Court and a reversion to the old provision of the Spanish Code. THE EXPANDING CONCEPT ... something positiv~. opportunity or capacity or ability to do, freedom to achieve. It is in the latte1· sense that Laski identified liberty with the "eager maintenance of that atmosphere in which men have the opportunity to be their best selves" or "the abSPnee of restraint upon the existence of those E<icial conditions which in modern civilization are the neeessa.ry guarantees of individual happiness." This view consid~1·8' · liberty as identical with thl' opportunity for the growth and the unfolding of tbe hu1r.an personality. What is of the permanent essence of freedom, Laski continued, is that the personality of each individual should be so unhampered in its development, whether by authority or by custom, that it can make for itself a satisfactory harmonization of its impulses. There- is an invasbn of liberty where gov~rnment imposcd prohibition acts so as to d~troy that harmony of .1mp~lS:s which comes when a man knows tl1at he is doing something it is worthwhile to do. Resti·aint frust.i·ating the life of physical, intellectual, and spiritua1l l!nrichment is evil Nor is liberty reserved alone for the rich, the well-born, the economically secut'e. Those with lesser advantages at birth are entitled to their share of liberty. Their lives must not be stunted because of their poor or mol:lest .)rigins. That indeed is the goal. That is all well and good, you might say, these fine w:>rda and noble phl'ases, but what does it mean for us who are practition.ers in· the law? To that even morE. important phase of the question, I now turn. May I start by speaking of 1iberty in the sense of being let alone, -a concept which under the Constitution is implemented by .specific pledges and iramunities that may be classified under two headings: ct) Freedom of belief, whether secula1· or religious, f1·eedum of expressing such beliefs, and freedom to associate with others of a like pe1·suasion; and (2) Personal freedom which includes the constitutional rights of the accused as. an assurance \ha.t such liberty of the !)erson may not lightlY be interfered with by state action. I believe I speak the sense of the legal fraternity, and evr-n those who do not have the good fortune of being its members, when I say that on the whole with certain regrettable lapses, the men of the law whether on the Bench or in the Bar have been true to the sacred calling of dPfending freedom of belief and of exrression as well as personal freedom. As a matter of fact, the cumplaint lately has been that· s,1metimP.s in- their zeal fur . the defense .,f theil' elient's rights, tl1ere may have. been a one-s1~ed stress on the claims of libet1y as against the demands of authority. HPre, I ma.y possibly be entering a more controversial ground when I a&i:rert that those of us in the law E<hould cc.ntinue to fol. fow that cour::e. unrelaxing in ou1· vigilance in the defense of the individual right to liberty. It is not for ;;is to make meariingless the constitutional mandate that frc.edom of belit:f and of opinion should be given free play. When our services are thus solicited, it is not for us to hesitate. .To our country, no less than lo our clients, we vwe all that is in us to oppose, and if we ca.n frustrate, well-meaning, but sometimes mistaken, gnvernmental action hostile and inimical to liberty. The need seem to be greater in the Philippines as well as in the United St~tes, for recent leading decisions indicate not f!Xpansion but diminution ')f at least one aspect of liberty, freedom of belief and of expression. There appea.1·s to be a retreat from the t.igh vantage point of the clear and present danger docbfoe. In 1943, the American Supreme Court in West Vfrginia State BoMd cf Education v. Barnette asserted: "But freedoms of speech and of pre.sS, of assembly and cf of worship may not be infringed on such slender grounds. They are susceptible of restriction only to pr~vent grave a.nd immediate danger to interests which the state may lawfully protest!' CpP.r Jackson, J,) In f949, it could reiterate: LAWYERS JOURNAL May 81, HIM A CRITICAL STUDY ... THE EXPANDING CONCEPT ... The first sentence of Article 268 of the CMI Code provides "Accordingly a function of free speech under our system for a pri11ui fo.cie presumption of legitimacy of "a <ihild born with- of government is to invite dispute. It may indeed best serve in one hundred eighty USO> days following t.he celebration of the its high purpose when it induces a condition of unreSt, crf'.atcs .maniage," which presumption may, of course, be rebutted by any d!ssatisfaction with conditions· as they are, or even stirs pco.. evidence admissible in law that the husband is not the father of pie to anger. Speech is often provocative and challenging. It the child. This presumption is of leas weight tha.n that pro\'ided may strike at prejudices and preconceptions and have profor by Article 255 of the Civil Code in favor of a child born after found unsettling effects as it presses for acceptance of an idea. one hundt:ed eighty (180) days following the celebration of the That is why freedom of spet-ch, though not absolute, (ChaPmarriage or before three hundred <300) days foUowing its dissolu- 1insky v. New Hampshire, supra. (315 U.S. pp. 571, 572, 86 L. ed. tion or separation of the spousP.s which can m>t be overcom.l by any 1034, 1935, 62 S. Ct. 766), is nevertheless protectP.d against ev.idence except that of physical impossibility of access by the hns.. censorship or punishment, unless shown likely to produce ::a. band to the wife during the probable period of conception. There clear and present danger of a serious substantive evil tlmt again, therefore, appears no a.ppreeiable distinction in operation rises far above public inconvenience, annoyai>.ee, or unyest. between the first sentence of Article 258 of the Civil Code and x x x There is no room under our Constitution for a more the disputable presumption of legitimacy provided for in Rule 123, resti·irtive view. For thf! alternative would lead to standard. Sec. 69, par~ CC, of t~e Rules of Coutt, in favor of a child born ization of ideas either by legislatures, courts, or dominant po. in lawful wedlock if the over-all effects be considered of 'Article litical or community groups." Cper Douglas, J., T~rminie1lo 26.6 and the first sente-nee of Ai·tiele 258 of the Civil Code on one v. Chicago). hand and the joint principle-s of conclusive and disputable pre- With the D'Jttttia decision, however, in 1951, there is an insumptions of legitimacy provided tor in See. 68, par. C, and Sc.-c dieation in the main opinion by the late Chie-f Justicf' Vinson that 69, par. CC, of Rule 123 o·f the Rules of Court on the _other. the Clear and present da:nger doctrine now means only that, Iol. The rule seems to be universe.I that a child bom in IRoW!ul lowing Learned Hand, "in each case x x x (courts> must ask wedlock is presumed to be legitimate~ The effects of illegitimac} whether the gravity of the evil discounted by its improbability, under the P.arly Conunon Law of England were- unusually difficult justifiea such invasion of free spMCh as is necessa.ry to avoid the for the child who was considered a filitt11 nullius, without any fa- · danger." The degree of imminence and immediacy of the danger mily relations by birth, <Max Radin, The Common Law of the required is less than in the elassie formulation of Holmes. The Family, VI The National I.aw Library, 141>, child of nob".ldy, or gravity of the evil, the overthrow of the government no less, fillius populi, the child 'of the people <7 Am. Jur. 6271, which doe- might have led the majority to conclude that suppression of the trines did not find acceptance in the _ ea.rly Amf!rican Colonie!! utterance was unavoidable. It is to be hoped that such was the ease. where the natural relationship. between the illegitimate child and At least the fear of the virulent nature of the Communist ~~e::th:d w;:gra~::i~.~~1~ff:~~t o~0~~[ri~~~--~~il~ :::;a:e::i~! :p:~n :r11n~~od~~:~~.on ;! ~:r c~:: ::n::;~~=· C~F..JrlV8_rt:@.hl;r ri!quired- the strongest evidence in order Espuelas v. Peopki, a foolish and intemperate letter by a mar1, to ~!~~e the .. presumption of legitimacy <Radin, Id.; 1 4Z..1~4l who simulated suicide as a protest against the administration, which was carried forward to 1mch a.n extent in Englaud that wa.s cause :mough for eonvictint[ the writer of inciting to sedition. , sometimes amounted to absu1-dities. There developed in the Com- Even if the majority opinion be viewed with the utmost sym. mon Law of Engl~nd a presumPtion of legitimacy in favor oi re.thy, its rationale is far from pere:uasive. It appears as if the th.e issue of a wife which can not be disputed, if her husband be majority in their distate for what the accused did and perhaps within the four seas, that is, within the jurisdiction of the King in their desire to wam similarly.minded c1itics of the 11.dminisc.f Englaud, unless the husband had apparent impossibilities 11f tration to use less "infuriating'' language dignified as seditious procreation (2 Coke Litt. 244a., footnote, '1 C. J. 941>. Thus ''it lihel a matter, that should have occasioned at most derisive laughter. w&.s solemnly decided by a court of the highesl jurisdiction, tnat The dissentiug 09inion by Justice Tuason, concurred in by a child born in England was legitimate although it a11Pf'.ared on Chief Justice Paras and Justice Feria, shows· a better understandthe fuUeat evidence that the huaband resided in Ireland during ing of the command of the Constitution that "no law is to be tJ1e- whole tim,f of the wife's pr£gnaney, and for a long while passed ft.bridging the freedom of speech and of the press." J1reviously, beCause 1\-eland was within the King's dominion," The Supremti Comt earlier in Primiciaa v. Fugoso, tacitly {Wright vs. Hicks, 12 Ga. 15G, 159; 56 Am. D. 4G1 footnote, 7 C. ndopted the clear and pre.sent danger doctrine. Tested by that J. 942). "In the time of Edwa.l'd II, the Countess of GloweestE'r doctrine, the conviction here could not have been sustained. There bore a cbild one yi!Br and seven months ufter the death ot the is no question :i.bout the right of the government to punish. seduke and it was pronounced legitimate. In the reign of Henry VI, dition and incitement to sedition. There should be no question either Mr. Ba1·on Rolfe expressed the opinion with apparent gravity, that t1bout the futility of such Jetter and the fake suicide to lead people a widow might give bil't.h to a child seven years after her husband's lo take up arms. The Filipino masses cannot be deluded that easily. death without injury to her i·cputation" CDickinson's App., 42 Those who may have read the letter and may have believed it might Conn. 4U1, 501; 19 AmR 553, footnote, 7 C. J. 942. There was, have sympathized with the bel-eaved family. The letter though coUld· ~~:!iou;~~~sto:f;::e:h:i~!:~h i:f u~~:1d~~!b!~~- Jeg~~::yp:au~;~i~! ~~~:ti::~e ;~:! ::np~p~eto d!:1';r;p ~~~=:in:; ·~u:i~!!~~ is taintOO. with fiction it must not loo app2rently go against the meaning of the rule is clear: the danger involved must b~ both realitiea of life to appear 1-idiculous. clear and present. It is elea.r that the ·rule is all pervasive - /The New Civil Code has carried forward this fiction in pro- "it applies to every case." viding for certain conclusive pt-esurt:!ptions ol legitimacy of children Fear of Communism alone whether here in the Philippines or iJ! Article 258, which i·eads: in the United States does not seem to warrant such judicial timi. dity. This is not to under-estimate the peril that Communism poses. A child born within one hundred eirhty days fo11owing There is an acceptance of the view that in this country a.n.J the celebration of th<i marriagti is prima fttcifl presumed tc. be fo1· some time now there is a band of de-voted and fanatical fol~ legitimate. Such a child is conclusively presumed· to be legi- lowers of Communism. Since libe?ation witlt the aid of non.Com.. timate in any of tliese eases: munist groups who fought with tbem against the Japanese during <lJ If the husband before the marri8.j'e, knew of the . the occupation, they have been in a stage of open J"ebcllion in not pregnancy of the wife; a few pla.ees in the Philippines. ASI a matMr of fact it was the (21 If he consented, being present, to the putting of mounting intensity of such subvE:rsive activities that called, in the his surname on the record of birth of the child; presidential opinion, f~ the sUSJJension of the privilege of the May 31, 1954 LA WYERS JOURNAi, 216 A CRITICAL STUDY ... (8) If he expressly or tacitly recognized the child as his own. While these conclush·c preS'Umptions rcfe1· to children born within one hundred cighty days following the celebration of the marriage, with more reason, they also apply and with greater force to those born after such period. Under the Civil Code of Spain <Art. 110) a child born within one hundred eighty days from celebration of marriage was presumed (prirna facie) legitimate if any of the three circumsta:iees of Cal husbo.nd's knowledge of pergne..ncy of wife, (b) consent to use of his surname in the record of birth or ~C) express or tacit recognition of paternity be · present. Under Rule 128, Sec. 69, Par. CC, of the Rules of Court, ''A child born in lawful wedlock, there being no divorce, a~oluye' or from bed or board, is presumed (disputably) legitimate.'/Opinion has been expressed to the effect that the reason for Uie conclusive pl'esump .. tion in the three cases covered by Article 268 <C.C.) is estoppel by the husband (Francisco, I Civil Code of the Philippines, 684>. This view of the husband's estonpel finds support in the Anierlcan jurisdiction. "One who marries a woman known by him to be enceinte ts regarded by the law as adopting into his fa.mily the chilct at its birth. He could not expect that the mother upon its birth would discard the child and refuse to give it nu1ture and maintenance. The law would forbid a thing 80 unnaturaL The child, receiving its support from the mother, must of necea. sity become one of her family, which is equally the famiJ}r of the husband. The child, then is received into the family of the husband, who stands as to it in loco pa.rentis. This being the -1aw, it enters into the marriage contract between the mo... ther and the husband When this relation is established, the law raises a conclusive presumption that the husband is the fath~r of his wife's illegitimate child." <State v. Shoemaker, 62 Iowa, 348, 17 N. W. 589, 49 Am. Rep. 146; footnote, 7 Am. ~ur. 638). One thing, however, is the oper&tion of the _principles of es. l as a l'Ule of evidence and another thing is the grant by statute of the indisputable status of legitimacy upon a child. The rule of estoppel, as a conclusive presumption is s'lated in Rule 123, Sec. 68, Par. 8, of the Rules of Court in this wise, "When. ever a party has, by his own declaration, act or omission, intentionally a.nd deliber8tely led another to believe a particular thing true, and to act upon such- belief, he cannot in any litigation arising out of such declaration, act or omission, be permitted to falsify it." This principle may be broken up into the following essential component parts for its operation: (a) declaration, act or onrls. sion of a party, <b> deliberate intent to lead another party to believe a particular thing to be true, (c) the other party acted upon such a belief. Justice Moran, citing Bigelow on estoppel, in his Comments on The Rules of Court, Vol. III, page 461, gives the following requisites of. estoppel by conduct or in pais: (1) There must have been a representation or concealment of material facts. <2> The representation must have been made with knowledge of the facts. (3) The party to whom it was made roust have been ignora.nt of the truth of the matter. (4) It must have been made with the intention that the other party would act upon it If these elements be present the author of the act, declaration or omission cannot alter said act, declaration or omission in a liti. gation arising therefrom, which are rende1·ed conclusive as against. him. If A husba.nd, for instance, bt'ings his step.child to an exclusive college for board, lodging and schooling and makes the college officials believe the child as his own, he cannot in an ac. tion by the college for collection of fees repudiate his act, declaration or omission and prove that he is not the father of the child. For purposes of that litigation his paternity of the child is conclusive. For all other purposes, however, the child does not beCl)me his. It has been held that the conclusive presumption of legitimacy does not apply to cases involving quUtions of inheritance and heirship, where the rights of others besides the husband and ~hild arise (7 Am. Jr. 688, citing State vs. Shoemaker, 62 Iowa 348; 17 N. W. 589; MillE'r vs. Anderson, 43 Ohio St. 473; S N. E. 605>. Whe:reas,· under the New Civil Code <Art. 258> THE EXPANDING CONCEPT ... writ r>f habeas corpus in 1950, happily l'estored a fe'IV we<iks ago. Through the energetic measures taken by the then Secretary of National Defense, now President-elect, Ramon Magsaysay, an end fl1 this armed uprising is in sight. The view is equally accepted that the forces of Communism bave not been enth·ely wiped out. As long· as Russia :remains a great power and while the struggle fo1· world supremacy continues, Communism may be a spent but not a moribund force in the Phililippines. The small but fiercely determined group of local Communists who may still be at large can be expected to continue 11.n~bated their efforts at winning converts. Their argument& m"f not fall on deaf ears as long as the conditions of misery under which a great portion of the tenant and laboring classes live continue unrcmedied. The social justice measu1-es undertaken by the Government must be expanded in scope and acc£lerated in time to cut the ground from under the deceptive but plausible appeals of Communist leaders. Granting, however, that now and in the foreseeable future there ai·e still among our countrymen those who a1-e victims of the delu. sion that is, Communism, it is my view that we, in the legal profession, must remain steadfast in our dedication to the diffi.cult but highly rewardfog task of defending freedom of belief and of opinion. This is not to l:leny that lawyers, mnre t.han any othP.r group. cannot afford to close thieil' eyes to the realities. They should not live in a social void. , The task of the judiciary then in adjusting or harmonizing individual ritrhts with the !l&fety of the. state, ordinarily one of utmost delicacy, then becomes even more formidable. It beeomeil equally 80 for us practitioners. The fact remains however that the regime established here is one of liberty, of justice and of democra.cy. Belief in the theory of liberty is not merely an echo of a discredited past. It remains a fighting faith. It is a proclamation of the vitality of the democratic process. It rests on the conviction deeply and profoundly held that given the choice, a free people wi11 prefer to remain free. We shall remain true to the noblE'St ideals of our profession if we act accordingly. To us thus is entrusted the difficult and exacting task of pro.. ' tE'Cting personal freedom, mo1-e specifically, as counsel for the defense. ThiR obligation is one of the inost valued specific rights of an accused. I do not have to recall how Justice Moran characterized right to counsel in People v. A rnault. Then there is t'he terfle statement by Justice Douglas that: "The accused 'needs the aid of counsel lest he be the victim of overzealous prosecutol"s x xx or of his own ignorance.' " At this juncture, it may not be inapproJ?riate to speak of the 1·ole of the defense counsel defending those accused of Communism. The revulsion and the repugnance that p!t.rticipation in the Communist led rebellion has occasioned law-abiding citizens is understandable. Nonetheless, it is equaJly imperative th&t when so accused and when so tried the members of the legal profession whether as tU oficio or retained counsel should not shirk the duty of defending them a11d assuring that their conviction if it comes is in accordance witl. dUE' process. You are all familiar with a membe1· of our profession whose opinion on this puint certainly cann'3t command our approval. He denounced the effol'f:S of some of the most respected members of the Bar when they defended in court those accused of Communism. He seemed to have ignored the fact in thus &£fording them the opportunity to meet the charge against them, they were d~privcd of capitalizing on the propaganda line that a democracy does not live true to its profesred belief in freedom and fairness. It is hea1tening to note the vigorous dissent of our people, as shown in the last elections, to that unjustified a.ccusation of our fellow lawyer, the occupant of one of the most exalted offices in the land, until noon of December 30, that is. , Our Nie in the defense of liberty as the freedom to be let aloneis cleal'. It has beE'n sanctified by centuries of legal tradition. We know what to do. What is more important, we have on the whole been doing it. When we speak thouFh of our mission in connection with the positive aspect of liberty or freedom for the achievement of one's potentialities, we ca.nnot be that confidtmt. There '!lay even be moments of doubts and misgivings as to what 216 LAWYERS JOURNAL May Sl, 1954 A CRITICAL STUDY ... the child is conclusively legitimate against the whole world if any of the three circumstances ther<'in provided be preseni. The conclusive presumption l)~-~~C'!_t!~~ _ 1)~der the New Code fArt. 268) invites il'reconcilablP. clashea__between _fiction and fa.et to such an100enf8i-Diay shock th~ conscience. Suppose a-Filipino woman who has never beeil-Outside th.; Philippines be engaged through the mails to an American male who had never been there.. tcfore Gutside the 'United States. This is not only poaslble but has actua1ly happened as a. result of pen-pal letter writing encouraged by some newspapers. The suitor arrived in the PluliPpines to marry his Filipina sweetheart only to discover her advanced state 'lf prepaney. For one reason or another he, nevertheless, married her ten (10) days after his arrival (giving al. Jowa.nces fo1· issuance of the marriage licl'nse), She delivel'f'd a normal baby the day following the marriage. Under the law, the child is conclUsively presu1ned legitimate of the· poor husband. The normal mind cannot be convinced of the fiction. Even if the two f2l other requisites-consent to the use of the husband's surname in the registry of birth, a.nd express ·or t.acit reeognition of paternity be present the brains will revolt aP~nst such atroeiti.es of the law against the facts of life. Argulnent may be. advanced that the husband should suffer the conlequences of his· own etu.. pidity to which a reply may well be made th11;t the laW should not <>pen itself as an instrument of offense for it may very well h&Ppen that not only the husband suffers. but his own legitimate c.ompulsory heirs may fall victims to the unwisdom of the law. The 1tbsurdity of the conclusive presumption of l~gitimacy becomes more obvious if there be legal impe4,iments to the marriage at the time of conception. Take the case of a widower who. married, for instance, fifteen days after the death of his spouse a Woman in a state of pregnancy known to him. Under the law <Art. 258, c.C.l even if the second wife delivers a normal. fpetu_s five days following the marriage, the . child is conclusively .legitimate of the hu11band. Medical authorities are agreed that six months (6J intrauterine life is the minimum requirement for a foetus to live. At the time of conception of the child in the illustration th-e indisputa.ble father was 'not only not married W its mo~er b~t mar. lied ~ anoth~r wife. The New Code <Art. ~68) pro~ounces him conclusively legitimate, without admitting proof to the contrary. And the situation of the chi1d indisputably presumed _legitimate Decomes ·more compli.cated if we take into :Occount the conflict ol paternity between the former and the subsequent hu11bands of a widow who remarries earlier than authorized by law. Article_ R4 <C.C.> prohttiitB-thEnuuance of a. ma.rriage Jicense m a"widow ·tilt after tbree hundred days fol1owing the death of her . husband, unless. in the meantime she has given birth to a child evidently for the purpose of avoiding . conflicts of paternity between the ~~~=~t :c;:n~u:1~;>~;~~·~;:~dD~=:~1 1go::hi:A::2 ;5i,eo;~ nalizes a widow who shall remarry within three hundred- days from the de&th of her husb~nd, or before having delivered if she shall have been pregnant at the time of his death. It should be noted that a marriage license is an essential requisite of marriage, except in a;~rri.age of exceptional character <Art. 53, C.C~.> and If the widow remarries without a ma.rriage licenJe her seeo marriage will be void from the beginning <Art. 80, c.c.>. owever, if she succeeds in .obtaining a marriage licenie and r1U11arries \vithin the prohibited period, her subsequent marriage will, undoubtedly, be valid notwithstanding the legal prohibition and the criminal liability she may have incurred. Then there arises the p:>asibility of a conflict of presumptions of legitima.cy if the remarried widow delivers. a child within three hundred days following the death of her former husband (See Art. 255, C.C.) and at f,he same time within one hundred eighty days from the celebration of the subsequei;it marriage <See Art. 258, C.C.> or aft.er such period of one hundred eighty days from such marriage (Art. 255, C.C.>. The New Code <Art. 259) solves the.fc possible conflicts of presumptions by providing: If the marriage is dissolved by the death of the husband, and the mother contracted another marriage within three hundred days following such death, these rules govern: THE EXPANDING CONCEPT ... it ought to be. NoJO is this unusual. We are on unfamiliar grountl. Li~rty as freedl)m to achieve has but lately received emphasis. As a matter of fact, here, again, the threat tha.t Communism po!!e& against Democracy is an important contributory factor in Lhe long overdue attention now being paid to it. The realization keenly grows that Democracy may lose its appeal for the ra.nk and file in any country when conditions .:1£ want and misery abound and are net remedied. · It is gratifying to note that one of our fonmost statesmen an•i patriots and certainly, the outstandi:r.g contitutionalist, Senator Jose. P. La.utel, has aptly entitled his recent collection of essays on government, "Bread and Jo,reedom.'' Verily, if one speaks of liberty to a man emaciated in body with his basie needs unsatisfi~d. the response is likely to be less than enthusiastic, very much less . Hence, the appearance in constitutions or recent vintage of such rights, termed social and economic, intended to· translate into i·eality the promise of Democracy in the wa.y of more decently housed, decently fed, decently clad, and therefore, happier and more contented citizenry. Our Constitution which in thi:! words of Justice Laurel, ''WaR adopted in the midst of social unrest and dissatisfaction resulting from eoonomic and social .distress," then threatening the stability of governments the world over reflects that aspiration. One of the fundamental (lrinciples therein stated is the p1'01notion of social justice "to insure the well-being and economic Security of all the people." More specifically, there is the con&titutional command that the State shall a.fford protection to la.. bor, especially to working women and minors and shall regulate the relations between landowner and tenant, a.nd between labor and capital in industry and in agriculture. The Congress of the Philippines likewise may determine by law the size of private agl.'icultural lands which individua.Js, C01'· porations, or associations may acquire a.nd hold, may authoriZE', upon payment oi just compensation the expropriation of lands to be subdivided into small lots and conveyed at cost to individUals. l·'ranchises, certificatPcs and any other fenn of authorization for the operation of public utilities in the Philippines may be gmntP.d only to Filipinos or to corporations or t<• other entities organi~ under the laws of the Philippines, sixty per centum of the capiU\l of which is owned by citizens of the Philippines, cannot be exclu.. sive In character, may not be granted for a longer period than fifty years and shall be subject to amendment, alteration 01· re1ieal by the Congress of the Philippines when the public interest so requires. The Republic of the Philippines is enjoined to promote scientific rese&rch and invention, arts and letters being under its pa.. tronage and to create icholarships in arts, ecience, and letters fer specially gifted citizens. . What liberty in the positive sense mean, likewise finds expression in the specific provisions of the Universal Declaration of Humi:r.n Rights, including such rights 'Jf everyone to social security, to work, to free choice of employment, to just and reason.. able renumeration, .insuring for himself and his family a_n existence worthy of humM dignity, to rest and leisure, to a standard of living adequate for the }lealth and well-being of himself ~nd of his family, to education, to participation in the cultural. bfe. of the community, to enjoyment of the arts and to a share 10 SClentifjc advancement and its benefits. No Constitution as of now, goes that far. Even if it does, the actual may tali short of the ideal. At least the Universal Declaration of Human Rights seta a goal Who knows but that it may yet be realized. It is understandable, however, that for those rights to be en. joyed, the expansion of the regulatory activities of the Government may be unavoidable. This will mean the restriction of liberty C'f some so as to assure the enjoyment of li~rty by others. many ethers. As Laski stated: "There are vital elements in the common good which can only be schieved by action under the state-power - educati'Jn, housing, public health, security against unemployment.'' · How does liberty in its poeitive aspect with thP. correspondint expansion uf governmental activity affect us as lawyers? As I May 31, 1964. LAWYERS JOURNAL 217 A CRITICAL STUDY ... (1) A child born before one hundred eighty days after the solemnization of the subsequent ntal'riage is disputably presumed to have been conceived during the former marriage, provided it be born within three hundred days after the death of the former husband: (2) A child born after one hundred eighty days following the celebration of the subsequent marriage is prima f4tie presumed to have been conceived during such marriage, "'·e!'.I though it be born within the three hundred days after the death of the former husband. Article 259 CC.C.) attempts to solve the cnnflicts of presumptions of legitimacy <Code Commission Report, 86) that may arise from the operation of Article 255 CC.C.) and its possible ovedapping with Article 258 CC.C.) in case a widow remarries within the prohibited period (assuming that she succeeded in obtaining a QJ.arriage license) and subsequently delivers a child within three hundred days following the death of her former husband which gives rise to a presumption almost conclusive of le&itimacy of the child as that of the former husband CArt. 255, C.C.>, but if the child be at the same time born after one hundred eighty days following the celebration of the subsequent m&l'riage there is also the same presumption almost conclusive of legitimacy that the child is that of the subsequent marriage CArt. 255. C.C.l; and if the child be born within one hundred eighty days following the celebration Of the subsequent marriage, under the first sentence of Article 258 (C.C.> the child is presumed prima facie legitimate of the subsequent marriage, which prima fa.cie presumption should yield to the almost conclusive presumption provided for in Article 255 CC.C.) which may be overcome only by evidence of ph)'sical impossibility of access by the husband to the wife during the first one hundred twenty da/.:s f the three hundred which preceded the birth of the chit~. is believed that Article 255 CC.C.) and Article 268 CC.C., fir sentence) are general rules and should yield to the provisions of Article 259 CC.CJ under the special and abnormal cir~umstances of a ·widow who remarried within the pij"Jribited penod and delivers a child within three hundred daysArom the death of her former husband which birth may also take place dther within or after one hundred eighty days following the celeLration of the subsequent marriage -in the first case the child is disputably presumed legitimate of the former marriage, and in the second case the child is prima. facie presumed legitimate of the subsequent marriage CArt. 259, C.C.> which may be overcome ~ any evidence admissible in law. The problem becomes more complicated if the present husband lmew of the pregnancy of the widow before the subsequent mauiage, or if he consented. being present to the putting of his surname on the record of birth of the child or if he expressly or tacitly recognbed the child as his own, in which case the child is indisputably presumed his lcgitin1ate child CArt. 258, C.C., second sentence> which, being conciusive, ~dmits of no evidence to the contrary, If the conclusive presumption of legitimacy provided for in Article 258 CC.C., second sentence) , were disputable the law can better cope with compli~ated and perplexing situations which may arise many of which, indeed, cannot now be anticipated. The law as it is, ho~-ever, before suggested reforms come ~ realization, has to be applied to cases as they spring up and it will be, indeed, the difficult task of the bar and the bench to arrive at just and logico.l solutions. Professor Emiliano R. Navarro of the College of Law, Arellano Universjty gi\•eft his own very enlightening view lNanrro, II Cases, Mat:rials and Com-. ments on Persons and Family Relations, 726-727) on the operations of these apparently conflicting presumptions in these words: "A child born before one hundred eighty da.ys after the solemnization of the subsequent marriage and within three hundred days after the death of the foriner husband is disputably presumed, by t~e present article, to have been conceived d~ring the former marriage. But for this arti9Ie, the presumption would be conclusive under article 265. "It may, therefore, be seen that the conclusive presumption in article 255 becomes disputable when it conflicts with the disputable THE EXPANDING CONCEPT ..• ha.ve said earlier, this is a problem that our profession has faced only recently. It offers both a challenge and an opportunity, a challenge that mu.Qt be met and an opportunity that must not be missed. . To many of us in the law profession perh~ps especially 80 m ease of the younger ones, p~blic service outside of the field of prosecuting agencies and the judiciary ·beckons. For in a government of laws and not of men, that now is branching out into al'ea& hitherto left to private enterpriB<!', the need for additional law1ers betomes apparent. Considering that even now the seductive spell that ~ur profeftSion casts over ambitious youths still persists notwithstanding the many other fields of endeavor open to 'ambitious· minds, this is a tendency nnt to be deplored. Certainly, if the trend is for more not less government, as all signs indicate, our liberties will be Ba.fer, I hope, in the hands of our fellow lawyers. It is not however of the opportunitier for more gainful pursuits in the government service that I wish to emphasfae. I have in mind more of the effect of this wider field of governmental activity on the attitude of us lA.wyers as pr11ctitio11tts. By and large, we are retained to Tesist go~el'Dmental intrusion into pTi. vate affairs. It is not only nntura.1 but expected of us then to make use of all our faculties in zeafously resisting what to ns may be unwarranted extension of state authority. That way, the freedom of the mind as weU as the freedom of the person is duly safeguarded. As pointed out earlier, we would be recreant to our responsibilities if we do less. Please note, however, that such service is required of us in connection with a conflict of interests between the government on the one hand, and private individuals, on the other. In that sense, the freedom from, as safeguarded in the Constitution, is freedom from state authority. When we spE:Bk of freedom for, however, the situation is dis.. slmilar for the state here is activt>ly called upon to mediate and reconcile conflicting interests between individuals as betwef!n grnups. with public welfare as the guiding consideration. Liberty, in the positive sense as opportunity for the full and unimpeded development of one's potentialities, may for certain groups of individuals, those economicaUy insecure, be attainable only when the government acts as its protector. Our Constitution thus hRs a manda.te on governmental protection to labor. Those of UB 4!alled upon to advocde ·the cause of the higher income groups, more prone to feel the impact . of state regulatory activity, are not expected to show less than our customary zeal in the defense of their rights. They are entitled to nothing less. All that I would wish to invite your attention is more understanding on our part ot why the government ill thus cnmpelled to act a.nd leas stubborn resistance tc justified state effort. We owe it to ourselves no less than to our country to which we are all devoted. Our responsibility in enlightening tht> rest of our fellow citizens, by precept and example, as to what liberty under law means is inescapable. It is even more imperative then that in the new era about to open, with hopes, justifiable hopes, for greater achievements, under conditions no less trying and under eircumstances equally exacting as in the immediate past, we fulfill our role adequately. To us, the nation lookr for leadership. It is entitled to it. It will get it. Liberty, not in the abstract but in the concrete, is for us to enrich or frustrate. The choice is obvious. We cannot, even if we wish to, and I do not think we do, neglect or ignore that task. If we fail in giving vitality and reality to the concept of liberty, the nation fails with us. Democracy becomes a mockery. We will fall a.n easy prey to the forces of Communism. We cannot afford to fail then. From us must come in our cwn field of action mighty blows for the sacred cause, that is Democracy, not the least attractive quality of' which in the battle for men's minds and hearts is its devotion to freedom. The conviction that no other way of life is deserving of the utmost loyalty and allegiance would be immea.surably strenithened by our profession being firm, immovable, unwavering in its fidelity to the regime o1 liberty enshrined in our Constitution. . . . 218 LAWYERS JOURNAL May 81, 1954 A CRITICAL STUDY ... p1-esumption in uticle 258. But, under this la.st article, the disputabJe presumption becomes conclusive when any one of the three circumstances therein mentioned be present. When the conclusive presumptions, then, under articles 255 and 258 conflict, does the disputable presumption in paragraph (1) of the arlicle we are commenting on still hold? Or is the case thrown open to proof as if no presumption covers it? Or, does the conclusive presumption in a1·ticle 258 govern the case, thus outweighing the disputable presumption in the paragraph of the law we a.re commenting on 1 For the position that the disput.. lible presum-ption in article 259 Cl> still governs, it may be said that the law is in terms absolute. But we have the curious case of a chi1d who is owned by the husband of the second mlirriage who is not similarly claimed by the husband of the first marriage since he died before the child was born. The second husband may be living when the iasue of patemity comes up. As a matter of policy, the second husband should be favored. This position, however, may prejudice the innocent child. But if the case be thrown open to proof, as if no presumption covers the case, the child may be prejudiced th~ more, since it would be a fatherleas child until it can prove who its father is. The problem is perplexing and we can do· no more ttian define it. It would seem that, under the situation we are discussing, it would be reasona.ble to establish at least a disputable presumption, if not a conclusive one, in favor of the second marriage, as does paragraph (2) of the article we al1" commenting on. Paragraph (2) Of the article we are discussing invo1vea a conflict of conclusive presumption11 under article 256. The disputable presumption in favor of the second marriage is wise from the point of view of policy. The child is born in this marriage where it is more likely to receive the care and attention that it needs." / The New Code (Art. 267) introduced a novel feature in the lliw of legitimacy by proving for a presumption prima. faci.e Of illegitimacy of a chiJd under the following circumstances, ~ wit: Should the wife commit ndultery at or about the time o1 the conception of the child, but there was no physical impoa.sibility of access between her and her husband as set :£or1:h in article 265, the child is prima. /acie ·presumed to be illegitimate if it appears highly improbable, for ethnic reaaona, that the child is that of the husband. For the t>Urposes of this article, the wife's adultery need not be proved in a criminal case. Dr. Jorge Bocobo, Che.irnian of th.: Code Commission, speaking before the Joint Code Commisskm 'lf the Senate and Ho~ of Re. presentatives (XVII The Lawyers Journal, No. 1, January 31, 1962, page 49) explained the background of and reasons for this presumption of illegitimacy. And we quote Dr. Bocobo: "Thie article, Mr. Chairman, is primarily intended to take care of the special 'situation created by the liberation as a result of which there are so many child1·en now or babies who are evidently indubitably the children of those G-l's both block and white. The situation created in those days was anomalous, thus making the Filipino husband unfortunately deceived h)" the Filipino wife because in such a time we know tha.t the G-1 became SOml!lwhat like heroes and while the husband and wife were living together, I.he wife went with the G-1 negro or white. There are now thousands of those white or negro babies. Now, it ia a matter of racial dignity for us to change the presumption in this case~ in this given situation. 1 admit that it is exceptional to preaume illegitimacy but in view of the facts surrounding the case and the wbole neighborhood knows that that child of a G-1, the Filipino husband plays the most ridiculous and the most sonowful role in the community. If. it were not for this Art. 257 or whether you call the presumption of legitimacy prima facie only the effect to the community, to the public, is the same. They point out to the poor husband "You aee, that Filipino is the_ legal father of the ne .. gro or white baby" and to save the honor and good name of the Filipino father there should be a prima. fa.cie presumption of illegitimacy because we are dealing here with an exception. If you are going to follow the general rule of presumption of legitiml!_cy what will be the result? That baby. though very black with kinky hair or very white with blond hair will automati~@.lly bear the surname of the father. And that is very humiliating to the Filipino father. Now, if the presumption is going to be legitimacy although prima /acie, don't you see, gentlemen, that burden of proof is on the part of the legitimate children to show the illegitiinacy of. thi! negro baby? We kn"'-w how hard it is to prove a negative proposition, Now, 1 admit thaJ; there is the biological law of recission to an ancestor. It may be that a white baby, a mestizo may appear after two or three generations because the great grandfather was a Spaniard. That may happen. In the first place it ilJ very rare. In the second place that would be a case where those who allege the contrary to the prima facie, presumption will present witnesses to show ths.t the great grandfather was a Spaniard. We don't close the door, if for instance the baby is the great grandson of a Spaniard. That can be shown to rebut the prinw. /acie presumption of illegitimacy, As I said this is a very exceptional· situation, which is the saving of the dignity and the honor of the Filipino parentage, particularly the Filipino husband." In order that a prime fa.ci,e presumption of illegitimacy may arise under Article 257 CC.C.) the following requisites must be present: (a) wife committed adultery at or about the time of con.. ception of the child, Cb) there was no physical impossibility of access by the husband to the wife during the first one hundred twenty days of the three hundred preceding the birth and (c) for ethnic or racial reasons it appears highly improbable that the child is that of the husband. Thus, if a Filipina wife living with her Filipino husband delivers a negro child and there be evidence of commission of adultery by the wife during the probable period of conception the child is presumed prime /a.cie illegitimate. The law does not require that the man with whom the wife committed adultery for ethnic reasons could prob&Dly be the father of the child. If the Filipina wife, therefore, in the same example, committ!d adultery with a negro and a baby of the white race be bom, the presumption of illegitimacy will arise. In the American jurisdiction, the operation of the rule is the reverse. The presumption is in favor of legitimacy of the child which may be overcome by evidence that the husband for ethnic reasons could not probably be the father of the child. It has, therefore, been held that "the J)Jesumption of legitimacy may be overthrown . by evidence that a mulatto child was born of a wife of the white race married to a husband also of the white race, since it is contrary to the laws of na.ture for both parents of a mulatto to be persons of the white race" (7 Am. Jur. 660; Wright vs. Hickii, 12 Ga. 155 Nolting n. Holt, 113 Kanaas 494). The presumption Of illegitimacy provided f~r in AJ-ticle 257 CC.C.> seems to be an original idea of the Code Commission without having been adopted from any foreign jurisdiction. The Jaw as it stands makes it difficult for the child to overcome the presumption of illegitimacy because of his age, 11.hereas, if the presumption be that of legitimacy the Jmsband will be in an adequate position to dispute it. House Bill 1019 <See Francisco, I Civil Code of the Philippines 683> proposes to amend A1ticle 257 CC. C.> to read as follows: "Art. 257. Should the wife commit adultery at or about the time of the conception of the child, but there was no physical impossibility of access between her and her husband as set forth in article 255, the presumption of legitimacy 111&). be overcome by proof that it is highly improbable, for ethnic reasons, that the child is that .,f the husband. For the purposes of this article, the wife's adultery need not be proved in a criminal case." Moreover, if the idea is to protect the husband from intrusions by strangers into the family, then the law should not limit itself to adultery of the wife during the probable period of conception; it should include rape of the wife by a stranger during such period cf conception, if it turns out that. for ethnic reasons it is highly improbable that the husband could be t:he father of the child. <Continued on page 259) May 31, 196' LAWYERS JOURNAL 219 Besides, Justice Reyes fail.;i to grasp the method of the mw Civil Code in See. 2 - "Order of Intestate Succession". By Articles 978, 985, 988, 995, 1001, and 1103, the Code names the re. latives who, in the order stated, inherit the whole est<it.. Article 978 assumes that there is no surviving spouse. (To be Continued) A CRITICAL STUDY ... <Continued from page 219) CONCLUSIONS AND RECOMMENDATIONS Much of the possible difficult situations we have endeavored to present which cannot be adequately solved by the present provisions of the Code without absurd results may be remedied by eliminating the conclusive presumption of legitimacy provided for in Article 258 of the present Civil Code in s.ny of the three case9 therein mentioned. This will make the present rigors of the law more flexible to permit its rigidity yield to the realities 9f hfe. The Prima. facie presumption of illegitimacy provided for in Article 257 <C. C.> shoUld be reversed. The presumption of legitimacy should be the rule, but its rebuttal should be allowed under the conditions and circumstances mentioned in Article 257 <C. C.l and adding thereto the case of rape of the wife dul'ing the S•1me period of time. Articles 255 and 259 may remain as they .:ire subject to a modification of Article 259 CC. C.> for clarity only by incorpore.ting to the opening paragraph thereof the foUowing phrase, "notwithstanding the provisions of Article 255". · It is, therefore, recommended that Articles 257, 258 and 259 of the Civil Code be redrafted to read as follows: "Art. 257. In case of the commission of adultery by the wife or rape of the wife at or &bout the time of conception of the child, but there was no physical impossibility of access by the husband to the Wife as set forth in Article 255, the presumption of legitimacy therein provided, may be overcome by proof that it is highly improbable for ethnic reasons that the child is that of the husbaiad. Fo1• purposes of this Article the adultery or the rape as the case may be need not be proved in a criminal case.'' rPattemP.d after House Bill No. 1019; Francisco, I Civil Code of the Philippines 683). "Art. 258. A child born within one hundred eighty days following the celebration of the marriage is prima. facie presumed to be legitimate.'' "Art. 259. If the marriage is dissolved by the dee.th of the husband, and the mother contracted another marriage within tliTeO hundred days following such death, the&e rules shall govem, notwithstanding the provisions of article 255: (ll A child bom before one hundred eighty days after the sol~niYtion of the subsequent marriage is disputably presumed to have been conceived during the former marria.ge, provided it be born within three hundred days after the death of the former husband; (2) A child bom after one hundred eighty days following the celebration of the subSequent marriage i.s primer. faoi.e presumed b have been conceived during such marriage, even though it be bol'D within the three hundred days after the death of the former husband.'' DECISION OF THE. . . <ConUnu•d r- page 248l of time on a particular style of packages any registration which might issue upon its application would not be limited to use upon such packages, and the p&ckages used could be changed by either party at any time. Ambrosia Chocolate Co. v. Myron Foster, 603 0. G. 545, 74 USPQ 307. U1ide-r well settled tW.thority <General Food Corporation v. Casein Company of America, Inc .• 27 C.C.P.A. 797, 108 F.2d 261 144 USPQ 33); Barton Mfg. Co. v. Hercules Powder Co., 24 C.C.P.A. 982, 88 F.2d 708 (33 USPQ 105); Sharp & Dohme, Incorporated v. Abbott Laboratories, 571 0. G. 519, 64 USPQ 247>, the difftn-ences in packaging ca• not affect the right to .. e. gistra.tion." (underscoring supp1ied} In view of the well-settled principle that an opposer need not own a trademark; a registered trademark; or have exclusive rights FOR lHE SAKE OF TRUlH BY POR~'IRIO C. DAVID I wish to make a vigorous exception to Mr. Federico B. Moreno's article ROLL OF HONOR (of judges of First Instance) as published in the Sunday Times Magazine of May 9, 1954. I do not question Mr. Moreno's right to praise a particular judge or group of judges. For the consumption of the public, he can even raise them to the level of an· Arellano, a Cardozo or Holmes. But, he has no right to do so at the expense of other judges whom he had degraded and ridiculed by publishing his conclusions about their efficiency on the basis of half-truths and mis-truths. The proficiency of a judge cannot be co:irrectly Jl)easured by the precise action of the Supreme Court on his appealed decisions and orders for only one year (last year) and on the applications for writs of certiorari, prohibition and mandamus decided in the preceding three years and on the basis of important cases settled by the Court of Appeals in 1952 and 1953 as published in the Official . Gazette. One who is familiar with the machinery of justice, like Mr. Moreno, who is a lawyer, should know that not all decisions are published in the Official Gazette. Hence, to rate a judge en what might have been published of his appealed decisions in the Official Gazette alone would be the height of irresponsibility. Take, for instance, the particular cases of Judges Barot, Moscoso and Ocampo, who are represented to have had Jlo affirmed · decisions of any sort during the period given. This is unbelievable. I regret that I do not have offhand the records CJf Judge Moscoso, wbo is in the Visayas, and of Judge Barot, who is in Pampanga. But from the records alone of Judge Ocampo as available in the Office of the Clerk of Court of the Court of First Instance of Manila, where said judge has been presiding since 1951, I can say that the conclusions of Mr. Moreno about these judges are at once preposterous and gratuitous, if not libelous. In this connection, I am supporting my stand with .the facts and figures appearing on the correct copies of Reports of Cases decided by Judge Ocampo and brought to the Appellate Courts, duly , certified by the clerks in charge, which are self-explanatory. Summarizing, I find: Criminal cases appealed •..•.............. , 34 Affirmed ... . ... . .•. . .... ....... ..... .. 8 Modified , • . • . • • • . . . • . . . . . . . . . . . . . . • . . • 3 Appeal abandoned ......... , . . . • . . • • . . . . 8 Reversed . . . . . . .. . . . . . . . .. • • • . .. . . . . . . . 2 Pending .............•......... ; . . . . . . . . 13 Civil cases appealed to Supreme Court . . . . . . 4 Pending . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . 2 Affirmed .... , .• ,. . . . . . . . • • • . . • . . . .. . . 2 Reversed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . None Civil cases appealed to the Court of Appeals . . 19 Pending . . . . . . . . . . . .. . • . . . . . . . . . . . . . . • 13 AJ;lpeal dismissed or abandoned .... , . . . . 4 Affirmed . . •. . . . . .. . • . . • . . • . . . . . .. . . . . . 2 Reversed . . .. • . . . . . . . . . . . • . . . . . . . . . . . . . Non~ If only to set tlle record straight and to oorrect any wrong impression which Mr. Moreno's article may have produced on the readers' minds, I have taken pains to dig up the above facts and figores. to a trademark, registered or unregistered; all he needs being something which is analogous to a trademark, and e. showing that he would probably be damaged by the registration sought; and in view of the egually well-settled principle that the appearance fJf the labels bearing the rival trademarks cannot affect the right to registration of one of them, the motion to dismiss the Opposition ia rejected, and the Respondent-Applicant is' directed to answer the same within fifteen (15) days of his receipt of a copy hereof. SO ORDERED. Manila, Philippines, October 31, 1952. <SGD.) CE1$DONIO AGRA VA Director of Patents May 31, 1954 LAWYERS JOURNAL 2159
pages: 213-219, 259