affinity and consanguinity as a basis for disqualification under canon 3 section 5

7/24/2019 Affinity and Consanguinity as a Basis for Disqualification Under Canon 3 Section 5

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Afnity and consanguinity as a basis or disqualication under

Canon 3 section 5()

Problem Areas in Legal Ethics

Arellano University School of Law Arellano Law Foundation

20!"20#

$%S&UAL%F%'A(%)* )F +U$%'%AL )FF%'E,S

,,' ,ule -.

Sec/ / $isuali1cation of udges/ " *o udge or udicial o3cer shall sit in any

case in which he4 or his wife or child4 is 5ecuniarily interested as heir4 legatee4

creditor or otherwise4 or in which he is related to either party within the

sixth degree o consanguinity or afnity, or to counsel within the

ourth degree, com5uted according to the rules of the civil law4 or in which

he has been e6ecutor4 administrator4 guardian4 trustee or counsel4 or in whichhe has 5resided in any inferior court when his ruling or decision is the subect

of review4 without the written consent of all 5arties in interest4 signed by

them and entered u5on the record/

A udge may4 in the exercise o his sound discretion4 disualify himself

from sitting in a case4 for ust or valid reasons other than those mentioned

above/

Cont

Sec/ 2/ )bection that udge disuali1ed4 how made and e7ect/ " %f it beclaimed that an o3cial is disuali1ed from sitting as above 5rovided4 the

5arty obecting to his com5etency may4 in writing4 1le with the ofcialhis

obection4 stating the grounds therefor4 and the o3cial shall thereu5on

5roceed with the trial4 or withdraw therefrom4 in accordance with his

determination of the uestion of his disuali1cation/ 8is decision shall be

forthwith made in writing and 1led with the other 5a5ers in the case4 but no

appeal or stay shall be allowed ro4 or by reason of4 his decision in

favor of his own com5etency4 until ater nal !udgent in the case/

'A*)* -

A +U$9E S8)UL$ PE,F),: )FF%'%AL$U(%ES 8)*ES(L;4 A*$


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@a the udge has 5ersonal =nowledge of dis5uted evidentiary facts concerning the

5roceedingB

@b the udge served as e6ecutor4 administrator4 guardian4 trustee or lawyer in the

case or matter in controversy4 or a former associate of the udge served as counsel

during their association4 or the udge or lawyer was a material witness thereinB

@c the udge>s ruling in a lower court is the subect of reviewB

@d the udge is related by consanguinity or afnity to a party litigant within

the sixth degreeor to counsel within the ourth degreeB

@e the udge =nows the udge>s s5ouse or child has a 1nancial interest4 as heir4

legatee4 creditor4 1duciary4 or otherwise4 in the subect matter in controversy or in a

5arty to the 5roceeding4 or any other interest that could be substantially a7ected by

the outcome of the 5roceeding/

%n every instance4 the udge shall indicate the legal reason for inhibition/

"enition o afnity

A3nity is de1ned as Cthe relation which one s5ouse because of marriage has to

blood relatives of the other/ (he connection e6isting4 in conseuence of marriage

between each of the married 5ersons and the =indred of the other/ (he doctrine of

a3nity grows out of the canonical ma6im that marriage ma=es husband and wife

one/ (he husband has the same relation by afnity to his wie#s blood relati$es

as she has by consanguinity and vice versa/ PP v. Raul Berana, G.R. No.

123544 July 29, 1999

,elationshi5 by a3nity refers to a relation by virtue of a legal bond such as

marriage/ ,elatives by a3nity therefore are those commonly referred to as Cin"

laws4C or ste5father4 ste5mother4 ste5child and the li=e/ " PP v. Atop, G.R. Nos.

124303-05 Feruary 10, 199!

A3nity denotes Cthe relation that one s5ouse has to the blood relatives of the other

s5ouse/C %t is a relationshi5 by marriage or a familial relation resulting from

marriage/ %t is a 1ctive =inshi54 a 1ction created by law in connection with the

institution of marriage and family relations/ " "#$$an$ay v. Ju%$e &a'as A.(.

)*A +P+ No. 09-3243-R"J 2013

*'' SUDSE'(%)* / " ,elationshi5

Art% &'3/ Pro6imity of relationshi5 is determined by the number of

generations/ Each generation forms a degree/

Art% &'/ A series of degrees forms a line4 which may be either direct or

collateral/


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A direct lineis that constituted by the series of degrees among ascendants

and descendants/

A collateral lineis that constituted by the series of degrees among 5ersons

who are not ascendants and descendants4 but who come from a common ancestor/

Art% &'5/ (he direct line is either descending or ascending/

(he former unites the head of the family with those who descend from him/

(he latter binds a 5erson with those from whom he descends/

Art% &''/ %n the line4 as many degrees are counted as there are generations

or 5ersons4 e6cluding the 5rogenitor/

%n the direct line4 ascent is made to the common ancestor/ (hus4 the child is

one degree removed from the 5arent4 two from the grandfather4 and three

from the great"grand5arent/

%n the collateral line4 ascent is made to the common ancestor and then

descent is made to the 5erson with whom the com5utation is to be made/

(hus4 a 5erson is two degrees removed from his brother4 three from his uncle4

who is the brother of his father4 four from his 1rst cousin4 and so forth/

Art% &'/ *ull blood relationship is that e6isting between 5ersons who

have the same father and the same mother/

+al blood relationship is that e6isting between 5ersons who have the

same father4 but not the same mother4 or the same mother4 but not the same

father/

2 legal theories

/ (he terminated a3nity view holds that relationshi5 by a3nity terminates

with the dissolution of the marriage either by death or divorce which gave

rise to the relationshi5 of a3nity between the 5arties/

Under this view4 the relationshi5 by a3nity is sim5ly coe6tensive and

coe6istent with the marriage that 5roduced it/ %ts duration is indis5ensablyand necessarily determined by the marriage that created it/

(hus4 it e6ists only for so long as the marriage subsists4 such that the death

of a s5ouse i5so facto ends the relationshi5 by a3nity of the surviving s5ouse

to the deceased s5ouses blood relatives/


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(he 1rst view admits of an e6ce5tion/ (he relationshi5 by a3nity

continues even after the death of one s5ouse when there is a surviving issue/

(he rationale is that the relationshi5 is 5reserved because of the living issue

of the marriage in whose veins the blood of both 5arties is commingled/

2/(he continuing a3nity view maintains that relationshi5 by a3nity between thesurviving s5ouse and the =indred of the deceased s5ouse continues e$en ater

the death o the deceased spouse, regardless o whether the arriage

produced children or not%

Under this view4 the relationshi5 by afnity endures e$en ater the dissolution

o the arriage that produced it as a result o the deathof one of the 5arties

to the said marriage/

(his view considers that4 where statutes have indicated an intent to bene1t ste5"

relatives or in"laws4 the tie of a3nityG between these 5eo5le and their relatives"by"

marriage is not to be regarded as terinated upon the death o one o thearried parties/ +ntestate state o/ Gonales v%a. e *arun$'on$ v. PP,

G.R. No. 1!1409 Feruary 11, 2010

-lood relati$es.

,elatives by consanguinity or blood relatives encom5assed the following?

@ an ascendantB

@2 a descendantB

@- a legitimate4 natural or ado5ted brother or sister " PP v. Atop, G.R. Nos.124303-05 Feruary 10, 199!

/o afnity

%ndeed4 Cthere is no a3nity between the blood relatives of one s5ouse and the blood

relatives of the other/ A husband is related by a3nity to his wifes brother4 but not

to the wie o his wie0s brother/ (here is no afnity between the husband0s

brother and the wie0s sister% 1 "#$$an$ay v. Ju%$e &a'as A.(. )*A +P+ No.

09-3243-R"J 2013

%s the relationshi5 by a3nity created between the husband and the blood relatives

of his wife @as well as between the wife and the blood relatives of her husband

dissol$ed by the death o one spouse4 thus ending the marriage which created

such relationshi5 by a3nityH

%f marriage gives rise to ones relationshi5 by a3nity to the blood relatives of ones

s5ouse4 does the e6tinguishment of marriage by the death of the s5ouse dissolve

the relationshi5 by a3nityH


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Coon law. relationship not a relationship by afnity

(he law cannot be stretched to include 5ersons attached by common"law relations/

8ere4 there is no blood relationshi5 or legal bond that lin=s the a55ellant to his

victim/ (hus4 the modifying circumstance of relationshi5 cannot be considered

against him/ PP v. Atop, G.R. Nos. 124303-05 Feruary 10, 199!

Case 2

+udge is respondent0s second cousin by a3nity4 the formers IudgeJ aunt is

arried to an uncle o respondent/ (he relationshi5 notwithstanding4 +udge did

not inhibit himself from hearing said electoral case/

+udge4 as alleged4 are related within the si6th degree by a3nity in that the aunt of

the udge is married to the uncle of res5ondent/


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cautioned respondent !udge to inhibit hisel ro the case4 lest his

im5artiality be 5laced in doubt/ A$un%ay v. Ju%$e "resvalles, A.(. No. ("J-

99-123. Noveer 25, 1999

Coplainant is the !udge0s wie

,es5ondent issued a warrant for the arrest of com5lainant4 =nowing that the

pri$ate coplainant therein was his wie4 Atty/ Ester Flor/ "enenan v. Ju%$e

Flor, Jr., A.(. No. R"J-0-1995 epteer 25, 200

+udges ne5hew is the husband of the daughter of the counsel for the accused

%t is alleged that res5ondent should have inhibited himself from 'riminal 'ase *o/

20.0M4 entitled Peo5le v/ 'risostomo ;alung4 ,oy :anuel :/ Nillasor4 S9 Fernando

(agle4 and S9 ,onan 9uerreroG because respondent0s nephew, Atty% Cris

4ascua ara, is arried to the daughter o Atty% 4% 6% Castillo,

coplainants0 deense counsel in that case/ 'om5lainants claim that although

res5ondents relationshi5 is to the husband of the daughter of their counsel4 theydid not want res5ondent to try their case because they wanted to IavoidJ any

stigma andOor cloud of doubt on any orderOdecisionG which res5ondent may render

on the case/

%n this case4 res5ondent udge failed to ta=e into account the loss o trust on the

part o the coplainantas to his im5artiality/


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(he meat of this motion for inhibition is that the ather1in1law o the

4residing udge4 herein res5ondent4 was conspicuously present in the

proceedings during which time he gave consultation to the com5lainant

who was re5ortedly his 5olitical leader and 5rotge/

%n this case4 however4 res5ondent did not sim5ly fail to recuse himself from cases inwhich his relatives were either in$ol$ed or interested4 the record shows he did so

to favor or 5rotect the 5arties/ #a8an v. Ju%$e +nop#ue, Jr., A.(. No. ("J-

95-105. (ay 21, 2001

"iscussing the pending case with a brother

Dy allowing his brother to discuss with him the merits of one 5artys 5osition4

+ustice Sabio gave his brother the o55ortunity to inQuence him/ Any reasonable

5erson would tend to doubt +ustice Sabios inde5endence and obectivity after such

a con$ersation with a close aily eber who also happens to hold a

high go$ernent position% As a magistrate4 +ustice Sabio has the duty to5revent any circumstance that would cast doubt on his ability to decide a case

without interference or 5ressure from litigants4 counsels or their surrogates/ @ Re:

Letter of Presiding Justice Vasquez, Jr., A.M. No. 088!!CA, "cto#er !$, %008

affinity and consanguinity as a basis for disqualification under canon 3 section 5

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