DEMYSTIFYING PSYCHOLOGICAL INCAPACITY

The Molina Guidelines

In relation to the article “Demystifying Psychological Incapacity”, it is imperative to publish the guidelines set by the Supreme Court, in the case of Republic of the Philippines vs. Court of Appeals and Oliviano Molina, February 13, 1997, to nullify a marriage on the ground of psychological incapacity.

From their submissions and the Court's own deliberations, the following guidelines in the interpretation and application of Art. 36 of the Family Code are hereby handed down for the guidance of the bench and the bar:

(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family. Thus, our Constitution devotes an entire Article on the Family,  recognizing it "as the foundation of the nation." It decrees marriage as legally "inviolable," thereby protecting it from dissolution at the whim of the parties. Both the family and marriage are to be "protected" by the state.

The Family Code  echoes this constitutional edict on marriage and the family and emphasizes the permanence, inviolability and solidarity.

(2) The root cause of the psychological incapacity must be (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological — not physical. although its manifestations and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was mentally or physically ill to such an extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application of the provision under the principle of ejusdem generis, nevertheless such root cause must be identified as a psychological illness and its incapacitating nature explained. Expert evidence may be given qualified psychiatrist and clinical psychologists.

(3) The incapacity must be proven to be existing at "the time of the celebration" of the marriage. The evidence must show that the illness was existing when the parties exchanged their "I do's." The manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior thereto.

(4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job. Hence, a pediatrician may be effective in diagnosing illnesses of children and prescribing medicine to cure them but may not be psychologically capacitated to procreate, bear and raise his/her own children as an essential obligation of marriage.

(5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, "mild characteriological peculiarities, mood changes, occasional emotional outbursts" cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, nor a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage.

(6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision.

(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts. It is clear that Article 36 was taken by the Family Code Revision Committee from Canon 1095 of the New Code of Canon Law, which became effective in 1983 and which provides:

The following are incapable of contracting marriage: Those who are unable to assume the essential obligations of marriage due to causes of psychological nature. 

Since the purpose of including such provision in our Family Code is to harmonize our civil laws with the religious faith of our people, it stands to reason that to achieve such harmonization, great persuasive weight should be given to decision of such appellate tribunal. Ideally — subject to our law on evidence — what is decreed as canonically invalid should also be decreed civilly void.

This is one instance where, in view of the evident source and purpose of the Family Code provision, contemporaneous religious interpretation is to be given persuasive effect. Here, the State and the Church — while remaining independent, separate and apart from each other — shall walk together in synodal cadence towards the same goal of protecting and cherishing marriage and the family as the inviolable base of the nation.

(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall he handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly staring therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The Solicitor General shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095.

     

DEMYSTIFYING PSYCHOLOGICAL INCAPACITY

            “Marriage, if one will face the truth, is an evil but a necessary evil.” – Menander (343-292 BC)

            The fundamental law of the land dictates that marriage, as an inviolable social institution, is the foundation of the family and protected by the state.[1] Pertinent with this constitutional provision, the Family Code of the Philippines[2] defines marriage as a special contract of permanent union between a man and a woman entered into in accordance with the law for the establishment of family and conjugal life.[3]

            Despite the character of marriage as a permanent union, the courts continue to be clogged with cases seeking to nullify the marital status of the spouses premised on psychological incapacity. In view of this, Article 36 of the Family Code, as amended by Executive Order 227, provides that “A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.”

            In Article 36, there is no marriage to speak of in the first place, as the same is void from the very beginning.[4] While it is true that psychological incapacity is one of the most abused grounds to nullify marriage, however, it eludes exact definition. Thus, the crux that continues to bedevil the courts is the divine standard of psychological incapacity to warrant a decisive conclusion whether the marriage be declared null and void.

            The term psychological incapacity to be a ground for nullity of marriage refers to a serious psychological illness affecting a party even before the celebration of marriage.[5] It is a malady so grave and so permanent as to deprive one of awareness of the duties and responsibilities of matrimonial bond one is about to assume.[6]

            Psychological incapacity should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage.[7] The intention of the law is to confine the application of Art. 36 to the most serious cases of personality disorders, clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage.[8]

            The law necessitates that the husband and wife must live together, observe mutual love, respect and fidelity, and render mutual help and support.[9] The inability of any of the spouses to comply with their marital obligations due to some psychological disorder is a conduct constitutive of psychological inability. It must be stressed, however, that mere difficulty, refusal or neglect in the performance of marital obligation or ill will on the part of the spouse is different from incapacity noted from debilitating psychological condition or illness.[10]

            It must also be noted that irreconcilable differences, conflicting personalities, emotional immaturity and irresponsibility, physical abuse, habitual alcoholism, sexual infidelity or perversion, and abandonment by themselves also do not warrant a finding of psychological incapacity.[11]

            Psychological Incapacity must be characterized by a) gravity, b) juridical antecedence, and c) incurability.[12] It must be grave and serious such that the party would be incapable of carrying out the ordinary duties required in a marriage; it must be rooted in the history of the party antedating the marriage, although the overt manifestations may emerge only after the marriage; it must be incurable or even if it were otherwise, the cure would be beyond the means of the party involved.[13]

            Section 2(d) of the Rule on Absolute Nullity of Void Marriages and Annulment of Voidable Marriages[14] , the gist of which provides, that a petition under Article 36 of the Family Code shall specifically allege the complete facts showing that either or both parties are psychologically incapacitated. In addition, the complete facts should allege the physical manifestation, if any, as are indicative of psychological incapacity at the time of the celebration of the marriage but expert opinion need not be alleged.

            It has been held that there is no requirement that either spouse should personally be examined by a physician or a psychologist as a condition sine qua non for the declaration of nullity of marriage.[15] What is important is the presence of evidence that can adequately establish the party’s psychological condition.[16] For indeed, if the totality of evidence presented is enough to sustain a finding of psychological incapacity, then actual medical examination of the person concerned need not be resorted to.[17]

            It must not be forgotten that one of the State’s declared policies and principles recognizes the protection of the sanctity of family life.[18] Public policy should aid acts intended to validate marriage and should retard acts intended to invalidate them.[19] It is within the interest of the State to preserve and cherish the family, as a social institution. Whatever is destructive to the family must be eschewed. The adoption of psychological incapacity as a ground for nullity of marriage must be viewed as manner to save the family relation from further destruction.

            The condition of the State resembles that of the order of the family. Where the family could no longer be called a home nor function as a loving unit, the state is thereby slowly withered.

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[1] Article XV Section 2, 1987 Philippine Constitution

[2] Executive Order no. 209

[3] Article 1, Family Code of the Philippines

[4] Azcueta vs. RP, May 26, 2009

[5] Ferraris vs. Ferraris, July 17, 2006

[6] Republic vs. Iyoy, September 21, 2005

[7] Antonio vs. Reyes, March 10, 2006

[8] Ting vs. Velez-Ting, March 31, 2009

[9] Article 68, Family Code of the Philippines

[10] Republic vs. Iyoy, supra

[11] Carating-Siayngco vs Siangco, 441 SCRA 422; Dedel vs. CA, 421 SCRA 461; Guillen-pesca vs. Pesca, 356 SCRA 588; Marcos vs. Marcos October 19, 2000

[12] Suazo vs Suazo, March 10, 2010

[13] Republic vs, Iyoy, supra

[14] A.M. No. 01-11-10-SC

[15] Marcos vs. Marcos, supra

[16] Najera vs. Najera, July 3, 2009

[17] supra

[18] Article II Section 12, 1987 Philippine Constitution

[19] Chi Ming Tsoi vs. CA, 266 SCRA 324

THE THREE INHERENT POWERS OF THE STATE

POLICE POWER

It is the sovereign power to promote and protect the general welfare. It is the most pervasive and the least limitable of the three powers of the state, the most essential, consistent and illimitable which enables the State to prohibit all hurtful things to the comfort, safety and welfare of the society.

It also refers to the power vested in the legislature by the Constitution to make, ordain, establish all manner of wholesome and reasonable laws, statutes, or ordinances,  either with penalties, or without, nor repugnant to the constitution, as they shall be judge to be for the good and welfare of the state and the subjects.

Police power is an inherent attribute of sovereignty. It can exist even without reservation in the constitution. It is based on necessity as without it, there can be no effective government. It is also referred to as the law of overwhelming necessity.

What is the basis of the exercise of the police power of the state?

·        The exercise of police power is founded on the basic principles of salus populi est suprema lex (the welfare of the people is the supreme law) and sic utere tu et alienum non laedas (so use your property so as not to impair another)

Who has the ultimate power to determine the necessity and the means of exercising the police power of the state?

·        Congress has the ultimate power, because it is the judge of necessity, adequacy, reasonableness and wisdom of any law. The congress is the constitutional repository of police power and exercise the prerogative of determining the policy of the state.

Limitations in the exercise of Police power

1.     Due process clause

2.     Equal protection clause

The basic purposes of Police Power are:

1.     To serve the general welfare, comfort and convenience of the people;

2.     To promote and preserve public health;

3.     To promote and protect public safety;

4.     To maintain and safeguard public order;

5.     To protect public morals; and

6.     To promote the economic security of the people.

POWER OF EMINENT DOMAIN

It is an inherent power of the state that enables it to forcibly acquire private property, which is intended for public use, upon the payment of just compensation. It is based on political necessity; it is inseparable from the state unless it is denied to it by its fundamental law.

Condemnation of private property is justified only if it is for the public good character.  It is the courts of law that have the power to determine whether there is necessity therefore. Also called the power of expropriation, eminent domain is described as the “highest and most exact idea of property remaining in the government” that may be acquired for some public purpose through a method “in the nature of a compulsory sale to the state”.

Who may exercise the Power of Eminent domain?

1.     The Congress

2.     The President

3.     The local legislative bodies

4.     Certain public corporations (e.g. Land Authority and the MWSS)

5.     Quasi-public corporations (e.g. PLDT and Meralco)

What are the requisites in exercising the power of eminent domain?

1.     The property taken must be private property;

2.     The taking must be within constitutional sense;

3.     The taking must be for public use

4.     Just compensation must be paid;

5.     There must be due process of law.

The following essential requisites must concur before an LGU can exercise the power of eminent domain:

1.     An ordinance is enacted by the local legislative council authorizing the local chief executive to exercise the power of eminent domain;

2.     It is exercised for the public use, purpose and welfare;

3.     There must be payment of just compensation; and

4.     A valid and definite offer has been previously made to the owner of the property south to be expropriated.

Taking may not only include the import of a physical possession of the owner, as when he is ousted from his land or relieved of his watch or car but also covers trespass without actual eviction of the owner, material impairment of the value of the property or prevention of the ordinary uses for which the property was intended.

The following cases constitute taking:

·        Where a farmland is inundated because of the construction of a damn nearby, the owner who is prevented from planting on the land.

·        Where government planes fly over private property at such a low altitude as to practically touch the tops of the trees.

·        A municipal ordinance prohibiting construction of any building that would destroy the view of the plaza from the highway.

Query: A building which is on the verge of collapse was ordered to be demolished. The owner objected thereto since the demolition constitutes taking without payment of just compensation. Is the contention of the owner correct?

Answer: No, the demolition of the building is done in the exercise of police power. It is intended to further the interest of the public as the structure is susceptible to harm the public, in case it collapses. Hence, the owner is not entitled to compensation.

Query: An ordinance was passed requiring private cemeteries to reserve 6% of their total areas for the burial paupers. The owners of the private cemeteries demand payment of just compensation because the ordinance sought to deprive them of their property. However, the city invoked that such ordinance was done in the exercise of their police power under the general welfare clause. Is the argument of the city tenable?

Answer: No, although there was taking of private property for public use, nevertheless, it was done without payment of just compensation. Hence, it violates the principles governing eminent domain. The taking of property under the police power is sought to be destroyed.

Just compensation is the full and fair equivalent of the property taken from the private owner by the expropriator. The measure of this compensation is not the taker’s gain but the owner’s loss.

POWER OF TAXATION

       It is the inherent power of the state to raise revenues to defray the expenses of the government or for any public purpose. This can be done through the imposition of burdens or imposition on persons, properties, services, occupations or transactions.

        The importance of taxation derives from the unavoidable obligation of the government to protect the people and extend them benefits in the form of public projects and services. Taxation is based on necessity and the reciprocal duties of protection and support between the state and those that are subject to its authority.

Who may exercise the power of taxation?

·        It is the Congress who exercises the plenary power to tax. However, it may be delegated by congress to local government units under such terms and conditions as may  prescribed by law.

The following are the requisites or limitations on the power to tax:

1.     Public purpose;

2.     Territoriality;

3.     Uniformity;

4.     Due process and equal protection clause;

5.     Constitutionally exempt properties cannot be taxed;

6.     In the assessment and collection of certain kinds of taxes, notice and opportunity for hearing must be provided.

THE FREEDOM OF SPEECH AND THE CRIME OF INCITING TO SEDITION

        “The fugitive flame of disloyalty, lighted by an irresponsible individual, must be dealt with firmly before it endangers the general public peace.” –Justice Malcolm

Like any other rights, the freedom of speech must be preserved and protected in order to guarantee the free flow of ideas, no matter how frivolous, illogical or unreasonable it may be. Thus, a democratic state, like ours, must not shutdown the right to free speech for it is through unfettered exchange of thoughts that moves the civilization of a society.

The Philippines being a democratic state[1] has embodied and enlarged the scope of the people’s inalienable rights. Hence, the Philippine Constitution declares that “no law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances”.[2]  The safeguarding of free speech, of expression and of the press to the end that men may speak and express as they think on matters vital to them and that falsehood may be exposed through the process of education and discussion is essential in a free government.[3]

It is only through debate and free exchange of ideas that government remain responsive to the will of the people and peaceful change is effected.[4] The right to speak and to promote diversity of ideas and program is therefore one of the chief distinctions that sets us apart from totalitarian regime. The vitality of civil and political society depends on free discussion.[5]

The right of freedom of speech and to peacefully assemble and petition the government for redress of grievances are fundamental rights of the people.[6] As a consequence of such rights, men are given at liberty to speak, to assemble, or to express, but it is not without limitation. The right to freedom of speech, though guaranteed by the constitution, is not absolute, for it may be regulated in order that it may not be injurious to the rights of the community or society and this power may be exercised by the police power of the state.[7]

Under Article 142 of the Revised Penal Code, it describes the crime of inciting to sedition. Inciting to sedition may be done 1) by inciting others to the accomplishment of any acts which constitute sedition by means of speeches, proclamations, writings, or emblems, or 2) by uttering words or speeches which tend to disturb public peace, or 3) by writing, publishing, or circulating scurrilous libels against the Government or any of the duly constituted authorities thereof, which tend to disturb peace.[8]

It can be observed, however, that the means of committing inciting to sedition is through expressions by means of speeches, writings, publications or use of emblems. According to Justice Cruz[9], freedom of expression is usually exercised through language, verbal and written. Symbolisms may also be used like the clenched fist, the bended knee, the salute of the flag and the like.

Nevertheless, how can the State justify its suppression of the right to speech by penalizing a person guilty of inciting to sedition, considering that the manner it is committed can well be placed in the sanctuary of the freedom of expression? It is then imperative to examine the jurisprudence under this matter.

The crime sedition, in its general sense, is the raising of commotions or disturbances in the state.[10] It is a revolt against legitimate authority.[11] Thus, in inciting to sedition it tends, among other things, to stir up the people against the lawful authorities or to disturb the peace of community, the safety and order of the Government.[12] The law is not aimed merely at disturbance, as its purpose is also to punish utterances which may endanger public order.[13] Thus, there is a seditious tendency in the words used, which could easily produce disaffection among the people and a state of feeling incompatible with a disposition to remain loyal to the government and obedient to the laws.[14]

It is a settled principle growing out of the nature of civil societies that the exercise of those rights may be regulated that it shall not be injurious to the equal enjoyment of others having equal rights, and not injurious to the rights of the community or society.[15]It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom.[16]

That utterances inciting to the overthrow of organized government by unlawful means, present a sufficient danger of substantive evil to bring their punishment within the range of legislative discretion, is clear. Such utterances, by their very nature, involve danger to the public peace and to the security of the State. They threaten breaches of the peace and ultimate revolution. And the immediate danger is none the less real and substantial, because the effect of a given utterance cannot be accurately foreseen.[17]

It cannot be said that the state is acting arbitrarily or unreasonably when in the exercise of its judgment as to the measures necessary to protect the public peace and safety, it seeks to extinguish the spark without waiting until it has kindled the flame or blazed into conflagration.[18] It cannot reasonably require to defer the adoption of measures for its own peace and safety until the revolutionary utterances lead to actual disturbances of the public peace or imminent and immediate danger of its own destruction; but it may, in the exercise of its judgment, suppress the threatened danger in its incipiency.[19]

In fine a constitutional right, like the right to freedom of speech, is zealously protected by the state, but once the exercise of such right transgresses the bounds imposed by the law, the court is with authority to tilt the scales of justice for the suppression of such right, in order to preserve public peace and order.

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[1] Section 1 Article II, 1987 Philippine Constitution

[2] Section 4 Article III, supra

[3] Thornbill vs. Alabama, 310 U.S. 88

[4] De Jonge vs. Oregon, 299 U.S. 353

[5] Terminiello vs Chicago, 337 U.S. 1

[6]Primicias vs. Fugoso, January 27, 1948

[7] Ignacio vs. Ela, May 31, 1956

[8] Art. 142, Revised Penal Code p. 102 16^th Ed. 2007 by Justice Luis B. Reyes

[9] Philippine Constitutional Law, p. 192

[10] People vs. Cabrera, 43 Phil. 64

[11] People vs. Perez, December 22, 1923

[12] Art. 142, Revised Penal Code p. 104 supra

[13] People vs. Nabong, 57 Phil. 455

[14] People vs. Perez, supra

[15] Primicias vs. Fugoso,  supra

[16] Gitlow vs. New York, 268 U.S. 652

[17] supra

[18] Evangelista vs. Earshaw, September 28, 1932

[19]supra