Dear PAO,

At this time when almost all persons charged with or arrested for drug-
related offenses would seem to end up guilty, I am worried about my
nephews situation. He was arrested, allegedly in a buy-bust in 2014
and until now his case remains unresolved. His wife and children
already miss him. We have a number of witnesses to prove that the
policemen who went to his house were very sneaky as they first
searched the house without presenting any warrant. We believe that
my nephew is innocent and that the sachets of shabu were only
planted in his belongings. His lawyer tells us that he found a loophole
in the prosecutions case because the chain of custody was not
established. What is that chain of custody? How is it relevant in the
acquittal of my nephew?

Sincerely yours,
Avelina

Dear Avelina,
There are two aspects in a case that must be considered: the substantive and the procedural,
which are both crucial in looking through whether the guilt of an accused is proven beyond
reasonable doubt. In the case of People of the Philippines vs. Myrna A. Gayoso (G.R. No.
206590, March 27, 2017), penned by Associate Justice Mariano del Castillo, an accused seller
and possessor of illegal drugs was acquitted:

The offense of sale of shabu has the following elements: (1) the identities of the buyer and the
seller, the object and consideration of the sale; and (2) the delivery of the thing sold and the
payment therefor. On the other hand, the offense of illegal possession of shabu has the following
elements: (1) the accused is in possession of an item or an object which is identified to be a
prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and
consciously possessed said drug. In the prosecution for illegal sale and possession of shabu,
there must be proof that these offenses were actually committed, coupled with the presentation in
court of evidence of corpus delicti.

xxx xxx xxx

The chain of custody requirement performs this function in that it ensures that unnecessary
doubts concerning the identity of the evidence are removed.

Chain of custody is defined as duly recorded authorized movements and custody of seized
drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of
each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to
safekeeping, to presentation in court for destruction.

xxx xxx xxx

It is indeed desirable that the chain of custody should be perfect and unbroken. In reality
however, this rarely occurs. The legal standard that must therefore be observed is the
preservation of the integrity and the evidentiary value of the seized items as they will be used to
determine the guilt or innocence of the accused. [Emphasis supplied, citations omitted.]

In the above-captioned case, the accused was acquitted because other than the fact that the chain
of custody was not properly established, the identity of the drug was also doubtful, viz.:

[T]he apprehending team never conducted a physical inventory of the seized items at the place
where the search warrant was served in the presence of a representative of the Department of
Justice, nor did it photograph the same in the presence of appellant after their initial custody and
control of said drug, and after immediately seizing and confiscating the same. Neither was an
explanation offered for such failure. While this directive of rigid compliance has been tempered
in certain cases, such liberality, as stated in the Implementing Rules and Regulations can be
applied only when the evidentiary value and integrity of the illegal drug are properly preserved.
Such an exception does not obtain in this case. Serious uncertainty is generated on the identity
of the [shabu]in view of the broken linkages in the chain of custody. [Thus,] the presumption of
regularity in the performance of official duty accorded to the [apprehending officers]by the
courts below cannot arise. [Emphasis supplied, citations omitted.]

Verily, it is possible that your nephew may be acquitted in the case filed against him, if indeed
his lawyer will be able to prove in court the probable lapses in the chain of custody for the
alleged seized drug, and that the lawyer will find the case of your nephew in accord with the
facts of the above-cited decision.

When the charge of rape may

not prosper
Dear PAO,
My sisters friend, a boy, had been around us in the past years. It is unclear whether they had a
relationship. Both of them are already of age, although the boy is just 18 years old and my sister
is 24. One day, my sisters friend met her at a restaurant somewhere in Pasay. The guy later
brought her to a nearby motel, supposedly to just talk about something. My sister said she
refused to go, but because of trust, she eventually agreed. The guy allegedly tried to kiss her,
which she escaped by going to the comfort room where she managed to call our cousin to relay
the information that her friend was attempting to rape her. She was unable to disclose her
location at that point. As feared, her friend was able to succeed in having carnal knowledge of
her. According to her, she remained mum the whole time for fear of being killed, as the two of
them were isolated. Given these circumstances, will my sister be able to successfully prosecute
her friend for the crime of rape?
Sincerely yours,
Ana Therese

Dear Ana Therese,

Two fairly recent cases decided by the Supreme Court are important in determining whether the
circumstances you have relayed to us regarding the alleged rape of your sister are enough to be
successfully prosecuted.
People of the Philippines vs Juan Richard M. Tionloc (G.R. No. 212193, Feb. 15, 2017), penned
by Associate Justice Mariano del Castillo, clearly emphasizes:

When the evidence fails to establish all the elements of the crime, the verdict must be one of
acquittal of the accused. The basic precept applies in this criminal litigation for rape.
xxx xxx xxx

[T]he prosecution had to overcome the presumption of innocence of appellant by presenting

evidence that would establish the elements of rape by sexual intercourse under paragraph 1,
Article 266-A of the RPC (Revised Penal Code), to wit: (1) the offender is a man; (2) the
offender had carnal knowledge of a woman; (3) such act was accomplished by using force, threat
or intimidation. In rape cases alleged to have been committed by force, threat or intimidation, it
is imperative for the prosecution to establish that the element of voluntariness on the part of the
victim be absolutely lacking. The prosecution must prove that force or intimidation was actually
employed by accused upon his victim to achieve his end. Failure to do so is fatal to its cause.
Force, as an element of rape, must be sufficient to consummate the purposes which the accused
had in mind. On the other hand, intimidation produce[s]fear that if the victim does not yield to
the bestial demands of the accused, something would happen to her at that moment or even
thereafter, as when she is threatened with death if she reports the incident. Intimidation includes
the moral kind as the fear caused by threatening the girl with a knife or pistol [emphasis
supplied, citations omitted].

In the same case, it was clear that:

No allegation whatsoever was made by AAA that Meneses or appellant employed force, threat
or intimidation against her. No claim was ever made that appellant physically overpowered, or
used or threatened to use a weapon against, or uttered threatening words to AAA. While AAA
feared for her life since a knife lying on the table nearby could be utilized to kill her if she
resisted, her fear was a mere product of her own imagination.

There was no evidence that the knife was placed nearby precisely to threaten or intimidate her.
We cannot even ascertain whether said knife can be used as a weapon or an effective tool to
intimidate a person because it was neither presented nor described in court [emphasis supplied].

Verily, in the case of People vs. Tionloc, the fear that was alleged by the complainant was not
properly substantiated. Applying this to the circumstances you have disclosed, your sisters
actuation of being mum the whole time of the ordeal, allegedly for fear of being killed because
she and her friend were in an isolated situation, may cast doubt on her allegation of rape.

Additionally, in People of the Philippines vs. Carlito M. Claro (G.R. No. 199894, April 5, 2017),
penned by Associate Justice Lucas P. Bersamin, it is further stressed that:

[I]t is not fair and just to quickly reject the defense of consensual sexual intercourse interposed
by the accused. To be noted first and foremost is that he and AAA were adults capable of
consenting to the sexual intercourse. The established circumstancestheir having agreed to go
on a lovers date; their travelling together a long way from their meeting place on board the
jeepney; their alighting on Rizal Avenue to take a meal together; their walking together to the
motel, and checking in together at the motel without the complainant manifesting resistance; and
their entering the designated room without protest from herindicated beyond all doubt that
they had consented to culminate their lovers date in bed inside the motel. Although she claimed
that he had held her by the hand and pulled her upstairs, there is no evidence showing that she
resisted in that whole time, or exhibited a reluctance to enter the motel with him. Instead, she
appeared to have walked with him towards the motel, and to have entered it without hesitation.
What she did not do was eloquent proof of her consent.
xxx xxx xxx

In every criminal case, the accused is entitled to acquittal unless his guilt is shown beyond
reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof as,
excluding possibility of error, produces absolute certainty. Only moral certainty is required, or
that degree of proof which produces conviction in an unprejudiced mind.
xxx xxx xxx

Without the proof of his guilt being beyond reasonable doubt, therefore, the presumption of
innocence in favor of the accused herein was not overcome [emphasis supplied, citations
omitted].

Evidently, while the friend of your sister has not yet raised the defense that there was consent on
her part to disprove her allegations, the principles cited above should be the guide on whether or
not a complaint or case filed against your sisters friend should prosper. It is critical that the
accuser is able to prove, beyond any hint of doubt, that indeed the accused committed the acts of
rape complained of.
Proper middle name and
surname of illegitimate child
Dear PAO,
I am a single parent and I have questions concerning the legal name of my daughter. The first
relates to her middle name. In the birth certificate of my child, I erroneously wrote my middle
name as her middle name. I thought that as an illegitimate child, my daughter should adopt my
middle name and surname. How can I correct my mistake?

The second question relates to her surname. The father of my daughter never acknowledged her
so she is using my surname. Now, I am in a relationship with another man and we plan to settle
down soon. Is it possible to let my daughter use his surname instead, and then adopt my surname
as her middle name?
Mimi

Dear Mimi,
It is a mistake to let an illegitimate child use the middle name of her mother as his own middle
name. While it is true that our laws are silent with respect to middle names of illegitimate
children, our Filipino custom or tradition is to add the surname of the childs mother as the
childs middle name (In the Matter of the Adoption of Stephanie Nathy Astorga Garcia, 454
SCRA 541). Further, no less than our Supreme Court ruled in one case that an illegitimate child
who is not recognized by the father bears only a given name and his mother surname, and does
not have a middle name (Philippines vs. Capote, 514 SCRA 76). Applying the foregoing to your
case and considering that you mentioned that your daughter was not recognized by her father,
she should not have a middle name. Thus, her birth certificate should be corrected by deleting the
entry on the middle name line.

To rectify the mistake, you may file a verified petition in court to correct the birth certificate of
your child in accordance with Rule 108 of the Rules of Court. The said Rule covers cases which
involves cancellation or correction of entries in the civil register relating to birth, marriages and
deaths, among others which may not be administratively corrected under Republic Act No. 9048
as amended by Republic Act No. 10172.

Going to your second question about the possibility of letting your daughter use the surname of
your present boyfriend and then use your surname as her middle name, the same may only be
possible if you and your boyfriend get married and then adopt your child.

Through adoption, a relationship of parent and child is created between persons who are not
generally related by nature (Persons and Family Relations Law, 4th ed., Sta. Maria, Melencio, p.
624). It creates a parental tie between the adopter and the adoptee. But this does not mean that a
biological parent cannot adopt his own child. Our law on adoption expressly allows the adoption
of an illegitimate child for the purpose of improving or raising his status to that of legitimacy
(Sec. 8 (c), Republic Act (R.A.) No. 8552).

Upon the adoption of your daughter, she shall be considered your and your husbands legitimate
child for all intents and purposes and as such entitled to all the rights and obligations provided by
law to a legitimate child (Sec. 17, R.A. No. 8552). As we know, a legitimate child has the right to
bear the surnames of the father and the mother (Article 174, Family Code). Hence, your child
will have the right to use the surname of your husband as her surname, and your surname as her
middle name.

To realize your goal then, you and your boyfriend must marry first. After your marriage, you and
your husband may jointly file a petition for adoption of your illegitimate daughter in order to
create a parental tie between her and your husband as well as raise the status of your child to
legitimate.

In cases of dual registration, first

birth certificate takes precedence
Dear PAO,
My son has two birth certificates. The first one was registered
immediately after his birth in 1997 by his father, who surnamed our
son after him and indicated a date of marriage even if we were not
actually married. I could not oppose then as I was living with him and
his family, and I was only 18 years old at the time. After two and a half
years, I left him and took my son because he was very abusive, and he
refuses to give support. I had my son use my surname in his school
records, and I never secured a copy of his birth certificate. But there
came a time when we were required to present my sons birth
certificate as the school became strict. Someone told me to apply for
late registration of birth, which I did. From then on, we were using his
certification of late registration of birth.

Recently, we tried to secure my sons NSO birth certificate as I intend

to take him with me in Japan where I have been residing, and working
for the past couple of years. We were informed that there appeared
two records of him. I now want to have his first birth certificate
cancelled as I want him to continue using his second birth certificate.
How do I proceed with the filing of the necessary petition?
Shiela

Dear Shiela,
As a rule, the registration of birth of a person must be done within 30 days from the time of birth,
and it must be done before the Office of the Civil Registrar of the city or municipality where
such birth occurred. If no registration was made during the said period, the registration thereof
may still be made but this shall be considered as delayed registration.

In the situation that you have presented, there appears to be no valid basis for the late registration
of birth of your son, which you did after you have separated with his father, for the reason that he
was already registered by his father immediately after his birth. It is, thus, not advisable for you
or your son to continue using the said second birth certificate, and further, the same must be
cancelled by filing a petition for cancellation before the Regional Trial Court which has
jurisdiction over the place where the corresponding civil registry, where such registration was
made, is located (Section 1, Rule 108, Revised Rules of Court). The concerned Local Civil
Registrar and all persons who have interest which may be affected thereby must be made parties
to the proceedings. Once the petition is filed, the court will issue an order fixing the time and
place of the hearing and shall require that notices be given to such persons named in the petition.
The court will likewise mandate that the said order be published in a newspaper of general
circulation, once a week for three consecutive weeks (Sections 3 and 4, Rule 108, Id.).

Insofar as the first birth certificate of your son, you may file a petition for correction of entry
before the Regional Trial Court which has jurisdiction over the local civil registry where the
registration thereof was made (Section 1, Rule 108, Id.). But this is only insofar as the entry of
the date of marriage between you and his father is concerned given that, as you have mentioned
in your letter, the two of you never actually entered into a contract of marriage.

With regard to the issue of your sons surname in the said birth certificate, we believe that only
he can decide whether to retain the surname of his father or change it to that of your surname. It
bears stressing that the law applicable at the time of his birth is Article 176 of the Family Code of
the Philippines which states that: Illegitimate children shall use the surname and shall be under
the parental authority of their mother, and shall be entitled to support in conformity with this
Code x x x (Emphasis supplied). This provision has been amended by Republic Act (R.A.) No.
9255 which provides under Section 1 thereof: Article 176. Illegitimate children shall use the
surname and shall be under the parental authority of their mother, and shall be entitled to support
in conformity with this Code. However, illegitimate children may use the surname of their father
if their filiation has been expressly recognized by the father through the record of birth appearing
in the civil register, or when an admission in a public document or private handwritten
instrument is made by the father. x x x (Emphasis supplied)

Since your sons father was the one who registered the formers birth, this presupposes the fact
the he recognized his filiation with your son. Thus, the latter possesses the right to continue using
such surname. If he wishes to change his surname to that of your surname, he must file a petition
for change of name before the court and he must establish that there is proper and reasonable
cause/s for which the change is sought. Otherwise, the court will not grant the same.

We also wish to emphasize that the Supreme Court has ruled in the case of Grande vs. Antonio
(G.R. No. 206248, February 18, 2014) that: x x x Article 176 gives illegitimate children the
right to decide if they want to use the surname of their father or not. It is not the father (herein
respondent) or the mother (herein petitioner) who is granted by law the right to dictate the
surname of their illegitimate children. x x x On its face, Article 176, as amended, is free from
ambiguity. And where there is no ambiguity, one must abide by its words. The use of the word
may in the provision readily shows that an acknowledged illegitimate child is under no
compulsion to use the surname of his illegitimate father. The word may is permissive and
operates to confer discretion upon the illegitimate children. x x x (Emphasis supplied)

Nullity of extrajudicial partition

Dear PAO,
My parents passed away while I was working abroad. It took me two
more years to return to the Philippines and, to my dismay, I found out
that the title to the parcel of land left by my parents was transferred
under the names of my two brothers who executed a deed of
extrajudicial settlement to claim the property as theirs and they
proceeded to register it under their name. What should I do to recover
my rightful share of our inheritance?

Sincerely yours,
Zora

Dear Zora,
Please be informed that the execution of an affidavit of self-adjudication to settle the estate of a
deceased person is only permitted in case the deceased died intestate and left only one heir.
Section 1, Rule 74 of the Rules of Court states in part:

Section 1. Extrajudicial settlement by agreement between heirs. If the decedent left no will
and no debts and the heirs are all of age, or the minors are represented by their judicial or legal
representatives duly authorized for the purpose, the parties may without securing letters of
administration, divide the estate among themselves as they see fit by means of a public
instrument filed in the office of the register of deeds, and should they disagree, they may do so in
an ordinary action of partition. If there is only one heir, he may adjudicate to himself the entire
estate by means of an affidavit filed in the office of the register of deeds. (Emphasis supplied)

In your situation, it is clear that your brothers have no right to claim the entire parcel of land left
by your parents and therefore, the deed of extrajudicial settlement that they executed without
your agreement may be considered fraudulent. Corollary, a Transfer Certificate of Title (TCT)
issued based on a fraudulent document may be annuled.

In order to recover your share of the subject parcel of land, you have to file before a court a
petition for the annulment of the deed of extrajudicial settlement and to cancel the TCT issued to
your brothers. In Gerona, et al. v. de Guzman, et al. (G.R. No. L-19060, May 20, 1964), penned
by former Associate Justice Roberto Concepcion, the Supreme Court explained:

When respondents executed the aforementioned deed of extra- judicial settlement stating
therein that they are the sole heirs of the late Marcelo de Guzman, and secured new transfer
certificates of title in their own name, they thereby excluded the petitioners from the estate of the
deceased, and, consequently, set up a title adverse to them. And this is why petitioners have
brought this action for the annulment of said deed upon the ground that the same is tainted with
fraud.

Please be informed, however, that you have to file the petition within four (4) years from the
time of the subject deed of extr-judicial settlement was registered with the Register of Deeds,
otherwise, your case would be barred by prescription. In the aforementioned case of Gerona, et
al. v. De Guzman, et al., the Supreme Court also held:

Inasmuch as petitioners seek to annul the aforementioned deed of extrajudicial settlement

upon the ground of fraud in the execution thereof, the action therefor may be filed within four (4)
years from the discovery of the fraud (Mauricio v. Villanueva, L-11072, September 24, 1959).
Such discovery is deemed to have taken place, in the case at bar, on June 25, 1948, when said
instrument was filed with the Register of Deeds and new certificates of title were issued in the
name of respondents exclusively, for the registration of the deed of extrajudicial settlement
constitutes constructive notice to the whole world. (Emphasis supplied)

Correction of erroneous entry on

religion in a birth certificate
Dear PAO,
When I tried to obtain a passport, I was required to submit a certificate
from the Office of Muslim Affairs (OMA) because it appears in my birth
certificate that both of my parents are Muslims. When I spoke to my
parents about it, they told me that there must have been a mistake
because they have always been practicing Roman Catholics. How do I
change this erroneous entry in my birth certificate?

Sincerely yours,
Yuli

Dear Yuli,
Please be informed that there are two (2) ways of correcting erroneous entries in a document,
such as a Birth Certificate, registered with the Office of the Civil Registrar. The first is through
an administrative process of correcting entries in the Local Civil Registrar where the pertinent
document was registered, in accordance with Republic Act (R.A) No. 9048 or the Clerical Error
Law, as amended by R.A. No. 10172, if the matter involved is the correction of clerical or
typographical errors in the first name, nickname, place of birth, day and month of birth or sex of
a person. All other forms of erroneous entry may only be corrected through a petition in court.

Clearly stated in the case of Onde v. The Office of the Local Civil Registration of Las Pias City
(G.R. No. 197174, 10 September 2014), penned by the Honorable former Associate Justice
Martin S. Villarama, Jr., that:

[C]orrections of entries in the civil register including those on citizenship, legitimacy of

paternity or filiation, or legitimacy of marriage, involve substantial alterations. Substantial errors
in a civil registry may be corrected and the true facts established provided the parties aggrieved
by the error avail themselves of the appropriate adversary proceedings.

Just like in your situation, the erroneous entry with respect to the religion of your parents cannot
be considered as mere clerical or typographical in nature. In order to correct this entry and record
your parents religion as Roman Catholic, you need to file a petition for Correction of Entry in
accordance with Rule 108 of the Rules of Court, to be filed in the Regional Trial Court (RTC)
with jurisdiction over the place where your birth certificate was registered.

In the said petition, the civil registrar and all persons who have or claim any interest which
would be affected by the change shall be made parties to the case. (Section 3, Rule 108, Id.)
Upon the filing of the petition, the court shall set the case for a hearing and that reasonable notice
thereof be given to the persons named in the petition. The court shall also cause the order to be
published once a week for three (3) consecutive weeks in a newspaper of general circulation in
your province having jurisdiction on the respondent local civil registry. (Section 4, Id.) If you
successfully prove your petition, the court, after hearing, shall issue an order granting the
correction you prayed for and a certified copy of the judgment shall be served upon the civil
registrar concerned who shall annotate the same in his record.(Section 7, Id.) Thereafter, your
birth certificate shall reflect the correct religion of your parents.