IBP Journal (2022, Vol. 47, Issue No. 2)

i VOLUME 47, ISSUE NO.
2 – 2ND QUARTER 2022

IBP JOURNAL
INTEGRATED BAR OF THE PHILIPPINES
VOLUME 47, ISSUE 2

(2nd Quarter 2022)
BOARD OF EDITORS
ALFREDO B. MOLO III

Editor-in-Chief
MARCELINO C. RONGO
Managing Editor
ANNA MARIA D. ABAD

GENEVIEVE MARIE DOLORES BRANDARES-PAULINO
MA. SOLEDAD MARGARITA C. DERIQUITO-MAWIS
IAN RAY P. MALILONG
RODEL A. TATON
NICHOLAS FELIX L. TY
Editors
JEANNE MARL B. DOMINISAC

GABRIEL P. LEDA
LANCE RYAN J. VILLAROSA
Associate Editors
JEANNE MARL B. DOMINISAC

Program Officer
ii
BOARD OF GOVERNORS
BURT M. ESTRADA
Chairman of the Board
ANTONIO C. PIDO
Governor for Eastern Visayas
LUCKY M. DAMASEN
Governor for Northern Luzon
PETER PAUL S. MAGLALANG

Governor for Central Luzon
MARCELINO MICHAEL I. ATANANTE IV

Governor for Greater Manila
JERWIN J. LOPEZ
Governor for Southern Luzon
JOSE A. ATIBAGOS II
Governor for Bicolandia
TOMAS E. JUNCO, JR.

Governor for Western Visayas
DANIEL C. CAMPOAMOR
Governor for Eastern Mindanao
HILARY ROMEO A. ESCOBAR II

Governor for Western Mindanao
iii
NATIONAL OFFICERS
BURT M. ESTRADA MARIENNE M. IBADLIT

National President Director for Gender and Development
ANTONIO C. PIDO DANNY L. GAPASIN, JR.
Executive Vice President Director on the Unauthorized Practice of Law
RANDALL C. TABAYOYONG JOSE VICENTE B. SALAZAR
National Executive Director for Operations Director for Elections and Electoral Reform
& General Counsel
NOEL G. BACAL
GINA H. MIRANO-JESENA Director on Member Loan, Health Care
National Executive Director for Planning & Retirement
ETHEL G. MARAON-SERATE CAESAR S. EUROPA
National Treasurer Director on Technology & Modernization
DOROTEO LORENZO B. AGUILA EMERICO O. DE GUZMAN
National Secretary Presidential Adviser on Management
AVELINO V. SALES, JR. JOSE PERPETUO M. LOTILLA
National Director for Bar Discipline Presidential Adviser on the Judiciary
ERIC C. ALAJAR MARTIN JOHN S. YASAY
National Director for Legal Aid Presidential Liaison for the Judiciary
JEAN FRANCOIS D. RIVERA III LUIE TITO F. GUIA
Assistant National Treasurer Presidential Adviser on Elections
EDWARD M. MENOR & Electoral Reforms
Assistant National Treasurer DALE BRYAN D. MORDENO
EMANUELLE A. EBARLE Presidential Adviser in Executive Branch
Assistant National Secretary JOHN PAOLO ROBERTO LINO A. VILLASOR
FRANCISCO BENITO A. SAAVEDRA Presidential Adviser on Legal Education
Assistant National Secretary JOSERO B. GAITE
JEFFREY B. CONSTANTINO Presidential Assistant for External Affairs
Deputy General Counsel RODOLF JOHN G. DELA CRUZ
ALFREDO B. MOLO III Presidential Adviser on Military & Police Affairs
Editor-in-Chief, IBP Journal ANGELO RAYMUNDO Q. VALENCIA
MARCELINO C. RONGO Presidential Adviser on Food Security,
Managing Editor, IBP Journal Environment, Education & Empowerment of
Indigenous People's Right
IAN RAY P. MALILONG
Director on Arbitration and ADR ARBIE S. LLESIS
Presidential Adviser on Indigenous Peoples Affairs
ANDRE C. PALACIOS
Chairman, Committee for International CERILIO NEIL E. PACANA
Law and International Affairs (ILIAC) Presidential Adviser on Local Government Affairs
DENNIS M. BACALA FERNANDO S. PEÑARROYO

Committee Chair on Legislation Presidential Adviser for Energy
JOB FLORANTE L. CASTILLO MARLON I. YAP

Director for Peer Assistance Presidential Adviser on Drug Policy Reform
MANUEL JOSEPH B. IBANEZ III

Director for Chapter Affairs
iv
CONTENTS
Avenues for Case Settlement Beyond JDR............. 1
Judge Soliman M. Santos, Jr.
Development of the Conflict of Interest Rule in

Philippine Legal Ethics................................................. 9
Atty. Michelle B. San Buenaventura-Dy
Protecting Tomorrow’s Hope Today:

The Philippine Legal Perspective from the
Tender-Age Presumption to Shared Parenting.... 59
Atty. Jose Mari Benjamin Francisco U. Tirol
The Chain of Custody Rule in Drugs Cases as

Impacted by the War on Drugs: A Compilation
and Analysis of Governing Laws and Recent
Jurisprudence .............................................................. 91
Justice Raymond Reynold R. Lauigan
v
IBP Journal (ISSN 0118-9247) is an official publication
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author/s are responsible for the views expressed therein.
vi
EDITOR’S NOTE
In this Issue, the IBP journal tackles often overlooked
nuances that potentially spell either triumph or loss for a
case or transaction. While substantive law lays the
groundwork for seeking relief and obtaining justice, it is
ultimately procedural law that provides the avenues for
securing lasting relief.
These pieces on amicable settlement, lawyer’s conflicts

of interest, the best interest of the child, and the current
administration’s so called “war on drugs” use the procedural
perspective to make their points clear.
In Avenues for Case Settlement Beyond JDR, Judge

Soliman M. Santos, Jr. provides practical insight from the
Bench on the modes of amicable settlement, both within and
without the courts, as a speedy and mutually acceptable
measure of both justice and peace for the parties.
In Development of the Conflict of Interest Rule in

Philippine Legal Ethics, Prof. Michelle B. San Buenaventura-Dy
tracks the evolution of the rules on conflict of interest and
the tests for its existence. Prof. San Buenaventura-Dy
approaches conflict of interest as an interplay between the
attorney-client relationship and the matters involved, and
examines how, under this perspective, the conflict of interest
rules may be applied to modern situations in order to
preserve clients’ trust and confidence in their lawyers.
In Protecting Tomorrow’s Hope Today: The Philippine

Legal Perspective from the Tender-Age Presumption to Shared
Parenting, Jose Mari Benjamin Francisco U. Tirol examines
the development of the legal concept of shared parenting in
non-traditional relationships in relation to its possible
conflict with the tender-age presumption under Philippine
law, and posits that Spanish law can provide a basis to
reconcile these conflicts and consider the best interests of
the children of these relationships.
vii
In The Chain of Custody Rule in Drugs Cases as
Impacted by the War on Drugs: A Compilation and Analysis of
Governing Laws and Recent Jurisprudence, Justice Raymond
Reynold R. Lauigan analyzes the chain of custody rule under
Republic Act No. 9165 and its amendments, and tracks how
this procedural matter has risen to the level of substantive
law through judicial doctrines. Justice Lauigan illustrates
how the judiciary’s approach towards the chain of custody
rule represents a major chapter in the balancing act between
effective law enforcement and the protection of fundamental
rights in the context of the War on Drugs.
We hope that the members of the Bar and Bench, along

with allied professions, would benefit from these works.
viii
AVENUES FOR CASE SETTLEMENT BEYOND JDR
Judge Soliman M. Santos, Jr.*
For those of us Judges who are understandably

concerned with case disposal in the face of a heavy case load
and congested dockets, it is important to realize a particular
point of judicial wisdom that was shared by an outstanding
former RTC Quezon City Judge (now Supreme Court Justice)
Maria Filomena D. Singh in her lecture on “Best Practices on
Speedy Trial and Disposition of Cases” at a PHILJA seminar
on Speedy Trial and Disposition of Cases for Bicol Judges on
26 August 2011 in Hotel Venezia, Legazpi City. And that
wisdom is this: Amicable settlement is the “most effective
docket-reduction tool.”
It sounds simple but it is easier said than done. Like

with all judicial work, this involves attitude, knowledge, and
skills: Attitude towards amicable settlement; Knowledge of
the situation around the case, the parties, (yes) the counsels,
AND of the procedural avenues for settlement; Skills of
alternative dispute resolution. A little bit of luck will also
help. In the final analysis, attitude towards amicable
settlement is the most important for it to happen, whether it
is the attitude of the Judge, the parties, or the counsels.
Although this short article is intended to highlight the

procedural avenues for settlement at the RTC level, it also
important to first address some points relevant to attitude
*
The author is presently the Judge of the Regional Trial Court (RTC)
Branch 61 in Naga City. He was the Judge of the 9 th Municipal Circuit Trial
Court (MCTC) of Nabua-Bato, Camarines Sur from 2010 to 2015, during
which period he was also the Acting Presiding Judge of the Municipal Trial
Court (MTC) of Balatan, Camarines Sur. He is the author of the book
Justice of the Peace: The Work of a First-Level Court Judge in the Rinconada
District of Camarines Sur (Quezon City: Central Books, 2015).
1 VOLUME 47, ISSUE NO. 2 – 2ND QUARTER 2022

because the possibility of an amicable settlement starts with

this. One can often see this in the body language of the
parties and counsels and their pre-trial briefs. In the latter’s
first item on the possibility of an amicable settlement, some
counsels outrightly state “None.” For whatever reason, that’s
a bad signal, even if honest. Most often, counsels routinely or
safely state that their clients are “willing [or open] to consider
the possibility of an amicable settlement on such terms and
conditions as are acceptable.” Not much more is stated after
that or a serious lack proposals of fair specific terms and
conditions which show a sincere intention to settle and
negotiate in good faith. Instead, the focus of pre-trial briefs
quickly turns to matters preparatory to litigation like
statement of the issues, stipulation of facts, documentary
exhibits, testimonial witnesses, and trial dates. They can’t
wait to get to trial.
And sometimes, so with the Judge. It has become like

a path of least resistance. Another outstanding RTC Judge,
Makati City former Executive Judge Selma P. Alaras, in her
lecture on “Judicial Dispute Resolution (JDR): Administrative
Rules” at the PHILJA Judicial Settlement Conference for
Camarines Sur Judges on 27-29 June 2016 in Avenue Hotel,
Naga City, said that the SC observed that most Judges (really
most?) go through the function of exploring settlement
during pre-trial “perfunctorily” for various reasons, including
the fear factor of being disqualified (or worse,
administratively charged) if he goes through the process
more intensively. The relatively new JDR system removes this
apprehension of judges of being disqualified or
administratively charged for more actively pursuing
settlement. That is at least as far as JDR is concerned. I
believe that even other non-JDR earnest settlement efforts by
Judges should be accorded the same or equal protection by
the SC from inhibition motions and harassment suits.
The removal of the fear factor for Judges to more

actively (or judicial activist-ly) pursue settlement would help
change for the better their attitudes towards amicable
settlement. An attitude change also means a realization of
the merits of settlement beyond case disposal, docket
THE IBP JOURNAL 2

JUDGE SOLIMAN M. SANTOS, JR.
reduction, and protection from administrative harassment.

From a practical court work point of view, it would mean
less work and time used for all concerned, not to mention
much less human and logistical resources expended. It does
not take a rocket scientist to conclude that. Even if the
settlement effort takes several sittings over a period of say 3
months before a closure one way or the other, it would have
been worth it because, in the ordinary scheme of things, a
full-blown trial ending with a decision on the merits could
conservatively take say 3 years, give or take 1 year, and so
much more work and resources involved. Thus, I liken a
successfully concluded settlement to the judicial equivalent
of Sun Tzu’s Art of War wisdom of winning a battle without
firing a single shot or shedding a single drop of blood. A
Decision Based on Compromise is easier, shorter, and more
joyful to write than a decision on the merits after a long trial.
On a higher plane of public policy, no less than the

Constitution in Article VIII, Section 1 mandates that it is “ the
duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and
enforceable…” “Settle” in its plain meaning, relevant to actual
legal controversies, could mean either “determine” through
the power of the court to decide and pronounce a judgment
after trial OR “successfully mediate” a settlement or
compromise between the parties to the controversy. Either
way, it is to “resolve” the controversy or dispute – which is
not necessarily limited to the concerned court case/s per se.
But in general, it can be said that amicable settlement or
compromise agreement is (or should be) the preferential
option or preferred mode of the courts in appropriate cases
– to be clear, not all cases, as some kinds are “by law cannot
be compromised” or by SC guidelines are “not mediatable”
(more precisely, “not be referred to CAM and JDR”). In fact, it
is the declared State policy in Republic Act No. 9285 (the
Alternative Dispute Resolution [ADR] Act of 2004) “to
actively promote party autonomy in the resolution of
disputes or the freedom of the parties to make their own
arrangements to resolve their disputes.”

The best thing about ADR or amicable settlement –

aside from party autonomy and ownership of both the
process and more so the outcome – is its delivery of both
justice (albeit, a negotiated rather than litigated and
adjudicated justice) and peace (in the sense of a restoration
or normalization of relations between the parties, including
an end to their fighting in and out of court). The achievement
of a mutually acceptable measure of both justice and peace
is best achieved when the parties, with mediation assistance,
resolve not only the court case but also, more importantly,
their core dispute or its root cause underlying it -- “deretso sa
ugat ng alitan.” JDR Judges (and this should actually be for
Trial Judges also) are advised to look into and handle social
context issues in each case because cases do not exist in a
vacuum from their social context.
Alternative justice can also be rendered by an

allowable compromise settlement between the parties,
whereby they give and take on what is due each other,
through mediation by the court or by court-annexed
mediators, and then approved and adopted by a court
decision also. This is better in the sense that it makes for a
just, comprehensive, and lasting peace. There is a particular
joy and special sense of fulfillment in this kind of speedy
disposition which not only resolves the dispute at its root but
also restores relations between the parties. And the speedy
disposition of cases is itself another constitutional mandate
in the Bill of Rights.
Going now to the procedural avenues for settlement,

there are both [A] JDR and [B] non-JDR avenues for courts
that are in SC-declared JDR sites or clusters which number
only more than 20 so far in the NCR and in various provinces
around the country, the latest being Camarines Sur in June
2016. Of course, for courts that are not in JDR sites, there are
only the non-JDR avenues. Executive Judge Alaras, in her
above-mentioned lecture on JDR Administrative Rules,
pointed out that there are certain cases mandatorily
covered by JDR and for that matter prior referral to Court-
Annexed Mediation (CAM), and these are governed by the
JDR guideline circulars: A.M. No. 11-1-6-SC-PHILJA
THE IBP JOURNAL 4

(especially this) and A.M. No. 04-1-12-SC-PHILJA. Referral to

CAM of cases covered by it is a requisite for the conduct of
JDR proceedings. Cases elevated to the RTC from the MTC
level usually have undergone CAM which however failed. But
it happens sometimes that there was no referral to CAM at
the MTC level even when there should have been. In such
cases, the RTC would then still have to refer the cases to CAM
before they can come under JDR. Cases originally filed with
the RTC are to be referred first to CAM if covered by it before
they can come under JDR.
For cases not covered by JDR and CAM (and it is safe

to say that there are many more of such cases particularly
criminal cases at the RTC level), the main non-JDR
procedural avenue for settlement is still the existing Pre-
Trial proceedings under the Rules of Court, Rule 18 for civil
cases and Rule 118 for criminal cases. Both JDR and non-
JDR procedural avenues are co-related with the Civil Code
provisions on Compromise, especially Art. 2029 (“The court
shall endeavor to persuade the litigants in a civil case to agree
upon some fair compromise.”) but also Art. 2034 (“There
may be a compromise upon the civil liability arising from an
offense; but such compromise shall not extinguish the public
action for the imposition of the legal penalty.”).
In applicable criminal cases, the civil action is generally

deemed instituted with the criminal action under Rule 111,
Sec. 1(a), first paragraph. In case of settlement, the civil
aspect is normally disposed of this way: The parties assisted
by counsels or by a mediator would enter into a compromise
agreement and submit it to the court for approval and
adoption. As for the criminal aspect, its disposition is for the
determination of the public prosecutor, factoring in the civil
settlement, and of course subject to the approval of the court.
It is in the disposition of the criminal aspect of “settled”
criminal cases where a certain procedural creativity comes
in. The disposition may take the form of a provisional
dismissal, permanent dismissal, complaint withdrawal, plea
bargaining to a lesser offense, or even archival.

Speaking of pre-trial, there is the more recent Pre-Trial

Guidelines in A.M. No. 03-1-09-SC which significantly
provides that in civil cases “The court shall endeavor to make
the parties agree to an equitable compromise or settlement
at any stage of the proceedings before rendition of
judgment.” (underscoring supplied) This is actually a very
flexible provision, which mandates a resort to a settlement
effort at any stage of the proceedings at the instance of the
court, even without the manifestation or motion of a party. In
comparison, Art. 2030 of the Civil Code provides that “Every
civil action or proceeding shall be suspended: … If
willingness to discuss a possible compromise is expressed by
one or both parties…” The JDR system also allows for mid-
trial JDR in failed-JDR cases that have already been referred
to trial after the failure of the initial JDR. In this case
situation, such mid-trial JDR may be granted upon written
motion by one or both parties indicating willingness to
discuss a possible compromise.
I also believe that, in certain circumstances beneficial

to the parties and mutually desired by them such as
manifested at the first call of their case and in order to effect
a quick settlement without necessity of CAM referral of their
case even if mandatorily covered by CAM, the court can and
should proceed, as a service to the litigants, to speedily
dispose of their case by way of a settlement pursuant to the
above-quoted guidance in A.M. No. 03-1-09-SC. And while this
guidance speaks of “at any stage of the proceedings before
rendition of judgment,” let us not forget the case of Jesalva
vs. Bautista,1 which states “the law does not limit
compromises to cases about to be filed or cases already
pending in courts. That a compromise may be effected even
after final judgment is impliedly authorized by Article 2040
(Civil Code)…. It is to be noted that there appears to be no
limitation on the right to compromise, such as the one
claimed by petitioners to exist (that there was already a final
executory judgment in favor of the petitioners). We can see
no reason for limiting the right of compromise to pending
cases, excluding therefrom those already in the in the process
1
105 SCRA 348, 350-51.
6
THE IBP JOURNAL
of execution.” That is why there is now even Appellate Court

Mediation (ACM).
All told, it is important for Judges especially at the RTC
level to be aware of the JDR and non-JDR procedural avenues
for case settlement as the “most effective docket-reduction
tool.” At the RTC level, there come [1] cases covered by CAM
and JDR that have had prior CAM referral at the MTC level
– these should be brought to JDR soonest. There are [2] cases
covered by CAM and JDR that have had no prior CAM
referral – these should be referred to CAM soonest as a pre-
requisite for JDR if still needed later (because of no CAM
settlement). And then there are the still more numerous [3]
cases that are not covered by CAM and JDR -- apply the Pre-
Trial Rule 18 for civil cases or Rule 118 for criminal cases,
and A.M. No. 03-1-09-SC for both kinds of cases, where
applicable (i.e. those where compromise or settlement is not
disallowed).
If we may speak of comparative advantages, the JDR

system has the advantage of an institutionalized procedure
for what might be described as an “all-out” settlement effort
by the Judge, including through the use of judicial clout,
separate private caucuses with one or the other party, and
early neutral evaluation (ENE). To be clear, this does not mean
that there are no limits or parameters for JDR. There is also
the important matter of ethics for JDR Judges. But in general
it can be said that non-JDR procedural avenues for settlement
are still more restrained by traditional standards like “the
cold neutrality of an impartial judge” – standards in
jurisprudence no less but which may have to be reviewed,
considering among others the Justice Reform Initiatives
(JURIS) Project 2003-2008’s intention to restore the
importance of amicable settlement of cases and install
innovative procedures that will remove the apprehensions of
Judges in more actively or, better still, pro-actively pursuing
it.
The JDR system is more structured, in fact prescribing

four stages: (1) Opening Statement/Remarks by the JDR
Judge; (2) Statements of Facts/Perspectives by Each Party; (3)

Negotiation with Court Mediation; and (4)

Settlement/Compromise Agreement/Closure. The prescribed
time frame at the RTC level is 2 months with extensions at
the discretion of the JDR Judge. This somewhat structured
approach has its advantages but these advantages could be
lost if there is no exercise of some flexibility. The
unstructured non-JDR procedural avenues for settlement
especially under A.M. No. 03-1-09-SC are definitely more
flexible, especially in its time frame of “at any stage of the
proceedings before rendition of judgment.” There are
“settlement moments” that come and go in the course of the
proceedings. The Judge has to be sensitive enough in order
to be able to seize these moments. If there is a will (of the
parties, counsels and Judge) for amicable settlement of a
court case, then there is a way, nay, there are several ways
and procedural avenues for this. Attitude + Knowledge +
Skills + Luck = Speedy Disposal by Settlement.
THE IBP JOURNAL 8

DEVELOPMENT OF THE CONFLICT OF INTEREST RULE IN
PHILIPPINE LEGAL ETHICS
Michelle B. San Buenaventura-Dy*
Abstract
The fiduciary nature of the attorney-client

relationship requires the lawyer to perform their
duties as the client’s advocate with loyalty and
zeal. The prohibition on the representation of
conflicting interests is necessary to preserve the
trust and confidence of the client in their lawyer.
This paper examines the development of the

prohibition on representation of conflicting
interests in the Philippines, from the time prior
to the existence of any code of conduct for
Philippine lawyers, to the adoption by the
Philippine Supreme Court of the Canons of
Professional Ethics of the American Bar
Association in 1917, up to the Court’s adoption
of our own Code of Professional Responsibility
in 1988. The paper discusses the development
by jurisprudence of the three tests of conflict of
interest and how the subsistence of the attorney-
client relationship and the type of matters
involved in the cases determine whether there is
a violation by the lawyer of the conflict of
interest prohibition. The Supreme Court applied
the rule more strictly in cases where a lawyer
represents two present clients against each
other, such that there is a finding of a violation
of the conflict of interest rule in such instances
*
The author is an Assistant Professor of the University of the Philippines
College of Law, where she teaches Legal Profession and the Law on
Property, and is currently its College Secretary. She obtained both her
Bachelor of Laws (LL.B.) and Bachelor of Arts in Public Administration
degrees from the University of the Philippines Diliman.

DEVELOPMENT OF THE CONFLICT OF INTEREST RULE IN PHILIPPINE LEGAL ETHICS
regardless of the relation of the matters the

lawyer is handling for the clients. However,
where the attorney-client relation has already
been terminated for one client, the Court found
conflict of interest only where the matter
handled for the former client is the same or
related to the matter being handled for the
present client, but not where such matters are
totally unrelated to each other. The exception to
the prohibition, which is the written consent of
all parties after a full disclosure of the facts, is
also discussed. The Court has applied this
exception strictly, such that defenses like good
faith or lack of monetary consideration do not
absolve a lawyer from a finding of violation of
the conflict of interest rule.
The paper also goes into a brief comparison of

the Philippine conflict of interest rule vis-à-vis
the latest American Model Rules of Professional
Conduct to see whether our Code hewed to or
deviated from the direction that the US rules
eventually took. Even though the American
Model Rules evolved to provide for specialized
rules to govern specific situations, it was found
that, for now, our Code is flexible enough to
cover such situations, without discounting the
desirability of its revision to keep up with
developments in legal practice.
I. INTRODUCTION
Legal ethics, according to Malcolm, “denotes that body

of principles by which the conduct of members of the legal
profession is controlled,” and is “that branch of moral
science which treats of the duties which an attorney-at-law
owes to his clients, to the courts, to the bar, and to the
THE IBP JOURNAL 10

MICHELLE B. SAN BUENAVENTURA-DY
public.”1 The duties of the attorney laid out in this definition

is the framework used in the Code of Professional
Responsibility adopted by the Supreme Court in 1988 to
govern the practice of the legal profession by members of the
Philippine bar.
As the client’s advocate, a lawyer is expected to
represent such client with zeal.2 The lawyer is also expected
to be loyal to the client.3 These duties stem from the highly
fiduciary nature of the attorney-client relation,4 where the
lawyer is expected to observe the utmost good faith toward
the client, because it is only then that the client can be
expected to repose full trust and confidence in the lawyer.5
The full trust and confidence of the client is essential to the
performance by the lawyer of his or her duties because it
promotes “a full disclosure of the client’s most confidential
information to his/her lawyer for an unhampered exchange
of information between them,” and this can be achieved
“based on an expectation from the lawyer of utmost secrecy
and discretion.”6 One of the ways by which this trust can be
destroyed is when a lawyer represents interests conflicting
with that of the client’s.
At present, the Code of Professional Responsibility
(CPR) which was adopted by the Supreme Court on June 21,
1988 governs the conduct and professional obligations of
lawyers in the Philippines. Before it was adopted, the Rules
of Court, in particular Rules 124-131, jurisprudence, and the
Canons of Professional Ethics (CPE) of the American Bar
Association adopted by the Philippine Bar Association (PBA)
in 1917 and 1946 were the sources of legal ethics in the
1
GEORGE A. MALCOLM, LEGAL AND JUDICIAL ETHICS: ADAPTED FOR THE REPUBLIC OF
THE PHILIPPINES 8 (1949), citing Warvelle, Ch. I; Rawle’s Bouvier’s Law
Dictionary, Third Revision, Vol. I, page 1086; Carter, Ethics of the Legal
Profession, Introduction by Wigmore, p. xxiv, and p. 13; and Jessup, The
Professional Ideals of the Lawyer, p.4.
2
CODE OF PROF. RESP., Canon 19.
3
CODE OF PROF. RESP., Canon 15.
4
MALCOLM, supra at 136.
5
Id.
6
Aniñon v. Sabitsana, Adm. Case No. 5098, April 11, 2012.

country.7 Canon 6, which deals with conflict of interest, was

among those adopted by the PBA in 1917.8
In this paper the development of the concept of
conflict of interest in the Philippines will be traced along
these lines. The paper will discuss the definition of the
concept and the tests for determination of the existence of
conflict of interest which were developed and will examine
how the rule has been interpreted and applied over time.
II. CONFLICT OF INTEREST
As a concept in legal ethics, conflict of interest means

the representation by a lawyer of “inconsistent interests of
two or more opposing parties.”9 Its essence is that “it
prevents the lawyer from devoting his time to the full
measure of lawyerly devotion to one client.”10 The statement
in Canon 6 of the CPE of what constitutes representation of
conflicting interests is illustrative:
The obligation to represent the client with
undivided fidelity and not to divulge his secrets
or confidences forbids also the subsequent
acceptance of retainers or employment from
others in matters adversely affecting any
interest of the client with respect to which
confidence has been reposed.
According to Malcolm, the reason for this rule is not
only to prevent fraudulent conduct from a dishonest
attorney, but also to prevent an honest lawyer from having to
choose between conflicting duties or to reconcile conflicting
interests instead of representing only one to its full extent. 11
7
MALCOLM, supra at 8.
8
RUBEN E. AGPALO, LEGAL AND JUDICIAL ETHICS 25 (8th ed., 2009), citing In re
Tagorda, 53 Phil. 37 (1927).
9
Hornilla v. Salunat, Adm. Case No. 5804, July 1, 2003.
10
Hilarion Aquino, Problem Areas in Legal Ethics, 48 ATENEO L.J. 870, 878-
879 (2003).
11
MALCOLM, supra at 142, citing Strong v. International Building Loan & 12
Investment Union.
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The Supreme Court in Paz v. Sanchez12 provided the reason

for the prohibition:
The reason for the prohibition is found in the
relation of attorney and client, which is one of
trust and confidence of the highest degree. A
lawyer becomes familiar with all the facts
connected with his client's case. He learns from
his client the weak points of the action as well as
the strong ones. Such knowledge must be
considered sacred and guarded with care. No
opportunity must be given him to take
advantage of the client's secrets. A lawyer must
have the fullest confidence of his client. For if
the confidence is abused, the profession will
suffer by the loss thereof.13
According to the Supreme Court, the prohibition is
“founded on principles of public policy and good taste as the
nature of the lawyer-client relations is one of trust and
confidence of the highest degree.”14
The Court had the opportunity to discuss the
rationales for the prohibition on representation of conflicting
interests in Samson v. Era:15
The prohibition against conflict of interest rests
on five rationales, rendered as follows:
First, the law seeks to assure clients that their
lawyers will represent them with undivided
loyalty. A client is entitled to be represented by
a lawyer whom the client can trust. Instilling
such confidence is an objective important in
itself xxx.
12
Adm. Case No. 6125, September 19, 2006, citing Maturan v. Gonzales,
Adm. Case No. 2597, March 12, 1998.
13
Id.
14
Gonzales v. Cabucana, Adm. Case No. 6836, January 23, 2006.
15
Adm. Case No. 6664, July 16, 2013, citing Law Governing Lawyers,
Restatement of the Law Third, Volume 2, 2000 Edition, American Law
Institute, Washington D.C., §121.

Second, the prohibition against conflicts of

interest seeks to enhance the effectiveness of
legal representation. To the extent that a conflict
of interest undermines the independence of the
lawyer’s professional judgment or inhibits a
lawyer from working with appropriate vigor in
the client’s behalf, the client’s expectation of
effective representation xxx could be
compromised.
Third, a client has a legal right to have the lawyer
safeguard the client’s confidential information
xxx. Preventing use of confidential client
information against the interests of the client,
either to benefit the lawyer’s personal interest,
in aid of some other client, or to foster an
assumed public purpose is facilitated through
conflicts rules that reduce the opportunity for
such abuse.
Fourth, conflicts rules help ensure that lawyers
will not exploit clients, such as by inducing a
client to make a gift to the lawyer xxx.
Finally, some conflict-of-interest rules protect
interests of the legal system in obtaining
adequate presentations to tribunals. In the
absence of such rules, for example, a lawyer
might appear on both sides of the litigation,
complicating the process of taking proof and
compromise adversary argumentation.16
The knowledge and consent of the parties to the
representation of the opposing parties have always been
sufficient to exempt the lawyer from administrative liability.
Before the adoption of the CPE, it was held that the
knowledge and consent of both parties are sufficient to
exonerate a lawyer from a charge of misconduct for
representing conflicting interests, without specifying how the
consent should be given.17 Canon 6 of the CPE recognized the
16
Id.
17
In re dela Rosa, 72 Phil. 258, March 21, 1914.
14
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consent knowingly given by the clients after full disclosure

of the facts by counsel as an exception to the prohibition,
again without requiring a specific form for the consent. It is
under the present CPR that the form of giving the consent
has been qualified, since Rule 15.03 requires the written
consent of all parties after full disclosure of the facts 18 in
order for the exception to apply.
III. TESTS OF CONFLICT OF INTEREST
Tests pre-CPR
Before the adoption of the CPE, there was no
recognized “test” for the determination of the existence of
conflicting interests. It was under the CPE that the idea of
identifying a test or “yardstick” of conflicting interests was
first introduced. In Hilado v. David,19 a lawyer was
disqualified from representing the defendant on the ground
that the plaintiff had previously consulted with him about
the case. In determining the existence of incompatibility of
interests, the Court held that the passing of confidential
information is not a condition precedent for such a finding,
and that the existence of the bare relationship of attorney
and client is the yardstick for testing incompatibility of
interests:
Hence the necessity of setting down the
existence of the bare relationship of attorney
and client as the yardstick for testing
incompatibility of interests. This stern rule is
designed not alone to prevent the dishonest
practitioner from fraudulent conduct, but as well
to protect the honest lawyer from unfounded
suspicion of unprofessional practice. It is
founded on principles of public policy, on good
taste. As has been said in another case, the
question is not necessarily one of the rights of
the parties, but as to whether the attorney has
18
CODE OF PROF. RESP., Canon 15, Rule 15.03.
19
G.R. No. L-961, September 21, 1949.

adhered to proper professional standard. With

these thoughts in mind, it behooves attorneys,
like Caesar's wife, not only to keep inviolate the
client's confidence, but also to avoid the
appearance of treachery and double-dealing.
Only thus can litigants be encouraged to entrust
their secrets to their attorneys which is of
paramount importance in the administration of
justice.20
Tests under the CPR

The cases resolved under the CPR, as with the earlier
cases, emphasized the importance of the duty of undivided
fidelity and loyalty on the part of the lawyer21 and the
character of the relation of the lawyer and client as one of
trust and confidence.22 However, Philippine jurisprudence on
conflict of interest really began to develop after the adoption
of the CPR. It was after the occurrence of this milestone that
the Court built upon the principles established and
developed in its earlier decisions and identified and
consolidated the three tests of conflict of interests that are
still recognized at present.
The first case decided by the Supreme Court which
applied Rule 15.03 of the CPR is Tiania v. Ocampo.23 In this
case, it was held that representation of conflicting interests
is prohibited “not only because the relation of attorney and
client is one of trust and confidence of the highest degree,
but also because of the principles of public policy and good
taste.” While not outright abandoning the “bare relationship
of attorney and client as the yardstick for testing
incompatibility of interests,” the Court again emphasized the
lawyer’s duty of undivided fidelity and loyalty to his client in
20
Id.
21
Tiania v. Ocampo, Adm. Case No. 2285, 2302, August 12, 1991 and
Rosacia v. Bulalacao, Adm. Case No. 3745, October 2, 1995, among others.
22
Abragan v. Rodriguez, Adm. Case No. 4346, April 3, 2002.
23
Adm. Case No. 2285, 2302, August 12, 1991, citing In re Dela Rosa, 27
Phil 265-266. 16
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identifying the following as the test to determine the

existence of conflict of interest:
The test of the conflict of interest in disciplinary
cases against a lawyer is whether or not the
acceptance of a new relation will prevent an
attorney from the full discharge of his duty of
undivided fidelity and loyalty to his client or
invite suspicion of unfaithfulness or double-
dealing in the performance thereof.24
The Court considered Atty. Ocampo’s acts of
representing his client Blaylock and at the same time advising
Tiania, the opposing party, in one case, and representing
Blaylock against the Angel spouses whom he advised and for
whom he prepared documents, in another, as serious
misconduct.25 His acts of simultaneously representing or
advising the two opposing parties will certainly invite
suspicions of unfaithfulness or double-dealing, since he now
has the duty of undivided fidelity and loyalty to two parties
whose interests oppose each other’s in the same case.
Subsequently, other tests were identified in
determining the existence of conflicting interests. In Abragan
v. Rodriguez,26 Atty. Rodriguez represented his client
Abragan in a forcible entry case, but represented the
defendants in the indirect contempt case filed by Abragan in
relation to the said forcible entry case. Atty. Rodriguez was
found to have clearly violated Rule 15.03 of the CPR under
this second test:
[A] lawyer represents conflicting interests when,
in behalf of one client, it is his duty to contend
for that which duty to another client requires
him to oppose.
The obligation to represent the client with
undivided fidelity and not to divulge his secrets
or confidence forbids also the subsequent
acceptance of retainers or employment from
24
Id.
25
Id.
26
Adm. Case No. 4346, April 3, 2002.

others in matters adversely affecting any

interest of the client with respect to which
confidence has been reposed.27
The Court explained that since lawyers owe undivided

allegiance to their clients, Atty. Rodriguez ought to have
evaluated the situation first before accepting the engagement
as defendants’ counsel in the indirect contempt case, since
the complainants in the said case are his clients in the
forcible entry case.28
In Abaqueta v. Florido,29 Atty. Florido represented
Abaqueta in a special proceedings case where Abaqueta
claimed sole ownership of the property, then afterwards
represented Milagros in a civil case against Abaqueta where
she claimed that she and Abaqueta are conjugal owners of
that same property. The Court held that Atty. Florido violated
the prohibition on representation of conflicting interests, and
identified this test of conflict of interest:
There is a representation of conflicting interests
if the acceptance of the new retainer will require
the attorney to do anything which will
injuriously affect his first client in any matter in
which he represents him and also whether he
will be called upon in his new relation, to use
against his first client any knowledge acquired
through their connection.30
In representing Milagros in her claim that the subject
property is conjugal in nature, Atty. Florido is opposing and
contradicting the argument he previously put forth for
Abaqueta that the latter is the sole owner of the property.
27
Id, citing Buted v. Hernando, Adm. Case No. 1359, October 17, 1991,
and Artezuela v. Maderazo, Adm. Case No. 4354, April 22, 2002.
28
Id.
29
Adm. Case No. 5948, January 22, 2003.
30
Id, citing Pineda, LEGAL AND JUDICIAL ETHICS, 1999 ed. p. 199. 18
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Quiambao v. Bamba31 consolidated these three tests of

conflict of interest:
In broad terms, lawyers are deemed to represent
conflicting interests when, in behalf of one
client, it is their duty to contend for that which
duty to another client requires them to oppose.
Developments in jurisprudence have
particularized various tests to determine
whether a lawyer's conduct lies within this
proscription. One test is whether a lawyer is
duty-bound to fight for an issue or claim in
behalf of one client and, at the same time, to
oppose that claim for the other client. Thus, if a
lawyer's argument for one client has to be
opposed by that same lawyer in arguing for the
other client, there is a violation of the rule.
Another test of inconsistency of interests is
whether the acceptance of a new relation would
prevent the full discharge of the lawyer's duty of
undivided fidelity and loyalty to the client or
invite suspicion of unfaithfulness or double-
dealing in the performance of that duty. Still
another test is whether the lawyer would be
called upon in the new relation to use against a
former client any confidential information
acquired through their connection or previous
employment.32
The three tests of conflict of interest continue to be
recognized in subsequent cases decided by the Court.33
31
Adm. Case No. 6708, August 25, 2005.
32
Id, citing Canon 6, par. 2, CANONS OF PROFESSIONAL ETHICS, Hornilla v.
Salunat, Adm. Case no. 5804, July 1, 2003, Northwestern University v.
Arquillo, G.R. No. 6632, August 2, 2005, Tiania v. Ocampo, Adm. Case No.
2302, August 12, 1991, Abaqueta v. Florido, Adm. Case No. 5948, January
22, 2003, and Pormento v. Pontevedra, Adm. Case No. 5128, March 31,
2005.
33
The following cases also identified the three tests of conflicting
interests: Santos v. Beltran, Adm. Case No. 5858, December 11, 2003;
Pormento v. Pontevedra, Adm. Case No. 5128, March 31, 2005;

IV. ATTORNEY-CLIENT RELATIONSHIP AND MATTERS

INVOLVED DETERMINE CONFLICT OF INTEREST
In deciding on the disciplinary cases of lawyers

concerning conflict of interest, the relation of the matter/s
involved and the subsistence of the attorney-client
relationship are factors that the Court looks into in
determining whether there was conflict of interest. The
earliest cases involved lawyers representing the two
opposing parties in the same case,34 or representing two
present clients against each other in cases involving the same
matter.35 Over time, the Court extended the scope of the
conflict of interest rules to cover within the prohibition the
Northwestern University v. Arquillo, Adm. Case No. 6632, August 2, 2005;

Lim v. Villarosa, Adm. Case No. 5303, June 15, 2006; Pacana v. Pascual-
Lopez, Adm. Case No. 8243, July 24, 2009; Castro-Justo v. Galing, Adm.
Case No. 6174, November 16, 2011; Lee v. Simando, Adm. Case No. 9537,
June 10, 2013; Samson v. Era, Adm. Case No. 6664, July 16, 2013; Nuique
v. Sedillo, Adm. Case No. 9906, July 29, 2013; Orola v. Ramos, Adm. Case
No. 9860, September 11, 2013; Jimenez v. Francisco, Adm. Case No.
10548, December 10, 2014; Bernardino v. Santos, Adm. Case No. 10583,
February 18, 2015; Anglo v. Valencia, Adm. Case No. 10567, February 25,
2015; Gimeno v. Zaide, Adm. Case No. 10303, April 22, 2015; Mabini
Colleges, Inc. v. Pajarillo, Adm. Case No. 10687, July 22, 2015; Vasco-
Tamaray v. Daquis, Adm. Case No. 10868, January 26, 2016; Borja v.
Vergara, Adm. Case No. 8592, April 18, 2016; Tulio v Buhangin, Adm. Case
No. 7110, April 20, 2016; Cruz v. Reyes, Adm. Case No. 9090, August 31,
2016; Monares v. Muñoz, Adm. Case No. 5582, January 24, 2017; Medina
v. Lizardo, Adm. Case No. 10533, January 31, 2017; Capinpin v. Cesa,
Adm. Case No. 6933, July 05, 2017; Paces Industrial Corporation v.
Salandanan, Adm. Case No. 1346, July 25, 2017; Palacios v. Amora, Adm.
Case No. 11504, August 01, 2017; Bansil v. Hipolito, Adm. Case No. 11548, 20
October 11, 2017; Romero v. Evangelista, Adm. Case No. 11829, February
26, 2018; Buena Vista Properties, Inc. v. Deloria, Adm. Case No. 12160,
August 14, 2018; BSA Tower Condominium Corporation v. Reyes, Adm.
Case No. 11944, June 20, 2018; Legaspi v. Fajardo, Adm. Case No. 9422,
November 19, 2018; Luym v. Espina, Adm. Case No. 12332, March 18,
2019; Palalan Carp Farmers Multi-Purpose Coop v. Dela Rosa, Adm. Case
No. 12008, August 14, 2019; Santos v. Navarro, Adm. Case No. 12178,
October 16, 2019; Cortez v. Navarro, Adm. Case No. 12317, January 8,
2020; Burgos v. Bereber, Adm. Case No. 12666, March 4, 2020; Parungao
v. Lacuanan, Adm. Case No. 12071, March 11, 2020; Tan v. Alvarico, Adm.
Case No. 10933, November 3, 2020.
34
In re: Hamilton, G.R. No. 7725, January 17, 1913.
35
Cantorne v. Ducusin, 57 Phil. 2, August 9, 1932.
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representation by lawyers of a present client against a former

client for the same or related matters.36 Eventually,
jurisprudence included within the scope of the prohibition
the representation of present clients against each other even
if the matters involved are totally unrelated.37
Decisions prior to the adoption of or without reference to the

CPE
Prior to the adoption of the CPE, the Supreme Court
already had occasion to decide cases where the prohibition
on representing conflicting interests was involved. During
this time, the cases showed the application of the prohibition
to a lawyer’s representation of opposing parties in the same
case where the conflict is clear, or in different cases but
involving the same or related matters.
1. Representation of present clients in the same case or

related matters before CPE
The earliest jurisprudence on the prohibition on
representation of conflicting interests centered on situations
where the lawyer represented both clients in the same case
involving the same matter. In In re: Hamilton38 Atty. Hamilton
was suspended for six years for counseling plaintiff Andrada
and preparing all pleadings necessary for the institution of
the case, and then subsequently appearing as counsel for the
opposing party Alburo in the same case. While Atty. Hamilton
did not appear as counsel of record for Andrada, the Court
decreed that Atty. Hamilton’s counseling and preparing of
plaintiff Andrada’s pleading and his (Atty. Hamilton’s)
subsequent representation of the defendant Alburo in
opposition of the same case constituted representation of
conflicting interests.39 Atty. Hamilton was found to have a
36
San Jose v. Cruz, 57 Phil. 792, February 1, 1933 and Natan v. Capule,
Adm. Case No. 76, July 23, 1952, to name a few.
37
Supra note 31.
38
Supra note 34.
39
Id.

“distorted conception of the ethics of his profession” and his

acts deemed “an utter disregard for his duty and his
obligations to both his client and the court.”40 The case makes
reference to the “ethics of the profession,” but at the time of
the promulgation of the case, Canon 6 of the CPE had not yet
been adopted by the PBA.
In another case,41 the lawyer, Atty. Ducusin, served as

counsel for the accused in a criminal case but at the same
time represented the complainant, leading the latter to
believe that Atty. Ducusin could get his client (the accused)
to pay for the item the complainant lost. Atty. Ducusin also
induced the complainant not to appear in the hearing of the
case in order to get the case against the accused, his original
client, dismissed.42 This action, among others, led the Court
to find him guilty of malpractice and led to his suspension
from the practice of law.
2. Representation of a present client against a former

client in the same case or related matters before CPE
The termination of the attorney-client relationship
does not mean freedom to appear against a former client in
the same case. In Sumañgil v. Sta. Romana,43 Atty. Sta.
Romana represented one set of heirs in the intestate
proceedings of the estate of the decedent, but subsequently
appeared against said former clients in one of the petitions
filed in said intestate proceedings. The Court therein found
that Atty. Sta. Romana’s conduct has been “highly improper
and violates the rules observed by the legal profession.”44
Lawyers were also found to have been guilty of
misconduct even if they represented a client against a former
client in different cases, where the matters involved are the
40
Id.
41
Supra note 35.
42
Id.
43
Adm. Case No. 25, October 25, 1949.
44
Id. 22
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same or related to each other. In San Jose v. Cruz,45 Atty. Cruz

represented San Jose in an action for recovery of a sum of
money and, after winning in the lower court and withdrawing
as counsel therein, filed as counsel for Spouses Martenzo and
Carcalin a case for the issuance of a writ of preliminary
injunction to restrain the execution of the case which he
previously won for San Jose.46 Atty. Cruz was found guilty of
misconduct and was reprimanded by the Supreme Court:
An Attorney owes loyalty to his client not only in
the case in which he has represented him but
also after the relation of attorney and client has
terminated and it is not a good practice to permit
him afterwards to defend in another case other
persons against his former client under the
pretext that the case is distinct from, and
independent of the former case.47
Quoting Justice Malcolm, it further explained:
An attorney is not permitted, in serving a new
client as against a former one, to do anything
which will injuriously affect the former client in
any manner in which the attorney formerly
represented him, though the relation of attorney
and client has terminated, and the new
employment is in a different case; nor can the
attorney use against his former client any
knowledge or information gained through their
former connection.48
In Natan v. Capule,49 Atty. Capule was also suspended
for, among others, representing a new client against a former
client in a different case but involving related matters. The
Supreme Court again emphasized the duty of fidelity and
loyalty to former clients. It said that Atty. Capule’s retirement
as lawyer of Natan, prior to accepting employment from
45
San Jose v. Cruz, 57 Phil. 792, February 1, 1933.
46
Id.
47
Id.
48
Id, citing MALCOLM, p. 143.
49
Adm. Case No. 76, July 23, 1952.

Patero, “did not relieve him from his obligation of fidelity and
loyalty to his former client.”50 Atty. Capule was suspended
because not only did he represent conflicting interests, but
he also actually utilized “papers, knowledge and information
which he had received in the course of his employment as
lawyer” for Natan in his representation of Capule.
In Mejia v. Reyes,51 the Court found Atty. Reyes guilty

of malpractice even if the matters he handled for his two
clients were not exactly the same. Atty. Reyes was PNB Baguio
Branch’s bank attorney and notary public, and while engaged
as such, he represented complainants who wanted to bring
an action against the bank for cancellation of a mortgage
recorded on their certificate of title.
In Bautista v. Barrios,52 Atty. Barrios was suspended by
the Supreme Court for two years for drafting a deed of
extrajudicial partition then representing the party opposing
its enforcement in the case filed for the purpose.
But in In re: De la Rosa,53 the lawyer subject of the
disciplinary case was exonerated from the charge even if the
lawyer was “acting for and on behalf of the both parties to
the controversy” because his act was done with the
knowledge and consent of both parties.54 This is despite the
fact that the same matter was involved. This being the case,
it is not considered malpractice because neither party was
deceived by respondent lawyer. The case provided for an
exception to the prohibition on representation of conflicting
interests.
Decisions based on Canon 6, CPE
50
Id.
51
52
Adm. Case No. 258, December 21, 1963.
53
72 Phil. 258, March 21, 1914.
54
Id. 24
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In 1917 and 1946, the PBA adopted the CPE.55 Canon 6,

which deals with conflict of interest, was adopted in 1917. 56
Rather than a mere reference to rules of legal ethics, or to the
lawyer’s oath, members of the bar now had an official code
of conduct to govern their practice of the profession. Canon
6, paragraph 2 of the CPE provides that:
6. Adverse influence and conflicting interests

It is unprofessional to represent
conflicting interests, except by express consent
of all concerned given after a full disclosure of
the facts. Within the meaning of this canon, a
lawyer represents conflicting interests when, in
behalf of one client, it is his duty to contend for
that which duty to another client requires him to
oppose.
As with the cases which were decided prior to the
adoption of or without reference to the CPE, the Supreme
Court again found conflict of interest where lawyers
represented adverse parties in the same case, or represented
a client against a former client in a case involving the same
or related matter as that for which he represented the former
client.

related matters under CPE
In the case of Vda. de Zubiri v. Zubiri,57 the lawyer was
deemed to have committed malpractice for representing both
parties in the same suit, in particular by filing the case for
the plaintiff and preparing the responsive pleadings of the
respondent. The Court characterized the action of the lawyer
as brazenly unethical, stating that the CPE58 “very explicitly
55
GEORGE A. MALCOLM, LEGAL AND JUDICIAL ETHICS: ADAPTED FOR THE REPUBLIC
OF THE PHILIPPINES 9 (1949).
56
RUBEN E. AGPALO, LEGAL AND JUDICIAL ETHICS 25 (8th ed., 2009).
57
G.R. No. L-16745, December 17, 1966.
58
Referred to in the case as Canons of Legal Ethics.

declare that ‘it is unprofessional to represent conflicting

interests’.” However, it refrained from ruling on the liability
of the lawyer, as it was not a disciplinary case but one
brought to set aside judgment.
In Maturan v. Gonzales,59 Atty. Gonzales represented
Casquejo in a forcible entry case against Yokingco.
Subsequently, during the pendency of the motion for the
issuance of a writ of execution in the case and while still
being the counsel of Casquejo, Atty. Gonzales thereafter
represented Yokingco in an action to annul the judgment in
the said case. Atty. Gonzales was found guilty of representing
conflicting interests despite his defense that his formal
withdrawal as counsel for the Casquejos was unnecessary
since the filing of a motion for the issuance of a writ of
execution severs the lawyer-client relationship.60 The Court in
dismissing the said defense said:
Moreover, respondent's justification for his
actions reveals a patent ignorance of the
fiduciary obligations which a lawyer owes to his
client. A lawyer-client relationship is not
terminated by the filing of a motion for a writ of
execution. His acceptance of a case implies that
he will prosecute the case to its conclusion. He
may not be permitted to unilaterally terminate
the same to the prejudice of his client.61
Even assuming that the lawyer-client relationship
between Atty. Gonzales and the Casquejos had been
terminated before he represented Yokingco, however, he
would still have violated the prohibition, since the matters he
handled for the opposing parties are related. The decisions
of the Supreme Court interpreting Canon 6 of the CPE were
consistent in holding that even after the termination of the
lawyer-client relation, the lawyer is not free to represent a
new client whose interests oppose that of his former client’s
in the same or related matter.
59
60
Id.
61
Id.
26
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2. Representation of a client against a former client in the

same case or related matters under CPE
In Pasay Law and Conscience Union, Inc. v. Paz,62 the
Court found the lawyer liable based on Section 6 of the
Canons of Legal Ethics and Section 20(e) of Rule 138 of the
Revised Rules of Court. In this case, Atty. Paz in his capacity
as Legal Officer and Chief Prosecutor took part in the
investigation of a case against former Pasay City Mayor
Cuneta, but upon his resignation from government, he
subsequently represented Cuneta in the preliminary
investigation of the same case which he previously
investigated. He was found liable despite his eventual
withdrawal as counsel of Cuneta.
In Vda. de Alisbo v. Jalandoon,63 Atty. Jalandoon was
suspended by the Court for representing one party in the
probate proceedings and then representing the opposing
party in a complaint for revival of judgment of such case. The
lawyer’s defense was that he did not know that the
respondents in the probate proceedings were his clients in
the past until the pre-trial of the case. According to the Court:
In view of his former association with the
Saleses, Attorney Jalandoon, as a dutiful lawyer,
should have declined the employment proffered
by Alisbo on the ground of conflict of interest.
Had he done that soon enough, the Alisbos
(herein complainants) would have had enough
time to engage the services of another lawyer
and they would not have lost their case through
prescription of the action.
xxx
The surrounding circumstances leave us with no
other conclusion than that Attorney Jalandoon,
betrayed his client Ramon Alisbo's trust and did
not champion his cause with that wholehearted
62
63
Adm. Case No. 1311, July 18, 1991.

fidelity, care and devotion that a lawyer is

obligated to give to every case that he accepts
from a client. There is more than simple
negligence resulting in the extinguishment and
loss of his client's right of action; there is a hint
of duplicity and lack of candor in his dealings
with his client, which call for the exercise of this
Court's disciplinary power.64
In Buted v. Hernando,65 the Court held that “the mere fact that
respondent had acted as counsel for Benito Bolisay in the
action for specific performance should have precluded
respondent from acting or appearing as counsel for the other
side in the subsequent petition for cancellation of the
Transfer Certificate of Title of the spouses Generosa and
Benito Bolisay.”
Decisions under the CPR

On June 21, 1988, the Supreme Court adopted the CPR,
which “establishes norms of conduct and ethical standards
for all lawyers, including those in the government service, to
observe in their professional, official and private
capacities.”66 The provision prohibiting lawyers from
representing conflicting interests is found in Canon 15, Rule
15.03:
Rule 15.03. - A lawyer shall not represent
conflicting interests except by written consent of
all concerned given after a full disclosure of the
facts.
The Committee which drafted the proposed Code
originally had a different proposed rule for the prohibition
on representation of conflicting interests, which was taken
from Canon 6, paragraph 2 of the Canons of Professional
Ethics. They originally proposed the following rule:
64
Id.
65
Adm. Case No. 1359, October 17, 1991.
66
AGPALO, supra note 56 at 26.
28
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Rule 15.03. – A lawyer shall not represent

conflicting interests. He represents conflicting
interests when, in behalf of one client, it is his
duty to contend for that which duty to another
client requires him to oppose. However, in
matters which are neither litigious nor
contentious, he may represent clients with
conflicting interests after full disclosure to them
and with their prior written consent.67
As explained by the Committee:
This rule departs from the Canons of
Professional Ethics which permits a lawyer to
represent conflicting interests even in a
litigation or where the issues between the parties
are contentious provided that the parties
expressly agree. Under this rule, the lawyer
cannot represent both parties in a case, even
with their consent. It is hard to visualize a
litigation where a lawyer can be justified in
representing both the conflicting interests.
Where the lawyer is asked to draft a contract
between the parties or to intervene in a matter
which requires minor legal advice, the lawyer
should secure the written consent of the parties.
But even in these cases, the lawyer should not
continue to act for both of the parties if a
contentious issue develops between them. This
rule applies to multiple clients, like co-plaintiffs
or co- defendants, with potentially conflicting
interests. The lawyer should immediately
withdraw from serving the multiple clients the
moment any contentious issue becomes
imminent.68
However, the final Code approved by the Supreme
Court did not contain the stricter iteration of the rule
67
INTEGRATED BAR OF THE PHILIPPINES, PROPOSED CODE OF PROFESSIONAL
RESPONSIBILITY 78 (1979).
68
Supra at 81-82.

proposed by the Committee and instead allowed as an

exception the representation of conflicting interests as long
as both parties provide written consent after full disclosure
of the facts, regardless of the litigiousness or
contentiousness of the issues involved. This present rule
gives lawyers more leeway in accepting engagements from
clients, as long as they obtain the written consent of their
clients after a full disclosure of the facts as required.
The stricter requirement with respect to the written
exception is not the only development brought about by the
CPR. Aside from solidifying the three tests of conflict of
interests, lawyers for the first time have been found guilty of
representing conflicting interests even if the matters for
which he represented both clients are totally unrelated to
each other, as long as there is an existing lawyer-client
relationship with both clients.69 It is an expansion of the
prohibition, as the cases resolved prior to the CPR found
conflict of interest in situations only where the lawyer
represented clients in the same case or in different cases
where the matters involved are the same or related to each
other. At some point, this expanded rule was even further
extended to cover the representation of a present client
against a former client for totally unrelated matters. 70
However, this trend was eventually reversed and rules were
identified for determining when lawyers are prohibited from
representing clients against each other in situations where
the matters involved are totally unrelated.71
When the cases handled by the lawyer for his clients,
whether they be both present clients or a former and a
present client, involve the same or related matters,
jurisprudence has been consistent in finding that there is
conflict of interest unless there is written consent of the
parties after full disclosure of the facts. This is in consonance
with the conflict of interest decisions by the Court under the
CPE and even prior to its adoption.
69
Quiambao v. Bamba, Adm. Case No. 6708, August 25, 2005.
70
Anglo v. Valencia, Adm. Case No. 10567, February 25, 2015.
71
Parungao v. Lacuanan, Adm. Case No. 12071, March 11, 2020.
30
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related matters under the CPR
In Sibulo v. Cabrera,72 Atty. Cabrera was found guilty
of representing conflicting interests for acting as counsel for
the defendant Marcelo and then entering his appearance for
the plaintiff Sucaldito in the same case, without withdrawing
as counsel for Marcelo. In representing both the plaintiff and
the defendant in the same case, the lawyer is no longer able
to “serve either of his said clients faithfully”:
Respondent was bound to faithfully represent
his client in all aspects of subject civil case.
When he agreed to represent the defendant and
later on, also the plaintiff in the same case, he
could no longer serve either of his said clients
faithfully, as his duty to the plaintiff did
necessarily conflict with his duty to the
defendant. The relation of attorney and client is
based on trust, so that double dealing which
could sometimes lead to treachery, should be
avoided.73
The case of Artezuela v. Maderazo74 has the erring
lawyer representing both parties in the same case. Atty.
Maderazo drafted the Answer of the defendant to the
pleading he filed for his complainant client, leading to his
suspension for violation of Rule 15.03 of the CPR. Again in
Northwestern University v. Arquillo,75 the lawyer was also
disciplined for representing both parties in the same
consolidated case. In Perez v. De La Torre,76 Atty. Torres
prepared the extrajudicial confessions of the murder
suspects, while representing the heirs of the murder victims
at the same time. He was found guilty of representing
conflicting interests, since “his representation of opposing
72
Adm. Case No. 4218, July 20, 2000.
73
Id., citing Hilado v. David.
74
75
76

clients in the murder case invites suspicion of double-dealing

and infidelity to his clients.”77
In Hornilla v. Salunat,78 the Supreme Court was asked
to decide whether Atty. Salunat was guilty of representing
conflicting interests when his law firm, which is the retained
counsel of the Philippine Public School Teachers Association
(PPSTA), subsequently represented the members of the
PPSTA board of directors in the intra-corporate case filed
against them by members of PPSTA. In finding that he
violated the prohibition on representation of conflicting
interests, the Court said:
In the case at bar, the records show that SEC Case
No. 05-97-5657, entitled ‘Philippine Public
School Teacher’s Assn., Inc., et al. v. 1992-1995
Board of Directors of the Philippine Public
School Teacher’s Assn. (PPSTA), et al.,’ was filed
by the PPSTA against its own Board of Directors.
Respondent admits that the ASSA Law Firm, of
which he is the Managing Partner, was the
retained counsel of PPSTA. Yet, he appeared as
counsel of record for the respondent Board of
Directors in the said case. Clearly, respondent
was guilty of conflict of interest when he
represented the parties against whom his other
client, the PPSTA, filed suit.79
This case applied the conflict of interest rule in
derivative suits, stating that “a lawyer engaged as counsel for
a corporation cannot represent members of the same
corporation’s board of directors in a derivative suit brought
against them. To do so would be tantamount to representing
conflicting interests, which is prohibited by the Code of
Professional Responsibility.”80 Moreover, it was held that the
corporation in this case “should be presumptively incapable
of giving valid consent,” hence the representation of
77
Id.
78
Adm. Case No. 5804, July 1, 2003.
79
Id.
80
Id.
32
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conflicting interests should not be “waivable by consent in

the usual way.”81
There is also conflict of interest even if on the face of

the cases it appears that the causes of action in the two cases
are different. Such was the situation obtaining in Ilusorio-
Bildner v. Lokin,82 where Atty. Lokin was found to have
represented conflicting interests. He represented the
defendant Ilusorio in a Sandiganbayan case where the subject
matter is a dispute regarding the shares in POTC owned by
the National Government. In the said case, there was a
Compromise Agreement reached which vested on Ilusorio
ownership and voting rights on POTC shares. Atty. Lokin then
questioned this ownership in his Memorandum for his
second client, Nieto, in a case before the Securities and
Exchange Commission, and advocated therein that the SEC
case is a premature action to enforce such Compromise
Agreement. Despite Atty. Lokin’s claim that there is no
identity of causes of action between the Sandiganbayan case
and the SEC case, since the former involved a dispute
regarding the shares in POTC owned by the National
Government while the latter involved a dispute regarding the
PHILCOMSAT election of its Board of Directors and corporate
officers, he was found guilty of representing conflicting
interests. The conflict of interest lies in Atty. Lokin
“advocating an interest hostile to the implementation of the
same Compromise Agreement that he had priorly negotiated
for Ilusorio”83 in his representation of Nieto in the SEC case.
2. Representation of a present client against a former

client in the same or related action under the CPR
81
Id., citing Harvard Law Review, Developments in the Law: Conflict of
Interest, 94 HARV. L. REV. 1244, 1339- 1342 (1981), cited in Solomon,
Schwartz, Bauman & Weiss, Corporations: Law and Policy (3rd ed.) 1129
(1994).
82
83
Id.

In the representation of a present client against a

former client, the Court decreed that the matters or cases
involved should be the same or related in order for conflict
of interest to exist. It points to the client’s confidence as the
justification for such rule:
We held in Nombrado v. Hernandez that the

termination of the relation of attorney and client
provides no justification for a lawyer to
represent an interest adverse to or in conflict
with that of the former client. The reason for the
rule is that the client's confidence once reposed
cannot be divested by the expiration of the
professional employment. Consequently, a
lawyer should not, even after the severance of
the relation with his client, do anything which
will injuriously affect his former client in any
matter in which he previously represented him
nor should he disclose or use any of the client's
confidences acquired in the previous relation.84
The reason for the prohibition is to protect lawyers
from “unfounded suspicion of unprofessional practice.”85
Another justification for a finding of conflict of
interest even if the attorney-client relationship with one
client has already been terminated is the avoidance of
suspicion that the lawyer used information obtained from the
former client in the new case, as explained in Pormento v.
Pontevedra:86
Moreover, we have held in Hilado vs. David that:
Communications between attorney and
client are, in a great number of litigations,
a complicated affair, consisting of
entangled relevant and irrelevant, secret
84
84 Samala v. Valencia, Adm. Case No. 5439, January 22, 2007, citing also
Natan v. Capule, 91 Phil. 640, 648.
85
Abragan v. Rodriguez, Adm. Case No. 4346, April 3, 2002.
86
Adm. Case No. 5128, March 31, 2005, citing Hilado v. David.
34
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and well known facts. In the complexity of

what is said in the course of dealings
between an attorney and client, inquiry of
the nature suggested would lead to the
revelation, in advance of the trial, of other
matters that might only further prejudice
the complainant's cause.
Thus, respondent should have declined

employment in Criminal Case No. 3159 so as to
avoid suspicion that he used in the criminal
action any information he may have acquired in
Civil Case No. 1648.87
However, it is not necessary that the lawyer in
representing the new client actually used confidential
information acquired from the former client in order for the
prohibition to apply.88 As stated in Pormento, the lawyer
should have declined the employment in the second case to
avoid suspicion that information gained by him in his former
employment was used for the second case. It is enough that
a suspicion of such misuse can be raised because of the
lawyer’s past relation to the former client.
In Aniñon v. Sabitsana,89 Atty. Sabitsana was found
guilty of representing conflicting interests when, after having
prepared the Deed of Sale through which Aniñon’s common-
law husband transferred a parcel of land to her, Atty.
Sabitsana subsequently represented the legal wife in a case
seeking to annul the very same Deed of Sale he prepared for
Aniñon, the common-law wife. This case again emphasized
the highest level of trust and confidence which is imbued in
the relationship between a lawyer and the client. 90 The
importance of “unhampered exchange of information”
between the lawyer and the client was highlighted:
87
Id.
88
Ylaya v. Gacott, Adm. Case No. 6475, January 30, 2013, citing Aniñon v.
Sabitsana.
89
90
Id.

The relationship between a lawyer and his/her

client should ideally be imbued with the highest
level of trust and confidence. This is the
standard of confidentiality that must prevail to
promote a full disclosure of the client’s most
confidential information to his/her lawyer for an
unhampered exchange of information between
them. Needless to state, a client can only entrust
confidential information to his/her lawyer based
on an expectation from the lawyer of utmost
secrecy and discretion; the lawyer, for his part,
is dutybound to observe candor, fairness and
loyalty in all dealings and transactions with the
client. Part of the lawyer’s duty in this regard is
to avoid representing conflicting interests, a
matter covered by Rule 15.03, Canon 15 of the
Code of Professional Responsibility quoted
below:
Rule 15.03. A lawyer shall not represent
conflicting interests except by written
consent of all concerned given after a full
disclosure of the facts.91
Since lawyers have been found guilty of violating Rule
15.03 despite the lack of use of confidential information
obtained from one client against the other, with all the more
reason should a lawyer who used information acquired in a
previous employment for the cause of his present client be
held liable. In Paces Industrial Corp. v. Salandanan,92 the
Court held that:
Here, contrary to Salandanan's futile defense, he
sufficiently represented or intervened for Paces
in its negotiations for the payment of its
obligation to E.E. Black Ltd. The letters he sent to
the counsel of E.E. Black Ltd. identified him as
the Treasurer of Paces. Previously, he had
likewise represented Paces in two (2) different
91
Id.
92
Adm. Case No. 1346, July 25, 2017.
36
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cases. It is clear, therefore, that his duty had

been to fight a cause for Paces, but it later
became his duty to oppose the same for E.E.
Black Ltd. His defense for Paces was eventually
opposed by him when he argued for E.E. Black
Ltd. Thus, Salandanan had indisputably obtained
knowledge of matters affecting the rights and
obligations of Paces which had been placed in
him in unrestricted confidence. The same
knowledge led him to the identification of those
attachable properties and business
organizations that eventually made the
attachment and garnishment against Paces a
success. To allow him to utilize said information
for his own personal interest or for the benefit
of E.E. Black Ltd., the adverse party, would be to
violate the element of confidence which lies at
the very foundation of a lawyer-client
relationship.93
The prohibition on representing a present client
against a former client for the same or related matter applies
regardless of the degree of adverse interests.94 It is said to be
present “even if the inconsistency is remote, [or] merely
probable.”95 Thus, the lawyer in Hierro v. Nava96 was found
guilty of representing conflicting interests even if the cases
he handled for the former client were criminal cases for grave
threats, grave coercion, falsification, perjury, estafa, and
resistance, while the case he handled for the present client
against the former client is a petition for the issuance of a
Temporary Protection Order (TPO). In justifying the petition
and in order to show the maltreatment received by his
present client, Atty. Nava cited the criminal cases that he
handled for the former client to show the latter’s “propensity
for violence”. In doing so, the lawyer is “implying that there
is merit in these cases which is diametrically opposed to his
93
Id.
94
Canillo v. Angeles, Adm. Case No. 9899, September 4, 2018.
95
Tan-Te Seng v. Pangan, Adm. Case No. 12829 and Adm. Case No. 12830,
September 16, 2020.
96
Adm. Case. No. 9459, January 7, 2020.

position as defense counsel of Hierro,”97 even if the actions

he handled for the former and present clients are not related.
Advising and taking on the legal concern of two clients
together and then subsequently abandoning one and taking
up the cause of the other also resulted in a finding of a
violation of the prohibition. Such was the situation in Tan-Te
Seng v. Pangan,98 where Atty. Pangan was initially introduced
to and advised both the mother and the wife of the decedent
for the purpose of settling the latter’s estate, even asking the
parties to provide him documents needed to prepare the
Deed of Extrajudicial Settlement. However, he subsequently
excluded the mother from the settlement and represented
the wife in the case for annulment of extrajudicial settlement
filed by the mother.
3. Representation of present clients in totally unrelated

cases under the CPR
A new doctrine emerged under the CPR regarding
conflict of interests where the matters involved in the cases
the lawyer handles for two clients are totally unrelated to
each other. In jurisprudence decided under the CPR, lawyers
have been found guilty of representing conflicting interests
when they represent a client against another present client
even if the matters involved in the cases are totally unrelated.
The bare fact of representing two present clients even in
unrelated cases already creates a suspicion of unfaithfulness
or double-dealing on the part of the lawyer.99
In Quiambao v. Bamba,100 Atty. Bamba was suspended
for representing the complainant Quiambao in an ejectment
case and then afterwards filing a replevin case against
Quiambao on behalf of the corporation of which she used to
be president and managing director. In holding that Atty.
Bamba is liable for representing conflicting interests, the
97
Id.
98
Supra note 96.
99
Quiambao v. Bamba, Adm. Case No. 6708, August 25, 2005, Nuique v.
Sedillo, Adm. Case No. 9906, July 29, 2013.
100
Quiambao v. Bamba, Adm. Case No. 6708, August 25, 2005. 38
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Court explained why the prohibition still applies to him even

if the matters involved in the cases are unrelated:
In this case, it is undisputed that at the time the
respondent filed the replevin case on behalf of
AIB he was still the counsel of record of the
complainant in the pending ejectment case. We
do not sustain respondent's theory that since the
ejectment case and the replevin case are
unrelated cases fraught with different issues,
parties, and subject matters, the prohibition is
inapplicable. His representation of opposing
clients in both cases, though unrelated,
obviously constitutes conflict of interest or, at
the least, invites suspicion of double-dealing.
While the respondent may assert that the
complainant expressly consented to his
continued representation in the ejectment case,
the respondent failed to show that he fully
disclosed the facts to both his clients and he
failed to present any written consent of the
complainant and AIB as required under Rule
15.03, Canon 15 of the Code of Professional
Responsibility.101
The Court also ruled the same way in Nuique v. Sedillo,102
where Atty. Sedillo was found guilty of representing
conflicting interests in appearing for Estrelieta and Manuel in
several cases against Kiyoshi, a client he is representing in
another case, even if the cases for which he is representing
Kiyoshi are totally unrelated to those he is handling for
Estrelieta and Manuel. The Court said that it is immaterial
that the cases are totally unrelated to each other:
The respondent’s representation of Estrelieta
and Manuel against Kiyoshi, notwithstanding
that he was still the counsel of Kiyoshi and
Estrelieta in the case against Amasula, creates a
suspicion of unfaithfulness or double-dealing in
101
Id.
102
Nuique v. Sedillo, Adm. Case No. 9906, July 29, 2013.

the performance of his duty towards his clients.

Under the circumstances, the decent and ethical
thing which the respondent should have done
was to advise Estrelieta and Manuel to engage
the services of another lawyer.
In Gonzales v. Cabucana,103 Atty. Cabucana was found guilty

of representing conflicting interests when he represented
plaintiff Gonzales in a complaint for sum of money then
subsequently represented the sheriff against whom Gonzales
filed civil and criminal cases for the sheriff’s failure to
implement the writ of execution properly. His defense that
there is no conflict of interest since the civil case he handled
for Gonzales is not related to the criminal case he handled
for the sheriff was found to be unmeritorious:
The claim of respondent that there is no conflict
of interests in this case, as the civil case handled
by their law firm where Gonzales is the
complainant and the criminal cases filed by
Gonzales against the Gatcheco spouses are not
related, has no merit. The representation of
opposing clients in said cases, though unrelated,
constitutes conflict of interests or, at the very
least, invites suspicion of double-dealing which
this Court cannot allow.104
4. Representing former and present clients in totally

unrelated matters under the CPR
With respect, however, to the representation of a
present client against a former client where the new case is
totally unrelated to the matter for which the lawyer
represented the former client, the jurisprudence is not
consistent. Initially, the treatment by the Supreme Court was
that there is no violation of the rule prohibiting
representation of conflicting interests in these instances,
103
104
Id., citing Quiambao v. Bamba.
40
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because transactions that occurred after the lawyer’s

engagement are no longer covered by his or her duty of
loyalty to the client.105 There were decisions, however, where
the Court became strict in interpreting the prohibition and
ruled that conflict of interest arises in the representation of
former and present clients even where the matter is totally
unrelated to the matter handled previously.106 Soon
thereafter, the Court reverted to the old doctrine that the
representation of a client against a former client in totally
unrelated matters does not constitute a violation of the
prohibition. Such is the rule currently being followed at
present.
In Lim-Santiago v. Sagucio,107 there was no conflict of
interest when the public prosecutor conducted the
preliminary investigation and recommended the filing of
informations against a stockholder and former president of
the corporation where he was previously employed as
personnel manager and retained counsel. The Court stated
that the lawyer’s duty of loyalty to a former client “does not
cover transactions that occurred beyond the lawyer’s
employment with the client.”108 Moreover, the Court required
that Atty. Sagucio should have used against Taggat, his
former client, information that he obtained when he was its
lawyer in order for him to be found guilty of violating the
prohibition.109 This was not proved in the case, leading to his
exoneration from the charge of representing conflicting
interests.
In Palm v. Iledan,110 Atty. Iledan represented Soledad in
a case against Comtech, for which he was formerly a retained
counsel. In ruling that he was not guilty of representing
conflicting interests, the Court said that the lawyer is
dutybound “to protect the client’s interests only on matters
that he previously handled for the former client and not for
105
Lim-Santiago v. Sagucio, Adm. Case. No. 6705, March 31, 2006.
106
Anglo v. Valencia, Adm. Case No. 10567, February 25, 2015.
107
Supra note 105.
108
Id.
109
Id.
110
Adm. Case No. 8242, October 2, 2009, citing Lim-Santiago v. Sagucio.

matters that arose after the lawyer-client relationship has

terminated.”
Seares v. Gonzales-Alzate111 involves a lawyer
representing a client in a case for abuse of authority,
oppression, and grave misconduct against a former client
whom he previously represented in an election case. Similar
to the abovementioned decisions, the Court ruled that there
was no conflict of interest because “[T]he prohibition did not
cover a situation where the subject matter of the present
engagement was totally unrelated to the previous
engagement of the attorney.”112 It also held that the
prohibition requires that there is “identity of parties or
interests involved in the previous and present engagements,”
and that, as in the Lim-Santiago case, the lawyer must have
used against the former client any confidential information
gained from the previous employment.113
The Court, however, took a stricter approach in the
case of Anglo v. Valencia,114 which is a departure from the
doctrine that there is no conflict of interest if a lawyer
represents a present client against a former client as long as
the matters for which he represented both are totally
unrelated to each other. Atty. Valencia represented Anglo in
labor cases instituted against him, but after the termination
of the cases he represented a new client in a qualified theft
case against Anglo. Finding a violation of the conflict of
interest rule, the Court held that “a lawyer is prohibited from
representing new clients whose interests oppose those of a
former client in any manner, whether or not they are parties
in the same action or on totally unrelated cases,”115 and that
“a lawyer is prohibited from representing new clients whose
interests oppose those of a former client in any manner,
whether or not they are parties in the same action or on
totally unrelated cases.” It is to be noted that Anglo cites
Quiambao as basis, but the factual circumstances in both
111
Adm. Case No. 9058, November 14, 2012.
112
Id.
113
Id.
114
Supra note 106.
115
Id. 42
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cases are different since the clients in Quiambao are both

present clients and therefore, the stricter rule applies.
After Anglo, the Court reverted to the previous
doctrine when in Gimeno v. Zaide116 it held that there was no
conflict of interest in Atty. Zaide’s representation of Gimeno
in a case for annulment of land title and his subsequent
representation of Somontan against Gimeno in a case before
the Ombudsman for alleged mishandling of funds. The Court
used two of the three tests of conflicting interests in holding
that no violation of the prohibition existed here since the
cases are totally unrelated, and that the lawyer-client
relationship with Gimeno already ceased when Atty. Zaide’s
services were engaged by Somontan.117 Applying the first test
of conflict of interests, the Court found no double- dealing
on the part of Atty. Zaide because at the time his services
were engaged by Somontan, he was no longer the counsel of
Gimeno. This conclusion was also supported by the lack of
evidence that Atty. Zaide used any confidential information
against Gimeno which he acquired when he was still her
counsel in the annulment case.118
This ruling was applied in subsequent cases such as
Luym v. Espina,119 Cortez v. Navarro,120 and Parungao v.
Lacuanan.121 In Luym,122 the lawyer was found not to have
violated the prohibition because of the lack of relation
between the matters he handled for the former client
(drafting of a letter-complaint for a private matter) and the
present client (a corporate matter). Furthermore, Atty. Espina
is a co-defendant in the action which the complainant is
claiming conflicts with the matter that the lawyer handled for
her previously, and the Court held that there is no conflict of
interest since Atty. Espina is a co-defendant and “clearly
defending himself and his reputation having been impleaded
116
Adm. Case No. 10303, April 22, 2015.
117
Id.
118
Id.
119
Adm. Case No. 12332, March 18, 2019.
120
121
Adm. Case No. 12071, March 11, 2020.
122
Supra note 119.

in the case as the corporate secretary.”123 In Cortez,124 the

Court reiterated the principles laid down in earlier cases of
lawyers representing former and present clients where the
matters involved are totally unrelated. It was stressed here
that there will be conflict of interest in the case of a lawyer
appearing for an adverse party against a former client “in a
matter which is related, directly or indirectly, to the present
controversy.”125 It was also reiterated that the lawyer’s duty
of loyalty to a former client does not extend to matters that
occurred after the termination of the lawyer’s employment.126
While the Anglo case has seemingly been overturned by
these more recent cases, there is a subsequent decision,
Romero v. Evangelista127 that contributed to confusion with
respect to what constitutes conflict of interest in situations
where a lawyer represents a party against a former client.
Romero seemingly held that there is conflict of interest even
if the matter handled for the present client is totally
unrelated to the case handled for the former client. The IBP-
CBD tasked with investigating the complaint in the case
classified Atty. Evangelista’s first client, Adela,128 as a former
client. There is also no finding here that the matters are
related to each other, only that Atty. Evangelista was counsel
for Adela in cases involving properties of her clan on the one
hand and then subsequently represented several parties
against Adela in cases for forcible entry and recovery of
possession and ownership, among others. In deciding that
Atty. Evangelista was guilty of representing conflicting
interests, the Court stated:
The rule against conflict of interest also
“prohibits a lawyer from representing new
clients whose interests oppose those of a former
123
Id.
124
Supra note 120.
125
Id., citing Lim v. Villarosa, Adm. Case No. 5303, June 15, 2006.
126
Id.
127
Adm. Case No. 11829, February 26, 2018.
128
The case contains the following statement, which points to a
termination of the lawyer-client relationship between Atty. Evangelista 44
and client Adela: “The IBP-CBD noted that Atty. Evangelista, who once
lawyered for Adela, had accepted and handled legal actions against her.”
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client in any manner, whether or not they are

parties in the same action or on totally unrelated
cases,” since the representation of opposing
clients, even in unrelated cases, “is tantamount
to representing conflicting interests or, at the
very least, invites suspicion of double-dealing
which the Court cannot allow.” The only
exception is provided under Canon 15, Rule
15.03 of the CPR - if there is a written consent
from all the parties after full disclosure. “Such
prohibition is founded on principles of public
policy and good taste as the nature of the lawyer-
client relations is one of trust and confidence of
the highest degree.”129
The facts highlighted above together with the above
quoted paragraph seemingly justify a conclusion that a
lawyer cannot represent a client against a former client even
in a totally unrelated case. However, tracing the sources of
the statements contained in the paragraph, in particular the
first statement, leads to the Mabini Colleges v. Pajarillo130 and
Nuique v. Sedillo131 cases; the factual circumstances of which
do not match Romero. In Mabini Colleges,132 the lawyer
represents a client against a former client in a related matter,
while in Nuique,133 the lawyer represented the new client
against a party who was still his client at the time of his entry
of appearance for the new client.
The confusion with respect to the treatment of totally
unrelated matters was clarified once and for all in the case of
Parungao v. Lacuanan.134 In this case, Atty. Lacuanan was
introduced to complainant Jonathan by the latter’s wife.
There was no standing retainer agreement between them, and
129
Supra note 128, citing Mabini Colleges, Inc. represented by Marcel N.
Lukban, et al. v. Atty. Pajarillo, 764 Phil. 352, 358 (2015), Atty. Nuique v.
Atty. Sedillo, 715 Phil. 304, 315 (2013), Ylaya v. Atty. Gacott, 702 Phil. 390,
415 (2013) and Gonzales v. Cabucana, Jr., 515 Phil. 296, 304 (2006).
130
Adm. Case No. 10687, July 22, 2015.
131
Adm. Case No. 9906, July 29, 2013.
132
Supra note 130.
133
Supra note 131.
134
Supra note 121.

Atty. Lacuanan intermittently represented Jonathan in

several matters pertaining to the latter’s business in 2011.
These matters included the purchase of a lot from a bank and
the drafting of a demand letter addressed to the seller of a
vehicle Jonathan bought which turned out to be defective. 135
In 2013, after the termination of the lawyer-client
relationship between Jonathan and Atty. Parungao, the
lawyer represented Jonathan’s wife in her criminal complaint
for concubinage, physical injuries and threats against
Jonathan. Jonathan filed a complaint for disbarment against
Atty. Parungao for violating the prohibition on representing
conflict of interest when he represented the wife against the
husband who was his former client.
Since the attorney-client relationship between
Jonathan and Atty. Parungao was already terminated prior to
the latter taking on the wife’s case against Jonathan, and
since the new case is totally unrelated to the matters he
handled for Jonathan, the Court held that there is no conflict
of interest in this case:
Of the three tests identified above, the third test
- with references to “new relation,” “former
client,” and “previous employment” - specifically
applies to a situation wherein the professional
engagement with the former client was already
terminated when the lawyer entered into a new
engagement with the present client. It bears to
stress that this test explicitly requires the
lawyer's use against his former client of
“confidential information acquired through their
connection or previous employment.”
The Court further categorically declared in Palm
v. Iledan, Jr. that “[a] lawyer's immutable duty to
a former client does not cover transactions that
occurred beyond the lawyer's employment with
the client. The intent of the law is to impose
upon the lawyer the duty to protect the client's
interests only on matters that he previously
135
Id.
46
THE IBP JOURNAL
handled for the former client and not for matters

that arose after the lawyer-client relationship
has terminated.”
Hence, for there to be conflicting interests when
a former client is involved, the following
circumstances must concur: (a) the lawyer is
called upon in his present engagement to make
use against a former client confidential
information which was acquired through their
connection or previous employment, and (b) the
present engagement involves transactions that
occurred during the lawyer's employment with
the former client and matters that the lawyer
previously handled for the said client.136
It was clarified in this case that it is the third test of
conflict of interest that specifically applies where a former
client and a new client are parties to a case. It also identified
the prerequisites before a finding of conflict of interest can
be made in case a lawyer represents a new client against a
former client: (1) use in the new case of confidential
information obtained from the former client, and (2) relation
of the matter he is handling for the new client with that of
his former client.
The principle adopted by the Court for situations of
representation of a present client against a former client, as
crystallized in the Parungao ruling, is one that seeks to
balance the protection of the client’s interest and the
freedom of the lawyer to practice his or her profession, in
particular in the representation of prospective clients. The
ruling in the Anglo case was a step in keeping with the stricter
direction and tendency that Rule 15.03 of the CPR embodied
when it required the consent of the clients to be in written
form. This would have meant, however, that lawyers will run
afoul of the prohibition on representation of conflicting
interests if they ever represent a client against a former client
regardless of the extent of his engagement and the matters
involved. It would have limited the options of the client with
136
Id.

respect to available legal representation, while at the same

time operating as a restriction on the lawyer’s practice
especially in an environment where clients employ multiple
law firms on retainer.
V. APPLICATION OF CONFLICT OF INTEREST RULES
The prohibition in Rule 15.03 of the CPR on

representation of conflicting interests is not only applicable
to situations where there are two opposing parties, nor does
it require an action pending before the courts between these
parties. Conflict of interest has also been found even when
the former client has already died, or the interest that
conflicts with that of a client is that of the lawyer’s and not
another client.
In Heirs of Falame v. Baguio,137 the lawyer was found
guilty of violating the prohibition on representation of
conflicting interests even though technically, he was not
going against a former client, such former client being
already dead during the time the lawyer took on the new case.
In this case, it was held that while the lawyer never
represented the heirs of his former client, these heirs derive
their rights from such former client whose cause he
previously defended. Even if the client is already dead, the
lawyer was still dutybound not to accept employment in a
case where he will have to oppose the dead client’s interest.
The Court reiterated the doctrine that the termination of the
attorney-client relation does not give the lawyer the license
to act against his former client’s interest in the same general
matter.138
The conflict of interest rule has also been made to
apply in situations where the interest that will conflict with
the client’s is that of the lawyer’s and not another client’s. In
Gamilla v. Mariño,139 Atty. Mariño represented the union
members against UST in seeking compensation with respect
137
138
Id.
139
48
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to their illegal dismissal. However, aside from being their

lawyer, Atty. Mariño was the union president and was himself
an aggrieved member of the faculty and thus an interested
party in the case. The Court held that “it is undoubtedly a
conflict of interests for an attorney to put himself in a
position where self-interest tempts, or worse, actually impels
him to do less than his best for his client.”140 The Court stated:
In the instant case, quite apart from the issue of

validity of the 1990 compromise agreement, this
Court finds fault in respondent’s omission of
that basic sense of fidelity to steer clear of
situations that put his loyalty and devotion to his
client, the faculty members of UST, open to
question. Atty. Mariño both as lawyer and
president of the union was duty bound to protect
and advance the interest of union members and
the bargaining unit above his own. This
obligation was jeopardized when his personal
interest as one of the dismissed employees of
UST complicated the negotiation process and
eventually resulted in the lopsided compromise
agreement that rightly or wrongly brought
money to him and the other dismissed union
officers and directors, seemingly or otherwise at
the expense of the faculty members.141
Similarly, in Palalan Carp Farmers Multi-Purpose Coop
v. Dela Rosa,142 the lawyer’s conflict of interest stemmed not
out of representing an adverse client in a court case but from
the conflict of his interest with that of his client’s. The Court
agreed with the finding of the IBP Board of Governors that
the root of the conflict of interest of the lawyer is that his
interest to earn at once from the sale of the client’s property
140
Id.
141
Id.
142

conflicted with the client’s interest to effect a sale that will

be most profitable to it.143
In Foster v. Agtang,144 the Court found Atty. Agtang
guilty of violating Rule 15.03 when he failed to fully protect
his client’s interests because the case in which he was
representing the client questioned a document that he
himself had notarized.145 There was sufficient conflict of
interests even if the validity of the document is not being put
in question, but only the parties’ intentions with respect to
some of its provisions.146
Even if it is not the interests represented but the duties
of the lawyer which are conflicting, Rule 15.03 was made to
apply. In Buehs v. Bacatan,147 the conflict in duties arose
when, after rendering a decision as a voluntary arbitrator in
an illegal dismissal case filed by Alvarez and Malukuh against
Buehs, he indorsed a criminal complaint filed by Alvarez et
al. against Buehs and signed it as counsel.148 In finding that
there was a violation of Rule 15.03 of the CPR, the Court held
that it is not only the representation of conflicting interests
of clients that is prohibited, but also the discharge of
conflicting duties:
[R]espondent was appointed as Voluntary
Arbitrator for the parties in the illegal dismissal
case. He took on the duty to act as a
disinterested person to hear the parties’
contentions and give judgment between them.
However, instead of exhibiting neutrality and
impartiality expected of an arbitrator,
respondent indorsed a criminal complaint … for
possible criminal prosecution against herein
complainant, and signed the said Indorsement as
counsel for complainants in the illegal dismissal
case. The Court cannot accept the contention of
143
Id.
144
145
Id.
146
Id.
147
Adm. Case No. 6674, June 30, 2009.
148
Id. 50
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respondent that the phrase “counsel for the

complainants,” found in the Indorsement, was a
mere misprint… [as his] claim of misprint is a
last futile attempt based on the clearly
established evidence that he was acting in both
capacities as counsel and arbitrator at the same
time, an act which was clearly reprehensible and
violative of the principle of conflict of
interests.149
There is also conflict of interest even if the lawyer does
not enter an appearance in the records for the adverse party.
The act of participating in the preparation of the pleading of
the party whose interest is adverse to that of his client’s is
sufficient for a finding of conflict of interest.150 Artezuela v.
Maderazo151 held that:
To be guilty of representing conflicting interests, a counsel-
of- record of one party need not also be counsel-of-record of
the adverse party. He does not have to publicly hold himself
as the counsel of the adverse party, nor make his efforts to
advance the adverse party's conflicting interests of record---
although these circumstances are the most obvious and
satisfactory proof of the charge. It is enough that the counsel
of one party had a hand in the preparation of the pleading of
the other party, claiming adverse and conflicting interests
with that of his original client. To require that he also be
counsel-of-record of the adverse party would punish only the
most obvious form of deceit and reward, with impunity, the
highest form of disloyalty.152
In cases where a law firm represents a client, it has
been held by the Court that a lawyer cannot represent an
interest contrary to that previously espoused by his or her
law firm.153 Quoting Hilado, the Court said that “information
obtained from a client by a member or assistant of a law firm
is information imparted to the firm,” because the information
149
Id.
150
Artezuela v. Maderazo, Adm. Case No. 4354, April 22, 2002.
151
Id.
152
Id.
153
Ilusorio-Bildner v. Lokin, Adm. Case No. 6554, December 14, 2005.

obtained by the member or lawyer is available to the other

lawyers in the firm.154 Thus, the fact that the lawyer, while a
member of the firm, did not personally handle the case does
not excuse the lawyer from liability. The same conclusion was
reached by the Court in Daging v. Davis.155
VI. EXCEPTION TO THE PROHIBITION
The prohibition is not absolute, whether under the CPE

or the CPR. Together with the development of the rule, the
exception to its applicability was also refined and made
stricter. Prior to the CPE, jurisprudence provided that a
lawyer may act for and on behalf of both parties without
danger of being found guilty of malpractice as long as such
dual representation was with the knowledge and consent of
both parties, because the parties were not deceived thereby.156
Under paragraph 2, Canon 6 of the CPE, the prohibition
will not apply if the lawyer secured the “express consent of
all concerned given after a full disclosure of the facts”. The
CPR imposed a stricter requirement157 for the exception to
apply, since what is required under Rule 15.03 is for a lawyer
not to represent conflicting interests “except by written
consent of all concerned given after a full disclosure of the
facts.” It is not enough that the clients are aware of the
lawyer’s representation of the two opposing parties, nor that
the client consented to the representation in some way. The
consent is required to be in writing.
Hence, in Ocampo-Ingcoco v. Yrreverre,158 Atty.
Yrreverre was not held liable for representing conflicting
interests because he was able to obtain the consent and
written conformity of the client after full disclosure of the
facts. But in Quiambao v. Bamba,159 Atty. Bamba’s defense
154
Id.
155
Adm. Case No. 9395, November 12, 2014.
156
In re De la Rosa, 27 Phil. 258, March 21, 1914.
157
Buted v. Hernando, Adm. Case No. 1359, October 17, 1991.
158
Adm. Case No. 5480, September 29, 2003.
159
Adm. Case No. 6708, August 25, 2005. 52
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that his client consented to his representation of the other

party was unavailing because the lawyer failed to show full
disclosure of the facts to both clients and to present their
written consent.160 A claim of express consent by the client is
not sufficient for the exception to apply. In Aniñon v.
Sabitsana,161 the Court did not apply the exception in Atty.
Sabitsana’s favor because, while he wrote the former client
about the adverse claim of his present client, he did not
disclose to the said former client his engagement as counsel
of the new client. He was also unable to obtain the written
consent of both clients. In Palacios v. Amora,162 the Court
strictly applied the written consent requirement. Atty. Amora
in the said case sought to be exonerated from liability for
violation of Rule 15.03 by claiming that he obtained the
written consent of the client as evidenced by its approval of
several transactions between him and the other client.
However, the Court held that this purported approval is not
the consent required by the CPR.163 Likewise, in Capinpin v.
Cesa,164 the client’s supposed knowledge of the negotiation
that Atty. Cesa was undertaking with the other party is not
sufficient to exonerate him from the charge of representing
conflicting interests since there was no written consent from
his client acquiescing to such negotiation.
The written consent after a full disclosure of facts
exception is the only exception recognized by the Court.
Thus, the defense that the conflict of interests is “remote or
merely probable” is not accepted.165 Nor is the defense of
good faith sufficient to exonerate: Even when Atty. Ramos
claimed that his appearance for the other party is only a
friendly accommodation;166 or that Atty. Cabucana could not
turn down the other party because there was no other lawyer
willing to take their case;167 or that Atty. Sanchez had honest
160
Id.
161
162
163
Id.
164
Adm. Case No. 6933, July 05, 2017.
165
Pormento vs. Pontevedra, Adm. Case No. 5128, March 31, 2005; Heirs
of Falame v. Baguio, Adm. Case No. 6876, March 7, 2008.
166
Orola v. Ramos, Adm. Case No. 9860, September 11, 2013.
167
Gonzales v. Cabucana, Adm. Case No. 6836, January 23, 2006.

intentions in taking on the case;168 they were still found guilty

of violating Rule 15.03.
Even if the lawyer subsequently withdrew as counsel
for the case, he was still found guilty of representing
conflicting interests, as the mere filing of the complaint is
already considered a manifestation of his disloyalty and
infidelity to his former client.169 Lack of opposition to the
representation of the other client is also not considered a
sufficient ground to free the lawyer from liability under Rule
15.03, since he is guilty of violating his oath as long as he
represents conflicting interests of his clients.170 The lack of
monetary consideration for the professional service rendered
was also not an acceptable excuse,171 nor did the takeover by
another lawyer of a case meant that the lawyer became free
to represent the opposing party.172
VII. THE CPR VIS-À-VIS THE AMERICAN MODEL RULES OF

PROFESSIONAL CONDUCT
Since the Philippines initially adopted the legal ethics

rules of the United States before coming up with its own Code
of Professional Responsibility, it is interesting to see whether
our rule deviated from the direction that the US rules
eventually took. After the US adopted the Canons of
Professional Ethics in 1908, it adopted the 1969 Model Code
of Professional Responsibility before coming up with the ABA
Model Rules of Professional Conduct in 1983 (ABA Model
Rules), which “serve as models for the ethics rules of most
jurisdictions.”173
168
Paz v. Sanchez, Adm. Case No. 6125, September 19, 2006.
169
Tulio v. Buhangin, Adm. Case No. 7110, April 20, 2016.
170
San Jose Homeowners Association Inc. v. Romanillos, Adm. Case No.
5580, June 15, 2005; also Tan-Te Seng v. Pangan, Adm. Case No. 12829
and Adm. Case No. 12830, September 16, 2020.
171
Castro-Justo v. Galing, Adm. Case No. 6174, November 16, 2011.
172
Id. 54
173
https://www.americanbar.org/groups/professional_responsibility/pu
blications/model_rules_of_professional_conduct
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Whereas Rule 15.03 of the CPR contains a general

statement of the prohibition, one that is even shorter than its
predecessor from the CPE, the model codes adopted by the
ABA contain more specific prohibitions and statements
which have been tailored to apply to particular situations.
The ABA Model Rules deal with conflict of interest in Rule 1.7
(Conflict of Interest: Current Clients), Rule 1.8 (Current
Clients: Specific Rules), Rule 1.9 (Duties to Former Clients),
Rule 1.10 (Imputation of Conflicts of Interest: General Rule),
Rule 1.11 (Special Conflicts of Interest for Former and
Current Government Officers and Employees), Rule 1.12
(Former Judge, Arbitrator, Mediator or Other Third- Party
Neutral), and Rule 1.13 (Organization as Client).
Despite the lack of specificity of the rule embodied in
the CPR compared to the ABA Model Rules, however,
Philippine jurisprudence on conflict of interest has been able
to adapt to the times and to cover situations and
circumstances contemplated in the ABA Model Rules. These
include decisions where the lawyer was found guilty of
conflict of interest when the lawyer’s personal interest
conflicted with that of the client’s,174 or where the lawyer was
an arbitrator who later filed a criminal case as counsel
against one of the parties to the arbitration.175 Moreover, even
174
Gamilla v. Marino, Adm. Case No. 4763, March 20, 2003, and Palalan
Carp Farmers Multi-Purpose Coop v. Dela Rosa, Adm. Case No. 12008,
August 14, 2019, may be covered by Rule 1.7 (a) (2) of the ABA Model
Rules of Professional Conduct, which states:
(a) Except as provided in paragraph (b), a lawyer shall not represent a
client if the representation involves a concurrent conflict of
interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to
another client; or
there is a significant risk that the representation of one or more clients
will be materially limited by the lawyer’s responsibilities to another client,
a former client or a third person or by a personal interest of the lawyer.
175
Buehs v. Bacatan, Adm. Case No. 6674, June 30, 2009, which may
covered by Rule 1.12 (a) of the ABA Model Rules of Professional Conduct:
(a) Except as stated in paragraph (d), a lawyer shall not represent
anyone in connection with a matter in which the lawyer
participated personally and substantially as a judge or other
adjudicative officer or law clerk to such a person or as an
arbitrator, mediator or other third-party neutral, unless all

if the CPR does not explicitly set out the rules for the
application of conflict of interest to representing a present
client against a former client as Rule 1.9 of the ABA Model
Rules does,176 the rule is even entrenched in jurisprudence as
the third test of conflict of interest.177 Where the CPR and
jurisprudence deviate from the ABA Model Rules is the
qualification therein that the opposing interest must be
directly or materially adverse in order for the conflict of
interest rule to apply,178 since it has been repeatedly held by
parties to the proceeding give informed consent, confirmed in

writing.
176
Rule 1.9: Duties to Former Clients
(a) A lawyer who has formerly represented a client in a matter shall
not thereafter represent another person in the same or a
substantially related matter in which that person’s interests are
materially adverse to the interest of the former client unless the
former client gives informed consent, confirmed in writing.
177
Parungao v. Lacuanan, Adm. Case No. 12071, March 11, 2020.
178
As shown in the following rules:
Rule 1.7 (a) Except as provided in paragraph (b), a lawyer shall not
represent a client if the representation involves a concurrent conflict of
interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another
client; or
(2) there is a significant risk that the representation of one or more
clients will be materially limited by the lawyer's responsibilities to
another client, a former client or a third person or by a personal 56
interest of the lawyer.
Rule 1.9 (a) A lawyer who has formerly represented a client in a matter
shall not thereafter represent another person in the same or a
substantially related matter in which that person's interests are
materially adverse to the interests of the former client unless the former
client gives informed consent, confirmed in writing.
(b) A lawyer shall not knowingly represent a person in the same or a
substantially related matter in which a firm with which the lawyer
formerly was associated had previously represented a client
(1) whose interests are materially adverse to that person; and
about whom the lawyer had acquired information protected by Rules 1.6
and 1.9(c) that is material to the matter; unless the former client gives
informed consent, confirmed in writing.
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the Court that the rule applies “even if the inconsistency is

remote or merely probable.”179
Thus, it appears that, for now, the CPR is capable of
being interpreted to cover situations contemplated in the
ABA Model Rules. Even without the rules particularly tailored
for such situations, the Court has been able to determine a
lawyer’s liability for conflict of interest applying Rule 15.03
of the CPR and using jurisprudence as its guide. It has been
pointed out, however, that the CPR has remained fixated in
the classical view of lawyering as adversarial in nature 180 and
that other areas of law practice, such as corporate practice,
are not specifically addressed by it due to its focus on
litigation.181
On this score, a re-examination of the rule may be in
order to come up with rules that may address conflict of
interest issues in this particular area of practice.
VIII. CONCLUSION
The conflict of interest rule in the Philippine legal

system has been steady and consistent over the years. The
developments in the rule itself and its application have
tended to build and expand on the existing principles, rather
than introduce drastic changes. This can be seen not just in
the transition from Canon 6 of the CPE which was adopted
from the ABA CPE to Rule 15.03 of the CPR, but also in the
development of jurisprudence, from the first test of conflict
of interest enunciated in Hilado v. David182 to the three tests
179
Orola v. Ramos, Adm. Case No. 9860, September 11, 2013; Tulio v
Buhangin, Adm. Case No. 7110, April 20, 2016; Tan-Te Seng v. Pangan,
Adm. Case No. 12829 and Adm. Case No. 12830, September 16, 2020;
Pormento v. Pontevedra, Adm. Case No. 5128, March 31, 2005; Heirs of
Falame v. Baguio, Adm. Case No. 6876, March 7, 2008, to name a few.
180
Leandro Angelo Y. Aguirre, From Courtroom to Boardroom: Evolving
Conflict of Interest Rules to Govern the Corporate Practice of Law, 81 PHIL.
L.J. 292 (2006).
181
Maria Carmen L. Jardeleza, Shotgun versus Top Gun: Confidentiality and
the Filipino In-House Counsel, 83 PHIL. L.J. 95, 129 (2008).
182
G.R. No. L-961, September 21, 1949.

in Quiambao v. Bamba183 currently being used today. The

preservation of the client’s trust and confidence in the lawyer
was and remains a paramount consideration in applying the
rule.184
While the rule has remained unchanged for more than
thirty years, its interpretation has not been stagnant and has
been shown to be capable of adapting to the circumstances
and situations experienced by the modern lawyer. Where
once the rule was applied only to situations where the lawyer
represents clients who are opposing parties in the same case
or related cases, jurisprudence eventually covered within the
prohibition the situation where a lawyer represents present
clients against each other in totally unrelated cases.185
The conflict of interest rule is interpreted strictly, as
evidenced by cases where it was also applied even in
situations where the former client has already died, or there
is no attorney-client relationship with the second client, or
where the interest that conflicts with the client’s interest is
the lawyer’s. The exception to the prohibition, the consent of
all parties concerned, is also strict since it is required to be
written, and is the only exception allowed by the Court. The
lack of consent in the required form does not exempt the
lawyer from liability. Defenses such as good faith, lack of
intention to represent conflicting interests, lack of monetary
consideration for the lawyer’s appearance, and lack of
opposition by the client to the lawyer’s representation of the
opposing party have all been held as unavailing.
While a re-examination or a revision of the CPR for
purposes of keeping up with the increasing complexities and
intricacies of modern law practice, may be in order, the
conflict of interest rule has shown itself to be adaptable.
183
184
Aniñon v. Sabitsana, Adm. Case No. 5098, April 11, 2012.
185
Lim-Santiago v. Sagucio, Adm. Case No. 6705, March 31, 2006.
58
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PROTECTING TOMORROW’S HOPE TODAY: THE
PHILIPPINE LEGAL PERSPECTIVE FROM THE TENDER-AGE
PRESUMPTION TO SHARED PARENTING*
Jose Mari Benjamin Francisco U. Tirol**
Abstract
Philippine private law promotes the rights and

interests of children. It emphasizes that their
welfare is paramount in all questions relating to
their care, custody, education, and property and
enumerates the duties and obligations of
parents to safeguard and protect them by
ensuring their moral and mental development.
However, the Philippines has no law which

provides for or recognizes shared parenting.
Neither is there any law which recognizes
divorce, civil partnerships, or same-sex
marriages. As a result, there is no express rule
which specifically applies to the children of such
relationships.
Nevertheless, the absence of any Philippine law

on divorce, same-sex relationships, civil
partnerships, or shared parenting does not mean
that the Philippine legal framework has not
*
This is an update from the author’s inaugural message at the
International Scientific Conference on Best Interest of the Child and
Shared Parenting in Málaga, Spain on December 2-3, 2019 organized by
the International Council on Shared Parenting and the Facultad de
Derecho, Universidad de Málaga (https://www.uma.es/spanish-
philippine-law-archive/navegador_de_ficheros/Congress-
2019/descargar/Program-SP-Congress.pdf).
Dean and Professor, University of San Agustin College of Law, Iloilo City.
**
Bachelor of Arts (History), UP Miag-ao (1994), Bachelor of Laws cum laude

University of San Agustin (1998), Master of Laws cum laude University of
Santo Tomas (2004).

PROTECTING TOMORROW’S HOPE TODAY: THE PHILIPPINE LEGAL PERSPECTIVE FROM
THE TENDER-AGE PRESUMPTION TO SHARED PARENTING
considered, and does not protect the best

interests of the children of these and all other
relationships. But this should not stop us from
looking for other ways to further enhance the
protections that our children are legally entitled
to.
Since Philippine private law is based on the

Spanish Civil Code, their legal commonalities
and shared histories should be more than
enough impetus for Philippine lawmakers and
policymakers to look into Spanish law, for the
purpose of further enhancing and protecting the
best interests of the Filipino child.
I. SPANISH ORIGINS OF PHILIPPINE PRIVATE LAW
Jose Rizal, whose bust can be located along the Paseo

Marítimo in Málaga, Spain, was born in the Philippines at the
tail end of the Spanish colonial period. At the age of 18 Rizal
wrote “A la juventud filipina” (To the Filipino youth) even
though at that time the term “Filipino” referred to Spaniards
born in the Philippine Islands. This could only mean he
imagined and foresaw a community composed of his
countrymen. In his poem, he called the Filipino youth "bella
esperanza de la patria mia" – the beautiful hope of (his)
fatherland.
In a sense, Rizal’s “A la juventud filipina” predicted the

origins of Philippine private law, from which these
safeguards sprung from: The Spanish Civil Code of 1889,
which by royal decree of July 31, 1889 was extended to Cuba,
Puerto Rico, and the Philippines,1 and took effect on
December 18, 1889.
1
Its Articles 42 to 107 did not take effect in the Philippines, having been
suspended by the Governor General shortly after the Code was
extended in the country (Balogbog v. Court of Appeals GR No. 83598
March 7, 1997).
60
THE IBP JOURNAL

JOSE MARI BENJAMIN FRANCISCO U. TIROL
Spanish hegemony over the Philippines ended in 1898,

replaced by the Americans who ruled until 1946 (with a short
period of Japanese occupation from 1941-1945). While the
Americans introduced the common law doctrine of stare
decisis and discarded all Spanish laws, customs, and rights of
property that were inconsistent with the US Constitution and
American principles,2 they retained the Spanish Civil Code of
1889.
The venerable3 Spanish Civil Code of 1889, which is

now referred to as the Old Civil Code, was in force in the
Philippines from December 8, 1889 up until the day prior to
August 30, 1950 when Republic Act 386 or the New Civil
Code took effect.4 Nevertheless, the Old Civil Code was the
primary source of the New Civil Code5 with 53% of the latter
being textually lifted from the former.6
Despite Philippine private law being historically rooted

in Spanish private law, their paths have long since diverged
especially in the promotion and protection children’s needs
and interests. For example, Spanish law7 and the laws of
certain autonomous communities in Spain8 now recognize
2
In re Application of Max Shoop for admission to practice law, November
29, 1920.
3
A word used by the Court to describe the Spanish Civil Code in
Philippine National Bank v. Court of Appeals GR No. 97995 January 21,
1993.
4
Tecson v. Commission on Elections, GR No. 161434, March 3, 2004.
Capitle v. Gaban GR No. 146890 June 8, 2004. Its repealing clause
provides: “Art. 2270. The following laws and regulations are hereby
repealed: (1) Those parts and provisions of the Civil Code of 1889 which
are in force on the date when this new Civil Code becomes effective; …”
Nonetheless, the provisions of the Old Civil Code would apply if the
factual circumstances occurred during its effectivity (Balilo-Montero v.
Septimo GR No. 149751 March 11, 2005; Ko v. Aramburo GR No. 190995
August 9, 2017).
5
Tecson v. Commission on Elections, supra.
6
Agabin, Pacifico A. 2016. Mestizo: The Story of the Philippine Legal
System. Quezon City: University of the Philippines College of Law. p.
116.
7
Spanish Civil Code, Articles 9(2), 44, 85-107; Ley 2/2003 (Reguladora de
las parejas de hecho).
8
For example, Ley 5/2015 (Derecho Civil Vasco) and Ley 7/2015 (De
relaciones familiares en supuestos de separación o ruptura de los

divorce, same-sex marriages, civil partnerships, and shared

parenting—the same relationships that directly affect the
rights of children. Today, there is an apparent absence of any
Philippine law which specifically applies to such
relationships. However, as will be discussed in this article, the
same is not proof that the Philippine legal framework has not
considered the best interests of the children born out of
these and all other relationships.
The Spanish origins of Philippine private law impel us

to rediscover how they have developed over the years. This
will enable us to appreciate our legal history and determine
the possible ways that the legal protections deservingly
afforded to our children can be further enhanced.
II. COMPLIANCE WITH INTERNATIONAL AND REGIONAL

NORMS
Both the Philippines and Spain ratified the United

Nations Convention on the Rights of the Child (1989) which,
among others, recognizes that the best interests of the child
shall be the primary consideration in all actions concerning
them. Notably, it also respects the right of a child, separated
from one or both parents, to maintain personal relations and
direct contact with both parents on a regular basis – unless
this is contrary to the child’s best interests.
The inadequacies of the sole custody model at

respecting this right and a changing social
context in which fathers are generally more
actively involved in the care and upbringing of
their children has led to the emergence of a
shared custody model in a number of
jurisdictions, this model permits both parents to
exercise parental care together after a divorce or
separation and is an arrangement by which a
child divides his time between two adults… who
progenitores).
62
THE IBP JOURNAL
are no longer living together.9
While both countries are members of the Hague

Conference on Private International Law, only Spain is a
contracting party to the Hague Convention on Parental
Responsibility and Protection of Children (1996),10 which took
into account the UN Convention on the Rights of the Child.
The Convention emphasized the best interests of the child in
international situations “to avoid conflicts between their
legal systems in respect of jurisdiction, applicable law,
recognition and enforcement of measures for the protection
of children.”
Moreover, as a member of the European Union (EU),

Spain is also covered by the Treaty on European Union (2012).
Article 3 of the Treaty requires the Union to protect the rights
of the child. Even Article 24 of the EU Charter of Fundamental
Rights (2012) acknowledges that children are independent
and autonomous holders of rights and have all the right to
such protection and care as is necessary for their well-being.
It specifically mandates that their views shall be taken
consideration on matters which concern them, that their best
interest must be a primary consideration in all action relating
to them, and that their right to maintain a personal
relationship and direct contact with both parents is
paramount, unless the same is contrary to his interests.
Regarding the Philippines’ membership in the

Association of Southeast Asian Nations (ASEAN), the Institute
of Human Rights and Peace Studies of Mahidol University,
Thailand noted that the principle of the best interest of the
child under the UN Convention on the Rights of the Child is
not consistently applied in practice in ASEAN due to
challenges in reconciling the region’s traditional culture with
9
Hayden, Andrea. Shared Custody: A Comparative Study of the Position in
Spain and England. 2011. Accessed November 29, 2019.
https://indret.com/wp-content/themes/indret/pdf/795_en.pdf.
10
Convention of 19 October 1996 on Jurisdiction, Applicable Law,
Recognition, Enforcement and Co-operation in respect to Parental
Responsibility and Measures for the Protection of Children.

child rights.11 For instance, in a 2019 report12 jointly

published by ASEAN and the UNICEF East Asia and Pacific
Regional Office, the rights of children were focused on
health, nutrition, water, sanitation, hygiene, and protection.
Nonetheless, the Council of ASEAN Chief Justices (CACJ)
during its 7th Meeting in November 2019 in Bangkok,
promulgated the Bangkok Declaration13 which acknowledged
that the Working Group on Cross-Border Disputes Involving
Children (led by Singapore and the Philippines) has, on top of
enhancing the procedure for cross-border dispute involving
children within the ASEAN, agreed for the Working Group to
“discuss and consider developing a common set of values,
aspirations and principles for ASEAN Judiciaries in cases of
cross-border disputes within ASEAN”.
III. SHARED PARENTING: A SPANISH OVERVIEW
The relevant provisions of the Spanish Civil Code

regarding shared parenting as reproduced as follows:
Article 92
1. Separation, annulment and divorce shall not
exonerate parents from their obligations to
their children.
2. When the Judge is to adopt any measure
relating to custody, care and education of
underage children, he shall ensure
compliance with their right to be heard.
11
Institute of Human Rights and Peace Studies. Mahidol University,
Thailand. 2016. Child Rights Situation Analysis within the ASEAN
Region. Accessed December 17, 2019, https://www.crcasia.org/wp-
content/uploads/2016/11/Child-Rights-Situation-Analysis-Within-the-
ASEAN-Region_Mahidol-University-2016.pdf.
12
Association of Southeast Asian Nations and UNICEF East Asia and
Pacific Regional Office. Children in ASEAN: 30 Years of the Convention
of the Rights of the Child 2019. Accessed December 17, 2019,
https://www.unicef.org/eap/media/4281/file/Children%20in%20ASEA 64
N.pdf.
13
Council of ASEAN Chief Justices (CACJ). Bangkok Declaration at the 7th
Council of ASEAN Chief Justices Meeting. 2019. Accessed December 17,
2019, https://cacj-ajp.org/bangkok-declaration.
THE IBP JOURNAL

3. The judgment shall order the deprivation of

parental authority when grounds for this
should be revealed in the proceedings.
4. The parents may agree in the settlement
agreement, or the Judge may decide, for the
benefit of the children, that parental
authority be exercised in whole or in part by
one of the spouses.
5. Shared care and custody of the children shall
be decreed where the parents should request
it in the settlement agreement proposal or
where both of them should agree during the
proceedings. The Judge, in decreeing joint
custody and after duly motivating his
resolution, shall adopt the necessary
precautions for the effective compliance of
the agreed custody regime, trying not to
separate siblings.
6. In any event, after decreeing the care and
custody regime, the Judge must ask the
opinion of the Public Prosecutor and hear
minors who have sufficient judgment, where
this is deemed necessary ex officio or at the
request of the Public Prosecutor, the parties
or members of the Court Technical Team, or
the minor himself, and evaluate the parties’
allegations at the hearing and the evidence
practiced therein, and the relationship
between the parents themselves and with
their children to determine the suitability of
the custody regime.
7. No joint custody shall be granted when either
parent should be subject to criminal
proceedings as a result of an attempt against
the life, physical integrity, freedom, moral
integrity or sexual liberty and integrity of the
other spouse or the children who live with
both of them. Neither shall it apply where the
Judge should observe, from the parties’
allegations and the evidence practiced, that
there is well-founded circumstantial evidence

of domestic violence.
8. Exceptionally, even when the circumstances
described in section five of this article do not
arise, the judge, at the request of one of the
parties, with a favourable report from the
public prosecutor’s office, may award shared
care and custody, on the basis that only in
that way are the best interests of the minor
adequately protected.
9. The Judge, before adopting any of the
decisions mentioned in the preceding
paragraphs, ex officio or ex parte, may ask for
the opinion of duly qualified specialists
relating to the suitability of the form of
exercise of parental authority and the minors’
custody regime.
Article 110
The father and mother, even if they do not hold
parental authority, are obliged to care for their
underaged children and to provide them with
support.
Article 154
Non-emancipated children shall be under the
parents’ parental authority.
Parental authority shall be exercised always for
the benefit of the children, according to their
personality, and respecting their physical and
psychological integrity.
This authority comprises the following duties

and powers:
1. To look after them, to have them in their
company, feed them, educate them and
provide them with a comprehensive
upbringing.
2. To represent them and to manage their
property.
If the children should have sufficient judgment,
THE IBP JOURNAL 66

they must be heard always before adopting

decisions that affect them.
Parents may, in the exercise of their powers,

request the assistance of the authorities.
Article 156
Parental authority shall be exercised jointly by
both parents, or by one of them with the express
or implied consent of the other. Acts performed
by one of them according to social practice and
circumstances or in situations of urgent need
shall be valid.
In the event of disagreement, either of them may

appear before the Judge, who, after hearing both
of them and the child, if he should have
sufficient judgment and, as the case may be, if
he should be older than twelve, shall confer
without further recourse the ability to decide to
the father or the mother. In the event of repeated
disagreement, if there should be any other cause
which severely hinders the exercise of parental
authority, he may confer it in whole or in part to
one of the parents, or distribute duties between
them. This measure shall remain in force during
the period provided, which may never exceed
two years.
In the cases provided in the preceding

paragraphs, in respect of third parties in good
faith, each parent shall be presumed to act in the
ordinary exercise of parental authority with the
consent of the other.
In the absence thereof, or as a result of the
absence, incapacity or impossibility of one of the
parents, parental authority shall be exclusively
exercised by the other.
If the parents should live separately, parental

authority shall be exercised by the parent with

whom the child lives. Notwithstanding the

foregoing, the Judge, at the duly justified request
of the other parent, may, in the interests of the
child, confer parental authority to the applicant,
to be exercised jointly with the other parent, or
distribute between the father and the mother the
duties inherent to its exercise.
Article 159
If the parents live separately and are unable to
decide by common consent, the Judge shall
decide, always for the benefit of the children, in
the custody of which parent the underage
children are to remain. The Judge, before taking
this measure, shall hear the children who have
sufficient judgment and, in any event, those
older than twelve.
The argument that shared custody is detrimental to the

child’s best interests due to the lack of stability for the child
is neither a fundamental nor a decisive reason to deny the
same. 14
…[s]tability is no longer interpreted to mean that

a child should not be moved from one household
to another – of course some conditions are
required – but it is conceived as ensuring that
emotional stability can be offered to the child if
both parents agree and can maintain a minimum
of harmony to deal with this system of caring for
a child.
However, despite a so called “new

interpretation”, there continue to be cases
particularly in the ordinary courts, in which
judges reject shared custody as something that
does not provide a stable environment for a
child. In response to this, the Supreme Court of
Spain is now endeavouring to educate the lower
14
Hayden, supra.
68
THE IBP JOURNAL
courts about the positive values of shared

custody.
Indeed the Supreme Court Judgments of

10.3.2010 and 11.3.2010 reaffirmed the
sentiment that instability (in the sense of not
providing one stable home for the child) is not a
permissible criterion for refusing to award
shared custody. In coming to this conclusion the
Court referred to the Supreme Court's decision
of 8.10.2009, which recognized the difficulties
facing Spanish judges who are obliged under a
general clause (Article 90 II CC) to award shared
custody always in the best interests of the child.
The Supreme Court explained that since Spanish
law does not
provide a list of legal criteria in order to
determine the best interests of the child it is very
difficult to specify the requirements contained
under this obligation. In looking for guidance,
the Court turned to the study of comparative law
and considered criteria being used in other
jurisdictions such as France (French Civil Code),
England (CA 1989) and America (American Law
Institute Principles of the Law of Family
Dissolution) in order to decide on the
convenience or otherwise of a shared custody
arrangement…15
IV. CHILD CUSTODY AND PARENTAL AUTHORITY: A

PHILIPPINE OVERVIEW
As early as 1932, the Philippine Supreme Court in

Perkins v. Perkins16 recognized that in matters involving the
custody of minors, their welfare is the controlling
consideration. But apparently not because of the tender-age
15
Id.
16
GR No. 35698, September 12, 1932.

presumption, as explained by Justices Malcom and Imperial

in their dissent which gave much weight to the child’s choice
of parent:
According to section 771 of the Code of Civil

Procedure, when husband and wife are living
separate and apart from each other, and the
question as to the care, custody, and control of
the offspring of their marriage is brought before
a Court of First Instance, the father and mother
of such offspring shall stand upon an equality.
In this case, therefore, the plaintiff and the
defendant have no advantage over the other…
However, the New Civil Code in Article 363 now

provides for the tender-age presumption and emphasizes
that their welfare of is paramount in all questions relating to
their care, custody, education, and property. These are
further strengthened by the Child and Youth Welfare Code
(Presidential Decree 603 – 1974). The following articles are
evidence of the same: Article 1 recognizes the “natural right
and duty of parents in the rearing of the child for civic
efficiency,” with the best interest of the child as the
overriding factor, Article 8 echoes the New Civil Code’s
Article 363, Article 3 enumerates the rights of the child
“without distinction as to legitimacy or illegitimacy … and
other factors,” and Article 1 recognizes the “natural right and
duty of parents in the rearing of the child for civic efficiency.”
Most of the New Civil Code’s provisions on persons and

family relations were superseded in 1988 by the Family Code
of the Philippines (Executive Order 209). Article 213
reiterates the tender-age presumption, Article 209 states that
from the status of being a parent flows one's "natural right
and duty not only of the "caring for" and the "rearing of" one’s
unemancipated children but above all "the development of
their moral, mental, and physical character and well-being,"”
and its Article 220 enumerates the additional duties and
obligations of parents to safeguard and protect their children
THE IBP JOURNAL 70

by ensuring their moral and mental development.17
Furthermore, Articles 216-219 of the Family Code

provide for a system of substitute parental authority in
default of parents or a judicially appointed guardian, and for
special parental authority by schools, their administrators
and teachers whenever the minor child is under their
supervision, instruction, or custody.
The Family Code itself has been amended and

supplemented by laws which emphasize the best interest of
the child. Among these are the following adoption laws:
Republic Act 8043 (the Intercountry Adoption Law - 1995),
Republic Act 8552 (the Domestic Adoption Law - 1998),
Republic Act 9523 (the law amending Republic Acts 8043 and
8442 and Presidential Decree 603 which requires a
certification from the DSWD to declare a "child legally
available for adoption" - 2009), and Republic Act 11222 (the
Simulated Birth Rectification Act - 2019).
Following the example set by the Family Code, other

laws were subsequently passed emphasizing the protection
of children: Among others, the law against child abuse
(Republic Act 7610 - 1992), the Anti-Violence Against Women
and their Children Act (Republic Act 9262 - 2004), the Solo
Parent’s Welfare Act (Republic Act 8972 - 2000) which
provides benefits to solo parents and their children, the
Foster Care Act (Republic Act 10165 - 2012) which highlights
the best interests of the child and guarantees his rights under
Article 3 of Presidential Decree 603 and the United Nations
Convention on the Rights of the Child which the Philippines
is a party to, and the Early Years Act (EYA) (Republic Act
10410 - 2013), which promotes the rights of children to
survival, development, and special protection, and to support
parents in their roles as primary caregivers and as their
children’s first teachers.
Despite these numerous progressive legislation, there

is still no law in the Philippines which specifically applies to
17
Kalaw v. Fernandez GR No. 166357 January 14, 2015.

children of divorced parents. While there were periods in

Philippine history when divorce was allowed,18 the Philippines
does not recognize divorce, except in two limited instances:
(1) When both parties are Muslims,19 or (2) when one of the
parties is a foreigner20.
In fact, even when the number of registered marriages

in the Philippines has been decreasing and the percentage of
nonmarital unions has been increasing (from 14.% in 2013 to
18% as of the year 2017)21, the Philippines still does not
legally recognize civil partnerships22 as well as same-sex
18
Although there were divorce laws during the American and
Japanese periods and have been and are proposals to pass a law to
revive the same. Said the Supreme Court in Republic v. Manalo GR No.
221029 April 24, 2018: “Notably, a law on absolute divorce is not new
in our country. Effective March 11, 1917, Philippine courts could grant
an absolute divorce on the grounds of adultery on the part of the wife
or concubinage on the part of the husband by virtue of Act No. 2710 of
the Philippine Legislature. On March 25, 1943, pursuant to the authority
conferred upon him by the Commander-in-Chief of the Imperial
Japanese Forces in the Philippines and with the approval of the latter,
the Chairman of the Philippine Executive Commission promulgated an
E.O. No. 141 ("New Divorce Law"), which repealed Act No. 2710 and
provided eleven grounds for absolute divorce, such as intentional or
unjustified desertion continuously for at least one year prior to the
filing of the action, slander by deed or gross insult by one spouse
against the other to such an extent as to make further living together
impracticable, and a spouse's incurable insanity. When the Philippines
was liberated and the Commonwealth Government was restored, it
ceased to have force and effect and Act No. 2710 again prevailed. From
August 30, 1950, upon the effectivity of Republic Act No. 386 or the 72
New Civil Code, an absolute divorce obtained by Filipino citizens,
whether here or abroad, is no longer recognized.
19
Muslim Code of Personal Laws of the Philippines, Presidential Decree
1083 (1977).
20
Article 26 of the Family Code, as most recently applied in Kondo v. Civil
Registrar General GR No. 223628 March 4, 2020.
21
Philippine Statistics Authority (PSA) [Philippines], and ICF International.
Philippines National Demographic and Health Survey 2013. Manila,
Philippines, and Rockville, Maryland, USA: PSA and ICF International.
Accessed December 20, 2019, https://dhsprogram.com/
pubs/pdf/FR294/FR294.pdf; Philippines National Demographic and
Health Survey 2017. Quezon City, Philippines, and Rockville, Maryland,
USA: PSA and ICF. Accessed December 20, 2019, https://
dhsprogram.com/pubs/pdf/FR347/FR347.pdf.
22
There have been attempts to pass laws for these purposes, among
THE IBP JOURNAL

marriages. Thus it does not have any law which specifically

applies to the children of such relationships. Nor does it have
a law which expressly provides for or recognizes shared
parenting,23 where children are brought up with the love and
guidance of both parents following a separation.
The tender-age presumption
Article 211 of the Family Code establishes the general

rule that the father and the mother shall jointly exercise
parental authority over the persons of their common
children, but “in case of disagreement, the father’s decision
shall prevail, unless there is a judicial order to the contrary.”24
The father’s decision, unless overturned in court, enjoys the
them House Bill 6595, “An Act Recognizing the Civil Partnership of
Couples, Providing for their Rights and Obligations” (October 2017) but
these have not succeeded. The Family Code in Articles 147 and 148
(Property Regimes of Unions Without Marriage) provides for how the
assets acquired by these parties (who must be of opposite sexes) will be
divided at the end of their cohabitation, but does not regulate their
relationship during its subsistence. Neither do these apply to same-sex
relationships.
23
Two laws which established an autonomous region in northern
Philippines encouraged shared parenting - Republic Act 6766 (Providing
for an Organic Act for the Cordillera Autonomous Region – 1989)
provides in Article XVI (Social Justice and Welfare) Section 9 thereof:
“The Regional Government shall promote a harmonious balance
between women’s personal, family and work obligations and their
participation in public life. Shared parenting and homemaking
responsibilities between spouses shall be encouraged.” Article XI (Social
Justice and Welfare), Section 9 of Republic Act 8438 (An Act to Establish
the Cordillera Autonomous Region – 1997) contains a similar provision.
However the Cordillera Autonomous Region did not come to be,
because the majority of the voters in the proposed region rejected
autonomy.
24
The Family Code has other provisions where it is primarily the father
who exercises parental authority over legitimate children: Articles 14
and 78 provides that a person between the ages of 18-21 must secure
parental consent in order to marry and enter into a marriage
settlement/prenuptial agreement. And under Article 96 on the
administration and enjoyment of community property, Article 124 on
the administration and enjoyment of the conjugal partnership, and
Article 225 on the guardianship over the property of unemancipated
children, it is also the father’s decision which shall prevail unless there
is a judicial order to the contrary.

presumption that it is for the child’s best interest.25
In Santos Sr. v. Court of Appeals (1995),26 the Supreme

Court explained the interplay between joint parental
authority and the father’s primacy in Article 211 when it
granted the plea of the petitioner husband estranged from
his wife to obtain custody of their son who was with his
maternal grandparents:
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 children's 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.
xxx
The law vests on the father and mother joint

parental authority over the persons of their
common children. In case of absence or death of
either parent, the parent present shall continue
exercising parental authority. Only in case of the
parents' death, absence or unsuitability may
substitute parental authority be exercised by the
surviving grandparent. The situation obtaining
in the case at bench is one where the mother of
the minor Santos, Jr., is working in the United
States while the father, petitioner Santos, Sr., is
25
Sta. Maria, Melencio. 2015. Persons and Family Relations Law. Quezon
City: Rex Bookstore. p. 831.
26
GR No. 113054 March 16, 1995.
74
THE IBP JOURNAL

present. Not only are they physically apart but

are also emotionally separated. There has been
no decree of legal separation and petitioner's
attempt to obtain an annulment of the marriage
on the ground of psychological incapacity of his
wife has failed.
xxx
We find the aforementioned considerations

insufficient to defeat petitioner's parental
authority and the concomitant right to have
custody over the minor Leouel Santos, Jr.,
particularly since he has not been shown to be
an unsuitable and unfit parent. Private
respondents' demonstrated love and affection
for the boy, notwithstanding, the legitimate
father is still preferred over the grandparents…
Notwithstanding the seemingly patriarchal bias of the

Family Code, its Article 21327 reiterates the tender-age
presumption under Article 363 of the New Civil Code 28, the
27
Art. 213. In case of separation of the parents, parental authority shall
be exercised by the parent designated by the Court. 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.
No child under seven years of age shall be separated from the mother,
unless the court finds compelling reasons to order otherwise.
28
Rule 99, section 6 (Adoption and Custody of Minors) of the Rules
on Special Proceedings contains a similar provision:
"SEC. 6. Proceedings as to child whose parents are separated. Appeal. —
When husband and wife are divorced or living separately and apart from
each other, and the questions as to the care, custody, and control of a
child or children of their marriage is brought before a Court of First
Instance by petition or as an incident to any other proceeding, the court,
upon hearing the testimony as may be pertinent, shall award the care,
custody, and control of each such child as will be for its best interest,
permitting the child to choose which parent it prefers to live with if it
be over ten years of age, unless the parent chosen be unfit to take
charge of the child by reason of moral depravity, habitual drunkenness,
incapacity, or poverty. . . . No child under seven years of age shall be
separated from its mother unless the court finds there are compelling
reasons therefor."

rationale of which, according to the Code Commission, is "…

to avoid a tragedy where a mother has seen her baby torn
away from her No man can sound the deep sorrows of a
mother who is deprived of her child of tender age...”29
The tender-age presumption in Article 213 does not

distinguish between legitimate and illegitimate children,30 but
insofar as legitimate children are concerned, one of the
effects of a decree of legal separation31 is that “…the custody
of the minor children shall be awarded to the innocent
spouse, subject to the provisions of Article 213…” However,
in the absence of a court order granting custody of the child
to the mother, the tender-age presumption does not
supersede the father’s right to joint parental authority and
joint custody over his child.32 In other words, the guilty
spouse cannot be deprived of his inherent right to parental
authority over his children, because a “bad” husband does
not necessarily make a “bad” father.33
Once the child makes a choice pursuant to Article 213,

the court must investigate whether or not the parent chosen
is fit to assume parental authority and custodial
responsibility34; the court is not bound by the child’s choice
of parent if it finds that the same is not for the child’s best
interest.35 Its task of choosing the parent to whom custody
shall be awarded is not a ministerial function to be
determined by a simple determination of the age of a minor
child.36 Because while the tender-age presumption is strong,
29
Pablo-Gualberto v. Gualberto GR No. 154994 June 28, 2005.
30
Masbate v. Relucio GR No. 235498 July 30, 2018. In Gamboa-Hirsch v.
Hirsch GR No. 174485 July 11, 2007 the child’s parents were married to
each other but the Supreme Court overturned the lower court’s award
of joint custody to them, and granted sole custody to the mother
pursuant to the tender-age presumption under Article 213.
31
Under Article 63 of the Family Code. The decree of legal separation does
not dissolve the marriage of the parties.
32
Salientes v. Abanilla GR No. 162734 August 29, 2006.
33
Cang v. Court of Appeals GR No. 105308 September 25, 1998. 76
34
Espiritu v. Court of Appeals GR No. 115640 March 15, 1995.
35
Perkins v. Perkins GR No. 35698 September 12, 1932; Sy v. Court of
Appeals GR No. 124518 December 27, 2007.
36
Espiritu v. Court of Appeals, supra.
THE IBP JOURNAL

it is not conclusive as it can be overcome by "compelling

reasons": For instance, sexual preference or moral laxity
alone does not prove parental neglect or incompetence37.
In fact, a child’s choice of parent under Article 213

shall be considered only in custody disputes between parents
who are married to each other because they are accorded
joint parental authority by Article 211.38 The choice is not
available to an illegitimate child whose mother has sole
parental authority under Article 176, unless she is shown to
be unfit or unsuitable.39 Mothers are entitled to the sole
parental authority of their illegitimate children,
notwithstanding the father’s recognition of such children.40
In Briones v. Miguel (2004),41 the Supreme Court denied

the petition of a father for custody of his illegitimate child
from the latter’s maternal grandparents since the mother
lived and worked in Japan. Nevertheless, the Court opened
the possibility for a father to assume custody over his
illegitimate child:
An illegitimate child is under the sole parental

authority of the mother. In the exercise of that
authority, she is entitled to keep the child in her
company. The Court will not deprive her of
custody, absent any imperative cause showing
her unfitness to exercise such authority and
care.
xxx
Applying Article 213 (paragraph 2) of the Family

Code, the CA awarded the custody of Michael
Kevin Pineda Miguel to his mother, Respondent
Loreta P. Miguel. While acknowledging that
petitioner truly loved and cared for his son and
37
Pablo-Gualberto v. Gualberto, supra.
38
Masbte v. Relucio, supra.
39
Id.
40
Spouses Paet v. Damito GR No. 248406 October 1, 2019.
41
Briones v. Miguel GR No. 156343 October 18, 2004.

considering the trouble and expense he had

spent in instituting the legal action for custody,
it nevertheless found no compelling reason to
separate the minor from his mother. Petitioner,
however, was granted visitorial rights.
xxx
Having been born outside a valid marriage, the

minor is deemed an illegitimate child of
petitioner and Respondent Loreta. Article 176 of
the Family Code of the Philippines explicitly
provides 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." This is
the rule regardless of whether the father admits
paternity.
xxx
David v. Court of Appeals held that the

recognition of an illegitimate child by the father
could be a ground for ordering the latter to give
support to, but not custody of, the child. The law
explicitly confers to the mother sole parental
authority over an illegitimate child; it follows
that only if she defaults can the father assume
custody and authority over the minor. Of course,
the putative father may adopt his own
illegitimate child; in such a case, the child shall
be considered a legitimate child of the adoptive
parent.
There is thus no question that Respondent

Loreta, being the mother of and having sole
parental authority over the minor, is entitled to
have custody of him. She has the right to keep
him in her company. She cannot be deprived of
that right, and she may not even renounce or
transfer it "except in the cases authorized by
THE IBP JOURNAL 78

law."
Not to be ignored in Article 213 of the Family
Code is the caveat that, generally, no child under
seven years of age shall be separated from the
mother, except when the court finds cause to
order otherwise.
Even in Masbate v. Relucio (2018), the Supreme Court

disagreed with the lower court’s decision to grant the father
temporary, albeit limited custody ahead of trial, on the
ground that the same overturned the tender-age
presumption with nothing but the father’s bare allegations.
Yet the Court invoked the child’s best interest when it
recognized the possibility of a father having legal custody
over his illegitimate child in the concept of substitute
parental authority, because it was he who had actual custody
over her:
In the event that Renalyn is found unfit or

unsuitable to care for her daughter, Article 214
of the Family Code mandates that substitute
parental authority shall be exercised by the
surviving grandparent. However, the same Code
further provides in Article 216 that "[i]n default
of parents or judicially appointed guardian, the
following persons shall exercise substitute
parental authority over the child in the order
indicated:"
Article 216. x x x
(1) The surviving grandparent as provided in
Art. 214;
(2) The oldest brother or sister, over twenty-
one years of age, unless unfit or disqualified;
and
(3) The child's actual custodian, over
twenty-one years of age, unless unfit or
disqualified.
x-x-x
It was not disputed that Ricky James was in

actual physical custody of Queenie when

Renalyn left for Manila to pursue her studies
until the instant controversy took place. As such,
Ricky James had already assumed obligations
and enjoyed privileges of a custodial character,
giving him a cause of action to file a case of
habeas corpus to regain custody of Queenie as
her actual custodian.
Indeed, it may be argued that Article 176 of the

Family Code has effectively disqualified the
father of an illegitimate child from exercising
substitute parental authority under Article 216
even if he were the actual custodian of the child
under the premise that no one is allowed to do
indirectly what he is prohibited to do directly.
However, the Court cannot adopt a rigid view,
without running afoul to the overarching
consideration in custody cases, which is the best
interest of the minor…. (emphasis supplied)
The Court ruled that the minor’s best interest demands

that a proper trial be conducted to determine if she had,
indeed, been neglected and abandoned by her mother,
rendering the latter unfit to exercise parental authority over
her. The trial had to adjudicate whether it was in the child’s
best interest that she be in the custody of her father rather
than her grandparents upon whom the law accords a far
superior right to exercise substitute parental authority:
The Court cannot close its eyes to the sad reality

that not all fathers, especially those who have
sired children out of wedlock, have risen to the
full height of a parent's responsibility towards
his offspring. Yet, here is a father of an
illegitimate child who is very much willing to
take on the whole gamut of parenting. He, thus,
deserves, at the very least, to be given his day in
court to prove that he is entitled to regain
custody of his daughter. As such, the CA's order
to remand the case is proper.
THE IBP JOURNAL 80

Shades of shared parenting
To recapitulate, the Philippine Congress has enacted

various laws to safeguard children during their tender years.
On the part of the Supreme Court, in Perez v. Court of

Appeals (1996)42 it recognized the importance of the presence
and participation of both parents in raising their children:
The wisdom and necessity for the exercise of

joint parental authority need not be belabored.
The father and the mother complement each
other in giving nurture and providing that
holistic care which takes into account the
physical, emotional, psychological, mental,
social and spiritual needs of the child. By precept
and example, they mold his character during his
crucial formative years.
It then promulgated the Rule on Custody of Minors and

Writ of Habeas Corpus in relation to Minors (2003),43 which
did not distinguish between legitimate and illegitimate
children. Section 2 of the Rule provides that a verified
petition for child custody may be filed by “any person
claiming such right”. The parties during pre-trial may agree
on the minor’s custody and should they fail to do so, the
court shall issue a provisional order awarding custody of the
minor to, as far as practicable, both parents jointly, and in
any case the court shall consider the best interest of the
minor as well as nine other considerations—the first of which
is any extrajudicial agreement which the parties may have
bound themselves to comply with, and the last of which the
preference of the minor over seven years of age and of
sufficient discernment. After trial, the court shall award the
custody of the minor to the proper party, considering the
minor’s best interests.44
42
Perez v. Court of Appeals GR No. 118870 March 28, 1996.
43
Administrative Matter No. 03-04-04-SC.
44
Id., Sections 12, 13(a), 14, and 18.

On the other hand, in 2003 the Department of Social

Welfare and Development (DSWD) promulgated its
Administrative Order No. 40 or the “Guidelines on the
Implementation of Empowerment and Reaffirmation of
Paternal Abilities (ERPAT)”.45 The Guidelines recognized that
parental roles should “transcend from merely a provider to
shared parenting in order to promote a nurturing
environment to all the members of the family”. It gives
importance and emphasis on the father’s parental roles and
abilities in child-rearing, development, care, and behavior
management, and seeks to eliminate traditional gender role
differentiations. It involves the conduct of community-based
sessions for fathers and the training and organization of
father-leaders and volunteers in the community to facilitate
their collective action and participation in promoting their
important role in the family: To enhance and strengthen their
capabilities in performing familial tasks and responsibilities.
While the Secretariat of the ASEAN reported that

“responsibility for care work is high on women’s
responsibility and there is negligible support from the
governments to promote shared parenting responsibilities”, 46
the report does not contain any findings which specifically
apply to the Philippines.47
45
Republic of the Philippines. Department of Social Welfare and
Development. Administrative Order No. 40, Series of 2003. Guidelines
on the Implementation of Empowerment and Reaffirmation of Paternal
Abilities (ERPAT). Accessed October 5, 2019,
https://www.dswd.gov.ph/issuances/AOs/AO_2003-040.pdf.
46
The ASEAN Secretariat. Projected Gender Impact of the ASEAN
Community, pp. 4, 54, 133. Accessed October 15, 2019,
https://www.asean.org/storage/2015/11/Final-Gender-Dimensions-of-
the-ASEAN-Economic-Community-updated-on-13.03.pdf.
47
Page 53 of the report even states that “The region has a good 82
example in the case of the Philippines where gender mainstreaming has
been institutionalized and implemented and systematically monitored.”
See also pages 171-172: “The Philippines stands at an unequivocal edge
with respect to gender mainstreaming, among the ASEAN Member
States… Gender machinery and gender mainstreaming is at a relatively
mature stage in Philippines…”
THE IBP JOURNAL

In fact, a 2016 UNICEF study48 found that while Filipino

children, particularly adolescents, lacked emotional intimacy
or closeness with their fathers, new data showed that more
adolescents were reporting the presence of their fathers in
their regular activities. It also discovered that the confidence
of Filipino fathers in their ability to parent their child
effectively is a moderating factor in their children’s’ negative
behavior.
Conflict between the tender-age presumption and shared

parenting?
In Dacasin v. Dacasin (2010),49 the Supreme Court had

the occasion to decide an apparent conflict between the
tender-age presumption and shared parenting. The case
involved the child custody agreement entered into by
petitioner, an American and respondent, his former wife who
is a Filipina, whose marriage was dissolved through a petition
for divorce filed by the latter in the US. The Court held that
the agreement was void because it was contrary to Philippine
law since the parties were no longer married under US law
when they executed it, and that their child was below seven
(7) years old and, thus, could not be separated from her
mother:
… Indeed, the separated parents cannot contract

away the provision in the Family Code on the
maternal custody of children below seven years
any more than they can privately agree that a
mother who is unemployed, immoral, habitually
drunk, drug addict, insane or afflicted with a
communicable disease will have sole custody of
a child under seven as these are reasons deemed
compelling to preclude the application of the
48
UNICEF. A Systematic Review of the Drivers of Violence Affecting
Children: The Philippines (October 2016), at page 81. Accessed October
9, 2019, https://www.unicef.org/philippines/media/501/file/National
%20Baseline%20Study%20on%20Violence%20Against%20Children%20in
%20the%20Philippines:%20Systematic%20literature%20review%20of%20
drivers%20of%20violence%20affecting%20children%20.pdf.
49
GR No. 168785 February 5, 2010.

exclusive maternal custody regime under the

second paragraph of Article 213.
The Court further stated that the mother had

repudiated the agreement, and explained that the agreement
would be valid if the parties had not divorced or separated
because, in such a case, Article 211 of the Family Code would
apply. But the Court’s misgivings about the Agreement were
primarily centered on the fact that the parties’ common child
was below seven (7) years old at that time and its mechanical
application of the tender-age presumption:50
It will not do to argue that the second paragraph

of Article 213 of the Family Code applies only to
judicial custodial agreements based on its text
that "No child under seven years of age shall be
separated from the mother, unless the court
finds compelling reasons to order otherwise." To
limit this provision’s enforceability to court
sanctioned agreements while placing private
agreements beyond its reach is to sanction a
double standard in custody regulation of
children under seven years old of separated
parents. This effectively empowers separated
parents, by the simple expedient of avoiding the
courts, to subvert a legislative policy vesting to
the separated mother sole custody of her
children under seven years of age "to avoid a
tragedy where a mother has seen her baby torn
away from her." This ignores the legislative basis
that "[n]o man can sound the deep sorrows of a
mother who is deprived of her child of tender
age."
It could very well be that Article 213’s bias

favoring one separated parent (mother) over the
other (father) encourages paternal neglect,
presumes incapacity for joint parental custody,
robs the parents of custodial options, or hijacks
50
Which it frowned on in Espiritu v. Court of Appeals, supra.
84
THE IBP JOURNAL
decision-making between the separated parents.

However, these are objections which question
the law’s wisdom not its validity or uniform
enforceability. The forum to air and remedy
these grievances is the legislature, not this Court.
At any rate, the rule’s seeming harshness or
undesirability is tempered by ancillary
agreements the separated parents may wish to
enter such as granting the father visitation and
other privileges. These arrangements are not
inconsistent with the regime of sole maternal
custody under the second paragraph of Article
213 which merely grants to the mother final
authority on the care and custody of the minor
under seven years of age, in case of
disagreements.
xxx
Instead of ordering the dismissal of petitioner’s

suit, the logical end to its lack of cause of action,
we remand the case for the trial court to settle
the question of Stephanie’s custody. Stephanie is
now nearly 15 years old, thus removing the case
outside of the ambit of the mandatory maternal
custody regime under Article 213 and bringing it
within coverage of the default standard on child
custody proceedings – the best interest of the
child. As the question of custody is already
before the trial court and the child’s parents, by
executing the Agreement, initially showed
inclination to share custody, it is in the interest
of swift and efficient rendition of justice to allow
the parties to take advantage of the court’s
jurisdiction, submit evidence on the custodial
arrangement best serving Stephanie’s interest,
and let the trial court render judgment. This
disposition is consistent with the settled
doctrine that in child custody proceedings,
equity may be invoked to serve the child’s best
interest. (emphasis ours)

Nevertheless, the Court recognized the desirability of

shared parenting, albeit in cases of children above the age of
seven (7), when it noted that the parties “initially showed
inclination to share custody” when they executed their
agreement.
Indeed, Justice Abad in his Separate Opinion stressed

that such agreements should be valid even if the child is
below seven:
I agree with the reasons that the majority of the

Court gave in support of the decision, except
one. I am uncomfortable with the proposition
that an agreement between the mother and the
father on a joint custody over a child below
seven years of age is void for being contrary to
law and public policy. True, the law provides in
Article 363 of the Civil Code that "No mother
shall be separated from her child under seven
years of age, unless the court finds compelling
reasons for such measure." The State can think
up ways of protecting the child. But the 1987
Constitution acknowledges in Article II, Section
12, the natural and primary right and duty of
parents to nurture their children and that the
State must support them in this respect.
I submit that, in the matter of child custody, the

mutual will of the child’s parents takes
precedence in the absence of circumstances that
justify recourse to the law. The law becomes
relevant, only as a default, if a separated couple
cannot agree on the custody of their child. The
law should not supplant parental discretion or
unnecessarily infringe on parental authority.
xxx
The State ought not to interfere with the right of

parents to bring up their child unless its exercise
THE IBP JOURNAL 86

causes potential harm to him. The State steps in,

through the law, only if there are compelling
reasons to do so. State intrusion is uncalled for
where the welfare of a child is not jeopardized.
xxx
The second paragraph of Article 213 of the

Family Code should not be read as prohibiting
separated couples from agreeing to a custody
arrangement, other than sole maternal custody,
for their child of tender age. The statutory
preference for the mother’s custody comes into
play only when courts are compelled to resolve
custody fights between separated parents.
Where the parents settle the matter out of court
by mutual agreement, the statutory preference
reserved to the mother should not apply.
xxx
Consequently, if separated parents mutually

stipulate to uphold some form of joint authority
over their children of tender age, it cannot in any
way be regarded as illegal or contrary to public
policy. Joint parental authority and custody is
the norm and should be viewed as the more
desirable custody arrangement. It encourages
continuing contact with and involvement of both
parents in the lives of their children. It can only
redound to the minor’s greater well-being and
should thus be favored.
To declare that a joint custody agreement over

minors of tender age contravenes Philippine
laws will only discourage separating couples
from sharing parental duties and
responsibilities. It will render shared parenthood
illegal and unduly promote paternal alienation.
It also presumes that separated parents cannot
cooperate and compromise for the welfare of

their children. It constitutes undue interference

in the parents’ intrinsic right to direct their
relations with their child. (emphasis ours)
The applicability of shared parenting in an Asian, or at

the very least a Southeast Asian setting, is also supported by
a 2018 decision of the Family Justice Courts of Singapore51 in
a child custody case involving resident foreigners:
… The ideal state is understandably for a child

to be in an intact family where he or she lives
with and is lovingly cared for jointly by both
parents. Yet, upon the breakdown of a marriage,
this is simply no longer fully achievable. The
family justice system nevertheless aspires to
achieve the ideal state of affairs for the child, or
the closest to it possible. But to ignore the
realities, including the parental conflict, the
parties’ emotional baggage and the new
dynamics of the various relationships, and
impose in all situations a modified version of the
perceived ideal (such as equal-time shared
parenting or shared care and control) can do
more harm than good. Thus in considering
whether shared care and control would be in the
child’s welfare, the court will have to consider
factors such as that particular child’s needs at
that stage of life, the extent to which the parents
are able to co-operate within such an
arrangement, and whether it is easy for that
child, bearing in mind his or her age and
personality, to live in two homes within one
week.
xxx
It is pertinent to note the view offered by social
51
Tau v. Tat (2018). Accessed October 14, 2019, https://
www.supremecourt.gov.sg/docs/default-source/module-
document/judgement/gd-dca-44-do-2-final-pdf.pdf.
88
THE IBP JOURNAL

science and family law experts that “in an

optimal parenting plan, responsibilities and time
are not allocated according to a principle of
abstract fairness to the parents, but by family
functionality … as it relates to the child’s best
interests,” and taking into account the “needs,
and developmental trajectories of young
children.”
xxx
… whichever party is granted care and control of

Emma, co-parenting between the parties is
always necessary. Experts agree that “[p]arents
who collaborate in childrearing have a positive
effect on their children’s development and well-
being,” and that shared parenting “represents a
key protective factor in (a) helping children
adjust to separation and divorce and (b)
establishing an ongoing healthy family
environment in which to rear children and
facilitate high-quality parenting.”
xxx
The court should always be the last resort in

which to resolve parental disagreements. I also
urged both parties to be reasonable and more
flexible and understanding should either party,
on occasion, require some grace and latitude
with carrying out the orders.
V. REDISCOVERING OUR ROOTS: THE PAST AS THE WAY

TO THE FUTURE
Jose Rizal, who spent a considerable amount of time

studying in Europe, particularly Spain, quoted a Filipino
saying: “Ang hindi marunong lumingon sa pinangalingan ay
hindi makakarating sa paroroonan” – he who does not know
how to look back at where he came from will never get to his

destination. In a Report to the Code Commission, it was said

that:
The Philippines, by its contact with Western

culture for the last four centuries, is a rightful
beneficiary of the Roman law, which is a
common heritage of civilization. For many
generations that legal system as developed in
Spain has been the chief regulator of the juridical
relations among Filipinos. It is but natural and
fitting, therefore, that when the young Republic
of the Philippines frames its new Civil Code, the
main inspiration should be the Roman law as
unfolded and adapted in Spain, France,
Argentina, Germany and other civil law
countries.52
While the private laws of the Philippines and Spain

have developed along different lines, their shared heritage
and commonalities merit more than a passing glance into
how Spanish private law has developed since the Philippine
Civil Code took effect in 1950. Their shared histories should
inspire Philippine legislators and policymakers to, again,
examine Spanish laws and legal traditions, as well as those of
the other countries whose civil codes are also derived from
the Roman law and the Napoleonic Code— all of this for the
purpose of making Philippine family law even more relevant
and responsive to the best interest of children today.
52
Report of the Code Commission, cited in Tolentino Arturo, 1990.
Commentaries and Jurisprudence on the Civil Code of the Philippines.
Volume One with the Family Code of the Philippines. Quezon City:
Central Professional Books Inc. pp. 13-14.
90
THE IBP JOURNAL

THE CHAIN OF CUSTODY RULE IN DRUGS CASES AS
IMPACTED BY THE WAR ON DRUGS: A COMPILATION
AND ANALYSIS OF GOVERNING LAWS AND RECENT
JURISPRUDENCE
Justice Raymond Reynold R. Lauigan*
Abstract
Drug abuse is a worldwide problem. In the

Philippines, it occupies center stage in the
consciousness of the Filipino public because,
upon assuming office in 2016, former President
Rodrigo Duterte launched an unprecedented
campaign against illegal drugs. The
administration's efforts to curb the drug menace
through unrelenting and extensive entrapment
or buy bust operations have resulted in a
renewed focus on the chain of custody rule,
which is designed to establish with moral
certainty the identity of the confiscated drug and
obviates the possibility of planting, switching, or
contaminating evidence. This article humbly
attempts to catalogue and analyze the general
principles of the chain of custody rule, its
*
The author is an Associate Justice of the Court of Appeals. He graduated
Second Honors with a Juris Doctor degree from the Ateneo de Manila
School of Law. He is a member of of the Corps of Professors of the
Philippine Judicial Academy. In 2019, he was awarded by the Society for
Judicial Excellence of the Supreme Court the Chief Justice Ramon
Avanceña Judicial Excellence Award for being an Outstanding Regional
Trial Court Judge of the Philippines. He was likewise conferred the Dangal
ng Bayan Award by the Civil Service Commission Regional Office No. 02.
He was also a recipient of an award from the Philippine Drug Enforcement
Agency for exemplary dedication and incorruptible performance as a
Judge. He was a private practitioner for 17 years, a professor of law for
the last 26 years, and a resource person and lecturer in different for a. He
was the President of the Integrated Bar of the Philippines Cagayan
Chapter when the chapter was declared one of the outstanding chapters
in the country.

THE CHAIN OF CUSTODY RULE IN DRUGS CASES AS IMPACTED BY THE WAR ON
DRUGS: A COMPILATION AND ANALYSIS OF GOVERNING LAWS
AND RECENT JURISPRUDENCE
governing laws, of which there have been
significant updates of late, as well as
jurisprudence prevailing on the subject, which as
expected has markedly proliferated, through the
prism of the government's war against drugs.
I. INTRODUCTION
As our nation stands on the brink of another

presidential election, there is indubitably merit in looking
back at the key policy considerations which have served as
the driving force of the current administration. Among them,
the war on drugs stands out, not only for its pervasiveness
but also for its divisiveness.
In a paper published in 2016 in the Journal of Current

Southeast Asian Affairs,1 it was noted that the high ratings of
the current administration in opinion surveys suggest
widespread popular support for its violent crackdown on
illegal drugs. Pulse Asia's last survey in September 2019
showed the President's performance approval rating at 78%
and trust rating at 74%.2 Although this showed a dip from his
2018 numbers, this is still significantly high especially when
compared to those of the previous presidents helming the
last three administrations.3 Meanwhile, in June 2021, the
Social Weather Stations (SWS) survey showed the President's
net satisfaction rating at +62, which the Office of The
Presidential Spokesperson claims to be the highest net
satisfaction rating of the beginning of a Chief Executive’s
1
Reyes, Danilo Andres, The Spectacle of Violence in Duterte’s “War on
Drugs”, in: Journal of Current Southeast Asian Affairs, 35, 3, 111–137
(2016).
2
Pulse Research Asia, Inc., available at: https://www.pulseasia.ph/
september-2019-nationwide-survey-on-the-performance-and-trust-
ratings-of-the-top-philippine-government-officials/, October 7, 2019.
3
Pia Ranada, Rappler, Duterte may cap term as most popular Philippine 92
president. So what?. available at: https://www.rappler.com
/newsbreak/in-depth/so-what-if-duterte-may-cap-term-as-philippines-
most-popular-president. June 30, 2021.
THE IBP JOURNAL

JUSTICE RAYMOND REYNOLD R. LAUIGAN
final year in office,4 all the more impressive in the midst of

this raging Covid-19 pandemic.
A statistical analysis conducted by the SWS on their

own June 2021 survey showed, however, that those who
perceived the drug war to be “bloody” were less likely to be
satisfied with the President.5 Human rights advocates have
certainly been vocal about their dissent. In a June 2020
report, the United Nation's High Commissioner for Human
Rights (UNHCHR) collected and analysed nearly 900 written
submissions from human rights defenders, journalists, and
trade unionists, as well as the current administration,6 and
concluded that while the legal, constitutional and
institutional framework in the Philippines contains human
rights safeguards, as well as checks and balances, the long-
standing overemphasis on public order and national security
at the expense of human rights has become more acute in
recent years. The report also noted that there have been
strong calls for an international accountability mechanism.7
On 15 September 2021, it appeared that these calls for

accountability were heeded.8 Information that, in various
cases, police may have planted evidence at crime scenes,
produced false or misleading reports or took other measures
to support claims of self-defense proved integral to the
international tribunal’s approval of the commencement of an
investigation into human rights violations in the country. A
4
Office of the Presidential Spokesperson, On the SWS PRRD June 2021
Satisfaction Rating, available at: https://pcoo.gov.ph/OPS-content/on-
the-sws-prrd-june-2021-satisfaction-rating/, September 24, 2021.
5
Pia Ranada, Rappler, Perceived 'decisiveness, diligence' of Duterte key to
his popularity – SWS, available at: https://www.rappler.com/nation/sws-
says-perceived-decisiveness-diligence-duterte-key-popularity, September
24, 2021.
6
Howard Johnson, BBC, Philippines drugs war: UN report criticises
'permission to kill', available at: https://www.bbc.com/news/world-asia-
52917560, June 4, 2020.
7
United Nations High Commissioner for Human Rights, Situation of
human rights in the Philippines, June 29, 2020.
8
International Criminal Court, Situation in the Philippines: ICC Pre-Trial
Chamber I authorises the opening of an investigation, ICC-CPI-20210915-
PR1610, available at: https://www.icc-cpi.int/Pages/item.aspx?
name=PR1610, September 15, 2021.

report from the UNHCHR was cited as basis, stating police
reports showed the repeated recovery of guns bearing the
same serial numbers from different victims in different
locations, suggesting a pattern of planting evidence.9
From a judicial vantage point, this may not come as a

surprise. In fact, the Supreme Court has taken judicial notice
of the planting of evidence by the police in drugs cases,
recently stating thus:
[T]he Court is not unaware that, in some instances,

law enforcers resort to the practice of planting
evidence to extract information or even to harass
civilians. x x x In this connection, the Court reminds
the trial courts to exercise extra vigilance in trying
drug cases, x x x lest an innocent person be made
to suffer the unusually severe penalties for drug
offenses.10
Obviously, the war on drugs is divisive for a reason. As

the illegal drug trade is widely considered as a scourge of our
society,11 anybody who is perceived to be an effective
adversary against it is bound to receive respectable support.
However, it is also common knowledge that there are certain
boundaries when it comes to the policing and prosecution of
crime which most people agree should not be crossed.
Evidence tampering, as exemplified above, and police
brutality and vigilantism are examples of practices widely
considered as beyond the pale. Accordingly, part of the
struggle for law enforcers and legal practitioners, including
police officers, judges, prosecutors, and defense attorneys, is
that they often share the same odium for people who engage
in these drug-related crimes. However, in many instances,
they are called upon to square this sentiment with the need
9
International Criminal Court, Decision on the Prosecutor’s request for
authorisation of an investigation pursuant to Article 15(3) of the Statute,
No. ICC-01/21, September 15, 2021.
10
Michael Casilag vs. People of the Philippines, G.R. No. 213523, March
18, 2021.
11
People of the Philippines vs. Chen Tiz Chang, et.al., G.R. No. 131872-73, 94
February 17, 2000.
THE IBP JOURNAL

to uphold the fundamental rights enshrined in our

Constitution, no matter how unsavory the beneficiaries seem
to be.
In our country, violations of drugs laws are particularly

worrisome because a huge segment of our population is
vulnerable to its evils. The Supreme Court recently noted that
most small-time drug users and retailers turn to illegal
drugs because of poverty or the lack of any opportunity to
better their lives.12 Moreover, the Court has previously taken
judicial notice that the proliferation of illegal drugs threatens
not only the people's well-being, but also that of
the youth and school children who often end up as victims.13
It is no wonder that the war on drugs has become a

disruptive topic in the court of public opinion for the past
several years. People are invested in the subject matter
because, as Justice Minita Chico-Nazario, in the case of People
v. Agulay,14 so aptly described:
Drug addiction has been invariably denounced as

one of the most pernicious evils that has ever
crept into our society. Those who become
addicted to it, not only slide into the ranks of the
living dead, but also become a grave menace to the
law-abiding members of society. Peddlers
of drugs are actually agents of destruction.
More importantly, it has also become an increasingly

thorny and apparently evolving subject matter in our courts
of law.
For one, in last year's ruling in the case of Palencia v.

People,15 the Supreme Court bemoaned the judicial
inefficiency of “planned narcotics operations that net
minuscule amounts of dangerous drugs” which swamp the
12
Palencia y De Asis v. People, G.R. No. 219560, July 1, 2020.
13
Social Justice Society v. Dangerous Drugs Board, G.R. Nos. 157870,
158633 &161658, November 3, 2008.
14
G.R. No. 181747, September 26, 2008.
15
Supra. See Note 12.

judiciary “with cases that barely create a ripple in the anti-
narcotics drive,” and spurred law enforcers to focus their
attention and resources toward capturing the big fish, the
drug cartels and kingpins that supply these dangerous drugs,
instead of just the small fry, the small-time drug users and
retailers.16
True, the administration's unrelenting focus on

eliminating illegal drugs has resulted in a huge uptick in case
filings. In less than a decade, the number of drugs cases have
drastically taken over other crimes, increasing from less than
8,000 in 2009 to more than 70,000 in 2017.17 However, this is
offset by data showing that courts appear to be dismissing
these cases by the thousands. For example, in 2016, of the
68,895 cases the prosecutors filed in court, 2,617 were
dismissed. In 2017, the courts dismissed 5,270 cases out of
the 70,706 cases filed, equivalent to about 7.5%. Often the
main reason for dismissal is technical – that is, failure to
observe procedural requirements, particularly on the chain
of custody of the drugs seized.18
Thus, the Court has also lamented on the apparent

tendency of law enforcement to perpetrate “violations of the
constitutional rights of due process and the
presumption of innocence in the name of peace and order.”19
In several cases decided in 2019, the Court heavily enjoined
“the law enforcement agencies, the prosecutorial service, as
well as the lower courts, to strictly and uncompromisingly
observe and consider the mandatory requirements of the
law on the prosecution of dangerous drugs cases.”20
16
Id.
17
Lian Buan, Rappler, IN CHARTS: Drug cases take over PH courts, have
low disposition rates, available at: https://www.rappler.com/
newsbreak/iq/charts-number-drug-cases-disposition-philippine-courts,
August 28, 2018. Data based on records of the National Prosecution
Service (NPS) under the DOJ.
18
Id.
19
People v. Ordiz, G.R. No. 206767, September 11, 2019. 96
20
People v. Garcia y Suing, G.R. No. 215344, June 10, 2019. See also People
v. Dumanjug y Loreña, G.R. No. 235468, July 1, 2019 and also People v.
Cardenas y Halili, G.R. No. 229046, September 11, 2019.
THE IBP JOURNAL

It is, therefore, apparent that, even as the country

ushers in new leadership, the debate and dissection of the
current administration's war on drugs and how it has
permeated the lives of all Filipinos will most certainly
continue. One cannot ignore the indelible mark it has left on
our judicial system, with the Supreme Court's recent issuance
of the rules on body-worn cameras in response to the rise in
civilian casualties during the implementation of warrants, as
well as the plethora of recent case law generated by the
dramatic increase in drugs cases.
An updated re-examination of the existing laws on the

oft-disregarded Chain of Custody Rule and a review of recent
jurisprudence regarding the Supreme Court's interpretation
and application of said laws appears beneficial. Moreover,
with the current spotlight focused by the international
community on human rights violations in our country, this
analysis should be tethered to basic Constitutional mandates.
Additionally, with the issuance of A.M. No. 21-06-08-SC on
the use of body-worn cameras in the execution of arrest and
search warrants as well as warrantless arrests, a brief foray
into its possible effect on the chain of custody in drugs cases
may also prove useful.
II. THE RULE OF LAW: THE PROTECTION OF

FUNDAMENTAL RIGHTS AS GUARANTEED BY THE
CONSTITUTION.
The standard espoused by the UNHCHR in its 2020

report, that efforts to address criminality and the
proliferation of illicit drugs must be grounded in evidence,
be consistent with the rule of law, and embody full respect
for human rights,21 is noble and at the forefront of the
Supreme Court's recent rulings.
21
Supra. See Note 7.

In People v. Tomawis,22 the Supreme Court pronouncing
thusly:
The role of the Court in the fight against the illegal

drug menace is to ensure that the guilty is
convicted and that the appropriate penalty is
imposed. In the discharge of this task, the Court
must be mindful that the rights of the individual
must, at all times, be safeguarded. As Blackstone's
ratio goes, it is better that 100 guilty persons
should escape than that one innocent person
should suffer.
The Court emphasized that, however noble the

purpose or necessary the exigencies of the campaign against
illegal drugs may be, it is still a governmental action that
must always be executed within the boundaries of law.23
To put things in perspective, the Court in the older case

of Secretary of Justice v. Hon. Lantion,24 eloquently opined
that:
The individual citizen is but a speck of particle or

molecule vis-à-vis the vast and overwhelming
powers of government. His only guarantee against
oppression and tyranny are his fundamental
liberties under the Bill of Rights which shield him in
times of need.
Although the Court later reversed its decision in the

interest of foreign relations, the Court's subsequent
Resolution25 merely deferred the timing but did not negate
the importance of the opportunity of the accused to be heard,
thus the Court's lengthy discourse on due process and the
guaranteed rights of an individual in a democratic society,
viz:
22
G.R. No. 228890, April 18, 2018.
23
Id.
24
G.R. No. 139465, January 18, 2000.
25
G.R. No. 139465, October 17, 2000.
98
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Due process is comprised of two components —

substantive due process which requires the intrinsic
validity of the law in interfering with the rights of
the person to his life, liberty, or property, and
procedural due process which consists of the two
basic rights of notice and hearing, as well as the
guarantee of being heard by an impartial and
competent tribunal.
xxx
One of the basic principles of the democratic

system is that where the rights of the individual
are concerned, the end does not justify the means.
It is not enough that there be a valid objective; it
is also necessary that the means employed to
pursue it be in keeping with the Constitution.
Mere expediency will not excuse constitutional
shortcuts. There is no question that not even the
strongest moral conviction or the most urgent
public need, subject only to a few notable
exceptions, will excuse the bypassing of an
individual's rights. It is no exaggeration to say that
a person invoking a right guaranteed under
Article III of the Constitution is a majority of one
even as against the rest of the nation who would
deny him that right. (citations omitted)
The Constitution itself could not be more clear. Section

14, Article III Bill of Rights of the 1987 Constitution reads:
1. No person shall be held to answer for a criminal

offense without due process of law.
2. In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved,
and shall enjoy the right to be heard by himself and
counsel, to be informed of the nature and cause of
the accusation against him, to have a speedy,
impartial, and public trial, to meet the witnesses
face to face, and to have compulsory process to
secure the attendance of witnesses and the

production of evidence in his behalf. However, after
arraignment, trial may proceed notwithstanding
the absence of the accused: Provided, that he has
been duly notified and his failure to appear is
unjustifiable.
In the more recent case of People v. Que,26 the Court

emphasized that the stringent requirements of our drug laws
are not for stringency's own sake. Rather, these are calibrated
to preserve the even greater interest of due process and the
constitutional rights of those who stand to suffer from the
State's legitimate use of force, and therefore, stand to be
deprived of life, liberty, or property. This calibration ensures
that the need for effective prosecution of those involved in
illegal drugs is balanced with the preservation of the basic
liberties that typify our democratic order.
Furthermore, as with all criminal cases, the quantum

of proof required to warrant a conviction under R.A. No.
9165, otherwise known as the Comprehensive Dangerous
Drugs Act, and its related laws is proof beyond reasonable
doubt. Section 2, Rule 133 of the Rules of Court defines proof
beyond reasonable doubt, to wit:
Sec. 2 . Proof beyond reasonable doubt. — In a

criminal case, the accused is entitled to an
acquittal, unless his or her 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. Moral certainty only is required, or that
degree of proof which produces conviction in an
unprejudiced mind.
The following ruling in People v. Royol27 further sheds

light on this matter, viz:
26
G.R. No. 212994, January 31, 2018.
27
G.R. No. 224297, February 13, 2019.
100
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This rule places upon the prosecution the task of

establishing the guilt of an accused, relying on the
strength of its own evidence, and not banking on
the weakness of the defense of an accused.
Requiring proof beyond reasonable doubt finds
basis not only in the due process clause of the
Constitution, but similarly, in the right of an
accused to be "presumed innocent until the
contrary is proved." "Undoubtedly, it is the
constitutional presumption of innocence that lays
such burden upon the prosecution." Should the
prosecution fail to discharge its burden, it follows,
as a matter of course, that an accused must be
acquitted. As explained in Basilio v. People of the
Philippines:
xxx
The burden of proof is on the prosecution, and

unless it discharges that burden, the accused need
not even offer evidence in his behalf, and he would
be entitled to an acquittal. Proof beyond reasonable
doubt does not, of course, mean such degree of
proof as, excluding the possibility of error, produce
absolute certainty. Moral certainty only is required,
or that degree of proof which produces conviction
in an unprejudiced mind. The conscience must be
satisfied that the accused is responsible for the
offense charged.
Pursuant to this, the Supreme Court in Tolentino v.

People28 thus called for the authorities “to exert greater
efforts in combating the drug menace using the safeguards
that our lawmakers have deemed necessary for the greater
benefit of our society.” The Court added that this actually
“redounds to the benefit of the criminal justice system by
protecting civil liberties and at the same time instilling
rigorous discipline on prosecutors.”29 The constitutional
28
G.R. No. 227217, February 12, 2020.
29
Id.

presumption of innocence of the accused and the
requirement of proof of guilt beyond reasonable doubt thus
compelled the Supreme Court to direct the lower courts to
closely scrutinize the evidence in buy bust cases. 30 Hence,
trial courts must not only determine the presence of the
elements of the offense but likewise evaluate whether there
was compliance by the police operatives with the chain of
custody rule.
III. THE CHAIN OF CUSTODY RULE: RATIONALE,

REQUIREMENTS, EXCEPTIONS, AND GENERAL
PRINCIPLES.
Based on new cases, it can be said that the recent

pattern of blatant disregard for the Chain of Custody Rule
has served as the impetus for the Supreme Court to be even
more emphatic in requiring its strict compliance. The ruling
in Tolentino is but one among many wherein non-compliance
with the requirements of the Chain of Custody Rule justified
the acquittal of the accused.
The significance of Section 21 of R.A. No. 9165 as

amended by R.A. No. 10640, or the Chain of Custody Rule,
cannot be gainsaid. In the aforecited case of Tolentino, the
Court explained:
In the prosecution of drugs cases, the procedural

safeguards that are embodied in Section 21 of R.A.
No. 9165, as amended by R.A. No. 10640, are
material, as their compliance affects the corpus
delicti which is the dangerous drug itself and
warrants the identity and integrity of the
substances and other evidence that are seized by
the apprehending officers.
xxx
30
Id.
102
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The law deserves faithful compliance, especially by

the police officers who ought to have known the
proper procedure in the seizure and handling of the
confiscated items, especially since the small volume
of the suspected drugs made it easier for the items
to be corrupted or tampered with. It is only for
justifiable and unavoidable grounds that deviations
from the required procedure is excused.31
Likewise, in the more recent case of Reyes Jr. vs.

People,32 the Supreme Court repeated anew:
We reiterate that the provisions of Section 21 of RA

No. 9165 embody the constitutional aim to prevent
the imprisonment of an innocent man. The Court
cannot tolerate the lax approach of law enforcers in
handling the very corpus delicti of the crime. Hence,
Reyes must be acquitted of the charges against him
given the prosecution's failure to prove an
unbroken chain of custody.
A more detailed discussion of Section 21 of R.A. No.

9165 or the Chain of Custody Rule is thus in order.
What is Section 21 of R.A. No. 9165 or the Chain of Custody

Rule?
Section 21(1), Article II of R.A. No. 9165 states:
Sec. 21. Custody and Disposition of Confiscated,

Seized, and/or Surrendered Dangerous Drugs, Plant
Sources of Dangerous Drugs, Controlled Precursors
and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory
Equipment. - The PDEA shall take charge and have
custody of all dangerous drugs, plant sources of
dangerous drugs, controlled precursors and
essential chemicals, as well as
31
Id.
32
G.R. No. 244545, February 10, 2021.

instruments/paraphernalia and/or laboratory
equipment so confiscated, seized and/or
surrendered, for proper disposition in the
following manner:
(1) The apprehending team having initial custody

and control of the drugs shall, immediately after
seizure and confiscation, physically inventory and
photograph the same in the presence of the
accused or the person/s from whom such items
were confiscated and/or seized, or his/her
representative or counsel, a representative from the
media and the Department of Justice (DOJ), and any
elected public official who shall be required to sign
the copies of the inventory and be given a copy
thereof[.]
In addition, Section 21(a) of the Implementing Rules

and Regulations (IRR) of R.A. No. 9165 mandates:
(a) The apprehending officer/team having initial

custody and control of the drugs shall, immediately
after seizure and confiscation, physically inventory
and photograph the same in the presence of the
accused or the person/s from whom such items
were confiscated and/or seized, or his/her
representative or counsel, a representative from the
media and the Department of Justice (DOJ), and any
elected public official who shall be required to sign
the copies of the inventory and be given a copy
thereof: Provided, that the physical inventory and
photograph shall be conducted at the place where
the search warrant is served; or at the nearest police
station or at the nearest office of the apprehending
officer/team, whichever is practicable, in case of
warrantless seizures; Provided, further, that
noncompliance with these requirements under
justifiable grounds, as long as the integrity and the
evidentiary value of the seized items are properly
preserved by the apprehending officer/team, shall
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not render void and invalid such seizures of and

custody over said items.
Notably, the following information can be found in the

Implementing Rules but not in Section 21 of the R.A. No.
9165:
a. The place where to conduct the inventory

Provided, that the physical inventory and
photograph shall be conducted at the place where
the search warrant is served; or at the nearest
police station or at the nearest office of the
apprehending officer/team, whichever is
practicable, in case of warrantless seizures[…]
b. The Saving Clause

Provided further, that noncompliance with these
requirements under justifiable grounds, as long as
the integrity and the evidentiary value of the
seized items are properly preserved by the
apprehending officer/team, shall not render void
and invalid such seizures of and custody over said
items.
What is the purpose of the Chain of Custody?
Jurisprudence further defines the chain of custody rule

and highlights that its primary purpose is the authentication
of the illegal drug as an object evidence, viz:
Section 1(b) of Dangerous Drugs Board Regulation

No. 1, Series of 2002, which implements the law
(RA 9265), defines chain of custody as the 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. Such record of movements and
custody of seized item shall include the identity
and signature of the person who held temporary
custody of the seized item, the date and time when
such transfer of custody were made in the course
of safekeeping and use in court as evidence, and
the final disposition.
The chain of custody rule is but a variation of the

principle that real evidence must be authenticated
prior to its admission into evidence. To establish a
chain of custody sufficient to make evidence
admissible, the proponent needs only to prove
a rational basis from which to conclude that the
evidence is what the party claims it to be. In other
words, in a criminal case, the prosecution must
offer sufficient evidence from which the trier of
fact could reasonably believe that an item still is
what the government claims it to be. Specifically,
in the prosecution of illegal drugs, the well-
established federal evidentiary rule in the United
States is that when the evidence is not readily
identifiable and is susceptible to alteration by
tampering or contamination, courts require a more
stringent foundation entailing a chain of custody
of the item with sufficient completeness to render
it improbable that the original item has either been
exchanged with another or been contaminated or
tampered with. This was adopted in Mallillin [sic]
v. People, where this Court also discussed how,
ideally, the chain of custody of seized items
should be established:
As a method of authenticating evidence, the chain

of custody rule requires that the admission of an
exhibit be preceded by evidence sufficient to
support a finding that the matter in question is
what the proponent claims it to be. It would
include testimony about every link in the chain,
from the moment the item was picked up to the
THE IBP JOURNAL 106

time it is offered into evidence, in such a way that

every person who touched the exhibit would
describe how and from whom it was received,
where it was and what happened to it while in the
witness' possession, the condition in which it was
received and the condition in which it was
delivered to the next link in the chain. These
witnesses would then describe the precautions
taken to ensure that there had been no change in
the condition of the item and no opportunity for
someone not in the chain to have possession of the
same.33
The Chain of Custody Rule is, in other words, intended

to prove the corpus delicti in drug cases and to ensure that
the identity of the illegal drug is intact.
In People vs. Dela Cruz,34 the Supreme Court laid down

the elements that must be established to sustain convictions
for illegal sale and illegal possession of dangerous drugs:
In actions involving the illegal sale of dangerous

drugs, the following elements must first be
established: (1) proof that the transaction or sale
took place and (2) the presentation in court of the
corpus delicti or the illicit drug as evidence.
On the other hand, in prosecutions for illegal

possession of a dangerous drug, it must be shown
that (1) the accused was in possession of an item
or an object identified to be a prohibited or
regulated drug, (2) such possession is not
authorized by law, and (3) the accused was freely
and consciously aware of being in possession of
the drug. Similarly, in this case, the evidence of the
corpus delicti must be established beyond
reasonable doubt.
33
People of the Philippines vs. Romy Lim, G.R. No. 231989, September 4,
2018, citing Malillin vs. People, G.R. No. 172953, April 30, 2008.
34
G.R. No. 205821, October 1, 2014.

From the foregoing, proof of the corpus delicti is

essential whether the crime charged is the sale or the
possession of illegal drugs. On describing what constitutes
the corpus delicti or literally, the body of the crime, in drugs
cases, the ruling in the recent case of Tan v. People35 is
instructive, to wit:
In cases involving dangerous drugs, the confiscated

drugs constitute the very corpus delicti of the
offense and the fact of their existence is necessary
to sustain a judgment of conviction. It is essential,
therefore, that the identity and integrity of the
seized drugs be established with moral certainty. In
other words, a conviction cannot be sustained if
there is a persistent doubt as to the identity of the
seized drugs. Apart from showing that the
elements of sale and possession are present, the
fact that the substance illegally sold and possessed
is the same substance offered in court as exhibit
must be established with the same degree of
certitude as that needed to sustain a guilty verdict.
Should the State not definitively establish that the
dangerous drugs presented in court were the very
same substance actually recovered from the
accused, the criminal prosecution for sale or
possession of drugs should fail because the guilt of
the accused was not established beyond reasonable
doubt. The identity of the seized drugs is
established by showing the duly recorded
authorized movements and custody of seized
drugs from the time of seizure or confiscation to
receipt by the investigating officer then turn-over
to the forensic laboratory up to presentation in
court.
In People vs. Patacsil,36 the Supreme Court also stated:
35
G.R. No. 232611, April 26, 2021.
36
G.R. No. 234052, August 6, 2018.
108
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[I]t is essential that the identity of the prohibited

drug be established with moral certainty,
considering that the dangerous drug itself forms
an integral part of the corpus delicti of the crime.
Thus, in order to obviate any unnecessary doubt
on the identity of the dangerous drugs, the
prosecution has to show an unbroken chain of
custody over the same and account for each link in
the chain of custody from the moment the drugs
are seized up to their presentation in court as
evidence of the crime.
Failure to prove the integrity of the corpus

delicti renders the evidence for the prosecution
insufficient to prove the guilt of the accused
beyond reasonable doubt, and hence, warrants an
acquittal. Thus, the Court has required that in
order to establish the identity of the dangerous
drug with moral certainty, the prosecution must be
able to account for each link of the chain of
custody from the moment the drugs are seized up
to their presentation in court as evidence of the
crime.37
Is the chain of custody rule a substantive or procedural

directive?
For the past few years, the Supreme Court has been
resolute about compliance with the Chain of Custody Rule:
The rule is imperative, as it is essential that the

prohibited drug confiscated or recovered from the
suspect is the very same substance offered in
court as exhibit; and that the identity of said drug
is established with the same unwavering
exactitude as that requisite to make a finding of
guilt.38
37
Joel David v. People of the Philippines, G.R. No. 253336, May 10, 2021.
38
People of the Philippines vs. Tamil Selvi Veloo and Chandrar Nadarajan,
G.R. No. 252154, March 24, 2021.

In fact, in Patacsil, the Court stoutly declared this to be

a substantive and not merely a procedural requirement:
It is well-settled that the procedure in Section 21,

Article II of RA 9165 is a matter of substantive law,
and cannot be brushed aside as a simple
procedural technicality; or worse, ignored as an
impediment to the conviction of illegal drug
suspects.39
A similar ruling was rendered in the case of People v.

Barrion,40 to wit:
As a general rule, compliance with the chain of

custody procedure is strictly enjoined as the same
has been regarded "not merely as a procedural
technicality but as a matter of substantive law."
This is because "[t]he law has been crafted by
Congress as safety precautions to address
potential police abuses, especially considering that
the penalty imposed may be life imprisonment."
More recently, in Tumabini v. People,41 the Court, in

upholding the precedence of Section 21 of R.A. No. 9165 due
to its substantive nature over the general remedial provision
of Section 8, Rule 126 of the Revised Rules of Criminal
Procedure, had the opportunity to expound on the subject,
viz:
In determining whether a rule prescribed by the

Supreme Court, for the practice and procedure of
the lower courts, abridges, enlarges, or modifies
any substantive right, the test is whether the rule
really regulates procedure, that is, the judicial
process for enforcing rights and duties recognized
by substantive law and for justly administering
39
Supra. See Note 36.
40
G.R. No. 240541, January 21, 2019.
41
G.R. No. 224495, February 19, 2020.
110
THE IBP JOURNAL

remedy and redress for a disregard or infraction of

them. If the rule takes away a vested right, it is not
procedural. If the rule creates a right such as the
right to appeal, it may be classified as a
substantive matter; but if it operates as a means of
implementing an existing right then the rule deals
merely with procedure.
Here, Congress enacted Sec. 21 of R.A. No. 9165 to

ensure the identity and integrity of the seized
drugs and to prevent tampering thereof. As stated
in People v. Acub, in all prosecutions for violations
of R.A. No. 9165, the corpus delicti is the
dangerous drug itself. Its existence is essential to
a judgment of conviction. Hence, the identity of
the dangerous drug must be clearly established.
Narcotic substances are not readily identifiable. To
determine their composition and nature, they
must undergo scientific testing and analysis.
Narcotic substances are also highly susceptible to
alteration, tampering, or contamination. It is
imperative, therefore, that the drugs allegedly
seized from the accused are the very same objects
tested in the laboratory and offered in court as
evidence. The chain of custody, as a method of
authentication, ensures that unnecessary doubts
involving the identity of seized drugs are removed.
Who has the burden of showing compliance thereto?
Verily, the burden of the prosecution in dangerous

drugs cases is both substantial and unflinching. In line with
the inviolable constitutional rights of the accused to be
presumed innocent and to be accorded due process, the
prosecution in these cases always has the burden of proving
compliance with the procedure outlined in Section 21 of R.A.
No. 9165.42 The Supreme Court has held that:
42
People of the Philippines vs. Mario Manabat, G.R. No. 242947, July 17,
2019.

In the prosecution of drug-related cases, the State
bears not only the burden of proving these
elements, but also of proving the corpus delicti or
the body of the crime. Since the confiscated drug
is the very corpus delicti of the crime, its
preservation must be shown to the satisfaction of
the court, from the seizure and marking thereof
until its submission to the court. In other words,
compliance with the chain of custody rule must be
demonstrated in order to obviate unnecessary
doubts concerning the identity of the evidence.43
Therefore, in order to establish the identity of the

dangerous drug with moral certainty, the prosecution must
be able to account for each link in the chain of custody from
the moment the drugs are seized up to their presentation in
court as evidence of the crime.44
What are the links in the chain of custody?
The links in the chain of custody that must be duly

established are: (1) the seizure and marking, if practicable, of
the illegal drug recovered from the accused by the
apprehending officer; (2) the turnover of the seized illegal
drug by the apprehending officer to the investigating officer;
(3) the turnover of the illegal drug by the investigating officer
to the forensic chemist for laboratory examination; and (4)
the turnover and submission of the illegal drug from the
forensic chemist to the court.45
A. The First Link – seizure and marking of the illegal drug.
Case law describes the first link of the chain of custody

as follows:
43
People of the Philippines vs. Michael Andanar and Mary Jane Garbo, G.R.
No. 246284, June 16, 2021.
44
People of the Philippines vs. Don Emilio Cariño, G.R. No. 233336,
January 14, 2019.
45
Supra. See Note 33. 112
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The first link of the chain of custody is the seizure

and marking of the illegal drug recovered from the
accused, as well as compliance with the physical
inventory and photograph requirements. Marking
is the starting point in the custodial link. It serves
to separate the marked evidence from the corpus
of all other similar or related evidence from the
time they are seized from the accused until they
are disposed, thus, preventing switching, planting
or contamination of evidence. Marking though
should be done in the presence of the
apprehended violator immediately upon
confiscation to truly ensure that they are the same
items which enter the chain of custody. After
marking the seized items, the apprehending team
shall conduct a physical inventory and
photograph the seized items in the presence of the
accused or his representative or counsel, a
representative from the media and the DOJ, and
any elected public official. The purpose of the law
in having these witnesses is to prevent or insulate
against and deter possible planting of evidence.
Failure to comply with this three (3) witness rule,
however, does not ipso facto invalidate or render
void the seizure and custody over the items as
long as the prosecution is able to show that (a)
there is justifiable ground for noncompliance; and
(b) the integrity and evidentiary value of the seized
items are properly preserved.46
Marking
Jurisprudence dictates that the preservation of the

chain of custody applies regardless of whether the
prosecution is brought for a violation of the already repealed
R.A. No. 6425 (the Dangerous Drugs Act of 1972) or the
prevailing law, R.A. No. 9165, which always starts with the
marking of the articles immediately upon seizure. The
46
People of the Philippines vs. SPO1 Alexander Estabillo, G.R. No. 252902,
June 16, 2021.

marking serves to separate the marked articles from the
corpus of all other similar or related articles from the time of
the seizure until disposal thereby obviating the hazards of
switching, "planting," or contamination of the evidence.47
"Marking" means the placing by the apprehending

officer or the poseur-buyer of his/her initials and signature
on the items seized. Marking after seizure is the starting
point in the custodial link; hence, it is vital that the seized
contraband be immediately marked because the succeeding
handlers of the specimens will use the markings as
reference.48
In People v. Sanchez,49 the Supreme Court noted that

Section 21 of R.A. No. 9165 and its implementing rule do not
expressly specify where the "marking" of the seized items in
warrantless seizures should be done in order to ensure that
the evidence seized upon apprehension is the same evidence
subjected to inventory and photography. However, the Court
ratiocinated that to be consistent with the "chain of custody"
rule, the "marking" of the seized items — to truly ensure that
they are the same items that enter the chain and are
eventually the ones offered in evidence — should be done
(1) in the presence of the apprehended violator and
(2) immediately upon confiscation. Furthermore, according
to the Court, this step initiates the process of protecting
innocent persons from dubious and concocted searches, and
of protecting as well the apprehending officers from
harassment suits based on planting of evidence under
Section 29 and on allegations of robbery or theft.50
This ruling was reiterated in People vs. Beran,51 where

the Supreme Court declared that the immediate marking of
the item seized in a buy-bust operation in the presence of the
accused is indispensable to establish its identity in court.
47
Supra. See Note 35.
48
People of the Philippines vs. Anastacio Hementiza, G.R. No. 227398,
March 22, 2017.
49
G.R. No. 175832, October 15, 2008.
50
Id.
51
G.R. No. 175832, October 15, 2008. 114
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More recently, in Jocson vs. People,52 the drug item was

not marked at the place where it was seized. The Supreme
Court, noting the distance between the place of arrest and the
station where the investigating officer marked the item,
observed that the item seized which remained unmarked may
have been exposed to switching, planting, and contamination
en route. Thus, the Court concluded that by the time of
marking, it was no longer certain that what was shown to the
investigating officer was the same item seized from
petitioner. The apprehending officer did not also offer any
justification for this procedural lapse, and the Court thus
ordered Jocson's acquittal.53
Inventory and Photographing
Aside from marking, a list of the seized or recovered

items needs to be prepared. Photographs of the items and the
individuals involved in the operation must also be taken.
Under the law, the phrase "immediately after seizure and
confiscation" means that inventory and photographing was
intended to be made immediately after, or even at, the place
of apprehension. However, if this is not practicable, the rules
do allow that the inventory and photographing be done as
soon as the buy-bust team reaches the nearest police station
or the nearest office of the apprehending officer or team.54
Exceptions to the marking, inventory and photographing

requirements
Despite the foregoing, the Supreme Court has held that

the immediate physical inventory and photograph of the
confiscated items at the place of arrest may be excused when
the safety and security of the apprehending officers and the
witnesses required by law, or of the items seized, are
threatened by immediate or extreme danger - such as
52
Antonio Jocson vs. People of the Philippines, G.R. No. 199644, June 19,
2019.
53
Id.
54
Supra. See Note 22.

retaliatory action of those who have the resources and
capability to mount a counter-assault.55
Moreover, the Court has also emphasized that failure

to comply with the procedures prescribed by Section 21 of
R.A. No. 9165 does not always render void the seizure and
custody of drugs in a buy-bust operation. In one case, the
Court pronounced that the Chain of Custody requirements
were complied with by the marking of the seized items in the
presence of the accused at the PDEA office. In this case, the
marking had to be made there to ensure the safety of the
PDEA officers as there were only six (6) of them who effected
the arrest in a slum area. Thus, marking upon immediate
confiscation has been interpreted to include marking at the
nearest police station, or at the office of the apprehending
team. What is of utmost importance is the preservation of the
integrity and evidentiary value of the seized items because
the same will be utilized in ascertaining the guilt or innocence
of the accused.56
Furthermore, in People vs. Calvelo y Consada,57 marking

was done in the presence of the accused inside a vehicle on
the way to the PDEA Office. As there was also a certificate of
inventory signed by the team leader, and an elected public
official and a media representative were witnesses to the
inventory, the Court opined that it is not “beating any new
path by holding that the failure to undertake the required
photography and immediate marking of seized items may be
excused by the unique circumstances of a case,”58 adding
that:
In People v. Resurreccion, we already stated that

"marking upon immediate confiscation" does not
exclude the possibility that marking can be at the
police station or office of the apprehending team.
In the cases of People v. Rusiana, People v.
Hernandez, and People v. Gum-Oyen, the
55
Supra. See Note 33.
56
G.R. No. 214440, June 15, 2016.
57
G.R. No. 223526, December 6, 2017.
58
Id.
116
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apprehending team marked the confiscated items

at the police station and not at the place of
seizure. Nevertheless, we sustained the conviction
because the evidence showed that the integrity
and evidentiary value of the items seized had been
preserved. To reiterate what we have held in past
cases, we are not always looking for the strict
step-by-step adherence to the procedural
requirements; what is important is to ensure the
preservation of the integrity and the evidentiary
value of the seized items, as these would
determine the guilt or innocence of the accused.
We succinctly explained this in People v. Del
Monte when we held:
We would like to add that noncompliance with

Section 21 of said law, particularly the making of
the inventory and the photographing of
the drugs confiscated and/or seized, will not
render the drugs inadmissible in evidence. Under
Section 3 of Rule 128 of the Rules of Court,
evidence is admissible when it is relevant to the
issue and is not excluded by the law or these rules.
For evidence to be inadmissible, there should be a
law or rule which forbids its reception. If there is
no such law or rule, the evidence must be
admitted subject only to the evidentiary weight
that will [be] accorded it by the courts.
xxx
We do not find any provision or statement in said

law or in any rule that will bring about the non-
admissibility of the confiscated and/or
seized drugs due to noncompliance with Section
21 of Republic Act No. 9165. The issue therefore,
if there is noncompliance with said section, is not
of admissibility, but of weight — evidentiary merit
or probative value — to be given the evidence. The
weight to be given by the courts on said evidence

depends on the circumstances obtaining in each
case. (citations omitted)
Non-exceptions to the requirement of marking, inventory and

photographing
In contrast, the following grounds were not deemed by

the Supreme Court as justifiable: (a) the presence of a crowd
or the bare invocation of inconvenience; (b) being in a Muslim
area; and (c) discretion of the team leader and commotion.
In People. v. Dumanjug, the Supreme Court rejected the

buy-bust team's argument that it failed to conduct the
marking, inventory, photography of the seized drug
immediately at the place of arrest because a crowd of two
hundred (200) people had gathered, allegedly creating a
dangerous environment. The Court emphasized that bare
invocation of inconvenience does not translate to compliance
with the Chain of Custody Rule.59
Moreover, in People v. Sebilleno,60 the Supreme Court

did not mince words in condemning the Solicitor General's
excuse that the inventory was conducted in the police station,
because "the apprehending team would be putting their lives
in peril considering that the area where the buy-bust
operation was conducted is a notorious Muslim community,"
stating thus:
The Office of the Solicitor General, which

represents no less than the Government of the
Philippines in a number of legal matters, ought to
be circumspect in its language. This averment
from the Solicitor General exhibits biased,
discriminatory, and bigoted views; xxx These are
the words that when left unguarded, permeate in
the public's consciousness, encourage further
59
Supra. See Note 43.
People of the Philippines vs. Gilbert Sebilleno, G.R. No. 221457, January
60
13, 2020.
118
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divide and prejudices against the religious

minority, and send this country backward.
xxx
As stressed, the prosecution must not only plead,

but also prove an excusable ground. This Court
fails to see how a Muslim community can be
threatening or dangerous, that would put our law
enforcers' lives to [sic] peril.
Finally, in People v. Manuel de la Rosa,61 the Court

found the following reasons presented by the officers
unpersuasive, viz:
As can be gleaned from the witnesses' testimony,

the excuses they proffered to justify the distant
conduct of the inventory fifty-four (54) kilometers
away from the place of seizure, are: 1) it was the
team leader's discretion to conduct the inventory
in Calapan City; (2) to avoid commotion at the
place of seizure; and (3) they could not secure the
witnesses required by law in the said place.
The Court finds that these excuses are
unmeritorious.
Insulating Witnesses
R.A. No. 9165 and its implementing rules also require

that the marking, inventory and photographing should be
done not only in the presence of the accused but also in the
presence of three witnesses, namely: (a) a representative from
the media, (b) an elective official, and (c) a representative
from the DOJ.
Jurisprudence states that, as the marking, inventory

and photographing must be done at the place of the arrest,
the three required witnesses should already be physically
61
People of the Philippines vs. Manuel de la Rosa, G.R. No. 230228,
December 13, 2017.

present at the time of apprehension - a requirement that can
easily be complied with by the buy-bust team considering
that the buy-bust operation is, by its nature, a planned
activity. Simply put, the buy-bust team has enough time and
opportunity to bring with them said witnesses. In Tomawis,
the Supreme Court explained:
The reason is simple, it is at the time of arrest - or

at the time of the drugs' "seizure and confiscation"
- that the presence of the three witnesses is most
needed, as it is their presence at the time of
seizure and confiscation that would insulate
against the police practice of planting evidence.
xxx
The presence of the witnesses from the DOJ,

media, and from public elective office is necessary
to protect against the possibility of planting,
contamination, or loss of the seized drug. Using
the language of the Court in People v.
Mendoza, without the insulating presence of the
representative from the media or the DOJ and any
elected public official during the seizure and
marking of the drugs, the evils of switching,
"planting" or contamination of the evidence that
had tainted the buy-busts conducted under the
regime of RA 6425 (Dangerous Drugs Act of 1972)
again reared their ugly heads as to negate the
integrity and credibility of the seizure and
confiscation of the subject sachet that was
evidence of the corpus delicti, and thus adversely
affected the trustworthiness of the incrimination
of the accused.
The presence of the three witnesses must be

secured not only during the inventory but more
importantly at the time of the warrantless arrest.
It is at this point in which the presence of the three

witnesses is most needed, as it is their presence at
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the time of seizure and confiscation that would

belie any doubt as to the source, identity, and
integrity of the seized drug. If the buy-bust
operation is legitimately conducted, the presence
of the insulating witnesses would also controvert
the usual defense of frame up as the witnesses
would be able to testify that the buy-bust
operation and inventory of the seized drugs were
done in their presence in accordance with Section
21 of RA 9165.62
Section 21, Article II of RA 9165, clearly outlines the

procedure which the police officers must strictly follow to
preserve the integrity of the confiscated drugs and/or
paraphernalia used as evidence. The provision requires that:
(1) the seized items be inventoried and
photographed immediately after seizure or confiscation; (2)
the physical inventory and photographing must be done in
the presence of: (a) the accused or his/her representative or
counsel, (b) an elected public official, (c) a representative
from the media, and (d) a representative from the
Department of Justice (DOJ), all of whom shall be required to
sign the copies of the inventory and be given a copy of the
same and the seized drugs must be turned over to the PNP
Crime Laboratory within 24 hours from confiscation for
examination.63
The requirement of the presence of insulating

witnesses at the place of apprehension was decreed as early
as the 2016 case of People v. Reyes.64 Here, the Supreme Court
said:
The objective of requiring [the insulating

witnesses’] presence during the buy-bust operation
and at the time of the recovery or confiscation of
the dangerous drugs from the accused in the area
62
Supra. See Note 22.
63
People of the Philippines vs. Dave Claudel, G.R. No. 219852, April 3,
2019.
64
People of the Philippines vs. Jehar Reyes, G.R. No. 199271, October 19,
2016.

of operation was to ensure against planting of
evidence and frame up. It was clear that ignoring
such objective was not an option for the buy-bust
team if its members genuinely desired to protect
the integrity of their operation. Their omission
attached suspicion to the incrimination of the
accused. The trial and appellate courts should not
have tolerated the buy-bust team's lack of
prudence in not complying with the procedures
outlined in Section 21(1), supra, in light of the
sufficient time for them to comply.65
In People v. Malana, as cited recently in Casilag, the

Court emphasized that the presence of the required
witnesses at the time of the inventory is mandatory, and that
the law imposes the said requirement because their presence
serves an essential purpose - to protect against the possibility
of planting, contamination, or loss of the seized drug.66
Exceptions on compliance with the number of insulating

witnesses.
The Supreme Court, however, has previously excused

the lack of one or more witnesses. Anent the absence of a
DOJ representative, the Court in People v. Maralit,67 accepted
that there was simply no prosecutor from the DOJ who was
available to witness the inventory at that very late hour in the
evening. Considering the immediacy of performing the
marking and inventory of seized items which ought not be
delayed, the Court affirmed the verdict of conviction, noting
that during the marking and inventory of the seized items,
there were two (2) barangay officials and one (1) media
representative present. Moreover, the police officers properly
explained the absence of the DOJ official, endeavored to
comply with the mandatory procedure by ensuring the
presence of the other required witnesses, and thus the
integrity and evidentiary value of the seized evidence were
65
Id.
66
Supra. See Note 10.
67
G.R. No. 232381, August 1, 2018.
122
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nonetheless preserved because there were other witnesses to

the marking and inventory of the seized bricks of marijuana.
The aforementioned case of Maralit was also cited

recently in Estabillo, which too resulted in a conviction. 68
Furthermore, in Tolentino, the Court, citing People v. Reyes,
laid out the other justifiable grounds for non-compliance
with the required witnesses such as: (1) media
representatives are not available at that time or that the
police operatives had no time to alert the media due to the
immediacy of the operation they were about to undertake,
especially if it is done in more remote areas; (2) the police
operatives, with the same reason, failed to find an available
representative of the National Prosecution Service; (3) the
police officers, due to time constraints brought about by the
urgency of the operation to be undertaken and in order to
comply with the provisions of Article 125 of the Revised
Penal Code in the timely delivery of prisoners, were not able
to comply with all the requisites set forth in Section 21 of
R.A. 9165.69
Also in Tolentino, citing People v. Sipin, the following

additional grounds were noted: (1) the attendance of the
required witnesses was impossible because the place of
arrest was a remote area; (2) their safety during the inventory
and photograph of the seized drugs was threatened by an
immediate retaliatory action of the accused or any person/s
acting for and in his/her behalf; (3) the elected official
themselves were involved in the punishable acts sought to be
apprehended; (4) earnest efforts to secure the presence of a
DOJ or media representative and an elected public official
within the period required under Article 125 of the Revised
Penal Code prove futile through no fault of the arresting
officers, who face the threat of being charged with arbitrary
detention; or (5) time constraints and urgency of the anti-
drug operations, which often rely on tips of confidential
assets, prevented the law enforcers from obtaining the
68
Supra. See Note 46.
69
Supra. See Note 10.

presence of the required witnesses even before the offenders
could escape.70
Other practices that weaken the First Link
Certain practices also serve to weaken the first link,

resulting in a gap in the chain of custody. For instance,
placing the drugs in the poseur buyer’s pocket after the buy
bust operation and arrest and in bodily keeping the item is a
doubtful, reckless, and suspicious way of ensuring the
integrity of the drug item. In People v. de la Cruz, the Supreme
Court declared that “[e]ven without referring to the strict
requirements of Section 21, common sense dictates that a
single police officer’s act of bodily-keeping the item(s) which
is [sic] at the crux of offenses penalized under the
Comprehensive Dangerous Drugs Act of 2002, is fraught with
dangers.” 71
Instead, the Court has required that aside from

marking, the seized items should be placed in an envelope or
an evidence bag unless the type and quantity of these items
require a different type of handling and/or container. The
evidence bag or container shall accordingly be signed by the
handling officer and turned over to the next officer in the
chain of custody. The purpose of placing the seized item in
an envelope or an evidence bag is to ensure that the item is
secured from tampering, especially when the seized item is
susceptible to alteration or damage.72
Moreover, in People v. Habana,73 the Court also stated

that it is imperative for the officer who seized the substance
from the suspect to place his marking on its plastic container
and seal the same, preferably with adhesive tape that cannot
be removed without leaving a tear on the plastic container. If
the substance is not in a plastic container, the officer should
put it in one and seal the same. This way, the substance
would assuredly reach the laboratory in the same condition
70
Id.
71
G.R. No. 205821, Oct. 1, 2014.
72
Supra. See Note 41.
73
G.R. No. 188900, March 5, 2010.
124
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it was seized from the accused. Further, after the laboratory

technician tests and verifies the nature of the substance in
the container, he should put his own mark on the plastic
container and seal it again with a new seal since the police
officer's seal has been broken. Otherwise, if the sealing of the
seized substance has not been made, this would result in the
ridiculous and inefficient situation wherein the prosecution
would have to present every police officer, messenger,
laboratory technician, and storage personnel, the entire chain
of custody, no matter how briefly one's possession has been.
Each of them has to testify that the substance, although
unsealed, has not been tampered with or substituted while in
his care.74
All told, procedural deviations in marking, inventory,

and photographing as well as the absence or deficiency in the
required witnesses tend to compel the Court to conclude that
that there is a huge gap in the first link of the chain of
custody and can ultimately result in the acquittal of the
accused.
R.A. No. 10640: amending the chain of custody rule and

codifying the alternative place of marking and saving clause.
Effectivity: July 23, 2014
Application to pending cases: if the incident

subject of the case took place after effectivity of
R.A. No. 10640
Salient features:
- it reduced the number of insulating witness to
only two – the elected barangay official AND the
media OR NPS representative
- it made part of statutory law the saving clause
and the alternative place of marking
On July 15, 2014, R.A. No. 10640 was approved to

amend R.A. No. 9165. Essentially, it incorporated the saving
74
Id.

clause as well as the alternative place of marking, inventory,
and photographing—formerly relegated to the implementing
rules and case law, thus:
(1) The apprehending team having initial custody

and control of the dangerous drugs, controlled
precursors and essential chemicals,
instruments/paraphernalia and/or laboratory
equipment shall, immediately after seizure and
confiscation, conduct a physical inventory of the
seized items and photograph the same in the
presence of the accused or the person/s from
whom such items were confiscated and/or seized,
or his/her representative or counsel, with an
elected public official and a representative of the
National Prosecution Service or the media who
shall be required to sign the copies of the inventory
and be given a copy thereof: Provided, That the
physical inventory and photograph shall be
conducted at the place where the search warrant
is served; or at the nearest police station or at the
nearest office of the apprehending officer/team,
whichever is practicable, in case of warrantless
seizures: Provided, finally, That noncompliance of
these requirements under justifiable grounds, as
long as the integrity and the evidentiary value of
the seized items are properly preserved by the
apprehending officer/team, shall not render void
and invalid such seizures and custody over said
items. (Emphasis suppled) 75
The amendment reflects the proponents' recognition

that the strict implementation of the original Section 21 of
R.A. No. 9165 could be impracticable for the law enforcers'
compliance, and that the stringent requirements could
unduly hamper their activities towards drug eradication.76
75
Supra. See Note 33.
76
Supra. See Note 28.
126
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For instance, the Supreme Court noted in Lim, that in

her Sponsorship Speech on Senate Bill No. 2273, which
eventually became R.A. No. 10640, Senator Grace Poe
admitted that "while Section 21 was enshrined in the
Comprehensive Dangerous Drugs Act to safeguard the
integrity of the evidence acquired and prevent planting of
evidence, the application of said section contributed to the
ineffectiveness of the government's campaign to stop
increasing drug addiction and also resulted in the conflicting
decisions of the courts.” Specifically, she noted that
compliance with the rule on witnesses during the physical
inventory is difficult. Media representatives are not always
available, especially in more remote areas. Also, there were
instances where elected barangay officials themselves were
involved in the punishable acts apprehended. In addition, she
observed that the requirement that the inventory be done at
the police station is also very limiting as police stations
appeared to be far from locations where accused persons
were apprehended.
In Lim, the Court also took note of the similar views

shared by Senator Vicente C. Sotto III who stated that the
substantial number of acquittals in drug-related cases due to
the varying interpretations of the prosecutors and the judges
on Section 21 of R.A. No. 9165 reflects the need for "certain
adjustments so that we can plug the loopholes in our existing
law" and "ensure [its] standard implementation." In his Co-
sponsorship Speech, he declared:
Numerous drug trafficking activities can be traced

to operations of highly organized and powerful
local and international syndicates. The presence of
such syndicates that have the resources and the
capability to mount a counter-assault to
apprehending law enforcers makes the
requirement of Section 21(a) impracticable for law
enforcers to comply with. It makes the place of
seizure extremely unsafe for the proper inventory
and photograph of seized illegal drugs.77
77
Supra. See Note 33.

Thus, according to Sotto, Section 21(a) of RA 9165

needs to be amended to address the foregoing situation.
Admitting that the legislature did not realize this in 2002,
Sotto acknowledged that the safety of the law enforcers and
other persons required to be present in the inventory and
photography of seized illegal drugs may be threatened by an
immediate retaliatory action of drug syndicates at the place
of seizure. The place where the seized drugs may be
inventoried and photographed has to include a location
where the seized drugs as well as the persons who are
required to be present during the inventory and photograph
are safe and secure from extreme danger. He therefore
proposed that the physical inventory and taking of
photographs of seized illegal drugs be allowed to be
conducted either in the place of seizure or at the nearest
police station or office of the apprehending law enforcers.
Moreover, non-observance of the prescribed procedures
should not automatically mean that the seizure or
confiscation is invalid or illegal, as long as the law
enforcement officers could justify the same and could prove
that the integrity and the evidentiary value of the seized
items are not tainted.78
Prescinding from the above, it is clear that the

legislature did not intend the saving clause to be applied
indiscriminately. Application of the saving clause requires
justifiable grounds which must be explained and proven by
the prosecution.
In People of the Philippines v. Benjamin Feriol,79 the

Court clarified that the failure of the apprehending team to
strictly comply with the procedure laid out in Section 21 of
RA 9165 and its IRR does not ipso facto render the seizure
and custody over the items as void and invalid, provided that
the prosecution satisfactorily proves that: (a) there is
justifiable ground for non-compliance; and (b) the integrity
and evidentiary value of the seized items are properly
78
Id.
79
G.R. No. 232154, August 20, 2018.
128
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preserved. However, as required in People v. Almorfe, the

Court added that for the above-saving clause to apply, the
prosecution must explain the reasons behind the procedural
lapses, and that the integrity and evidentiary value of the
seized evidence had nonetheless been preserved. Also, the
Court, citing People v. De Guzman, emphasized that the
justifiable ground for non-compliance must be proven as
a fact, because the Court cannot presume what these grounds
are or that they even exist.80
Accordingly, the mere statement of unavailability

without serious attempts and earnest efforts to contact the
witnesses is not a justifiable excuse for their absence. Non-
compliance may only be permitted if the prosecution proves
that the apprehending officers exerted genuine and sufficient
efforts to secure the presence of such witnesses, albeit they
eventually failed to appear. In David v. People,81 the Supreme
Court declared:
While the earnestness of these efforts must be

examined on a case-to-case basis, the overarching
objective is for the Court to be convinced that the
failure to comply was reasonable under the given
circumstances. Thus, mere statements of
unavailability, absent actual serious attempts to
contact the required witnesses, are unacceptable
as justified grounds for noncompliance. These
considerations arise from the fact that police
officers are ordinarily given sufficient time -
beginning from the moment they have received the
information about the activities of the accused
until the time of his arrest - to prepare for a buy-
bust operation, and consequently, make the
necessary arrangements beforehand, knowing
fully well that they would have to strictly comply
with the chain of custody rule.
80
Id.
81
G.R. No. 253336, May 10, 2021. See also Amroding Lindongan vs. People
of the Philippines, G.R. UDK 16615, February 15, 2021.

B. The Second Link – The turn-over of the illegal drug to the

Investigator.
The second link in the chain of custody pertains to the

turnover of the illegal drug seized by the apprehending
officer to the investigating officer. This is a necessary step as
it is the investigating officer who shall conduct the proper
investigation and prepare the necessary documents for the
developing criminal case.82
In line with this, the Supreme Court has required that

the identity of such investigating officer to whom possession
of the seized drugs were turned over should be properly
established.83
This was reiterated by the Court in the recent case of

People v. Del Rosario,84 wherein it held that:
The second link in the chain of custody is the

transfer of the seized drugs by the apprehending
officer to the investigating officer. The
investigating officer shall conduct the proper
investigation and prepare the necessary
documents for the proper transfer of the evidence
to the police crime laboratory for testing. Thus, the
investigating officer's possession of the seized
drugs must be documented and established.
Here, the name of the investigator was neither

identified nor mentioned by the prosecution. SPO1
Naredo failed to specify the person to whom he
turned over the seized items upon reaching the
police station. It was merely stated that "the police
officers prepared a request for laboratory
examination and drug testing." However, the
specific person who handled the seized items for
82
Supra. See Note 46.
83
People of the Philippines vs. Arturo Enriquez, G.R. No. 197550,
September 25, 2013.
84
G.R. No. 235658, June 22, 2020.
130
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the preparation of the required documents was not

named in the records. When the apprehending
officer is unable to identify the investigating
officer to whom he turned over the seized items,
this Court has held that such circumstance, when
taken in light of the several other lapses in the
chain of custody that attend the case, raises
doubts as to whether the integrity and evidentiary
value of the seized illegal drugs had been
preserved.
Exception to the Second Link
When the investigating officer and apprehending

officer is one and the same person, the Supreme Court has
considered the chain of custody intact. In People v. Siaton,85
based on the testimonies of the witnesses, the police officer
who served as poseur-buyer took possession of the seized
shabu. The same police officer turned the seized substance
over to the forensic laboratory for testing. In other words, the
seized substance did not change hands. According to the
Supreme Court, in this sense, it can be said that there was no
break in the 2nd link.”86
C. The Third Link – the turn-over of the illegal drug to the

Forensic Chemist for laboratory examination.
The third link in the chain of custody is the delivery by

the investigating officer of the illegal drug to the forensic
chemist at the forensic laboratory. Once in the laboratory, it
will be the forensic chemist or the laboratory technician who
will test and verify the nature of the substance.87
Failure to show how the illegal drug was handled after

turn over to the laboratory and prior to examination by the
forensic chemist has been held by the Supreme Court to be a
85
G.R. No. 208353, July 4, 2016.
86
Id.
87
Supra. See Note 84.

fatal flaw and that such a glaring gap in the chain of custody
tainted the integrity of the corpus delicti.88
Furthermore, in the aforecited case of Del Rosario, the

Court found the prosecution's case wanting for lack of
informative details as regards the third link, viz:
Here, SPO1 Naredo testified that he was with PO1

Cruz when the latter delivered the seized items to
SPO1 Agustin of the crime laboratory. Thus, there
was an apparent transfer of the seized items from
SPO1 Naredo to PO1 Cruz. As can be gleaned from
SPO1 Naredo's testimony, however, no informative
details were provided as to how, and at what point,
the seized items were handed to PO1 Cruz, who
was not even a member of the buy-bust team.
There was also lack of information on the
condition of the seized items when SPO1 Naredo
transmitted the same to PO1 Cruz and when PO1
Cruz delivered it to SPO1 Agustin. Further, there
was no documentary evidence indicating SPO1
Agustin's actual receipt of the seized items and
how the latter handled the same upon his receipt
thereof before transmitting the same to FC
Rodrigo for forensic examination.89
Exception to the Third Link
In Estabillo, the Court held that the non-presentation of

the receiving officer of the crime laboratory was justified
because the drug items, consisting of bricks of cocaine
wrapped in masking tape and distinctly marked and signed
prior to submission to the crime laboratory, was not
susceptible to alteration and tampering due to its physical
characteristics and dissimilarity in form to ordinary
substances used in daily activities. While strict adherence to
Section 21 is required where the quantity of illegal drugs
seized is miniscule since it is highly susceptible to planting,
88
Supra. See Note 43.
89
Supra. See Note 84.
132
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tampering, or alteration of evidence, it was not made

applicable by the Court here because appellant was caught
with four (4) bricks of cocaine weighing about one (I) kilo
each.90
D. The Fourth Link – Turn over by Forensic Chemist to the

Court.
The final link in the chain of custody is the turnover

and submission of the seized items by the forensic chemist
to the court.91 The requirement includes testimony on how
the forensic chemist handled the specimen after
examination, stored, and retrieved the same before it was
presented in court.
In People v. Andanar, the Supreme Court ruled that

“[a]bsent any testimony regarding the management, storage,
and preservation of the illegal drug allegedly seized herein
after its qualitative examination, the fourth link in the chain
of custody of the said illegal drug could not be reasonably
established.”92
To properly establish the fourth link, the Supreme

Court in People v. Omamos93 held that the forensic chemist
should testify “on the details pertaining to the handling and
analysis of the dangerous drug submitted for examination i.e.
when and from whom the dangerous drug was received; what
identifying labels or other things accompanied it; description
of the specimen; and the container it was in. Further, the
forensic chemist must also identify the name and method of
analysis used in determining the chemical composition of the
subject specimen.”94
Moreover, the non-presentation of the evidence custodian

has also been considered by the Court as a breach in the
90
Supra. See Note 46.
91
Id.
92
Supra. See Note 43.
93
G.R. No. 223036, July 10, 2019.
94
Id.

fourth link. In People v. Alon-Alon,95 the forensic chemist
testified that she received the specimen from their receiving
clerk, and then she turned it over to the evidence custodian
for safekeeping after her examination thereof. She likewise
retrieved the same from the evidence custodian before
presenting it in court. However, the evidence custodian was
not presented in court in clear disregard of the mandate that
every link in the chain must testify, describing the condition
of the seized item when it was delivered, and the precautions
taken to ensure its integrity. The Court ruled that the
foregoing facts show a breach in the link of the chain of
custody, casting doubt as to the integrity of the seized item.96
Stipulation as to the testimony of the forensic chemist
However, in certain cases, the Court has allowed

stipulation by the parties to dispense with the attendance
and testimony of the forensic chemist, subject to certain
conditions.97
In People of the Philippines v. Gregorio Villalon, Jr.,98 the

Supreme Court discussed the requirements for the forensic
chemist's stipulated testimony to be acceptable and the
consequence of non-compliance thereto, to wit:
Should the parties opt to stipulate and dispense

with the attendance of the forensic chemist, the
Court clarified in People v. Ubungen that "it should
be stipulated that the forensic chemist would have
testified that he took the precautionary steps
required in order to preserve the integrity and
evidentiary value of the seized item, thus: (1) the
forensic chemist received the seized article as
marked, properly sealed, and intact; (2) he resealed
it after examination of the content; and (3) he
placed his own marking on the same to ensure that
95
G.R. No. 237803, November 27, 2019.
96
Id.
97
People of the Philippines vs. Marciano Ubungen, G.R. No. 225497, July
23, 2018.
98
G.R. No. 249412, March 15, 2021. 134
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it could not be tampered pending trial." Here, the

parties' . . stipulation did not mention that any one
of these precautionary steps were in fact done by
the forensic chemist, from the time he received the
seized items for laboratory examination and
before they were delivered to the trial court for
identification, leaving a gap in the chain of custody
of said seized items. Clearly, absent any of the
afore-mentioned conditions, the fourth link in the
chain of custody of the said illegal drug could not
be reasonably established.
Accordingly, since the prosecution failed to
account for the fourth link in the chain of custody
of the items purportedly seized from accused
appellant, its integrity and evidentiary value were
already compromised, thereby warranting
accused-appellant's acquittal.
In fact, the failure to include in the stipulations that the

forensic chemist received the seized drugs intact, marked,
and properly sealed; that the forensic chemist resealed the
drug items after examination of the content; and, that the
forensic chemist placed his own marking on the drug items
constituted a huge gap in the chain of custody of the seized
drugs.99
Absent the required stipulations which are designed to

ensure that the drugs seized could not be tampered with
pending trial, the fourth link cannot be established, thus,
resulting in acquittal of the accused.100
In Del Rosario, the Court found that there was no

testimonial or documentary evidence on how the forensic
chemist kept the seized items while it was in her custody and
in what condition the items were in until it was presented in
court. While the parties stipulated on the forensic chemist's
testimony, the stipulations did not provide information
99
Ramel de Guzman vs. People of the Philippines, G.R. No. 246327,
January 13, 2021.
100
People of the Philippines vs. Manolito Rivera, G.R. No. 252886, March
15, 2021.

regarding the condition of the seized item while in her
custody or if there was no opportunity for someone not in
the chain to have possession thereof. Therein, the Court
mentioned that, in the case People v. Gutierrez, the absence
of precautions taken to ensure that there was no change in
the condition of the object and no opportunity for someone
not in the chain to have possession thereof resulted in the
acquittal of the accused. Accordingly, the Court also
acquitted Del Rosario.101
Exception to the fourth link
The non-presentation of the evidence custodian is not

fatal as long as it is shown that the identity and integrity of
the drug item was properly preserved. In the recent case of
People v. Guarin,102 the Supreme Court taking its cue from the
cases of People v. Amansec, People v. Hernandez, and People
v. Zeng Hua Dian, noted that “the non-presentation as
witnesses of the evidence custodian and the officer on duty,
should not be taken against the prosecution. The matter of
presentation of witnesses by the prosecution is not for the
court to decide. The prosecution has the discretion as to how
to present its case and it has the right to choose whom it
wishes to present as witnesses.” While it was not shown to
whom the seized drugs were transferred by the forensic
chemist after his laboratory examinations, the prosecution
was able to sufficiently show that the identity, integrity and
probative value of the seized drugs had been properly
preserved. Thus, the Supreme Court affirmed the Court of
Appeals' ruling that the chain of custody of the seized drugs
had not been broken.103
Necessity to Comply with all the links; The Presumption of

Regularity cannot apply when there is a break in the Chain of
Custody.
101
Supra. See Note 84.
102
G.R. No. 252857, March 18, 2021.
103
Id.
136
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Establishing every link in the chain of custody is crucial

to the preservation of the integrity, identity, and evidentiary
value of the seized illegal drug. Any gap or break in the chain
of custody would create doubts on the identity of the drug
item and thus tarnish the credibility of the corpus delicti.104
Failure to demonstrate compliance with even just one

of these links creates reasonable doubt that the substance
confiscated from the accused is the same substance offered
in evidence.105 In other words, the inability of the prosecution
to establish with moral certainty the identity and the
unbroken chain of custody of the dangerous drugs seized
warrants a verdict of acquittal.106 Furthermore, if no
justifiable reason exists or was presented by the prosecution
to deviate from the chain of custody requirements, it is the
court's bounden duty to acquit the accused or overturn his
conviction.107
Hence, in Tolentino, the Supreme Court declared:
In People v. Relato, the Court explained that in a

prosecution of the sale and possession of
dangerous drugs prohibited under R.A. No. 9165,
the State not only carries the heavy burden of
proving the elements of the offense, but also bears
the obligation to prove the corpus delicti, failing in
which the State will not discharge its basic duty of
proving the guilt of the accused beyond reasonable
doubt. It is settled that the State does not establish
the corpus delicti when the prohibited substance
subject of the prosecution is missing or when
substantial gaps in the chain of custody of the
prohibited substance raise grave doubts about the
authenticity of the prohibited substance presented
as evidence in court. Any gap renders the case for
the State less than complete in terms of proving
the guilt of the accused beyond reasonable doubt.
104
Supra. See Note 26.
105
Supra. See Note 98.
106
Supra. See Note 43.
107
Supra. See Note 36.

xxx
However, when there is gross disregard of the

procedural safeguards prescribed in the
substantive law (R.A. [No.] 9165), serious
uncertainty is generated about the identity of the
seized items that the prosecution presented in
evidence. This uncertainty cannot be remedied by
simply invoking the presumption of regularity in
the performance of official duties, for a gross,
systematic, or deliberate disregard of the
procedural safeguards effectively produces an
irregularity in the performance of official duties.
As a result, the prosecution is deemed to have
failed to fully establish the elements of the crimes
charged, creating reasonable doubt on the
criminal liability of the accused.
x x x These lapses effectively produced serious

doubts on the integrity and identity of the corpus
delicti, especially in the face of allegations of
frame-up. Thus, for the foregoing reasons, we
must resolve the doubt in favor of accused-
appellant, "as every fact necessary to constitute
the crime must be established by proof beyond
reasonable doubt."108
Certainly, courts cannot merely rely on the

presumption of regularity especially if there are deviations
from the chain of custody rule. The Supreme Court has
clarified that the presumption of regularity in the
performance of official duties is simply just that—a mere
presumption that is disputable and can be overcome by
contrary proof. Also, such presumption of regularity cannot
prevail over the stronger presumption of innocence in favor
of the accused.109
Supra. See Note 28.

108
Perly Tuates vs. People of the Philppines, G.R. No. 230789, April 10,
109
2019. See also Supra, Note 32.

138
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In Tomawis, the Supreme Court further explained:
The uncertainties and inconsistencies in the

testimony of the buy bust team and lack of
information at specific stages of the seizure,
custody, and examination of the seized drugs
creates doubt as to the identity and integrity
thereof.
However, in drugs cases, more stringent standards

must be used for the presumption of regularity to
apply. The presumption should arise only when
there is a showing that the apprehending
officer/buy-bust team followed the requirements
of Section 21, or when the saving clause may be
properly applied. Gaps in the chain of custody
cannot be filled in by the mere invocation of the
presumption of regularity.
Judicial reliance on the presumption of regularity

in the performance of official duty despite the
lapses in the procedures undertaken by the agents
of the law is fundamentally unsound because the
lapses themselves are affirmative proofs of
irregularity. In People v. Enriquez, the Court held:
x x x [A]ny divergence from the prescribed

procedure must be justified and should not affect
the integrity and evidentiary value of the
confiscated contraband. Absent any of the said
conditions, the noncompliance is an irregularity, a
red flag, that casts reasonable doubt on the
identity of the corpus delicti. (Emphasis
supplied) 110
Reason for strictness in the application of the Chain of Custody

Rule.
110
Supra. See Note 22. See also Supra, Note 38.

The ruling in the recent case of Veloo is instructive

where the Court, citing Mallillin v. People, reiterated that the
strict application of the Chain of Custody Rule is dictated by
“the exhibit's level of susceptibility to fungibility, alteration
or tampering.” Also, the Court observed that "the likelihood
of tampering, loss or mistake with respect to an exhibit is
greatest when the exhibit is small."111
Similarly, in Tomawis, the Court, also basing from

Mallillin, noted that the “unique characteristic of narcotic
substances is that they are not readily identifiable as in fact
they are subject to scientific analysis to determine their
composition and nature. The Court cannot reluctantly close
its eyes to the likelihood, or at least the possibility, that at
any of the links in the chain of custody over the same there
could have been tampering, alteration or substitution of
substances from other cases by accident or otherwise in
which similar evidence was seized or in which similar
evidence was submitted for laboratory testing.”112
Furthermore, in Que, the Court commented on the

indistinguishable nature of most illegal drugs, since they can
be mistaken for common household items, viz:
Fidelity to the chain of custody requirements is

necessary because, by nature, narcotics may easily
be mistaken for everyday objects. Chemical
analysis and detection through methods that
exceed human sensory perception, such as
specially trained canine units and screening
devices, are often needed to ascertain the presence
of dangerous drugs. The physical similarity of
narcotics with everyday objects facilitates their
adulteration and substitution. It also makes
planting of evidence conducive.113
111
Supra. See Note 38.
112
Supra. See Note 22
113
Supra. See Note 26.
140
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The Supreme Court has thus cautioned that the sheer

ease of planting drug evidence coupled with the severity of
the imposable penalties in drugs cases compels strict
compliance with the chain of custody rule. For perspective,
at least twelve years and one day of imprisonment is imposed
for unauthorized possession of dangerous drugs even for the
most minute amount. It, thus, becomes inevitable that
safeguards against abuses of power in the conduct of buy-
bust operations be strictly implemented. This includes strict
adherence to the chain of custody rule.114
The Saving Clause: A closer look.
On the other hand, acknowledging that the perfect

chain of custody is almost always impossible to achieve, the
Supreme Court in Tolentino held that minor lapses or
deviations from the rule may be allowed, as long as it can be
shown by the prosecution that the arresting officers put in
their best effort to comply with the same and the justifiable
ground for non-compliance is proven as a fact.115 The Court
further discussed:
In the recent case of People v. Lim, the Court,

speaking through now Chief Justice Diosdado M.
Peralta, reiterated that testimonies of the
prosecution witnesses must establish in detail that
earnest effort to coordinate with and secure the
presence of the required witnesses was made. In
addition, it pointed out that given the increasing
number of poorly built up drug-related cases in the
courts' docket, Section 1 (A.1.10) of the Chain of
Custody IRR should be enforced as a mandatory
policy. The pertinent portions of the decision reads:
To conclude, judicial notice is taken of the fact that

arrests and seizures related to illegal drugs are
typically made without a warrant; hence, subject to
114
Supra. See Note 52.
115
Supra. See Note 28.

inquest proceedings. Relative thereto, Sections 1
(A.1.10) of the Chain of Custody [IRR] directs:
A.1.10. Any justification or explanation in cases of
non-compliance with the requirements of Section
21 (1) of R.A. No. 9165, as amended, shall be clearly
stated in the sworn statements/affidavits of the
apprehending/seizing officers, as well as the steps
taken to preserve the integrity and evidentiary
value of the seized/confiscated items. Certification
or record of coordination for operating units other
than the PDEA pursuant to Section 86 (a) and (b),
Article IX of the IRR of R.A. No. 9165 shall be
presented.
The amendment then substantially included the

saving clause that was actually already in the IRR of
the former Section 21, indicating that non-
compliance with the law's requirements under
justifiable grounds, as long as the integrity and the
evidentiary value of the seized items are properly
preserved by the apprehending officer/team, shall
not render void and invalid seizures and custody
over confiscated items.116
Moreover, the Supreme Court even went further to

state that even in the absence of evidence showing justifiable
ground, such does not necessarily render the arrest illegal or
make the seized items inadmissible as long as the integrity
and evidentiary value of the items are preserved, viz:
Numerous times this Court did not hesitate to

acquit the accused for unjustified failure of law
enforcement officers to strictly comply with
Section 21 of Republic Act (R.A.) No. 9165, or the
Comprehensive Dangerous Drugs Act of 2002.
However, just as compliance therewith will not
automatically result in conviction, failure to
strictly comply therewith will not automatically
result in acquittal, for as long as the saving clause
116
Id.
142
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in the law's Implementing Rules and Regulations

(IRR) is triggered.
Nevertheless, We have also ruled that failure to

strictly comply with Section 21 does not
necessarily render the seized items inadmissible
as long as there is a justifiable ground therefor,
and as long as the integrity and the evidentiary
value of the confiscated/seized items are properly
preserved by the apprehending team. Our
pronouncement in People v. Campomanes, et al. is
instructive: Although Section 21(1) of R.A. No.
9165 mandates that the apprehending team must
immediately conduct a physical inventory of the
seized items and photograph them, non-
compliance with said section 21 is not fatal as long
as there is a justifiable ground therefor, and as
long as the integrity and the evidentiary value of
the confiscated/seized items are properly
preserved by the apprehending team. Thus, the
prosecution must demonstrate that the integrity
and evidentiary value of the evidence seized have
been preserved. We note that nowhere in the
prosecution evidence does it show the "justifiable
ground" which may excuse the police operatives
involved in the buy-bust operation in the case at
bar from complying with Section 21 of Republic
Act No. 9165, particularly the making of the
inventory and the photographing of the drugs and
drug paraphernalia confiscated and/or seized.
However, such omission shall not render accused-
appellant's arrest illegal or the items seized/
confiscated from him as inadmissible in evidence.
In People v. Naelga, We have explained that what
is of utmost importance is the preservation of the
integrity and the evidentiary value of the seized
items because the same will be utilized in
ascertaining the guilt or innocence of the
accused.117
117
Supra. See Note 38.

For example, in the aforecited case of Veloo, the weight

of items seized precluded the possible alteration or
tampering thereof:
In the present case, we note that the total amount

of drugs recovered from the Di bola bag alone, i.e.,
four (4) kilos, is hardly miniscule and that the
drugs were found packed in heat-sealed
containers, thus minimizing the risk of tampering,
loss or mistake.118
Similarly, in Estabillo the Court considered the nature

of the evidence and ruled that:
Indeed, strict adherence to Section 21 is required

where the quantity of illegal drugs seized is
miniscule, since it is highly susceptible to planting,
tampering or alteration of evidence. But this is not
the case here where appellant was caught with
four (4) bricks of cocaine weighing about one (I)
kilo each. What makes the seized items here even
more peculiar was that they were wrapped in
masking tape and distinctly marked during the
operation with LPP 06152315 2010, LPPl 06152315
2010, LPP2 06152315 2010 and LPP3 06152315
2010 together with the signature of the arresting
officers. Photos of these four (4) bricks were also
taken, allowing confirmation on whether the same
bricks of cocaine seized from appellant landed on
the hands of PSI Ballesteros. This would not have
been possible had the case involved miniscule
amounts.119
Still, the foregoing cases appear to be exceptions to the

norm. In both, the illegal drug seized a) was of considerable
size, b) packaged in such a way that it could not be easily
118
Id.
119
Supra. See Note 46.
144
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tampered with, and c) distinctly identifiable from other

items.
As a general rule, the following conditions are required

to trigger the saving clause:
1. The prosecution has the burden of proving as a fact that:

a. Earnest efforts were exerted to comply with the
procedural requirements;
b. There is a justifiable cause for non-compliance; and,
the integrity and identity of the illegal drug was
preserved through steps taken by the police officers.
2. The prosecution has acknowledged, adequately explained

the non-compliance and that the police officers alleged in
their affidavit the deviation from the chain of custody and
the reasons therefor.
The above requirements have been comprehensively

explained and described by the Supreme Court in Lim and
Patacsil. In sum, the Court requires a justifiable reason, and
in the absence thereof, that no less than genuine and
sufficient efforts were exerted by the apprehending officers
to follow the prescribed procedure.120 The justification or
earnest efforts cannot be presumed but must be proven as a
fact.121 Recently, in Casilag, the Court reminded that the rules
require that the apprehending officers do not simply mention
a justifiable ground, but also clearly state this ground in their
sworn affidavit, coupled with a statement on the steps they
took to preserve the integrity of the seized items.122
The mandatory requirements for such affidavit or

sworn statement of the apprehending officers were laid down
by the Supreme Court in Lim, to wit:
1. In the sworn statements/affidavits, the

apprehending/seizing officers must state their
120
Supra. See Note 37.
121
Supra. See Note 38.
122
Supra. See Note 10.

compliance with the requirements of Section 21
(1) of R.A. No. 9165, as amended, and its IRR.
2. In case of non-observance of the provision, the
apprehending/seizing officers must state the
justification or explanation therefor as well as the
steps they have taken in order to preserve the
integrity and evidentiary value of the seized/
confiscated items.
3. If there is no justification or explanation
expressly declared in the sworn statements or
affidavits, the investigating fiscal must not
immediately file the case before the court. Instead,
he or she must refer the case for further
preliminary investigation in order to determine
the (non) existence of probable cause.
4. If the investigating fiscal filed the case despite
such absence, the court may exercise its discretion
to either refuse to issue a commitment order (or
warrant of arrest) or dismiss the case outright for
lack of probable cause in accordance with Section
5, Rule 112, Rules of Court.123
Significantly, the saving clause or the rule that excuses

strict adherence to the mandatory requirements of Section
21(1) of R.A. No. 9165, as amended, and its IRR applies not
just on arrest and/or seizure by reason of a legitimate buy-
bust operation but also on those lawfully made in air or sea
port, detention cell or national penitentiary, checkpoint,
moving vehicle, local or international package/parcel/mail,
or those by virtue of a consented search, stop and frisk (Terry
search), search incident to a lawful arrest, or application of
plain view doctrine where time is of the essence and the
arrest and/or seizure is/are not planned, arranged or
scheduled in advance.124
123
Supra. See Note 33.
124
Id.
146
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IV. UPDATES AND TRENDS ON THE CHAIN OF CUSTODY

RULE
The issuance of A.M. No. 21-06-08-SC
On 29 June 2021, the Supreme Court en banc issued

A.M. No. 21-06-08-SC, or the Rules on the Use of Body-Worn
Cameras in the Execution of Warrants, specifically in
response to the increasing clamor of lawyers and human
rights advocates groups for the Court to address increasing
reports of civilian deaths resulting from the execution of
warrants by the trial courts and the planting of evidence.
Upon its effectivity, law enforcement officers are now

required to use a minimum of two devices (one body-worn
camera and one alternative recording device) to capture
relevant incidents during the execution of both arrest 125 and
search126 warrants as well as during warrantless arrests,
insofar as practicable.127
However, as to dangerous drugs cases, the Rules

explicitly do not have any bearing on the testimonies of
witnesses to properly establish the different links of the
chain of custody since Rule 4, Section 8 thereof states that:
Section 8. Recordings Not a Substitute for

Witnesses- For evidentiary purposes, the
recordings captured by body-worn cameras or
alternative recording devices are suppletory to the
testimonies of the persons subject of the
recording or the law enforcement officer. The
recordings shall not be deemed as substitutes for
the presentation of witnesses.
Pertinently, however, the Rules maintain a familiar

high standard in establishing the chain of custody of the
recordings.
125
A.M. No. 21-06-08-SC, Rule 2.
126
A.M. No. 21-06-08-SC, Rule 3.
127
A.M. No. 21-06-08-SC, Rule 2, Section 3.

– Rule 4, Section 1 requires that the downloading of data

from the body-worn camera or alternative recording
device shall be done by the data custodian or
representative within 24 hours from the time of
recording. The same holds true for any recordings
done by the media representative under Section 3, Rule
2, which shall be turned over and downloaded by the
data custodian or his representative within the same
time frame. The Rule requires that the data shall be
encrypted and the metadata preserved.
– Rule 4, Section 2 states that the chain of custody over

the recordings, shall, at all times, be preserved from
improper access, review, and tampering.
– Rule 4, Section 3 directs the officers wearing or using

the devices which captured the recordings or to whom
the media representative turned over his recordings to
retain and have custody of the recordings and ensure
their security, confidentiality and integrity. To this end,
prior to submission to the court, viewing of the
recordings are limited to those enumerated in the
Rules.
Non-compliance with the Rules affects the validity of a

search such that failure to observe the requirements on the
use of body-worn cameras or alternative recording devices,
without reasonable grounds, during the execution of the
search warrant shall render the evidence obtained
inadmissible for the prosecution of the offense for which the
search warrant was applied for.128 Therefore, the Rules
provide an additional pre-requisite in the execution of search
warrants including those pertaining to dangerous drugs
cases.
Moreover, specific to warrantless arrests effected

under Section 21 of R.A. No. 9165, Section 3 of the Rules,
allows the media representative to record the operation,
128
A.M. No. 21-06-08-SC, Rule 3, Section 7.
148
THE IBP JOURNAL
subject to the custody requirements under Rule 4, Sections

1, 2, and 3 as discussed above. This further cements the
importance of the presence of the media representative,
which is no longer confined to that of being an insulating
witness, but has now evolved into that of a more active
participant who may take a recording as provided by the
Rules.
Certainly, much remains to be seen about the real

world application of these new Rules. While many have
lauded it as a step in the right direction, questions are already
being raised as to the perceivable gray areas therein, such as
what constitutes 'reasonable grounds' for non-compliance.
Invariably, judicial doctrine based on the Supreme Court's
future rulings, interpreting and clarifying these Rules, should
help shape the landscape of this developing frontier.
The continuing significance of judicial doctrine.
Without a doubt, judicial interpretation of a statute

such as R.A. No. 9165 or of its own rules such as A.M. No. 21-
06-08-SC, shall constitute a significant part of the law of the
land. The Supreme Court's decisions, applying or interpreting
the laws or the Constitution, form part of our legal system.129
Furthermore, the date of effectivity of such judicial
pronouncement shall be reckoned from the time the law
being interpreted was originally passed since the Supreme
Court's construction merely establishes the
contemporaneous legislative intent that the interpreted law
carried into effect.130
129
Co v. Court of Appeals, G.R. No. 100776, October 28, 1993.
130
OCA Circular No. 251-2018 re: Resolution dated 13 November 2018 in
G.R. No. 231989 (People of the Philippines v. Romy Lim y Miranda)
Providing, Among Others, Further Clarification on the Application and
Interpretation of the Mandatory Policy that shall Govern the Practice in
Maintaining the Chain of Custody to Preserve the Integrity and
Evidentiary Value of Seized/Confiscated Illegal Drugs and Other Drug-
Related Items.

Of similar import is the well-settled rule that, in a
criminal case such as one for violation of R.A. No. 9165 and
its related laws, an appeal throws the whole case open for
review. Thus, the scope of the appellate court's review is not
limited merely to errors assigned by the parties, viz:
In fact, it becomes the duty of the Court to correct

any error in the appealed judgment, whether it is
made the subject of an assignment of error or not.
It is axiomatic that an appeal in criminal cases
confers upon the Court full jurisdiction and
renders it competent to examine the record and
revise the judgment appealed from. Therefore,
even at this stage of the proceedings, it is
imperative for proper chain of custody to be
established in order to affirm the conviction of an
accused because a conviction must prudently rest
on the moral certainty that guilt has been proven
beyond reasonable doubt.131
As such, the appellate court can look into proper

compliance with the chain of custody rule even if it was not
raised as an issue or addressed during the proceedings in the
lower court, to wit:
Since compliance with the procedure is

determinative of the integrity and evidentiary
value of the corpus delicti and ultimately, the fate
of the liberty of the accused, the fact that any issue
regarding the same was not raised, or even
threshed out in the court/s below, would not
preclude the appellate court, including this Court,
from fully examining the records of the case if only
to ascertain whether the procedure had been
completely. complied with, and if not, whether
justifiable reasons exist to excuse any deviation. If
no such reasons exist, then it is the appellate
131
Supra. See Note 35.
150
THE IBP JOURNAL
court's bounden duty to acquit the accused, and

perforce, overturn a conviction."132
In this light, the trend towards acquittal in dangerous

drugs cases is both telling and perturbing. In 2021,
preliminary data suggests that almost 70% of the cases
decided by the Supreme Court as of June 2021, as
enumerated below, resulted in a verdict of acquittal for non-
compliance with the Chain of Custody Rule.
• People of the Philippines vs. SP01 Alexander

Estabillo, G.R. No. 252902, June 16, 2021 –
conviction; compliance with the chain of custody
• People of the Philippines vs. Michael Andanar and

Mary Jane Garbo, G.R. No. 246284, June 16, 2021
– acquittal; non compliance
• Joel David vs. People of the Philippines, G.R. No.

253336, May 10, 2021 - acquittal; non compliance
• Jasper Tan vs. People of the Philippines, G.R. No.

232261, April 26, 2021 - acquittal; non compliance
• People of the Philippines vs. Tamil Selvi Veloo and

Chandrar Nadarajan, G.R. No. 252154, March 24,
2021 - conviction; the absence of the DOJ
representative was not fatal because the integrity
of drug items preserved
• Michael Casilag vs. People of the Philippines, G.R.

No. 213523, March 18, 2021 – acquittal; non
compliance
• People of the Philippines vs. Karlo Guarin, G.R. No.

252857, March 18, 2021 – conviction; the chain of
custody was not broken
132
Supra. See Note 36.

• People of the Philippines vs. Gergorio Villalon, Jr.,
G.R. No. 249412, March 15, 2021 – acquittal; non
compliance
• Ramel de Guzman vs. People of the Philippines,

G.R. No. 246327, January 13, 2021 – acquittal; non
compliance
• People of the Philippines vs. Manolito Rivera, G.R.

No. 252886, March 15, 2021 – acquittal; non
compliance
• Amroding Lindongan vs. People of the Philippines,

G.R. UDK 16615, February 15, 2021 – acquittal;
non compliance
• People of the Philippines vs. Salvador Alberto II,

G.R. No. 2470906, February 10, 2021 – conviction;
compliance with Section 21
• Franklin Reyes Jr. vs. People of the Philippines, G.R.

No. 244545, February 10, 2021 – acquittal; non
compliance
This information, however, is not unexpected. The

same observation, that the prosecution of dangerous drugs
cases has been largely unsuccessful due to the failure to
comply with the requirements of R.A. No. 9165, was made by
the Supreme Court as early as 2012, in People vs Ancheta,133
wherein it said:
The disposition of this case reminds us of our

observation in People v. Garcia, in which we took
note of the statistics relating to dismissal and
acquittal in dangerous drugs cases. There we
mentioned that "[u]nder PDEA records, the
dismissals and acquittals accounted for 56%
because of the failure of the police authorities to
133
G.R. No. 197371, June 13, 2012.
152
THE IBP JOURNAL
observe proper procedure under the law, among

others." We then noted an international study
conducted in 2008, which showed that "out of
13,667 drug cases filed from 2003 to 2007, only
4,790 led to convictions (most of which were cases
of simple possession); the charges against the rest
were dismissed or the accused were acquitted."
Our own data on the cases filed with us from 2006
to 2011 show that, out of those in which this Court
made acquittals and reversals, 85% involved
failure of the prosecution to establish the arresting
officers’ compliance with the procedural
requirements outlined in Section 21 of R.A. 9165.
The parting words in Patacsil indeed remain salient to

date, as it echoes the Court's prevailing support for the
government's anti-drug campaign whilst being mindful of the
need to protect the individual's basic rights, viz:
As a final note, the Court finds it fitting to echo

its recurring pronouncement in recent
jurisprudence on the subject matter:
The Court strongly supports the campaign of the

government against drug addiction and
commends the efforts of our law enforcement
officers against those who would inflict this
malediction upon our people, especially the
susceptible youth. But as demanding as this
campaign may be, it cannot be more so than the
compulsions of the Bill of Rights for the
protection of liberty of every individual in the
realm, including the basest of criminals. The
Constitution covers with the mantle of its
protection the innocent and the guilty alike
against any manner of high-handedness from the
authorities, however praiseworthy their
intentions.
Those who are supposed to enforce the law are

not justified in disregarding the right of the

individual in the name of order. Order is too high
a price for the loss of liberty.134
V. CONCLUSION
The Constitution has provided for an elaborate system

of checks and balances to secure coordination in the
workings of the various departments of our government and
to ensure that they function as a harmonious whole.
Certainly, “in times of social disquietude or political
excitement,” such as these times we are currently living in,
the moderating power of the judicial department attains even
greater significance.135
The visible struggle of the Court to balance effective

law enforcement viz a viz the protection of fundamental
rights, by mandating faithful compliance with laws such as
those pertaining to the chain of custody, is proof enough that
our system of checks and balances is at work. Thus, as
distressing as it is to imagine the amount of time, effort and,
not to mention, costs spent in the unsuccessful prosecution
of drugs cases, the abundance of recent jurisprudence
upholding the rule of law and defending the constitutional
and democratic rights and welfare of the people is also a
source of some relief, knowing that the judiciary's mission
remains tangible and not just a hollow ideal.
There is, however, no substitute for the participation

and vigilance of the people, who, acting through their
delegates, made possible the birth of the Constitution itself,
as an expression of their sovereignty. To borrow the words
of the Supreme Court in Angara v. Electoral Commission: “In
the last and ultimate analysis, then, must the success of our
government in the unfolding years to come be tested in the
crucible of Filipino minds and hearts than in consultation
rooms and court chambers.”136
134
Supra. See Note 36. See also Supra. Note 22.
135
Angara v. Electoral Commission, G.R. No. 45081, July 15, 1936.
136
Id.
154
THE IBP JOURNAL

The war on drugs cannot be won by mere presidential

imprimatur, as the past six years have all too clearly shown.
However, by focusing on the issue, the administration has
undeniably succeeded in engaging the populace. According
to the Commission on Elections website, voter turnout in
2016 was high at 81.95%. The number of registered voters
has also continuously increased at an average rate of 9.5%,
reaching 61.84 Million as of April 2019.
While we Filipinos appear largely united in our aversion

towards the proliferation of illegal drugs, and, thus, strong
support can be expected for the efforts of the administration,
be it current or future towards the eradication of this societal
menace, there is also no shortage of judicial doctrine as well
as public sentiment that such efforts should always be in
accordance with the fundamental law of the land and the
procedures established by statutes, as interpreted by
jurisprudence. It is the ultimate challenge then for the
succeeding administration to continue to harness this
palpable energy amongst the people in order to translate it,
not just into impassioned public discourse but more
importantly, into useful civic action.
***

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i VOLUME 47, ISSUE NO.

2 – 2ND QUARTER 2022

VOLUME 47, ISSUE 2

ALFREDO B. MOLO III

ANNA MARIA D. ABAD

JEANNE MARL B. DOMINISAC

JEANNE MARL B. DOMINISAC

PETER PAUL S. MAGLALANG

MARCELINO MICHAEL I. ATANANTE IV

TOMAS E. JUNCO, JR.

HILARY ROMEO A. ESCOBAR II

BURT M. ESTRADA MARIENNE M. IBADLIT

DENNIS M. BACALA FERNANDO S. PEÑARROYO

JOB FLORANTE L. CASTILLO MARLON I. YAP

MANUEL JOSEPH B. IBANEZ III

Development of the Conflict of Interest Rule in

Protecting Tomorrow’s Hope Today:

The Chain of Custody Rule in Drugs Cases as

Subscription Rates (inclusive of postage):

IBP Journal accepts papers dealing with legal issues and

The articles published in IBP Journal do not necessarily

These pieces on amicable settlement, lawyer’s conflicts

In Avenues for Case Settlement Beyond JDR, Judge

In Development of the Conflict of Interest Rule in

In Protecting Tomorrow’s Hope Today: The Philippine

We hope that the members of the Bar and Bench, along

Judge Soliman M. Santos, Jr.*

For those of us Judges who are understandably

It sounds simple but it is easier said than done. Like

Although this short article is intended to highlight the

1 VOLUME 47, ISSUE NO. 2 – 2ND QUARTER 2022

because the possibility of an amicable settlement starts with

And sometimes, so with the Judge. It has become like

The removal of the fear factor for Judges to more

THE IBP JOURNAL 2

reduction, and protection from administrative harassment.

On a higher plane of public policy, no less than the

3 VOLUME 47, ISSUE NO. 2 – 2ND QUARTER 2022

The best thing about ADR or amicable settlement –

Alternative justice can also be rendered by an

Going now to the procedural avenues for settlement,

THE IBP JOURNAL 4

(especially this) and A.M. No. 04-1-12-SC-PHILJA. Referral to

For cases not covered by JDR and CAM (and it is safe

In applicable criminal cases, the civil action is generally

5 VOLUME 47, ISSUE NO. 2 – 2ND QUARTER 2022

Speaking of pre-trial, there is the more recent Pre-Trial

I also believe that, in certain circumstances beneficial

of execution.” That is why there is now even Appellate Court

If we may speak of comparative advantages, the JDR

The JDR system is more structured, in fact prescribing

7 VOLUME 47, ISSUE NO. 2 – 2ND QUARTER 2022

Negotiation with Court Mediation; and (4)

THE IBP JOURNAL 8

Michelle B. San Buenaventura-Dy*

The fiduciary nature of the attorney-client

This paper examines the development of the

9 VOLUME 47, ISSUE NO. 2 – 2ND QUARTER 2022