DISSENTING OPINION

CARPIO, J.:

I dissent from the decision of the majority, as expressed in the ponencia of Justice Consuelo Ynares-Santiago. The majority opinion reverses a well-settled doctrine, established in a long line of decisions, applying Article 349 of the Revised Penal Code. The reversal finds no support in the plain and ordinary meaning of Article 349. The reversal also violates the constitutional guarantees of the accused and the separation of powers.

The majority opinion makes the following ruling:

We hold that the subsequent judicial declaration of nullity of marriage on the ground of psychological incapacity does not retroact to the date of celebration of the marriage insofar as the Philippines penal laws are concerned. As such, an individual who contracts a second or subsequent marriage during the subsistence of a valid marriage is criminally liable for bigamy, notwithstanding the subsequent declaration that the second marriage is void ab initio on the ground of psychological incapacity.

The issue may be stated thus: if the second marriage is void ab initio on grounds other than the existence of the first marriage, such as psychological incapacity, is there a crime of bigamy?

In the present case, the prosecution filed the information for bigamy against the accused Veronico Tenebro before the judicial declaration of nullity of his second marriage. However, before his conviction for bigamy by the trial court, another court judicially declared his second marriage void ab initio because of psychological incapacity.

The majority opinion is premised on two basic assertions. First, the mere act of entering into a second marriage contract while the first marriage subsists consummates the crime of bigamy, even if the second marriage is void ab initio on grounds other than the mere existence of the first marriage. Second, a marriage declared by law void ab initio, and judicially confirmed void from the beginning, is deemed valid for the purpose of a criminal prosecution for bigamy. I shall examine the correctness of these assertions.

The majority opinion holds that the validity of the second marriage is immaterial and the mere act of entering into a second marriage, even if void ab initio on grounds other than the existence of the first marriage, consummates the crime of bigamy. Thus, the majority opinion states:

As a second or subsequent marriage contracted during the subsistence of petitioners valid marriage to Villareyes, petitioners marriage to Ancajas would be null and void ab initio completely regardless of petitioners psychological capacity or incapacity. Since a marriage contracted during the subsistence of a valid marriage is automatically void, the nullity of this second marriage is not per se an argument for the avoidance of criminal liability for bigamy. Pertinently, Article 349 of the Revised Penal Code criminalizes any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings. A plain reading of the law, therefore, would indicate that the provision penalizes the mere act of contracting a second or a subsequent marriage during the subsistence of a valid marriage.

Thus, as soon as the second marriage to Ancajas was celebrated on April 10, 1990, during the subsistence of the valid first marriage, the crime of bigamy had already been consummated. To our mind, there is no cogent reason for distinguishing between a subsequent marriage that is null and void purely because it is a second or subsequent marriage, and a subsequent marriage that is null and void on the ground of psychological incapacity, at least insofar as criminal liability for bigamy is concerned, x x x. (Bold underscoring supplied; italics in the original)

The majority opinion concedes that the second marriage in the present case is void ab initio, even without need of judicial declaration. The majority expressly admits that the second marriage does not legally exist, and thus in legal contemplation never took place at all. Nevertheless, the majority holds that the second marriage is a marriage that exists in law sufficient to convict the accused of the crime of bigamy.

The majority opinion holds that a judicial declaration of nullity of Tenebros second marriage is immaterial in a prosecution for the crime of bigamy. Such judicial declaration that the second marriage is void from the beginning is absolutely of no moment.

Prior to appellant Tenebros conviction by the trial court of the crime of bigamy, his second marriage was in fact judicially declared void ab initio on the ground of psychological incapacity. Tenebro could count in his favor not only an express provision of law declaring his second marriage void ab initio, he also had a judicial confirmation of such nullity even prior to his conviction of bigamy by the trial court. The majority opinion, however, simply brushes aside the law and the judicial confirmation. The majority opinion holds that the fact that the second marriage is void ab initio on the ground of psychological incapacity, and judicially declared as void from the very beginning, is immaterial in a bigamy charge.

For more than 75 years now, this Court has consistently ruled that if the second marriage is void on grounds other than the existence of the first marriage, there is no crime of bigamy. The Court first enunciated this doctrine in the 1935 case of People v. Mora Dumpo,1 where the Court held:

Moro Hassan and Mora Dumpo have been legally married according to the rites and practices of the Mohammedan religion. Without this marriage being dissolved, it is alleged that Dumpo contracted another marriage with Moro Sabdapal after which the two lived together as husband and wife. Dumpo was prosecuted for and convicted of the crime of bigamy in the Court of First Instance of Zamboanga and sentenced to an indeterminate penalty with a maximum of eight years and one day of prision mayor and a minimum of two years, four months and twenty-one days of prision correccional, with costs. From this judgment the accused interposed an appeal. The records of the case disclose that it has been established by the defense, without the prosecution having presented any objection nor evidence to the contrary, that the alleged second marriage of the accused is null and void according to Mohammedan rites on the ground that her father had not given his consent thereto.

x x x

It is an essential element of the crime of bigamy that the alleged second marriage, having all the essential requisites, would be valid were it not for the subsistence of the first marriage. It appearing that the marriage alleged to have been contracted by the accused with Sabdapal, her former marriage with Hassan being undissolved, cannot be considered as such, there is no justification to hold her guilty of the crime charged in the information. (Emphasis supplied)

In People v. Mendoza,2 decided in 1954, the Court acquitted the accused of bigamy on the ground that the first marriage was void having been contracted during the subsistence of a still earlier marriage. The Court held:

The following facts are undisputed: On August 5, 1936, the appellant and Jovita de Asis were married in Marikina, Rizal. On May 14, 1941, during the subsistence of the first marriage, the appellant was married to Olga Lema in the City of Manila. On February 2, 1943, Jovita de Asis died. On August 19, 1949, the appellant contracted another marriage with Carmencita Panlilio in Calamba, Laguna. This last marriage gave rise to his prosecution for and conviction of the crime of bigamy.

The appellant contends that his marriage with Olga Lema on May 14, 1941 is null and void and, therefore, non-existent, having been contracted while his first marriage with Jovita de Asis August 5, 1936 was still in effect, and that his third marriage to Carmencita Panlilio on August 19, 1949 cannot be the basis of a charge for bigamy because it took place after the death of Jovita de Asis. The Solicitor General, however, argues that, even assuming that appellants second marriage to Olga Lema is void, he is not exempt from criminal liability, in the absence of a previous judicial annulment of said bigamous marriage; and the case of People vs. Cotas, 40 Off. Gaz., 3134, is cited.

x x x

In the case at bar, it is admitted that appellants second marriage with Olga Lema was contracted during the existence of his first marriage with Jovita de Asis. Section 29 of the marriage law (act 3613), in force at the time the appellant contracted his second marriage in 1941, provides as follows:

Illegal marriages. - Any marriage subsequently contracted by any person during the lifetime of the first spouse of such person with any person other than such first spouse shall be illegal and void from its performance, unless.

(a) The first marriage was annulled or dissolved;

(b) The first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive, or the absentee being generally considered as dead and believed to be so by the spouse present at the time of contracting such subsequent marriage, the marriage so contracted being valid in either case until declared null and void by a competent court.

This statutory provision plainly makes a subsequent marriage contracted by any person during the lifetime of his first spouse illegal and void from its performance, and no judicial decree is necessary to establish its invalidity, as distinguished from mere annullable marriages. There is here no pretense that appellants second marriage with Olga Lema was contracted in the belief that the first spouse, Jovita de Asis, has been absent for seven consecutive years or generally considered as dead, so as to render said marriage valid until declared null and void by a competent court.

Wherefore, the appealed judgment is reversed and the defendant-appellant acquitted, with costs de officio so ordered.

In People v. Lara,3 decided in 1955, the Court acquitted the accused of bigamy on the ground that his second marriage was void for lack of a marriage license. Declared the Court in Lara:

It is not disputed that the [accused] and Anacoreta Dalanida were married on July 1, 1947 x x x. Neither is it denied that on August 18, 1951, while the marriage just referred to was subsisting, appellant entered into a second marriage, this time with Josefa A. Rosales x x x.

In connection with the contract [for the second marriage], undisputed documentary evidence show that x x x it was only on August 19, 1951, that the marriage license x x x was issued x x x.

We are x x x of the opinion that the evidence in this case virtually beyond reasonable doubt that the marriage license x x x was issued x x x on the date appearing thereon x x x namely, August 19, 1951.

x x x

Article 53 of the Civil Code of the Philippines, x x x which no marriage shall be solemnized, one of them being a marriage license duly issued at the time of the celebration of the marriage x x x. Related to this point, Article 80(3) of the new Civil Code makes it clear that a marriage performed without the corresponding marriage license is void, this being nothing more than the legitimate consequence flowing from the fact that the license is the essence of the marriage contract.

Under the provisions of the Revised Penal Code there can be possible conviction for bigamy without proof that the accused had voluntarily contracted a second marriage during the subsistence of his first marriage with another person. Such was the interpretation given by the Court in People v. Mora Dumpo that: It is an essential element of the crime of bigamy that the alleged second marriage, having all the essential requisites, would be valid were it not for the subsistence of the first marriage.

x x x

As to its validity, the marriage should be examined as of the time it was entered into. On that precise date all the essential requisites must be present x x x. In the case before us, the evidence discloses that the marriage preceded the issuance of the marriage license by one day. The subsequent issuance of the license cannot in law, to our mind, render valid what in the eyes of the law itself was void from the beginning x x x. (Emphasis supplied)

In the 1960 case of Merced v. Diez,4 the Court held that a prior case for annulment of the second marriage on the ground of vitiated consent constitutes a prejudicial question warranting the suspension of the criminal case for bigamy.5 The Court declared:

Before this Court the sole question raised is whether an action to annul the second marriage is a prejudicial question in a prosecution for bigamy.

x x x

In order that a person may be held guilty of the crime of bigamy, the second and subsequent marriage must have all the essential elements of a valid marriage, were it not for the subsistence of the first marriage. This was the ruling of this Court in People vs. Dumpo, 62 Phil. 246, x x x.

One of the essential elements of a valid marriage is that the consent thereto of the contracting parties must be freely and voluntarily given. Without the element of consent a marriage would be illegal and void. (Section 29, Act No. 3613, otherwise known as the Marriage Law.) But the question of invalidity cannot ordinarily be decided in the criminal action for bigamy but in a civil action for annulment. Since the validity of the second marriage, subject of the action for bigamy, cannot be determined in the criminal case and since prosecution for bigamy does not lie unless the elements of the second marriage appear to exist, it is necessary that a decision in a civil action to the effect that the second marriage contains all the essentials of a marriage must first be secured.

We have, therefore, in the case at bar, the issue of the validity of the second marriage, which must be determined before hand in the civil action, before the criminal action can proceed. We have a situation where the issue of the validity of the second marriage can be determined or must first be determined in the civil action before the criminal action for bigamy can be prosecuted. The question of the validity of the second marriage is, therefore, a prejudicial question, because determination of the validity of the second marriage is determinable in the civil action and must precede the criminal action for bigamy. (Emphasis supplied)

In Zapanta v. Montesa,6 decided in 1962, the Court likewise suspended the proceedings in the criminal case for bigamy because of a subsequent civil action filed by the accused to annul his second marriage on the ground of vitiated consent. The Court ruled:

We have heretofore defined a prejudicial question as that which arises in a case, the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal (People vs. Aragon, G.R. No. L-5930, February 17, 1954). The prejudicial question - we further said - must be determinative of the case before the court, and jurisdiction to try the same must be lodged in another court (People vs. Aragon, supra). These requisites are present in the case at bar. Should the question for annulment of the second marriage pending in the Court of First Instance of Pampanga prosper on the ground that, according to the evidence, petitioners consent thereto was obtained by means of duress, force and intimidation, it is obvious that his act was involuntary and can not be the basis of his conviction for the crime of bigamy with which he was charged in the Court of First Instance of Bulacan. Thus the issue involved in the action for the annulment of the second marriage is determinative of petitioners guilt or innocence of the crime of bigamy. On the other hand, there can be no question that the annulment of petitioners marriage with respondent Yco on the grounds relied upon in the complaint filed in the Court of First Instance of Pampanga is within the jurisdiction of said court.

In De la Cruz v. Ejercito,7 decided in 1975, the Court, speaking through Justice Ramon C. Aquino, dismissed a bigamy case against the accused in view of a final judgment the accused obtained annulling her second marriage on the ground of vitiated consent. The Court, ruling that the annulment of the second marriage rendered the criminal case moot and untenable, explained:

The issue is whether the bigamy case became moot or untenable after the second marriage, on which the prosecution for bigamy is based, was annulled.

The City Fiscal of Angeles City contends that the lower court acted correctly in denying the motion to dismiss the bigamy charge. He argues that the decision in the annulment case should be set up as a defense by Milagros de la Cruz during the trial and that it would not justify the outright dismissal of the criminal case.

On the other hand, the Solicitor General manifested that the stand of Milagros de la Cruz should be sustained because one element of bigamy is that the alleged second marriage, having all the requisites, would be valid were it not for the subsistence of the first marriage (People vs. Mora Dumpo, 62 Phil. 246, 248; Merced vs. Hon. Diez, 109 Phil. 155; Zapanta vs. Montesa, 114 Phil. 1227).

We hold that the finding in the annulment case that the second marriage contracted by Milagros de la Cruz with Sergeant Gaccino was a nullity is determinative of her innocence and precludes the rendition of a verdict that she committed bigamy. To try the criminal case in the face of such a finding would be unwarranted. (Emphasis supplied)

These decisions of the Court declaring there is no crime of bigamy if the second marriage is void on grounds other than the existence of the first marriage merely apply the clear language and intent of Article 349 of the Revised Penal Code. This Article provides as follows:

Article 349. Bigamy. - The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of judgment rendered in the proper proceedings.

Under Article 349 of the Revised Penal Code, the essential elements of the crime of bigamy are:

1. The offender is legally married;

2. The marriage is not legally dissolved;

3. The offender contracts a second or subsequent marriage;

4. The second or subsequent marriage is valid except for the existence of the first marriage.

The first three elements reiterate the language of the law. The last element, the validity of the second marriage except for the existence of the first marriage, necessarily follows from the language of the law that the offender contracts a second or subsequent marriage.

If the second marriage is void ab initio on grounds other than the existence of the first marriage, then legally there exists no second marriage. Article 35 of the Family Code enumerates the marriages that are void from the beginning. The succeeding article, Article 36, declares that a marriage contracted by one psychologically incapacitated shall likewise be void. Article 1409 of the Civil Code declares inexistent and void from the beginning contracts expressly x x x declared void by law. Thus, a marriage contracted by one psychologically incapacitated at the time of the marriage is legally inexistent and void from the beginning. Such void marriage cannot constitute a second marriage to sustain a conviction for bigamy under Article 349 of the Revised Penal Code.

If the second marriage is void solely because of the existence of the first marriage, the nullity of the second marriage proceeds from its illegality or bigamous nature. However, if the second marriage is void on grounds other than the existence of the first marriage, the nullity does not proceed from its illegality or bigamous nature. The first situation results in the crime of bigamy while the second does not. This is clear from Article 1411 of the Civil Code which provides:

Article 1411. When the nullity proceeds from the illegality of the cause or object of the contract, and the act constitutes a criminal act, both parties being in pari delicto, they shall have no action against each other, and both shall be prosecuted. x x x.

The rule shall be applicable when only one of the parties is guilty; x x x.

Thus, if the second marriage Is void because of psychological incapacity, the nullity does not proceed from an illegal or criminal cause, and no prosecution could ensue. However, if the second marriage is void solely because of the existence of the first marriage, the nullity proceeds from an illegal or criminal cause, and thus prosecution should follow.

The plain and ordinary meaning of Article 349 could only be that the second marriage must be valid were it not for the existence of the first marriage. This has been the consistent interpretation of the Court for more than seven decades since the enactment of the Revised Penal Code. Text writers in criminal law have never entertained or advanced any other interpretation. There is no cogent reason to depart from the well-established jurisprudence on Article 349 of the Revised Penal Code.

Even assuming, for the sake of argument, there is doubt on the interpretation of Article 349, substantive due process of law requires a strict interpretation of Article 349 against the State and a liberal interpretation in favor of the accused. The majority opinion reverses this principle and interprets Article 349 of the Revised Penal Code strictly against the accused and liberally in favor of the State.

Article 349 of the Revised Penal Code does not state that it is immaterial whether the second marriage is valid or void ab initio. This Article does not also state that the mere act of celebration of the second marriage, while the first marriage subsists, constitutes the crime of bigamy. Article 349 speaks of a second or subsequent marriage which, as commonly understood and applied consistently by the Court, means a valid second marriage were it not for the existence of the first marriage.

To hold that the validity of the second marriage is immaterial, as the majority opinion so holds, would interpret Article 349 too liberally in favor of the State and too strictly against the accused. This violates the well-settled principle of statutory construction that the Court declared in People v. Garcia:8

Criminal and penal statutes must be strictly construed, that is, they cannot be enlarged or extended by intendment, implication, or by any equitable considerations. In other words, the language cannot be enlarged beyond the ordinary meaning of its terms in order to carry into effect the general purpose for which the statute was enacted. Only those persons, offenses, and penalties, clearly included, beyond any reasonable doubt, will be considered within the statutes operation. They must come clearly within both the spirit and the letter of the statute, and where there is any reasonable doubt, it must be resolved in favor of the person accused of violating the statute; that is, all questions in doubt will be resolved in favor of those from whom the penalty is sought. (Statutory Construction, Crawford, pp. 460-462.)

The principle of statutory construction that penal laws are liberally construed in favor of the accused and strictly against the State is deeply rooted in the need to protect constitutional guarantees.9 This principle serves notice to the public that only those acts clearly and plainly prohibited in penal laws are subject to criminal sanctions. To expand penal laws beyond their clear and plain meaning is no longer fair notice to the public. Thus, the principle insures observance of due process of law. The principle also prevents discriminatory application of penal laws. State prosecutors have no power to broaden arbitrarily the application of penal laws beyond the plain and common understanding of the people who are subject to their penalties. Hence, the principle insures equal protection of the law.

The principle is also rooted in the need to maintain the separation of powers by insuring that the legislature, and not the judiciary, defines crimes and prescribes their penalties.10 As aptly stated by the U.S. Supreme Court, speaking through Chief Justice John Marshall, in United States v. Wiltberger.11

The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals, and on the plain principle that the power of punishment is vested in the legislature, not in the judicial department. It is the legislature, not the Court, which is to define a crime, and ordain its punishment. (Emphasis supplied)

This Court has specifically applied the rule on strict interpretation of a criminal statute to the crime of bigamy. In People v. Aragon,12 decided in 1957, the Court ruled:

Appellant in this Court relies on the case of People vs. Mendoza, (95 Phil., 845, 50 Off. Gaz., [10] 4767). In this case the majority of this Court declared:

The statutory provision (section 29 of the Marriage Law or Act No. 3613) plainly makes a subsequent marriage contracted by any person during the lifetime of his first spouse illegal and void from its performance, and no judicial decree is necessary to establish its invalidity, as distinguished from mere annullable marriages. There is here no pretense that appellants second marriage with Olga Lema was contracted in the belief that the first spouse, Jovita de Asis, had been absent for seven consecutive years or generally considered as dead, so as to render said marriage valid until declared null and void by a subsequent court.

We are aware of the very weighty reasons expressed by Justice Alex Reyes in his dissent in the case above-quoted. But these weighty reasons notwithstanding, the very fundamental principle of strict construction of penal laws in favor of the accused, which principle we may not ignore, seems to justify our stand in the above-cited case of People vs. Mendoza. Our Revised Penal Code is of recent enactment and had the rule enunciated in Spain and in America requiring judicial declaration of nullity of ab initio void marriages been within the contemplation of the legislature, an express provision to that effect would or should have been inserted in the law. In its absence, we are bound by said rule of strict interpretation already adverted to. (Emphasis supplied)

The majority opinion interprets Article 349 of the Revised Penal Code to mean that a second marriage, even if void ab initio on grounds other than the existence of the first marriage, gives rise to the crime of bigamy. This dissent interprets Article 349 to mean that for the crime of bigamy to exist, the second marriage must be a valid marriage except for the existence of the first marriage. Otherwise, the language of the law would mean nothing when it expressly declares certain marriages void ab initio or void from the very beginning.

These opposing interpretations of a criminal statute call for the application of another will-established rule that as between two reasonable interpretations, the more lenient one should be applied to penal statutes. A leading English decision puts it in this wise:

If there is a reasonable interpretation which will avoid the penalty in any particular case, we must adopt that construction. If there are two reasonable constructions, we must give the more lenient one. That is the settled rule for construction of penal sections.13

In summary, the majority opinion reverses the well-settled doctrine that there is no bigamy if the second marriage is void on grounds other than the existence of the first marriage. The Court has consistently applied this doctrine in several cases since 1935. The majority opinion reverses this doctrine by disregarding the plain and ordinary meaning of the clear language of a criminal statute - Article 349 of the Revised Penal Code. The majority opinion then proceeds to interpret the criminal statute strictly against the accused and liberally in favor of the State. The majority opinion makes this new interpretation even as Article 349 has remained unchanged since its enactment into law on 1 January 1932. The majority opinion effectively amends the language of Article 349 of the Revised Penal Code in violation of the separation of powers.

A final word. Even before appellant Tenebros conviction of the crime of bigamy, he had already secured a judicial declaration of nullity of his second marriage on the ground of psychological incapacity. This judicial declaration merely confirmed what the law already explicitly provides - that a marriage contracted by one psychologically incapacitated to marry is void from the very beginning and thus legally inexistent. Inexplicably, the majority opinion still holds that the second marriage exists to warrant Tenebros conviction of the crime of bigamy.

Accordingly, I dissent from the majority opinion and vote to grant the petition.



1 62 Phil. 246 (1935).

2 95 Phil. 845 (1954).

3 51 O.G. 4079, 14 February 1955.

4 109 Phil. 155(1960).

5 In the 1954 case of People v. Aragon (94 Phil. 357), the Court refused to consider as a prejudicial question the action to annul the second marriage because the accused was the one who employed force and intimidation on the woman in the second marriage. The Court said that the accused may not use his own malfeasance to defeat the action based on his criminal act. The Court also said that if the woman in the second marriage were she the one charged with bigamy, [she] could perhaps raise said force or intimidation as a defense, because she may not be considered as having freely and voluntarily committed the act if she was forced to the marriage by intimidation.

6 No. L-14534, 28 February 1962, 4 SCRA 510.

7 No. L-40895, 6 November 1975, 68 SCRA 1.

8 85 Phil. 651(1950).

9 ESKRIDGE, JR., FRICKLEY AND GARRET, LEGISLATION AND STATUTORY INTERPRETATION 362 (2000).

10 Ibid., p. 363.

11 18 U.S. 76(1820).

12 100 Phil. 1033(1957).

13 Tuck & Sons v. Priester, 19 QBD 629 (1887), cited in Cross on Statutory Construction, p. 172, 3rd Edition (1995).