Employees Of Government Owned And Controlled Corporations With No Original Charters Are Not Public Officers Under The 1987 Constitution

FELICITO S. MACALINO, PETITIONER, VS. SANDIGANBAYAN AND OFFICE OF THE OMBUDSMAN, RESPONDENTS, G.R. Nos. 140199-200, February 06, 2002. - The Lawyer's Post.

“x x x.

Petitioner contends that an employee of the PNCC is not a public officer as defined under Republic Act No. 3019, as follows:

“Sec. 2. (a) xxx xxx xxx.

“(b) Public officer includes elective and appointive officials and employees, permanent or temporary, whether in the unclassified or classified or exempted service receiving compensation, even nominal, from the government as defined in the preceding paragraph.”

We agree.

To resolve the issue, we resort to the 1987 Constitution. Article XI, on the Accountability of Public Officers, provides:

“Section 12. The Ombudsman and his deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations x x x.”

“Section 13. The Office of the Ombudsman shall have the following powers, functions and duties:

“1. Investigate on its own, or on complaint by any person, any act or omission of any public official or employee, office or agency, when such act or omission appears to be illegal, unjust, improper and inefficient. x x x

“2. Direct, upon complaint or at its instance, any public official or employee of the government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporations with original charters, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties.” (underscoring supplied)

Further, Article IX-B, Section 2 (1) of the 1987 Constitution provides:

“The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned and controlled corporations with original charters.” (underscoring supplied)

Republic Act No. 6770 provides:

“Section 15. Powers, Functions and Duties -The Office of the Ombudsman shall have the following powers, functions and duties:

“1. Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. x x x.

“2. Direct, upon complaint or at its own instance, any officer or employee of the Government, or of any subdivision, agency or instrumentality thereof, as well as any government-owned or controlled corporations with original charters, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties.”

Inasmuch as the PNCC has no original charter as it was incorporated under the general law on corporations, it follows inevitably that petitioner is not a public officer within the coverage of R. A. No. 3019, as amended. Thus, the Sandiganbayan has no jurisdiction over him. The only instance when the Sandiganbayan has jurisdiction over a private individual is when the complaint charges him either as a co-principal, accomplice or accessory of a public officer who has been charged with a crime within the jurisdiction of Sandiganbayan.

The cases cited by respondent People of the Philippines are inapplicable because they were decided under the provisions of the 1973 Constitution which included as public officers, officials and employees of corporations owned and controlled by the government though organized and existing under the general corporation law. The 1987 Constitution excluded such corporations.

The crimes charged against petitioner were committed in 1989 and 1990. The criminal actions were instituted in 1992. It is well-settled that “the jurisdiction of a court to try a criminal case is determined by the law in force at the institution of the action.”

X x x.”





Pretrial; guidelines; sanctions

BANK OF THE PHILIPPINE ISLANDS, PETITIONER, VS. SPOUSES ROBERTO AND TERESITA GENUINO, RESPONDENTS, G.R. No. 208792, July 22, 2015. - The Lawyer's Trust.

“x x x.

The trial court dismissed the Complaint pursuant to Rule 17, Section 3 of the Rules of Court. This dismissal operated as an adjudication on the merits:

SEC. 3. Dismissal due to fault of plaintiff. — If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion of the defendant or upon the court’s own motion without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court. (Emphasis supplied)

A.M. No. 03-1-09-SC entitled Re: Proposed Rule on Guidelines to be Observed by Trial Court Judges and Clerks of Court in the Conduct of Pre-Trial and Use of Deposition-Discovery Measures took effect on August 16, 2004. This provides that:

I. Pre-Trial

A. Civil Cases

1….

….

Within five (5) days from date of filing of the reply, the plaintiff must promptly move ex parte that the case be set for pre-trial conference. If the plaintiff fails to file said motion within the given period, the Branch COC shall issue a notice of pre-trial.⁠1 (Emphasis supplied, citations omitted).

Respondents Spouses Genuino cannot rely on Olave v. Mistas as this involved a trial court Order dated October 20, 1997 dismissing the Complaint with prejudice.⁠2 The facts in Olave took place before the effectivity of A.M. No. 03-1-09-SC on August 16, 2004.

Espiritu, et al. v. Lazaro, et al. quoted by petitioner Bank of the Philippine Islands “clarified the application of [A.M.] No. 03-l-09[-SC] to cases filed after its effectivity on August 16, 2004”:⁠3 

In every action, the plaintiffs are duty-bound to prosecute their case with utmost diligence and with reasonable dispatch to enable them to obtain the relief prayed for and, at the same time, to minimize the clogging of the court dockets. Parallel to this is the defendants’ right to have a speedy disposition of the case filed against them, essentially, to prevent their defenses from being impaired.

Since the incidents occurred prior to the effectivity of A.M. No. 03-1-09-SC on August 16, 2004, the guidelines stated therein should not be made applicable to this case. Instead, the prevailing rule and jurisprudence at that time should be utilized in resolving the case.

Section 1 of Rule 18 of the Rules of Court imposes upon the plaintiff the duty to set the case for pre-trial after the last pleading is served and filed. Under Section 3 of Rule 17, failure to comply with the said duty makes the case susceptible to dismissal for failure to prosecute for an unreasonable length of time or failure to comply with the rules.⁠4 (Emphasis supplied, citation omitted)

Nevertheless, nowhere in the text of A.M. No. 03-1-09-SC does it remove the plaintiff’s duty under Rule 18, Section 1 of the Rules of Court to set the case for pre-trial after the last pleading has been served and filed. Nowhere does it repeal Rule 17, Section 3 of the Rules of Court that allows dismissals due to plaintiff’s fault, including plaintiff’s failure to comply with the Rules for no justifiable cause. Nowhere does it impose a sole burden on the trial court to set the case for pre-trial.

Reading A.M. No. 03-1-09-SC together with Rule 17, Section 3 and Rule 18, Section 1 of the Rules of Court accommodates the outright dismissal of a complaint upon plaintiff’s failure to show justifiable reason for not setting the case for pre-trial within the period provided by the Rules. Thus, trial courts must consider the facts of each case.

This court has allowed cases to proceed despite failure by the plaintiff to promptly move for pre-trial when it finds that “the extreme sanction of dismissal of the complaint might not be warranted”:⁠5 

It must be stressed that even if the plaintiff fails to promptly move for pre-trial without any justifiable cause for such delay, the extreme sanction of dismissal of the complaint might not be warranted if no substantial prejudice would be caused to the defendant, and there are special and compelling reasons which would make the strict application of the rule clearly unjustified.

….

While “heavy pressures of work” was not considered a persuasive reason to justify the failure to set the case for pre-trial in Olave v. Mistas, however, unlike the respondents in the said case, herein respondent never failed to comply with the Rules of Court or any order of the trial court at any other time. Failing to file a motion to set the case for pre-trial was her first and only technical lapse during the entire proceedings. Neither has she manifested an evident pattern or a scheme to delay the disposition of the case nor a wanton failure to observe the mandatory requirement of the rules. Accordingly, the ends of justice and fairness would best be served if the parties are given the full opportunity to litigate their claims and the real issues involved in the case are threshed out in a full-blown trial. Besides, petitioners would not be prejudiced should the case proceed as they are not stripped of any affirmative defenses nor deprived of due process of law.

This is not to say that adherence to the Rules could be dispensed with. However, exigencies and situations might occasionally demand flexibility in their application. Indeed, on several occasions, the Court relaxed the rigid application of the rules of procedure to afford the parties opportunity to fully ventilate the merits of their cases. This is in line with the time-honored principle that cases should be decided only after giving all parties the chance to argue their causes and defenses. Technicality and procedural imperfection should thus not serve as basis of decisions.

Finally, A.M. No. 03-1-09-SC or the new Guidelines To Be Observed By Trial Court Judges And Clerks Of Court In The Conduct Of Pre-Trial And Use Of Deposition-Discovery Measures, which took effect on August 16, 2004, aims to abbreviate court proceedings, ensure prompt disposition of cases and decongest court dockets, and to further implement the pre-trial guidelines laid down in Administrative Circular No. 3-99 dated January 15, 1999. A.M. No. 03-1-09-SC states that: Within five (5) days from date of filing of the reply, the plaintiff must promptly move ex-parte that the case be set for pre-trial conference. If the plaintiff fails to file said motion within the given period, the Branch COC shall issue a notice of pre-trial.⁠6 As such, the clerk of court of Branch 17 of the Regional Trial Court of Malolos should issue a notice of pre-trial to the parties and set the case for pre-trial. (Emphasis supplied, citations omitted)

On the other hand, this court has sustained dismissals due to plaintiff’s fault after finding that plaintiff’s failure to prosecute or comply with the rules was without justifiable reason. The Court of Appeals Decision cited Spouses Zarate v. Maybank Philippines, Inc.⁠7 and Eloisa Merchandising, Inc. v. Banco de Oro Universal Bank⁠8 on the need for vigilance in prosecuting one’s case, and Regner v. Logarta⁠9 on the right to speedy trial.⁠10 

In Zarate, the trial court “dismiss[ed] the complaint for lack of interest to prosecute the case.”⁠11 Pre-trial and presentation of evidence-in-chief were reset several times due to plaintiff spouses’ and/or their counsel’s failure to appear, without offering any explanation for most of their absences.⁠12 This court sustained the trial court’s dismissal of the complaint after finding that “petitioners inexorably delayed the trial of the case without any justifiable reasons[.]”⁠13 

In Eloisa Merchandising, Inc., the case “had been at the pre-trial stage for more than two years and petitioners have not shown special circumstances or compelling reasons to convince [this court] that the dismissal of their complaint for failure to prosecute was unjustified.”⁠14 The case remained at pre-trial stage when A.M. No. 03-1-09-SC took effect.⁠15 The trial court already dismissed the complaint twice due to petitioners’ non-appearance at pre-trial.⁠16 This court sustained the third dismissal since “despite the trial court’s leniency and admonition, petitioners continued to exhibit laxity and inattention in attending to their case.”⁠17 

This court discussed that “[w]hile under the present Rules, it is now the duty of the clerk of court to set the case for pre-trial if the plaintiff fails to do so within the prescribed period, this does not relieve the plaintiff of his own duty to prosecute the case diligently.”⁠18 

Regner does not involve the non-filing of a motion to set case for pre-trial, but the failure to serve summons on respondents in a Complaint for declaration of nullity of deed of donation filed in June 1999.⁠19 

Nevertheless, we can apply by analogy Regner‘s, ruling that “[although Section 1, Rule 14 of the Rules imposes upon the clerk of court the duty to serve summons, this does not relieve the petitioner of her own duty as the plaintiff in a civil case to prosecute the case diligently[,] [and] [i]f the clerk had been negligent, it was petitioner’s duty to call the court’s attention to that fact.”⁠20 A plaintiff’s failure to vigilantly pursue his or her case also affects respondent’s right to speedy trial.⁠21 

The Court of Appeals Decision discussed that petitioner Bank of the Philippine Islands “cannot simply ‘fold its hands’ and say that it was the duty of the clerk of court to set the case for pre-trial for the prompt disposition of its case.”⁠22 

Trial courts should be more proactive in ensuring the progression of cases to pre-trial considering the significance of this stage in civil actions:

Pre-trial is an answer to the clarion call for the speedy disposition of cases. Although it was discretionary under the 1940 Rules of Court, it was made mandatory under the 1964 Rules and the subsequent amendments in 1997. Hailed as “the most important procedural innovation in Anglo-Saxon justice in the nineteenth century,” pre-trial seeks to achieve the following:

(a) The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution;

(b) The simplification of the issues;

(c) The necessity or desirability of amendments to the pleadings:

(d) The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof;

(e) The limitation of the number of witnesses;

(f) The advisability of a preliminary reference of issues to a commissioner;

(g) The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist;

(h) The advisability or necessity of suspending the proceedings; and

(i) Such other matters as may aid in the prompt disposition of the action.23

Pre-trial promotes efficiency of case proceedings by allowing the parties to stipulate on facts and admissions that no longer need proof, and to agree on key issues, among others. It protects the right to speedy trial without compromising substantive justice.

A.M. No. 03-1-09-SC upholds this purpose in requiring the Clerk of Court to issue a notice of pre-trial “[i]f the plaintiff fails to file [the] said motion [to set case for pre-trial] within the given period[.]”⁠24 

However, petitioner Bank of the Philippine Islands also has the duty to set the case for pre-trial after the last pleading has been served and filed,⁠25 and to diligently pursue its case and comply with the rules. Failure to do so without justifiable cause warrants an outright dismissal of the Complaint.⁠26 

Petitioner Bank of the Philippine Islands’ explanation of misfiling by previous counsel’s secretary of the case records together with terminated cases in the office bodega cannot be considered as justifiable cause for its failure to set the case for pre-trial. This court has held that “a counsel is required to inquire, from time to time, and whenever necessary, about the status of handled cases, as well as motions filed for a client.”⁠27 Also, petitioner Bank of the Philippine Islands is one of the oldest and more established banks in the country. There is reasonable expectation that it has the necessary organizational structures, system flows, and procedures to address urgent matters and meet litigation deadlines.

Between the parties, petitioner Bank of the Philippine Islands is in a better position to bear the costs of a procedural misstep of its own doing as compared with respondents Spouses Genuine The bank may have had its reasons to waive payment or the pursuit of its claims. For instance, it could have weighed that the costs of pursuing its litigation against respondents Spouses Genuino outweigh the potential benefits. It could be that their business with the bank was far more valuable than the incidental rupture in their relationship caused by this transaction. In all these possible cases, respondents Spouses Genuino and other debtors have a right to rely on the non-action of the plaintiff. In their view, the non-filing of the basic motion for setting of pre-trial would have been, at best, a reasonable economic signal that the bank was no longer interested. At worse, it was clearly negligence of an entity with enough institutional resources to maintain a large arsenal of in-house and external counsel. The bank’s explanation for its own negligence is unavailing. While it is true that A.M. No. 03-1-09-SC does provide that the Clerk of Court set the date of pre-trial,⁠28 plaintiff should not be rewarded for his or her negligence.

X x x.”

A preliminary injunction, like any preliminary writ and any interlocutory order, cannot survive the main case of which it is an incident; because an ancillary writ of preliminary injunction loses its force and effect after the decision in the main petition

ZUNECA PHARMACEUTICAL, AKRAM ARAIN AND/OR VENUS ARAIN, M.D. DBA ZUNECA PHARMACEUTICAL, PETITIONERS, VS. NATRAPHARM, INC., RESPONDENT, G.R. No. 197802, November 11, 2015 - The Lawyer's Post.

“x x x.

Rule 58 of the Rules of Court provides for both preliminary and permanent injunction. Section 1, Rule 58 provides for the definition of preliminary injunction:

SECTION 1. Preliminary injunction defined; classes. — A preliminary injunction is an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to refrain from a particular act or acts. It may also require the performance of a particular act or acts, in which case it shall be known as a preliminary mandatory injunction. (Emphasis supplied)

On the other hand, Section 9 of the same Rule defines a permanent injunction in this wise:

SEC. 9. When final injunction granted. — If after the trial of the action it appears that the applicant is entitled to have the act or acts complained of permanently enjoined, the court shall grant a final injunction perpetually restraining the party or person enjoined from the commission or continuance of the act or acts or confirming the preliminary mandatory injunction. (Emphasis supplied)

A writ of preliminary injunction is generally based solely on initial and incomplete evidence.[1] The evidence submitted during the hearing on an application for a writ of preliminary injunction is not conclusive or complete for only a sampling is needed to give the trial court an idea of the justification for the preliminary injunction pending the decision of the case on the merits.[2] As such, the findings of fact and opinion of a court when issuing the writ of preliminary injunction are interlocutory in nature and made even before the trial on the merits is commenced or terminated.[3]

By contrast a permanent injunction, based on Section 9, Rule 58 of the Rules of Court, forms part of the judgment on the merits and it can only be properly ordered only on final judgment. A permanent injunction may thus be granted after a trial or hearing on the merits of the case and a decree granting or refusing an injunction should not be entered until after a hearing on the merits where a verified answer containing denials is filed or where no answer is required, or a rule to show cause is equivalent to an answer[4].

As such a preliminary injunction, like any preliminary writ and any interlocutory order, cannot survive the main case of which it is an incident; because an ancillary writ of preliminary injunction loses its force and effect after the decision in the main petition.[5]

In Casilan v. Ybañez,[6] this Court stated:

As things stand now, this Court can no longer interfere with the preliminary injunctions issued by the Leyte court in its cases Nos. 2985 and 2990, because such preliminary writs have already been vacated, being superseded and replaced by the permanent injunction ordered in the decision on the merits rendered on 21 March 1962. And as to the permanent injunction, no action can be taken thereon without reviewing the judgment on the merits, such injunction being but a consequence of the pronouncement that the credits of Tiongson and Montilla are entitled to priority over that of Casilan. Since the court below had the power and right to determine such question of preference, its judgment is not without, nor in excess of, jurisdiction; and even assuming that its findings are not correct, they would, at most, constitute errors of law, and not abuses of discretion, correctible by certiorari. The obvious remedy for petitioner Casilan was a timely appeal from the judgment on the merits to the Court of Appeals, the amount involved being less than P200,000. But the judgment has become final and unappealable and can not be set aside through certiorari proceedings. (Emphasis supplied)

Here, this Court is being asked to determine whether the CA erred by issuing a permanent injunction in a case which questioned the propriety of the denial of an ancillary writ. But with the RTC’s December 2, 2011 Decision on the case for “Injunction, Trademark Infringement, Damages and Destruction,” the issues raised in the instant petition have been rendered moot and academic. We note that the case brought to the CA on a petition for certiorari merely involved the RTC’s denial of respondent’s application for a writ of preliminary injunction, a mere ancillary writ. Since a decision on the merits has already been rendered and which includes in its disposition a permanent injunction, the proper remedy is an appeal[7] from the decision in the main case.

X x x.

Land titles: Under Section 32 of Presidential Decree No. 1529, or the Property Registration Decree, there is a remedy available to any person deprived of land — or of any estate or interest therein – through an adjudication or a confirmation of title obtained by actual fraud. The person may file, in the proper court, a petition for reopening and reviewing the decree of registration within one year from the date of entry thereof.

LORENZA C. ONGCO, PETITIONER, VS. VALERIANA UNGCO DALISAY, RESPONDENT, G.R. No. 190810, July 18, 2012.- The Lawyer's Post.

“x x x.

In the present case, petitioner Ongco is not an indispensable party. As already noted, her interests are inchoate and merely collateral, as she is only in the process of applying for a free patent. Also, the action for land registration may proceed and be carried to judgment without joining her. This is because the issues to be threshed out in a land registration proceeding — such as whether the subject land is alienable and disposable land of the public domain; and whether the applicant or her predecessors-in-interest have been in open, continuous, exclusive and notorious possession of the said land under a bona fide claim of ownership since 12 June 1945, or earlier — can be threshed out without joining petitioner.

True, the evidence to be adduced by petitioner Ongco – to prove that she, not Dalisay, has been in possession of the land subject of the application for registration of respondent — has a bearing on the determination of the latter’s right to register her title to the land. In particular, this evidence will help debunk the claim of respondent that she has been in open, continuous, exclusive and notorious possession of the subject parcel of land. In fact, this same evidence must have been the reason why the Republic did not interpose any objection to the Motion for Intervention. None of these facts, however, makes petitioner an indispensable party; for there are many other ways of establishing the fact of open, continuous, exclusive and notorious possession of the subject parcel of land or the lack thereof.

If any, the only indispensable party to a land registration case is the Republic. Against it, no order of default would be effective, because the Regalian doctrine presumes that all lands not otherwise appearing to be clearly under private ownership are presumed to belong to the State.⁠13 

In any case, we note that petitioner is not left without any remedy in case respondent succeeds in getting a decree of registration. Under Section 32 of Presidential Decree No. 1529, or the Property Registration Decree, there is a remedy available to any person deprived of land — or of any estate or interest therein – through an adjudication or a confirmation of title obtained by actual fraud. The person may file, in the proper court, a petition for reopening and reviewing the decree of registration within one year from the date of entry thereof. This Court has ruled that actual fraud is committed by a registration applicant’s failure or intentional omission to disclose the fact of actual physical possession of the premises by the party seeking a review of the decree. It is fraud to knowingly omit or conceal a fact from which benefit is obtained, to the prejudice of a third person.⁠14 Thus, if he is so minded, petitioner can still file for a petition to review the decree of registration.

X x x.”

Late intervention; when allowed.

LORENZA C. ONGCO, PETITIONER, VS. VALERIANA UNGCO DALISAY, RESPONDENT, G.R. No. 190810, July 18, 2012. - The Lawyer's Post.

“x x x.

Aware of her fatal shortcoming, petitioner Ongco would now like the Court to exceptionally allow intervention even after judgment has been rendered by the MTC in the land registration case. She cites instances in which this Court allowed intervention on appeal. However, the cases she cited are inapplicable to the present case, because the movants therein who wanted to intervene were found by the Court to be indispensable parties. Thus, under Section 7, Rule 3 of the Rules of Court, they had to be joined because, without them, there could be no final determination of the actions. Indeed, if indispensable parties are not impleaded, any judgment would have no effect.

In Galicia v. Manliquez,⁠11 the first case cited by petitioner, the Court found that the defendant-intervenors were indispensable parties, being the indisputable compulsory co-heirs of the original defendants in the case for recovery of possession and ownership, and annulment of title. Thus, without them, there could be no final determination of the action. Moreover, they certainly stood to be affected by any judgment in the case, considering their “ostensible ownership of the property.”

In Mago v. CA,⁠12 he intervenor was the rightful awardee of a piece of land that was mistakenly awarded by the NHA to another awardee. Thus, the latter was given title to land with an area that was more than that intended to be awarded to him. The NHA then cancelled the title mistakenly awarded and ordered the subdivision of the lot into two. The recipient of the mistakenly awarded title filed a Petition for injunction to enjoin the NHA from cancelling the title awarded. The Petition was granted and the judgment became final. The other awardee filed a Motion to Intervene, as well as a Petition for Relief from Judgment, which were both denied by the trial court. The CA affirmed the Decision of the court a quo. This Court, however, found that the intervention should have been granted, considering the indisputable admission of the NHA, the grantor-agency itself, that the intervenor was the rightful awardee of half of the lot mistakenly awarded. Thus, the intervenor stood to be deprived of his rightful award when the trial court enjoined the cancellation of the mistakenly awarded title and the subdivision of the lot covered by the title. The intervenor’s legal interest, in other words, was directly affected.

X x x.”

Intervention; guidelines.

LORENZA C. ONGCO, PETITIONER, VS. VALERIANA UNGCO DALISAY, RESPONDENT, G.R. No. 190810, July 18, 2012. - The Lawyer's Post.

“x x x.

Intervention is a remedy by which a third party, not originally impleaded in the proceedings, becomes a litigant therein for a certain purpose: to enable the third party to protect or preserve a right or interest that may be affected by those proceedings.⁠1 This remedy, however, is not a right. The rules on intervention are set forth clearly in Rule 19 of the Rules of Court, which reads:

Sec. 1. Who may intervene. – A person who has a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenor’s rights may be fully protected in a separate proceeding.

Sec. 2. Time to intervene. – The motion to intervene may be filed at any time before rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties. (Emphasis supplied)

It can be readily seen that intervention is not a matter of right, but is left to the trial court’s sound discretion. The trial court must not only determine if the requisite legal interest is present, but also take into consideration the delay and the consequentprejudice to the original parties that the intervention will cause. Both requirements must concur, as the first requirement on legal interest is not more important than the second requirement that no delay and prejudice should result.⁠2 To help ensure that delay does not result from the granting of a motion to intervene, the Rules also explicitly say that intervention may be allowed only before rendition of judgment by the trial court.

In Executive Secretary v. Northeast Freight,⁠3 this Court explained intervention in this wise:

“Intervention is not a matter of absolute right but may be permitted by the court when the applicant shows facts which satisfy the requirements of the statute authorizing intervention. Under our Rules of Court, what qualifies a person to intervene is his possession of a legal interest in the matter in litigation or in the success of either of the parties, or an interest against both; or when he is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or an officer thereof. As regards the legal interest as qualifying factor, this Court has ruled that such interest must be of a direct and immediate character so that the intervenor will either gain or lose by the direct legal operation of the judgment. The interest must be actual and material, a concern which is more than mere curiosity, or academic or sentimental desire; it must not be indirect and contingent, indirect and remote, conjectural, consequential or collateral. However, notwithstanding the presence of a legal interest, permission to intervene is subject to the sound discretion of the court, the exercise of which is limited by considering “whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties and whether or not the intervenor’s rights may be fully protected in a separate proceeding.” (Emphasis supplied)

Applying the foregoing points to the case at bar, Ongco may not be allowed to intervene.

Petitioner has not shown any legal interest of such nature that she “will either gain or lose by the direct legal operation of the judgment.” On the contrary, her interest is indirect and contingent. She has not been granted a free patent over the subject land, as she in fact admits being only in the process of applying for one.⁠4 Her interest is at best inchoate. In Firestone Ceramics v. CA⁠5, the Court held that the petitioner who anchored his motion to intervene on his legal interest arising from his pending application for a free patent over a portion of the subject land merely had a collateral interest in the subject matter of the litigation. His collateral interest could not have justified intervention.

In any event, the Motion for Intervention was filed only with the CA after the MTC had rendered judgment. By itself, this inexcusable delay is a sufficient ground for denying the motion. To recall, the motion should be filed “any time before rendition of judgment.” The history and rationale of this rule has been explained thusly:

1. The former rule as to when intervention may be allowed was expressed in Sec. 2, Rule 12 as “before or during a trial,” and this ambiguity also gave rise to indecisive doctrines. Thus, inceptively it was held that a motion for leave to intervene may be filed “before or during a trial” even on the day when the case is submitted for decision. (Falcasantos vs. Falcasantos, L-4627, May 13, 1952) as long as it will not unduly delay the disposition of the case. The term “trial” was used in its restricted sense, i.e., the period for the introduction for intervention was filed after the case had already been submitted for decision, the denial thereof is proper (Vigan Electric Light Co., Inc. vs. Arciaga, L-29207 and L-29222, July 31, 1974). However, it has also been held that intervention may be allowed at any time before the rendition of final judgment (Linchauco vs. CA, et al, L-23842, Mar. 13, 1975). Further, in the exceptional case of Director of Lands vs. CA, et al. (L-45168, Sept. 25, 1979), the Supreme Court permitted intervention in a case pending before it on appeal in order to avoid injustice and in consideration of the number of parties who may be affected by the dispute involving overlapping of numerous land titles.

2. The uncertainty in these ruling has been eliminated by the present Sec. 2 of this amended Rule which permits the filing of the motion to intervene at any time before the rendition of the judgment in the case, in line with the doctrine inLichauco above cited. The justification advanced for this is that before judgment is rendered, the court, for good cause shown, may still allow the introduction of additional evidence and that is still within a liberal interpretation of the period for trial. Also, since no judgment has yet been rendered, the matter subject of the intervention may still be readily resolved and integrated in the judgment disposing of all claims in the case, and would not require an overall reassessment of said claims as would be the case if the judgment had already been rendered.⁠6 (Emphases supplied)

Indeed, in Manalo v. CA⁠7 the Court said:

The period within which a person may intervene is also restricted. Section 2, Rule 19 of the 1997 Rules of Civil Procedure requires:

“SECTION 2. Time to intervene. — The motion to intervene may be filed at any time before the rendition of judgment by the trial court x x x.”

After the lapse of this period, it will not be warranted anymore. This is because, basically, intervention is not an independent action but is ancillary and supplemental to an existing litigation. (Emphases supplied).

There is wisdom in strictly enforcing the period set by Rule 19 of the Rules of Court for the filing of a motion for intervention. Otherwise, undue delay would result from many belated filings of motions for intervention after judgment has already been rendered, because a reassessment of claims would have to be done. Thus, those who slept on their lawfully granted privilege to intervene will be rewarded, while the original parties will be unduly prejudiced. This rule should apply more strictly to land registration cases, in which there is a possibility that a great number of claimant-oppositors may cause a delay in the proceedings by filing motions to intervene after the trial court — sitting as a land registration court — has rendered judgment.

Also, it must be noted that a land registration proceeding is an action in rem. Thus, only a general notice to the public is required, and not a personal one. Its publication already binds the whole world, including those who will be adversely affected. This, according to this Court, is the only way to give meaning to the finality and indefeasibility of the Torrens title to be issued as against the argument that the said rule could result in actual injustice.⁠8 In the present case, the MTC found that the required publication was made by respondent Dalisay when she applied for land registration. That publication was sufficient notice to petitioner Ongco. Thus, petitioner only had herself to blame when she failed to intervene as soon as she could before the rendition of judgment.

We also note that, had petitioner learned of the trial court proceedings in time, and had she wanted to oppose the application, the proper procedure would have been to ask for the lifting of the order of default and then to file the opposition.⁠9 It would be an error of procedure to file a motion to intervene. This is because, as discussed above, proceedings in land registration are in rem and not in personam.⁠10 

X x x.”

Equipoise Rule; burden of proof in criminal cases.

PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. FABIAN URZAIS Y LANURIAS, ALEX BAUTISTA, AND RICKY BAUTISTA ACCUSED, G.R. No. 207662, April 13, 2016. - The Lawyer's Post.

“x x x.

The equipoise rule states that where the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfil the test of moral certainty and is not sufficient to support a conviction. The equipoise rule provides that where the evidence in a criminal case is evenly balanced, the constitutional, presumption of innocence tilts the scales in favor of the accused.⁠11 

The basis of the acquittal is reasonable doubt, which simply means that the evidence of the prosecution was not sufficient to sustain the guilt of accused-appellant beyond the point of moral certainty. Proof beyond reasonable doubt, however, is a burden particular to the prosecution and does not apply to exculpatory facts as may be raised by the defense; the accused is not required to establish matters in mitigation or defense beyond a reasonable doubt, nor is he required to establish the truth of such matters by a preponderance of the evidence, or even to a reasonable probability.⁠12 

It is the primordial duty of the prosecution to present its side with clarity and persuasion, so that conviction becomes the only logical and inevitable conclusion. What is required of it is to justify the conviction of the accused with moral certainty. Upon the prosecution’s failure to meet this test, acquittal becomes the constitutional duty of the Court, lest its mind be tortured with the thought that it has imprisoned an innocent man for the rest of his life.⁠13 The constitutional right to be presumed innocent until proven guilty can be overthrown only by proof beyond reasonable doubt.⁠14 

In the final analysis, the circumstances narrated by the prosecution engender doubt rather than moral certainty on the guilt of accused-appellant.

X x x.”

Disputable presumptions under Rule 131; guidelines.

PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. FABIAN URZAIS Y LANURIAS, ALEX BAUTISTA, AND RICKY BAUTISTA ACCUSED, G.R. No. 207662, April 13, 2016. - The Lawyer's Post.

“x x x.

The application of disputable presumption found in Section 3 (j), Rule 131 of the Rules of Court, that a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and doer of the whole act, in this case the alleged carnapping and the homicide/murder of its owner, is limited to cases where such possession is either unexplained or that the proffered explanation is rendered implausible in view of independent evidence inconsistent thereto.⁠7 In the instant case, accused-appellant set-up a defense of denial of the charges and adhered to his unrebutted version of the story that the vehicle had been sold to him by the brothers Alex and Ricky Bautista. Though the explanation is not seamless, once the explanation is made for the possession, the presumption arising from the unexplained possession may not anymore be invoked and the burden shifts once more to the prosecution to produce evidence that would render the defense of the accused improbable. And this burden, the prosecution was unable to discharge. X x x.

X x x.

Evidently, the disputable presumption cannot prevail over accused-appellant’s explanation for his possession of the missing vehicle. The possession having been explained, the legal presumption is disputed and thus, cannot find application in the instant case. To hold otherwise would be a miscarriage of justice as criminal convictions necessarily require proof of guilt of the crime charged beyond reasonable doubt and in the absence of such proof, should not be solely based on legal disputable presumptions.

The carnapping not being duly proved, the killing of the victim may not be treated as an incident of carnapping. Nonetheless, even under the provisions of homicide and murder under the Revised Penal Code, the Court finds the guilt of accused-appellant was not established beyond reasonable doubt.

There were no eyewitnesses to the killing of the victim, Mario Magdato. Again, both courts relied only on the circumstantial evidence of accused-appellant’s possession of the missing vehicle for the latter’s conviction. Shirley, the widow, testified that her husband and their vehicle went missing on 12 November 2002. Dr. Concepcion gave testimony on the cause of death of Mario Magdato and the injuries he had sustained. Most glaringly, no connection had been established between the victim’s gunshot wound which caused his death and the firearm found in the person of accused-appellant. Only SPO2 Figueroa’s testimony gave light on how allegedly accused-appellant was found to have been in possession of the missing vehicle of the victim. But even if this uncorroborated testimony was true, it does not link accused-appellant to the carnapping, much less, the murder or homicide of the victim. And it does not preclude the probability of accused-appellant’s story that he had merely bought the vehicle from the Bautista brothers who have themselves since gone missing.

X x x.”

Circumstantial evidence; guidelines.

PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. FABIAN URZAIS Y LANURIAS, ALEX BAUTISTA, AND RICKY BAUTISTA ACCUSED, G.R. No. 207662, April 13, 2016. - The Lawyer's Post.

“x x x.

Certainly, it is not only by direct evidence that an accused may be convicted, but for circumstantial evidence to sustain a conviction, following are the guidelines: (1) there is more than one circumstance; (2) the facts from which the inferences are derived are proven; and (3) the combination of all the circumstances is as such as to produce a conviction beyond reasonable doubt.⁠4 Decided cases expound that the circumstantial evidence presented and proved must constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to the accused, to the exclusion of all others, as the guilty person. All the circumstances must be consistent with each other, consistent with the hypothesis that the accused is guilty and at the same time inconsistent with the hypothesis that he is innocent, and with every other rationale except that of guilt.⁠5 

In the case at bar, notably there is only one circumstantial evidence. And this sole circumstantial evidence of possession of the vehicle does not lead to an inference exclusively consistent with guilt. Fundamentally, prosecution did not offer any iota of evidence detailing the seizure of the vehicle, much less with accused-appellant’s participation. In fact, there is even a variance concerning how accused-appellant was discovered to be in possession of the vehicle. The prosecution’s uncorroborated evidence says accused-appellant was apprehended while driving the vehicle at a checkpoint, although the vehicle did not bear any license plates, while the latter testified he was arrested at home. The following testimony of prosecution witness SPO2 x x x.

Considering the dearth of evidence, the subject vehicle is at best classified as “missing” since the non-return of the victim and his vehicle on 12 November 2002. Why the check-point had begun before then, as early 3 November 2002, as stated by the prosecution witness raises doubts about the prosecution’s version of the case. Perhaps, the check-point had been set up for another vehicle which had gone missing earlier. In any event, accused-appellant’s crime, if at all, was being in possession of a missing vehicle whose owner had been found dead. There is perhaps guilt in the acquisition of the vehicle priced so suspiciously below standard. But how this alone should lead to a conviction for the special complex crime of carnapping with homicide/murder, affirmed by the appellate court is downright disturbing.

X x x.”

RA 6539, as amended; carnapping.

PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. FABIAN URZAIS Y LANURIAS, ALEX BAUTISTA, AND RICKY BAUTISTA ACCUSED, G.R. No. 207662, April 13, 2016.  - The Lawyer's Post.

“x x x.

R.A. No. 6539, or the Anti-Carnapping Act of 1972, as amended, defines carnapping as the taking, with intent to gain, of a motor vehicle belonging to another without the latter’s consent, or by means of violence against or intimidation against persons, or by using force upon things⁠1. By the amendment in Section 20 of R.A. No. 7659, Section 14 of the Anti-Carnapping Act now reads:

SEC. 14. Penally for Carnapping. Any person who is found guilty of carnapping, as this term is defined in Section two of this Act, shall, irrespective of the value of the motor vehicle taken, be punished by imprisonment for not less than fourteen years and eight months and not more than seventeen years and four months, when the carnapping is committed without violence or intimidation of persons, or force upon things, and by imprisonment for not less than seventeen years and four months and not more than thirty years, when the carnapping is committed by means of violence or intimidation of any person, or force upon things; and the penalty of reclusion perpetua to death shall be imposed when the owner, driver or occupant of the carnapped motor vehicle is killed or raped in the course of the commission of the carnapping or on the occasion thereof. (Emphasis supplied)

Three amendments have been made to the original Section 14 of the Anti-Carnapping Act: (1) the penalty of life imprisonment was changed to reclusion perpetua, (2) the inclusion of rape, and (3) the change of the phrase “in the commission of the carnapping” to “in the course of the commission of the carnapping or on the occasion thereof.” This third amendment clarifies the law’s intent to make the offense a special complex crime, by way of analogy vis-a-vis paragraphs 1 to 4 of the Revised Penal Code on robbery with violence against or intimidation of persons. Thus, under the last clause of Section 14 of the Anti-Carnapping Act, the prosecution has to prove the essential requisites of carnapping and of the homicide or murder of the victim, and more importantly, it must show that the original criminal design of the culprit was carnapping and that the killing was perpetrated “in the course of the commission of the carnapping or on the occasion thereof.” Consequently, where the elements of carnapping are not proved, the provisions of the Anti-Carnapping Act would cease to be applicable and the homicide or murder (if proven) would be punishable under the Revised Penal Code.⁠2 

In the instant case, the Court finds the charge of carnapping unsubstantiated for failure of the prosecution to prove all its elements. For one, the trial court’s decision itself makes no mention of any direct evidence indicating the guilt of accused-appellant. Indeed, the CA confirmed the lack of such direct evidence.⁠3 Both lower courts solely based accused-appellant’s conviction of the special complex crime onone circumstantial evidence and that is, the fact of his possession of the allegedly carnapped vehicle.

The Court notes that the prosecution’s evidence only consists of the fact of the victim’s disappearance, the discovery of his death and the details surrounding accused-appellant’s arrest on rumors that the vehicle he possessed had been carnapped. Theres is absolutely no evidence supporting the prosecution’s theory that the victim’s vehicle had been carnapped, much less that the accused-appellant is the author of the same.

X x x.”

Proof of commission of crime

PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. FABIAN URZAIS Y LANURIAS, ALEX BAUTISTA, AND RICKY BAUTISTA ACCUSED, G.R. No. 207662, April 13, 2016.

“x x x.

In every criminal conviction requires the prosecution to prove two (2) things: 1. The fact of the crime, i.e. the presence of all the elements of the crime for which the accused stands charged; and (2) the fact that the accused is the perpetrator of the crime. The Court finds the prosecution unable to prove both aspects, thus, it is left with no option but to acquit on reasonable doubt.

X x x.”

In Civil Cases, Adverse Parties May Not Be Called To The Witness Stand, Unless Written Interrogatories Were First Served Upon Them... - The Lawyer's Post

See - In Civil Cases, Adverse Parties May Not Be Called To The Witness Stand, Unless Written Interrogatories Were First Served Upon Them... - The Lawyer's Post

G.R. No. 185145, February 05, 2014, SPOUSES VICENTE AFULUGENCIA AND LETICIA AFULUGENCIA, PETITIONERS, VS. METROPOLITAN BANK & TRUST CO. AND EMMANUEL L. ORTEGA, CLERK OF COURT, REGIONAL TRIAL COURT AND EX-OFFICIO SHERIFF, PROVINCE OF BULACAN, RESPONDENTS.



“x x x.

As a rule, in civil cases, the procedure of calling the adverse party to the witness stand is not allowed, unless written interrogatories are first served upon the latter. This is embodied in Section 6, Rule 25 of the Rules, which provides –

Sec. 6. Effect of failure to serve written interrogatories.

Unless thereafter allowed by the court for good cause shown and to prevent a failure of justice, a party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal.

One of the purposes of the above rule is to prevent fishing expeditions and needless delays; it is there to maintain order and facilitate the conduct of trial. It will be presumed that a party who does not serve written interrogatories on the adverse party beforehand will most likely be unable to elicit facts useful to its case if it later opts to call the adverse party to the witness stand as its witness. Instead, the process could be treated as a fishing expedition or an attempt at delaying the proceedings; it produces no significant result that a prior written interrogatories might bring.

Besides, since the calling party is deemed bound by the adverse party’s testimony, compelling the adverse party to take the witness stand may result in the calling party damaging its own case. Otherwise stated, if a party cannot elicit facts or information useful to its case through the facility of written interrogatories or other mode of discovery, then the calling of the adverse party to the witness stand could only serve to weaken its own case as a result of the calling party’s being bound by the adverse party’s testimony, which may only be worthless and instead detrimental to the calling party’s cause.

Another reason for the rule is that by requiring prior written interrogatories, the court may limit the inquiry to what is relevant, and thus prevent the calling party from straying or harassing the adverse party when it takes the latter to the stand.

Thus, the rule not only protects the adverse party from unwarranted surprises or harassment; it likewise prevents the calling party from conducting a fishing expedition or bungling its own case. Using its own judgment and discretion, the court can hold its own in resolving a dispute, and need not bear witness to the parties perpetrating unfair court practices such as fishing for evidence, badgering, or altogether ruining their own cases. Ultimately, such unnecessary processes can only constitute a waste of the court’s precious time, if not pointless entertainment.

In the present case, petitioners seek to call Metrobank’s officers to the witness stand as their initial and main witnesses, and to present documents in Metrobank’s possession as part of their principal documentary evidence. This is improper. Petitioners may not be allowed, at the incipient phase of the presentation of their evidence-in-chief at that, to present Metrobank’s officers – who are considered adverse parties as well, based on the principle that corporations act only through their officers and duly authorized agents – as their main witnesses; nor may they be allowed to gain access to Metrobank’s documentary evidence for the purpose of making it their own. This is tantamount to building their whole case from the evidence of their opponent. The burden of proof and evidence falls on petitioners, not on Metrobank; if petitioners cannot prove their claim using their own evidence, then the adverse party Metrobank may not be pressured to hang itself from its own defense.

It is true that under the Rules, a party may, for good cause shown and to prevent a failure of justice, be compelled to give testimony in court by the adverse party who has not served written interrogatories. But what petitioners seek goes against the very principles of justice and fair play; they would want that Metrobank provide the very evidence with which to prosecute and build their case from the start. This they may not be allowed to do.

Finally, the Court may not turn a blind eye to the possible consequences of such a move by petitioners. As one of their causes of action in their Complaint, petitioners claim that they were not furnished with specific documents relative to their loan agreement with Metrobank at the time they obtained the loan and while it was outstanding. If Metrobank were to willingly provide petitioners with these documents even before petitioners can present evidence to show that indeed they were never furnished the same, any inferences generated from this would certainly not be useful for Metrobank. One may be that by providing petitioners with these documents, Metrobank would be admitting that indeed, it did not furnish petitioners with these documents prior to the signing of the loan agreement, and while the loan was outstanding, in violation of the law.

X x x.”

G.R. No. 185145, February 05, 2014, SPOUSES VICENTE AFULUGENCIA AND LETICIA AFULUGENCIA, PETITIONERS, VS. METROPOLITAN BANK & TRUST CO. AND EMMANUEL L. ORTEGA, CLERK OF COURT, REGIONAL TRIAL COURT AND EX-OFFICIO SHERIFF, PROVINCE OF BULACAN, RESPONDENTS.



SC disbars ‘lawyer’ who stole his brother’s name | Inquirer News

See - SC disbars ‘lawyer’ who stole his brother’s name | Inquirer News

"x x x.

A college undergraduate who became a lawyer by stealing the identity of his brother was disbarred by the Supreme Court.

In a per curiam decision in Administrative Case No. 11316 promulgated July 12, 2016, the court ordered that the name “Patrick A. Caronon with Roll of Attorneys No. 49069” dropped and stricken off the Roll of Attorneys.

The high court also barred Richard A. Caronan or “Atty. Patrick A. Caronan” from being admitted as a member of the Bar.

The high court also cancelled and revoked the identification cards issued to Richard Caronan under the name “Atty. Patrick A. Caronan” issued by the Integrated Bar of the Philippines (IBP) as well as the certificates issued to the same by the Mandatory Continuing Legal Education (MCLE).

Likewise, the high court also ordered the Office of the Court Administrator to circulate in all courts nationwide a photograph of Richard Caronan and a warning of his false assumption of the name and identity of “Patrick A. Caronan.”

“[R]espondent made a mockery of the legal profession by pretending to have the necessary qualifications to be a lawyer. He also tarnished the image of lawyers with his alleged unscrupulous activities, which resulted in the filing of several criminal cases against him. Certainly, respondent and his acts do not have a place in the legal profession where one of the primary duties of its members is to uphold its integrity and dignity,” the court held.

Richard is the older brother of the real Patrick Caronan, who, in 2013 filed a complaint before the Commission on Bar Discipline of the IBP.

The real Patrick Caronan graduated from college with a degree in Business Administration at the University of Makati (UM). He worked his way up until he was promoted as branch manager of a convenience store in Muntinlupa.

His brother Richard studied at the Pamantasan ng Lungsod ng Maynila (PLM). He later transferred to the Philippine Military Academy (PMA). A year later, he was discharged from PMA and focused on helping their father in a car rental business.

In 1997, he moved to Nueva Vizcaya with his wife and three children and never went back to school.

Two years later, he told his brother that he enrolled at a law school in Nueva Vizcaya.

In 2004, their mother informed Patrick that his brother passed the Bar examination. Their mother also told him that Richard used his name and college records from UM to enroll at St. Mary’s University College of Law.

Patrick brushed aside what his brother did. He said he did not anticipate any adverse consequences to him until he was summoned by his office in 2009 informing him that the National Bureau of Investigation (NBI) requested his presence for an investigation against “Atty. Patrick A. Caronan” for qualified theft and estafa.

Patrick also learned that his brother was arrested for gun-running activities, illegal possession of explosives and violation of the Bouncing Checks Law.

Patrick said for fear of his own safety and because he became the subject of talk in his office, he was forced to resign from his work. He eventually filed a complaint against his brother.

In his defense, Richard denied all allegations and maintained that his identity can no longer be raised as an issue as it had already been resolved in an earlier administrative case declared closed and terminated by this court in AC No. 10074.

But the high court said Patrick “clearly and overwhelmingly” established that he is the real “Patrick A. Caronan.”

The IBP also noted that since Richard never completed his college degree, he has not completed the required pre-law degree.

The court held that respondent exhibited his dishonesty and utter lack of moral fitness to be a member of the Bar when he assumed the name, identity and school records of his own brother and dragged the latter into controversies which eventually caused him to fear for his safety and to resign from PSC where he had been working for years.

“Good moral character is essential in those who would be lawyers. This is imperative in the nature of the office of a lawyer, the trust relation which exists between him and his client, as well as between him and the court,” the court said. RAM/rga.

x x x."

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Summary of UNCLOS arbitral award in favor of the Philippines and against China re: South China Sea/West Philippine Sea maritime entitlements

“x x x.

A unanimous Award has been issued today by the Tribunal constituted under Annex VII to the United Nations Convention on the Law of the Sea (the “Convention”) in the arbitration instituted by the Republic of the Philippines against the People’s Republic of China.

This arbitration concerned the role of historic rights and the source of maritime entitlements in the South China Sea, the status of certain maritime features and the maritime entitlements they are capable of generating, and the lawfulness of certain actions by China that were alleged by the Philippines to violate the Convention. In light of limitations on compulsory dispute settlement under the Convention, the Tribunal has emphasized that it does not rule on any question of sovereignty over land territory and does not delimit any boundary between the Parties.

China has repeatedly stated that “it will neither accept nor participate in the arbitration unilaterally initiated by the Philippines.” Annex VII, however, provides that the “[a]bsence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.” Annex VII also provides that, in the event that a party does not participate in the proceedings, a tribunal “must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.” 

Accordingly, throughout these proceedings, the Tribunal has taken steps to test the accuracy of the Philippines’ claims, including by requesting further written submissions from the Philippines, by questioning the Philippines both prior to and during two hearings, by appointing independent experts to report to the Tribunal on technical matters, and by obtaining historical evidence concerning features in the South China Sea and providing it to the Parties for comment.

China has also made clear—through the publication of a Position Paper in December 2014 and in other official statements—that, in its view, the Tribunal lacks jurisdiction in this matter. Article 288 of the Convention provides that: “In the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.” Accordingly, the Tribunal convened a hearing on jurisdiction and admissibility in July 2015 and rendered an Award on Jurisdiction and Admissibility on 29 October 2015, deciding some issues of jurisdiction and deferring others for further consideration. The Tribunal then convened a hearing on the merits from 24 to 30 November 2015.

The Award of today’s date addresses the issues of jurisdiction not decided in the Award on Jurisdiction and Admissibility and the merits of the Philippines’ claims over which the Tribunal has jurisdiction. The Award is final and binding, as set out in Article 296 of the Convention and Article 11 of Annex VII.

Historic Rights and the ‘Nine-Dash Line’: The Tribunal found that it has jurisdiction to consider the Parties’ dispute concerning historic rights and the source of maritime entitlements in the South China Sea.

On the merits, the Tribunal concluded that the Convention comprehensively allocates rights to maritime areas and that protections for pre-existing rights to resources were considered, but not adopted in the Convention. 

Accordingly, the Tribunal concluded that, to the extent China had historic rights to resources in the waters of the South China Sea, such rights were extinguished to the extent they were incompatible with the exclusive economic zones provided for in the Convention. The Tribunal also noted that, although

Chinese navigators and fishermen, as well as those of other States, had historically made use of the islands in the South China Sea, there was no evidence that China had historically exercised exclusive control over the waters or their resources. The Tribunal concluded that there was no legal basis for China to claim historic rights to resources within the sea areas falling within the ‘nine-dash line’.

Status of Features: The Tribunal next considered entitlements to maritime areas and the status of features. The Tribunal first undertook an evaluation of whether certain reefs claimed by China are above water at high tide. Features that are above water at high tide generate an entitlement to at least a 12 nautical mile territorial sea, whereas features that are submerged at high tide do not. The Tribunal noted that the reefs have been heavily modified by land reclamation and construction, recalled that the Convention classifies features on their natural condition, and relied on historical materials in evaluating the features.

The Tribunal then considered whether any of the features claimed by China could generate maritime zones beyond 12 nautical miles. Under the Convention, islands generate an exclusive economic zone of 200 nautical miles and a continental shelf, but “[r]ocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”

The Tribunal concluded that this  provision depends upon the objective capacity of a feature, in its natural condition, to sustain either a stable community of people or economic activity that is not dependent on outside resources or purely extractive in nature.

The Tribunal noted that the current presence of official personnel on many of the features is dependent on outside support and not reflective of the capacity of the features.

The Tribunal found historical evidence to be more relevant and noted that the Spratly Islands were historically used by small groups of fishermen and that several Japanese fishing and guano mining enterprises were attempted.

The Tribunal concluded that such transient use does not constitute inhabitation by a stable community and that all of the historical economic activity had been extractive.

Accordingly, the Tribunal concluded that none of the Spratly Islands is capable of generating extended maritime zones.

The Tribunal also held that the Spratly Islands cannot generate maritime zones collectively as a unit. Having found that none of the features claimed by China was capable of generating an exclusive economic zone, the Tribunal found that it could—without delimiting a boundary—declare that certain sea areas are within the exclusive economic zone of the Philippines, because those areas are not overlapped by any possible entitlement of China.

Lawfulness of Chinese Actions: The Tribunal next considered the lawfulness of Chinese actions in the South China Sea. Having found that certain areas are within the exclusive economic zone of the Philippines, the Tribunal found that China had violated the Philippines’ sovereign rights in its exclusive economic zone by (a) interfering with Philippine fishing and petroleum exploration, (b) constructing artificial islands and (c) failing to prevent Chinese fishermen from fishing in the zone.

The Tribunal also held that fishermen from the Philippines (like those from China) had traditional fishing rights at Scarborough Shoal and that China had interfered with these rights in restricting access.

The Tribunal further held that Chinese law enforcement vessels had unlawfully created a serious risk of collision when they physically obstructed Philippine vessels.

Harm to Marine Environment: The Tribunal considered the effect on the marine environment of China’s recent large-scale land reclamation and construction of artificial islands at seven features in the Spratly Islands and found that China had caused severe harm to the coral reef environment and violated its obligation to preserve and protect fragile ecosystems and the habitat of depleted, threatened, or endangered species.

The Tribunal also found that Chinese authorities were aware that Chinese fishermen have harvested endangered sea turtles, coral, and giant clams on a substantial scale in the South China Sea (using methods that inflict severe damage on the coral reef environment) and had not fulfilled their obligations to stop such activities.

Aggravation of Dispute: Finally, the Tribunal considered whether China’s actions since the commencement of the arbitration had aggravated the dispute between the Parties. The Tribunal found that it lacked jurisdiction to consider the implications of a stand-off between Philippine marines and Chinese naval and law enforcement vessels at Second Thomas Shoal, holding that this dispute involved military activities and was therefore excluded from compulsory settlement. The Tribunal found, however, that China’s recent large-scale land reclamation and construction of artificial islands was incompatible with the obligations on a State during dispute resolution proceedings, insofar as China has inflicted irreparable harm to the marine environment, built a large artificial island in the Philippines’ exclusive economic zone, and destroyed evidence of the natural condition of features in the South China Sea that formed part of the Parties’ dispute.

An expanded summary of the Tribunal’s decisions is set out below.

The Tribunal was constituted on 21 June 2013 pursuant to the procedure set out in Annex VII of the Convention to decide the dispute presented by the Philippines. The Tribunal is composed of Judge Thomas A. Mensah of Ghana, Judge Jean-Pierre Cot of France, Judge Stanislaw Pawlak of Poland, Professor Alfred H.A. Soons of the Netherlands, and Judge Rüdiger Wolfrum of Germany. Judge Thomas A. Mensah serves as President of the Tribunal. The Permanent Court of Arbitration acts as the Registry in the proceedings.

Further information about the case may be found at www.pcacases.com/web/view/7, including the Award on Jurisdiction and Admissibility, the Rules of Procedure, earlier Press Releases, hearing transcripts, and photographs. Procedural Orders, submissions by the Philippines, and reports by the Tribunal’s experts will be made available in due course, as will unofficial Chinese translations of the Tribunal’s Awards.

Background to the Permanent Court of Arbitration

The Permanent Court of Arbitration (PCA) is an intergovernmental organization established by the 1899 Hague Convention on the Pacific Settlement of International Disputes. The PCA has 121 Member States. Headquartered at the Peace Palace in The Hague, the Netherlands, the PCA facilitates arbitration, conciliation, fact-finding, and other dispute resolution proceedings among various combinations of States, State entities, intergovernmental organizations, and private parties. 

The PCA’s International Bureau is currently administering 8 interstate disputes, 73 investor-State arbitrations, and 34 cases arising under contracts involving a State or other public entity. The PCA has administered 12 cases initiated by States under Annex VII to the United Nations Convention on the Law of the Sea.

In July 2013, the Tribunal in the South China Sea Arbitration appointed the PCA to serve as Registry for the proceedings. The Tribunal’s Rules of Procedure provide that the PCA shall “maintain an archive of the arbitral proceedings and provide appropriate registry services as directed by the Arbitral Tribunal.” Such services include assisting with the identification and appointment of experts; publishing information about the arbitration and issuing press releases; organizing the hearings at the Peace Palace in The Hague; and the financial management of the case, which involves holding a deposit for expenses in the arbitration, such as to pay arbitrator fees, experts, technical support, court reporters etc. The Registry also serves as the channel of communications amongst the Parties and the Tribunal and observer States.

X x x.”