The case of ROBERT BERNHARD BUEHS vs. ATTY. INOCENCIO T. BACATAN, A.C. No. 6674, June 30, 2009, involves a petition for the disbarment of respondent Atty. Inocencio T. based on representation of conflicting interests and gross misconduct for usurpation of authority.
The Supreme Court found the respondent GUILTY of gross misconduct for representing conflicting interests, gross ignorance of the law for issuing an order without authority, and failure to update his membership dues to the IBP; and was SUSPENDED from the practice of law for two (2) years, with a stern warning that a repetition of the same or similar acts will be dealt with more severely.
The Court further made the following pronouncements, thus:
1. Respondent is mistaken. Jurisdiction, once acquired, is not lost upon the instance of the parties but continues until the case is terminated, or until the writ of execution has been issued to enforce the judgment. The Indorsement was dated June 26, 2003, at which time the decision had not yet been enforced, as evidenced by respondent’s issuance of an Alias Writ of Execution dated December 28, 2004.
2. Even assuming that he had already lost jurisdiction over the illegal dismissal case, he remains liable for representing conflicting interests. Relevant provisions of the Code of Professional Responsibility state:
Rule 15.01 – A lawyer, in conferring with a prospective client, shall ascertain as soon as practicable whether the matter would involve a conflict with another client or is own interest, and if so, shall forthwith inform the prospective client.
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.
3. In Samala v. Valencia, the Court held that a lawyer may not undertake to discharge conflicting duties any more than he may represent antagonistic interests. This stern rule is founded on the principles of public policy and good taste, which springs from the relation of attorney and client, which is one of trust and confidence. Lawyers should not only keep inviolate the client's confidence, but also avoid the appearance of treachery and double-dealing. Only then can litigants be encouraged to entrust their secrets to their lawyers, which is of paramount importance in the administration of justice.
4. A conflict of interests also exists when 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.
5. In the present case, respondent 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 to the Office of the City Prosecutor of Zamboanga City 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 respondent that the phrase “counsel for the complainants,” found in the Indorsement, was a mere misprint. For if it were so, he could have easily crossed out the phrase or prepared another Indorsement deleting said phrase. His claim of misprint, therefore, 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.
6. Respondent likewise showed gross ignorance of the law when he issued a Hold Departure Order requesting the BID to place petitioner in its Watchlist, completely contravening Supreme Court Circular No. 39-97, which provides that said Orders shall be issued only in criminal cases within the exclusive jurisdiction of the Regional Trial Courts. Apropos is Tadlip v. Borres, Jr., where therein respondent, lawyer and provincial adjudicator, failed to apply the specific provisions of the 1994 New Rules of Procedure of the Department of Agrarian Reform Regional Arbitration Board (DARAB). The Court found him guilty of gross ignorance of the law and ruled that, since respondent became part of the quasi-judicial system of the government, his case may be likened to administrative cases of judges whose manner of deciding cases was also subject of administrative cases.
7. Lastly, as the Investigating Commissioner also discovered that respondent failed to update his IBP membership dues and pay his community tax certificate for the year 2004, he is likewise liable under Sections 9 and 10, Rule 139-A of the Rules Court, which read:
Section 9. Membership dues. – Every member of the Integrated Bar shall pay such annual dues as the Board of Governors shall determine with the approval of the Supreme Court. A fixed sum equivalent to ten percent (10%) of the collections from each Chapter shall be set aside as a Welfare Fund for disabled members of the Chapter and the compulsory heirs of deceased members.
Section 10. Effect of non-payment of dues. – Subject to the provisions of Section 12 of this Rule, default in the payment of annual dues for six months shall warrant suspension of membership in the Integrated Bar, and default in such payment for one year shall be a ground for the removal of the name of the delinquent member from the Roll of Attorneys.
8. Under Section 27, Rule 138 of the Rules of Court, a member of the Bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office. Gross misconduct has been defined as any inexcusable, shameful or flagrantly unlawful conduct on the part of the person involved in the administration of justice, conduct that is prejudicial to the rights of the parties or to the right determination of the cause. Such conduct is generally motivated by a premeditated, obstinate or intentional purpose. The term, however, does not necessarily imply corruption or criminal intent.
In previous cases involving representation of conflicting interests, the Court has sanctioned erring lawyers either by reprimand, or by suspension from the practice of law from six months to two years.
In the afore-cited case Tadlip v. Borres, Jr., therein respondent lawyer and provincial adjudicator found guilty of gross ignorance of the law was suspended from the practice of law for six (6) months.
In Santos, Jr. v. Llamas, where the respondent lawyer did not pay his IBP dues for eight years because he believed that as a senior citizen, he was exempt from paying the same, the Court suspended him from the practice of law for one (1) year, or until the respondent paid his dues.
In the present case, the Investigating Commissioner recommended the imposition of a one (1) year suspension, while the IBP Board of Governors recommended a two (2) year suspension. The Court, taking into account the recommendations of the Investigating Commissioner and the Board of Governors of the IBP, deems it appropriate to impose a penalty of two (2)- year suspension upon respondent, which is within the range of the penalty of six (6) months to two (2) years for offenses similar to those committed by respondent Atty. Bacatan, as held in several cases.
Wednesday, May 12, 2010
Gross immorality: 2 lawyers in love disbarred.
In the case of MAELOTISEA S. GARRIDO vs. ATTYS. ANGEL E. GARRIDO and ROMANA P. VALENCIA, En Bacn, A.C. No. 6593, the Supreme Court DISBARRED Atty. Angel E. Garrido and Atty. Romana P. Valencia from the practice of law for gross immorality, in violation of Canon 7 and Rule 7.03 of the Code of Professional Responsibility.
Maelotisea Sipin Garrido filed a complaint-affidavit and a supplemental affidavit for disbarment against the respondents Atty. Angel E. Garrido (Atty. Garrido) and Atty. Romana P.Valencia (Atty. Valencia) before the Integrated Bar of the Philippines (IBP) Committee on Discipline charging them with gross immorality. The complaint-affidavit states:
1. That I am the legal wife of Atty. Angel E. Garrido by virtue of our marriage on June 23, 1962 at San Marcelino Church, Ermita, Manila which was solemnized by Msgr. Daniel Cortes x x x
2. That our marriage blossomed into having us blessed with six (6) children, namely, Mat Elizabeth, Arnel Angelito, Madeleine Eloiza, Arnel Angelo, Arnel Victorino and Madonna Angeline, all surnamed Garrido;
3. x x x x
4. That on May, 1991, during my light moments with our children, one of my daughters, Madeleine confided to me that sometime on the later part of 1987, an unknown caller talked with her claiming that the former is a child of my husband. I ignored it and dismissed it as a mere joke. But when May Elizabeth, also one of my daughters told me that sometime on August 1990, she saw my husband strolling at the Robinson’s Department Store at Ermita, Manila together with a woman and a child who was later identified as Atty. Ramona Paguida Valencia and Angeli Ramona Valencia Garrido, respectively x x x
5. x x x x
6. That I did not stop from unearthing the truth until I was able to secure the Certificate of Live Birth of the child, stating among others that the said child is their daughter and that Atty. Angel Escobar Garrido and Atty. Romana Paguida Valencia were married at Hongkong sometime on 1978.
7. That on June 1993, my husband left our conjugal home and joined Atty. Ramona Paguida Valencia at their residence x x x
8. That since he left our conjugal home he failed and still failing to give us our needed financial support to the prejudice of our children who stopped schooling because of financial constraints.
x x x x
That I am also filing a disbarment proceedings against his mistress as alleged in the same affidavit, Atty. Romana P. Valencia considering that out of their immoral acts I suffered not only mental anguish but also besmirch reputation, wounded feelings and sleepless nights; x x x
In his Counter-Affidavit, Atty. Garrido denied Maelotisea’s charges and imputations. By way of defense, he alleged that Maelotisea was not his legal wife, as he was already married to Constancia David (Constancia) when he married Maelotisea. He claimed he married Maelotisea after he and Constancia parted ways. He further alleged that Maelotisea knew all his escapades and understood his “bad boy” image before she married him in 1962. As he and Maelotisea grew apart over the years due to financial problems, Atty. Garrido met Atty. Valencia. He became close to Atty. Valencia to whom he confided his difficulties. Together, they resolved his personal problems and his financial difficulties with his second family. Atty. Garrido denied that he failed to give financial support to his children with Maelotisea, emphasizing that all his six (6) children were educated in private schools; all graduated from college except for Arnel Victorino, who finished a special secondary course. Atty. Garrido alleged that Maelotisea had not been employed and had not practiced her profession for the past ten (10) years.
Atty. Garrido emphasized that all his marriages were contracted before he became a member of the bar on May 11, 1979, with the third marriage contracted after the death of Constancia on December 26, 1977. Likewise, his children with Maelotisea were born before he became a lawyer.
In her Counter-Affidavit, Atty. Valencia denied that she was the mistress of Atty. Garrido. She explained that Maelotisea was not the legal wife of Atty. Garrido since the marriage between them was void from the beginning due to the then existing marriage of Atty. Garrido with Constancia. Atty. Valencia claimed that Maelotisea knew of the romantic relationship between her and Atty. Garrido, as they (Maelotisea and Atty. Valencia) met in 1978. Maelotisea kept silent about her relationship with Atty. Garrido and had maintained this silence when she (Atty. Valencia) financially helped Atty. Garrido build a house for his second family. Atty. Valencia alleged that Maelotisea was not a proper party to this suit because of her silence; she kept silent when things were favorable and beneficial to her. Atty. Valencia also alleged that Maelotisea had no cause of action against her.
On April 13, 2004, Investigating Commissioner Milagros V. San Juan (Investigating Commissioner San Juan) submitted her Report and Recommendation for the respondents’ disbarment. The Commission on Bar Discipline of the IBP Board of Governors (IBP Board of Governors) approved and adopted this recommendation with modification under Resolution No. XVI-2004-375 dated July 30, 2004. This resolution in part states:
x x x finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering that Atty. Garrido exhibited conduct which lacks the degree of morality required as members of the bar, Atty. Angel E. Garrido is hereby DISBARRED for gross immorality. However, the case against Atty. Romana P. Valencia is hereby DISMISSED for lack of merit of the complaint.
Atty. Garrido moved to reconsider this resolution, but the IBP Commission on Bar Discipline denied his motion under Resolution No. XVII-2007-038 dated January 18, 2007.
Atty. Garrido then sought relief with the Court through the present petition for review. He submitted that under the circumstances, he did not commit any gross immorality that would warrant his disbarment. He also argued that the offenses charged had prescribed under the IBP rules.
Additionally, Atty. Garrido pleaded that he be allowed on humanitarian considerations to retain his profession; he was already in the twilight of his life, and had kept his promise to lead an upright and irreproachable life notwithstanding his situation.
In compliance with the Resolution of the Court dated August 25, 2009, Atty. Alicia A. Risos-Vidal (Atty. Risos-Vidal), Director of the Commission on Bar Discipline, filed her Comment on the petition. She recommended a modification of the penalty from disbarment to reprimand, advancing the view that disbarment was very harsh considering that the 77-year old Atty. Garrido took responsibility for his acts and tried to mend his ways by filing a petition for declaration of nullity of his bigamous marriage. Atty. Risos-Vidal also noted that no other administrative case had ever been filed against Atty. Garrido.
After due consideration, the Court resolved to adopt the findings of the IBP Board of Governors against Atty. Garrido, and to reject its recommendation with respect to Atty. Valencia. It thus held:
1. As applied to the present case, the time that elapsed between the immoral acts charged and the filing of the complaint is not material in considering the qualification of Atty. Garrido when he applied for admission to the practice of law, and his continuing qualification to be a member of the legal profession. From this perspective, it is not important that the acts complained of were committed before Atty. Garrido was admitted to the practice of law. As we explained in Zaguirre v. Castillo, the possession of good moral character is both a condition precedent and a continuing requirement to warrant admission to the bar and to retain membership in the legal profession. Admission to the bar does not preclude a subsequent judicial inquiry, upon proper complaint, into any question concerning the mental or moral fitness of the respondent before he became a lawyer. Admission to the practice only creates the rebuttable presumption that the applicant has all the qualifications to become a lawyer; this may be refuted by clear and convincing evidence to the contrary even after admission to the Bar.
2. In light of the public service character of the practice of law and the nature of disbarment proceedings as a public interest concern, Maelotisea’s affidavit of desistance cannot have the effect of discontinuing or abating the disbarment proceedings. As we have stated, Maelotisea is more of a witness than a complainant in these proceedings. We note further that she filed her affidavits of withdrawal only after she had presented her evidence; her evidence are now available for the Court’s examination and consideration, and their merits are not affected by her desistance. We cannot fail to note, too, that Mealotisea filed her affidavit of desistance, not to disown or refute the evidence she had submitted, but solely becuase of compassion (and, impliedly, out of concern for her personal financial interest in continuing friendly relations with Atty. Garrido).
3. Immoral conduct involves acts that are willful, flagrant, or shameless, and that show a moral indifference to the opinion of the upright and respectable members of the community. Immoral conduct is gross when it is so corrupt as to constitute a criminal act, or so unprincipled as to be reprehensible to a high degree, or when committed under such scandalous or revolting circumstances as to shock the community’s sense of decency. We make these distinctions as the supreme penalty of disbarment arising from conduct requires grossly immoral, not simply immoral, conduct.
4. In several cases, we applied the above standard in considering lawyers who contracted an unlawful second marriage or multiple marriages.
In Macarrubo v. Macarrubo, the respondent lawyer entered into multiple marriages and subsequently used legal remedies to sever them. We ruled that the respondent’s pattern of misconduct undermined the institutions of marriage and family – institutions that this society looks up to for the rearing of our children, for the development of values essential to the survival and well-being of our communities, and for the strengthening of our nation as a whole. In this light, no fate other than disbarment awaited the wayward respondent.
In Villasanta v. Peralta, the respondent lawyer married the complainant while his marriage with his first wife was subsisting. We held that the respondent’s act of contracting the second marriage was contrary to honesty, justice, decency and morality. The lack of good moral character required by the Rules of Court disqualified the respondent from admission to the Bar.
Similar to Villasanta was the case of Conjuangco, Jr. v. Palma, where the respondent secretly contracted a second marriage with the daughter of his client in Hongkong. We found that the respondent exhibited a deplorable lack of that degree of morality required of members of the Bar. In particular, he made a mockery of marriage – a sacred institution that demands respect and dignity. We also declared his act of contracting a second marriage contrary to honesty, justice, decency and morality.
5. In this case, the undisputed facts gathered from the evidence and the admissions of Atty. Garrido established a pattern of gross immoral conduct that warrants his disbarment. His conduct was not only corrupt or unprincipled; it was reprehensible to the highest degree.
First, Atty. Garrido admitted that he left Constancia to pursue his law studies; thereafter and during the marriage, he had romantic relationships with other women. He had the gall to represent to this Court that the study of law was his reason for leaving his wife; marriage and the study of law are not mutually exclusive.
Second, he misrepresented himself to Maelotisea as a bachelor, when in truth he was already married to Constancia. This was a misrepresentation given as an excuse to lure a woman into a prohibited relationship.
Third, Atty. Garrido contracted his second marriage with Maelotisea notwithstanding the subsistence of his first marriage. This was an open admission, not only of an illegal liaison, but of the commission of a crime.
Fourth, Atty. Garrido engaged in an extra-marital affair with Atty. Valencia while his two marriages were in place and without taking into consideration the moral and emotional implications of his actions on the two women he took as wives and on his six (6) children by his second marriage.
Fifth, instead of making legal amends to validate his marriage with Maelotisea upon the death of Constancia, Atty. Garrido married Atty. Valencia who bore him a daughter.
Sixth, Atty. Garrido misused his legal knowledge and convinced Atty. Valencia (who was not then a lawyer) that he was free to marry, considering that his marriage with Maelotisea was not “valid.”
Seventh, as the evidence on record implies, Atty. Garrido married Atty. Valencia in Hongkong in an apparent attempt to accord legitimacy to a union entered into while another marriage was in place.
Eighth, after admission to the practice of law, Atty. Garrido simultaneously cohabited and had sexual relations with two (2) women who at one point were both his wedded wives. He also led a double life with two (2) families for a period of more than ten (10) years.
Lastly, Atty. Garrido petitioned for the nullity of his marriage to Maelotisea. Contrary to the position advanced by Atty. Alicia A. Risos-Vidal, this was not an act of facing up to his responsibility or an act of mending his ways. This was an attempt, using his legal knowledge, to escape liability for his past actions by having his second marriage declared void after the present complaint was filed against him.
6. By his actions, Garrido committed multiple violations relating to the legal profession, specifically, violations of the bar admission rules, of his lawyer’s oath, and of the ethical rules of the profession.
He did not possess the good moral character required of a lawyer at the time of his admission to the Bar. As a lawyer, he violated his lawyer’s oath, Section 20(a) of Rule 138 of the Rules of Court, and Canon 1 of the Code of Professional Responsibility, all of which commonly require him to obey the laws of the land. In marrying Maelotisea, he committed the crime of bigamy, as he entered this second marriage while his first marriage with Constancia was subsisting. He openly admitted his bigamy when he filed his petition to nullify his marriage to Maelotisea.
He violated ethical rules of the profession, specifically, Rule 1.01 of the Code of Professional Responsibility, which commands that he “shall not engage in unlawful, dishonest, immoral or deceitful conduct”; Canon 7 of the same Code, which demands that “[a] lawyer shall at all times uphold the integrity and dignity of the legal profession”; Rule 7.03 of the Code of Professional Responsibility, which provides that, “[a] lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor should he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.”
7. As a lawyer, his community looked up to Atty. Garrido with the expectation and that he would set a good example in promoting obedience to the Constitution and the laws. When he violated the law and distorted it to cater to his own personal needs and selfish motives, he discredited the legal profession and created the public impression that laws are mere tools of convenience that can be used, bended and abused to satisfy personal whims and desires. In this case, he also used the law to free him from unwanted relationships.
8. The Court has often reminded the members of the bar to live up to the standards and norms expected of the legal profession by upholding the ideals and principles embodied in the Code of Professional Responsibility. Lawyers are bound to maintain not only a high standard of legal proficiency, but also of morality, including honesty, integrity and fair dealing. Lawyers are at all times subject to the watchful public eye and community approbation. Needless to state, those whose conduct – both public and private – fail this scrutiny have to be disciplined and, after appropriate proceedings, accordingly penalized.
9. We agree with the findings of Investigating Commissioner San Juan that Atty. Valencia should be administratively liable under the circumstances for gross immorality:
x x x The contention of respondent that they were not yet lawyers in March 27, 1978 when they got married shall not afford them exemption from sanctions, for good moral character is required as a condition precedent to admission to the Bar. Likewise there is no distinction whether the misconduct was committed in the lawyer’s professional capacity or in his private life. Again, the claim that his marriage to complainant was void ab initio shall not relieve respondents from responsibility x x x Although the second marriage of the respondent was subsequently declared null and void the fact remains that respondents exhibited conduct which lacks that degree of morality required of them as members of the Bar.
10. Moral character is not a subjective term but one that corresponds to objective reality. To have good moral character, a person must have the personal characteristics of being good. It is not enough that he or she has a good reputation, i.e., the opinion generally entertained about a person or the estimate in which he or she is held by the public in the place where she is known. The requirement of good moral character has four general purposes, namely: (1) to protect the public; (2) to protect the public image of lawyers; (3) to protect prospective clients; and (4) to protect errant lawyers from themselves. Each purpose is as important as the other.
11. Under the circumstances, we cannot overlook that prior to becoming a lawyer, Atty. Valencia already knew that Atty. Garrido was a married man (either to Constancia or to Maelotisea), and that he already had a family. As Atty. Garrido’s admitted confidante, she was under the moral duty to give him proper advice; instead, she entered into a romantic relationship with him for about six (6) years during the subsistence of his two marriages. In 1978, she married Atty. Garrido with the knowledge that he had an outstanding second marriage. These circumstances, to our mind, support the conclusion that she lacked good moral character; even without being a lawyer, a person possessed of high moral values, whose confidential advice was sought by another with respect to the latter’s family problems, would not aggravate the situation by entering into a romantic liaison with the person seeking advice, thereby effectively alienating the other person’s feelings and affection from his wife and family.
12. While Atty. Valencia contends that Atty. Garrido’s marriage with Maelotisea was null and void, the fact remains that she took a man away from a woman who bore him six (6) children. Ordinary decency would have required her to ward off Atty. Garrido’s advances, as he was a married man, in fact a twice-married man with both marriages subsisting at that time; she should have said no to Atty. Garrido from the very start. Instead, she continued her liaison with Atty. Garrido, driving him, upon the death of Constancia, away from legitimizing his relationship with Maelotisea and their children. Worse than this, because of Atty. Valencia’s presence and willingness, Atty. Garrido even left his second family and six children for a third marriage with her. This scenario smacks of immorality even if viewed outside of the prism of law.
13. We are not unmindful of Atty. Valencia’s expressed belief that Atty. Garrido’s second marriage to Maelotisea was invalid; hence, she felt free to marry Atty. Garrido. While this may be correct in the strict legal sense and was later on confirmed by the declaration of the nullity of Atty. Garrido’s marriage to Maelotisea, we do not believe at all in the honesty of this expressed belief.
14. The records show that Atty. Valencia consented to be married in Hongkong, not within the country. Given that this marriage transpired before the declaration of the nullity of Atty. Garrido’s second marriage, we can only call this Hongkong marriage a clandestine marriage, contrary to the Filipino tradition of celebrating a marriage together with family. Despite Atty. Valencia’s claim that she agreed to marry Atty. Garrido only after he showed her proof of his capacity to enter into a subsequent valid marriage, the celebration of their marriage in Hongkong leads us to the opposite conclusion; they wanted to marry in Hongkong for the added security of avoiding any charge of bigamy by entering into the subsequent marriage outside Philippine jurisdiction. In this regard, we cannot help but note that Atty. Valencia afterwards opted to retain and use her surname instead of using the surname of her “husband.” Atty. Valencia, too, did not appear to mind that her husband did not live and cohabit with her under one roof, but with his second wife and the family of this marriage. Apparently, Atty. Valencia did not mind at all “sharing” her husband with another woman. This, to us, is a clear demonstration of Atty. Valencia’s perverse sense of moral values.
15. Measured against the definition of gross immorality, we find Atty. Valencia’s actions grossly immoral. Her actions were so corrupt as to approximate a criminal act, for she married a man who, in all appearances, was married to another and with whom he has a family. Her actions were also unprincipled and reprehensible to a high degree; as the confidante of Atty. Garrido, she preyed on his vulnerability and engaged in a romantic relationship with him during the subsistence of his two previous marriages. As already mentioned, Atty. Valencia’s conduct could not but be scandalous and revolting to the point of shocking the community’s sense of decency; while she professed to be the lawfully wedded wife, she helped the second family build a house prior to her marriage to Atty. Garrido, and did not object to sharing her husband with the woman of his second marriage.
16. We find that Atty. Valencia violated Canon 7 and Rule 7.03 of the Code of Professional Responsibility, as her behavior demeaned the dignity of and discredited the legal profession. She simply failed in her duty as a lawyer to adhere unwaveringly to the highest standards of morality. In Barrientos v. Daarol, we held that lawyers, as officers of the court, must not only be of good moral character but must also be seen to be of good moral character and must lead lives in accordance with the highest moral standards of the community. Atty. Valencia failed to live up to these standards before she was admitted to the bar and after she became a member of the legal profession.
17. Membership in the Bar is a privilege burdened with conditions. As a privilege bestowed by law through the Supreme Court, membership in the Bar can be withdrawn where circumstances concretely show the lawyer’s lack of the essential qualifications required of lawyers. We resolve to withdraw this privilege from Atty. Angel E. Garrido and Atty. Rowena P. Valencia for this reason.
In imposing the penalty of disbarment upon the respondents, we are aware that the power to disbar is one to be exercised with great caution and only in clear cases of misconduct that seriously affects the standing and character of the lawyer as a legal professional and as an officer of the Court.
We are convinced from the totality of the evidence on hand that the present case is one of them. The records show the parties’ pattern of grave and immoral misconduct that demonstrates their lack of mental and emotional fitness and moral character to qualify them for the responsibilities and duties imposed on lawyers as professionals and as officers of the court.
18. While we are keenly aware of Atty. Garrido’s plea for compassion and his act of supporting his children with Maelotisea after their separation, we cannot grant his plea. The extent of his demonstrated violations of his oath, the Rules of Court and of the Code of Professional Responsibility overrides what under other circumstances are commendable traits of character.
19. In like manner, Atty. Valencia’s behavior over a long period of time unequivocally demonstrates a basic and serious flaw in her character, which we cannot simply brush aside without undermining the dignity of the legal profession and without placing the integrity of the administration of justice into question. She was not an on-looker victimized by the circumstances, but a willing and knowing full participant in a love triangle whose incidents crossed into the illicit.
Maelotisea Sipin Garrido filed a complaint-affidavit and a supplemental affidavit for disbarment against the respondents Atty. Angel E. Garrido (Atty. Garrido) and Atty. Romana P.Valencia (Atty. Valencia) before the Integrated Bar of the Philippines (IBP) Committee on Discipline charging them with gross immorality. The complaint-affidavit states:
1. That I am the legal wife of Atty. Angel E. Garrido by virtue of our marriage on June 23, 1962 at San Marcelino Church, Ermita, Manila which was solemnized by Msgr. Daniel Cortes x x x
2. That our marriage blossomed into having us blessed with six (6) children, namely, Mat Elizabeth, Arnel Angelito, Madeleine Eloiza, Arnel Angelo, Arnel Victorino and Madonna Angeline, all surnamed Garrido;
3. x x x x
4. That on May, 1991, during my light moments with our children, one of my daughters, Madeleine confided to me that sometime on the later part of 1987, an unknown caller talked with her claiming that the former is a child of my husband. I ignored it and dismissed it as a mere joke. But when May Elizabeth, also one of my daughters told me that sometime on August 1990, she saw my husband strolling at the Robinson’s Department Store at Ermita, Manila together with a woman and a child who was later identified as Atty. Ramona Paguida Valencia and Angeli Ramona Valencia Garrido, respectively x x x
5. x x x x
6. That I did not stop from unearthing the truth until I was able to secure the Certificate of Live Birth of the child, stating among others that the said child is their daughter and that Atty. Angel Escobar Garrido and Atty. Romana Paguida Valencia were married at Hongkong sometime on 1978.
7. That on June 1993, my husband left our conjugal home and joined Atty. Ramona Paguida Valencia at their residence x x x
8. That since he left our conjugal home he failed and still failing to give us our needed financial support to the prejudice of our children who stopped schooling because of financial constraints.
x x x x
That I am also filing a disbarment proceedings against his mistress as alleged in the same affidavit, Atty. Romana P. Valencia considering that out of their immoral acts I suffered not only mental anguish but also besmirch reputation, wounded feelings and sleepless nights; x x x
In his Counter-Affidavit, Atty. Garrido denied Maelotisea’s charges and imputations. By way of defense, he alleged that Maelotisea was not his legal wife, as he was already married to Constancia David (Constancia) when he married Maelotisea. He claimed he married Maelotisea after he and Constancia parted ways. He further alleged that Maelotisea knew all his escapades and understood his “bad boy” image before she married him in 1962. As he and Maelotisea grew apart over the years due to financial problems, Atty. Garrido met Atty. Valencia. He became close to Atty. Valencia to whom he confided his difficulties. Together, they resolved his personal problems and his financial difficulties with his second family. Atty. Garrido denied that he failed to give financial support to his children with Maelotisea, emphasizing that all his six (6) children were educated in private schools; all graduated from college except for Arnel Victorino, who finished a special secondary course. Atty. Garrido alleged that Maelotisea had not been employed and had not practiced her profession for the past ten (10) years.
Atty. Garrido emphasized that all his marriages were contracted before he became a member of the bar on May 11, 1979, with the third marriage contracted after the death of Constancia on December 26, 1977. Likewise, his children with Maelotisea were born before he became a lawyer.
In her Counter-Affidavit, Atty. Valencia denied that she was the mistress of Atty. Garrido. She explained that Maelotisea was not the legal wife of Atty. Garrido since the marriage between them was void from the beginning due to the then existing marriage of Atty. Garrido with Constancia. Atty. Valencia claimed that Maelotisea knew of the romantic relationship between her and Atty. Garrido, as they (Maelotisea and Atty. Valencia) met in 1978. Maelotisea kept silent about her relationship with Atty. Garrido and had maintained this silence when she (Atty. Valencia) financially helped Atty. Garrido build a house for his second family. Atty. Valencia alleged that Maelotisea was not a proper party to this suit because of her silence; she kept silent when things were favorable and beneficial to her. Atty. Valencia also alleged that Maelotisea had no cause of action against her.
On April 13, 2004, Investigating Commissioner Milagros V. San Juan (Investigating Commissioner San Juan) submitted her Report and Recommendation for the respondents’ disbarment. The Commission on Bar Discipline of the IBP Board of Governors (IBP Board of Governors) approved and adopted this recommendation with modification under Resolution No. XVI-2004-375 dated July 30, 2004. This resolution in part states:
x x x finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering that Atty. Garrido exhibited conduct which lacks the degree of morality required as members of the bar, Atty. Angel E. Garrido is hereby DISBARRED for gross immorality. However, the case against Atty. Romana P. Valencia is hereby DISMISSED for lack of merit of the complaint.
Atty. Garrido moved to reconsider this resolution, but the IBP Commission on Bar Discipline denied his motion under Resolution No. XVII-2007-038 dated January 18, 2007.
Atty. Garrido then sought relief with the Court through the present petition for review. He submitted that under the circumstances, he did not commit any gross immorality that would warrant his disbarment. He also argued that the offenses charged had prescribed under the IBP rules.
Additionally, Atty. Garrido pleaded that he be allowed on humanitarian considerations to retain his profession; he was already in the twilight of his life, and had kept his promise to lead an upright and irreproachable life notwithstanding his situation.
In compliance with the Resolution of the Court dated August 25, 2009, Atty. Alicia A. Risos-Vidal (Atty. Risos-Vidal), Director of the Commission on Bar Discipline, filed her Comment on the petition. She recommended a modification of the penalty from disbarment to reprimand, advancing the view that disbarment was very harsh considering that the 77-year old Atty. Garrido took responsibility for his acts and tried to mend his ways by filing a petition for declaration of nullity of his bigamous marriage. Atty. Risos-Vidal also noted that no other administrative case had ever been filed against Atty. Garrido.
After due consideration, the Court resolved to adopt the findings of the IBP Board of Governors against Atty. Garrido, and to reject its recommendation with respect to Atty. Valencia. It thus held:
1. As applied to the present case, the time that elapsed between the immoral acts charged and the filing of the complaint is not material in considering the qualification of Atty. Garrido when he applied for admission to the practice of law, and his continuing qualification to be a member of the legal profession. From this perspective, it is not important that the acts complained of were committed before Atty. Garrido was admitted to the practice of law. As we explained in Zaguirre v. Castillo, the possession of good moral character is both a condition precedent and a continuing requirement to warrant admission to the bar and to retain membership in the legal profession. Admission to the bar does not preclude a subsequent judicial inquiry, upon proper complaint, into any question concerning the mental or moral fitness of the respondent before he became a lawyer. Admission to the practice only creates the rebuttable presumption that the applicant has all the qualifications to become a lawyer; this may be refuted by clear and convincing evidence to the contrary even after admission to the Bar.
2. In light of the public service character of the practice of law and the nature of disbarment proceedings as a public interest concern, Maelotisea’s affidavit of desistance cannot have the effect of discontinuing or abating the disbarment proceedings. As we have stated, Maelotisea is more of a witness than a complainant in these proceedings. We note further that she filed her affidavits of withdrawal only after she had presented her evidence; her evidence are now available for the Court’s examination and consideration, and their merits are not affected by her desistance. We cannot fail to note, too, that Mealotisea filed her affidavit of desistance, not to disown or refute the evidence she had submitted, but solely becuase of compassion (and, impliedly, out of concern for her personal financial interest in continuing friendly relations with Atty. Garrido).
3. Immoral conduct involves acts that are willful, flagrant, or shameless, and that show a moral indifference to the opinion of the upright and respectable members of the community. Immoral conduct is gross when it is so corrupt as to constitute a criminal act, or so unprincipled as to be reprehensible to a high degree, or when committed under such scandalous or revolting circumstances as to shock the community’s sense of decency. We make these distinctions as the supreme penalty of disbarment arising from conduct requires grossly immoral, not simply immoral, conduct.
4. In several cases, we applied the above standard in considering lawyers who contracted an unlawful second marriage or multiple marriages.
In Macarrubo v. Macarrubo, the respondent lawyer entered into multiple marriages and subsequently used legal remedies to sever them. We ruled that the respondent’s pattern of misconduct undermined the institutions of marriage and family – institutions that this society looks up to for the rearing of our children, for the development of values essential to the survival and well-being of our communities, and for the strengthening of our nation as a whole. In this light, no fate other than disbarment awaited the wayward respondent.
In Villasanta v. Peralta, the respondent lawyer married the complainant while his marriage with his first wife was subsisting. We held that the respondent’s act of contracting the second marriage was contrary to honesty, justice, decency and morality. The lack of good moral character required by the Rules of Court disqualified the respondent from admission to the Bar.
Similar to Villasanta was the case of Conjuangco, Jr. v. Palma, where the respondent secretly contracted a second marriage with the daughter of his client in Hongkong. We found that the respondent exhibited a deplorable lack of that degree of morality required of members of the Bar. In particular, he made a mockery of marriage – a sacred institution that demands respect and dignity. We also declared his act of contracting a second marriage contrary to honesty, justice, decency and morality.
5. In this case, the undisputed facts gathered from the evidence and the admissions of Atty. Garrido established a pattern of gross immoral conduct that warrants his disbarment. His conduct was not only corrupt or unprincipled; it was reprehensible to the highest degree.
First, Atty. Garrido admitted that he left Constancia to pursue his law studies; thereafter and during the marriage, he had romantic relationships with other women. He had the gall to represent to this Court that the study of law was his reason for leaving his wife; marriage and the study of law are not mutually exclusive.
Second, he misrepresented himself to Maelotisea as a bachelor, when in truth he was already married to Constancia. This was a misrepresentation given as an excuse to lure a woman into a prohibited relationship.
Third, Atty. Garrido contracted his second marriage with Maelotisea notwithstanding the subsistence of his first marriage. This was an open admission, not only of an illegal liaison, but of the commission of a crime.
Fourth, Atty. Garrido engaged in an extra-marital affair with Atty. Valencia while his two marriages were in place and without taking into consideration the moral and emotional implications of his actions on the two women he took as wives and on his six (6) children by his second marriage.
Fifth, instead of making legal amends to validate his marriage with Maelotisea upon the death of Constancia, Atty. Garrido married Atty. Valencia who bore him a daughter.
Sixth, Atty. Garrido misused his legal knowledge and convinced Atty. Valencia (who was not then a lawyer) that he was free to marry, considering that his marriage with Maelotisea was not “valid.”
Seventh, as the evidence on record implies, Atty. Garrido married Atty. Valencia in Hongkong in an apparent attempt to accord legitimacy to a union entered into while another marriage was in place.
Eighth, after admission to the practice of law, Atty. Garrido simultaneously cohabited and had sexual relations with two (2) women who at one point were both his wedded wives. He also led a double life with two (2) families for a period of more than ten (10) years.
Lastly, Atty. Garrido petitioned for the nullity of his marriage to Maelotisea. Contrary to the position advanced by Atty. Alicia A. Risos-Vidal, this was not an act of facing up to his responsibility or an act of mending his ways. This was an attempt, using his legal knowledge, to escape liability for his past actions by having his second marriage declared void after the present complaint was filed against him.
6. By his actions, Garrido committed multiple violations relating to the legal profession, specifically, violations of the bar admission rules, of his lawyer’s oath, and of the ethical rules of the profession.
He did not possess the good moral character required of a lawyer at the time of his admission to the Bar. As a lawyer, he violated his lawyer’s oath, Section 20(a) of Rule 138 of the Rules of Court, and Canon 1 of the Code of Professional Responsibility, all of which commonly require him to obey the laws of the land. In marrying Maelotisea, he committed the crime of bigamy, as he entered this second marriage while his first marriage with Constancia was subsisting. He openly admitted his bigamy when he filed his petition to nullify his marriage to Maelotisea.
He violated ethical rules of the profession, specifically, Rule 1.01 of the Code of Professional Responsibility, which commands that he “shall not engage in unlawful, dishonest, immoral or deceitful conduct”; Canon 7 of the same Code, which demands that “[a] lawyer shall at all times uphold the integrity and dignity of the legal profession”; Rule 7.03 of the Code of Professional Responsibility, which provides that, “[a] lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor should he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.”
7. As a lawyer, his community looked up to Atty. Garrido with the expectation and that he would set a good example in promoting obedience to the Constitution and the laws. When he violated the law and distorted it to cater to his own personal needs and selfish motives, he discredited the legal profession and created the public impression that laws are mere tools of convenience that can be used, bended and abused to satisfy personal whims and desires. In this case, he also used the law to free him from unwanted relationships.
8. The Court has often reminded the members of the bar to live up to the standards and norms expected of the legal profession by upholding the ideals and principles embodied in the Code of Professional Responsibility. Lawyers are bound to maintain not only a high standard of legal proficiency, but also of morality, including honesty, integrity and fair dealing. Lawyers are at all times subject to the watchful public eye and community approbation. Needless to state, those whose conduct – both public and private – fail this scrutiny have to be disciplined and, after appropriate proceedings, accordingly penalized.
9. We agree with the findings of Investigating Commissioner San Juan that Atty. Valencia should be administratively liable under the circumstances for gross immorality:
x x x The contention of respondent that they were not yet lawyers in March 27, 1978 when they got married shall not afford them exemption from sanctions, for good moral character is required as a condition precedent to admission to the Bar. Likewise there is no distinction whether the misconduct was committed in the lawyer’s professional capacity or in his private life. Again, the claim that his marriage to complainant was void ab initio shall not relieve respondents from responsibility x x x Although the second marriage of the respondent was subsequently declared null and void the fact remains that respondents exhibited conduct which lacks that degree of morality required of them as members of the Bar.
10. Moral character is not a subjective term but one that corresponds to objective reality. To have good moral character, a person must have the personal characteristics of being good. It is not enough that he or she has a good reputation, i.e., the opinion generally entertained about a person or the estimate in which he or she is held by the public in the place where she is known. The requirement of good moral character has four general purposes, namely: (1) to protect the public; (2) to protect the public image of lawyers; (3) to protect prospective clients; and (4) to protect errant lawyers from themselves. Each purpose is as important as the other.
11. Under the circumstances, we cannot overlook that prior to becoming a lawyer, Atty. Valencia already knew that Atty. Garrido was a married man (either to Constancia or to Maelotisea), and that he already had a family. As Atty. Garrido’s admitted confidante, she was under the moral duty to give him proper advice; instead, she entered into a romantic relationship with him for about six (6) years during the subsistence of his two marriages. In 1978, she married Atty. Garrido with the knowledge that he had an outstanding second marriage. These circumstances, to our mind, support the conclusion that she lacked good moral character; even without being a lawyer, a person possessed of high moral values, whose confidential advice was sought by another with respect to the latter’s family problems, would not aggravate the situation by entering into a romantic liaison with the person seeking advice, thereby effectively alienating the other person’s feelings and affection from his wife and family.
12. While Atty. Valencia contends that Atty. Garrido’s marriage with Maelotisea was null and void, the fact remains that she took a man away from a woman who bore him six (6) children. Ordinary decency would have required her to ward off Atty. Garrido’s advances, as he was a married man, in fact a twice-married man with both marriages subsisting at that time; she should have said no to Atty. Garrido from the very start. Instead, she continued her liaison with Atty. Garrido, driving him, upon the death of Constancia, away from legitimizing his relationship with Maelotisea and their children. Worse than this, because of Atty. Valencia’s presence and willingness, Atty. Garrido even left his second family and six children for a third marriage with her. This scenario smacks of immorality even if viewed outside of the prism of law.
13. We are not unmindful of Atty. Valencia’s expressed belief that Atty. Garrido’s second marriage to Maelotisea was invalid; hence, she felt free to marry Atty. Garrido. While this may be correct in the strict legal sense and was later on confirmed by the declaration of the nullity of Atty. Garrido’s marriage to Maelotisea, we do not believe at all in the honesty of this expressed belief.
14. The records show that Atty. Valencia consented to be married in Hongkong, not within the country. Given that this marriage transpired before the declaration of the nullity of Atty. Garrido’s second marriage, we can only call this Hongkong marriage a clandestine marriage, contrary to the Filipino tradition of celebrating a marriage together with family. Despite Atty. Valencia’s claim that she agreed to marry Atty. Garrido only after he showed her proof of his capacity to enter into a subsequent valid marriage, the celebration of their marriage in Hongkong leads us to the opposite conclusion; they wanted to marry in Hongkong for the added security of avoiding any charge of bigamy by entering into the subsequent marriage outside Philippine jurisdiction. In this regard, we cannot help but note that Atty. Valencia afterwards opted to retain and use her surname instead of using the surname of her “husband.” Atty. Valencia, too, did not appear to mind that her husband did not live and cohabit with her under one roof, but with his second wife and the family of this marriage. Apparently, Atty. Valencia did not mind at all “sharing” her husband with another woman. This, to us, is a clear demonstration of Atty. Valencia’s perverse sense of moral values.
15. Measured against the definition of gross immorality, we find Atty. Valencia’s actions grossly immoral. Her actions were so corrupt as to approximate a criminal act, for she married a man who, in all appearances, was married to another and with whom he has a family. Her actions were also unprincipled and reprehensible to a high degree; as the confidante of Atty. Garrido, she preyed on his vulnerability and engaged in a romantic relationship with him during the subsistence of his two previous marriages. As already mentioned, Atty. Valencia’s conduct could not but be scandalous and revolting to the point of shocking the community’s sense of decency; while she professed to be the lawfully wedded wife, she helped the second family build a house prior to her marriage to Atty. Garrido, and did not object to sharing her husband with the woman of his second marriage.
16. We find that Atty. Valencia violated Canon 7 and Rule 7.03 of the Code of Professional Responsibility, as her behavior demeaned the dignity of and discredited the legal profession. She simply failed in her duty as a lawyer to adhere unwaveringly to the highest standards of morality. In Barrientos v. Daarol, we held that lawyers, as officers of the court, must not only be of good moral character but must also be seen to be of good moral character and must lead lives in accordance with the highest moral standards of the community. Atty. Valencia failed to live up to these standards before she was admitted to the bar and after she became a member of the legal profession.
17. Membership in the Bar is a privilege burdened with conditions. As a privilege bestowed by law through the Supreme Court, membership in the Bar can be withdrawn where circumstances concretely show the lawyer’s lack of the essential qualifications required of lawyers. We resolve to withdraw this privilege from Atty. Angel E. Garrido and Atty. Rowena P. Valencia for this reason.
In imposing the penalty of disbarment upon the respondents, we are aware that the power to disbar is one to be exercised with great caution and only in clear cases of misconduct that seriously affects the standing and character of the lawyer as a legal professional and as an officer of the Court.
We are convinced from the totality of the evidence on hand that the present case is one of them. The records show the parties’ pattern of grave and immoral misconduct that demonstrates their lack of mental and emotional fitness and moral character to qualify them for the responsibilities and duties imposed on lawyers as professionals and as officers of the court.
18. While we are keenly aware of Atty. Garrido’s plea for compassion and his act of supporting his children with Maelotisea after their separation, we cannot grant his plea. The extent of his demonstrated violations of his oath, the Rules of Court and of the Code of Professional Responsibility overrides what under other circumstances are commendable traits of character.
19. In like manner, Atty. Valencia’s behavior over a long period of time unequivocally demonstrates a basic and serious flaw in her character, which we cannot simply brush aside without undermining the dignity of the legal profession and without placing the integrity of the administration of justice into question. She was not an on-looker victimized by the circumstances, but a willing and knowing full participant in a love triangle whose incidents crossed into the illicit.
Paid but failed to render service; lawyer suspended.
In TRINIDAD H. CAMARA vs. ATTY. OSCAR AMANDY REYES, A.C. No. 6121, July 31, 2009, the Supreme Court SUSPENDED the respondent lawyer for a period of SIX (6) MONTHS from the practice of law.
Sometime in 2003, complainant hired the services of respondent to handle her case. As partial acceptance fee, respondent received from complainant P50,000.00 evidenced by a receipt placed on his calling card. Respondent, however, took no steps to protect complainant’s interest. As no service was rendered by respondent, complainant asked that he return the amount given him so that she could use it in repairing her house. Respondent offered that he would take charge of repairing the house. Yet, he again failed to fulfill his promise, which prompted the complainant to reiterate her demand for the return of the money. As respondent failed to give back the amount demanded, complainant initiated the instant case.
In his Answer, respondent prayed that the case be closed and terminated, simply because the matter has already been resolved by all the parties concerned. He added that complainant went to his office and explained that she signed the letter-complaint not knowing that it was against respondent, as she was made to believe that it was a complaint against her neighbor.
On February 19, 2007, the Court referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. In his Report and Recommendation, IBP Commissioner Salvador B. Hababag made the following findings:
There is proof that respondent receipted the amount of Php50,000.00 in his own handwriting. Even his calling card was given to the complainants.
Canon 16, Rule 16.01 provides that a lawyer shall account for all money or property collected or received for or from the client.
Canon 18, Rule 18.03 provides that a lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable.
Canon 18, Rule 18.04 provides that a lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to client’s request for information.
Using the above yardsticks, clearly the respondent is liable and failed to live [up] to [the] above mentioned standards.
While it is true that complainant Trinidad Camara allegedly executed an affidavit, the same will not save the respondent.
As a general rule, disbarment proceeding shall not be interrupted or terminated by reason of the desistance, settlement, compromise, restitution, withdrawal of the charges or failure of the complainant to prosecute unless the Court motu proprio determines that there is no compelling reason to continue with the disbarment or suspension proceedings against the respondent.
We reiterate that the respondent did not traverse the charges against him. He simply wanted this case to be closed and terminated allegedly because he and Mrs. Camara had already resolved their problem and the latter’s son, who also signed the letter-complaint as attorney-in-fact has no authority to do so.
WHEREFORE, premises considered, it [is] most respectfully recommended that the respondent be suspended for six (6) months from the active practice of law.
In its Resolution No. XVIII-2008-522, the IBP Board of Governors adopted and approved the report and recommendation of the investigating Commissioner.
The Court agreed with the foregoing recommendation. It held thus;
1. The Court notes that despite the opportunity accorded to respondent to refute the charges against him, he failed to do so or even offer a valid explanation. It is incumbent upon respondent to meet the issue and overcome the evidence against him. He must show proof that he still maintains that degree of morality and integrity which at all times is expected of him. These, respondent miserably failed to do.
2. The record is bereft of any evidence to show that respondent has presented any countervailing evidence to dispute the charges against him. In his answer, he did not even deny complainant’s allegations. He only prayed that the case be closed and terminated, simply because the problem with complainant had already been resolved.
3. The alleged compromise between complainant and respondent is not enough to exonerate the latter from the present disciplinary case. A case of suspension or disbarment may proceed regardless of the interest or lack of interest of the complainant. What matters is whether, on the basis of the facts borne out by the record, the charge of negligence has been duly proved.
4. Disciplinary proceedings involve no private interest and afford no redress for private grievance. They are undertaken and prosecuted solely for the public welfare, and for the purpose of preserving courts of justice from the official ministration of persons unfit to practice in them. The attorney is called to answer to the court for his conduct as an officer of the court. The complainant is in no sense a party, and has generally no interest in the outcome of the case. This is also the reason why this Court may investigate charges against lawyers regardless of complainant’s standing.
5. When respondent accepted the amount of P50,000.00 from complainant, it was understood that he agreed to take up the latter’s case, and that an attorney-client relationship between them was established. From then on, it was expected that he would serve his client, herein complainant, with competence, and attend to her cause with fidelity, care and devotion.
6. The act of receiving money as acceptance fee for legal services in handling complainant’s case and subsequently failing to render such services is a clear violation of Canon 18 of the Code of Professional Responsibility, which provides that a lawyer shall serve his client with competence and diligence. Specifically, Rule 18.03 states:
A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable.
7. A member of the legal profession owes his client entire devotion to the latter’s genuine interest, and warm zeal in the maintenance and defense of his rights. An attorney is expected to exert his best efforts and ability to preserve his client’s cause, for the unwavering loyalty displayed to his client, likewise, serves the ends of justice. Verily, the entrusted privilege to practice law carries with it the corresponding duties, not only to the client, but also to the court, to the bar and to the public.
8. The fiduciary duty of a lawyer and advocate is what places the law profession in a unique position of trust and confidence, and distinguishes it from any other calling. Once this trust and confidence is betrayed, the faith of the people, not only in the individual lawyer but also in the legal profession as a whole, is eroded. To this end, all members of the bar are strictly required at all times to maintain the highest degree of public confidence in the fidelity, honesty and integrity of their profession.
9. The factual antecedents in Reyes v. Vitan and Sencio v. Atty. Calvadores bear a striking similarity to the present case. In Reyes, complainant engaged the services of respondent lawyer for the purpose of filing the appropriate complaint or charges against the former’s sister-in-law and the latter’s niece. After receiving the amount of P17,000.00, respondent did not take any action on complainant’s case. In Sencio, complainant therein, likewise, engaged the services of Atty. Calvadores to prosecute the civil aspect of the case in relation to the death of her son in a vehicular accident. The total amount of P12,000.00 was duly acknowledged and received by respondent as attorney’s fees. Despite repeated assurances by respondent, complainant discovered that the former had not filed any case on her behalf.
In both cases, the Court suspended the respondent lawyers for a period of six (6) months. Thus, we impose the same penalty on respondent herein, as recommended by the IBP Board of Governors.
Sometime in 2003, complainant hired the services of respondent to handle her case. As partial acceptance fee, respondent received from complainant P50,000.00 evidenced by a receipt placed on his calling card. Respondent, however, took no steps to protect complainant’s interest. As no service was rendered by respondent, complainant asked that he return the amount given him so that she could use it in repairing her house. Respondent offered that he would take charge of repairing the house. Yet, he again failed to fulfill his promise, which prompted the complainant to reiterate her demand for the return of the money. As respondent failed to give back the amount demanded, complainant initiated the instant case.
In his Answer, respondent prayed that the case be closed and terminated, simply because the matter has already been resolved by all the parties concerned. He added that complainant went to his office and explained that she signed the letter-complaint not knowing that it was against respondent, as she was made to believe that it was a complaint against her neighbor.
On February 19, 2007, the Court referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. In his Report and Recommendation, IBP Commissioner Salvador B. Hababag made the following findings:
There is proof that respondent receipted the amount of Php50,000.00 in his own handwriting. Even his calling card was given to the complainants.
Canon 16, Rule 16.01 provides that a lawyer shall account for all money or property collected or received for or from the client.
Canon 18, Rule 18.03 provides that a lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable.
Canon 18, Rule 18.04 provides that a lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to client’s request for information.
Using the above yardsticks, clearly the respondent is liable and failed to live [up] to [the] above mentioned standards.
While it is true that complainant Trinidad Camara allegedly executed an affidavit, the same will not save the respondent.
As a general rule, disbarment proceeding shall not be interrupted or terminated by reason of the desistance, settlement, compromise, restitution, withdrawal of the charges or failure of the complainant to prosecute unless the Court motu proprio determines that there is no compelling reason to continue with the disbarment or suspension proceedings against the respondent.
We reiterate that the respondent did not traverse the charges against him. He simply wanted this case to be closed and terminated allegedly because he and Mrs. Camara had already resolved their problem and the latter’s son, who also signed the letter-complaint as attorney-in-fact has no authority to do so.
WHEREFORE, premises considered, it [is] most respectfully recommended that the respondent be suspended for six (6) months from the active practice of law.
In its Resolution No. XVIII-2008-522, the IBP Board of Governors adopted and approved the report and recommendation of the investigating Commissioner.
The Court agreed with the foregoing recommendation. It held thus;
1. The Court notes that despite the opportunity accorded to respondent to refute the charges against him, he failed to do so or even offer a valid explanation. It is incumbent upon respondent to meet the issue and overcome the evidence against him. He must show proof that he still maintains that degree of morality and integrity which at all times is expected of him. These, respondent miserably failed to do.
2. The record is bereft of any evidence to show that respondent has presented any countervailing evidence to dispute the charges against him. In his answer, he did not even deny complainant’s allegations. He only prayed that the case be closed and terminated, simply because the problem with complainant had already been resolved.
3. The alleged compromise between complainant and respondent is not enough to exonerate the latter from the present disciplinary case. A case of suspension or disbarment may proceed regardless of the interest or lack of interest of the complainant. What matters is whether, on the basis of the facts borne out by the record, the charge of negligence has been duly proved.
4. Disciplinary proceedings involve no private interest and afford no redress for private grievance. They are undertaken and prosecuted solely for the public welfare, and for the purpose of preserving courts of justice from the official ministration of persons unfit to practice in them. The attorney is called to answer to the court for his conduct as an officer of the court. The complainant is in no sense a party, and has generally no interest in the outcome of the case. This is also the reason why this Court may investigate charges against lawyers regardless of complainant’s standing.
5. When respondent accepted the amount of P50,000.00 from complainant, it was understood that he agreed to take up the latter’s case, and that an attorney-client relationship between them was established. From then on, it was expected that he would serve his client, herein complainant, with competence, and attend to her cause with fidelity, care and devotion.
6. The act of receiving money as acceptance fee for legal services in handling complainant’s case and subsequently failing to render such services is a clear violation of Canon 18 of the Code of Professional Responsibility, which provides that a lawyer shall serve his client with competence and diligence. Specifically, Rule 18.03 states:
A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable.
7. A member of the legal profession owes his client entire devotion to the latter’s genuine interest, and warm zeal in the maintenance and defense of his rights. An attorney is expected to exert his best efforts and ability to preserve his client’s cause, for the unwavering loyalty displayed to his client, likewise, serves the ends of justice. Verily, the entrusted privilege to practice law carries with it the corresponding duties, not only to the client, but also to the court, to the bar and to the public.
8. The fiduciary duty of a lawyer and advocate is what places the law profession in a unique position of trust and confidence, and distinguishes it from any other calling. Once this trust and confidence is betrayed, the faith of the people, not only in the individual lawyer but also in the legal profession as a whole, is eroded. To this end, all members of the bar are strictly required at all times to maintain the highest degree of public confidence in the fidelity, honesty and integrity of their profession.
9. The factual antecedents in Reyes v. Vitan and Sencio v. Atty. Calvadores bear a striking similarity to the present case. In Reyes, complainant engaged the services of respondent lawyer for the purpose of filing the appropriate complaint or charges against the former’s sister-in-law and the latter’s niece. After receiving the amount of P17,000.00, respondent did not take any action on complainant’s case. In Sencio, complainant therein, likewise, engaged the services of Atty. Calvadores to prosecute the civil aspect of the case in relation to the death of her son in a vehicular accident. The total amount of P12,000.00 was duly acknowledged and received by respondent as attorney’s fees. Despite repeated assurances by respondent, complainant discovered that the former had not filed any case on her behalf.
In both cases, the Court suspended the respondent lawyers for a period of six (6) months. Thus, we impose the same penalty on respondent herein, as recommended by the IBP Board of Governors.
Lawyer cleared; not negligent.
The case of AVITO YU vs. ATTY. CESAR R. TAJANLANGIT, ADM. CASE NO. 5691, March 13, 2009 was an administrative complaint for disbarment filed by complainant Avito Yu against respondent Atty. Cesar R. Tajanlangit for violation of Rules 18.03 and 16.01 of the Code of Professional Responsibility (the Code).
Complainant alleged that he had engaged the services of respondent as defense counsel in Criminal Case No. 96-150393 that resulted in a judgment of conviction against him and a sentence of thirty (30) years of imprisonment. After the motion for reconsideration and/or new trial was denied by the trial court, instead of filing an appeal, respondent filed a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure imputing grave abuse of discretion on the trial court’s part in denying the motion. This petition was subsequently denied by the Court of Appeals. Due to respondent’s alleged error in the choice of remedy, the period to appeal lapsed and complainant was made to suffer imprisonment resulting from his conviction. In depriving complainant of his right to an appeal, respondent allegedly violated Rule 18.03 of the Code. Moreover, complainant averred that respondent had violated Rule 16.01 of the Code for failing to return the bailbond to him in the amount P195,000.00 after having withdrawn the same. Further, complainant stated that respondent had failed to pay the telephone bill he had incurred during his stay at complainant’s house.
The Supreme Court adopted the findings of the Commission on Bar Discipline which held thus:
On the charge of violating Rule 18.03
x x x Considering that Respondent was only hired after the denial of the Motion for Reconsideration and/or New Trial, Complainant is silent whether an appeal was still available to him at that time. Complainant failed to state the material dates when his first lawyer, Atty. Lacsamana received the Decision dated 6 February 1998, when she filed the Motion for Reconsideration and/or New Trial, and when his second lawyer, Atty. Espiritu, received the Order dated 23 April 1999.
While all of the lawyers who protected Complainant’s cause were of the view that there was a need to present additional evidence and/or hold trial anew, it is obvious that Complainant singled out Respondent and blamed him solely for his conviction.
At any rate, Respondent exhaustively explained his legal basis for elevating the Order dated 23 April 1999 to the Court of Appeals by filing a Petition for Certiorari. Considering that the Order dated 23 April 1999, which denied the Motion for Reconsideration and/or New Trial, Respondent’s argument that the said order is not the proper subject of appeal is tenable. This is supported by Section 1(a), Rule 43 and Section 9, Rule 37 of the Rules of Court. For another, a perusal of grounds Respondent raised in the Petition is acceptable grounds that warrant a new trial. At least two of the grounds Respondent raised were: the negligence of former counsel in failing to present evidence and new discovered evidence. It is well-settled that these grounds usually warrant the re-opening of evidence. Thus, it cannot be said that Respondent acted negligently in advocating Complainant’s cause.
x x x
On the charge of violating Rule 16.01
x x x In the absence of evidence controverting Respondent’s claim that a verbal agreement exists or an amount different from what was agreed upon, it is believable that indeed, Complainant knew of the fee arrangement entered into with the Respondent, through Ms. Javier, who acted in his behalf. It is also indisputable that Complainant executed a Special Power of Attorney dated 23 March 1999 authorizing the Respondent to withdraw the cash bonds in several criminal cases on his behalf. Thus, it was not all improper for Respondent to withdraw the same.
x x x
While Respondent is entitled to be paid for the legal services he rendered and expenses he incurred, it is still Respondent’s obligation to render an accounting of the money received.
x x x
Further, Respondent did not substantiate his claim that he had paid for or tendered payment for the unpaid telephone bill. While he contends that he previously asked for the billing statement, it was allegedly not shown to him. However, there is no showing that from the time the instant disbarment complaint was filed, which in itself constitutes the demand for its payment, any payment (was) made by the Respondent.
Accordingly, the IBP Commissioner recommended that respondent be directed to: (1) render an accounting of the money he had received and to itemize the nature of the legal services he had rendered, inclusive of the expenses he had incurred in compliance with Rule 16.01 of the Code; and (2) to pay the amount of the unpaid telephone bill. It was further recommended that respondent be sternly warned that a similar offense in the future would be dealt with more severely.
On 12 March 2005, the IBP Board of Governors passed Resolution No. XVI-2005-83 adopting and approving the Report and Recommendation of the IBP Commissioner.
The Court was in full accord with the findings and recommendation of the IBP. It held thus:
1. Records show that respondent did not serve as complainant’s lawyer at the inception of or during the trial of Criminal Case No. 96-150393 which resulted to the conviction of the latter. In fact, respondent was only engaged as counsel after the withdrawal of appearance of complainant’s lawyers and denial of the Motion for Reconsideration and/or New Trial and the supplement thereto. At that time, complainant had already been incarcerated. Significantly, complainant made no mention of the availability of the remedy of appeal at the time of respondent’s employment.
2. More importantly, the Court finds adequate respondent’s justification for filing the petition for certiorari instead of an appeal. Indeed, there is no showing that respondent was negligent in handling the legal matter entrusted to him by complainant.
3. The Court also agrees with the IBP that it was not at all improper for respondent to have withdrawn the cash bonds as there was evidence showing that complainant and respondent had entered into a special fee arrangement. But, however justified respondent was in applying the cash bonds to the payment of his services and reimbursement of the expenses he had incurred, the Court agrees with the IBP that he is not excused from rendering an accounting of the same. In Garcia v. Atty. Manuel, the Court held that “(t)he highly fiduciary and confidential relation of attorney and client requires that the lawyer should promptly account for all the funds received from, or held by him for, the client.” The fact that a lawyer has a lien for his attorney’s fees on the money in his hands collected for his client does not relieve him from the obligation to make a prompt accounting.
4. Finally, the Court concurs with the IBP that while it is true that respondent was not presented a copy of the unpaid telephone bill, the instant complaint itself constitutes the demand for its payment. Considering that there is no manifestation to the effect that the same has been paid, respondent should accordingly be required to settle it.
Complainant alleged that he had engaged the services of respondent as defense counsel in Criminal Case No. 96-150393 that resulted in a judgment of conviction against him and a sentence of thirty (30) years of imprisonment. After the motion for reconsideration and/or new trial was denied by the trial court, instead of filing an appeal, respondent filed a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure imputing grave abuse of discretion on the trial court’s part in denying the motion. This petition was subsequently denied by the Court of Appeals. Due to respondent’s alleged error in the choice of remedy, the period to appeal lapsed and complainant was made to suffer imprisonment resulting from his conviction. In depriving complainant of his right to an appeal, respondent allegedly violated Rule 18.03 of the Code. Moreover, complainant averred that respondent had violated Rule 16.01 of the Code for failing to return the bailbond to him in the amount P195,000.00 after having withdrawn the same. Further, complainant stated that respondent had failed to pay the telephone bill he had incurred during his stay at complainant’s house.
The Supreme Court adopted the findings of the Commission on Bar Discipline which held thus:
On the charge of violating Rule 18.03
x x x Considering that Respondent was only hired after the denial of the Motion for Reconsideration and/or New Trial, Complainant is silent whether an appeal was still available to him at that time. Complainant failed to state the material dates when his first lawyer, Atty. Lacsamana received the Decision dated 6 February 1998, when she filed the Motion for Reconsideration and/or New Trial, and when his second lawyer, Atty. Espiritu, received the Order dated 23 April 1999.
While all of the lawyers who protected Complainant’s cause were of the view that there was a need to present additional evidence and/or hold trial anew, it is obvious that Complainant singled out Respondent and blamed him solely for his conviction.
At any rate, Respondent exhaustively explained his legal basis for elevating the Order dated 23 April 1999 to the Court of Appeals by filing a Petition for Certiorari. Considering that the Order dated 23 April 1999, which denied the Motion for Reconsideration and/or New Trial, Respondent’s argument that the said order is not the proper subject of appeal is tenable. This is supported by Section 1(a), Rule 43 and Section 9, Rule 37 of the Rules of Court. For another, a perusal of grounds Respondent raised in the Petition is acceptable grounds that warrant a new trial. At least two of the grounds Respondent raised were: the negligence of former counsel in failing to present evidence and new discovered evidence. It is well-settled that these grounds usually warrant the re-opening of evidence. Thus, it cannot be said that Respondent acted negligently in advocating Complainant’s cause.
x x x
On the charge of violating Rule 16.01
x x x In the absence of evidence controverting Respondent’s claim that a verbal agreement exists or an amount different from what was agreed upon, it is believable that indeed, Complainant knew of the fee arrangement entered into with the Respondent, through Ms. Javier, who acted in his behalf. It is also indisputable that Complainant executed a Special Power of Attorney dated 23 March 1999 authorizing the Respondent to withdraw the cash bonds in several criminal cases on his behalf. Thus, it was not all improper for Respondent to withdraw the same.
x x x
While Respondent is entitled to be paid for the legal services he rendered and expenses he incurred, it is still Respondent’s obligation to render an accounting of the money received.
x x x
Further, Respondent did not substantiate his claim that he had paid for or tendered payment for the unpaid telephone bill. While he contends that he previously asked for the billing statement, it was allegedly not shown to him. However, there is no showing that from the time the instant disbarment complaint was filed, which in itself constitutes the demand for its payment, any payment (was) made by the Respondent.
Accordingly, the IBP Commissioner recommended that respondent be directed to: (1) render an accounting of the money he had received and to itemize the nature of the legal services he had rendered, inclusive of the expenses he had incurred in compliance with Rule 16.01 of the Code; and (2) to pay the amount of the unpaid telephone bill. It was further recommended that respondent be sternly warned that a similar offense in the future would be dealt with more severely.
On 12 March 2005, the IBP Board of Governors passed Resolution No. XVI-2005-83 adopting and approving the Report and Recommendation of the IBP Commissioner.
The Court was in full accord with the findings and recommendation of the IBP. It held thus:
1. Records show that respondent did not serve as complainant’s lawyer at the inception of or during the trial of Criminal Case No. 96-150393 which resulted to the conviction of the latter. In fact, respondent was only engaged as counsel after the withdrawal of appearance of complainant’s lawyers and denial of the Motion for Reconsideration and/or New Trial and the supplement thereto. At that time, complainant had already been incarcerated. Significantly, complainant made no mention of the availability of the remedy of appeal at the time of respondent’s employment.
2. More importantly, the Court finds adequate respondent’s justification for filing the petition for certiorari instead of an appeal. Indeed, there is no showing that respondent was negligent in handling the legal matter entrusted to him by complainant.
3. The Court also agrees with the IBP that it was not at all improper for respondent to have withdrawn the cash bonds as there was evidence showing that complainant and respondent had entered into a special fee arrangement. But, however justified respondent was in applying the cash bonds to the payment of his services and reimbursement of the expenses he had incurred, the Court agrees with the IBP that he is not excused from rendering an accounting of the same. In Garcia v. Atty. Manuel, the Court held that “(t)he highly fiduciary and confidential relation of attorney and client requires that the lawyer should promptly account for all the funds received from, or held by him for, the client.” The fact that a lawyer has a lien for his attorney’s fees on the money in his hands collected for his client does not relieve him from the obligation to make a prompt accounting.
4. Finally, the Court concurs with the IBP that while it is true that respondent was not presented a copy of the unpaid telephone bill, the instant complaint itself constitutes the demand for its payment. Considering that there is no manifestation to the effect that the same has been paid, respondent should accordingly be required to settle it.
Lawyers in government; when allowed to practise.
In the case of FELIPE E. ABELLA vs. ATTY. ASTERIA E. CRUZABRA, A.C. No. 5688, June 4, 2009, the Supreme Court found Atty. Asteria E. Cruzabra guilty of engaging in notarial practice without the written authority from the Secretary of the Department of Justice, and accordingly it REPRIMANDED her. She was warned that a repetition of the same or similar act in the future shall merit a more severe sanction. The Court further held, thus:
1. Section 7(b)(2) of RA 6713 provides:
Section 7. Prohibited Acts and Transactions. - In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful:
x x x
(b) Outside employment and other activities related thereto. - Public officials and employees during their incumbency shall not:
x x x
(2) Engage in the private practice of their profession unless authorized by the Constitution or law, provided, that such practice will not conflict or tend to conflict with their official functions; or
x x x
2. Memorandum Circular No. 17 of the Executive Department allows government employees to engage directly in the private practice of their profession provided there is a written permission from the Department head. It provides:
The authority to grant permission to any official or employee shall be granted by the head of the ministry or agency in accordance with Section 12, Rule XVIII of the Revised Civil Service Rules, which provides:
“Sec. 12. No officer or employee shall engage directly in any private business, vocation, or profession or be connected with any commercial, credit, agricultural, or industrial undertaking without a written permission from the head of Department; Provided, That this prohibition will be absolute in the case of those officers and employees whose duties and responsibilities require that their entire time be at the disposal of the Government: Provided, further, That if an employee is granted permission to engage in outside activities, the time so devoted outside of office hours should be fixed by the chief of the agency to the end that it will not impair in any way the efficiency of the other officer or employee: And provided, finally, That no permission is necessary in the case of investments, made by an officer or employee, which do not involve any real or apparent conflict between his private interests and public duties, or in any way influence him in the discharge of his duties, and he shall not take part in the management of the enterprise or become an officer or member of the board of directors”,
Subject to any additional conditions which the head of the office deems necessary in each particular case in the interest of the service, as expressed in the various issuances of the Civil Service Commission. (Boldfacing supplied)
3. It is clear that when respondent filed her petition for commission as a notary public, she did not obtain a written permission from the Secretary of the DOJ. Respondent’s superior, the Register of Deeds, cannot issue any authorization because he is not the head of the Department. And even assuming that the Register of Deeds authorized her, respondent failed to present any proof of that written permission. Respondent cannot feign ignorance or good faith because respondent filed her petition for commission as a notary public after Memorandum Circular No. 17 was issued in 1986.
4. In Yumol, Jr. v. Ferrer Sr., we suspended a lawyer employed in the Commission on Human Rights (CHR) for failing to obtain a written authority and approval with a duly approved leave of absence from the CHR. We explained:
Crystal clear from the foregoing is the fact that private practice of law by CHR lawyers is not a matter of right. Although the Commission allows CHR lawyers to engage in private practice, a written request and approval thereof, with a duly approved leave of absence for that matter are indispensable. In the case at bar, the record is bereft of any such written request or duly approved leave of absence. No written authority nor approval of the practice and approved leave of absence by the CHR was ever presented by respondent. Thus, he cannot engage in private practice.
As to respondent’s act of notarizing documents, records show that he applied for commission as notary public on 14 November 2000, before the Regional Trial Court (RTC) of San Fernando, Pampanga, Branch 42. This was granted by RTC Executive Judge Pedro M. Sunga, Jr., on 01 December 2000. However, the CHR authorized respondent to act as notary public only on 29 October 2001. Considering the acts of notarization are within the ambit of the term “practice of law,” for which a prior written request and approval by the CHR to engage into it are required, the crucial period to be considered is the approval of the CHR on 29 October 2001 and not the approval of the RTC on 04 December 2000.
5. In Muring, Jr. v. Gatcho, we suspended a lawyer for having filed petitions for commission as a notary public while employed as a court attorney. We held:
Atty. Gatcho should have known that as a government lawyer, he was prohibited from engaging in notarial practice, or in any form of private legal practice for that matter. Atty. Gatcho cannot now feign ignorance or good faith, as he did not seek to exculpate himself by providing an explanation for his error. Atty. Gatcho’s filing of the petition for commission, while not an actual engagement in the practice of law, appears as a furtive attempt to evade the prohibition.
6. Under the Uniform Rules on Administrative Cases in the Civil Service, engaging in the private practice of profession, when unauthorized, is classified as a light offense punishable by reprimand.
1. Section 7(b)(2) of RA 6713 provides:
Section 7. Prohibited Acts and Transactions. - In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful:
x x x
(b) Outside employment and other activities related thereto. - Public officials and employees during their incumbency shall not:
x x x
(2) Engage in the private practice of their profession unless authorized by the Constitution or law, provided, that such practice will not conflict or tend to conflict with their official functions; or
x x x
2. Memorandum Circular No. 17 of the Executive Department allows government employees to engage directly in the private practice of their profession provided there is a written permission from the Department head. It provides:
The authority to grant permission to any official or employee shall be granted by the head of the ministry or agency in accordance with Section 12, Rule XVIII of the Revised Civil Service Rules, which provides:
“Sec. 12. No officer or employee shall engage directly in any private business, vocation, or profession or be connected with any commercial, credit, agricultural, or industrial undertaking without a written permission from the head of Department; Provided, That this prohibition will be absolute in the case of those officers and employees whose duties and responsibilities require that their entire time be at the disposal of the Government: Provided, further, That if an employee is granted permission to engage in outside activities, the time so devoted outside of office hours should be fixed by the chief of the agency to the end that it will not impair in any way the efficiency of the other officer or employee: And provided, finally, That no permission is necessary in the case of investments, made by an officer or employee, which do not involve any real or apparent conflict between his private interests and public duties, or in any way influence him in the discharge of his duties, and he shall not take part in the management of the enterprise or become an officer or member of the board of directors”,
Subject to any additional conditions which the head of the office deems necessary in each particular case in the interest of the service, as expressed in the various issuances of the Civil Service Commission. (Boldfacing supplied)
3. It is clear that when respondent filed her petition for commission as a notary public, she did not obtain a written permission from the Secretary of the DOJ. Respondent’s superior, the Register of Deeds, cannot issue any authorization because he is not the head of the Department. And even assuming that the Register of Deeds authorized her, respondent failed to present any proof of that written permission. Respondent cannot feign ignorance or good faith because respondent filed her petition for commission as a notary public after Memorandum Circular No. 17 was issued in 1986.
4. In Yumol, Jr. v. Ferrer Sr., we suspended a lawyer employed in the Commission on Human Rights (CHR) for failing to obtain a written authority and approval with a duly approved leave of absence from the CHR. We explained:
Crystal clear from the foregoing is the fact that private practice of law by CHR lawyers is not a matter of right. Although the Commission allows CHR lawyers to engage in private practice, a written request and approval thereof, with a duly approved leave of absence for that matter are indispensable. In the case at bar, the record is bereft of any such written request or duly approved leave of absence. No written authority nor approval of the practice and approved leave of absence by the CHR was ever presented by respondent. Thus, he cannot engage in private practice.
As to respondent’s act of notarizing documents, records show that he applied for commission as notary public on 14 November 2000, before the Regional Trial Court (RTC) of San Fernando, Pampanga, Branch 42. This was granted by RTC Executive Judge Pedro M. Sunga, Jr., on 01 December 2000. However, the CHR authorized respondent to act as notary public only on 29 October 2001. Considering the acts of notarization are within the ambit of the term “practice of law,” for which a prior written request and approval by the CHR to engage into it are required, the crucial period to be considered is the approval of the CHR on 29 October 2001 and not the approval of the RTC on 04 December 2000.
5. In Muring, Jr. v. Gatcho, we suspended a lawyer for having filed petitions for commission as a notary public while employed as a court attorney. We held:
Atty. Gatcho should have known that as a government lawyer, he was prohibited from engaging in notarial practice, or in any form of private legal practice for that matter. Atty. Gatcho cannot now feign ignorance or good faith, as he did not seek to exculpate himself by providing an explanation for his error. Atty. Gatcho’s filing of the petition for commission, while not an actual engagement in the practice of law, appears as a furtive attempt to evade the prohibition.
6. Under the Uniform Rules on Administrative Cases in the Civil Service, engaging in the private practice of profession, when unauthorized, is classified as a light offense punishable by reprimand.
Lawyer suspended; negligent.
In the case of ATTY. ELMER C. SOLIDON vs. ATTY. RAMIL E. MACALALAD, A.C. No. 8158, February 24, 2010, imposed on Atty. Ramil E. Macalalad the penalty of SIX (6) MONTHS SUSPENSION from the practice of law for violations of Rule 16.03 and Rule 18.03 of the Code of Professional Responsibility. Atty. Macalalad was STERNLY WARNED that a repetition of the same or similar acts will be dealt with more severely. Atty. Macalalad was also ORDERED to RETURN to Atty. Elmer C. Solidon the amount of Fifty Thousand Pesos (P50,000.00) with interest of twelve percent (12%) per annum from the date of promulgation of this Decision until the full amount is returned. Further, the Court held as follows:
1. In administrative cases against lawyers, the quantum of proof required is preponderance of evidence which the complainant has the burden to discharge. We fully considered the evidence presented and we are fully satisfied that the complainant’s evidence, as outlined above, fully satisfies the required quantum of proof in proving Atty. Macalalad’s negligence.
2. Rule 18.03, Canon 18 of the Code of Professional Responsibility provides for the rule on negligence and states:
Rule 18.03 – A lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable.
3. This Court has consistently held, in construing this Rule, that the mere failure of the lawyer to perform the obligations due to the client is considered per se a violation.
Thus, in Villafuerte v. Cortez, we held that a lawyer is negligent if he failed to do anything to protect his client’s interest after receiving his acceptance fee. In In Re: Atty. Briones, we ruled that the failure of the counsel to submit the required brief within the reglementary period (to the prejudice of his client who languished in jail for more than a year) is an offense that warrants disciplinary action. In Garcia v. Atty. Manuel, we penalized a lawyer for failing to inform the client of the status of the case, among other matters.
Subsequently, in Reyes v. Vitan, we reiterated that the act of receiving money as acceptance fee for legal services in handling the complainant’s case and, subsequently, in failing to render the services, is a clear violation of Canon 18 of the Code of Professional Responsibility. We made the same conclusion in Canoy v. Ortiz where we emphatically stated that the lawyer’s failure to file the position paper was per se a violation of Rule 18.03 of the Code of Professional Responsibility.
4. The circumstance that the client was also at fault does not exonerate a lawyer from liability for his negligence in handling a case. In Canoy, we accordingly declared that the lawyer cannot shift the blame to his client for failing to follow up on his case because it was the lawyer’s duty to inform his client of the status of the case. Our rulings in Macarilay v. Seriña, in Heirs of Ballesteros v. Apiag, and in Villaflores v. Limos were of the same tenor. In Villaflores, we opined that even if the client has been equally at fault for the lack of communication, the main responsibility remains with the lawyer to inquire and know the best means to acquire the required information. We held that as between the client and his lawyer, the latter has more control in handling the case.
5. All these rulings drive home the fiduciary nature of a lawyer’s duty to his client once an engagement for legal services is accepted. A lawyer so engaged to represent a client bears the responsibility of protecting the latter’s interest with utmost diligence. The lawyer bears the duty to serve his client with competence and diligence, and to exert his best efforts to protect, within the bounds of the law, the interest of his or her client. Accordingly, competence, not only in the knowledge of law, but also in the management of the cases by giving these cases appropriate attention and due preparation, is expected from a lawyer.
6. The records in this case tell us that Atty. Macalalad failed to act as he committed when he failed to file the required petition. He cannot now shift the blame to his clients since it was his duty as a lawyer to communicate with them. At any rate, we reject Atty. Macalalad’s defense that it was his clients who failed to contact him. Although no previous communication transpired between Atty. Macalalad and his clients, the records nevertheless show that Atty. Solidon, who contracted Atty. Macalalad’s services in behalf of his relatives, tried his best to reach him prior to the filing of the present disbarment case. Atty. Solidon even enlisted the aid of Ms. Cabo-Borata to follow-up on the status of the registration application with Atty. Macalalad.
7. In addition to the above finding of negligence, we also find Atty. Macalalad guilty of violating Rule 16.01 of the Code of Professional Responsibility which requires a lawyer to account for all the money received from the client. In this case, Atty. Macalalad did not immediately account for and promptly return the money he received from Atty. Solidon even after he failed to render any legal service within the contracted time of the engagement.
1. In administrative cases against lawyers, the quantum of proof required is preponderance of evidence which the complainant has the burden to discharge. We fully considered the evidence presented and we are fully satisfied that the complainant’s evidence, as outlined above, fully satisfies the required quantum of proof in proving Atty. Macalalad’s negligence.
2. Rule 18.03, Canon 18 of the Code of Professional Responsibility provides for the rule on negligence and states:
Rule 18.03 – A lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable.
3. This Court has consistently held, in construing this Rule, that the mere failure of the lawyer to perform the obligations due to the client is considered per se a violation.
Thus, in Villafuerte v. Cortez, we held that a lawyer is negligent if he failed to do anything to protect his client’s interest after receiving his acceptance fee. In In Re: Atty. Briones, we ruled that the failure of the counsel to submit the required brief within the reglementary period (to the prejudice of his client who languished in jail for more than a year) is an offense that warrants disciplinary action. In Garcia v. Atty. Manuel, we penalized a lawyer for failing to inform the client of the status of the case, among other matters.
Subsequently, in Reyes v. Vitan, we reiterated that the act of receiving money as acceptance fee for legal services in handling the complainant’s case and, subsequently, in failing to render the services, is a clear violation of Canon 18 of the Code of Professional Responsibility. We made the same conclusion in Canoy v. Ortiz where we emphatically stated that the lawyer’s failure to file the position paper was per se a violation of Rule 18.03 of the Code of Professional Responsibility.
4. The circumstance that the client was also at fault does not exonerate a lawyer from liability for his negligence in handling a case. In Canoy, we accordingly declared that the lawyer cannot shift the blame to his client for failing to follow up on his case because it was the lawyer’s duty to inform his client of the status of the case. Our rulings in Macarilay v. Seriña, in Heirs of Ballesteros v. Apiag, and in Villaflores v. Limos were of the same tenor. In Villaflores, we opined that even if the client has been equally at fault for the lack of communication, the main responsibility remains with the lawyer to inquire and know the best means to acquire the required information. We held that as between the client and his lawyer, the latter has more control in handling the case.
5. All these rulings drive home the fiduciary nature of a lawyer’s duty to his client once an engagement for legal services is accepted. A lawyer so engaged to represent a client bears the responsibility of protecting the latter’s interest with utmost diligence. The lawyer bears the duty to serve his client with competence and diligence, and to exert his best efforts to protect, within the bounds of the law, the interest of his or her client. Accordingly, competence, not only in the knowledge of law, but also in the management of the cases by giving these cases appropriate attention and due preparation, is expected from a lawyer.
6. The records in this case tell us that Atty. Macalalad failed to act as he committed when he failed to file the required petition. He cannot now shift the blame to his clients since it was his duty as a lawyer to communicate with them. At any rate, we reject Atty. Macalalad’s defense that it was his clients who failed to contact him. Although no previous communication transpired between Atty. Macalalad and his clients, the records nevertheless show that Atty. Solidon, who contracted Atty. Macalalad’s services in behalf of his relatives, tried his best to reach him prior to the filing of the present disbarment case. Atty. Solidon even enlisted the aid of Ms. Cabo-Borata to follow-up on the status of the registration application with Atty. Macalalad.
7. In addition to the above finding of negligence, we also find Atty. Macalalad guilty of violating Rule 16.01 of the Code of Professional Responsibility which requires a lawyer to account for all the money received from the client. In this case, Atty. Macalalad did not immediately account for and promptly return the money he received from Atty. Solidon even after he failed to render any legal service within the contracted time of the engagement.
Municipal election contests; 2010 rules of procedure.
2010 RULES OF PROCEDURE FOR MUNICIPAL ELECTION CONTESTS
RULE I
S C O P E
Section 1. Title and coverage. – These Rules shall be known and cited as The 2010 Rules of Procedure for Municipal Election Contests.
These Rules shall apply to election contests under the Automated Election System using the Precinct Count Optical Scan, and shall govern the filing of pleadings, practice and procedure in these contests.
Section 2. Application of the Rules of Court. – The Rules of Court shall apply to aspects of pleadings, practice and procedure in election contests not specifically provided for in these Rules.
Section 3. Explanation of terms. – For purposes of and as used in these Rules:
(a) Courts – refers to the Regional Trial Court;
(b) Election – means the choice or selection of candidates for public office by popular vote through the use of the ballot. Specifically, it covers the conduct of the polls, including the listing of voters, the holding of the electoral campaign, the casting and counting of ballots, the consolidation and transmission of results, and the canvassing of the returns;
(c) Automated Election System or AES – refers to an election system using the technology designated by the Commission on Elections (COMELEC) for voting, counting, consolidating, canvassing, transmission of election results, and the returns;
(d) Precinct Count Optical Scan or PCOS – refers to the machine as well as the technology using an optical ballot scanner, located in every precinct, that scans or reads paper ballots that voters mark by hand and insert into the scanner to be counted;
(e) Official ballot – refers to the paper ballot, capable of being optically scanned, with the pre-printed names of all candidates and with ovals corresponding to each of the printed names. The ovals are the spaces where voters express their choice through marking or shading using a COMELEC-provided marking pen.
(f) Picture Image of the Ballot – refers to the image of the ballot captured by the PCOS machine at the time the voter feeds his/her ballot, which image is later stored in a memory or removable data storage device attached to the PCOS machines.
(g) Election Return – refers to the document showing the date of the election, the province, city, municipality and the precinct where voting is held, and the number of votes in figures for each candidate in a precinct or in clustered precincts.
(h) Electronic Election Return – refers to the copy of the election return in electronic form, generated by the PCOS machine, that is electronically transmitted to: (1) the Municipal Board of Canvassers for the official canvass; (2) the COMELEC Back-Up Server; (3) the server for the dominant majority party; (4) the server for dominant minority party; (5) server for the citizen’s arm authorized by the COMELEC to conduct a parallel count; and (6) the Kapisanan ng mga Broadcaster sa Pilipinas or KBP.
(i) Printed Election Return – refers to the copy of the election return printed by the PCOS machine on paper, and authenticated by the manual signatures and thumbmarks of the Board of Election Inspectors (BEI) members.
(j) Electronic transmission – refers to the act of conveying data in electronic form from one location to another.
(k) Canvass proceedings – refers to the proceedings that involve the consolidation of precinct election results at the municipal level. The term also includes the formal proclamation of the election winners at the municipal level.
(l) Consolidation machine – refers to the machine used during the canvass proceedings to consolidate at every canvass level.
(m) Statement of Votes by Precinct, Municipality, City, District, Province, or Overseas Absentee Voting (OAV) Station -–refers to a document in electronic and in printed form generated by consolidation machines or by computers during the canvass proceedings. This document records the votes obtained by candidates in each
precinct, municipality, city, district, province, or OAV Station, as the case may be.
(n) Municipal Certificate of Canvass – refers to the document in electronic and in printed form, containing the total votes in figures obtained by each candidate in the municipality the electronic form of which is the official canvass result in the municipality electronically-transmitted to a higher canvass level.
(o) Certificate of Canvass and Proclamation – refers to the official document in printed form, containing the names of all candidates who obtained the highest number of votes in a particular municipality and certifying to these candidates’ proclamation as winners.
(p) Data Storage Device – refers to the device that stores electronic documents from where data may be obtained when necessary to verify the accuracy and correctness of election data. The data storage device used in a PCOS shall be under the custody and direct responsibility of the election officer after completion of the voting process. A data storage device includes the back-up storage device under COMELEC custody that likewise stores authentic electronic copies of data.
(q) Audit Log – refers to the electronic document, stored in the PCOS machine’s data storage device, containing the list of all activities the PCOS machine performs from the time that it is powered on until it is turned off.
(r) Electronic document – refers to the record of information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieve or produced electronically. It includes digitally-signed documents and any printout or output, readable by sight or other means, that accurately reflects the electronic document.
For purposes of these Rules, an electronic document refers to either the picture image of the ballots or the electronic copies of the election returns, the statements of votes, the certificates of canvass, the audit log, and other electronic data processed by the PCOS and consolidation machines.
(s) Manual count of ballots – where voting using the AES ballots proceeded manually because the PCOS machines could not be used, votes shall be counted manually under the guidelines provided by the COMELEC, and the courts shall be guided accordingly.
(t) Election contests – refers to election protests or petitions for quo warranto.
(u) Election protest – refers to an election contest involving the election and returns of municipal elective officials, grounded on fraud or irregularities committed in the conduct of the elections, i.e., in the casting and the counting of the ballots, in the consolidation of votes and in the canvassing of returns, not otherwise classified as a pre-proclamation controversy cognizable by the COMELEC.
The issue is who obtained the plurality of valid votes cast.
(v) Quo Warranto under the Omnibus Election Code – refers to an election contest involving the qualifications for office of an elective municipal official, on the ground of ineligibility or disloyalty to the Republic of the Philippines. The issue is whether the respondent possesses all the qualifications and none of the disqualifications prescribed by law.
(w) Revision of ballots – refers ton the recount of ballots through their physical count; the segregation of ballots for the protestant, the protestee and other candidates for the same position and the recording of the objections and claims to these ballots.
(x) Promulgation – refers to the process of officially issuing the court’s decision or order in an election contest.
Section 4. Inherent powers of the court. – A regional trial court acting on an election contest shall have all the inherent powers of a court provided under Rule 135 of the Rules of Court, including the power to issue auxiliary writs, processes, and other means necessary to carry its authority or jurisdiction into effect and to adopt suitable processes not expressly provided by, but conformable with, law, these Rules, or the Rules of Court.
Section 5. Construction. – The Rules shall be liberally constructed to achieve a just, expeditious, and inexpensive determination and disposition of municipal election contests.
RULE 2
ELECTION CONTESTS
Section 1. Jurisdiction of regional trial courts. – Regional trial courts shall have exclusive original jurisdiction over all election contests involving municipal officials.
Section 2. How initiated. – An election contest is initiated by the filing of an election protest or a petition for quo warranto against an elective municipal official. An election protest or a petition for quo warranto shall be filed directly with the court in three legible copies plus such number of copies corresponding to the number of protestees or respondents.
An election protest shall not include a petition for quo warranto, nor shall a petition for quo warranto include an election protest.
Section 3. Modes of service and filing. – Service and filing of pleadings, including the initiatory petition and other subsequent papers, shall be done personally.
Except for papers emanating from the court, resort to other modes of service must be accompanied by a written explanation why the service or filing was not done personally. A pleading or motion violating this Rule shall be considered not to have been filed.1avvphi1
Section 4. Election protest. – A petition contesting the election or returns for an elective municipal office shall be filed with the proper Regional Trial Court by an candidate who was voted for the same office and who received the second or third-highest number of votes or, in a multi-slot position, was among the next four candidates following the last-ranked winner duly proclaimed, as reflected in the official results of the election contained in the Statement of Votes by Precinct.
The party filing the protest shall be designated as the protestant; the adverse party shall be known as the protestee.
Each contest shall refer exclusively to one office; however, contests for offices of the Sangguniang Bayan may be consolidated in one case.
Section 5. Quo warranto. – A petition for quo warranto against an elective municipal official shall be filed with the proper Regional Trial Court by any registered voter who voted in the municipal election. The party filing the petition shall be designated as the petitioner; the adverse party shall be known as the respondent.
Section 6. Petition must be verified and accompanied by a certificate of non-forum shopping. – An election protest or a petition for quo warranto shall be verified by an affidavit stating that the affiant has read the petition and that its allegations are true and correct of the affiant’s own knowledge or based on authentic records. A verification based on "information and belief" or upon "knowledge, information and belief" is not sufficient.
The protestant or petitioner shall sign personally the certificate of non-forum shopping, which must be annexed to the election protest or petition for quo warranto.
An unverified or insufficiently verified petition or one that lacks a certificate of non-forum shopping shall be dismissed outright and shall not suspend the running of the required period for the filing of an election protest or petition for quo warranto.
Section 7. Period to file protest or petition; non-extendible. – The election protest or petition for quo warranto shall be filed within a non-extendible period of ten (10) days counted from the date of proclamation.
Section 8. Pendency of pre-proclamation controversy. – The pendency of a pre-proclamation controversy, involving the validity of the proclamation as defined by law, shall suspend the running of the period for the filing of an election protest or petition for quo warranto.
Section 9. COMELEC judgment in disqualification case. – The decision of the COMELEC, either en banc or in division, in a disqualification case shall not be a bar to the filing of a petition for quo warranto based on the same ground, except when the Supreme Court has affirmed the COMELEC decision.
Section 10. Contests of the protest or petition. – (a) An election protest or petition for quo warranto shall commonly and specifically state the following facts:
(i) the position involved;
(ii) the date of proclamation; and
(iii) the number of votes credited to the parties per the proclamation.
(b) A quo warranto petition shall also state:
(i) if the petitioner is not a candidate for the same municipal position, the facts giving the petitioner standing to file the petition;
(ii) the qualifications for the municipal office and the disqualifications prescribed by law;
(iii) the petitioner’s cited ground for ineligibility or the specific acts of disloyalty to the Republic of the Philippines.
(c) An election protest shall also state:
(i) that the protestant was a candidate who had duly filed a certificate of candidacy and had been voted for the same office;
(ii) the total number of precincts in the municipality;
(iii) the protested precincts and votes of the parties are not specified, an explanation why the votes are not specified; and
(iv) a detailed specification of the acts or omissions complained of showing the electoral frauds, anomalies or irregularities in the protested precincts.
Section 11. Raffle of cases. – The Supreme Court shall designate the Regional Trial Court within a judicial region that shall take cognizance of election protests and petitions for quo warranto. A raffle conducted by the executive judge shall determine the assignment of cases to these courts except in single-sala courts or courts specifically designated by the Supreme Court. No court shall assume jurisdiction over an election contest unless the case has been properly assigned to it as provided herein.
At least twenty-four (24) hours before the raffle, the clerk of court must serve personal notice to the parties, stating the date and time of the raffle. Proof of service to the parties shall be submitted to the court, and the raffle shall be open to the public. The Supreme Court shall issue the necessary circular implementing this proviso.
The Court may order a change of venue or place or trial for compelling reasons to avoid a miscarriage of justice.
Section 12. Summary dismissal of election contests. – The court shall summarily dismiss, motu proporio, an election protest, counter-protest or petition for quo warranto on any of the following grounds:
(a) The court has no jurisdiction over the subject matter;
(b) The petition is insufficient in form and content as required under Section 10;
(c) The petition is filed beyond the period prescribed in these Rules;
(d) The filling fee is not paid within the period for filling the election protest or petition for quo warranto; and
(e) In a protest case where cash deposit is required, the deposit is not paid within five (5) days from the filling of the protest.
RULE 3
S U M M O N S
Section 1. Summons. – Within twenty-four (24) hours from the filling of a protest or petition, the clerk of court shall issue the corresponding summons to the protestee or to the respondent, together with a copy of the protest or petition, requiring the filling of an answer within a non-extendible period of five days from notice.
Section 2. Service of summons. – The summons shall be served by handing copies of the summons and of the protest or the petition to the protestee or the respondent in person or, in case of the protestee’s or the respondent’s refusal to receive and sign these copies, by tendering them to him or her.
If, for justifiable causes, the protestee or the respondent cannot be served in person as provided above, service may be effected by leaving copies of the summons and the protest or the petition at:
(a) The protestee’s or the respondent’s residence, with a person of suitable age and discretion residing therein, or
(b) The protestee’s or the respondent’s office or regular place of business, with a competent person in charge thereof.
Section 3. By whom served. – The summons shall be served by a sheriff, a deputy sheriff, a process server or any other suitable person authorized by the court issuing the summons.
RULE 4
ANSWER AND COUNTER-PROTEST
Section 1. Verified answer; counter-protest. – Within five (5) days from receipt of the summons and the copy of the protest or petition, the protestee or the respondent shall file an answer in three (3) legible copies, with proof of service of a copy on the protestant or the petitioner.
The answer shall be verified and may set forth admissions and denials, special and affirmative defenses, and a compulsory counterclaim. The protestee may incorporate a counter-protest in the answer.
The counter-protest shall specify the counter-protested precincts and the parties’ votes per the Statement of Votes by Precinct and, in the proper case, a detailed specification of the acts or omissions complained of as electoral fraud, anomalies or irregularities in the counter-protested precincts; if the votes are not so specified, an explanation should be made for the omission.1avvphi1
Section 2. Answer to counterclaim or counter-protest. – The protestant or petitioner shall answer the counterclaim or counter-protest within a non-extendible period of five (5) days from notice.
Section 3. Allegations in the answer. –
(a) Specific denial. – A protestee or respondent must specify each material allegation of fact whose truth he or she does not admit; whenever practicable, he or she shall set forth the substance of the matters upon to support the denial. The protestee or respondent shall specify the averments that are true and material, and shall deny the rest.
(b) Allegations not specify denied deemed admitted. – Material averments in the protest or petition, other than the amount of unliquidated damages and issues on the appreciation of ballots, shall be deemed admitted when not specifically denied.
Section 4. Effect of failure to plead. –
(a) Defenses and objections not pleaded. – Defenses and objections not pleaded are deemed waived. The court shall dismiss the claim when it appears from the pleadings or the evidence on record that (1) the court has no jurisdiction over the subject matter; or (2) there is another action pending between the same parties for the same cause; or (3) the action is barred by a prior judgement or by the statute of limitations.
(b) Compulsory counterclaim or cross-claim not set up barred. – A compulsory counterclaim or a cross-claim not set up shall be barred.
(c) Effect of failure to answer. – If the protestee or the respondent fails to answer within the time allowed in an election protest that does not involve ballot revision or in a petition for quo warranto, the court – upon motion of the Protestant or the petitioner, with notice to the protestee or the respondent, and upon proof of such failure – shall proceed to render judgment granting the relief prayed for on the basis of the allegations of the verified protest or petition, unless the court in its discretion opts to require the protestant or the petitioner to submit evidence ex parte.
Where the election protest involves revision or examination of ballots or the verification or re-tabulation of the election returns, the court shall issue the appropriate order and shall proceed to render judgment based on the results of the revision, examination, verification or re-tabulation. During these proceedings, only the protestant’s revisors may participate. The protestee, or his or her duly authorized representative, has the right to be present and to observe the proceedings, without the right to object and to lay claim to ballots and election returns.
Section 5. How to compute time. – In computing any period of time prescribed or allowed by these Rules, by order of the court or by any applicable statute, the day of the act or the event marking the start when time begins to run is to be excluded and the date of performance included. If the last day of the period, as so computed, falls on a Saturday, a Sunday, or a legal holiday in the place where the court sits, time shall not run until the next working day.
Section 6. Amendments; limitations. – After the expiration of the period for the filling of an election protest, counter-protest or petition for quo warranto, substantial amendments that broaden the scope of the action or introduce an additional cause of action may be allowed only upon leave of court. Leave of court may be refused if the motion for leave appears to the court to be intended for delay. Any amendment in matters of form – such as a defect in the designation of the parties and other clearly clerical or typographical errors – may summarily corrected by the court at any stage of the proceedings, at its initiative or on motion, provided the correction does not prejudice the adverse party.
RULE 5
M O T I O N S
Section 1. Motions must be in writing. – All motions shall be in writing, except for those made in open court.
Section 2. Proof of service necessary. – The court shall not act on any written motion, except upon submitted proof of service on the adverse party.
Section 3. No hearings on motions. – No motion shall be set for hearing, and no oral argument shall be allowed in support of any motion, except upon the court’s express.
A motion shall be deemed submitted for resolution unless the adverse party files his or her written objections within five (5) days from service. The court shall resolve a motion within (5) days from the time it is deemed submitted for resolution.
RULE 6
PROHIBITED PLEADINGS
Section 1. Prohibited pleadings and motions. – The following pleadings, motions or petitions shall not be allowed in the cases covered by these Rules:
(a) Motion to dismiss the petition, except on the ground of lack of jurisdiction over the subject matter;
(b) Motion for a bill of particulars;
(c) Demurrer to evidence;
(d) Motion for new trial, or for the reconsideration of a judgment, or for reopening of trial;
(e) Petition for relief from judgment;
(f) Motion for extension of time to file pleadings, affidavits or other papers;
(g) Memoranda, except as provided under Section 7, Rile 13 of these Rules;
(h) Motion to declare the protestee or the respondent in default;
(i) Dilatory motion for postponements;
(j) Motion for the inhibition of the presiding judge, except on clearly valid grounds;
(k) Reply or rejoinder; and
(l) Third-party complaint.
Section 2. Grounds to dismiss be set up in the answer. – All grounds to dismiss an election protest or petition for quo warranto must be set up or pleased as affirmative or special defenses. Defenses not raised are deemed waived. The court may, at its discretion, hold a preliminary hearing on the grounds so pleaded.
RULE 7
FILING FEES AND CASH DEPOSITS
Section 1. Filling fees. – No protest, counter-protest or petition for quo warranto
shall be accepted for filling without the payment of a filling fee in the amount of Three Thousand Pesos (P3,000.00) for every protest, counter-protest or petition for quo warranto filed.
If claims for damages and attorney’s fees are set forth in a protest or counter-protest, additional filling fees shall be paid in accordance with the schedule under Rule 141 of the Rules of Court, as amended.
Section 2. Cash deposit. –
(a) In addition to the fees prescribed in the preceding section, the protestant in an election protest requiring revision or examination of ballots, or the verification or re-tabulation of election returns, or which may require bringing copies of other election documents and paraphernalia to court, shall make a cash deposit with the court in the following amounts:
i. One Thousand Pesos (P1,000.00) for each precinct covered by the protest or counter-protest, provided that the deposit shall in no case be less than Twenty-five Thousand Pesos (P25,000.00) to be paid upon the filling of the election protest or counter-protest;
ii. Twenty-five Thousand Pesos (P25,000.00) for the cost of bringing to court and of storing and maintaining the PCOS, the consolidation machines and other automated election paraphernalia brought to court as evidence or as necessary equipment in considering the protested or counter-protested ballots;
iii. If the amount to be deposit does not exceed One Hundred Thousand Pesos (P100,000.00), the required sum shall be paid in full within ten (10) days from the filling of the protest or counter-protest; and
iv. If the required deposit shall exceed One Hundred Thousand Pesos (P100,000.00), a cash deposit in the amount of One Hundred Thousand Pesos (P100,000.00) shall be made within ten (10) days from the filling of the protest or counter-protest. The balance shall be paid in installments under the schedule the court may require after hearing the Protestant or counter-Protestant on the matter.
The cash deposit shall be applied by the court to the payment of the compensation of revisors as provided under Section 3, Rule 10 of these Rules, and of all the expenses incidental to revision, including but not limited to the cost of supplies and miscellaneous expenses of the revision committee, the cost of the production in court and the storage and maintenance of automated election equipment and paraphernalia.
When circumstances so demand (such as when the deposit has been or is about to be depleted), the court may require the payment of additional cash deposits. Any unused cash deposit shall be returned to the depositing party after the complete termination of the protest or counter-protest.
The same amount of cash deposit shall be required from the protestee (counter-protestant), should continuation of revision be ordered pursuant to paragraph 2, Section 10, Rule 10 of these Rules. Once required, the protestee (counter-protestant) shall pay the cash deposit within a non-extendible period of three days from receipt of the court’s order.
(b) Failure to make the cash deposits required within the prescribed time limit shall result in the automatic dismissal of the protest or counter-protest.
RULE 8
PRODUCTION AND CUSTODY OF BALLOT BOXES, ELECTION DOCUMENTS,
DATA STORAGE DEVICES AND PCOS MACHINES USED IN THE ELECTIONS (A)
Section 1. Issuance of precautionary protection order. – Where the allegations in a protest so warrant, the court shall order – simultaneously with the issuance of summons – the municipal treasurer and election officer concerned to take immediate and appropriate measures to safeguard the integrity of all the ballot boxes and the ballots, the lists of voters and voting records, the books of voters and other documents or paraphernalia used in the election, as well as the automated election equipment and records such as the data storage devices containing electronic data evidencing the conduct and results of elections in the contested precincts.
Section 2. When ballot boxes and election documents are brought before the court. –
Within forty-eight (48) hours from receipt of an answer with counter-protest, when the allegations in an protest or counter-protest so warrant, the court shall order the ballot boxes with their keys, the PCOS and consolidation machines, the electronic data storage devices, the lists of voters and voting records, the books of voters, and other documents or paraphernalia involved in the protest or counter-protest, to be brought before it.
The court shall notify the parties of the date and time of retrieval and transfer from their respective custodians of the ballot boxes, the PCOS and consolidation machines (if necessary), the electronics data storage devices and all other automated election documents and paraphernalia. The parties may send representatives to witness the retrieval and transfer. The absence, however, of a representative of a party shall not be reason to postpone or delay the retrieval or transfer of the above-mentioned equipment, devices and election documents.
The court, at its discretion, may seek the assistance of the Philippine National Police (PNP) or the Armed Forces of the Philippines in ensuring the safe delivery of the ballot boxes and the election equipment, devices and documents to its custody.
Where any of the ballot boxes, ballots, PCOS machines, data storage devices, election returns, election documents or paraphernalia mentioned above are also involved in election contests before other for a (such as the Presidential Electoral Tribunal, the Senate Electoral Tribunal, the House of Representatives Electoral Tribunal or the Commission on Elections) with preferential rights of custody and revision in simultaneous protests under COMELEC Resolution No. 2812 dated 17 October 1995, the court shall coordinate with and make the appropriate request with the higher tribunals for the temporary prior custody of ballot boxes, PCOS machines, electronic data storage devices and other election documents and paraphernalia, or for the synchronization of revision activities.
The expenses necessary and incidental to the production in court of the ballot boxes and election documents and the production, storage and maintenance of PCOS machines, data storage devices, and automated election paraphernalia and documents shall be shouldered and promptly paid by the protestant and counter-protestant in proportion to the precincts covered by their protects or counter-protests. The expenses necessary and incidental to the return of the materials and documents produced in court to their original custodians or to the proper tribunal after the termination of the case shall likewise be shared proportionately by the protestant and the protestee based on the number of precincts they respectively contest.
Section 3. Access to electronic data in the COMELEC back-up server. – Upon motion duly made based on demonstrated need, the court may order the COMELEC to provide the moving party access to, or to recover and use, electronic data from the COMELEC back-up server under conditions and safeguards required by COMELEC.
RULE 9
PRELIMINARY CONFERENCE
Section 1. Preliminary conference; mandatory. – Within three (3) days after the filling of the last responsive pleading allowed by these Rules, or on the expiration of this period without any responsive pleading having been filed, the court shall conduct a mandatory preliminary conference among the parties to consider:
(a) The simplification of issue;
(b) The necessary or desirability of amendments to the pleadings;
(c) The possibility of obtaining stipulations or admission of facts and of documents to avoid unnecessary proof;
(d) The limitation of the number of witnesses;
(e) The nature of the testimonies of the witnesses and whether they relate to evidence that do not involve the ballots, or otherwise;
(f) The withdrawal of certain protested or counter-protested precincts, especially those where the ballot boxes or ballots are unavailable or are missing, cannot be located, have been destroyed due to natural disasters or calamities, or where the PCOS and other electronic data are missing;
(g) The number of revision committees to be constituted;
(h) The procedure to be followed in case the election protest or counter-protest seeks, wholly or partially, the examination of ballots, or the verification or re-tabulation of election returns;
(i) The procedure in handling the PCOS and the other electronic machines and data; and
(j) Other matters that may contribute to prompt disposition of the case.
Section 2. Notice through counsel. – The notice of preliminary conference shall be served on counsel or on counsel on the party himself or herself who is not presented by counsel. Notice to counsel is to notice to the party, as counsel is charged with the duty to notify the party represented.
Section 3. Appearances of parties. - The parties have the duty to appear the person before the court at the preliminary conference. Counsels appearing without their clients should be specifically authorized to appear for and to bind their clients on the matters covered by the preliminary conference.
Section 4. Preliminary conference brief. – The parties shall file with the court their respective preliminary conference briefs and serve these on the adverse party in a manner that shall ensure the other party’s receipt of the brief at least one day before the date of the preliminary conference. The briefs shall contain the following:
(a) A summary of admitted facts and proposed stipulations;
(b) The issues is to be tried and resolved (i.e., for election protests, the alleged frauds or irregularities committed in the conduct of the election; for quo warranto proceedings, the ground for ineligibility or acts of disloyalty);
(c) The documents or exhibits to be presented;
(d) A manifestation indicating the use of the intent to use discovery procedures or referral to commissioners;
(e) The number and names of witnesses, their addresses, and the substance of their respective testimonies. The testimonies of witnesses shall be by affidavits, in question and answer form, which shall serve as their direct testimonies, subject to oral cross-examination;
(f) A manifestation of withdrawal of certain protested or counter protested precincts, if this is the case;
(g) The proposed number of revision committees and the names of proposes revisors and alternated revisors; and
(h) The procedure to be followed in case the election protest or counter protest seeks the revision or examination of ballots, or the verification or re-tabulation of election returns.
Section 5. Failure to file brief. - The failure to file the required brief or to provide the brief’s mandatory contests shall have the same effect as the failure to appear at the preliminary conference.
Section 6. Effect of failure to appear. – The failure of the protestant/petitioner or the duly authorized counsel to appear at the preliminary conference authorizes the court, as its own initiative, to dismiss the protest, or counter-protest or petition. The failure of the protestee/respondent or of the duly authorized counsel to appear at the preliminary conference may likewise have the effect provided under
Section 4(c), Rule 4 of these Rules, i.e., the court may allow the protestant/petitioner to present evidence ex parte and render judgment based on the evidence presented.
Section 7. Preliminary conference order. – The court shall issue an order summarizing the matters taken up and the stipulations or agreements reached during the conference within three (3) days following the termination of the preliminary conference. The court shall commence, the starting date of which shall be within five (5) days from the termination of the preliminary conference.
RULE 10
REVISION OF BALLOTS
Section 1. Start of revision. – The revision of ballots shall commence on the date specified in the preliminary conference order.
Section 2. Revision committee; under the supervision of the court. – As many revision committees as may be necessary shall be constituted. Each revision committee shall be composed of a chairperson and two members, one of whom is designated by the protestant and the other by the protestee. The court shall designate the chairperson and a recorder from among its personnel. The parties shall also designate their respective substitute revisors.
The revision committee shall conduct the revision in the court premises or at such other place in the court may designate, in every case under its strict supervision.
The revisors shall discharge their duties with the highest degree of integrity, conducting the proceedings with the same dignity and discipline the court itself brings to the proceedings. They shall exercise extraordinary diligence and take the precautionary measures requires by this level of diligence to prevent loss, disappearance or impairment of the integrity of the ballots and the election documents, whether electronic or printed, and the misuse of the electronic election machines, devices and paraphernalia.
Section 3. Compensation of the revisors. - The court shall fix the compensation of the revisors at Eight Hundred Pesos (P800.00) per ballot box for the chairperson and Three Hundred Pesos (P300.00) per ballot box for each party revisor. The party revisors shall each be entitled to an additional per diem of Five Hundred Pesos (P500.00) per day. The compensation for a recorder shall be Three Hundred Pesos (P300.00) per ballot box. This compensation shall be chargeable against the cash deposit as provided for under Section2, Rule 7 of these Rules.
Section 4. Continuous revisions. –
(a) Period for revision. – Revision shall be conducted from 8:30 a.m. to 12:00 noon and from 1:30 p.m. to 4:30 p.m. from Monday to Friday, except on non-working holidays. The revisors may take fifteen-minute breaks during the revision.
(b) Revision to continue even if a party revisor is absent or late. – The revision shall bot be delayed or postponed by reason of the absence or tardiness of a party’s revisor or substitute revisor, as long as the chairperson and one party revisor are present. The court may at any time designate another chairperson if the regular chairperson fails for any reason to report.
(c) If the revisor of the protestee is absent or late. - If the revisor of the protestee is absent or late for thirty minutes and no alternate appears as a substitute, the revision shall nevertheless commence. The protestee shall be deemed to have waived the right to appear and to object to the revision of ballots made during his or her revisor’s absence or tardiness.
(d) If the revisor of the protestant or the revisors of both parties fail to appear. – If the protestant’s revisor or the revisors of both parties or their alternates fail to appear without justifiable reason within one hour after the scheduled start of the revision, the ballot boxes scheduled for revision that day and the corresponding ballot box keys in the possession of the chairperson, shall be returned to the court’s ballot box custodian, and the ballots shall no longer be revised, the parties are deemed to have waived their right to the revision for that day, and the chairperson shall state the facts of absence and waiver in the revision report.
Section 5. Prohibited access. – During the revision, no person other than the judge, the clerk of the court, the chairperson and the members of the revision committee, the parties and their duly authorized representatives shall have the access to the revision area.
Section 6. Conduct of revision. – The revision of the votes on the ballots shall be done manually and visually and through the use of appropriate PCOS machines, according to the procedure below:
(a) On the scheduled day of revision, the following, if needed, should be in the custody of the court:
(i)the ballot boxes containing the ballots in protested and counter protested precincts; and
(ii) the data storage devices and the PCOS machines used in the precincts concerned or any other device that can be used to authenticate or assure the genuineness of the ballots;
(b) The revision committee shall initially note, before anything else, the condition of the ballot box and its locks and locking mechanism, and record this condition in the revision report. Based on this observation, the revision committee must also determine whether the integrity of the ballot box has been preserved.
(c) The ballot box shall then be opened and the ballots taken out. The "valid" ballots shall first be counted, without regard to the votes obtained by the parties. This will be followed by the counting of the torn, unused stray and rejected ballots, as classified at the polling place.
(d) The votes appearing in the election returns copy for the ballot box shall then be recorded in the minutes.
(e) Prior to the actual revision, the revision committee must authenticate each and every ballot to make sure that it was the same ballots cast and fed to the PCOS machine during the voting. The authentication shall be through the use of PCOS machines actually used during the elections in the subject precinct, or by another device certified by the Commission to be capable of performing the desired authentication requirement through the use of the bar codes and the ultra-violet ray code detection mechanism.
(f) The recount shall only proceed after the revision committee, through its chairperson and members, has determined that the integrity of the ballots has been preserved.
(g) The revision committee shall thereafter proceed to look at the ballots and count the indicated votes for the contested position.
(h) In looking at the shades or marks used to register votes, the revision committee shall bear in mind that the will of the voters reflected as votes in the ballots shall as much as possible be given effect, setting technicalities aside.
Furthermore, the votes are presumed to have been made by the voter and shall be so considered unless reasons exist to justify their rejection. However, marks or shades that are less than 50% of the oval shall not be considered as valid votes. Any issue as to whether a certain mark or shade is within the threshold shall be determined by using the PCOS machine, not by human determination.
(i) The rules on the appreciation of the ballots under Section211 of the Omnibus Election Code shall apply suppletorily when appropriate.
(j) There shall be a tally sheet in at least 5 copies, plus additional copies depending on the number of additional parties, that shall be used to tally the votes as they are counted through the use of taras and sticks.
(k) After all the ballots from one ballot box have been counted, the revision committee shall secure the contested ballots and complete the recount report for the precinct. Thereafter, it shall proceed to recount the votes from the ballots of the next precinct.
(l) In case of multiple revision committees, the recount shall be done simultaneously.
(m) In the event that the revision committee determines that the integrity of the ballots and the ballot box have not been preserved, as when proof of tampering or substitution exists, it shall proceed to instruct the printing of the picture image of the ballots stored in the data storage device for the precinct. The court shall provide a non-partisan technical person who shall conduct the necessary authentication process to ensure that the data or image stored is genuine and not a substitute. Only after this determination can the printed picture image be used for the recount,
Section 7. Preparation and submission of revision report. – The committee shall prepare and submit to the court a revision report per precinct stating the following:
(a) the precinct number;
(b) the date, the place and the time of revision;
(c) the votes of the parties per physical count;
(d) the condition and the serial numbers of the following:.
(i) ballot boxes;
(ii) self-locking security metal or plastic seals (inner and outer) and padlocks of the ballot boxes;
(iii) security envelopes containing the election returns; and
(iv) numbered paper seal of the envelopes;
(e) if required, the availability of and other circumstances attendant to the PCOS machines and other automated election devices and paraphernalia used in the revision;
(f) the votes of the parties per the ballot box copy of the election returns and per the tally sheet/board found inside the ballot box;
(g) the number of ballots objected to by the parties indicating therein the exhibit numbers;
(h) the grounds of objections;
(i) the number of stray ballots;
(j) the claims on ballots with their exhibit numbers; and
(k) the entries in the Minutes of Voting and Counting, particularly:
(i) the number of registered voters;
(ii) the number of voters who actually voted;
(iii) the number of official ballots, together with their serial numbers, used in the election;
(iv) the number if ballots actually used indicating the serial numbers of the ballots; and
(v) the unused ballots together with their serial numbers.
The revision forms shall be made available prior to the revision. The per-precinct revision report shall be signed and certified by the chairperson and by the parties’ revisors, and shall form part of the records of the case.
In addition to the per-precinct revision report, the revision committee shall also prepare and submit to the court, within three days from termination of the revision, a committee report summarizing the data, votes, ballot objections and claims, and significant observations made during the revision of ballots from the protested precincts and later from the counter-protested precincts, if so conducted based on the provisions of Section 10 below. Each party furnished with a copy of the committee report may submit its comments thereon within a non-extendible period of three (3) days from notice.
Section 8. Order of revision. – Revision of ballots shall start with those from the protested precincts , subject to the provisions of Section 10 thereof.
Section 9. Inquiry as to security markings and vital information relative to ballots and election documents. – When a revision of ballots is ordered, and for the guidance of the revisors, the court shall inquire about the security markings on the ballots and the security measures used in the election documents from the Chairperson of COMELEC who shall be obliged to indicate this markings, measures and other vital information that may aid the court in determining the authenticity of the ballots and election documents. The parties shall be notified of the results of this inquiry.
Section 10. Post-revision determination of the merit or legitimacy of the protest
prior to revision of the counter-protest. – Immediately after the revision or examination of ballots, or the verification or re-tabulation of election returns in all protested precincts, the protestant shall be required to point to a number of precincts, corresponding to twenty percent (20%) of the total of the revised protested precincts, that will best attest to the votes recovered, ore that will best exemplify the fraud or irregularities pleaded in the protest. In the meanwhile, the revision or examination of the ballots, or the verification or re-tabulation of election returns in the counter-protested precincts, shall be suspended for a period not exceeding fifteen days to allow the court to preliminarily determine, through the appreciation of ballots and other submitted election documents, the merit of legitimacy of the protest based in the chosen twenty percent (20%) of the protested precincts.
Based on the results of this post-revision preliminary determination, the court may dismiss the protest without further proceedings if the validity of the grounds for the protest is no established by the evidence from the chosen twenty percent (20%) of the protested precincts; or proceed with the revision or examination if the ballots, or the verification or re-tabulation of election returns in the counter-protested precincts. In the latter case, the protestee shall be required to pay the cash deposit within a non-extendible period of three (3) days from notice.
Section 11. Continuation of the appreciation of ballots. - If the court decides not to dismiss the protest after the preliminary examination of the evidence from the chose twenty percent (20%) of the protested precincts, revision with respect to the remaining precincts shall proceed at the same time that the ballots or election documents from the counter-protested precincts are being revised. After completion of the revision of the protested precincts, the court shall proceed with the appreciation and revision of ballots from the counter-protested precincts.
RULE 11
TECHNICAL EXAMINATION
Section 1. Motion f or technical examination; contents. – Except when the protest or counter-protest involves allegation of massive substitute voting, a party may move for the technical examination of the presented evidence within five (5) days after completion of the revision in the protest or counter-protest, specifying:
(a) The nature of the technical examination requested (e.g., fingerprint examination, etc.);
(b) The documents or machines/equipment to be subjected to technical examination;
(c) The objections made in the course of the revision of ballots which the movant intends to substantiate with the results of the technical examination; and
(d) The ballots covered by these objections.
Section 2. Technical examination; time limits. – The court may grant the motion for technical examination at its discretion and under the conditions it may impose. If the motion is granted, the technical examination shall start within five (5) days from notice to both parties, and shall be completed within the period specified by the court, in no case to exceed to twenty successive working days, unless the court grants an extension based on exceptionally meritorious ground. A party may attend the technical examination either personally or through a representative. However the technical examination shall proceed with or without the attendance of a party, provided that the due notice has been given.
The expenses for technical examination shall be for the account of the party requesting the examination. The technical examination shall be under the supervision of the clerk of court.
Section 3. Experts; who shall provide. – Experts necessary for the conduct of technical examination shall be provided by the party requesting the same and may come from the National Bureau of Investigation, the PNP Crime Laboratory, the Commission on Elections, the Department of Science and Technology, or experts from the private sector. The other party may secure the services of his or her own expert who may only observe, not interfere with, the examination conducted by the movant’s experts.
RULE 12
PHOTOCOPYING OF BALLOTS
Section 1. Photocopying simultaneous with revision. – On the motion of a party, the court may allow the photocopying of ballots and election documents, upon such terms and conditions as the court may impose. The photocopying, if allowed, must start at the commencement of revision and, as far as practicable, must be completed simultaneously with the termination of revision.
Section 2. Where conducted; parties to provide own photocopying units. – Photocopying shall be done within the premises of the court, near the revision area, and shall be under the supervision of the clerk of court. The requesting party shall provide an efficient photocopying unit and shall bear all attendant expenses.
Section 3. Copying or reproduction of electronic data. – On the motion of a party, the court may allow the reproduction of electronic data that are submitted as evidence, or that are within the custody and control of the COMELEC under the conditions and safeguards the COMELEC shall require. The costs and expenses shall be for the account of the party seeking the reproduction.
RULE 13
PRESENTATION OF EVIDENCE
Section 1. Presentation and reception of evidence; order of hearing. – If at the preliminary conference the parties have agreed on issues that do not involve the examination and appreciation of ballots or other election documents (e.g., vote-buying, fraud, terrorism or violence), the reception of evidence on the issues, including the testimonies of witnesses, shall be done simultaneously with the revision of ballots that may be required.
The reception of evidence on all other matters or issues incidental to or involving the ballots and related election documents shall be made upon completion of (a) the revision of ballots or election documents; or (b) the technical examination, if allowed by the court under the provisions of Rule 11 of these Rules.
Reception of evidence shall be made in accordance with the following order of hearing:
(a) The protestant or petitioner shall present evidence in support of the protest or petition;
(b) The protestee or respondent shall then adduce evidence in support of the defense, counterclaim or counter-protest, if any;
(c) The parties may then respectively offer rebuttal evidence only, unless the court for good reasons and in the furtherance of justice, permits them to offer evidence on their original case; and
(d) No sur-rebuttal evidence shall be allowed.
In offering testimonial evidence, the party shall require the proposed witness to execute an affidavit which shall be considered as the witness’ direct testimony, subject to the right of the adverse party to object to its inadmissible portions and to orally cross-examine the witness. The affidavit shall be based on personal knowledge, shall set forth facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify on the stated matters. The affidavit shall be in question and answer form, and shall be submitted to the court and served on the adverse party at least three (3) days before the hearing.
Failure to submit the affidavit of witness within the specified time shall constitute a waiver of the party’s right to present testimonial evidence.
The one-day-cross-examination-of witness rule – i.e., that a witness has to be fully cross-examined on one day – shall strictly be followed, subject to the court’s discretion to extend the cross-examination for justifiable reasons.
The revision reports, as well as the ballots objected to or claimed by the parties and the submitted electronic evidence, shall automatically form part of court records and may be adopted by the other parties as their evidence.
Section 2. Offer of evidence. – The court shall not consider any evidence that has not been formally offered. Offer of evidence shall be done orally on the last day of hearing allowed for each party after the presentation of the party’s last witness. The opposing party shall be required to immediately interpose objections to the offer. The court shall rule on the offer of evidence in open court. However, the court may, at its discretion, allow the party to make an offer of evidence in writing, which shall be submitted within three days from notice of the court’s order. If the court rejects any evidence offered, the party may make a tender of the excluded evidence.
Section 3. Reception of evidence continuous. – Reception of evidence, once commenced, shall continue from day to day, as far as practicable, until fully completed or terminated at the court’s order. In no case shall the entire period for reception of evidence exceed ten successive days for each party, from the first day reception of evidence starts, unless otherwise authorized by the Supreme Court.
Section 4. Adjournments and postponements. – No motion for postponement shall be allowed, except for clearly meritorious reasons. In no case shall the resetting of hearings have an interval exceeding three calendar days, nor shall the postponements of hearing granted to each party exceed three (3). The filing of dilatory pleadings or motions shall constitute direct contempt of court and shall be punished accordingly.
Section 5. Burden of proof. – Burden of proof is the duty of a party to present evidence of the facts in issue to establish his or her claim or defense.
Section 6. Disputable presumptions. – The following presumptions are considered as established facts, unless contradicted and overcome by other evidence:
(a) On the election procedure:
(i) The election of candidates was held on the date and at the time set and in the polling place determined by the Commission on Elections;
(ii) The Boards of Election Inspectors were duly constituted and organized;
(iii) Political parties and candidates were duly represented by pollwatchers;
(iv) Pollwatchers were able to perform their functions;
(v) The Minutes of Voting and Counting contains all the incidents that transpired before the Board of Election Inspectors; and
(vi) The Audit Log contains the list of all activities performed by the PCOS machines from the time it was powered on until it was turned off.
(b) On election paraphernalia:
(i) Ballots and election returns that bear the security markings and features prescribed by the Commission on Elections are genuine;
(ii) The data and information supplied by the members of the Boards of Election Inspectors in the accountable forms are true and correct; and
(iii) The allocation, packing and distribution of election documents or paraphernalia were properly and timely done;
(iv) The PCOS and consolidation machines and the data storage devices are all in order, and the data generated reflect the activities entered in these electronic machines and devices.
(c) On appreciation of ballots:
(i) A ballot with appropriate security markings is valid;
(ii) The ballot reflects the intent of the voter;
(iii) The ballot was properly accomplished;
(iv) A voter personally prepared one ballot, except in the case of assistors; and
(v) The exercise of one’s right to vote was voluntary and free.
Section 7. Submission of memoranda. – The court may allow the parties to submit their respective memoranda within a non-extendible period of ten (10) days from the verbal ruling of the court on the last offer of exhibits; or, if the offer was made in writing, within ten (10) days from receipt of the written ruling of the court. No supplemental, reply or rebuttal memorandum shall be allowed.
RULE 14
D E C I S I O N
Section 1. Rendition of decision. – The court shall decide the election contest within thirty (30) days from the date the case is submitted for decision, in no case beyond six (6) months after its filing, unless the Supreme Court authorizes an extension in writing. Failure to comply with this timeline shall be considered a serious offense and shall be a ground for disciplinary action against the judge. In addition, six (6) months after the submission of the case for decision, the judge shall be relieved of all duties and functions except to decide the election case.
An election protest is deemed submitted for decision after completion of the reception of evidence or, if the parties were allowed to submit memoranda, upon submission of their memoranda or the expiration of the period for their filing, whichever is earlier. In an election protest, the winner shall be the candidate who obtained the plurality of the valid votes cast.
Section 2. Form of decision in election protests. – After the termination of the revision of ballots and before rendering its decision in an election protest that involved a revision, the court shall examine and appreciate the original ballots.
The court, in its appreciation of the ballots and in ruling on the parties’ claims and objections, shall observe the following rules:
(a) On marked ballots – The court must specify and point to the marking clearly indicating the voter’s intent to identify the ballot.
(b) On fake or spurious ballots, election document, machine, device or paraphernalia – The court must specify the COMELEC security markings or features that are not found in the ballot, election documents, machine, device or paraphernalia considered fake or spurious, or the operation or aspects of the machine, device or paraphernalia that resulted in fake or spurious results;
(c) On stray ballots – The court must specify and state in detail why the ballots are considered stray;
(d) On claimed ballots – The court must specify the exact basis for admitting claimed votes or crediting these to either party.
Section 3. Several judgments. – In a protest or petition against several protestees or respondents, the court may, when a several judgment is proper, render judgment against one or more of them, leaving the protest or petition to proceed against the others.
Section 4. Promulgation of decision. – The decision signed by the presiding judge shall be promulgated by reading its dispositive portion in open court on a date set with notice to the parties and filing the decision with the clerk of court; or by the delivery of a copy of the signed decision to the clerk of court, who shall forthwith indicate the date of rendition and cause true copies thereof to be served, personally or by registered mail, on the counsels or on the parties if they are not represented by counsel.
Section 5. Finality of decision. – The court’s promulgated decision shall become final and executory five (5) days after receipt of notice by the parties if no appeal is taken.
Section 6. Entry of judgment. – If no appeal is filed within the time provided in these Rules, the judgment shall be entered by the clerk in the book of entries of judgments. The date of finality of the judgment shall be the date of its entry. The record shall contain the dispositive part of the judgment and shall be signed by the clerk, with a certificate that the judgment has become final and executory.
Section 7. Notice of final decision. – As soon as the decision becomes final, the clerk of court shall send notices to the COMELEC, the Department of the Interior and Local Government, and the Commission on Audit.
Section 8. Appeal. – An aggrieved party may appeal the decision to the COMELEC within five (5) days after promulgation, by filing a notice of appeal with the court that rendered the decision, with copy served on the adverse counsel or on the adverse party who is not represented by counsel.
Section 9. Appeal fee. – The appellant in an election contest shall pay to the court that rendered the decision an appeal fee of One Thousand Pesos (P1,000.00), simultaneously with the filing of the notice of appeal.
Section 10. Immediate transmittal of records of the case. – The clerk of court shall, within fifteen (15) days from the filing of the notice of appeal, transmit to the Electoral Contests Adjudication Department, COMELEC, the complete records of the case, together with all the evidence, including the original and three copies of the transcript of stenographic notes of the proceedings.
Section 11. Execution pending appeal. – On motion of the prevailing party with notice to the adverse party, the court, at its discretion and while still in possession of the original records, may order the execution of its decision before the expiration of the period to appeal, subject to the following rules:
(a) Execution pending appeal shall not issue except upon motion and hearing with prior notice of the motion of at least three (3) days to the adverse party. The motion for execution pending appeal must be supported by good reasons cited and stated by the court in a special order. These reasons must:
(i) constitute superior circumstances demanding urgency that would outweigh the injury or damage, should the losing party secure a reversal of the judgment on appeal; and
(ii) manifest, in the decision sought to be executed, that the defeat of the protestee or the victory of the protestant has been clearly established.
(b) If the court grants an execution pending appeal, an aggrieved party shall have twenty working days from notice of the special order within which to secure a restraining order or status quo order from the Supreme Court or the COMELEC. The corresponding writ of execution shall issue after twenty (20) days if no restraining order or status quo order is issued. During the twenty (20)-day period, the issuance of a writ of execution pending appeal shall be stayed.
Section 12. Jurisdiction of the Commission on Elections in certiorari cases. – The COMELEC has the authority to issue the extraordinary writs of certiorari, prohibition and mandamus only in aid of its appellate jurisdiction over decisions of the courts in election cases involving elective municipal officials.
Section 13. Preferential disposition of election contests. – The courts shall give preference to election contests over all other cases, except petitions for habeas corpus and for the writs of amparo and habeas data.
RULE 15
COSTS, DAMAGES AND ATTORNEY’S FEES
Section 1. Costs; when allowed. – Costs shall be allowed to the prevailing party as a matter of course. The court shall have the power, for special reasons, to apportion the costs, as may be equitable. The court may render judgment for costs if a protest, a counter-protest or a petition for quo warranto is dismissed. When a protest, a counter-protest or a petition for quo warranto is found to be frivolous, double or treble costs may be imposed on the protestant, the counter-protestant or the petitioner.
Section 2. Damages and attorney’s fees. – In all election contests, the court may adjudicate damages and attorney’s fees as it may deem just and as established by the evidence, if the aggrieved party has included these claims in the pleadings.
RULE 16
ELECTRONIC EVIDENCE
Section 1. Original of an electronic document or data. – An electronic document or data shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or an output readable by sight or other means and shown to reflect the data accurately.
Section 2. Copies as equivalent of the originals. – When a document is in two or more copies executed at or about the same time with identical contents, or is a counterpart produced by the same impression as the original, or from the same matrix, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques that accurately reproduce the original, such copies or duplicates shall be regarded as the equivalent of the original.
Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as the original if:
a) a genuine question is raised as to the authenticity of the original; or
b) under the circumstances, it would be unjust or inequitable to admit the copy in lieu of the original.
Section 3. Affidavit as evidence. – All matters relating to the admissibility and evidentiary weight of an electronic document may be established by an affidavit stating facts of direct personal knowledge of the affiant or based on authentic records. The affidavit must affirmatively show the competence of the affiant to testify on the matters contained therein. The affiant shall be made to affirm the contents of the affidavit in open session and may be cross-examined as a matter of right by the adverse party.
RULE 17
AUTHENTICATION OF ELECTRONIC DOCUMENTS AND DATA
Section 1. Burden of proving authenticity. – The person seeking to introduce an electronic document in an election protest has the burden of proving its authenticity in the manner provided in this Rule.
Section 2. Manner of authentication. – Before any electronic document or data offered as authentic is received in evidence, its authenticity must be proved by any of the following means:
a) By evidence that it has been digitally signed by the person purported to have signed it. "Digitally signed" refers to an electronic document or electronic data message bearing a digital signature verified by the public key listed in a certificate.
b) By evidence that other appropriate security procedures or devices for authentication of electronic documents authorized by the Supreme Court or by law for the authentication of electronic documents were applied to the document; or
c) By other evidence showing its integrity and reliability to the satisfaction of the judge.
Section 3. The Rules on Electronic Evidence. – The Rules on Electronic Evidence shall apply to evidentiary aspects of pleadings, practice and procedure in election contests not otherwise specifically provided for in these Rules.
RULE 18
FINAL PROVISIONS
Section 1. Repealing clause. – For municipal election contests, these rules supersede A.M. No. 07-4-15-SC (The Rules of Procedure In Election Contests Before The Courts Involving Municipal and Barangay Officials) which became effective on May 15, 2007. All other rules, resolutions, regulations or circulars of the Supreme Court or parts thereof that are inconsistent with any provision of these Rules are hereby deemed repealed or modified accordingly.
Section 2. Effectivity clause. These Rules shall take effect fifteen (15) days after their publication in a newspaper of general circulation in the Philippines.
The Lawphil Project - Arellano Law Foundation
RULE I
S C O P E
Section 1. Title and coverage. – These Rules shall be known and cited as The 2010 Rules of Procedure for Municipal Election Contests.
These Rules shall apply to election contests under the Automated Election System using the Precinct Count Optical Scan, and shall govern the filing of pleadings, practice and procedure in these contests.
Section 2. Application of the Rules of Court. – The Rules of Court shall apply to aspects of pleadings, practice and procedure in election contests not specifically provided for in these Rules.
Section 3. Explanation of terms. – For purposes of and as used in these Rules:
(a) Courts – refers to the Regional Trial Court;
(b) Election – means the choice or selection of candidates for public office by popular vote through the use of the ballot. Specifically, it covers the conduct of the polls, including the listing of voters, the holding of the electoral campaign, the casting and counting of ballots, the consolidation and transmission of results, and the canvassing of the returns;
(c) Automated Election System or AES – refers to an election system using the technology designated by the Commission on Elections (COMELEC) for voting, counting, consolidating, canvassing, transmission of election results, and the returns;
(d) Precinct Count Optical Scan or PCOS – refers to the machine as well as the technology using an optical ballot scanner, located in every precinct, that scans or reads paper ballots that voters mark by hand and insert into the scanner to be counted;
(e) Official ballot – refers to the paper ballot, capable of being optically scanned, with the pre-printed names of all candidates and with ovals corresponding to each of the printed names. The ovals are the spaces where voters express their choice through marking or shading using a COMELEC-provided marking pen.
(f) Picture Image of the Ballot – refers to the image of the ballot captured by the PCOS machine at the time the voter feeds his/her ballot, which image is later stored in a memory or removable data storage device attached to the PCOS machines.
(g) Election Return – refers to the document showing the date of the election, the province, city, municipality and the precinct where voting is held, and the number of votes in figures for each candidate in a precinct or in clustered precincts.
(h) Electronic Election Return – refers to the copy of the election return in electronic form, generated by the PCOS machine, that is electronically transmitted to: (1) the Municipal Board of Canvassers for the official canvass; (2) the COMELEC Back-Up Server; (3) the server for the dominant majority party; (4) the server for dominant minority party; (5) server for the citizen’s arm authorized by the COMELEC to conduct a parallel count; and (6) the Kapisanan ng mga Broadcaster sa Pilipinas or KBP.
(i) Printed Election Return – refers to the copy of the election return printed by the PCOS machine on paper, and authenticated by the manual signatures and thumbmarks of the Board of Election Inspectors (BEI) members.
(j) Electronic transmission – refers to the act of conveying data in electronic form from one location to another.
(k) Canvass proceedings – refers to the proceedings that involve the consolidation of precinct election results at the municipal level. The term also includes the formal proclamation of the election winners at the municipal level.
(l) Consolidation machine – refers to the machine used during the canvass proceedings to consolidate at every canvass level.
(m) Statement of Votes by Precinct, Municipality, City, District, Province, or Overseas Absentee Voting (OAV) Station -–refers to a document in electronic and in printed form generated by consolidation machines or by computers during the canvass proceedings. This document records the votes obtained by candidates in each
precinct, municipality, city, district, province, or OAV Station, as the case may be.
(n) Municipal Certificate of Canvass – refers to the document in electronic and in printed form, containing the total votes in figures obtained by each candidate in the municipality the electronic form of which is the official canvass result in the municipality electronically-transmitted to a higher canvass level.
(o) Certificate of Canvass and Proclamation – refers to the official document in printed form, containing the names of all candidates who obtained the highest number of votes in a particular municipality and certifying to these candidates’ proclamation as winners.
(p) Data Storage Device – refers to the device that stores electronic documents from where data may be obtained when necessary to verify the accuracy and correctness of election data. The data storage device used in a PCOS shall be under the custody and direct responsibility of the election officer after completion of the voting process. A data storage device includes the back-up storage device under COMELEC custody that likewise stores authentic electronic copies of data.
(q) Audit Log – refers to the electronic document, stored in the PCOS machine’s data storage device, containing the list of all activities the PCOS machine performs from the time that it is powered on until it is turned off.
(r) Electronic document – refers to the record of information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieve or produced electronically. It includes digitally-signed documents and any printout or output, readable by sight or other means, that accurately reflects the electronic document.
For purposes of these Rules, an electronic document refers to either the picture image of the ballots or the electronic copies of the election returns, the statements of votes, the certificates of canvass, the audit log, and other electronic data processed by the PCOS and consolidation machines.
(s) Manual count of ballots – where voting using the AES ballots proceeded manually because the PCOS machines could not be used, votes shall be counted manually under the guidelines provided by the COMELEC, and the courts shall be guided accordingly.
(t) Election contests – refers to election protests or petitions for quo warranto.
(u) Election protest – refers to an election contest involving the election and returns of municipal elective officials, grounded on fraud or irregularities committed in the conduct of the elections, i.e., in the casting and the counting of the ballots, in the consolidation of votes and in the canvassing of returns, not otherwise classified as a pre-proclamation controversy cognizable by the COMELEC.
The issue is who obtained the plurality of valid votes cast.
(v) Quo Warranto under the Omnibus Election Code – refers to an election contest involving the qualifications for office of an elective municipal official, on the ground of ineligibility or disloyalty to the Republic of the Philippines. The issue is whether the respondent possesses all the qualifications and none of the disqualifications prescribed by law.
(w) Revision of ballots – refers ton the recount of ballots through their physical count; the segregation of ballots for the protestant, the protestee and other candidates for the same position and the recording of the objections and claims to these ballots.
(x) Promulgation – refers to the process of officially issuing the court’s decision or order in an election contest.
Section 4. Inherent powers of the court. – A regional trial court acting on an election contest shall have all the inherent powers of a court provided under Rule 135 of the Rules of Court, including the power to issue auxiliary writs, processes, and other means necessary to carry its authority or jurisdiction into effect and to adopt suitable processes not expressly provided by, but conformable with, law, these Rules, or the Rules of Court.
Section 5. Construction. – The Rules shall be liberally constructed to achieve a just, expeditious, and inexpensive determination and disposition of municipal election contests.
RULE 2
ELECTION CONTESTS
Section 1. Jurisdiction of regional trial courts. – Regional trial courts shall have exclusive original jurisdiction over all election contests involving municipal officials.
Section 2. How initiated. – An election contest is initiated by the filing of an election protest or a petition for quo warranto against an elective municipal official. An election protest or a petition for quo warranto shall be filed directly with the court in three legible copies plus such number of copies corresponding to the number of protestees or respondents.
An election protest shall not include a petition for quo warranto, nor shall a petition for quo warranto include an election protest.
Section 3. Modes of service and filing. – Service and filing of pleadings, including the initiatory petition and other subsequent papers, shall be done personally.
Except for papers emanating from the court, resort to other modes of service must be accompanied by a written explanation why the service or filing was not done personally. A pleading or motion violating this Rule shall be considered not to have been filed.1avvphi1
Section 4. Election protest. – A petition contesting the election or returns for an elective municipal office shall be filed with the proper Regional Trial Court by an candidate who was voted for the same office and who received the second or third-highest number of votes or, in a multi-slot position, was among the next four candidates following the last-ranked winner duly proclaimed, as reflected in the official results of the election contained in the Statement of Votes by Precinct.
The party filing the protest shall be designated as the protestant; the adverse party shall be known as the protestee.
Each contest shall refer exclusively to one office; however, contests for offices of the Sangguniang Bayan may be consolidated in one case.
Section 5. Quo warranto. – A petition for quo warranto against an elective municipal official shall be filed with the proper Regional Trial Court by any registered voter who voted in the municipal election. The party filing the petition shall be designated as the petitioner; the adverse party shall be known as the respondent.
Section 6. Petition must be verified and accompanied by a certificate of non-forum shopping. – An election protest or a petition for quo warranto shall be verified by an affidavit stating that the affiant has read the petition and that its allegations are true and correct of the affiant’s own knowledge or based on authentic records. A verification based on "information and belief" or upon "knowledge, information and belief" is not sufficient.
The protestant or petitioner shall sign personally the certificate of non-forum shopping, which must be annexed to the election protest or petition for quo warranto.
An unverified or insufficiently verified petition or one that lacks a certificate of non-forum shopping shall be dismissed outright and shall not suspend the running of the required period for the filing of an election protest or petition for quo warranto.
Section 7. Period to file protest or petition; non-extendible. – The election protest or petition for quo warranto shall be filed within a non-extendible period of ten (10) days counted from the date of proclamation.
Section 8. Pendency of pre-proclamation controversy. – The pendency of a pre-proclamation controversy, involving the validity of the proclamation as defined by law, shall suspend the running of the period for the filing of an election protest or petition for quo warranto.
Section 9. COMELEC judgment in disqualification case. – The decision of the COMELEC, either en banc or in division, in a disqualification case shall not be a bar to the filing of a petition for quo warranto based on the same ground, except when the Supreme Court has affirmed the COMELEC decision.
Section 10. Contests of the protest or petition. – (a) An election protest or petition for quo warranto shall commonly and specifically state the following facts:
(i) the position involved;
(ii) the date of proclamation; and
(iii) the number of votes credited to the parties per the proclamation.
(b) A quo warranto petition shall also state:
(i) if the petitioner is not a candidate for the same municipal position, the facts giving the petitioner standing to file the petition;
(ii) the qualifications for the municipal office and the disqualifications prescribed by law;
(iii) the petitioner’s cited ground for ineligibility or the specific acts of disloyalty to the Republic of the Philippines.
(c) An election protest shall also state:
(i) that the protestant was a candidate who had duly filed a certificate of candidacy and had been voted for the same office;
(ii) the total number of precincts in the municipality;
(iii) the protested precincts and votes of the parties are not specified, an explanation why the votes are not specified; and
(iv) a detailed specification of the acts or omissions complained of showing the electoral frauds, anomalies or irregularities in the protested precincts.
Section 11. Raffle of cases. – The Supreme Court shall designate the Regional Trial Court within a judicial region that shall take cognizance of election protests and petitions for quo warranto. A raffle conducted by the executive judge shall determine the assignment of cases to these courts except in single-sala courts or courts specifically designated by the Supreme Court. No court shall assume jurisdiction over an election contest unless the case has been properly assigned to it as provided herein.
At least twenty-four (24) hours before the raffle, the clerk of court must serve personal notice to the parties, stating the date and time of the raffle. Proof of service to the parties shall be submitted to the court, and the raffle shall be open to the public. The Supreme Court shall issue the necessary circular implementing this proviso.
The Court may order a change of venue or place or trial for compelling reasons to avoid a miscarriage of justice.
Section 12. Summary dismissal of election contests. – The court shall summarily dismiss, motu proporio, an election protest, counter-protest or petition for quo warranto on any of the following grounds:
(a) The court has no jurisdiction over the subject matter;
(b) The petition is insufficient in form and content as required under Section 10;
(c) The petition is filed beyond the period prescribed in these Rules;
(d) The filling fee is not paid within the period for filling the election protest or petition for quo warranto; and
(e) In a protest case where cash deposit is required, the deposit is not paid within five (5) days from the filling of the protest.
RULE 3
S U M M O N S
Section 1. Summons. – Within twenty-four (24) hours from the filling of a protest or petition, the clerk of court shall issue the corresponding summons to the protestee or to the respondent, together with a copy of the protest or petition, requiring the filling of an answer within a non-extendible period of five days from notice.
Section 2. Service of summons. – The summons shall be served by handing copies of the summons and of the protest or the petition to the protestee or the respondent in person or, in case of the protestee’s or the respondent’s refusal to receive and sign these copies, by tendering them to him or her.
If, for justifiable causes, the protestee or the respondent cannot be served in person as provided above, service may be effected by leaving copies of the summons and the protest or the petition at:
(a) The protestee’s or the respondent’s residence, with a person of suitable age and discretion residing therein, or
(b) The protestee’s or the respondent’s office or regular place of business, with a competent person in charge thereof.
Section 3. By whom served. – The summons shall be served by a sheriff, a deputy sheriff, a process server or any other suitable person authorized by the court issuing the summons.
RULE 4
ANSWER AND COUNTER-PROTEST
Section 1. Verified answer; counter-protest. – Within five (5) days from receipt of the summons and the copy of the protest or petition, the protestee or the respondent shall file an answer in three (3) legible copies, with proof of service of a copy on the protestant or the petitioner.
The answer shall be verified and may set forth admissions and denials, special and affirmative defenses, and a compulsory counterclaim. The protestee may incorporate a counter-protest in the answer.
The counter-protest shall specify the counter-protested precincts and the parties’ votes per the Statement of Votes by Precinct and, in the proper case, a detailed specification of the acts or omissions complained of as electoral fraud, anomalies or irregularities in the counter-protested precincts; if the votes are not so specified, an explanation should be made for the omission.1avvphi1
Section 2. Answer to counterclaim or counter-protest. – The protestant or petitioner shall answer the counterclaim or counter-protest within a non-extendible period of five (5) days from notice.
Section 3. Allegations in the answer. –
(a) Specific denial. – A protestee or respondent must specify each material allegation of fact whose truth he or she does not admit; whenever practicable, he or she shall set forth the substance of the matters upon to support the denial. The protestee or respondent shall specify the averments that are true and material, and shall deny the rest.
(b) Allegations not specify denied deemed admitted. – Material averments in the protest or petition, other than the amount of unliquidated damages and issues on the appreciation of ballots, shall be deemed admitted when not specifically denied.
Section 4. Effect of failure to plead. –
(a) Defenses and objections not pleaded. – Defenses and objections not pleaded are deemed waived. The court shall dismiss the claim when it appears from the pleadings or the evidence on record that (1) the court has no jurisdiction over the subject matter; or (2) there is another action pending between the same parties for the same cause; or (3) the action is barred by a prior judgement or by the statute of limitations.
(b) Compulsory counterclaim or cross-claim not set up barred. – A compulsory counterclaim or a cross-claim not set up shall be barred.
(c) Effect of failure to answer. – If the protestee or the respondent fails to answer within the time allowed in an election protest that does not involve ballot revision or in a petition for quo warranto, the court – upon motion of the Protestant or the petitioner, with notice to the protestee or the respondent, and upon proof of such failure – shall proceed to render judgment granting the relief prayed for on the basis of the allegations of the verified protest or petition, unless the court in its discretion opts to require the protestant or the petitioner to submit evidence ex parte.
Where the election protest involves revision or examination of ballots or the verification or re-tabulation of the election returns, the court shall issue the appropriate order and shall proceed to render judgment based on the results of the revision, examination, verification or re-tabulation. During these proceedings, only the protestant’s revisors may participate. The protestee, or his or her duly authorized representative, has the right to be present and to observe the proceedings, without the right to object and to lay claim to ballots and election returns.
Section 5. How to compute time. – In computing any period of time prescribed or allowed by these Rules, by order of the court or by any applicable statute, the day of the act or the event marking the start when time begins to run is to be excluded and the date of performance included. If the last day of the period, as so computed, falls on a Saturday, a Sunday, or a legal holiday in the place where the court sits, time shall not run until the next working day.
Section 6. Amendments; limitations. – After the expiration of the period for the filling of an election protest, counter-protest or petition for quo warranto, substantial amendments that broaden the scope of the action or introduce an additional cause of action may be allowed only upon leave of court. Leave of court may be refused if the motion for leave appears to the court to be intended for delay. Any amendment in matters of form – such as a defect in the designation of the parties and other clearly clerical or typographical errors – may summarily corrected by the court at any stage of the proceedings, at its initiative or on motion, provided the correction does not prejudice the adverse party.
RULE 5
M O T I O N S
Section 1. Motions must be in writing. – All motions shall be in writing, except for those made in open court.
Section 2. Proof of service necessary. – The court shall not act on any written motion, except upon submitted proof of service on the adverse party.
Section 3. No hearings on motions. – No motion shall be set for hearing, and no oral argument shall be allowed in support of any motion, except upon the court’s express.
A motion shall be deemed submitted for resolution unless the adverse party files his or her written objections within five (5) days from service. The court shall resolve a motion within (5) days from the time it is deemed submitted for resolution.
RULE 6
PROHIBITED PLEADINGS
Section 1. Prohibited pleadings and motions. – The following pleadings, motions or petitions shall not be allowed in the cases covered by these Rules:
(a) Motion to dismiss the petition, except on the ground of lack of jurisdiction over the subject matter;
(b) Motion for a bill of particulars;
(c) Demurrer to evidence;
(d) Motion for new trial, or for the reconsideration of a judgment, or for reopening of trial;
(e) Petition for relief from judgment;
(f) Motion for extension of time to file pleadings, affidavits or other papers;
(g) Memoranda, except as provided under Section 7, Rile 13 of these Rules;
(h) Motion to declare the protestee or the respondent in default;
(i) Dilatory motion for postponements;
(j) Motion for the inhibition of the presiding judge, except on clearly valid grounds;
(k) Reply or rejoinder; and
(l) Third-party complaint.
Section 2. Grounds to dismiss be set up in the answer. – All grounds to dismiss an election protest or petition for quo warranto must be set up or pleased as affirmative or special defenses. Defenses not raised are deemed waived. The court may, at its discretion, hold a preliminary hearing on the grounds so pleaded.
RULE 7
FILING FEES AND CASH DEPOSITS
Section 1. Filling fees. – No protest, counter-protest or petition for quo warranto
shall be accepted for filling without the payment of a filling fee in the amount of Three Thousand Pesos (P3,000.00) for every protest, counter-protest or petition for quo warranto filed.
If claims for damages and attorney’s fees are set forth in a protest or counter-protest, additional filling fees shall be paid in accordance with the schedule under Rule 141 of the Rules of Court, as amended.
Section 2. Cash deposit. –
(a) In addition to the fees prescribed in the preceding section, the protestant in an election protest requiring revision or examination of ballots, or the verification or re-tabulation of election returns, or which may require bringing copies of other election documents and paraphernalia to court, shall make a cash deposit with the court in the following amounts:
i. One Thousand Pesos (P1,000.00) for each precinct covered by the protest or counter-protest, provided that the deposit shall in no case be less than Twenty-five Thousand Pesos (P25,000.00) to be paid upon the filling of the election protest or counter-protest;
ii. Twenty-five Thousand Pesos (P25,000.00) for the cost of bringing to court and of storing and maintaining the PCOS, the consolidation machines and other automated election paraphernalia brought to court as evidence or as necessary equipment in considering the protested or counter-protested ballots;
iii. If the amount to be deposit does not exceed One Hundred Thousand Pesos (P100,000.00), the required sum shall be paid in full within ten (10) days from the filling of the protest or counter-protest; and
iv. If the required deposit shall exceed One Hundred Thousand Pesos (P100,000.00), a cash deposit in the amount of One Hundred Thousand Pesos (P100,000.00) shall be made within ten (10) days from the filling of the protest or counter-protest. The balance shall be paid in installments under the schedule the court may require after hearing the Protestant or counter-Protestant on the matter.
The cash deposit shall be applied by the court to the payment of the compensation of revisors as provided under Section 3, Rule 10 of these Rules, and of all the expenses incidental to revision, including but not limited to the cost of supplies and miscellaneous expenses of the revision committee, the cost of the production in court and the storage and maintenance of automated election equipment and paraphernalia.
When circumstances so demand (such as when the deposit has been or is about to be depleted), the court may require the payment of additional cash deposits. Any unused cash deposit shall be returned to the depositing party after the complete termination of the protest or counter-protest.
The same amount of cash deposit shall be required from the protestee (counter-protestant), should continuation of revision be ordered pursuant to paragraph 2, Section 10, Rule 10 of these Rules. Once required, the protestee (counter-protestant) shall pay the cash deposit within a non-extendible period of three days from receipt of the court’s order.
(b) Failure to make the cash deposits required within the prescribed time limit shall result in the automatic dismissal of the protest or counter-protest.
RULE 8
PRODUCTION AND CUSTODY OF BALLOT BOXES, ELECTION DOCUMENTS,
DATA STORAGE DEVICES AND PCOS MACHINES USED IN THE ELECTIONS (A)
Section 1. Issuance of precautionary protection order. – Where the allegations in a protest so warrant, the court shall order – simultaneously with the issuance of summons – the municipal treasurer and election officer concerned to take immediate and appropriate measures to safeguard the integrity of all the ballot boxes and the ballots, the lists of voters and voting records, the books of voters and other documents or paraphernalia used in the election, as well as the automated election equipment and records such as the data storage devices containing electronic data evidencing the conduct and results of elections in the contested precincts.
Section 2. When ballot boxes and election documents are brought before the court. –
Within forty-eight (48) hours from receipt of an answer with counter-protest, when the allegations in an protest or counter-protest so warrant, the court shall order the ballot boxes with their keys, the PCOS and consolidation machines, the electronic data storage devices, the lists of voters and voting records, the books of voters, and other documents or paraphernalia involved in the protest or counter-protest, to be brought before it.
The court shall notify the parties of the date and time of retrieval and transfer from their respective custodians of the ballot boxes, the PCOS and consolidation machines (if necessary), the electronics data storage devices and all other automated election documents and paraphernalia. The parties may send representatives to witness the retrieval and transfer. The absence, however, of a representative of a party shall not be reason to postpone or delay the retrieval or transfer of the above-mentioned equipment, devices and election documents.
The court, at its discretion, may seek the assistance of the Philippine National Police (PNP) or the Armed Forces of the Philippines in ensuring the safe delivery of the ballot boxes and the election equipment, devices and documents to its custody.
Where any of the ballot boxes, ballots, PCOS machines, data storage devices, election returns, election documents or paraphernalia mentioned above are also involved in election contests before other for a (such as the Presidential Electoral Tribunal, the Senate Electoral Tribunal, the House of Representatives Electoral Tribunal or the Commission on Elections) with preferential rights of custody and revision in simultaneous protests under COMELEC Resolution No. 2812 dated 17 October 1995, the court shall coordinate with and make the appropriate request with the higher tribunals for the temporary prior custody of ballot boxes, PCOS machines, electronic data storage devices and other election documents and paraphernalia, or for the synchronization of revision activities.
The expenses necessary and incidental to the production in court of the ballot boxes and election documents and the production, storage and maintenance of PCOS machines, data storage devices, and automated election paraphernalia and documents shall be shouldered and promptly paid by the protestant and counter-protestant in proportion to the precincts covered by their protects or counter-protests. The expenses necessary and incidental to the return of the materials and documents produced in court to their original custodians or to the proper tribunal after the termination of the case shall likewise be shared proportionately by the protestant and the protestee based on the number of precincts they respectively contest.
Section 3. Access to electronic data in the COMELEC back-up server. – Upon motion duly made based on demonstrated need, the court may order the COMELEC to provide the moving party access to, or to recover and use, electronic data from the COMELEC back-up server under conditions and safeguards required by COMELEC.
RULE 9
PRELIMINARY CONFERENCE
Section 1. Preliminary conference; mandatory. – Within three (3) days after the filling of the last responsive pleading allowed by these Rules, or on the expiration of this period without any responsive pleading having been filed, the court shall conduct a mandatory preliminary conference among the parties to consider:
(a) The simplification of issue;
(b) The necessary or desirability of amendments to the pleadings;
(c) The possibility of obtaining stipulations or admission of facts and of documents to avoid unnecessary proof;
(d) The limitation of the number of witnesses;
(e) The nature of the testimonies of the witnesses and whether they relate to evidence that do not involve the ballots, or otherwise;
(f) The withdrawal of certain protested or counter-protested precincts, especially those where the ballot boxes or ballots are unavailable or are missing, cannot be located, have been destroyed due to natural disasters or calamities, or where the PCOS and other electronic data are missing;
(g) The number of revision committees to be constituted;
(h) The procedure to be followed in case the election protest or counter-protest seeks, wholly or partially, the examination of ballots, or the verification or re-tabulation of election returns;
(i) The procedure in handling the PCOS and the other electronic machines and data; and
(j) Other matters that may contribute to prompt disposition of the case.
Section 2. Notice through counsel. – The notice of preliminary conference shall be served on counsel or on counsel on the party himself or herself who is not presented by counsel. Notice to counsel is to notice to the party, as counsel is charged with the duty to notify the party represented.
Section 3. Appearances of parties. - The parties have the duty to appear the person before the court at the preliminary conference. Counsels appearing without their clients should be specifically authorized to appear for and to bind their clients on the matters covered by the preliminary conference.
Section 4. Preliminary conference brief. – The parties shall file with the court their respective preliminary conference briefs and serve these on the adverse party in a manner that shall ensure the other party’s receipt of the brief at least one day before the date of the preliminary conference. The briefs shall contain the following:
(a) A summary of admitted facts and proposed stipulations;
(b) The issues is to be tried and resolved (i.e., for election protests, the alleged frauds or irregularities committed in the conduct of the election; for quo warranto proceedings, the ground for ineligibility or acts of disloyalty);
(c) The documents or exhibits to be presented;
(d) A manifestation indicating the use of the intent to use discovery procedures or referral to commissioners;
(e) The number and names of witnesses, their addresses, and the substance of their respective testimonies. The testimonies of witnesses shall be by affidavits, in question and answer form, which shall serve as their direct testimonies, subject to oral cross-examination;
(f) A manifestation of withdrawal of certain protested or counter protested precincts, if this is the case;
(g) The proposed number of revision committees and the names of proposes revisors and alternated revisors; and
(h) The procedure to be followed in case the election protest or counter protest seeks the revision or examination of ballots, or the verification or re-tabulation of election returns.
Section 5. Failure to file brief. - The failure to file the required brief or to provide the brief’s mandatory contests shall have the same effect as the failure to appear at the preliminary conference.
Section 6. Effect of failure to appear. – The failure of the protestant/petitioner or the duly authorized counsel to appear at the preliminary conference authorizes the court, as its own initiative, to dismiss the protest, or counter-protest or petition. The failure of the protestee/respondent or of the duly authorized counsel to appear at the preliminary conference may likewise have the effect provided under
Section 4(c), Rule 4 of these Rules, i.e., the court may allow the protestant/petitioner to present evidence ex parte and render judgment based on the evidence presented.
Section 7. Preliminary conference order. – The court shall issue an order summarizing the matters taken up and the stipulations or agreements reached during the conference within three (3) days following the termination of the preliminary conference. The court shall commence, the starting date of which shall be within five (5) days from the termination of the preliminary conference.
RULE 10
REVISION OF BALLOTS
Section 1. Start of revision. – The revision of ballots shall commence on the date specified in the preliminary conference order.
Section 2. Revision committee; under the supervision of the court. – As many revision committees as may be necessary shall be constituted. Each revision committee shall be composed of a chairperson and two members, one of whom is designated by the protestant and the other by the protestee. The court shall designate the chairperson and a recorder from among its personnel. The parties shall also designate their respective substitute revisors.
The revision committee shall conduct the revision in the court premises or at such other place in the court may designate, in every case under its strict supervision.
The revisors shall discharge their duties with the highest degree of integrity, conducting the proceedings with the same dignity and discipline the court itself brings to the proceedings. They shall exercise extraordinary diligence and take the precautionary measures requires by this level of diligence to prevent loss, disappearance or impairment of the integrity of the ballots and the election documents, whether electronic or printed, and the misuse of the electronic election machines, devices and paraphernalia.
Section 3. Compensation of the revisors. - The court shall fix the compensation of the revisors at Eight Hundred Pesos (P800.00) per ballot box for the chairperson and Three Hundred Pesos (P300.00) per ballot box for each party revisor. The party revisors shall each be entitled to an additional per diem of Five Hundred Pesos (P500.00) per day. The compensation for a recorder shall be Three Hundred Pesos (P300.00) per ballot box. This compensation shall be chargeable against the cash deposit as provided for under Section2, Rule 7 of these Rules.
Section 4. Continuous revisions. –
(a) Period for revision. – Revision shall be conducted from 8:30 a.m. to 12:00 noon and from 1:30 p.m. to 4:30 p.m. from Monday to Friday, except on non-working holidays. The revisors may take fifteen-minute breaks during the revision.
(b) Revision to continue even if a party revisor is absent or late. – The revision shall bot be delayed or postponed by reason of the absence or tardiness of a party’s revisor or substitute revisor, as long as the chairperson and one party revisor are present. The court may at any time designate another chairperson if the regular chairperson fails for any reason to report.
(c) If the revisor of the protestee is absent or late. - If the revisor of the protestee is absent or late for thirty minutes and no alternate appears as a substitute, the revision shall nevertheless commence. The protestee shall be deemed to have waived the right to appear and to object to the revision of ballots made during his or her revisor’s absence or tardiness.
(d) If the revisor of the protestant or the revisors of both parties fail to appear. – If the protestant’s revisor or the revisors of both parties or their alternates fail to appear without justifiable reason within one hour after the scheduled start of the revision, the ballot boxes scheduled for revision that day and the corresponding ballot box keys in the possession of the chairperson, shall be returned to the court’s ballot box custodian, and the ballots shall no longer be revised, the parties are deemed to have waived their right to the revision for that day, and the chairperson shall state the facts of absence and waiver in the revision report.
Section 5. Prohibited access. – During the revision, no person other than the judge, the clerk of the court, the chairperson and the members of the revision committee, the parties and their duly authorized representatives shall have the access to the revision area.
Section 6. Conduct of revision. – The revision of the votes on the ballots shall be done manually and visually and through the use of appropriate PCOS machines, according to the procedure below:
(a) On the scheduled day of revision, the following, if needed, should be in the custody of the court:
(i)the ballot boxes containing the ballots in protested and counter protested precincts; and
(ii) the data storage devices and the PCOS machines used in the precincts concerned or any other device that can be used to authenticate or assure the genuineness of the ballots;
(b) The revision committee shall initially note, before anything else, the condition of the ballot box and its locks and locking mechanism, and record this condition in the revision report. Based on this observation, the revision committee must also determine whether the integrity of the ballot box has been preserved.
(c) The ballot box shall then be opened and the ballots taken out. The "valid" ballots shall first be counted, without regard to the votes obtained by the parties. This will be followed by the counting of the torn, unused stray and rejected ballots, as classified at the polling place.
(d) The votes appearing in the election returns copy for the ballot box shall then be recorded in the minutes.
(e) Prior to the actual revision, the revision committee must authenticate each and every ballot to make sure that it was the same ballots cast and fed to the PCOS machine during the voting. The authentication shall be through the use of PCOS machines actually used during the elections in the subject precinct, or by another device certified by the Commission to be capable of performing the desired authentication requirement through the use of the bar codes and the ultra-violet ray code detection mechanism.
(f) The recount shall only proceed after the revision committee, through its chairperson and members, has determined that the integrity of the ballots has been preserved.
(g) The revision committee shall thereafter proceed to look at the ballots and count the indicated votes for the contested position.
(h) In looking at the shades or marks used to register votes, the revision committee shall bear in mind that the will of the voters reflected as votes in the ballots shall as much as possible be given effect, setting technicalities aside.
Furthermore, the votes are presumed to have been made by the voter and shall be so considered unless reasons exist to justify their rejection. However, marks or shades that are less than 50% of the oval shall not be considered as valid votes. Any issue as to whether a certain mark or shade is within the threshold shall be determined by using the PCOS machine, not by human determination.
(i) The rules on the appreciation of the ballots under Section211 of the Omnibus Election Code shall apply suppletorily when appropriate.
(j) There shall be a tally sheet in at least 5 copies, plus additional copies depending on the number of additional parties, that shall be used to tally the votes as they are counted through the use of taras and sticks.
(k) After all the ballots from one ballot box have been counted, the revision committee shall secure the contested ballots and complete the recount report for the precinct. Thereafter, it shall proceed to recount the votes from the ballots of the next precinct.
(l) In case of multiple revision committees, the recount shall be done simultaneously.
(m) In the event that the revision committee determines that the integrity of the ballots and the ballot box have not been preserved, as when proof of tampering or substitution exists, it shall proceed to instruct the printing of the picture image of the ballots stored in the data storage device for the precinct. The court shall provide a non-partisan technical person who shall conduct the necessary authentication process to ensure that the data or image stored is genuine and not a substitute. Only after this determination can the printed picture image be used for the recount,
Section 7. Preparation and submission of revision report. – The committee shall prepare and submit to the court a revision report per precinct stating the following:
(a) the precinct number;
(b) the date, the place and the time of revision;
(c) the votes of the parties per physical count;
(d) the condition and the serial numbers of the following:.
(i) ballot boxes;
(ii) self-locking security metal or plastic seals (inner and outer) and padlocks of the ballot boxes;
(iii) security envelopes containing the election returns; and
(iv) numbered paper seal of the envelopes;
(e) if required, the availability of and other circumstances attendant to the PCOS machines and other automated election devices and paraphernalia used in the revision;
(f) the votes of the parties per the ballot box copy of the election returns and per the tally sheet/board found inside the ballot box;
(g) the number of ballots objected to by the parties indicating therein the exhibit numbers;
(h) the grounds of objections;
(i) the number of stray ballots;
(j) the claims on ballots with their exhibit numbers; and
(k) the entries in the Minutes of Voting and Counting, particularly:
(i) the number of registered voters;
(ii) the number of voters who actually voted;
(iii) the number of official ballots, together with their serial numbers, used in the election;
(iv) the number if ballots actually used indicating the serial numbers of the ballots; and
(v) the unused ballots together with their serial numbers.
The revision forms shall be made available prior to the revision. The per-precinct revision report shall be signed and certified by the chairperson and by the parties’ revisors, and shall form part of the records of the case.
In addition to the per-precinct revision report, the revision committee shall also prepare and submit to the court, within three days from termination of the revision, a committee report summarizing the data, votes, ballot objections and claims, and significant observations made during the revision of ballots from the protested precincts and later from the counter-protested precincts, if so conducted based on the provisions of Section 10 below. Each party furnished with a copy of the committee report may submit its comments thereon within a non-extendible period of three (3) days from notice.
Section 8. Order of revision. – Revision of ballots shall start with those from the protested precincts , subject to the provisions of Section 10 thereof.
Section 9. Inquiry as to security markings and vital information relative to ballots and election documents. – When a revision of ballots is ordered, and for the guidance of the revisors, the court shall inquire about the security markings on the ballots and the security measures used in the election documents from the Chairperson of COMELEC who shall be obliged to indicate this markings, measures and other vital information that may aid the court in determining the authenticity of the ballots and election documents. The parties shall be notified of the results of this inquiry.
Section 10. Post-revision determination of the merit or legitimacy of the protest
prior to revision of the counter-protest. – Immediately after the revision or examination of ballots, or the verification or re-tabulation of election returns in all protested precincts, the protestant shall be required to point to a number of precincts, corresponding to twenty percent (20%) of the total of the revised protested precincts, that will best attest to the votes recovered, ore that will best exemplify the fraud or irregularities pleaded in the protest. In the meanwhile, the revision or examination of the ballots, or the verification or re-tabulation of election returns in the counter-protested precincts, shall be suspended for a period not exceeding fifteen days to allow the court to preliminarily determine, through the appreciation of ballots and other submitted election documents, the merit of legitimacy of the protest based in the chosen twenty percent (20%) of the protested precincts.
Based on the results of this post-revision preliminary determination, the court may dismiss the protest without further proceedings if the validity of the grounds for the protest is no established by the evidence from the chosen twenty percent (20%) of the protested precincts; or proceed with the revision or examination if the ballots, or the verification or re-tabulation of election returns in the counter-protested precincts. In the latter case, the protestee shall be required to pay the cash deposit within a non-extendible period of three (3) days from notice.
Section 11. Continuation of the appreciation of ballots. - If the court decides not to dismiss the protest after the preliminary examination of the evidence from the chose twenty percent (20%) of the protested precincts, revision with respect to the remaining precincts shall proceed at the same time that the ballots or election documents from the counter-protested precincts are being revised. After completion of the revision of the protested precincts, the court shall proceed with the appreciation and revision of ballots from the counter-protested precincts.
RULE 11
TECHNICAL EXAMINATION
Section 1. Motion f or technical examination; contents. – Except when the protest or counter-protest involves allegation of massive substitute voting, a party may move for the technical examination of the presented evidence within five (5) days after completion of the revision in the protest or counter-protest, specifying:
(a) The nature of the technical examination requested (e.g., fingerprint examination, etc.);
(b) The documents or machines/equipment to be subjected to technical examination;
(c) The objections made in the course of the revision of ballots which the movant intends to substantiate with the results of the technical examination; and
(d) The ballots covered by these objections.
Section 2. Technical examination; time limits. – The court may grant the motion for technical examination at its discretion and under the conditions it may impose. If the motion is granted, the technical examination shall start within five (5) days from notice to both parties, and shall be completed within the period specified by the court, in no case to exceed to twenty successive working days, unless the court grants an extension based on exceptionally meritorious ground. A party may attend the technical examination either personally or through a representative. However the technical examination shall proceed with or without the attendance of a party, provided that the due notice has been given.
The expenses for technical examination shall be for the account of the party requesting the examination. The technical examination shall be under the supervision of the clerk of court.
Section 3. Experts; who shall provide. – Experts necessary for the conduct of technical examination shall be provided by the party requesting the same and may come from the National Bureau of Investigation, the PNP Crime Laboratory, the Commission on Elections, the Department of Science and Technology, or experts from the private sector. The other party may secure the services of his or her own expert who may only observe, not interfere with, the examination conducted by the movant’s experts.
RULE 12
PHOTOCOPYING OF BALLOTS
Section 1. Photocopying simultaneous with revision. – On the motion of a party, the court may allow the photocopying of ballots and election documents, upon such terms and conditions as the court may impose. The photocopying, if allowed, must start at the commencement of revision and, as far as practicable, must be completed simultaneously with the termination of revision.
Section 2. Where conducted; parties to provide own photocopying units. – Photocopying shall be done within the premises of the court, near the revision area, and shall be under the supervision of the clerk of court. The requesting party shall provide an efficient photocopying unit and shall bear all attendant expenses.
Section 3. Copying or reproduction of electronic data. – On the motion of a party, the court may allow the reproduction of electronic data that are submitted as evidence, or that are within the custody and control of the COMELEC under the conditions and safeguards the COMELEC shall require. The costs and expenses shall be for the account of the party seeking the reproduction.
RULE 13
PRESENTATION OF EVIDENCE
Section 1. Presentation and reception of evidence; order of hearing. – If at the preliminary conference the parties have agreed on issues that do not involve the examination and appreciation of ballots or other election documents (e.g., vote-buying, fraud, terrorism or violence), the reception of evidence on the issues, including the testimonies of witnesses, shall be done simultaneously with the revision of ballots that may be required.
The reception of evidence on all other matters or issues incidental to or involving the ballots and related election documents shall be made upon completion of (a) the revision of ballots or election documents; or (b) the technical examination, if allowed by the court under the provisions of Rule 11 of these Rules.
Reception of evidence shall be made in accordance with the following order of hearing:
(a) The protestant or petitioner shall present evidence in support of the protest or petition;
(b) The protestee or respondent shall then adduce evidence in support of the defense, counterclaim or counter-protest, if any;
(c) The parties may then respectively offer rebuttal evidence only, unless the court for good reasons and in the furtherance of justice, permits them to offer evidence on their original case; and
(d) No sur-rebuttal evidence shall be allowed.
In offering testimonial evidence, the party shall require the proposed witness to execute an affidavit which shall be considered as the witness’ direct testimony, subject to the right of the adverse party to object to its inadmissible portions and to orally cross-examine the witness. The affidavit shall be based on personal knowledge, shall set forth facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify on the stated matters. The affidavit shall be in question and answer form, and shall be submitted to the court and served on the adverse party at least three (3) days before the hearing.
Failure to submit the affidavit of witness within the specified time shall constitute a waiver of the party’s right to present testimonial evidence.
The one-day-cross-examination-of witness rule – i.e., that a witness has to be fully cross-examined on one day – shall strictly be followed, subject to the court’s discretion to extend the cross-examination for justifiable reasons.
The revision reports, as well as the ballots objected to or claimed by the parties and the submitted electronic evidence, shall automatically form part of court records and may be adopted by the other parties as their evidence.
Section 2. Offer of evidence. – The court shall not consider any evidence that has not been formally offered. Offer of evidence shall be done orally on the last day of hearing allowed for each party after the presentation of the party’s last witness. The opposing party shall be required to immediately interpose objections to the offer. The court shall rule on the offer of evidence in open court. However, the court may, at its discretion, allow the party to make an offer of evidence in writing, which shall be submitted within three days from notice of the court’s order. If the court rejects any evidence offered, the party may make a tender of the excluded evidence.
Section 3. Reception of evidence continuous. – Reception of evidence, once commenced, shall continue from day to day, as far as practicable, until fully completed or terminated at the court’s order. In no case shall the entire period for reception of evidence exceed ten successive days for each party, from the first day reception of evidence starts, unless otherwise authorized by the Supreme Court.
Section 4. Adjournments and postponements. – No motion for postponement shall be allowed, except for clearly meritorious reasons. In no case shall the resetting of hearings have an interval exceeding three calendar days, nor shall the postponements of hearing granted to each party exceed three (3). The filing of dilatory pleadings or motions shall constitute direct contempt of court and shall be punished accordingly.
Section 5. Burden of proof. – Burden of proof is the duty of a party to present evidence of the facts in issue to establish his or her claim or defense.
Section 6. Disputable presumptions. – The following presumptions are considered as established facts, unless contradicted and overcome by other evidence:
(a) On the election procedure:
(i) The election of candidates was held on the date and at the time set and in the polling place determined by the Commission on Elections;
(ii) The Boards of Election Inspectors were duly constituted and organized;
(iii) Political parties and candidates were duly represented by pollwatchers;
(iv) Pollwatchers were able to perform their functions;
(v) The Minutes of Voting and Counting contains all the incidents that transpired before the Board of Election Inspectors; and
(vi) The Audit Log contains the list of all activities performed by the PCOS machines from the time it was powered on until it was turned off.
(b) On election paraphernalia:
(i) Ballots and election returns that bear the security markings and features prescribed by the Commission on Elections are genuine;
(ii) The data and information supplied by the members of the Boards of Election Inspectors in the accountable forms are true and correct; and
(iii) The allocation, packing and distribution of election documents or paraphernalia were properly and timely done;
(iv) The PCOS and consolidation machines and the data storage devices are all in order, and the data generated reflect the activities entered in these electronic machines and devices.
(c) On appreciation of ballots:
(i) A ballot with appropriate security markings is valid;
(ii) The ballot reflects the intent of the voter;
(iii) The ballot was properly accomplished;
(iv) A voter personally prepared one ballot, except in the case of assistors; and
(v) The exercise of one’s right to vote was voluntary and free.
Section 7. Submission of memoranda. – The court may allow the parties to submit their respective memoranda within a non-extendible period of ten (10) days from the verbal ruling of the court on the last offer of exhibits; or, if the offer was made in writing, within ten (10) days from receipt of the written ruling of the court. No supplemental, reply or rebuttal memorandum shall be allowed.
RULE 14
D E C I S I O N
Section 1. Rendition of decision. – The court shall decide the election contest within thirty (30) days from the date the case is submitted for decision, in no case beyond six (6) months after its filing, unless the Supreme Court authorizes an extension in writing. Failure to comply with this timeline shall be considered a serious offense and shall be a ground for disciplinary action against the judge. In addition, six (6) months after the submission of the case for decision, the judge shall be relieved of all duties and functions except to decide the election case.
An election protest is deemed submitted for decision after completion of the reception of evidence or, if the parties were allowed to submit memoranda, upon submission of their memoranda or the expiration of the period for their filing, whichever is earlier. In an election protest, the winner shall be the candidate who obtained the plurality of the valid votes cast.
Section 2. Form of decision in election protests. – After the termination of the revision of ballots and before rendering its decision in an election protest that involved a revision, the court shall examine and appreciate the original ballots.
The court, in its appreciation of the ballots and in ruling on the parties’ claims and objections, shall observe the following rules:
(a) On marked ballots – The court must specify and point to the marking clearly indicating the voter’s intent to identify the ballot.
(b) On fake or spurious ballots, election document, machine, device or paraphernalia – The court must specify the COMELEC security markings or features that are not found in the ballot, election documents, machine, device or paraphernalia considered fake or spurious, or the operation or aspects of the machine, device or paraphernalia that resulted in fake or spurious results;
(c) On stray ballots – The court must specify and state in detail why the ballots are considered stray;
(d) On claimed ballots – The court must specify the exact basis for admitting claimed votes or crediting these to either party.
Section 3. Several judgments. – In a protest or petition against several protestees or respondents, the court may, when a several judgment is proper, render judgment against one or more of them, leaving the protest or petition to proceed against the others.
Section 4. Promulgation of decision. – The decision signed by the presiding judge shall be promulgated by reading its dispositive portion in open court on a date set with notice to the parties and filing the decision with the clerk of court; or by the delivery of a copy of the signed decision to the clerk of court, who shall forthwith indicate the date of rendition and cause true copies thereof to be served, personally or by registered mail, on the counsels or on the parties if they are not represented by counsel.
Section 5. Finality of decision. – The court’s promulgated decision shall become final and executory five (5) days after receipt of notice by the parties if no appeal is taken.
Section 6. Entry of judgment. – If no appeal is filed within the time provided in these Rules, the judgment shall be entered by the clerk in the book of entries of judgments. The date of finality of the judgment shall be the date of its entry. The record shall contain the dispositive part of the judgment and shall be signed by the clerk, with a certificate that the judgment has become final and executory.
Section 7. Notice of final decision. – As soon as the decision becomes final, the clerk of court shall send notices to the COMELEC, the Department of the Interior and Local Government, and the Commission on Audit.
Section 8. Appeal. – An aggrieved party may appeal the decision to the COMELEC within five (5) days after promulgation, by filing a notice of appeal with the court that rendered the decision, with copy served on the adverse counsel or on the adverse party who is not represented by counsel.
Section 9. Appeal fee. – The appellant in an election contest shall pay to the court that rendered the decision an appeal fee of One Thousand Pesos (P1,000.00), simultaneously with the filing of the notice of appeal.
Section 10. Immediate transmittal of records of the case. – The clerk of court shall, within fifteen (15) days from the filing of the notice of appeal, transmit to the Electoral Contests Adjudication Department, COMELEC, the complete records of the case, together with all the evidence, including the original and three copies of the transcript of stenographic notes of the proceedings.
Section 11. Execution pending appeal. – On motion of the prevailing party with notice to the adverse party, the court, at its discretion and while still in possession of the original records, may order the execution of its decision before the expiration of the period to appeal, subject to the following rules:
(a) Execution pending appeal shall not issue except upon motion and hearing with prior notice of the motion of at least three (3) days to the adverse party. The motion for execution pending appeal must be supported by good reasons cited and stated by the court in a special order. These reasons must:
(i) constitute superior circumstances demanding urgency that would outweigh the injury or damage, should the losing party secure a reversal of the judgment on appeal; and
(ii) manifest, in the decision sought to be executed, that the defeat of the protestee or the victory of the protestant has been clearly established.
(b) If the court grants an execution pending appeal, an aggrieved party shall have twenty working days from notice of the special order within which to secure a restraining order or status quo order from the Supreme Court or the COMELEC. The corresponding writ of execution shall issue after twenty (20) days if no restraining order or status quo order is issued. During the twenty (20)-day period, the issuance of a writ of execution pending appeal shall be stayed.
Section 12. Jurisdiction of the Commission on Elections in certiorari cases. – The COMELEC has the authority to issue the extraordinary writs of certiorari, prohibition and mandamus only in aid of its appellate jurisdiction over decisions of the courts in election cases involving elective municipal officials.
Section 13. Preferential disposition of election contests. – The courts shall give preference to election contests over all other cases, except petitions for habeas corpus and for the writs of amparo and habeas data.
RULE 15
COSTS, DAMAGES AND ATTORNEY’S FEES
Section 1. Costs; when allowed. – Costs shall be allowed to the prevailing party as a matter of course. The court shall have the power, for special reasons, to apportion the costs, as may be equitable. The court may render judgment for costs if a protest, a counter-protest or a petition for quo warranto is dismissed. When a protest, a counter-protest or a petition for quo warranto is found to be frivolous, double or treble costs may be imposed on the protestant, the counter-protestant or the petitioner.
Section 2. Damages and attorney’s fees. – In all election contests, the court may adjudicate damages and attorney’s fees as it may deem just and as established by the evidence, if the aggrieved party has included these claims in the pleadings.
RULE 16
ELECTRONIC EVIDENCE
Section 1. Original of an electronic document or data. – An electronic document or data shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or an output readable by sight or other means and shown to reflect the data accurately.
Section 2. Copies as equivalent of the originals. – When a document is in two or more copies executed at or about the same time with identical contents, or is a counterpart produced by the same impression as the original, or from the same matrix, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques that accurately reproduce the original, such copies or duplicates shall be regarded as the equivalent of the original.
Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as the original if:
a) a genuine question is raised as to the authenticity of the original; or
b) under the circumstances, it would be unjust or inequitable to admit the copy in lieu of the original.
Section 3. Affidavit as evidence. – All matters relating to the admissibility and evidentiary weight of an electronic document may be established by an affidavit stating facts of direct personal knowledge of the affiant or based on authentic records. The affidavit must affirmatively show the competence of the affiant to testify on the matters contained therein. The affiant shall be made to affirm the contents of the affidavit in open session and may be cross-examined as a matter of right by the adverse party.
RULE 17
AUTHENTICATION OF ELECTRONIC DOCUMENTS AND DATA
Section 1. Burden of proving authenticity. – The person seeking to introduce an electronic document in an election protest has the burden of proving its authenticity in the manner provided in this Rule.
Section 2. Manner of authentication. – Before any electronic document or data offered as authentic is received in evidence, its authenticity must be proved by any of the following means:
a) By evidence that it has been digitally signed by the person purported to have signed it. "Digitally signed" refers to an electronic document or electronic data message bearing a digital signature verified by the public key listed in a certificate.
b) By evidence that other appropriate security procedures or devices for authentication of electronic documents authorized by the Supreme Court or by law for the authentication of electronic documents were applied to the document; or
c) By other evidence showing its integrity and reliability to the satisfaction of the judge.
Section 3. The Rules on Electronic Evidence. – The Rules on Electronic Evidence shall apply to evidentiary aspects of pleadings, practice and procedure in election contests not otherwise specifically provided for in these Rules.
RULE 18
FINAL PROVISIONS
Section 1. Repealing clause. – For municipal election contests, these rules supersede A.M. No. 07-4-15-SC (The Rules of Procedure In Election Contests Before The Courts Involving Municipal and Barangay Officials) which became effective on May 15, 2007. All other rules, resolutions, regulations or circulars of the Supreme Court or parts thereof that are inconsistent with any provision of these Rules are hereby deemed repealed or modified accordingly.
Section 2. Effectivity clause. These Rules shall take effect fifteen (15) days after their publication in a newspaper of general circulation in the Philippines.
The Lawphil Project - Arellano Law Foundation
Subscribe to:
Posts (Atom)