BASIC REMEDIAL LAW JURISDICTION AND VENUE DEFINITION OF JURISDICTION

EN BANC [G.R. No. 162318. October 25, 2004] 1LT. JULIUS R. NAVALES, 1LT. EMERSON L. MARGATE, 2LT. RYAN H. QUISAI, TSG. ELMER D. COLON, CAPT. JULIUS W. ESPORO, SGT. NOLI FORONDA, SGT. GIL P. LOZADA, SGT. RAYMUND DUMAGO and PFC. REGIE A. ALAGABAN, petitioners, vs. GEN. NARCISO ABAYA, as Chief of Staff of the Armed Forces of the Philippines (AFP), B.GEN. MARIANO M. SARMIENTO, JR., as Judge Advocate General (JAG) of the AFP, and OTHER PERSONS ACTING UNDER THEIR AUTHORITY, respondents. [G.R. No. 162341. October 25, 2004] IN THE MATTER OF THE PETITION FOR THE HABEAS CORPUS OF CPT. RUPERTO L. REASO, LTSG. NORBERTO E. SANTIAGO, 1LT. DANNY C. CANAVERAL, 1LT. JULIUS R. NAVALES, 1LT. EMERSON L. MARGATE, 1LT. JEFFREY GAUGUIRAN, LTJG. CEFERINO CHECA, LTJG. MARCO ANGELO J. ANCHETA, LTJG. ELMER TORRIADO, LTJG. RONALD A. GALICIA, 2LT. LAUREFEL P. DABALES, 2LT. MARY JAMES A. TAYABAN, 2LT. JASON P. PANALIGAN, 2LT. RYAN QUISAI, 2LT. NESTOR JASON CAMBA, 2LT. ARCHIBALD RANEL, 2LT. RESINO S. ORTEZA, 2LT. NOEL F. TOMENGLAY, 2LT. LEOPOLDO APELLANES, JR., 2LT. JONATHAN D. COSTALES, 2LT. OSWALD IAN DIRA, 2LT. SAMSUDIN T. LINTONGAN, 2LT. ALQUIN CANSON, 2LT. JUNIBERT S. TUBO, 2LT. EDWIN DUETAO, 2LT. MARK P. DAMASO, 2LT. JIOVANNI PALLIAN, 2LT. EDGARDO AGUILAR, 2LT. NORMAN SPENCER, 2LT. LARRY S. CENDANA, 2LT. AVELINO SAHLI, 2LT. LEXINGTON ALONZO, 2LT. FILMORE RULL, ENS. VICTOR ODULLO, ENS. IAN LUIS BADECAO, ENS. RONALD E. DISO, ENS. ARJOHN ELUMBA, ENS. BRIAN BABANG, ENS. ANTONIO BOSCH, ENS. TED CEREZO, ENS. HAROLD DAVE PRE, ENS. JEFFREY BANGSA, ENS. JONAH ARUGAY, ENS. JONATHAN J. ADLAWAN, ENS. EMERSON ROSALES, ENS. ELMER CRUZ, ENS. REX P. CALLANO, ENS. JUVENAL AZURIN, ENS. LYLE ROSOS, ENS. CESAR CARMEL TAMBA, CPO. LEONIDO FERNIN, EM3 RONNIE GUMIA, PO3 ROULEX MAGISA, TSG. JESUCRAIS SOLEDAD, SSG. NORBERTO MARTINEZ, SSG. BERTING CABANA, SSG. JOERY ROJO, PO2 EDWARD ABUAC, SSG. LEO GAPAYAO, SSG. ROMAR ARQUERO, SSG. RALLON BEBASA, SSG. LORENZO GLORIOSO, SSG. NOEL AGGALUT, SSG. PHILIP VITALES, SSG. FRANCISCO BOSI, JR., SSG. BONIFACIO BARRION, SSG. RUBEN SORIANO, SSG. RONALD REYES, SSG. WILFREDO LEAL, SSG. GUILLERMO LAVITORES, SGT. ALFREDO ALEGADO, JR., SGT. GREGORIO SANDAGON, SGT. JIGGER PACULBA SGT. JOJO ABANDO, SGT. JUANITO JILBURY, SGT. ERIC CASTINO, SGT. ANTONIO CARABATA, SGT.REYNANTE DANTE ESCATRON, SGT. NOLI FORONDA, SGT. JERAN TABUJARA, SGT. RESTITUTO DEBORJA, SGT. NILO ENASO, SGT. JULIUS WESFIRO, SGT. ROLDAN ANDO, SGT. LORENZO CARRANZA, SGT. DANTE SANTOS, SGT. WALTER MANALANSAN, SGT. JUDE ARQUISOLA, SGT. HERMAN LINDE, SGT. ALEXANDER SICAT, SGT. FLORANTE

ROSETTE, SGT. ROMELO SY, SGT. JOEY MEMBREVE, SGT. ADONIS PRADO, PO3 JESSMAR LANDONG, PO3 ROBERTO TRIPULCA, PO3 SONNY MADARANG, PO3 RHOMMEL LORETE, PO3 CARISTOFEIL TIKTIK, PO3 RENATO BUSTILLO, PO3 JERRY ASUNCION, PO3 LUDIVICO CLEMENTE, CPL. REY RUBIOS, CPL. EMMANUEL TIRADOR, CPL. OLIVER COMBAUCER, CPL. JOEL ABAYA, CPL. RANDEL CENO, CPL. RONALD RETUTA, CPL. JULIUS TANALLON, CPL. FILOMENO RAMIREZ, CPL. JIGGER ALAMEDA, CPL. RAYMUND DUMAGAO, CPL. EDGAR VELASCO, CPL. RAMONCITO TAMPON, SN1 ALLAN DULAP, SN1 JERRY REGALARIO, SN1 JOEL MASENAS, SN1 JONATHAN PEREZ, S1HM ROMUALDO GANANCIAL, SN1 ROEL GADON, F1EM GARY PAYOS, SN1 ZANDRIX GACU, SN1 ROMMEL ANONUEVO, SN1 WILLIAM ABLITER, SN1 GERMINIO FERNANDEZ, SN1 ARNEL CAPUNO, SN1 CLEOFAS PAMIENTA, S1HM TIMOTEO ABARRACOSO, S1CD GERARDO DEDICATORIA, SN1 LEONOR FORTE, JR., CPL. JEOBAL GONZALES, CPL. ALADIN GOMEZ, CPL. HARDY GLAGARA, CPL. CESAR A. PADILLA, CPL. JERSON ALABATA, CPL. OLIVER GERIO, CPL. TEDDY ANTONIO, CPL. DENNIS LOPEZ, CPL. RUEL MOLINA, CPL. ALVIN CELESTINO, CPL. BENJAMIN RAMBOYONG, JR., CPL. GERRY CALINGACION, CPL. ALEXANDER RODRIGUEZ, CPL. JONATHAN DAGOHOY, CPL. CLECARTE DAHAN, CPL. RAYMOND PASTRETA, CPL. LORENZO BIAO, CPL. ALEX PENA, CPL. ROGUN OLIVIDO, CPL. MONCHITO LUSTERIO, CPL. GEORGE GANADOS, CPL. MICHAEL BALISTA, PVT. 1ST CLASS MAXINIAR BALANAY, PVT. 1ST CLASS BONIFACIO CAOALO, PVT. 1ST CLASS REGGIE ALAGABAN, PVT. 1ST CLASS ANGELO MARQUEZ, PVT. 1ST CLASS JOHN GAIHAN, PVT. 1ST CLASS MARCIAL CAISA, PVT. 1ST CLASS CARLOS FILLIOS, PVT. 1ST CLASS PATROCENIO PATENO, PVT. 1ST CLASS ROLLY BERNAL, PVT. 1ST CLASS NOVIDA RUIZ, PVT. 1ST CLASS MELCHOR ALOOS, PVT. 1ST CLASS JOEL MALALAY, PVT. 1ST CLASS JULIETO BANAS, JR., PVT. 1ST CLASS ROLAND BANAAG, PVT. 1ST CLASS NIXON MAGALLIS, PVT. 1ST CLASS RICHARD LARCE, PVT. 1ST CLASS SINDY BONOTAN, PVT. 1ST CLASS ARNOLD PULPULAAN, PVT. 1ST CLASS ABRAHAM APOSTOL, PFC. CHARLES AGNER, S2RM JULIUS CEAZAR ALFUENTE, PFC. EDILON ANDALEON, PFC. RONALDO BAYOS, PFC. MARCIAL BAYSA, S2EM ABRAHAM BILLONES, CPL. ABNER BIRAL, PFC. JEFFREY BOLALIN, SN2 JEFFREY BONCACAS, 1LT PATRICIO BUMIDANG, JR., S2BM JOSEPH BUSCATO, CPT. EINSTEIN CALAOA, JR., PFC. EDWIN CANETE, SN2 EZRA JERRY CARUMBA, S2PH GLENN CARUMBA, SGT. ARIMATEO B. CEDENO, SN2 ALEX CHAN, PO3 COCARI GONZALES, FN2 ALEX DEL CALLE, PFC. HANZEL DELA TORRE, SN2 SONNY DELA VEGA, PFC. JOSE DEMONTEVERDE, 1LT. JOSE ENRICO M. DINGLE, PFC. ALADINO DOGOMEO, ENS. DENNIS DONGA, PFC. RUEL ESPINILLA, PFC. RODRIGO FERNANDEZ, SN2 JULIUS GARCIA, SGT. ALLAN INOCENCIO, TSQ. JESUCRAIS SOLEDAD, PFC. JERSON LABILLES, CPL. DANILO LAGRIMAS, SN2 ALLAN LEONOR, 2LT. NORMAN SPENCER LO, S2BM JERIC LORENA, S2DP ANGELITO LOYLOY, PFC. LUIS NOVIDA, SN2 EMMANUEL LUMACANG, CPL. RIZAL MANIMTIM, PFC. GALIB MOHAMMAD, SSG. GIL MONTOJO, PFC. BENJAMIN NANGGAN, PFC. ARNOLD NIALLA, SN2 FERNANDO PACARDO, SGT. JOVITO PACLEB, PFC. CHRISTOPHER PEREZ, LTJG. JENNIFER PILI, PFC. CARLOS PILLOS, PFC. JOCIL REGULACION, S2DC GARY REYES, S2EM VALENTIN SAMAR, LT/SG. NORBERTO SANTIAGO, JR., FN2 FRANCISCO SEVILLA, JR., SN2 MIKE SOLAR, SN2 ROMMEL SOLIS, PFC. JOJIT SORIANO, CPT. EDMAR B. SORIOSO, SSG. JUAN TUQUIB, SN2 JOEL TYBACO, S1BM RONALDO URBANO, S2HM EDGAR VASQUEZ, SGT. IGNACIO VIGAR, ROBERTO RAFAEL (ROEL) PULIDO, petitioner, vs. GEN. NARCISO ABAYA, as Chief of Staff of the Armed Forces of the Philippines, BRIG. GEN. MARIANO M. SARMIENTO, JR., as AFP Judge Advocate General, and ALL PERSONS ACTING IN THEIR STEAD AND UNDER THEIR AUTHORITY, respondents. DECISION

CALLEJO, SR, J.: Before the Court are two petitions essentially assailing the jurisdiction of the General Court-Martial to conduct the court-martial proceedings involving several junior officers and enlisted men of the Armed Forces of the Philippines (AFP) charged with violations of the Articles of War (Commonwealth Act No. 408, as amended) in connection with their participation in the take-over of the Oakwood Premier Apartments in Ayala Center, Makati City on July 27, 2003. In G.R. No. 162341, Roberto Rafael Pulido, a lawyer, filed with this Court a Petition for Habeas Corpus seeking the release of his clients, junior officers and enlisted men of the AFP, who are allegedly being unlawfully detained by virtue of the Commitment Order[1] dated August 2, 2003 issued by General Narciso L. Abaya, Chief of Staff of the AFP, pursuant to Article 70 of the Articles of War. Under the said commitment order, all the Major Service Commanders and the Chief of the Intelligence Service of the Armed Forces of the Philippines (ISAFP) were directed to take custodial responsibility of all the military personnel involved in the 27 July 2003 mutiny belonging to their respective commands. This included all the junior officers and enlisted men (hereinafter referred to as Capt. Reaso,[2] et al.) who are subject of the instant petition for habeas corpus. The commitment order, however, expressly stated that LtSG. Antonio F. Trillanes, LtSG. James A. Layug, Capt. Garry C. Alejano, Capt. Milo D. Maestrecampo, Capt. Gerardo O. Gambala, and Capt. Nicanor E. Faeldon would remain under the custody of the Chief of the ISAFP.[3] In G.R. No. 162318, the petitioners (hereinafter referred to as 1Lt. Navales, et al.), seven of the detained junior officers and enlisted men, filed with this Court a Petition for Prohibition under Rule 65 of the Rules of Court seeking to enjoin the General Court-Martial from proceeding with the trial of the petitioners and their co-accused for alleged violations of the Articles of War. Named as respondents in the two petitions are General Narciso Abaya who, as Chief of Staff of the AFP, exercises command and control over all the members and agencies of the AFP, and Brigadier General Mariano Sarmiento, Jr., the Judge Advocate General of the AFP and officer in command of the Judge Advocate General Office (JAGO), the agency of the AFP tasked to conduct the courtmartial proceedings. Background[4] At past 1:00 a.m. of July 27, 2003, more than three hundred junior officers and enlisted men, mostly from the elite units of the AFP the Philippine Armys Scout Rangers and the Philippine Navys Special Warfare Group (SWAG) quietly entered the premises of the Ayala Center in Makati City. They disarmed the security guards and took over the Oakwood Premier Apartments (Oakwood). They planted explosives around the building and in its vicinity. Snipers were posted at the Oakwood roof deck. The soldiers, mostly in full battle gear and wearing red arm bands, were led by a small number of junior officers, widely known as the Magdalo Group. The leaders were later identified as including Navy LtSG. Antonio Trillanes IV, Army Capt. Gerardo Gambala, Army Capt. Milo Maestrecampo, Navy LtSG. James Layug, and Marine Capt. Gary Alejano. Between 4:00 to 5:00 a.m., the soldiers were able to issue a public statement through the ABS-CBN News (ANC) network. They claimed that they went to Oakwood to air their grievances against the administration of President Gloria Macapagal Arroyo. Among those grievances were: the graft and corruption in the military, the sale of arms and ammunition to the enemies of the State, the

bombings in Davao City which were allegedly ordered by Brig. Gen. Victor Corpus, Chief of the ISAFP, in order to obtain more military assistance from the United States government, and the micro-management in the AFP by then Department of National Defense (DND) Secretary Angelo Reyes. They declared their withdrawal of support from the chain of command and demanded the resignation of key civilian and military leaders of the Arroyo administration. Around 9:00 a.m., Pres. Arroyo gave the soldiers until 5:00 p.m. to give up their positions peacefully and return to barracks. At about 1:00 p.m., she declared the existence of a state of rebellion and issued an order to use reasonable force in putting down the rebellion. A few hours later, the soldiers again went on television reiterating their grievances. The deadline was extended twice, initially to 7:00 p.m., and later, indefinitely. In the meantime, a series of negotiations ensued between the soldiers and the Government team led by Ambassador Roy Cimatu. An agreement was forged between the two groups at 9:30 p.m. Shortly thereafter, Pres. Arroyo announced that the occupation of Oakwood was over. The soldiers agreed to return to barracks and were out of the Oakwood premises by 11:00 p.m. The Filing of Charges Under the Information[5] dated August 1, 2003 filed with the Regional Trial Court (RTC) of Makati City, the Department of Justice (DOJ) charged 321 of those soldiers who took part in the Oakwood Incident with violation of Article 134-A (coup detat) of the Revised Penal Code.[6] Among those charged were petitioners 1Lt. Navales, et al. (G.R. No. 162318) and those who are subject of the petition for habeas corpus Capt. Reaso, et al. (G.R. No. 162341). The case, entitled People v. Capt. Milo Maestrecampo, et al., was docketed as Criminal Case No. 03-2784 and raffled to Branch 61 presided by Judge Romeo F. Barza. On September 12, 2003, several (243 in number) of the accused in Criminal Case No. 03-2784 filed with the RTC (Branch 61) an Omnibus Motion praying that the trial court: 1. [A]ssume jurisdiction over all the charges filed before the military tribunal in accordance with Republic Act No. 7055; and 2. Order the prosecution to present evidence to establish probable cause against 316 of the 321 accused and, should the prosecution fail to do so, dismiss the case as against the 316 other accused.[7] While the said motion was pending resolution, the DOJ issued the Resolution dated October 20, 2003 finding probable cause for coup detat[8] against only 31 of the original 321 accused and dismissing the charges against the other 290 for insufficiency of evidence. Thus, upon the instance of the prosecution, the RTC (Branch 61), in its Order[9] dated November 14, 2003, admitted the Amended Information[10] dated October 30, 2003 charging only 31 of the original accused with the crime of coup detat defined under Article 134-A of the Revised Penal Code.[11] Only the following were charged under the Amended Information: CPT. MILO D. MAESTRECAMPO, LTSG. ANTONIO F. TRILLANES IV, CPT. GARY C. ALEJANO, LTSG. JAMES A. LAYUG, CPT. LAURENCE LUIS B. SOMERA, CPT. GERARDO O. GAMBALA, CPT. NICANOR FAELDON, CPT. ALBERT T. BALOLOY, CPT. SEGUNDINO P. ORFIANO, JR., CPT. JOHN P. ANDRES, CPT. ALVIN H. EBREO, 1LT. FLORENTINO B. SOMERA, 1LT. CLEO B. DUNGGA-AS, 1LT. SONNY S. SARMIENTO, 1LT. AUDIE S. TOCLOY, 1LT. VON

RIO TAYAB, 1LT. REX C. BOLO, 1LT. LAURENCE R. SAN JUAN, 1LT. WARREN LEE G. DAGUPON, 1LT. NATHANIEL N. RABONZA, 2LT. KRISTOFFER BRYAN M. YASAY, 1LT. JONNEL P. SANGGALANG, 1LT. BILLY S. PASCUA, 1LT. FRANCISCO ACEDILLO, LTSG. MANUEL G. CABOCHAN, LTSG. EUGENE LOUIE GONZALES, LTSG. ANDY G. TORRATO, LTJG. ARTURO S. PASCUA, JR., ENS. ARMAND PONTEJOS, PO3 JULIUS J. MESA, PO3 CESAR GONZALES, and several JOHN DOES and JANE DOES. Further, the said Order expressly stated that the case against the other 290 accused, including petitioners 1Lt. Navales, et al. and those who are subject of the petition for habeas corpus, Capt. Reaso, et al., was dismissed. In another Order dated November 18, 2003, the RTC (Branch 61) issued commitment orders against those 31 accused charged under the Amended Information and set their arraignment. Meanwhile, 1Lt. Navales, et al. and Capt. Reaso, et al., who were earlier dropped as accused in Criminal Case No. 03-2784, were charged before the General Court-Martial with violations of the Articles of War (AW), particularly: AW 67 (Mutiny), AW 97 (Conduct Prejudicial to Good Order and Military Discipline), AW 96 (Conduct Unbecoming an Officer and a Gentleman), AW 63 (Disrespect to the President, the Secretary of Defense, etc.) and AW 64 (Disrespect Towards Superior Officer).[12] On the other hand, Capt. Maestrecampo and the 30 others who remained charged under the Amended Information were not included in the charge sheets for violations of the Articles of War. Thereafter, Criminal Case No. 03-2784 was consolidated with Criminal Case No. 03-2678, entitled People v. Ramon Cardenas, pending before Branch 148 of the RTC of Makati City, presided by Judge Oscar B. Pimentel. On February 11, 2004, acting on the earlier Omnibus Motion filed by the 243 of the original accused under the Information dated August 1, 2003, the RTC (Branch 148) issued an Order, the dispositive portion of which reads: WHEREFORE, premises considered, in view of the Orders dated November 14 and 18, 2003 of Judge Romeo Barza, the Omnibus Motion to: 1) Assume jurisdiction over all charges filed before the Military Courts in accordance with R.A. 7055; and 2) Implement the August 7, 2003 Order of the Court requiring the prosecution to produce evidence to establish probable cause are hereby considered MOOT AND ACADEMIC and, lastly, all charges before the court-martial against the accused (those included in the Order of November 18, 2003) as well as those former accused (those included in the Order of November 14, 2003) are hereby declared not service-connected, but rather absorbed and in furtherance to the alleged crime of coup detat.[13] In the Notice of Hearing dated March 1, 2004, the General Court-Martial set on March 16, 2004 the arraignment/trial of those charged with violations of the Articles of War in connection with the July 27, 2003 Oakwood Incident. The present petitions were then filed with this Court. Acting on the prayer for the issuance of temporary restraining order in the petition for prohibition in G.R. No. 162318, this Court, in the Resolution dated March 16, 2004, directed the parties to observe the status quo prevailing before the filing of the petition.[14] The Petitioners Case In support of the petitions for prohibition and for habeas corpus, the petitioners advance the following arguments:

I. UNDER REPUBLIC ACT NO. 7055, THE RESPONDENTS AND THE GENERAL COURTMARTIAL ARE WITHOUT ANY JURISDICTION TO FURTHER CONDUCT PROCEEDINGS AGAINST THE PETITIONERS AND THEIR COLLEAGUES BECAUSE THE REGIONAL TRIAL COURT HAS ALREADY DETERMINED THAT THE OFFENSES ARE NOT SERVICERELATED AND ARE PROPERLY WITHIN THE JURISDICTION OF THE CIVILIAN COURTS;[15] and II. THE RESPONDENTS HAVE NO AUTHORITY TO FURTHER DETAIN THE JUNIOR OFFICERS AND ENLISTED MEN AS THE CHARGES FOR COUP DETAT BEFORE THE REGIONAL TRIAL COURT HAVE BEEN DISMISSED FOR LACK OF EVIDENCE UPON MOTION OF THE DEPARTMENT OF JUSTICE.[16] Citing Section 1[17] of Republic Act No. 7055,[18] the petitioners theorize that since the RTC (Branch 148), in its Order dated February 11, 2004, already declared that the offenses for which all the accused were charged were not service-connected, but absorbed and in furtherance of the crime of coup detat, the General Court-Martial no longer has jurisdiction over them. As such, respondents Gen. Abaya and the JAGO have no authority to constitute the General Court-Martial, to charge and prosecute the petitioners and their co-accused for violations of the Articles of War in connection with the July 27, 2003 Oakwood Incident. The petitioners posit that, as a corollary, there is no longer any basis for their continued detention under the Commitment Order dated August 2, 2003 issued by Gen. Abaya considering that the charge against them for coup detat had already been dismissed. In G.R. No. 162318, the petitioners pray that the respondents be enjoined from constituting the General Court-Martial and from further proceeding with the court-martial of the petitioners and their co-accused for violations of the Articles of War in connection with the Oakwood Incident of July 27, 2003. In G.R. No. 162341, the petitioner prays that the respondents be ordered to explain why the detained junior officers and enlisted men subject of the petition for habeas corpus should not be released without delay. The Respondents Arguments The respondents, through the Office of the Solicitor General, urge the Court to dismiss the petitions. The respondents contend that the Order dated February 11, 2004 promulgated by the RTC (Branch 148), insofar as it resolved the Omnibus Motion and declared that the charges against all the accused, including those excluded in the Amended Information, were not service-connected, is null and void. They aver that at the time that the said motion was resolved, petitioners 1Lt. Navales, et al. and Capt. Reaso, et al. (as movants therein) were no longer parties in Criminal Case No. 03-2784 as the charge against them was already dismissed by the RTC (Branch 61) in the Order dated November 14, 2003. Thus, 1Lt. Navales, et al. and Capt. Reaso, et al. no longer had any personality to pursue the Omnibus Motion since one who has no right or interest to protect cannot invoke the jurisdiction of the court. In other words, the petitioners were not real parties in interest at the time that their Omnibus Motion was resolved by the RTC (Branch 148). The respondents further claim denial of due process as they were not given an opportunity to oppose or comment on the Omnibus Motion. Worse, they were not even given a copy of the Order dated February 11, 2004. As such, the same cannot be enforced against the respondents, especially because they were not parties to Criminal Case No. 03-2784. The respondents, likewise, point out a seeming ambiguity in the February 11, 2004 Order as it declared, on one hand, that the charges filed before the court-martial were not service-connected, but

on the other hand, it ruled that the Omnibus Motion was moot and academic. According to the respondents, these two pronouncements cannot stand side by side. If the Omnibus Motion was already moot and academic, because the accused who filed the same were no longer being charged with coup detat under the Amended Information, then the trial court did not have any authority to further resolve and grant the same Omnibus Motion. The respondents maintain that since 1Lt. Navales, et al. and Capt. Reaso, et al. were not being charged with coup detat under the Amended Information, the trial court could not make a finding that the charges filed against them before the General Court-Martial were in furtherance of coup detat. For this reason, the declaration contained in the dispositive portion of the February 11, 2004 Order - that charges filed against the accused before the court-martial were not service-connected cannot be given effect. Similarly invoking Section 1 of Rep. Act No. 7055, the respondents vigorously assert that the charges against 1Lt. Navales, et al. and Capt. Reaso, et al. filed with the General Court-Martial, i.e., violations of the Articles of War 63, 64, 67, 96 and 97, are, in fact, among those declared to be service-connected under the second paragraph of this provision. This means that the civil court cannot exercise jurisdiction over the said offenses, the same being properly cognizable by the General Court-Martial. Thus, the RTC (Branch 148) acted without or in excess of jurisdiction when it declared in its February 11, 2004 Order that the charges against those accused before the General Court-Martial were not service-connected, but absorbed and in furtherance of the crime of coup detat. Said pronouncement is allegedly null and void. The respondents denounce the petitioners for their forum shopping. Apparently, a similar petition (petition for habeas corpus, prohibition with injunction and prayer for issuance of a temporary restraining order) had been filed by the petitioners co-accused with the Court of Appeals, docketed as CA-G.R. SP No. 82695. The case was resolved against the petitioners therein. The respondents pray that the petitions be dismissed for lack of merit. Issue The sole issue that needs to be resolved is whether or not the petitioners are entitled to the writs of prohibition and habeas corpus. The Courts Ruling We rule in the negative. We agree with the respondents that the sweeping declaration made by the RTC (Branch 148) in the dispositive portion of its Order dated February 11, 2004 that all charges before the court-martial against the accused were not service-connected, but absorbed and in furtherance of the crime of coup detat, cannot be given effect. For reasons which shall be discussed shortly, such declaration was made without or in excess of jurisdiction; hence, a nullity. The trial courts declaration was made when the Omnibus Motion had already been rendered moot and academic with respect to 1Lt. Navales, et al. and Capt.

Reaso, et al. by reason of the dismissal of the charge of coup detat against them The Order dated February 11, 2004 was issued purportedly to resolve the Omnibus Motion, which prayed for the trial court to, inter alia, acquire jurisdiction over all the charges filed before the military courts in accordance with Rep. Act No. 7055. The said Omnibus Motion was filed on September 12, 2003 by 243 of the original accused under the Information dated August 1, 2003. However, this information was subsequently superseded by the Amended Information dated October 20, 2003 under which only 31 were charged with the crime of coup detat. In the November 14, 2003 Order of the RTC (Branch 61), the Amended Information was admitted and the case against the 290 accused, including 1Lt. Navales, et al. and Capt. Reaso, et al., was dismissed. The said Order became final and executory since no motion for reconsideration thereof had been filed by any of the parties. Thus, when the RTC (Branch 148) eventually resolved the Omnibus Motion on February 11, 2004, the said motion had already been rendered moot by the November 14, 2003 Order of the RTC (Branch 61) admitting the Amended Information under which only 31 of the accused were charged and dismissing the case as against the other 290. It had become moot with respect to those whose charge against them was dismissed, including 1Lt. Navales, et al. and Capt. Reaso, et al., because they were no longer parties to the case. This was conceded by the RTC (Branch 148) itself as it stated in the body of its February 11, 2004 Order that: Now, after going over the records of the case, the Court is of the view that the movants first concern in their omnibus motion, i.e., assume jurisdiction over all charges filed before military courts in accordance with R.A. 7055, has been rendered moot and academic by virtue of the Order dated November 14, 2003 dismissing the case against TSg. Leonel M. Alnas, TSg. Ramon B. Norico, SSg. Eduardo G. Cedeno, et al. and finding probable cause in the Order dated November 18, 2003 against accused Cpt. Milo D. Maestrecampo, LtSg. Antonio F. Trillanes IV, et al., issued by Judge Barza. In view of the Order of Judge Barza dated November 14, 2003 dismissing the case against aforesaid accused, the Court, therefore, can no longer assume jurisdiction over all charges filed before the military courts and this Court cannot undo nor reverse the Order of November 14, 2003 of Judge Barza, there being no motion filed by the prosecution to reconsider the order or by any of the accused.[19] Accordingly, in the dispositive portion of the said Order, the RTC (Branch 148) held that the Omnibus Motion was considered moot and academic. And yet, in the same dispositive portion, the RTC (Branch 148) still proceeded to declare in the last clause thereof that all the charges before the court-martial against the accused (those included in the Order of November 18, 2003) as well as those former accused (those included in the Order of November 14, 2003) are hereby declared not service-connected, on its perception that the crimes defined in and penalized by the Articles of War were committed in furtherance of coup detat; hence, absorbed by the latter crime. As earlier explained, insofar as those whose case against them was dismissed, there was nothing else left to resolve after the Omnibus Motion was considered moot and academic. Indeed, as they were no longer parties to the case, no further relief could be granted to them. 1Lt. Navales, et al. and Capt. Reaso, et al. could be properly considered as strangers to the proceedings in Criminal Case No. 032784. And in the same manner that strangers to a case are not bound by any judgment rendered by the court,[20] any rulings made by the trial court in Criminal Case No. 03-2784 are no longer

binding on 1Lt. Navales, et al. and Capt. Reaso, et al. The RTC (Branch 148) itself recognized this as it made the statement, quoted earlier, that in view of the Order of Judge Barza dated November 14, 2003 dismissing the case against aforesaid accused, the Court, therefore, can no longer assume jurisdiction over all charges filed before the military courts and this Court cannot undo nor reverse the Order of November 14, 2003 of Judge Barza there being no motion filed by the prosecution to reconsider the order or by any of the accused.[21] Thus, 1Lt. Navales, et al. and Capt. Reaso, et al., who are no longer charged with coup detat, cannot find solace in the declaration of the RTC (Branch 148) that the charges filed before the General Court-Martial against them were not service-connected. The same is a superfluity and cannot be given effect for having been made by the RTC (Branch 148) without or in excess of its jurisdiction. Such declaration was made by the RTC (Branch 148) in violation of Section 1, Republic Act No. 7055 Section 1 of Rep. Act No. 7055 reads in full: Section 1. Members of the Armed Forces of the Philippines and other persons subject to military law, including members of the Citizens Armed Forces Geographical Units, who commit crimes or offenses penalized under the Revised Penal Code, other special penal laws, or local government ordinances, regardless of whether or not civilians are co-accused, victims, or offended parties which may be natural or juridical persons, shall be tried by the proper civil court, except when the offense, as determined before arraignment by the civil court, is service-connected, in which case the offense shall be tried by court-martial: Provided, That the President of the Philippines may, in the interest of justice, order or direct at any time before arraignment that any such crimes or offenses be tried by the proper civil courts. As used in this Section, service-connected crimes or offenses shall be limited to those defined in Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97 of Commonwealth Act No. 408, as amended. In imposing the penalty for such crimes or offenses, the court-martial may take into consideration the penalty prescribed therefor in the Revised Penal Code, other special laws, or local government ordinances. The second paragraph of the above provision explicitly specifies what are considered serviceconnected crimes or offenses under Commonwealth Act No. 408 (CA 408), as amended, also known as the Articles of War, to wit: Articles 54 to 70: Art. 54. Fraudulent Enlistment. Art. 55. Officer Making Unlawful Enlistment. Art. 56. False Muster. Art. 57. False Returns. Art. 58. Certain Acts to Constitute Desertion. Art. 59. Desertion. Art. 60. Advising or Aiding Another to Desert. Art. 61. Entertaining a Deserter.

Art. 62. Absence Without Leave. Art. 63. Disrespect Toward the President, Vice-President, Congress of the Philippines, or Secretary of National Defense. Art. 64. Disrespect Toward Superior Officer. Art. 65. Assaulting or Willfully Disobeying Superior Officer. Art. 66. Insubordinate Conduct Toward Non-Commissioned Officer. Art. 67. Mutiny or Sedition. Art. 68. Failure to Suppress Mutiny or Sedition. Art. 69. Quarrels; Frays; Disorders. Art. 70. Arrest or Confinement. Articles 72 to 92 Art. 72. Refusal to Receive and Keep Prisoners. Art. 73. Report of Prisoners Received. Art. 74. Releasing Prisoner Without Authority. Art. 75. Delivery of Offenders to Civil Authorities. Art. 76. Misbehavior Before the Enemy. Art. 77. Subordinates Compelling Commander to Surrender. Art. 78. Improper Use of Countersign. Art. 79. Forcing a Safeguard. Art. 80. Captured Property to be Secured for Public Service. Art. 81. Dealing in Captured or Abandoned Property. Art. 82. Relieving, Corresponding With, or Aiding the Enemy. Art. 83. Spies. Art. 84. Military Property. Willful or Negligent Loss, Damage or Wrongful Disposition. Art. 85. Waste or Unlawful Disposition of Military Property Issued to Soldiers. Art. 86. Drunk on Duty. Art. 87. Misbehavior of Sentinel. Art. 88. Personal Interest in Sale of Provisions. Art. 88-A. Unlawfully Influencing Action of Court. Art. 89. Intimidation of Persons Bringing Provisions. Art. 90. Good Order to be Maintained and Wrongs Redressed. Art. 91. Provoking Speeches or Gestures. Art. 92. Dueling. Articles 95 to 97: Art. 95. Frauds Against the Government. Art. 96. Conduct Unbecoming an Officer and Gentleman. Art. 97 General Article. Further, Section 1 of Rep. Act No. 7055 vests on the military courts the jurisdiction over the foregoing offenses. The following deliberations in the Senate on Senate Bill No. 1468, which, upon consolidation with House Bill No. 31130, subsequently became Rep. Act No. 7055, are instructive: Senator Shahani. I would like to propose an addition to Section 1, but this will have to be on page 2. This will be in line 5, which should be another paragraph, but still within Section 1. This is to

propose a definition of what service-connected means, because this appears on line 8. My proposal is the following: SERVICE-CONNECTED OFFENSES SHALL MEAN THOSE COMMITTED BY MILITARY PERSONNEL PURSUANT TO THE LAWFUL ORDER OF THEIR SUPERIOR OFFICER OR WITHIN THE CONTEXT OF A VALID MILITARY EXERCISE OR MISSION. I believe this amendment seeks to avoid any confusion as to what service-connected offense means. Please note that service-connected offense, under this bill, remains within the jurisdiction of military tribunals. So, I think that is an important distinction, Mr. President. Senator Taada. Yes, Mr. President. I would just want to propose to the Sponsor of this amendment to consider, perhaps, defining what this service-related offenses would be under the Articles of War. And so, I would submit for her consideration the following amendment to her amendment which would read as follows: AS USED IN THIS SECTION, SERVICE-CONNECTED CRIMES OR OFFENSES SHALL BE LIMITED TO THOSE DEFINED IN ARTICLES 54 TO 70, ARTICLES 72 TO 75, ARTICLES 76 TO 83 AND ARTICLES 84 TO 92, AND ARTICLES 95 TO 97, COMMONWEALTH ACT NO. 408 AS AMENDED. This would identify, I mean, specifically, what these service-related or connected offenses or crimes would be. The President. What will happen to the definition of service-connected offense already put forward by Senator Shahani? Senator Taada. I believe that would be incorporated in the specification of the Article I have mentioned in the Articles of War. SUSPENSION OF THE SESSION The President. Will the Gentleman kindly try to work it out between the two of you? I will suspend the session for a minute, if there is no objection. [There was none.] It was 5:02 p.m. RESUMPTION OF THE SESSION At 5:06 p.m., the session was resumed. The President. The session is resumed. Senator Taada. Mr. President, Senator Shahani has graciously accepted my amendment to her amendment, subject to refinement and style. The President. Is there any objection? [Silence] There being none, the amendment is approved.[22] In the same session, Senator Wigberto E. Taada, the principal sponsor of SB No. 1468, emphasized:

Senator Taada. Section 1, already provides that crimes of offenses committed by persons subject to military law ... will be tried by the civil courts, except, those which are service-related or connected. And we specified which would be considered service-related or connected under the Articles of War, Commonwealth Act No. 408.[23] It is clear from the foregoing that Rep. Act No. 7055 did not divest the military courts of jurisdiction to try cases involving violations of Articles 54 to 70, Articles 72 to 92 and Articles 95 to 97 of the Articles of War as these are considered service-connected crimes or offenses. In fact, it mandates that these shall be tried by the court-martial. Indeed, jurisdiction is the power and authority of the court to hear, try and decide a case.[24] Moreover, jurisdiction over the subject matter or nature of the action is conferred only by the Constitution or by law.[25] It cannot be (1) granted by the agreement of the parties; (2) acquired, waived, enlarged or diminished by any act or omission of the parties; or (3) conferred by the acquiescence of the courts.[26] Once vested by law on a particular court or body, the jurisdiction over the subject matter or nature of the action cannot be dislodged by any body other than by the legislature through the enactment of a law. The power to change the jurisdiction of the courts is a matter of legislative enactment which none but the legislature may do. Congress has the sole power to define, prescribe and apportion the jurisdiction of the courts.[27] In view of the clear mandate of Rep. Act No. 7055, the RTC (Branch 148) cannot divest the General Court-Martial of its jurisdiction over those charged with violations of Articles 63 (Disrespect Toward the President etc.), 64 (Disrespect Toward Superior Officer), 67 (Mutiny or Sedition), 96 (Conduct Unbecoming an Officer and a Gentleman) and 97 (General Article) of the Articles of War, as these are specifically included as service-connected offenses or crimes under Section 1 thereof. Pursuant to the same provision of law, the military courts have jurisdiction over these crimes or offenses. There was no factual and legal basis for the RTC (Branch 148) to rule that violations of Articles 63, 64, 67, 96, and 97 of the Articles of War were committed in furtherance of coup detat and, as such, absorbed by the latter crime. It bears stressing that, after a reinvestigation, the Panel of Prosecutors found no probable cause for coup detat against the petitioners and recommended the dismissal of the case against them. The trial court approved the recommendation and dismissed the case as against the petitioners. There is, as yet, no evidence on record that the petitioners committed the violations of Articles 63, 64, 96, and 97 of the Articles of War in furtherance of coup detat. In fine, in making the sweeping declaration that these charges were not service-connected, but rather absorbed and in furtherance of the crime of coup detat, the RTC (Branch 148) acted without or in excess of jurisdiction. Such declaration is, in legal contemplation, necessarily null and void and does not exist.[28] At this point, a review of its legislative history would put in better perspective the raison detre of Rep. Act No. 7055. As early as 1938, jurisdiction over offenses punishable under CA 408, as amended, also known as the Articles of War, committed by persons subject to military law was vested on the military courts. Thereafter, then President Ferdinand E. Marcos promulgated Presidential Decree (PD) Nos. 1822,[29] 1850[30] and 1852.[31] These presidential decrees transferred from the civil courts to the military courts jurisdiction over all offenses committed by members of the AFP, the former Philippine Constabulary, the former Integrated National Police, including firemen, jail guards and all persons subject to military law.

In 1991, after a series of failed coup detats, Rep. Act No. 7055 was enacted. In his sponsorship speech, Senator Taada explained the intendment of the law, thus: Senator Taada. The long and horrible nightmare of the past continues to haunt us to this present day. Its vestiges remain instituted in our legal and judicial system. Draconian decrees which served to prolong the past dictatorial regime subsist to rule our new-found lives. Two of these decrees, Presidential Decree No. 1822 and Presidential Decree No. 1850, as amended, remain intact as laws, in spite of the fact that four years have passed since we regained our democratic freedom. The late Mr. Chief Justice Claudio Teehankee enunciated in the case of Olaguer vs. Military Commission No. 34 that the greatest threat to freedom is the shortness of human memory. PD No. 1822 and PD No. 1850 made all offenses committed by members of the Armed Forces of the Philippines, the Philippine Constabulary, the Integrated National Police, including firemen and jail guards, and all persons subject to military law exclusively triable by military courts though, clearly, jurisdiction over common crimes rightly belongs to civil courts. Article II, Section 3 of the 1987 Constitution provides that civilian authority is, at all times, supreme over the military. Likewise, Article VIII, Section 1 declares that the judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. In the case of Anima vs. The Minister of National Defense, (146 Supreme Court Reports Annotated, page 406), the Supreme Court through Mr. Justice Gutierrez declared: The jurisdiction given to military tribunals over common crimes at a time when all civil courts were fully operational and freely functioning constitutes one of the saddest chapters in the history of the Philippine Judiciary. The downgrading of judicial prestige caused by the glorification of military tribunals ... the many judicial problems spawned by extended authoritarian rule which effectively eroded judicial independence and self-respect will require plenty of time and determined efforts to cure. The immediate return to civil courts of all cases which properly belong to them is only a beginning. ... Thus, as long as the civil courts in the land remain open and are regularly functioning, military tribunals cannot try and exercise jurisdiction over military men for criminal offenses committed by them which are properly cognizable by the civil courts. ...[32] Clearly, in enacting Rep. Act No. 7055, the lawmakers merely intended to return to the civilian courts the jurisdiction over those offenses that have been traditionally within their jurisdiction, but did not divest the military courts jurisdiction over cases mandated by the Articles of War. Conclusion The writs of prohibition (G.R. No. 162318) and habeas corpus (G.R. No. 162341) prayed for by the petitioners must perforce fail. As a general rule, the writ of habeas corpus will not issue where the person alleged to be restrained of his liberty is in the custody of an officer under a process issued by

the court which has jurisdiction to do so.[33] Further, the writ of habeas corpus should not be allowed after the party sought to be released had been charged before any court or quasi-judicial body.[34] The term court necessarily includes the General Court-Martial. These rules apply to Capt. Reaso, et al., as they are under detention pursuant to the Commitment Order dated August 2, 2003 issued by respondent Chief of Staff of the AFP pursuant to Article 70[35] of the Articles of War. On the other hand, the office of the writ of prohibition is to prevent inferior courts, corporations, boards or persons from usurping or exercising a jurisdiction or power with which they have not been vested by law.[36] As earlier discussed, the General Court-Martial has jurisdiction over the charges filed against petitioners 1Lt. Navales, et al. under Rep. Act No. 7055. A writ of prohibition cannot be issued to prevent it from exercising its jurisdiction. WHEREFORE, premises considered, the petitions are hereby DISMISSED. SO ORDERED. Davide, Jr. C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Tinga, Chico-Nazario, Garcia, JJ., concur. Azcuna, J., on leave.

THIRD DIVISION [G.R. No. 105308. September 25, 1998] HERBERT CANG, petitioner, vs. COURT OF APPEALS and Spouses RONALD V. CLAVANO and MARIA CLARA CLAVANO, respondents. DECISION ROMERO, J.: Can minor children be legally adopted without the written consent of a natural parent on the ground that the latter has abandoned them? The answer to this interesting query, certainly not one of first impression, would have to be reached, not solely on the basis of law and jurisprudence, but also the hard reality presented by the facts of the case. This is the question posed before this Court in this petition for review on certiorari of the Decision [1] of the Court of Appeals affirming the decree of adoption issued by the Regional Trial Court of Cebu City, Branch 14, [2] in Special Proceedings No. 1744-CEB, In the Matter of the Petition for Adoption of the minors Keith, Charmaine and Joseph Anthony, all surnamed Cang, Spouses Ronald V. Clavano and Maria Clara Diago Clavano, petitioners. Petitioner Herbert Cang and Anna Marie Clavano who were married on January 27, 1973, begot three children, namely: Keith, born on July 3, 1973; Charmaine, born on January 23, 1977, and Joseph Anthony, born on January 3, 1981. During the early years of their marriage, the Cang couples relationship was undisturbed. Not long thereafter, however, Anna Marie learned of her husbands alleged extramarital affair with Wilma Soco, a family friend of the Clavanos. Upon learning of her husbands alleged illicit liaison, Anna Marie filed a petition for legal separation with alimony pendente lite [3] with the then Juvenile and Domestic Relations Court of Cebu [4] which rendered a decision [5] approving the joint manifestation of the Cang spouses providing that they agreed to live separately and apart or from bed and board. They further agreed: (c) That the children of the parties shall be entitled to a monthly support of ONE THOUSAND PESOS (P1,000.00) effective from the date of the filing of the complaint. This shall constitute a first lien on the net proceeds of the house and lot jointly owned by the parties situated at Cinco Village, Mandaue City; (d) That the plaintiff shall be entitled to enter into any contract or agreement with any person or persons, natural or juridical without the written consent of the husband; or any undertaking or acts that ordinarily requires husbands consent as the parties are by this agreement legally separated; [6]

Petitioner then left for the United States where he sought a divorce from Anna Marie before the Second Judicial District Court of the State of Nevada. Said court issued the divorce decree that also granted sole custody of the three minor children to Anna Marie, reserving rights of visitation at all reasonable times and places to petitioner. [7] Thereafter, petitioner took an American wife and thus became a naturalized American citizen. In 1986, he divorced his American wife and never remarried. While in the United States, petitioner worked in Tablante Medical Clinic earning P18,000.00 to P20,000.00 a month [8] a portion of which was remitted to the Philippines for his childrens expenses and another, deposited in the bank in the name of his children. Meanwhile, on September 25, 1987, private respondents Ronald V. Clavano and Maria Clara Diago Clavano, respectively the brother and sister-in-law of Anna Marie, filed Special Proceedings No. 1744-CEB for the adoption of the three minor Cang children before the Regional Trial Court of Cebu. The petition bears the signature of then 14-year-old Keith signifying consent to his adoption. Anna Marie likewise filed an affidavit of consent alleging that her husband had evaded his legal obligation to support his children; that her brothers and sisters including Ronald V. Clavano, had been helping her in taking care of the children; that because she would be going to the United States to attend to a family business, leaving the children would be a problem and would naturally hamper (her) job-seeking venture abroad; and that her husband had long forfeited his parental rights over the children for the following reasons: 1. The decision in Civil Case No. JD-707 allowed her to enter into any contract without the written consent of her husband; 2. Her husband had left the Philippines to be an illegal alien in the United States and had been transferring from one place to another to avoid detection by Immigration authorities, and 3. Her husband had divorced her. Upon learning of the petition for adoption, petitioner immediately returned to the Philippines and filed an opposition thereto, alleging that, although private respondents Ronald and Maria Clara Clavano were financially capable of supporting the children while his finances were too meager compared to theirs, he could not in conscience, allow anybody to strip him of his parental authority over his beloved children. Pending resolution of the petition for adoption, petitioner moved to reacquire custody over his children alleging that Anna Marie had transferred to the United States thereby leaving custody of their children to private respondents. On January 11, 1988, the Regional Trial Court of Cebu City, Branch 19, issued an order finding that Anna Marie had, in effect, relinquished custody over the children and, therefore, such custody should be transferred to the father. The court then directed the Clavanos to deliver custody over the minors to petitioner.

On March 27, 1990, the Regional Trial Court of Cebu City, Branch 14, issued a decree of adoption with a dispositive portion reading as follows: WHEREFORE, premises considered, the petition for adoption of the minors Keith, Charmaine and Joseph Anthony all surnamed Cang, by the petitioners-spouses Ronald V. Clavano and Maria Clara Diago Clavano is hereby granted and approved. These children shall henceforth be known and called as Keith D. Clavano, Charmaine D. Clavano and Joseph Anthony D. Clavano respectively. Moreover, this Decree of Adoption shall: (1) Confer upon the adopted children the same rights and duties as though they were in fact the legitimate children of the petitioners; (2) (3) Dissolve the authority vested in the parents by nature, of the children; and, Vest the same authority in the petitioners.

Furnish the Local Civil Registrar of Cebu City, Philippines with a copy of this Decree of Adoption for registration purposes. SO ORDERED. In so ruling, the lower court was impelled by these reasons: (1) The Cang children had, since birth, developed close filial ties with the Clavano family, especially their maternal uncle, petitioner Ronald Clavano. (2) Ronald and Maria Clara Clavano were childless and, with their printing press, real estate business, export business and gasoline station and mini-mart in Rosemead, California, U.S.A., had substantial assets and income. (3) The natural mother of the children, Anna Marie, nicknamed Menchu, approved of the adoption because of her heart ailment, near-fatal accident in 1981, and the fact that she could not provide them a secure and happy future as she travels a lot. (4) The Clavanos could provide the children moral and spiritual direction as they would go to church together and had sent the children to Catholic schools. (5) The children themselves manifested their desire to be adopted by the Clavanos Keith had testified and expressed the wish to be adopted by the Clavanos while the two younger ones were observed by the court to have snuggled close to Ronald even though their natural mother was around. On the other hand, the lower court considered the opposition of petitioner to rest on a very shaky foundation because of its findings that: (1) Petitioner was morally unfit to be the father of his children on account of his being an improvident father of his family and an undisguised Lothario. This conclusion is based on the

testimony of his alleged paramour, mother of his two sons and close friend of Anna Marie, Wilma Soco, who said that she and petitioner lived as husband and wife in the very house of the Cangs in Opao, Mandaue City. (2) The alleged deposits of around $10,000 that were of comparatively recent dates were attempts at verisimilitude as these were joint deposits the authenticity of which could not be verified. (3) Contrary to petitioners claim, the possibility of his reconciliation with Anna Marie was dim if not nil because it was petitioner who devised, engineered and executed the divorce proceedings at the Nevada Washoe County court. (4) By his naturalization as a U.S. citizen, petitioner is now an alien from the standpoint of Philippine laws and therefore, how his new attachments and loyalties would sit with his (Filipino) children is an open question. Quoting with approval the evaluation and recommendation of the RTC Social Worker in her Child Study Report, the lower court concluded as follows: Simply put, the oppositor Herbert Cang has abandoned his children. And abandonment of a child by its (sic) parent is commonly specified by statute as a ground for dispensing with his consent to its (sic) adoption (Re Cozza, 163 Cal. 514 P. 161, Ann. [As. 1914A, 214]). Indeed, in such case, adoption will be allowed not only without the consent of the parent, but even against his opposition (Re McKeag, 141 Cal. 403, 74 P. 1039, 99 Am. St. Rep. 80; Re Camp. 131 Cal. 469, 63 P. 736, 82 Am. St. Rep. 371; Graham v. Francis, 83 Colo. 346, 265 P. 690, citing R.C.L.; Seibert, 170 Iowa, 561, 153 N.W. 160, citing R.C.L.; Stearns v. Allen, 183 Mass. 404, 67 N.E. 349; 97 Am. St. Rep. 441; Wilson v. Otis, 71 N.H. 483, 53 A. 439, 93 Am. St. Rep. 564; Nugent v. Powell, 4 Wyo. 173, 33 P. 23, 20 L.R.A. 199, 62 Am. St. Rep. 17.) [9] Before the Court of Appeals, petitioner contended that the lower court erred in holding that it would be in the best interest of the three children if they were adopted by private respondents Ronald and Maria Clara Clavano. He asserted that the petition for adoption was fatally defective and tailored to divest him of parental authority because: (a) he did not have a written consent to the adoption; (b) he never abandoned his children; (c) Keith and Charmaine did not properly give their written consent; and (d) the petitioners for adoption did not present as witness the representative of the Department of Social Welfare and Development who made the case study report required by law. The Court of Appeals affirmed the decree of adoption stating: Article 188 of the Family Code requires the written consent of the natural parents of the child to be adopted. It has been held however that the consent of the parent who has abandoned the child is not necessary (Dayrit vs. Piccio, 92 Phil. 729; Santos vs. Ananzanso, 16 SCRA 344). The question therefore is whether or not oppositor may be considered as having abandoned the children. In

adoption cases, abandonment connotes any conduct on the part of the parent to forego parental duties and relinquish parental claims to the child, or the neglect or refusal to perform the natural and legal obligations which parents owe their children (Santos vs. Ananzanso, supra), or the withholding of the parents presence, his care and the opportunity to display voluntary affection. The issue of abandonment is amply covered by the discussion of the first error. Oppositor argues that he has been sending dollar remittances to the children and has in fact even maintained bank accounts in their names. His duty to provide support comes from two judicial pronouncements. The first, the decision in JD-707 CEB, supra, obliges him to pay the children P1,000.00 a month. The second is mandated by the divorce decree of the Nevada, U.S.A. Federal Court which orders him to pay monthly support of US$50.00 for each child. Oppositor has not submitted any evidence to show compliance with the decision in JD-101 CEB, but he has submitted 22 cancelled dollar checks (Exhs. 24 to 45) drawn in the childrens names totalling $2,126.98. The last remittance was on October 6, 1987 (Exh. 45). His obligation to provide support commenced under the divorce decree on May 5, 1982 so that as of October 6, 1987, oppositor should have made 53 remittances of $150.00, or a total of $7,950.00. No other remittances were shown to have been made after October 6, 1987, so that as of this date, oppositor was woefully in arrears under the terms of the divorce decree. And since he was totally in default of the judgment in JD-707 CEB, the inevitable conclusion is oppositor had not really been performing his duties as a father, contrary to his protestations. True, it has been shown that oppositor had opened three accounts in different banks, as follows Acct. No. 1) 118-606437-4

2) 73-166-8

3) 564-146883 Date Opened July 23, 1985 Oct. 29, 1987

March 5, 1986

Oct. 26, 1987

December 31, 1986 Oct. 29, 1987 $5,018.50 Balance

3,129.00

2,622.19

Name of Bank

Great Western Savings, Daly City, Cal., U.S.A.

Matewan National Bank of Williamson, West Virginia, U.S.A.

Security Pacific National Bank, Daly City, Cal., U.S.A. The first and third accounts were opened however in oppositors name as trustee for Charmaine Cang and Joseph Anthony Cang, respectively. In other words, the accounts are operated and the amounts withdrawable by oppositor himself and it cannot be said that they belong to the minors. The second is an `or account, in the names of Herbert Cang or Keith Cang. Since Keith is a minor and in the Philippines, said account is operable only by oppositor and the funds withdrawable by him alone. The bank accounts do not really serve what oppositor claimed in his offer of evidence `the aim and purpose of providing for a better future and security of his family. [10] Petitioner moved to reconsider the decision of the Court of Appeals. He emphasized that the decree of legal separation was not based on the merits of the case as it was based on a manifestation amounting to a compromise agreement between him and Anna Marie. That he and his wife agreed upon the plan for him to leave for the United States was borne out by the fact that prior to his departure to the United States, the family lived with petitioners parents. Moreover, he

alone did not instigate the divorce proceedings as he and his wife initiated the joint complaint for divorce. Petitioner argued that the finding that he was not fit to rear and care for his children was belied by the award to him of custody over the children in Civil Case No. JD-707. He took exception to the appellate courts findings that as an American citizen he could no longer lay claim to custody over his children because his citizenship would not take away the fact that he is still a father to his children. As regards his alleged illicit relationship with another woman, he had always denied the same both in Civil Case No. JD-707 and the instant adoption case. Neither was it true that Wilma Soco was a neighbor and family friend of the Clavanos as she was residing in Mandaue City seven (7) kilometers away from the Clavanos who were residents of Cebu City. Petitioner insisted that the testimony of Wilma Soco should not have been given weight for it was only during the hearing of the petition for adoption that Jose Clavano, a brother of Ronald, came to know her and went to her residence in Iligan City to convince her to be a witness for monetary considerations. Lastly, petitioner averred that it would be hypocritical of the Clavanos to claim that they could love the children much more than he could. [11] His motion for reconsideration having been denied, petitioner is now before this Court, alleging that the petition for adoption was fatally defective as it did not have his written consent as a natural father as required by Article 31 (2) of Presidential Decree No. 603, the Child and Youth Welfare Code, and Article 188 (2) of the Family Code. Article 31 of P.D. No. 603 provides ART. 31. Whose Consent is Necessary. The written consent of the following to the adoption shall be necessary: (1) The person to be adopted, if fourteen years of age or over; (2) The natural parents of the child or his legal guardian of the Department of Social Welfare or any duly licensed child placement agency under whose care the child may be; (3) The natural children, fourteen years and above, of the adopting parents. (Underscoring supplied) On December 17, 1986, then President Corazon C. Aquino issued Executive Order No. 91 amending Articles 27, 28, 29, 31, 33 and 35 of the Child and Youth Welfare Code. As thus amended, Article 31 read: ART. 31. Whose Consent is Necessary. The written consent of the following to the adoption shall be necessary: (1) The person to be adopted, if fourteen years of age or over;

(2) The natural parents of the child or his legal guardian after receiving counselling and appropriate social services from the Ministry of Social Services and Development or from a duly licensed child-placement agency; (3) The Ministry of Social Services and Development or any duly licensed child-placement agency under whose care and legal custody the child may be; (4) The natural children, fourteen years and above, of the adopting parents. (Underscoring supplied) Jurisdiction being a matter of substantive law, the established rule is that the statute in force at the time of the commencement of the action determines the jurisdiction of the court. [12] As such, when private respondents filed the petition for adoption on September 25, 1987, the applicable law was the Child and Youth Welfare Code, as amended by Executive Order No. 91. During the pendency of the petition for adoption or on August 3, 1988, the Family Code which amended the Child and Youth Welfare Code took effect. Article 256 of the Family Code provides for its retroactivity insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws. As amended by the Family Code, the statutory provision on consent for adoption now reads: Art. 188. The written consent of the following to the adoption shall be necessary: (1) The person to be adopted, if ten years of age or over; (2) The parents by nature of the child, the legal guardian, or the proper government instrumentality; (3) The legitimate and adopted children, ten years of age or over, of the adopting parent or parents; (4) The illegitimate children, ten years of age or over, of the adopting parents, if living with said parent and the latters spouse, if any; and (5) The spouse, if any, of the person adopting or to be adopted. (Underscoring supplied) Based on the foregoing, it is thus evident that notwithstanding the amendments to the law, the written consent of the natural parent to the adoption has remained a requisite for its validity. Notably, such requirement is also embodied in Rule 99 of the Rules of Court as follows: SEC. 3. Consent to adoption. There shall be filed with the petition a written consent to the adoption signed by the child, if fourteen years of age or over and not incompetent, and by the childs spouse, if any, and by each of its known living parents who is not insane or hopelessly intemperate or has not abandoned the child, or if there are no such parents by the general guardian or guardian ad litem of the child, or if the child is in the custody of an orphan asylum, childrens home, or benevolent society or person, by the proper officer or officers of such asylum,

home, or society, or by such persons; but if the child is illegitimate and has not been recognized, the consent of its father to the adoption shall not be required. (Underscoring supplied) As clearly inferred from the foregoing provisions of law, the written consent of the natural parent is indispensable for the validity of the decree of adoption. Nevertheless, the requirement of written consent can be dispensed with if the parent has abandoned the child [13] or that such parent is insane or hopelessly intemperate. The court may acquire jurisdiction over the case even without the written consent of the parents or one of the parents provided that the petition for adoption alleges facts sufficient to warrant exemption from compliance therewith. This is in consonance with the liberality with which this Court treats the procedural aspect of adoption. Thus, the Court declared: x x x. The technical rules of pleading should not be stringently applied to adoption proceedings, and it is deemed more important that the petition should contain facts relating to the child and its parents, which may give information to those interested, than that it should be formally correct as a pleading. Accordingly, it is generally held that a petition will confer jurisdiction if it substantially complies with the adoption statute, alleging all facts necessary to give the court jurisdiction. [14] In the instant case, only the affidavit of consent of the natural mother was attached to the petition for adoption. Petitioners consent, as the natural father is lacking. Nonetheless, the petition sufficiently alleged the fact of abandonment of the minors for adoption by the natural father as follows: 3. That the childrens mother, sister of petitioner RONALD V. CLAVANO, has given her express consent to this adoption, as shown by Affidavit of Consent, Annex `A. Likewise, the written consent of Keith Cang, now 14 years of age appears on page 2 of this petition; However, the father of the children, Herbert Cang, had already left his wife and children and had already divorced the former, as evidenced by the xerox copy of the DECREE OF DIVORCE issued by the County of Washoe, State of Nevada, U.S.A. (Annex `B) which was filed at the instance of Mr. Cang, not long after he abandoned his family to live in the United States as an illegal immigrant. [15] The allegations of abandonment in the petition for adoption, even absent the written consent of petitioner, sufficiently vested the lower court with jurisdiction since abandonment of the child by his natural parents is one of the circumstances under which our statutes and jurisprudence [16] dispense with the requirement of written consent to the adoption of their minor children. However, in cases where the father opposes the adoption primarily because his consent thereto was not sought, the matter of whether he had abandoned his child becomes a proper issue for determination. The issue of abandonment by the oppositor natural parent is a preliminary issue that an adoption court must first confront. Only upon failure of the oppositor natural father to prove to the satisfaction of the court that he did not abandon his child may the petition for adoption be considered on its merits.

As a rule, factual findings of the lower courts are final and binding upon this Court. [17] This Court is not expected nor required to examine or contrast the oral and documentary evidence submitted by the parties. [18] However, although this Court is not a trier of facts, it has the authority to review and reverse the factual findings of the lower courts if it finds that these do not conform to the evidence on record. [19] In Reyes v. Court of Appeals, [20] this Court has held that the exceptions to the rule that factual findings of the trial court are final and conclusive and may not be reviewed on appeal are the following: (1) when the inference made is manifestly mistaken, absurd or impossible; (2) when there is a grave abuse of discretion; (3) when the finding is grounded entirely on speculations, surmises or conjectures; (4) when the judgment of the Court of Appeals is based on misapprehension of facts; (5) when the findings of fact are conflicting; (6) when the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee; (7) when the findings of the Court of Appeals are contrary to those of the trial court; (8) when the findings of fact are conclusions without citation of specific evidence on which they are based; (9) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion and (10) when the findings of fact of the Court of Appeals are premised on the absence of evidence and are contradicted by the evidence on record. This Court finds that both the lower court and the Court of Appeals failed to appreciate facts and circumstances that should have elicited a different conclusion [21] on the issue of whether petitioner has so abandoned his children, thereby making his consent to the adoption unnecessary. In its ordinary sense, the word abandon means to forsake entirely, to forsake or renounce utterly. The dictionaries trace this word to the root idea of putting under a ban. The emphasis is on the finality and publicity with which a thing or body is thus put in the control of another, hence, the meaning of giving up absolutely, with intent never to resume or claim ones rights or interests. [22] In reference to abandonment of a child by his parent, the act of abandonment imports any conduct of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child. It means neglect or refusal to perform the natural and legal obligations of care and support which parents owe their children. [23] In the instant case, records disclose that petitioners conduct did not manifest a settled purpose to forego all parental duties and relinquish all parental claims over his children as to constitute abandonment. Physical estrangement alone, without financial and moral desertion, is not tantamount to abandonment. [24] While admittedly, petitioner was physically absent as he was then in the United States, he was not remiss in his natural and legal obligations of love, care and support for his children. He maintained regular communication with his wife and children through letters and telephone. He used to send packages by mail and catered to their whims. Petitioners testimony on the matter is supported by documentary evidence consisting of the following handwritten letters to him of both his wife and children:

1. Exh. 1 a 4-page undated letter of Menchu (Anna Marie) addressed to Dear Bert on a C.Westates Carbon Phil. Corp. stationery. Menchu stated therein that it had been a long time since the last time youve heard from me excluding that of the phone conversation weve had. She discussed petitioners intention to buy a motorbike for Keith, expressing apprehension over risks that could be engendered by Keiths use of it. She said that in the last phone conversation she had with petitioner on the birthday of Ma, she forgot to tell petitioner that Keiths voice had changed; he had become a bagito or a teen-ager with many fans who sent him Valentines cards. She told him how Charmaine had become quite a talkative almost dalaga who could carry on a conversation with her angkong and how pretty she was in white dress when she won among the candidates in the Flores de Mayo after she had prayed so hard for it. She informed him, however, that she was worried because Charmaine was vain and wont to extravagance as she loved clothes. About Joeton (Joseph Anthony), she told petitioner that the boy was smart for his age and quite spoiled being the youngest of the children in Lahug. Joeton was mischievous but Keith was his idol with whom he would sleep anytime. She admitted having said so much about the children because they might not have informed petitioner of some happenings and spices of life about themselves. She said that it was just very exciting to know how theyve grown up and very pleasant, too, that each of them have (sic) different characters. She ended the letter with the hope that petitioner was at the best of health. After extending her regards to all, she signed her name after the word Love. This letter was mailed on July 9, 1986 from Cebu to petitioner whose address was P.O. Box 2445, Williamson, West Virginia 25661 (Exh. 1-D). 2. Exh. 2 letter dated 11/13/84 on a green stationery with golden print of a note from Menchu on the left upper corner. Anna Marie stated that we wrote to petitioner on Oct. 2, 1984 and that Keith and Joeton were very excited when petitioner called up last time. She told him how Joeton would grab the phone from Keith just so petitioner would know what he wanted to order. Charmaine, who was asleep, was so disappointed that she missed petitioners call because she also wanted something that petitioner should buy. Menchu told petitioner that Charmaine wanted a pencil sharpener, light-colored T-shirts for her walking shorts and a (k)nap sack. Anna Marie informed petitioner that the kids were growing up and so were their needs. She told petitioner to be very fatherly about the childrens needs because those were expensive here. For herself, Anna Marie asked for a subscription of Glamour and Vogue magazines and that whatever expenses he would incur, she would replace these. As a postscript, she told petitioner that Keith wanted a size 6 khaki-colored Sperry topsider shoes. 3. Exh. 3 an undated note on a yellow small piece of paper that reads: Dear Herbert, Hi, how was Christmas and New Year? Hope you had a wonderful one. By the way thanks for the shoes, it was a nice one. Its nice to be thought of at Xmas. Thanks again. Sincerely,

Menchu 4. Exh. 4 a two-page undated letter of Keith on stationery of Jose Clavano, Inc. addressed to Dear Dad. Keith told his father that they tried to tell their mother to stay for a little while, just a few weeks after classes start(s) on June 16. He informed petitioner that Joeton would be in Kinder I and that, about the motorbike, he had told his mother to write petitioner about it and well see what youre (sic) decision will be. He asked for chocolates, nuts, basketball shirt and shorts, rubber shoes, socks, headband, some clothes for outing and perfume. He told petitioner that they had been going to Lahug with their mother picking them up after Angkong or Ama had prepared lunch or dinner. From her aerobics, his mother would go for them in Lahug at about 9:30 or 10:00 oclock in the evening. He wished his father luck and the best of health and that they prayed for him and their other relatives. The letter was ended with Love Keith. 5. Exh. 5 another undated long letter of Keith. He thanked his father for the Christmas card with $40.00, $30.00 and $30.00 and the card of Joeton with $5.00 inside. He told petitioner the amounts following his fathers instructions and promise to send money through the mail. He asked his father to address his letter directly to him because he wanted to open his own letters. He informed petitioner of activities during the Christmas season that they enjoyed eating, playing and giving surprises to their mother. He apprised him of his daily schedule and that their mother had been closely supervising them, instructing them to fold their blankets and pile up their pillows. He informed petitioner that Joeton had become very smart while Charmaine, who was also smart, was very demanding of their mother. Because their mother was leaving for the United States on February 5, they would be missing her like they were missing petitioner. He asked for his things and $200.00. He told petitioner more anecdotes about Joeton like he would make the sign of the cross even when they would pass by the Iglesia ni Cristo church and his insistence that Aquino was not dead because he had seen him on the betamax machine. For Keith, Charmaine had become very maldita who was not always satisfied with her dolls and things but Joeton was full of surprises. He ended the letter with Love your son, Keith. The letter was mailed on February 6, 1985 (Exh. 5-D). 6. Exh. 6 an undated letter Charmaine. She thanked petitioner for the bathing suit, key chain, pencil box, socks, half shirt, pencil sharpener and $50.00. She reminded him of of her birthday on January 23 when she would turn 9 years old. She informed him that she wore size 10 and the size of her feet was IM. They had fun at Christmas in Lahug but classes would start on January 9 although Keiths classes had started on January 6. They would feel sad again because Mommy would be leaving soon. She hoped petitioner would keep writing them. She signed, Love, Charmaine. 7. Exh . 7 an undated letter of Keith. He explained to petitioner that they had not been remiss in writing letters to him. He informed him of their trip to Manila they went to Malacaang, Tito Doy Laurels house, the Ministry of Foreign Affairs, the executive house, Tagaytay for three days and Baguio for one week. He informed him that he got honors, Charmaine was 7th in her class and Joeton had excellent grades. Joeton would be enrolled in Sacred Heart soon and he was

glad they would be together in that school. He asked for his reward from petitioner and so with Charmaine and Joeton. He asked for a motorbike and dollars that he could save. He told petitioner that he was saving the money he had been sending them. He said he missed petitioner and wished him the best. He added that petitioner should call them on Sundays. 8. Exh. 8 a letter from Joeton and Charmaine but apparently written by the latter. She asked for money from petitioner to buy something for the school and something else. She promised not to spend so much and to save some. She said she loved petitioner and missed him. Joeton said hi! to petitioner. After ending the letter with Love, Joeton and Charmaine, she asked for her prize for her grades as she got seventh place. 9. Exh. 9 undated letter of Keith. He assured petitioner that he had been writing him; that he would like to have some money but he would save them; that he learned that petitioner had called them up but he was not around; that he would be going to Manila but would be back home May 3; that his Mommy had just arrived Thursday afternoon, and that he would be the official altar boy. He asked petitioner to write them soon. 10. Exh. 10 Keith thanked petitioner for the money he sent. He told petitioner that he was saving some in the bank and he was proud because he was the only one in his group who saved in the bank. He told him that Joeton had become naughty and would claim as his own the shirts sent to Keith by petitioner. He advised petitioner to send pants and shirts to Joeton, too, and asked for a pair of topsider shoes and candies. He informed petitioner that he was a member of the basketball team and that his mom would drive for his group. He asked him to call them often like the father of Ana Christie and to write them when he would call so that they could wait for it. He informed petitioner that they had all grown bigger and heavier. He hoped petitioner would be happy with the letter that had taken him so long to write because he did not want to commit any mistakes. He asked petitioner to buy him perfume (Drakkar) and, after thanking petitioner, added that the latter should buy something for Mommy. 11. Exh. 11 a Christmas card For My Wonderful Father dated October 8, 1984 from Keith, Charmaine and Joeton. 12. Exh. 12 another Christmas card, Our Wish For You with the year 83 written on the upper right hand corner of the inside page, from Keith, Charmaine and Joeton. 13. Exh. 13 a letter of Keith telling petitioner that he had written him even when their Mom was there where she bought them clothes and shoes. Keith asked petitioner for $300.00. Because his mother would not agree to buy him a motorbike, he wanted a Karaoke unit that would cost P12,000.00. He informed petitioner that he would go to an afternoon disco with friends but their grades were all good with Joeton receiving stars for excellence. Keith wanted a bow and arrow Rambo toys and G.I. Joe. He expressed his desire that petitioner would come and visit them someday.

14. Exh. 14 a letter of Keith with one of the four pages bearing the date January 1986. Keith told his father that they had received the package that the latter sent them. The clothes he sent, however, fitted only Keith but not Charmaine and Joeton who had both grown bigger. Keith asked for grocery items, toys and more clothes. He asked, in behalf of his mother, for low-heeled shoes and a dress to match, jogging pants, tights and leotards that would make her look sexy. He intimated to petitioner that he had grown taller and that he was already ashamed to be asking for things to buy in the grocery even though his mother had told him not to be shy about it. Aside from these letters, petitioner also presented certifications of banks in the U.S.A. showing that even prior to the filing of the petition for adoption, he had deposited amounts for the benefit of his children. [25] Exhibits 24 to 45 are copies of checks sent by petitioner to the children from 1985 to 1989. These pieces of evidence are all on record. It is, therefore, quite surprising why the courts below simply glossed over these, ignoring not only evidence on financial support but also the emotional exchange of sentiments between petitioner and his family. Instead, the courts below emphasized the meagerness of the amounts he sent to his children and the fact that, as regards the bank deposits, these were withdrawable by him alone. Simply put, the courts below attached a high premium to the prospective adopters financial status but totally brushed aside the possible repercussion of the adoption on the emotional and psychological well-being of the children. True, Keith had expressed his desire to be adopted by his uncle and aunt. However, his seeming steadfastness on the matter as shown by his testimony is contradicted by his feelings towards his father as revealed in his letters to him. It is not at all farfetched to conclude that Keiths testimony was actually the effect of the filing of the petition for adoption that would certainly have engendered confusion in his young mind as to the capability of his father to sustain the lifestyle he had been used to. The courts below emphasized respondents emotional attachment to the children. This is hardly surprising for, from the very start of their young lives, the children were used to their presence. Such attachment had persisted and certainly, the young ones act of snuggling close to private respondent Ronald Clavano was not indicative of their emotional detachment from their father. Private respondents, being the uncle and aunt of the children, could not but come to their succor when they needed help as when Keith got sick and private respondent Ronald spent for his hospital bills. In a number of cases, this Court has held that parental authority cannot be entrusted to a person simply because he could give the child a larger measure of material comfort than his natural parent. Thus, in David v. Court of Appeals, [26] the Court awarded custody of a minor illegitimate child to his mother who was a mere secretary and market vendor instead of to his affluent father who was a married man, not solely because the child opted to go with his mother. The Court said:

Daisie and her children may not be enjoying a life of affluence that private respondent promises if the child lives with him. It is enough, however, that petitioner is earning a decent living and is able to support her children according to her means. In Celis v. Cafuir [27] where the Court was confronted with the issue of whether to award custody of a child to the natural mother or to a foster mother, this Court said: This court should avert the tragedy in the years to come of having deprived mother and son of the beautiful associations and tender, imperishable memories engendered by the relationship of parent and child. We should not take away from a mother the opportunity of bringing up her own child even at the cost of extreme sacrifice due to poverty and lack of means; so that afterwards, she may be able to look back with pride and a sense of satisfaction at her sacrifices and her efforts, however humble, to make her dreams of her little boy come true. We should not forget that the relationship between a foster mother and a child is not natural but artificial. If the child turns out to be a failure or forgetful of what its foster parents had done for him, said parents might yet count and appraise (sic) all that they have done and spent for him and with regret consider all of it as a dead loss, and even rue the day they committed the blunder of taking the child into their hearts and their home. Not so with a real natural mother who never counts the cost and her sacrifices, ever treasuring memories of her associations with her child, however unpleasant and disappointing. Flesh and blood count. x x x. In Espiritu v. Court of Appeals, [28] the Court stated that (I)n ascertaining the welfare and best interests of the child, courts are mandated by the Family Code to take into account all relevant considerations. Thus, in awarding custody of the child to the father, the Court said: A scrutiny of the pleadings in this case indicates that Teresita, or at least, her counsel are more intent on emphasizing the `torture and agony of a mother separated from her children and the humiliation she suffered as a result of her character being made a key issue in court rather than the feelings and future, the best interests and welfare of her children. While the bonds between a mother and her small child are special in nature, either parent, whether father or mother, is bound to suffer agony and pain if deprived of custody. One cannot say that his or her suffering is greater than that of the other parent. It is not so much the suffering, pride, and other feelings of either parent but the welfare of the child which is the paramount consideration. (Italics supplied) [29] Indeed, it would be against the spirit of the law if financial consideration were to be the paramount consideration in deciding whether to deprive a person of parental authority over his children. There should be a holistic approach to the matter, taking into account the physical, emotional, psychological, mental, social and spiritual needs of the child. [30] The conclusion of the courts below that petitioner abandoned his family needs more evidentiary support other than his inability to provide them the material comfort that his admittedly affluent in-laws could provide. There should be proof that he had so emotionally abandoned them that his children would not miss his guidance and counsel if they were given to adopting parents. The letters he received from his children prove that petitioner maintained the more important emotional tie between him and his

children. The children needed him not only because he could cater to their whims but also because he was a person they could share with their daily activities, problems and triumphs. The Court is thus dismayed that the courts below did not look beyond petitioners meager financial support to ferret out other indications on whether petitioner had in fact abandoned his family. The omission of said courts has led us to examine why the children were subjected to the process of adoption, notwithstanding the proven ties that bound them to their father. To our consternation, the record of the case bears out the fact that the welfare of the children was not exactly the paramount consideration that impelled Anna Marie to consent to their adoption. In her affidavit of consent, Anna Marie expressly said that leaving the children in the country, as she was wont to travel abroad often, was a problem that would naturally hamper her job-seeking abroad. In other words, the adoption appears to be a matter of convenience for her because Anna Marie herself is financially capable of supporting her children. [31] In his testimony, private respondent Ronald swore that Anna Marie had been out of the country for two years and came home twice or three times, [32] thereby manifesting the fact that it was she who actually left her children to the care of her relatives. It was bad enough that their father left their children when he went abroad, but when their mother followed suit for her own reasons, the situation worsened. The Clavano family must have realized this. Hence, when the family first discussed the adoption of the children, they decided that the prospective adopter should be Anna Maries brother Jose. However, because he had children of his own, the family decided to devolve the task upon private respondents. [33] This couple, however, could not always be in Cebu to care for the children. A businessman, private respondent Ronald Clavano commutes between Cebu and Manila while his wife, private respondent Maria Clara, is an international flight stewardess. [34] Moreover, private respondent Ronald claimed that he could take care of the children while their parents are away, [35] thereby indicating the evanescence of his intention. He wanted to have the childrens surname changed to Clavano for the reason that he wanted to take them to the United States as it would be difficult for them to get a visa if their surname were different from his. [36] To be sure, he also testified that he wanted to spare the children the stigma of being products of a broken home. Nevertheless, a close analysis of the testimonies of private respondent Ronald, his sister Anna Marie and their brother Jose points to the inescapable conclusion that they just wanted to keep the children away from their father. One of the overriding considerations for the adoption was allegedly the state of Anna Maries health she was a victim of an almost fatal accident and suffers from a heart ailment. However, she herself admitted that her health condition was not that serious as she could still take care of the children. [37] An eloquent evidence of her ability to physically care for them was her employment at the Philippine Consulate in Los Angeles [38]- she could not have been employed if her health were endangered. It is thus clear that the Clavanos attempt at depriving petitioner of parental authority apparently stemmed from their notion that he was an inveterate womanizer. Anna Marie in fact expressed fear that her children would never be at ease with the wife of their father. [39]

Petitioner, who described himself as single in status, denied being a womanizer and father to the sons of Wilma Soco. [40] As to whether he was telling the truth is beside the point. Philippine society, being comparatively conservative and traditional, aside from being Catholic in orientation, it does not countenance womanizing on the part of a family man, considering the baneful effects such irresponsible act visits on his family. Neither may the Court place a premium on the inability of a man to distinguish between siring children and parenting them. Nonetheless, the actuality that petitioner carried on an affair with a paramour cannot be taken as sufficient basis for the conclusion that petitioner was necessarily an unfit father. [41] Conventional wisdom and common human experience show that a bad husband does not necessarily make a bad father. That a husband is not exactly an upright man is not, strictly speaking, a sufficient ground to deprive him as a father of his inherent right to parental authority over the children. [42] Petitioner has demonstrated his love and concern for his children when he took the trouble of sending a telegram [43] to the lower court expressing his intention to oppose the adoption immediately after learning about it. He traveled back to this country to attend to the case and to testify about his love for his children and his desire to unite his family once more in the United States. [44] Private respondents themselves explained why petitioner failed to abide by the agreement with his wife on the support of the children. Petitioner was an illegal alien in the United States. As such, he could not have procured gainful employment. Private respondents failed to refute petitioners testimony that he did not receive his share from the sale of the conjugal home, [45] pursuant to their manifestation/compromise agreement in the legal separation case. Hence, it can be reasonably presumed that the proceeds of the sale redounded to the benefit of his family, particularly his children. The proceeds may not have lasted long but there is ample evidence to show that thereafter, petitioner tried to abide by his agreement with his wife and sent his family money, no matter how meager. The liberality with which this Court treats matters leading to adoption insofar as it carries out the beneficent purposes of the law to ensure the rights and privileges of the adopted child arising therefrom, ever mindful that the paramount consideration is the overall benefit and interest of the adopted child, should be understood in its proper context and perspective. The Courts position should not be misconstrued or misinterpreted as to extend to inferences beyond the contemplation of law and jurisprudence. [46] The discretion to approve adoption proceedings is not to be anchored solely on best interests of the child but likewise, with due regard to the natural rights of the parents over the child. [47] In this regard, this Court notes private respondents reliance on the manifestation/compromise agreement between petitioner and Anna Marie which became the basis of the decree of legal separation. According to private respondents counsel, [48] the authority given to Anna Marie by that decree to enter into contracts as a result of the legal separation was all embracing [49] and, therefore, included giving her sole consent to the adoption. This conclusion is however, anchored on the wrong premise that the authority given to the innocent spouse to enter into contracts that obviously refer to their conjugal properties, shall include entering into agreements leading to the adoption of the children. Such conclusion is as devoid of a legal basis as private respondents

apparent reliance on the decree of legal separation for doing away with petitioners consent to the adoption. The transfer of custody over the children to Anna Marie by virtue of the decree of legal separation did not, of necessity, deprive petitioner of parental authority for the purpose of placing the children up for adoption. Article 213 of the Family Code states: . . . in case of legal separation of parents, parental authority shall be exercised by the parent designated by the court. In awarding custody, the court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit. It should be noted, however, that the law only confers on the innocent spouse the exercise of parental authority. Having custody of the child, the innocent spouse shall implement the sum of parental rights with respect to his rearing and care. The innocent spouse shall have the right to the childs services and earnings, and the right to direct his activities and make decisions regarding his care and control, education, health and religion. [50] In a number of cases, this Court has considered parental authority, the joint exercise of which is vested by the law upon the parents, [51] as x x x a mass of rights and obligations which the law grants to parents for the purpose of the childrens physical preservation and development, as well as the cultivation of their intellect and the education of their hearts and senses. As regards parental authority, `there is no power, but a task; no complex of rights, but a sum of duties; no sovereignty but a sacred trust for the welfare of the minor. Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases authorized by law. The right attached to parental authority, being purely personal, the law allows a waiver of parental authority only in cases of adoption, guardianship and surrender to a childrens home or an orphan institution. When a parent entrusts the custody of a minor to another, such as a friend or godfather, even in a document, what is given is merely temporary custody and it does not constitute a renunciation of parental authority. Even if a definite renunciation is manifest, the law still disallows the same. The father and mother, being the natural guardians of unemancipated children, are duty-bound and entitled to keep them in their custody and company. [52] (Italics supplied) As such, in instant case, petitioner may not be deemed as having been completely deprived of parental authority, notwithstanding the award of custody to Anna Marie in the legal separation case. To reiterate, that award was arrived at by the lower court on the basis of the agreement of the spouses. While parental authority may be waived, as in law it may be subject to a compromise, [53] there was no factual finding in the legal separation case that petitioner was such an irresponsible person that he should be deprived of custody of his children or that there are grounds under the law that

could deprive him of parental authority. In fact, in the legal separation case, the court thereafter ordered the transfer of custody over the children from Anna Marie back to petitioner. The order was not implemented because of Anna Maries motion for reconsideration thereon. The Clavano family also vehemently objected to the transfer of custody to the petitioner, such that the latter was forced to file a contempt charge against them. [54] The law is clear that either parent may lose parental authority over the child only for a valid reason. No such reason was established in the legal separation case. In the instant case for adoption, the issue is whether or not petitioner had abandoned his children as to warrant dispensation of his consent to their adoption. Deprivation of parental authority is one of the effects of a decree of adoption. [55] But there cannot be a valid decree of adoption in this case precisely because, as this Court has demonstrated earlier, the finding of the courts below on the issue of petitioners abandonment of his family was based on a misappreciation that was tantamount to nonappreciation, of facts on record. As regards the divorce obtained in the United States, this Court has ruled in Tenchavez v. Escao [56] that a divorce obtained by Filipino citizens after the effectivity of the Civil Code is not recognized in this jurisdiction as it is contrary to State policy. While petitioner is now an American citizen, as regards Anna Marie who has apparently remained a Filipino citizen, the divorce has no legal effect. Parental authority is a constitutionally protected State policy borne out of established customs and tradition of our people. Thus, in Silva v. Court of Appeals, [57] a case involving the visitorial rights of an illegitimate parent over his child, the Court expressed the opinion that: Parents have the natural right, as well as the moral and legal duty, to care for their children, see to their upbringing and safeguard their best interest and welfare. This authority and responsibility may not be unduly denied the parents; neither may it be renounced by them. Even when the parents are estranged and their affection for each other is lost, the attachment and feeling for their offsprings invariably remain unchanged. Neither the law nor the courts allow this affinity to suffer absent, of course, any real, grave and imminent threat to the well-being of the child. Since the incorporation of the law concerning adoption in the Civil Code, there has been a pronounced trend to place emphasis in adoption proceedings, not so much on the need of childless couples for a child, as on the paramount interest of a child who needs the love and care of parents. After the passage of the Child and Youth Welfare Code and the Family Code, the discernible trend has impelled the enactment of Republic Act No. 8043 on Intercountry Adoption [58] and Republic Act No. 8552 establishing the rules on the domestic adoption of Filipino children. [59] The case at bar applies the relevant provisions of these recent laws, such as the following policies in the Domestic Adoption Act of 1998:

(a) To ensure that every child remains under the care and custody of his/her parent(s) and be provided with love, care, understanding and security towards the full and harmonious development of his/her personality. [60] (b) In all matters relating to the care, custody and adoption of a child, his/her interest shall be the paramount consideration in accordance with the tenets set forth in the United Nations (UN) Convention on the Rights of the Child. [61] (c) To prevent the child from unnecessary separation from his/her biological parent(s). [62] Inasmuch as the Philippines is a signatory to the United Nations Convention on the Rights of the Child, the government and its officials are duty bound to comply with its mandates. Of particular relevance to instant case are the following provisions: States Parties shall respect the responsibilities, rights and duties of parents . . . to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention. [63] States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the childs best interests. [64] A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents . . . [65] States Parties shall respect the rights and duties of the parents . . . to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. [66] Underlying the policies and precepts in international conventions and the domestic statutes with respect to children is the overriding principle that all actuations should be in the best interests of the child. This is not, however, to be implemented in derogation of the primary right of the parent or parents to exercise parental authority over him. The rights of parents vis--vis that of their children are not antithetical to each other, as in fact, they must be respected and harmonized to the fullest extent possible. Keith, Charmaine and Joseph Anthony have all grown up. Keith and Charmaine are now of legal age while Joseph Anthony is approaching eighteen, the age of majority. For sure, they shall be endowed with the discretion to lead lives independent of their parents. This is not to state that this case has been rendered moot and academic, for their welfare and best interests regarding their adoption, must be determined as of the time that the petition for adoption was filed. [67] Said petition must be denied as it was filed without the required consent of their father who, by law and under the facts of the case at bar, has not abandoned them.

WHEREFORE, the instant petition for review on certiorari is hereby GRANTED. The questioned Decision and Resolution of the Court of Appeals, as well as the decision of the Regional Trial Court of Cebu, are SET ASIDE thereby denying the petition for adoption of Keith, Charmaine and Joseph Anthony, all surnamed Cang, by the spouse respondents Ronald and Maria Clara Clavano. This Decision is immediately executory.