Question No. 18 of the 2016 Remedial Law Bar Examination reads as follows:
“John filed a petition for declaration of nullity of his marriage to Anne on the ground of psychological incapacity under Article 36 of the Family Code. He obtained a copy of the confidential psychiatric evaluation report on his wife from the secretary of the psychiatrist. Can he testify on the said report without offending the rule on privileged communication? Explain.”
At the time the question was asked, the correct answer was that John can testify on the psychiatric report. This was based on Krohn v. Court of Appeals, 233 SCRA 146 (1994), the facts of which are similar to those of the question, and which holds that the physician-patient privilege bars only the physician, not other persons, from testifying on the confidential communication.
However, pursuant to an amendment in the 2019 Rules on Evidence, a privileged communication shall remain privileged, even in the hands of a third person who may have obtained the information, provided the original parties to the communication took reasonable precaution to protect its confidentiality (Section 24, Rule 130). Hence, the correct answer today would be that John cannot testify on the psychiatric report since the contents thereof are excluded as evidence under the physician-patient privilege.1
In the 2002 Remedial Law Bar Examination, the following question (6[b]) was asked:
“Rolando filed a petition for declaration of the nullity of his marriage to Carmela because of the alleged psychological incapacity of the latter. After trial, the court rendered judgment dismissing the petition on the ground that Rolando failed to prove the psychological incapacity of his wife. The judgment having become final, Rolando filed another petition, this time on the ground that his marriage to Carmela had been celebrated without a license. Is the second action barred by the judgment in the first? Why?”
The suggested answer of the UP Law Center is as follows:
“No, the second action is not barred by the judgment in the first because they are different causes of action. The first is for annulment of marriage on the ground of psychological incapacity under Article 36 of the Family Code, while the second is for declaration of nullity of the marriage in view of the absence of a basic requirement, which is a marriage license. They are different causes of action because the evidence required to prove them are not the same.”2
At the time the question was asked, this would have been an acceptable and persuasive answer.3
However, in the 31 October 2006 case of Mallion v. Alcantara,4 the Supreme Court, in a case involving facts which are similar to the 2002 bar question, held that because the ground of lack of license could have been raised in the first petition for declaration of nullity of marriage but was not, such ground was barred by res judicata pursuant to Section 47(b), Rule 39 of the Rules of Court. Hence, the suggested answer in the UPLC Bar Q&A is no longer in harmony with the controlling case law.
In the 2022 Remedial Law Bar Examination, a question (No.5) very similar to Question No. 6(b) of the 2002 Remedial Law Bar Examination was asked:
“Jimuel filed against his wife Jewel a petition for the declaration of nullity of their marriage, alleging as ground therefor Jewel’s psychological incapacity under Article 36 of the Family Code. The court denied the petition for insufficiency of the evidence presented at the trial. Much later, Jimuel again filed a petition against Jewel for the declaration of nullity of their marriage. This time, the basis of Jimuel’s petition was the absence of a marriage license at the time their marriage was celebrated. Upon Jewel’s motion, the court dismissed the petition on the ground of res judicata by virtue of the judgment in the first suit. Was the denial of the petition on the ground of res judicata proper? Explain briefly.”
The sad thing was that many bar examinees answered that the denial of the petition on the ground of res judicata was not proper, relying on bar review materials and compilations which simply parrot the suggested answers of the UPLC without vetting or reviewing whether these answers are still in sync with the current law and jurisprudence.
The lesson we may draw is that a bar reviewee should read with a discerning eye compilations of Bar Q&As. He should remember that while the suggested answers may have been correct at the time the questions were asked, they are not necessarily still correct under the present law or jurisprudence. He should check if the authors or editors have vetted the suggested answers by incorporating explanatory or clarificatory notes to the suggested answers. If not, he should read these materials ex abundanti cautela.
-oOo-
- There is no showing in the facts that the parties to the communication did not take reasonable precaution to protect the confidentiality of the report. A person is presumed to take ordinary care of his or her concerns (Sec. 3[d], Rule 131, Rules of Court). ↩︎
- Citations omitted. ↩︎
- Interestingly, the remedial law bar examiner himself, answering a virtually identical question, wrote in 2004 that the second action was barred because “the claim of invalidity for lack of a marriage license is one that could have been raised in the first case in relation to the matter involved. (Rule 39, Sec. 47[b]).” ANTONIO R. BAUTISTA, REMEDIAL LAW QUIZZER 115-116 (2004 ed.). ↩︎
- 506 SCRA 336. ↩︎
