G.R. No.
162571, June 15, 2005
ARNEL L. AGUSTIN vs. HON. COURT OF APPEALS AND MINOR MARTIN JOSE
PROLLAMANTE, REPRESENTED BY HIS MOTHER/GUARDIAN FE ANGELA
PROLLAMANTE
“In 2004, in Tecson, et al. v. COMELEC26 where the Court en banc was faced with the
issue of filiation of then presidential candidate Fernando Poe Jr., we stated:
In case proof of filiation or paternity would be unlikely to satisfactorily establish or would
be difficult to obtain, DNA testing, which examines genetic codes obtained from body
cells of the illegitimate child and any physical residue of the long dead parent could be
resorted to. A positive match would clear up filiation or paternity. In Tijing vs. Court of
Appeals, this Court has acknowledged the strong weight of DNA testing…
Moreover, in our en banc decision in People v. Yatar,27 we affirmed the conviction of the
accused for rape with homicide, the principal evidence for which included DNA test
results. We did a lengthy discussion of DNA, the process of DNA testing and the reasons
for its admissibility in the context of our own Rules of Evidence:
Deoxyribonucleic Acid, or DNA, is a molecule that encodes the genetic information in all
living organisms. A person’s DNA is the same in each cell and it does not change
throughout a person’s lifetime; the DNA in a person’s blood is the same as the DNA
found in his saliva, sweat, bone, the root and shaft of hair, earwax, mucus, urine, skin
tissue, and vaginal and rectal cells. Most importantly, because of polymorphisms in
human genetic structure, no two individuals have the same DNA, with the notable
exception of identical twins.
xxx xxx xxx
In assessing the probative value of DNA evidence, courts should consider, inter alia, the
following factors: how the samples were collected, how they were handled, the
possibility of contamination of the samples, the procedure followed in analyzing the
samples, whether proper standards and procedures were followed in conducting the
tests, and the qualification of the analyst who conducted the tests.
In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly qualified by the
prosecution as an expert witness on DNA print or identification techniques. Based on Dr.
de Ungria’s testimony, it was determined that the gene type and DNA profile of appellant
are identical to that of the extracts subject of examination. The blood sample taken from
the appellant showed that he was of the following gene types: vWA 15/19, TH01 7/8,
DHFRP29/10 and CSF1PO 10/11, which are identical with semen taken from the victim’s
vaginal canal. Verily, a DNA match exists between the semen found in the victim and the
blood sample given by the appellant in open court during the course of the trial.
Admittedly, we are just beginning to integrate these advances in science and technology
in the Philippine criminal justice system, so we must be cautious as we traverse these
relatively uncharted waters. Fortunately, we can benefit from the wealth of persuasive
jurisprudence that has developed in other jurisdictions. Specifically, the prevailing
doctrine in the U.S. has proven instructive.
In Daubert v. Merrell Dow (509 U.S. 579 (1993); 125 L. Ed. 2d 469) it was ruled that
pertinent evidence based on scientifically valid principles could be used as long as it was
relevant and reliable. Judges, under Daubert, were allowed greater discretion over which
testimony they would allow at trial, including the introduction of new kinds of scientific
techniques. DNA typing is one such novel procedure.
Under Philippine law, evidence is relevant when it relates directly to a fact in issue as to
induce belief in its existence or non-existence. Applying the Daubert test to the case at
bar, the DNA evidence obtained through PCR testing and utilizing STR analysis, and
which was appreciated by the court a quo is relevant and reliable since it is reasonably
based on scientifically valid principles of human genetics and molecular biology.
Significantly, we upheld the constitutionality of compulsory DNA testing and the
admissibility of the results thereof as evidence. In that case, DNA samples from semen
recovered from a rape victim’s vagina were used to positively identify the accused Joel
"Kawit" Yatar as the rapist. Yatar claimed that the compulsory extraction of his blood
sample for DNA testing, as well as the testing itself, violated his right against self-
incrimination, as embodied in both Sections 12 and 17 of Article III of the Constitution.
We addressed this as follows:
The contention is untenable. The kernel of the right is not against all compulsion, but
against testimonial compulsion. The right against self-incrimination is simply against the
legal process of extracting from the lips of the accused an admission of guilt. It does not
apply where the evidence sought to be excluded is not an incrimination but as part of
object evidence.
Over the years, we have expressly excluded several kinds of object evidence taken from
the person of the accused from the realm of self-incrimination. These include
photographs,28 hair,29 and other bodily substances.30 We have also declared as
constitutional several procedures performed on the accused such as pregnancy tests for
women accused of adultery,31 expulsion of morphine from one’s mouth32 and the
tracing of one’s foot to determine its identity with bloody footprints.33 In Jimenez v.
Cañizares,34 we even authorized the examination of a woman’s genitalia, in an action for
annulment filed by her husband, to verify his claim that she was impotent, her orifice
being too small for his penis. Some of these procedures were, to be sure, rather invasive
and involuntary, but all of them were constitutionally sound. DNA testing and its results,
per our ruling in Yatar,35 are now similarly acceptable.
Nor does petitioner’s invocation of his right to privacy persuade us. In Ople v. Torres,36
where we struck down the proposed national computerized identification system
embodied in Administrative Order No. 308, we said:
In no uncertain terms, we also underscore that the right to privacy does not bar all
incursions into individual privacy. The right is not intended to stifle scientific and
technological advancements that enhance public service and the common good...
Intrusions into the right must be accompanied by proper safeguards that enhance public
service and the common good.
Historically, it has mostly been in the areas of legality of searches and seizures,37 and the
infringement of privacy of communication38 where the constitutional right to privacy
has been critically at issue. Petitioner’s case involves neither and, as already stated, his
argument that his right against self-incrimination is in jeopardy holds no water. His
hollow invocation of his constitutional rights elicits no sympathy here for the simple
reason that they are not in any way being violated. If, in a criminal case, an accused whose
very life is at stake can be compelled to submit to DNA testing, we see no reason why, in
this civil case, petitioner herein who does not face such dire consequences cannot be
ordered to do the same.
DNA paternity testing first came to prominence in the United States, where it yielded its
first official results sometime in 1985. In the decade that followed, DNA rapidly found
widespread general acceptance.39 Several cases decided by various State Supreme
Courts reflect the total assimilation of DNA testing into their rules of procedure and
evidence.
The case of Wilson v. Lumb40 shows that DNA testing is so commonly accepted that, in
some instances, ordering the procedure has become a ministerial act. The Supreme Court
of St. Lawrence County, New York allowed a party who had already acknowledged
paternity to subsequently challenge his prior acknowledgment. The Court pointed out
that, under the law, specifically Section 516 of the New York Family Court Act, the Family
Court examiner had the duty, upon receipt of the challenge, to order DNA tests:41
§ 516-a. Acknowledgment of paternity. (a) An acknowledgment of paternity executed
pursuant to section one hundred eleven-k of the social services law or section four
thousand one hundred thirty-five-b of the public health law shall establish the paternity
of and liability for the support of a child pursuant to this act. Such acknowledgment must
be reduced to writing and filed pursuant to section four thousand one hundred thirty-
five-b of the public health law with the registrar of the district in which the birth occurred
and in which the birth certificate has been filed. No further judicial or administrative
proceedings are required to ratify an unchallenged acknowledgment of paternity.
(b) An acknowledgment of paternity executed pursuant to section one hundred eleven-k
of the social services law or section four thousand one hundred thirty-five-b of the public
health law may be rescinded by either signator’s filing of a petition with the court to
vacate the acknowledgment within the earlier of sixty days of the date of signing the
acknowledgment or the date of an administrative or a judicial proceeding (including a
proceeding to establish a support order) relating to the child in which either signator is a
party. For purposes of this section, the "date of an administrative or a judicial proceeding"
shall be the date by which the respondent is required to answer the petition. After the
expiration of sixty days of the execution of the acknowledgment, either signator may
challenge the acknowledgment of paternity in court only on the basis of fraud, duress, or
material mistake of fact, with the burden of proof on the party challenging the voluntary
acknowledgment. Upon receiving a party’s challenge to an acknowledgment, the court
shall order genetic marker tests or DNA tests for the determination of the child’s paternity
and shall make a finding of paternity, if appropriate, in accordance with this article.
Neither signator’s legal obligations, including the obligation for child support arising
from the acknowledgment, may be suspended during the challenge to the
acknowledgment except for good cause as the court may find. If a party petitions to
rescind an acknowledgment and if the court determines that the alleged father is not the
father of the child, or if the court finds that an acknowledgment is invalid because it was
executed on the basis of fraud, duress, or material mistake of fact, the court shall vacate
the acknowledgment of paternity and shall immediately provide a copy of the order to
the registrar of the district in which the child’s birth certificate is filed and also to the
putative father registry operated by the department of social services pursuant to section
three hundred seventy-two-c of the social services law. In addition, if the mother of the
child who is the subject of the acknowledgment is in receipt of child support services
pursuant to title six-A of article three of the social services law, the court shall
immediately provide a copy of the order to the child support enforcement unit of the
social services district that provides the mother with such services.
(c) A determination of paternity made by any other state, whether established through
the parents’ acknowledgment of paternity or through an administrative or judicial
process, must be accorded full faith and credit, if and only if such acknowledgment meets
the requirements set forth in section 452(a)(7) of the social security act.
(emphasis supplied)
DNA testing also appears elsewhere in the New York Family Court Act:42
§532. Genetic marker and DNA tests; admissibility of records or reports of test results;
costs of tests.
a) The court shall advise the parties of their right to one or more genetic marker tests or
DNA tests and, on the court’s own motion or the motion of any party, shall order the
mother, her child and the alleged father to submit to one or more genetic marker or DNA
tests of a type generally acknowledged as reliable by an accreditation body designated
by the secretary of the federal department of health and human services and performed
by a laboratory approved by such an accreditation body and by the commissioner of
health or by a duly qualified physician to aid in the determination of whether the alleged
father is or is not the father of the child. No such test shall be ordered, however, upon a
written finding by the court that it is not in the best interests of the child on the basis of
res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a
married woman. The record or report of the results of any such genetic marker or DNA
test ordered pursuant to this section or pursuant to section one hundred eleven-k of the
social services law shall be received in evidence by the court pursuant to subdivision (e)
of rule forty-five hundred eighteen of the civil practice law and rules where no timely
objection in writing has been made thereto and that if such timely objections are not
made, they shall be deemed waived and shall not be heard by the court. If the record or
report of the results of any such genetic marker or DNA test or tests indicate at least a
ninety-five percent probability of paternity, the admission of such record or report shall
create a rebuttable presumption of paternity, and shall establish, if unrebutted, the
paternity of and liability for the support of a child pursuant to this article and article four
of this act.
(b) Whenever the court directs a genetic marker or DNA test pursuant to this section, a
report made as provided in subdivision (a) of this section may be received in evidence
pursuant to rule forty-five hundred eighteen of the civil practice law and rules if offered
by any party.
(c) The cost of any test ordered pursuant to subdivision (a) of this section shall be, in the
first instance, paid by the moving party. If the moving party is financially unable to pay
such cost, the court may direct any qualified public health officer to conduct such test, if
practicable; otherwise, the court may direct payment from the funds of the appropriate
local social services district. In its order of disposition, however, the court may direct that
the cost of any such test be apportioned between the parties according to their respective
abilities to pay or be assessed against the party who does not prevail on the issue of
paternity, unless such party is financially unable to pay. (emphasis supplied)
In R.E. v. C.E.W.,43 a decision of the Mississippi Supreme Court, DNA tests were used to
prove that H.W., previously thought to be an offspring of the marriage between A.C.W.
and C.E.W., was actually the child of R.E. with whom C.E.W. had, at the time of
conception, maintained an adulterous relationship.
In Erie County Department of Social Services on behalf of Tiffany M.H. v. Greg G.,44 the
4th Department of the New York Supreme Court’s Appellate Division allowed G.G., who
had been adjudicated as T.M.H.’s father by default, to have the said judgment vacated,
even after six years, once he had shown through a genetic marker test that he was not the
child’s father. In this case, G.G. only requested the tests after the Department of Social
Services, six years after G.G. had been adjudicated as T.M.H.’s father, sought an increase
in his support obligation to her.
In Greco v. Coleman,45 the Michigan Supreme Court while ruling on the constitutionality
of a provision of law allowing non-modifiable support agreements pointed out that it was
because of the difficulty of determining paternity before the advent of DNA testing that
such support agreements were necessary:
As a result of DNA testing, the accuracy with which paternity can be proven has
increased significantly since the parties in this lawsuit entered into their support
agreement…(current testing methods can determine the probability of paternity to
99.999999% accuracy). However, at the time the parties before us entered into the
disputed agreement, proving paternity was a very significant obstacle to an illegitimate
child's access to child support. The first reported results of modern DNA paternity testing
did not occur until 1985. ("In fact, since its first reported results in 1985, DNA matching
has progressed to 'general acceptance in less than a decade'"). Of course, while prior
blood-testing methods could exclude some males from being the possible father of a
child, those methods could not affirmatively pinpoint a particular male as being the
father. Thus, when the settlement agreement between the present parties was entered in
1980, establishing paternity was a far more difficult ordeal than at present. Contested
paternity actions at that time were often no more than credibility contests. Consequently,
in every contested paternity action, obtaining child support depended not merely on
whether the putative father was, in fact, the child's biological father, but rather on
whether the mother could prove to a court of law that she was only sexually involved
with one man--the putative father. Allowing parties the option of entering into private
agreements in lieu of proving paternity eliminated the risk that the mother would be
unable meet her burden of proof.
It is worth noting that amendments to Michigan’s Paternity law have included the use of
DNA testing:46
§722.716 Pretrial proceedings; blood or tissue typing determinations as to mother, child,
and alleged father; court order; refusal to submit to typing or identification profiling;
qualifications of person conducting typing or identification profiling; compensation of
expert; result of typing or identification profiling; filing summary report; objection;
admissibility; presumption; burden of proof; summary disposition.
Sec. 6.
(1) In a proceeding under this act before trial, the court, upon application made by or on
behalf of either party, or on its own motion, shall order that the mother, child, and alleged
father submit to blood or tissue typing determinations, which may include, but are not
limited to, determinations of red cell antigens, red cell isoenzymes, human leukocyte
antigens, serum proteins, or DNA identification profiling, to determine whether the
alleged father is likely to be, or is not, the father of the child. If the court orders a blood
or tissue typing or DNA identification profiling to be conducted and a party refuses to
submit to the typing or DNA identification profiling, in addition to any other remedies
available, the court may do either of the following:
(a) Enter a default judgment at the request of the appropriate party.
(b) If a trial is held, allow the disclosure of the fact of the refusal unless good cause is
shown for not disclosing the fact of refusal.
(2) A blood or tissue typing or DNA identification profiling shall be conducted by a
person accredited for paternity determinations by a nationally recognized scientific
organization, including, but not limited to, the American association of blood banks.
xxx xxx xxx
(5) If the probability of paternity determined by the qualified person described in
subsection (2) conducting the blood or tissue typing or DNA identification profiling is
99% or higher, and the DNA identification profile and summary report are admissible as
provided in subsection (4), paternity is presumed. If the results of the analysis of genetic
testing material from 2 or more persons indicate a probability of paternity greater than
99%, the contracting laboratory shall conduct additional genetic paternity testing until all
but 1 of the putative fathers is eliminated, unless the dispute involves 2 or more putative
fathers who have identical DNA.
(6) Upon the establishment of the presumption of paternity as provided in subsection (5),
either party may move for summary disposition under the court rules. this section does
not abrogate the right of either party to child support from the date of birth of the child
if applicable under section 7. (emphasis supplied)
In Rafferty v. Perkins,47 the Supreme Court of Mississippi ruled that DNA test results
showing paternity were sufficient to overthrow the presumption of legitimacy of a child
born during the course of a marriage:
The presumption of legitimacy having been rebutted by the results of the blood test
eliminating Perkins as Justin's father, even considering the evidence in the light most
favorable to Perkins, we find that no reasonable jury could find that Easter is not Justin's
father based upon the 99.94% probability of paternity concluded by the DNA testing.
In S.J.F. and J.C.F. v. R.C.W.,48 the North Dakota Supreme Court upheld an order for
genetic testing given by the Court of Appeals, even after trial on the merits had concluded
without such order being given. Significantly, when J.C.F., the mother, first filed the case
for paternity and support with the District Court, neither party requested genetic testing.
It was only upon appeal from dismissal of the case that the appellate court remanded the
case and ordered the testing, which the North Dakota Supreme Court upheld.
The case of Kohl v. Amundson,49 decided by the Supreme Court of South Dakota,
demonstrated that even default judgments of paternity could be vacated after the
adjudicated father had, through DNA testing, established non-paternity. In this case,
Kohl, having excluded himself as the father of Amundson’s child through DNA testing,
was able to have the default judgment against him vacated. He then obtained a ruling
ordering Amundson to reimburse him for the amounts withheld from his wages for child
support. The Court said "(w)hile Amundson may have a remedy against the father of the
child, she submit(ted) no authority that require(d) Kohl to support her child. Contrary to
Amundson's position, the fact that a default judgment was entered, but subsequently
vacated, (did) not foreclose Kohl from obtaining a money judgment for the amount
withheld from his wages."
In M.A.S. v. Mississippi Dept. of Human Services,50 another case decided by the Supreme
Court of Mississippi, it was held that even if paternity was established through an earlier
agreed order of filiation, child support and visitation orders could still be vacated once
DNA testing established someone other than the named individual to be the biological
father. The Mississippi High Court reiterated this doctrine in Williams v. Williams.51
The foregoing considered, we find no grave abuse of discretion on the part of the public
respondent for upholding the orders of the trial court which both denied the petitioner’s
motion to dismiss and ordered him to submit himself for DNA testing. Under Rule 65 of
the 1997 Rules of Civil Procedure, the remedy of certiorari is only available "when any
tribunal, board or officer has acted without or in excess of its or his jurisdiction, or with
grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no
appeal, nor any plain, speedy and adequate remedy in the ordinary course of law."52 In
Land Bank of the Philippines v. the Court of Appeals53 where we dismissed a special
civil action for certiorari under Rule 65, we discussed at length the nature of such a
petition and just what was meant by "grave abuse of discretion":
Grave abuse of discretion implies such capricious and whimsical exercise of judgment as
is equivalent to lack of jurisdiction or, in other words, where the power is exercised in an
arbitrary manner by reason of passion, prejudice, or personal hostility, and it must be so
patent or gross as to amount to an evasion of a positive duty or to a virtual refusal to
perform the duty enjoined or to act at all in contemplation of law.
The special civil action for certiorari is a remedy designed for the correction of errors of
jurisdiction and not errors of judgment. The raison d’etre for the rule is when a court
exercises its jurisdiction, an error committed while so engaged does not deprive it of the
jurisdiction being exercised when the error is committed. If it did, every error committed
by a court would deprive it of its jurisdiction and every erroneous judgment would be a
void judgment. In such a scenario, the administration of justice would not survive. Hence,
where the issue or question involved affects the wisdom or legal soundness of the
decision—not the jurisdiction of the court to render said decision—the same is beyond
the province of a special civil action for certiorari.
The proper recourse of the aggrieved party from a decision of the CA is a petition for
review on certiorari under Rule 45 of the Revised Rules of Court. On the other hand, if
the error subject of the recourse is one of jurisdiction, or the act complained of was
perpetrated by a quasi-judicial officer or agency with grave abuse of discretion
amounting to lack or excess of jurisdiction, the proper remedy available to the aggrieved
party is a petition for certiorari under Rule 65 of the said Rules. (emphasis supplied)
In the instant case, the petitioner has in no way shown any arbitrariness, passion,
prejudice or personal hostility that would amount to grave abuse of discretion on the part
of the Court of Appeals. The respondent court acted entirely within its jurisdiction in
promulgating its decision and resolution, and any error made would have only been an
error in judgment. As we have discussed, however, the decision of the respondent court,
being firmly anchored in law and jurisprudence, was correct.
Epilogue
For too long, illegitimate children have been marginalized by fathers who choose to deny
their existence. The growing sophistication of DNA testing technology finally provides a
much needed equalizer for such ostracized and abandoned progeny. We have long
believed in the merits of DNA testing and have repeatedly expressed as much in the past.
This case comes at a perfect time when DNA testing has finally evolved into a dependable
and authoritative form of evidence gathering. We therefore take this opportunity to
forcefully reiterate our stand that DNA testing is a valid means of determining paternity.
