G.R. No.

125865           January 28, 2000

JEFFREY LIANG (HUEFENG), petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

YNARES-SANTIAGO, J.:

Petitioner is an economist working with the Asian Development Bank (ADB). Sometime
in 1994, for allegedly uttering defamatory words against fellow ADB worker Joyce
Cabal, he was charged before the Metropolitan Trial Court (MeTC) of Mandaluyong City
with two counts of grave oral defamation docketed as Criminal Cases Nos. 53170 and
53171. Petitioner was arrested by virtue of a warrant issued by the MeTC. After fixing
petitioner's bail at P2,400.00 per criminal charge, the MeTC released him to the custody
of the Security Officer of ADB. The next day, the MeTC judge received an "office of
protocol" from the Department of Foreign Affairs (DFA) stating that petitioner is covered
by immunity from legal process under Section 45 of the Agreement between the ADB
and the Philippine Government regarding the Headquarters of the ADB (hereinafter
Agreement) in the country. Based on the said protocol communication that petitioner is
immune from suit, the MeTC judge without notice to the prosecution dismissed the two
criminal cases. The latter filed a motion for reconsideration which was opposed by the
DFA. When its motion was denied, the prosecution filed a petition
for certiorari and mandamus with the Regional Trial Court (RTC) of Pasig City which set
aside the MeTC rulings and ordered the latter court to enforce the warrant of arrest it
earlier issued. After the motion for reconsideration was denied, petitioner elevated the
case to this Court via a petition for review arguing that he is covered by immunity under
the Agreement and that no preliminary investigation was held before the criminal cases
were filed in court.
1âwphi1.nêt

The petition is not impressed with merit.

First, courts cannot blindly adhere and take on its face the communication from the DFA
that petitioner is covered by any immunity. The DFA's determination that a certain
person is covered by immunity is only preliminary which has no binding effect in courts.
In receiving ex-parte the DFA's advice and in motu propio dismissing the two criminal
cases without notice to the prosecution, the latter's right to due process was violated. It
should be noted that due process is a right of the accused as much as it is of the
prosecution. The needed inquiry in what capacity petitioner was acting at the time of the
alleged utterances requires for its resolution evidentiary basis that has yet to be
presented at the proper time. At any rate, it has been ruled that the mere invocation of
1 

the immunity clause does not ipso facto result in the dropping of the charges. 2

Second, under Section 45 of the Agreement which provides:

Officers and staff of the Bank including for the purpose of this Article experts
and consultants performing missions for the Bank shall enjoy the following
privileges and immunities:

a.) immunity from legal process with respect to acts performed by them
in their official capacity except when the Bank waives the immunity.
the immunity mentioned therein is not absolute, but subject to the exception that the
acts was done in "official capacity." It is therefore necessary to determine if petitioner's
case falls within the ambit of Section 45(a). Thus, the prosecution should have been
given the chance to rebut the DFA protocol and it must be accorded the opportunity to
present its controverting evidence, should it so desire.

Third, slandering a person could not possibly be covered by the immunity agreement
because our laws do not allow the commission of a crime, such as defamation, in the
name of official duty. The imputation of theft is ultra vires and cannot be part of official
3 

functions. It is well-settled principle of law that a public official may be liable in his
personal private capacity for whatever damage he may have caused by his act done
with malice or in bad faith or beyond the scope of his authority or jurisdiction. It appears
4 

that even the government's chief legal counsel, the Solicitor General, does not support
the stand taken by petitioner and that of the DFA.

Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic agent,

assuming petitioner is such, enjoys immunity from criminal jurisdiction of the receiving
state except in the case of an action relating to any professional or commercial activity
exercised by the diplomatic agent in the receiving state outside his official functions. As
5 

already mentioned above, the commission of a crime is not part of official duty.

Finally, on the contention that there was no preliminary investigation conducted, suffice
it to say that preliminary investigation is not a matter of right in cases cognizable by the
MeTC such as the one at bar. Being purely a statutory right, preliminary investigation
6 

may be invoked only when specifically granted by law. The rule on the criminal
7 

procedure is clear that no preliminary investigation is required in cases falling within the
jurisdiction of the MeTC. Besides the absence of preliminary investigation does not
8 

affect the court's jurisdiction nor does it impair the validity of the information or otherwise
render it defective. 9

WHEREFORE, the petition is DENIED.

SO ORDERED. 1âwphi1.nêt

Davide, Jr., C.J., Puno, Kapunan and Pardo, JJ., concur.

Footnotes

See United States v. Guinto, 182 SCRA 644 [1990].

1 

Chavez v. Sandiganbayan, 193 SCRA 282 [1991].

2 

K.H. Wylie v. Rarang, 209 SCRA 357, 368 [1992].

3 

Shauf v. CA, 191 SCRA 713 [1990]; Animos v. Phil. Veterans Affairs Office,
4 

174 SCRA 214 [1989]; Dumlao v. CA, 114 SCRA 247 [1982].

Sec. 31, 1 (c); See also Minucher v. CA, 214 SCRA 242 [1992].

5 
 See Del Rosario, Jr. v. Bartolome, 270 SCRA 645 [1997].
6 

People v. Abejuela, 38 SCRA 324 [1971].

7 

Sec. 1, Rule 112, Rules of Criminal Procedure.

8 

People v. Gomez, 117 SCRA 72 [1982]; People v. Casiano, 1 SCRA 478

9 

[1961].

G.R. No. L-5887 December 16, 1910

THE UNITED STATES, plaintiff-appellee,

vs.
LOOK CHAW (alias LUK CHIU), defendant-appellant.

Thos. D. Aitken for appellant.

Attorney-General Villamor for appellee.

ARELLANO, C. J.:

The first complaint filed against the defendant, in the Court of First Instance of Cebu,
stated that he "carried, kept, possessed and had in his possession and control, 96
kilogrammes of opium," and that "he had been surprised in the act of selling 1,000
pesos worth prepared opium."

The defense presented a demurrer based on two grounds, the second of which was the
more than one crime was charged in the complaint. The demurrer was sustained, as the
court found that the complaint contained two charges, one, for the unlawful possession
of opium, and the other, for the unlawful sale of opium, and, consequence of that ruling,
it ordered that the fiscal should separated one charge from the other and file a complaint
for each violation; this, the fiscal did, and this cause concerns only the unlawful
possession of opium. It is registered as No. 375, in the Court of First Instance of Cebu,
and as No. 5887 on the general docket of this court.
The facts of the case are contained in the following finding of the trial court:

The evidence, it says, shows that between 11 and 12 o'clock a. m. on the

present month (stated as August 19, 1909), several persons, among them
Messrs. Jacks and Milliron, chief of the department of the port of Cebu and
internal-revenue agent of Cebu, respectively, went abroad the
steamship Erroll to inspect and search its cargo, and found, first in a cabin near
the saloon, one sack (Exhibit A) and afterwards in the hold, another sack
(Exhibit B). The sack referred to as Exhibit A contained 49 cans of opium, and
the other, Exhibit B, the larger sack, also contained several cans of the same
substance. The hold, in which the sack mentioned in Exhibit B was found, was
under the defendant's control, who moreover, freely and of his own will and
accord admitted that this sack, as well as the other referred to in Exhibit B and
found in the cabin, belonged to him. The said defendant also stated, freely and
voluntarily, that he had bought these sacks of opium, in Hongkong with the
intention of selling them as contraband in Mexico or Vera Cruz, and that, as his
hold had already been searched several times for opium, he ordered two other
Chinamen to keep the sack. Exhibit A.

It is to be taken into account that the two sacks of opium, designated as Exhibits A and
B, properly constitute the corpus delicti. Moreover, another lot of four cans of opium,
marked, as Exhibit C, was the subject matter of investigation at the trial, and with
respect to which the chief of the department of the port of Cebu testified that they were
found in the part of the ship where the firemen habitually sleep, and that they were
delivered to the first officer of the ship to be returned to the said firemen after the vessel
should have left the Philippines, because the firemen and crew of foreign vessels,
pursuant to the instructions he had from the Manila custom-house, were permitted to
retain certain amounts of opium, always provided it should not be taken shore.

And, finally, another can of opium, marked "Exhibit D," is also corpus delicti and
important as evidence in this cause. With regard to this the internal-revenue agent
testified as follows:
itc-alf

FISCAL. What is it?

WITNESS. It is a can opium which was bought from the defendant by a secret-
service agent and taken to the office of the governor to prove that the accused
had opium in his possession to sell.

On motion by the defense, the court ruled that this answer might be stricken out
"because it refers to a sale." But, with respect to this answer, the chief of the department
of customs had already given this testimony, to wit:

FISCAL. Who asked you to search the vessel?

WITNESS. The internal-revenue agent came to my office and said that a party
brought him a sample of opium and that the same party knew that there was
more opium on board the steamer, and the agent asked that the vessel be
searched.
The defense moved that this testimony be rejected, on the ground of its being hearsay
evidence, and the court only ordered that the part thereof "that there was more opium,
on board the vessel" be stricken out.

The defense, to abbreviate proceedings, admitted that the receptacles mentioned as

Exhibits A, B, and C, contained opium and were found on board the steamship Erroll, a
vessel of English nationality, and that it was true that the defendant stated that these
sacks of opium were his and that he had them in his possession.

According to the testimony of the internal-revenue agent, the defendant stated to him, in
the presence of the provincial fiscal, of a Chinese interpreter (who afterwards was not
needed, because the defendant spoke English), the warden of the jail, and four guards,
that the opium seized in the vessel had been bought by him in Hongkong, at three
pesos for each round can and five pesos for each one of the others, for the purpose of
selling it, as contraband, in Mexico and Puerto de Vera Cruz; that on the 15th the vessel
arrived at Cebu, and on the same day he sold opium; that he had tried to sell opium for
P16 a can; that he had a contract to sell an amount of the value of about P500; that the
opium found in the room of the other two Chinamen prosecuted in another cause, was
his, and that he had left it in their stateroom to avoid its being found in his room, which
had already been searched many times; and that, according to the defendant, the
contents of the large sack was 80 cans of opium, and of the small one, 49, and the total
number, 129.

It was established that the steamship Erroll was of English nationality, that it came from
Hongkong, and that it was bound for Mexico, via the call ports of Manila and Cebu.

The defense moved for a dismissal of the case, on the grounds that the court had no
jurisdiction to try the same and the facts concerned therein did not constitute a crime.
The fiscal, at the conclusion of his argument, asked that the maximum penalty of the law
be imposed upon the defendant, in view of the considerable amount of opium seized.
The court ruled that it did not lack jurisdiction, inasmuch as the crime had been
committed within its district, on the wharf of Cebu.

The court sentenced the defendant to five years' imprisonment, to pay a fine of
P10,000, with additional subsidiary imprisonment in case of insolvency, though not to
exceed one third of the principal penalty, and to the payment of the costs. It further
ordered the confiscation, in favor of the Insular Government, of the exhibits presented in
the case, and that, in the event of an appeal being taken or a bond given, or when the
sentenced should have been served, the defendant be not released from custody, but
turned over to the customs authorities for the purpose of the fulfillment of the existing
laws on immigration.

From this judgment, the defendant appealed to this court. lawphi1.net

The appeal having been heard, together with the allegations made therein by the
parties, it is found: That, although the mere possession of a thing of prohibited use in
these Islands, aboard a foreign vessel in transit, in any of their ports, does not, as a
general rule, constitute a crime triable by the courts of this country, on account of such
vessel being considered as an extension of its own nationality, the same rule does not
apply when the article, whose use is prohibited within the Philippine Islands, in the
present case a can of opium, is landed from the vessel upon Philippine soil, thus
committing an open violation of the laws of the land, with respect to which, as it is a
violation of the penal law in force at the place of the commission of the crime, only the
court established in that said place itself had competent jurisdiction, in the absence of
an agreement under an international treaty.

It is also found: That, even admitting that the quantity of the drug seized, the subject
matter of the present case, was considerable, it does not appear that, on such account,
the two penalties fixed by the law on the subject, should be imposed in the maximum
degree.

Therefore, reducing the imprisonment and the fine imposed to six months and P1,000,
respectively, we affirm in all other respects the judgment appealed from, with the costs
of this instance against the appellant. So ordered.

Torres, Mapa, Johnson, Carson, Moreland and Trent, JJ., concur.

 CASE 3

G.R. No. L-18924             October 19, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellant,

vs.
WONG CHENG (alias WONG CHUN), defendant-appellee.

Attorney-General Villa-Real for appellant.

Eduardo Gutierrez Repide for appellee.

ROMUALDEZ, J.:

In this appeal the Attorney-General urges the revocation of the order of the Court of
First Instance of Manila, sustaining the demurrer presented by the defendant to the
information that initiated this case and in which the appellee is accused of having
illegally smoked opium, aboard the merchant vessel Changsa of English nationality
while said vessel was anchored in Manila Bay two and a half miles from the shores of
the city.

The demurrer alleged lack of jurisdiction on the part of the lower court, which so held
and dismissed the case.

The question that presents itself for our consideration is whether such ruling is
erroneous or not; and it will or will not be erroneous according as said court has or has
no jurisdiction over said offense.

The point at issue is whether the courts of the Philippines have jurisdiction over crime,
like the one herein involved, committed aboard merchant vessels anchored in our
jurisdiction waters. 
1awph!l.net

There are two fundamental rules on this particular matter in connection with
International Law; to wit, the French rule, according to which crimes committed aboard a
foreign merchant vessels should not be prosecuted in the courts of the country within
whose territorial jurisdiction they were committed, unless their commission affects the
peace and security of the territory; and the English rule, based on the territorial principle
and followed in the United States, according to which, crimes perpetrated under such
circumstances are in general triable in the courts of the country within territory they were
committed. Of this two rules, it is the last one that obtains in this jurisdiction, because at
present the theories and jurisprudence prevailing in the United States on this matter are
authority in the Philippines which is now a territory of the United States.

In the cases of The Schooner Exchange vs. M'Faddon and Others (7 Cranch [U. S.],
116), Chief Justice Marshall said:

. . . When merchant vessels enter for the purposes of trade, it would be

obviously inconvenient and dangerous to society, and would subject the laws to
continual infraction, and the government to degradation, if such individuals or
merchants did not owe temporary and local allegiance, and were not amenable
to the jurisdiction of the country. . . .
In United States vs. Bull (15 Phil., 7), this court held:

. . . No court of the Philippine Islands had jurisdiction over an offense or crime

committed on the high seas or within the territorial waters of any other country,
but when she came within three miles of a line drawn from the headlands, which
embrace the entrance to Manila Bay, she was within territorial waters, and a
new set of principles became applicable. (Wheaton, International Law [Dana
ed.], p. 255, note 105; Bonfils, Le Droit Int., secs. 490 et seq.; Latour, La Mer
Ter., ch. 1.) The ship and her crew were then subject to the jurisdiction of the
territorial sovereign subject to such limitations as have been conceded by that
sovereignty through the proper political agency. . . .

It is true that in certain cases the comity of nations is observed, as in Mali and
Wildenhus vs. Keeper of the Common Jail (120 U.., 1), wherein it was said that:

. . . The principle which governs the whole matter is this: Disorder which disturb
only the peace of the ship or those on board are to be dealt with exclusively by
the sovereignty of the home of the ship, but those which disturb the public peace
may be suppressed, and, if need be, the offenders punished by the proper
authorities of the local jurisdiction. It may not be easy at all times to determine
which of the two jurisdictions a particular act of disorder belongs. Much will
undoubtedly depend on the attending circumstances of the particular case, but
all must concede that felonious homicide is a subject for the local jurisdiction,
and that if the proper authorities are proceeding with the case in the regular way
the consul has no right to interfere to prevent it.

Hence in United States vs. Look Chaw (18 Phil., 573), this court held that:

Although the mere possession of an article of prohibited use in the Philippine

Islands, aboard a foreign vessel in transit in any local port, does not, as a
general rule, constitute a crime triable by the courts of the Islands, such vessels
being considered as an extension of its own nationality, the same rule does not
apply when the article, the use of which is prohibited in the Islands, is landed
from the vessels upon Philippine soil; in such a case an open violation of the
laws of the land is committed with respect to which, as it is a violation of the
penal law in force at the place of the commission of the crime, no court other
than that established in the said place has jurisdiction of the offense, in the
absence of an agreement under an international treaty.

As to whether the United States has ever consented by treaty or otherwise to

renouncing such jurisdiction or a part thereof, we find nothing to this effect so far as
England is concerned, to which nation the ship where the crime in question was
committed belongs. Besides, in his work "Treaties, Conventions, etc.," volume 1, page
625, Malloy says the following:

There shall be between the territories of the United States of America, and all
the territories of His Britanic Majesty in Europe, a reciprocal liberty of commerce.
The inhabitants of the two countries, respectively, shall have liberty freely and
securely to come with their ships and cargoes to all such places, ports and
rivers, in the territories aforesaid, to which other foreigners are permitted to
come, to enter into the same, and to remain and reside in any parts of the said
territories, respectively; also to hire and occupy houses and warehouses for the
 purposes of their commerce; and, generally, the merchants and traders of each
nation respectively shall enjoy the most complete protection and security for
their commerce, but subject always to the laws and statutes of the two
countries, respectively. (Art. 1, Commerce and Navigation Convention.)

We have seen that the mere possession of opium aboard a foreign vessel in transit was
held by this court not triable by or courts, because it being the primary object of our
Opium Law to protect the inhabitants of the Philippines against the disastrous effects
entailed by the use of this drug, its mere possession in such a ship, without being used
in our territory, does not being about in the said territory those effects that our statute
contemplates avoiding. Hence such a mere possession is not considered a disturbance
of the public order.

But to smoke opium within our territorial limits, even though aboard a foreign merchant
ship, is certainly a breach of the public order here established, because it causes such
drug to produce its pernicious effects within our territory. It seriously contravenes the
purpose that our Legislature has in mind in enacting the aforesaid repressive statute.
Moreover, as the Attorney-General aptly observes:

. . . The idea of a person smoking opium securely on board a foreign vessel at

anchor in the port of Manila in open defiance of the local authorities, who are
impotent to lay hands on him, is simply subversive of public order. It requires no
unusual stretch of the imagination to conceive that a foreign ship may come into
the port of Manila and allow or solicit Chinese residents to smoke opium on
board.

The order appealed from is revoked and the cause ordered remanded to the court of
origin for further proceedings in accordance with law, without special findings as to
costs. So ordered.

Araullo, C.J., Street, Malcolm, Avanceña, Villamor, Ostrand and Johns, JJ., concur.
 Case 4

G.R. No. L-13005        October 10, 1917

THE UNITED STATES, plaintiff-appellee,

vs.
AH SING, defendant-appellant.

Antonio Sanz for appellant.

Acting Attorney-General Paredes for appellee.

MALCOLM, J.:

This is an appeal from a judgment of the Court of First Instance of Cebu finding the
defendant guilty of a violation of section 4 of Act No. 2381 (the Opium Law), and
sentencing him to two years imprisonment, to pay a fine of P300 or to suffer subsidiary
imprisonment in case of insolvency, and to pay the costs.

The following facts are fully proven: The defendant is a subject of China employed as a
fireman on the steamship Shun Chang. The Shun Chang is a foreign steamer which
arrived at the port of Cebu on April 25, 1917, after a voyage direct from the port of
Saigon. The defendant bought eight cans of opium in Saigon, brought them on board
the steamship Shun Chang, and had them in his possession during the trip from Saigon
to Cebu. When the steamer anchored in the port of Cebu on April 25, 1917, the
authorities on making a search found the eight cans of opium above mentioned hidden
in the ashes below the boiler of the steamer's engine. The defendant confessed that he
was the owner of this opium, and that he had purchased it in Saigon. He did not
confess, however, as to his purpose in buying the opium. He did not say that it was his
intention to import the prohibited drug into the Philippine Islands. No other evidence
direct or indirect, to show that the intention of the accused was to import illegally this
opium into the Philippine Islands, was introduced.

Has the crime of illegal importation of opium into the Philippine Islands been proven?

Two decisions of this Court are cited in the judgment of the trial court, but with the
intimation that there exists inconsistently between the doctrines laid down in the two
cases. However, neither decision is directly a precedent on the facts before us.

In the case of United States vs. Look Chaw ([1910], 18 Phil., 573), in the opinion
handed down by the Chief Justice, it is found —

That, although the mere possession of a thing of prohibited use in these

Islands, aboard a foreign vessel in transit, in any of their ports, does not, as a
general rule, constitute a crime triable by the courts of this country, on account
of such vessel being considered as an extension of its own nationality, the same
rule does no apply when the article, whose use is prohibited within the Philippine
 Islands, in the present case a can of opium, is landed from the vessel upon
Philippine soil, thus committing an open violation of the laws of the land, with
respect to which, as it is a violation of the penal law in force at the place of the
commission of the crime, only the court established in the said place itself has
competent jurisdiction, in the absence of an agreement under an international
treaty.1awphil.net

A marked difference between the facts in the Look Chaw case and the facts in the
present instance is readily observable. In the Look Chaw case, the charge case the
illegal possession and sale of opium — in the present case the charge as illegal
importation of opium; in the Look Chaw case the foreign vessel was in transit — in the
present case the foreign vessel was not in transit; in the Look Chaw case the opium was
landed from the vessel upon Philippine soil — in the present case of United
States vs. Jose ([1916], 34 Phil., 840), the main point, and the one on which resolution
turned, was that in a prosecution based on the illegal importation of opium or other
prohibited drug, the Government must prove, or offer evidence sufficient to raise a
presumption, that the vessel from which the drug is discharged came into Philippine
waters from a foreign country with the drug on board. In the Jose case, the defendants
were acquitted because it was not proved that the opium was imported from a foreign
country; in the present case there is no question but what the opium came from Saigon
to Cebu. However, in the opinion in the Jose case, we find the following which may
be obiter dicta, but which at least is interesting as showing the view of the writer of the
opinion:

The importation was complete, to say the least, when the ship carrying it
anchored in Subic Bay. It was not necessary that the opium discharged or that it
be taken from the ship. It was sufficient that the opium was brought into the
waters of the Philippine Islands on a boat destined for a Philippine port and
which subsequently anchored in a port of the Philippine Islands with intent to
discharge its cargo.

Resolving whatever doubt was exist as to the authority of the views just quoted, we
return to an examination of the applicable provisions of the law. It is to be noted that
section 4 of Act No. 2381 begins, "Any person who shall unlawfully import or bring any
prohibited drug into the Philippine Islands." "Import" and "bring" are synonymous terms.
The Federal Courts of the United States have held that the mere act of going into a port,
without breaking bulk, is prima facie evidence of importation. (The Mary [U. S.], 16 Fed.
Cas., 932, 933.) And again, the importation is not the making entry of goods at the
custom house, but merely the bringing them into port; and the importation is complete
before entry of the Custom House. (U. S. vs. Lyman [U. S.], 26, Fed. Cas., 1024, 1028;
Perots vs. U. S., 19 Fed. Cas., 258.) As applied to the Opium Law, we expressly hold
that any person unlawfully imports or brings any prohibited drug into the Philippine
Islands, when the prohibited drug is found under this person's control on a vessel which
has come direct from a foreign country and is within the jurisdictional limits of the
Philippine Islands. In such case, a person is guilty of illegal importation of the drug
unless contrary circumstances exist or the defense proves otherwise. Applied to the
facts herein, it would be absurb to think that the accused was merely carrying opium
back and forth between Saigon and Cebu for the mere pleasure of so doing. It would
likewise be impossible to conceive that the accused needed so large an amount of
opium for his personal use. No better explanation being possible, the logical deduction
is that the defendant intended this opium to be brought into the Philippine Islands. We
accordingly find that there was illegal importation of opium from a foreign country into
the Philippine Islands. To anticipate any possible misunderstanding, let it be said that
these statements do not relate to foreign vessels in transit, a situation not present.

The defendant and appellant, having been proved guilty beyond a reasonable doubt as
charged and the sentence of the trial court being within the limits provided by law, it
results that the judgment must be affirmed with the costs of this instance against the
appellant. So ordered.

Arellano, C.J., Johnson, Carson, Araullo and Street, JJ., concur.

G.R. No. 193707 December 10, 2014

NORMA A. DEL SOCORRO, for and in behalf of her minor child RODERIGO NORJO
VAN WILSEM, Petitioner,

vs.

ERNST JOHAN BRINKMAN VAN WILSEM, Respondent.

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 following facts are culled from the records:

Petitioner Norma A. Del Socorro and respondent Ernst Johan Brinkman Van Wilsem
contracted marriage in Holland on September 25, 1990.2 On January 19, 1994, they
were blessed with a son named Roderigo Norjo Van Wilsem, who at the time of the
filing of the instant petition was sixteen (16) years of age.3

Unfortunately, their marriage bond ended on July 19, 1995 by virtue of a Divorce Decree
issued by the appropriate Court of Holland.4 At that time, their son was only eighteen
(18) months old.5 Thereafter, petitioner and her son came home to the Philippines.6

According to petitioner, respondent made a promise to provide monthly support to their

son in the amount of Two Hundred Fifty (250) Guildene (which is equivalent to
Php17,500.00 more or less).7 However, since the arrival of petitioner and her son in the
Philippines, respondent never gave support to the son, Roderigo.8

Not long thereafter, respondent cameto the Philippines and remarried in Pinamungahan,
Cebu, and since then, have been residing thereat.9 Respondent and his new wife
established a business known as Paree Catering, located at Barangay Tajao,
Municipality of Pinamungahan, Cebu City.10 To date, all the parties, including their son,
Roderigo, are presently living in Cebu City.11

On August 28, 2009, petitioner, through her counsel, sent a letter demanding for support
from respondent. However, respondent refused to receive the letter.12

Because of the foregoing circumstances, petitioner filed a complaint affidavit with the
Provincial Prosecutor of Cebu City against respondent for violation of Section 5,
paragraph E(2) of R.A. No. 9262 for the latter’s unjust refusal to support his minor child
with petitioner.13 Respondent submitted his counter-affidavit thereto, to which petitioner
also submitted her reply-affidavit.14 Thereafter, the Provincial Prosecutor of Cebu City
issued a Resolution recommending the filing of an information for the crime charged
against herein respondent.
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.16 Consequently, 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

On February 19, 2010, the RTC-Cebu issued the herein assailed Order,21 dismissing
the instant criminal case against respondent on the ground that the facts charged in the
information do not constitute an offense with respect to the respondent who is an alien,
the dispositive part of which states:

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.

Cebu City, Philippines, February 19, 2010.22

Thereafter, petitioner filed her Motion for Reconsideration thereto reiterating
respondent’s obligation to support their child under Article 19523 of the Family Code,
thus, failure to do so makes him liable under R.A. No. 9262 which "equally applies to all
persons in the Philippines who are obliged to support their minor children regardless of
the obligor’s nationality."24

On September 1, 2010, the lower court issued an Order25 denying petitioner’s Motion
for Reconsideration and reiterating its previous ruling. Thus:

x x x The arguments therein presented are basically a rehash of those advanced earlier
in the memorandum of the prosecution. Thus, the court hereby reiterates its ruling that
since the accused is a foreign national he is not subject to our national law (The Family
Code) in regard to a parent’s duty and obligation to givesupport to his child.
Consequently, he cannot be charged of violating R.A. 9262 for his alleged failure to
support his child. Unless it is conclusively established that R.A. 9262 applies to a
foreigner who fails to give support tohis child, notwithstanding that he is not bound by
our domestic law which mandates a parent to give such support, it is the considered
opinion of the court that no prima faciecase exists against the accused herein, hence,
the case should be dismissed.

WHEREFORE, the motion for reconsideration is hereby DENIED for lack of merit.

SO ORDERED.

Cebu City, Philippines, September 1, 2010.26

Hence, the present Petition for Review on Certiorari raising the following issues:

1. Whether or not a foreign national has an obligation to support his minor child under
Philippine law; and

2. Whether or not a foreign national can be held criminally liable under R.A. No. 9262 for
his unjustified failure to support his minor child.27
At the outset, let it be emphasized that We are taking cognizance of the instant petition
despite the fact that the same was directly lodged with the Supreme Court, consistent
with the ruling in Republic v. Sunvar Realty Development Corporation,28 which lays
down the instances when a ruling of the trial court may be brought on appeal directly to
the Supreme Court without violating the doctrine of hierarchy of courts, to wit:

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

Indeed, the issues submitted to us for resolution involve questions of law – the response
thereto concerns the correct application of law and jurisprudence on a given set of facts,
i.e.,whether or not a foreign national has an obligation to support his minor child under
Philippine law; and whether or not he can be held criminally liable under R.A. No. 9262
for his unjustified failure to do so.

It cannot be negated, moreover, that the instant petition highlights a novel question of
law concerning the liability of a foreign national who allegedly commits acts and
omissions punishable under special criminal laws, specifically in relation to family rights
and duties. The inimitability of the factual milieu of the present case, therefore, deserves
a definitive ruling by this Court, which will eventually serve as a guidepost for future
cases. Furthermore, dismissing the instant petition and remanding the same to the CA
would only waste the time, effort and resources of the courts. Thus, in the present case,
considerations of efficiency and economy in the administration of justice should prevail
over the observance of the hierarchy of courts.
Now, on the matter of the substantive issues, We find the petition meritorious.
Nonetheless, we do not fully agree with petitioner’s contentions.

To determine whether or not a person is criminally liable under R.A. No. 9262, it is
imperative that the legal obligation to support exists.

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 topetitioner for any financial support.33

On this point, we agree with respondent that petitioner cannot rely on Article 19534 of
the New Civil Code in demanding support from respondent, who is a foreign citizen,
since Article 1535 of the New Civil Code stresses the principle of nationality. In other
words, insofar as Philippine laws are concerned, specifically the provisions of the Family
Code on support, the same only applies to Filipino citizens. By analogy, the same
principle applies to foreigners such that they are governed by their national law with
respect to family rights and duties.36

The obligation to give support to a child is a matter that falls under family rights and
duties. Since the respondent is a citizen of Holland or the Netherlands, we agree with
the RTC-Cebu that he is subject to the laws of his country, not to Philippinelaw, as to
whether he is obliged to give support to his child, as well as the consequences of his
failure to do so.37

In the case of Vivo v. Cloribel,38 the Court held that –

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

It cannot be gainsaid, therefore, that the respondent is not obliged to support petitioner’s
son under Article195 of the Family Code as a consequence of the Divorce Covenant
obtained in Holland. This does not, however, mean that respondent is not obliged to
support petitioner’s son altogether.

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 takejudicial 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 notliable 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.

We likewise agree with petitioner that notwithstanding that the national law of
respondent states that parents have no obligation to support their children or that such
obligation is not punishable by law, said law would still not find applicability,in light of the
ruling in Bank of America, NT and SA v. American Realty Corporation,47 to wit:

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.

Thus, when the foreign law, judgment or contract is contrary to a sound and established
public policy of the forum, the said foreign law, judgment or order shall not be applied.

Additionally, prohibitive laws concerning persons, their acts or property, and those which
have for their object public order, public policy and good customs shall not be rendered
ineffective by laws or judgments promulgated, or by determinations or conventions
agreed upon in a foreign country.

The public policy sought to be protected in the instant case is the principle imbedded in
our jurisdiction proscribing the splitting up of a single cause of action.

Section 4, Rule 2 of the 1997 Rules of Civil Procedure is pertinent

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.

We emphasize, however, that as to petitioner herself, respondent is no longer liable to

support his former wife, in consonance with the ruling in San Luis v. San Luis,49 to wit:

As to the effect of the divorce on the Filipino wife, the Court ruled that she should no
longerbe considered marriedto the alien spouse. Further, she should not be required to
perform her marital duties and obligations. It held:

To maintain, as private respondent does, that, under our laws, petitioner has to be
considered still married to private respondent and still subject to a wife's obligations
under Article 109, et. seq. of the Civil Code cannot be just. Petitioner should not be
obliged to live together with, observe respect and fidelity, and render support to private
respondent. The latter should not continue to be one of her heirs with possible rights to
conjugal property. She should not be discriminated against in her own country if the
ends of justice are to be served. (Emphasis added)50

Based on the foregoing legal precepts, we find that respondent may be made liable
under Section 5(e) and (i) of R.A. No. 9262 for unjustly refusing or failing to give support
topetitioner’s son, to wit:

SECTION 5. Acts of Violence Against Women and Their Children.- The crime of
violence against women and their children is committed through any of the following
acts:

xxxx

(e) Attempting to compel or compelling the woman or her child to engage in conduct
which the woman or her child has the right to desist from or desist from conduct which
the woman or her child has the right to engage in, or attempting to restrict or restricting
the woman's or her child's freedom of movement or conduct by force or threat of force,
physical or other harm or threat of physical or other harm, or intimidation directed
against the woman or child. This shall include, butnot limited to, the following acts
committed with the purpose or effect of controlling or restricting the woman's or her
child's movement or conduct:

xxxx

(2) Depriving or threatening to deprive the woman or her children of financial support
legally due her or her family, or deliberately providing the woman's children insufficient
financial support; x x x x

(i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or
her child, including, but not limited to, repeated verbal and emotional abuse, and denial
of financial support or custody of minor childrenof access to the woman's
child/children.51

Under the aforesaid special law, the deprivation or denial of financial support to the child
is considered anact of violence against women and children.

In addition, considering that respondent is currently living in the Philippines, we find

strength in petitioner’s claim that the Territoriality Principle in criminal law, in relation to
Article 14 of the New Civil Code, applies to the instant case, which provides that:
"[p]enal laws and those of public security and safety shall be obligatory upon all who live
and sojourn in Philippine territory, subject to the principle of public international law and
to treaty stipulations." On this score, it is indisputable that the alleged continuing acts of
respondent in refusing to support his child with petitioner is committed here in the
Philippines as all of the parties herein are residents of the Province of Cebu City. As
such, our courts have territorial jurisdiction over the offense charged against
respondent. It is likewise irrefutable that jurisdiction over the respondent was acquired
upon his arrest.

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.

Given, however, that the issue on whether respondent has provided support to
petitioner’s child calls for an examination of the probative value of the evidence
presented, and the truth and falsehood of facts being admitted, we hereby remand the
determination of this issue to the RTC-Cebu which has jurisdiction over the case.

WHEREFORE, the petition is GRANTED. The Orders dated February 19, 2010 and
September 1, 2010, respectively, of the Regional Trial Court of the City of Cebu are
hereby REVERSED and SET ASIDE. The case is REMANDED to the same court to
conduct further proceedings based on the merits of the case.

SO ORDERED.

DIOSDADO M. PERALTA

Associate Justice

WE CONCUR: