If there is one thing that I truly appreciate about the ongoing judicial reform program being implemented by the Philippine Supreme Court, it is none other than the continuous effort of the Court and its subordinate agency, the Philippine Judicial Academy (Philja), to improve, expand and strengthen the Court-Annexed Mediation System and the pilot-stage Judicial Dispute Resolution (JDR) System.
As far as I am concerned, the mediators are the silent new heroes of the Philippine justice system, humble and quiet in the solitude of their small mediation rooms but industriously working out fair and just solutions to painful and bloody human problems that have shifted their battle arenas to the courts.
Below is a news item from the Supreme Court stating that it had accredited 93 mediators last month. Thus:
To achieve zero-backlog in court dockets nationwide, the Supreme Court, upon the recommendation of the Philippine Judicial Academy (PhilJA), recently approved the accreditation of two mediators from Iligan City for the period of November 2, 2008 to November 1, 2010; three mediators from Camarines Sur for the period of June 1, 2008 to May 30, 2010, and 24 mediators from Baguio City, Benguet for the period of January 11, 2009 to January 10, 2011.
The Court likewise approved the re-accreditation of 64 mediators for the cities of San Fernando in La Union, Metro Manila, Cebu, Davao, Cagayan de Oro in Misamis Oriental, and Ormoc City in Leyte for the for the period of November 2, 2008 to November 9, 2010.
The 93 accredited and re-accredited mediators underwent a series of screenings and interviews conducted by PhilJA. They also underwent Basic Mediation Training for four days and an intensive Internship Program for one month prior to accreditation.
Accredited Mediators
Iligan City and Lanao del Norte Judge Gerardo D. Paguio (ret.), Atty. Demosthenes R. Plando, Camarines Sur Judge Corazon A. Tordillas (ret.), Atty. Amelina Bernadette Corazon P. Crescini, Mary Jane A. Abelinde , Baguio City, Benguet Jacinto S. Baonsan, Ruth B. Bawayan, Bernard D. Briones, Angeline May T. Cabrera, Hannah B. Caliton, Mia Joy O. Cawed, Jose P. Cawiding, Reynaldo D.V. Cordoviz, Marissa Dacayanan, Editha R. Datuin, Martin B. Domingo, Joyce P. Dulnuan, George Dumawing, Jr., Jeannie B. Escolano, Anthony A. Faguingas, Antonio L. Ferrer, Valentin C. Garin, Ramon P. Magallanes, Ignacio C. Pangket, Sharon Rose P. Tenafrancia-Carolino, Vanessa M. Roncal, Juliet Sapling-Imperial, Juan B. Valdez.
Re-Accredited Mediators
San Fernando, La Union Mena I. Albeza, Elizabeth P. Acabado, Maribel B. Aduan, Constancia M. Agoot, Jobert A. Ancheta, Eddy A. Almodovar, Atty. Diana Lynn M. Arellano, Emma Beth F. Balagot, Atty. Ronella M. Balbin Concepcion, Corazon R. Cabanban, Elenita E. Chan, Atty. Ferdinand E. Concubierta, Atty. Andre H. Dacanay, Atty. Abraham F. Datlag, Liza V. De Vera, Esther D. Diaz, Aileen C. Estavillo, Atty. Febeline R. Estepa, Georgina F. Estapa Flores, Antero C. Guillermo, Jr., Roweli B. Guillermo, Atty. Marilyn E. Hidalgo, Grace M. Lacebal, Eduardo L. La Madrid, Atty. Rodel T. Lopico, Milagros O. Magumcia, Felicisima C. Mon, Susan A. Munzing, Franco G. Jubilo, Benevicta O. Orate, Constante P. Ordoño, Ma. Athena L. Pimentel, Atty. Myra Diwata A. Rivera Caroy, Atty. Aurora P. Sanglay, Elizabeth F. Sera, Nestor L. Suguitan, Olivia A. Sy, Joel M. Tadina Metro Manila Norberto A. Alensuela, Roy Camacho, Arsenia E. Dalisay, Godofredo C. Eslepa, Jr., Manny V. Gragasin, Jonathan A. Lardino, Ricardo Z. Rubico, Annina D. San Gil, Vilmi S. Quipit • Cebu Ma. Socorro S. Montuerto Davao Rosanna L. Buala, Roberto Q. Cañete Cagayan De Oro Franklin B. Gallego, Donnahville A. Abellanosa-Galarrita • Ormoc City Marichu Vi Alvero, Amado V. Barbusa, Dr. Teogenes V. Caing, Armando N. Fulache, Atty. Gloriosa C. Guinocor, Ronilo D. Juanir, Atty. Ari G. Larrazabal, Sarah Juliana M. Mate-Lopez, Atty. Fermin A. Nepomuceno, Atty. Filelina S. Oliver, Luisa Penserga, Dean Gil Marvel P. Tabucanon (AM No. 09-1-6-SC-PhilJA, Re: Accreditation of Sixty-Four (64) Mediators from San Fernando, La Union, Metro Manila, Cebu, Davao, Cagayan de Oro City, Misamis, Oriental and Ormoc, Leyte ; AM No. 09-1-5-SC-PhilJA, Re: Accreditation of Two (2) Mediators from Iligan City and Lanao Del Norte; AM No. 09-1-4-SC-PHILJA, Re: Accreditation of Three (3) Mediators from Camarines, Sur, January 13, 2009; AM No. 09-1-17-SC-PHILJA, Re: Accreditation of 24 Mediators from Baguio City, Benguet effective January 11, 2009 until January 10, 2011, February 3, 2009)
See:
http://sc.judiciary.gov.ph/publications/benchmark/2009/02/020915.php
Monday, March 16, 2009
Elections
The Philippine Supreme Court adopted two years ago the new RULE OF PROCEDURE IN ELECTION CONTESTS BEFORE THE COURTS INVOLVING ELECTIVE MUNICIPAL AND BARANGAY OFFICIALS (AM No. 07-4-15-SC, May 15, 2007).
Perhaps, it is noteworthy to digest the same here, considering the proximity of the 2010 general elections in the Philippines, which are expected to be hotly contested (and, as usual, tainted by corruption, vote buying, and violence), and for legal research purpose of the visitors of this blog.
The new Rule amended many parts of Rule 66 (Quo Warranto) of the 1997 Rules of Civil Procedure. May I summarize the new Rule below.
The Rule governs the filing of pleadings, practice and procedure in election protests and petitions for quo warranto before courts of general jurisdiction and courts of limited jurisdiction relating to elective municipal and barangay officials.
“Election Contests” refer to election protests or petitions for quo warranto. “Election Protest” refers to an election contest relating to the election and returns of elective officials, grounded on frauds or irregularities in the conduct of the elections, the casting and counting of the ballots and the preparation and canvassing of returns. The issue is who obtained the plurality of valid votes cast.
“Quo Warranto”, under the Omnibus Election Code, refers to an election contest relating to the qualifications of an elective official on the ground of ineligibility or disloyalty to the Republic of the Philippines. The issue is whether respondent possesses all the qualifications and none of the disqualifications prescribed by law.
The Rule reminds the public of the inherent powers of the Courts. Thus:
(a) Preserve and enforce order in its immediate presence;
(b) Enforce order in proceedings before it, or before a person or persons empowered to conduct a judicial investigation under its authority;
(c) Compel obedience to its judgments, orders and processes, and to the lawful orders of a judge out of court, in a case pending therein;
(d) Control, in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a case before it, in every manner appertaining thereto;
(e) Compel the attendance of persons to testify in a case pending therein;
(f) Administer or cause to be administered oaths in a case pending therein, and in all other cases where it may be necessary in the exercise of its powers;
(g) Amend and control its processes and orders so as to make them conformable to law and justice; and
(h) Authorize a copy of a lost or destroyed pleading or other paper to be filed and used instead of the original and to restore and supply deficiencies in its records and proceedings.
Regional trial courts shall have exclusive original jurisdiction over all election contests involving elective municipal officials. Municipal trial courts shall have exclusive original jurisdiction over all election contests involving elective barangay officials. (This provision amends Sec. 7 of Rule 66, Quo Warranto, 1997 Rules of Civil Procedure, which provides that all quo warranto petitions shall be filed with the Supreme Court, the Court of Appeals, or the Regional Trial Court, as the case may be).
An election contest is initiated by the filing of an election protest or a petition for quo warranto against an elective municipal or barangay official. It shall be filed directly with the proper court. (The participation of the Solicitor General or the Public Prosecutor is no longer necessary).
An election protest shall not include a petition for quo warranto, nor shall a petition for quo warranto include an election protest.
A petition contesting the election or returns of an elective municipal or barangay official shall be filed with the proper regional trial court or municipal trial court by any 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.
Each contest shall refer exclusively to one office; however, contests for offices of Sangguniang Bayan or Sangguniang Barangay may be consolidated in one case.
A petition for quo warranto against an elective municipal or barangay official shall be filed with the proper regional trial court or municipal trial court by any registered voter who has voted in the election concerned. (This amends Secs. 5 and 6, Rule 66, which grants the power to commence this kind of suit only to persons claiming to be entitled to the office usurped).
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 the allegations therein are true and correct of affiant’s own knowledge or based on authentic records. 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 petition or one with insufficient verification or unaccompanied by a certificate of non-forum shopping shall be dismissed outright and shall not suspend the running of the reglementary period to file an election protest or petition for quo warranto.
The election protest or petition for quo warranto shall be filed within the non-extendible period of ten (10) days following the date of proclamation. The pendency of a pre-proclamation controversy involving the validity of the proclamation as defined by law shall suspend the running of the period to file an election protest or petition for quo warranto.
A decision of the Commission on Elections, either in division or en banc, in a disqualification case shall not bar the filing of a petition for quo warranto based on the same ground, except when the Supreme Court has affirmed the COMELEC decision.
An election protest or petition for quo warranto shall specifically state the position involved; the date of proclamation; the number of votes credited to the parties per proclamation; the total number of precincts of the municipality or the barangay concerned; the protested precincts and votes of the parties in the protested precincts per the Statement of Votes By Precinct or, if the votes of the parties are not specified, an explanation why the votes are not specified; and a detailed specification of the acts or omissions complained of showing the electoral frauds, anomalies or irregularities in the protested precincts.
The Court may order a change of venue or place of trial for compelling reasons to avoid a miscarriage of justice.
The court shall summarily dismiss, motu proprio, 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 in Section 11 hereof;
(c) The petition is filed beyond the period prescribed in these Rules;
(d) The filing fee is not paid within the period for filing the election protest or petition for quo warranto; and
(e) In case of protest where a cash deposit is required, the cash deposit is not paid within five days from the filing of the protest.
Within twenty-four hours from the filing of the protest or petition, the clerk of court shall issue the corresponding summons to the protestee or respondent, together with a copy of the protest or petition, requiring the filing of an answer within a non-extendible period of five (5) days from notice.
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. Within five days from receipt of the summons and a copy of the protest or petition, the protestee or respondent shall file an answer in three legible copies, with proof of service of a copy upon the protestant or petitioner.
The counter-protest shall specify the counter-protested precincts and any votes of the parties therein per the Statement of Votes By Precinct, or, if not so specified, an explanation why the votes are not specified, and a detailed specification of the acts or omissions complained of showing the electoral frauds, anomalies or irregularities in the counter-protested precincts.
The protestant or petitioner shall answer the counterclaim or counter-protest within a non-extendible period of five days from notice.
A protestee or respondent must specify each material allegation of fact the truth of which is not admitted and, whenever practicable, shall set forth the substance of the matters relied upon in support of the denial. The protestee or respondent shall specify so much of the averments that are true and material and shall deny the remainder. Material averment in the protest or petition, other than the amount of unliquidated damages and issues as to the appreciation of ballots, shall be deemed admitted when not specifically denied.
Defenses and objections not pleaded are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or the statute of limitations, the court shall dismiss the claim.
A compulsory counterclaim, or a cross-claim not set up shall be barred.
In an election protest that does not involve ballot revision or a petition for quo warranto, if the protestee or respondent fails to file an answer within the time allowed, the court shall, upon motion of the protestant or petitioner with notice to the protestee or respondent and upon proof of such failure, proceed to render judgment on the basis of the allegations of the verified election protest or petition for quo warranto granting the relief prayed for, unless the court in its discretion requires the protestant or petitioner to submit evidence ex parte.
However, in the case of election protests involving ballot revision or examination, verification or re-tabulation of the election returns, the court shall order such revision of ballots or examination, verification or re-tabulation of election returns. The court shall proceed to render judgment based on the results of the revision or examination, verification or re-tabulation of election returns. During the revision or examination, verification or re-tabulation of election returns, only the revisors of the protestant may participate. The protestee or duly authorized representative has the right to be present and observe the proceedings without the right to object and make claims to ballots and election returns.
After the expiration of the period for the filing of the election protest, counter-protest or petition for quo warranto, substantial amendments that broaden the scope of the action or introduce an additional cause or causes of action may be allowed only upon leave of court. Such leave may be refused if it appears to the court that the motion was made with intent to 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 be summarily corrected by the court at any stage of the proceedings, at its initiative or on motion, provided no prejudice is caused thereby to the adverse party.
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 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, Rule 13 of these Rules;
(h) Motion to declare the protestee or respondent in default;
(i) Dilatory motion for postponement;
(j) Motion to inhibit the presiding judge except on clearly valid grounds;
(k) Reply or rejoinder; and
(l) Third-party complaint.
All grounds to dismiss an election protest or petition for quo warranto must be set up or pleaded as affirmative or special defenses. Defenses not raised are deemed waived. The court may, in its discretion, hold a preliminary hearing on the grounds so pleaded.
No protest, counter-protest or petition for quo warranto shall be accepted for filing without the payment of a filing fee in the amount of Three Thousand Pesos (P3,000.00) for each interest. If claims for damages and attorney’s fees are set forth in a protest or counter-protest, additional filing fees shall be paid in accordance with the schedule provided for in Rule 141 of the Rules of Court, as amended.
In addition to the fees prescribed above, the protestant in an election protest requiring revision of ballots or examination, verification or re-tabulation of election returns, or which may require the bringing to the court of copies of other election documents and paraphernalia, shall make a cash deposit with the court in the following amounts:
(1) One Thousand Pesos (P1,000.00) for each precinct involved in the protest or counter-protest; provided that, in no case shall the deposit be less than Twenty-Five Thousand Pesos (P25,000.00) to be paid upon the filing of the election protest (counter-protest);
(2) If the amount to be deposited does not exceed One Hundred Thousand Pesos (P100,000.00), the same shall be paid in full within ten days after the filing of the protest; and
(3) If the deposit exceeds 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 days after the filing of the protest. The balance shall be paid in such installments as may be required by the court with at least five days advance notice to the party required to make the deposit.
The cash deposit shall be applied by the court to the payment of the compensation of revisors and of all expenses incidental to revision but not limited to supplies and miscellaneous expenses of the revision committee. When the court determines that the circumstances so demand, as when the deposit has been depleted, it may require additional cash deposits. Any unused cash deposit shall be returned to the party making the same after 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. Once required, the protestee (counter-protestant) shall pay the cash deposit within a non-extendible period of three days from receipt of the corresponding order.
Failure to make the cash deposits required within the prescribed time limit shall result in the automatic dismissal of the protest, or counter-protest.
Where the allegations in a protest so warrant, and simultaneously with the issuance of summons, the court shall order the municipal treasurer and election officer concerned to take immediate steps or measures to safeguard the integrity of all the ballot boxes, lists of voters with voting records, books of voters and other documents or paraphernalia used in the election.
Within forty-eight hours from receipt of the answer with counter-protest, if any, and whenever the allegations in a protest or counter-protest so warrant, the court shall order the ballot boxes with their keys, lists of voters with voting records, books of voters and other documents or paraphernalia involved in the protest or counterprotest, to be brought before it.
The court shall notify the parties of the date and time for the retrieval from their respective custodians of the ballot boxes and election documents. The parties may send representatives to witness the activity. The absence, however, of a representative of a party shall not be reason to postpone or delay the bringing of the ballot boxes and election documents into the custody of the court.
The court, in its discretion, may seek the assistance of the Philippine National Police or the Armed Forces of the Philippines in ensuring the safe delivery of the ballot boxes and election paraphernalia into the custody of the court.
Where any of the ballot boxes, ballots, election returns, election documents or paraphernalia mentioned in the first paragraph above are also involved in election contests before other fora, such as the Presidential Electoral Tribunal, the Senate Electoral Tribunal, the House of Representatives Electoral Tribunal or the Commission on Elections, which, under COMELEC Resolution No. 2812 dated 17 October 1995, have preferential right over the custody and revision of ballots involved in simultaneous protests, the court shall make the appropriate coordination and request with the higher tribunal involved as to temporary prior custody of ballot boxes and revision of ballots and other documents, or synchronization of such revision of ballots and other election documents.
The expenses necessary and incidental to the bringing of the ballot boxes and election documents shall be shouldered and promptly paid by the protestant. The expenses necessary and incidental to the return of the ballot boxes and election documents to their original custodians or the proper tribunal after the termination of the case shall be shared proportionately by the protestant and protestee based on the number of precincts respectively contested by them.
Within three days after filing of the last responsive pleading allowed by these Rules, or the expiration of the same period without any responsive pleading having been filed, the court shall conduct a mandatory preliminary conference among the parties to consider:
(1) The simplification of issues;
(2) The necessity or desirability of amendments to the pleadings;
(3) The possibility of obtaining stipulations or admission of facts and of documents to avoid unnecessary proof;
(4) The limitation of the number of witnesses;
(5) The nature of the testimonies of the witnesses and whether they relate to evidence aliunde the ballots, or otherwise;
(6) The withdrawal of certain protested or counter-protested precincts (especially those where the ballot boxes or ballots are unavailable or are missing and cannot be located or destroyed due to natural disasters or calamities);
(7) The number of revision committees to be constituted;
(8) The procedure to be followed in case the election protest or counter-protest seeks, wholly or partially, the examination, verification or re-tabulation of election returns; and
(9) Such other matters as may aid in the prompt disposition of the case.
The notice of preliminary conference shall be served on counsel or on the party who has no counsel. Notice to counsel is notice to the party, as counsel is charged with the duty to notify the party represented.
The parties shall file with the court and serve on the adverse party, in such manner as shall ensure their receipt at least one day before the date of the preliminary conference, their respective briefs which shall contain the following:
(1) A summary of admitted facts and proposed stipulation of facts;
(2) The issues to be tried or resolved;
(3) The pre-marked documents or exhibits to be presented, stating their purpose;
(4) A manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners;
(5) The number and names of the witnesses, their addresses, and the substance of their respective testimonies. The testimonies of the witnesses shall be by affidavits in question and answer form as their direct testimonies, subject to oral cross examination;
(6) A manifestation of withdrawal of certain protested or counter-protested precincts, if such is the case;
(7) The proposed number of revision committees and names of their revisors and alternate revisors; and
(8) In case the election protest or counter-protest seeks the examination, verification or re-tabulation of election returns, the procedure to be followed.
Failure to file the brief or to comply with its required contents shall have the same effect as failure to appear at the preliminary conference.
The failure of the protestant or counsel to appear at the preliminary conference shall be cause for dismissal, motu proprio, of the protest or counter-protest. In case of failure of the protestee or counsel to appear at the preliminary conference, the court may allow the protestant to present evidence ex parte and render judgment based on the evidence presented.
Within three days following the date of the preliminary conference, the court shall issue an order summarizing the matters taken up and stipulations or agreements reached during the conference. The court shall specify in the preliminary conference order when the revision of ballots will commence, which shall be within five days from the termination of the preliminary conference.
There shall be constituted such number of revision committees as may be necessary. Each revision committee shall be composed of a chairperson and two members, one designated by the protestant and another designated by the protestee. The court shall designate the chairperson 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 as may be designated by the court, 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 as if undertaken by the court itself. They shall exercise extraordinary diligence and take precautionary measures to prevent the loss, disappearance or impairment of the integrity (such as marking or spoilage by any means) of the ballots and election documents.
The court shall fix the compensation of the revisors at Four Hundred Pesos (P400.00) per ballot box for the chairperson and One Hundred Fifty Pesos (P150.00) per ballot box for each party revisor. The party revisors shall be entitled to an additional per diem of Five Hundred Pesos (P500.00) each per day. This compensation shall be chargeable against the cash deposit as provided for in Section 2, Rule 7 of these Rules.
During the revision of ballots, no person other than the judge, the clerk of court, the chairperson and the members of the revision committees, the parties and their duly authorized representatives, shall have access to the revision area.
The committee shall prepare and submit to the court a revision report per precinct stating the following:
(a) the precinct number;
(b) the date, place and time of revision;
(c) the votes of the parties per physical count;
(d) the condition and serial numbers of the following:
(1) ballot boxes;
(2) self-locking security metal or plastic seals (inner and outer) and padlocks of the ballot boxes;
(3) security envelopes containing the election returns; and
(4) numbered paper seal of the envelopes;
(e) the votes of the parties per ballot-box copy of the election returns and per the tally sheet/board found inside the ballot box;
(f) the number of ballots objected to by the parties indicating therein the exhibit numbers;
(g) the grounds of objections;
(h) the number of stray ballots;
(i) the claims on ballots with their exhibit numbers; and
(j) the entries in the Minutes of Voting and Counting, particularly:
(1) the number of registered voters;
(2) the number of voters who actually voted;
(3) the number of official ballots together with their serial numbers used in the election;
(4) the number of ballots actually used indicating the serial numbers of the ballots; and
(5) the unused ballots together with their serial numbers.
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 in the revision of ballots from the protested precincts and later from the counter-protested precincts, if so conducted. Each party furnished with a copy of the committee report may submit their comments thereon within a non-extendible period of three days from notice.
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 election documents from the Chairman, Commission on Elections, who shall be obliged to indicate such markings and other vital information that may aid the court in determining the authenticity of ballots and election documents. The parties shall be notified of the results of such inquiry.
Immediately after the revision of ballots or the examination, verification or re-tabulation of election returns in all protested precincts, the protestant shall be required to pinpoint a number of precincts, corresponding to twenty percent of the total revised protested precincts, that will best attest to the votes recovered or will best exemplify the frauds or irregularities pleaded in the protest. In the meanwhile, the revision of ballots or the examination, verification or re-tabulation of election returns in the counter-protested precincts shall be suspended for a period not exceeding fifteen days, during which the court shall determine through appreciation of ballots or election documents the merit or legitimacy of the protest relative to the twenty percent pinpointed precincts.
Based on the results of such post-revision determination, the court may dismiss the protest without further proceedings, if and when no reasonable recovery was established from the twenty percent pinpointed precincts, or proceed with revision of the ballots or the examination, 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 days from notice.
While the ballots or election documents from the counter-protested precincts are being revised, the court shall continue with its appreciation of ballots from the remaining revised eighty percent protested precincts and, once completed, shall proceed with the appreciation of ballots from the counter-protested precincts.
A party may move for the technical examination within five days after completion of revision in the protest or counter-protest, except when it involves allegation of massive substitute voting in the protest or counterprotest, specifying:
(a) The nature of the technical examination requested (e.g., fingerprint examination, etc.);
(b) The documents 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 such objections.
The court may grant the motion for technical examination at its discretion and under such conditions it may impose. If the motion is granted, the technical examination shall start within five days from notice to both parties and shall be completed within the period specified by the court, in no case to exceed 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 the party, provided due notice has been given to the party.
On motion of a party, the court may allow the photocopying of ballots and election documents, upon such terms and conditions as it 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.
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 party concerned shall provide an efficient photocopying unit and shall bear all expenses relative thereto.
If at the preliminary conference the parties have agreed on issues aliunde the 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.
The reception of evidence on all other matters or issues incidental to or interwoven with 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:
(1) The protestant or petitioner shall present evidence in support of the protest or petition;
(2) The protestee or respondent shall then adduce evidence in support of the defense, counterclaim or counter-protest, if any;
(3) The parties may then respectively offer rebutting evidence only, unless the court for good reasons, in the furtherance of justice, permits them to offer
Rules of Procedure in Election Contests page 25
evidence upon their original case; and
(4) 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 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 matters stated therein. The affidavit shall be in question and answer form. The affidavit shall be submitted to the court and served on the adverse party at least three days before the hearing. Failure to submit the affidavit of a 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, that is, a witness has to be fully cross-examined in one day only shall be strictly adhered to. The court, at its discretion, may extend the cross-examination for justifiable reasons.
The revision reports, as well as the objected and claimed ballots referred to therein, shall automatically form part of court records and may be adopted by the parties as their evidence.
The court shall consider no 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 last witness. The opposing party shall be required to immediately interpose objections thereto. 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. If the court rejects any evidence offered, the party may make a tender of the excluded evidence.
Reception of evidence, once commenced, shall continue from day to day as far as practicable until terminated. In no case shall the entire period for reception of evidence exceed ten successive days for each party from the first day of such reception, unless authorized by the Supreme Court.
Burden of proof is the duty of a party to present evidence of the facts in issue, necessary to establish one’s claim or defense.
The following presumptions are considered as facts, unless contradicted and overcome by other evidence:
(a) On the election procedure:
(1) The election of candidates was held on the date and time set and in the polling place determined by the Commission on Elections;
(2) The Boards of Election Inspectors were duly constituted and organized;
(3) Political parties and candidates were duly represented by pollwatchers;
(4) Pollwatchers were able to perform their functions; and
(5) The Minutes of Voting and Counting contains all the incidents that transpired before the Board of Election Inspectors.
(b) On election paraphernalia:
(1) Ballots and election returns that bear the security markings and features prescribed by the Commission on Elections are genuine;
(2) The data and information supplied by the members of the Boards of Election Inspectors in the accountable forms are true and correct; and
(3) The allocation, packing and distribution of election documents or paraphernalia were properly and timely done.
(c) On appreciation of ballots:
(1) A ballot with appropriate security markings is valid;
(2) The ballot reflects the intent of the voter;
(3) The ballot is properly accomplished;
(4) A voter personally prepared one ballot, except in the case of assistors; and
(5) The exercise of one’s right to vote was voluntary and free.
The court may allow the parties to submit their respective memoranda within a non-extendible period of ten days from the verbal ruling of the court on the last offer of exhibits; or, if the offer was made in writing, within ten days from receipt of the written ruling of the court. No supplemental, reply or rebuttal memorandum shall be allowed.
The court shall decide the election contest within thirty days from the date it is submitted for decision, in no case beyond six months after its filing, unless the Supreme Court authorizes an extension in writing. Failure to comply herewith shall be considered a serious offense and shall be ground for disciplinary action against the judge. In addition, after the expiration of six months, 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 such 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.
After termination of the revision of ballots and before rendering its decision in an election protest that involved such revision, the court shall examine and appreciate the original ballots. The court, in its appreciation of the ballots and in rendering rulings on objections and claims to ballots of the parties, shall observe the following rules:
(a) On Marked Ballots — The court must specify the entries in the ballots that clearly indicate that the intention of the voter is to identify the ballot. The specific markings in the ballots must be illustrated or indicated;
(b) On Fake or Spurious Ballots — The court must specify the COMELEC security markings that are not found in the ballots that are considered fake or spurious;
(c) On Stray Ballots — The court must specify and state in detail why the ballots are considered stray;
(d) On Pair or Group of Ballots Written by One or Individual Ballots Written By Two — When ballots are invalidated on the ground of written by one person, the court must clearly and distinctly specify why the pair or group of ballots has been written by only one person. The specific strokes, figures or letters indicating that the ballots have been written by one person must be specified. A simple ruling that a pair or group of ballots has been written by one person would not suffice. The same is true when ballots are excluded on the ground of having been written by two persons. The court must likewise take into consideration the entries of the Minutes of Voting and Counting relative to illiterate or disabled voters, if any, who cast their votes through assistors, in determining the validity of the ballots found to be written by one person, whether the ballots are in pairs or in groups; and
(e) On Claimed Ballots — The court must specify the exact basis for admitting or crediting claimed votes to either party.
The decision of the court shall become final and executory five days after filing with the clerk of court and receipt of notice by the parties.
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 such judgment has become final and executory.
As soon as the decision becomes final, the clerk of court shall send notices to the Commission on Elections, the Department of the Interior and Local Government, and the Commission on Audit.
An aggrieved party may appeal the decision to the Commission on Elections, within five days after promulgation, by filing a notice of appeal with the court that rendered the decision, with copy served on the adverse counsel or party if not represented by counsel.
The clerk of court shall, within fifteen days from the filing of the notice of appeal, transmit to the Electoral Contests Adjudication Department, Commission on Elections, 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.
On motion of the prevailing party with notice to the adverse party, the court, while still in possession of the original records, may, at its discretion, order the execution of the decision in an election contest before the expiration of the period to appeal, subject to the following rules:
(a) There must be a motion by the prevailing party with three-day notice to the adverse party. Execution pending appeal shall not issue without prior notice and hearing. There must be good reasons for the execution pending appeal. The court, in a special order, must state the good or special reasons justifying the execution pending appeal. Such reasons must:
(1) constitute superior circumstances demanding urgency that will outweigh the injury or damage should the losing party secure a reversal of the judgment on appeal; and
(2) be 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 Commission on Elections. The corresponding writ of execution shall issue after twenty days, if no restraining order or status quo order is issued. During such period, the writ of execution pending appeal shall be stayed.
The Commission on Elections 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 and barangay officials.
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.
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 such claims in the pleadings.
The new Rule repealed all rules, resolutions, regulations or circulars of the Supreme Court or parts thereof that are inconsistent with any provision thereof. Rules 35 and 36 of the 1993 COMELEC Rules of Procedure governing election contests and quo warranto cases before the trial courts are deemed superseded.
The new Rule took effect on May 15, 2007 following their publication in two newspapers of general circulation in the Philippines.
Perhaps, it is noteworthy to digest the same here, considering the proximity of the 2010 general elections in the Philippines, which are expected to be hotly contested (and, as usual, tainted by corruption, vote buying, and violence), and for legal research purpose of the visitors of this blog.
The new Rule amended many parts of Rule 66 (Quo Warranto) of the 1997 Rules of Civil Procedure. May I summarize the new Rule below.
The Rule governs the filing of pleadings, practice and procedure in election protests and petitions for quo warranto before courts of general jurisdiction and courts of limited jurisdiction relating to elective municipal and barangay officials.
“Election Contests” refer to election protests or petitions for quo warranto. “Election Protest” refers to an election contest relating to the election and returns of elective officials, grounded on frauds or irregularities in the conduct of the elections, the casting and counting of the ballots and the preparation and canvassing of returns. The issue is who obtained the plurality of valid votes cast.
“Quo Warranto”, under the Omnibus Election Code, refers to an election contest relating to the qualifications of an elective official on the ground of ineligibility or disloyalty to the Republic of the Philippines. The issue is whether respondent possesses all the qualifications and none of the disqualifications prescribed by law.
The Rule reminds the public of the inherent powers of the Courts. Thus:
(a) Preserve and enforce order in its immediate presence;
(b) Enforce order in proceedings before it, or before a person or persons empowered to conduct a judicial investigation under its authority;
(c) Compel obedience to its judgments, orders and processes, and to the lawful orders of a judge out of court, in a case pending therein;
(d) Control, in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a case before it, in every manner appertaining thereto;
(e) Compel the attendance of persons to testify in a case pending therein;
(f) Administer or cause to be administered oaths in a case pending therein, and in all other cases where it may be necessary in the exercise of its powers;
(g) Amend and control its processes and orders so as to make them conformable to law and justice; and
(h) Authorize a copy of a lost or destroyed pleading or other paper to be filed and used instead of the original and to restore and supply deficiencies in its records and proceedings.
Regional trial courts shall have exclusive original jurisdiction over all election contests involving elective municipal officials. Municipal trial courts shall have exclusive original jurisdiction over all election contests involving elective barangay officials. (This provision amends Sec. 7 of Rule 66, Quo Warranto, 1997 Rules of Civil Procedure, which provides that all quo warranto petitions shall be filed with the Supreme Court, the Court of Appeals, or the Regional Trial Court, as the case may be).
An election contest is initiated by the filing of an election protest or a petition for quo warranto against an elective municipal or barangay official. It shall be filed directly with the proper court. (The participation of the Solicitor General or the Public Prosecutor is no longer necessary).
An election protest shall not include a petition for quo warranto, nor shall a petition for quo warranto include an election protest.
A petition contesting the election or returns of an elective municipal or barangay official shall be filed with the proper regional trial court or municipal trial court by any 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.
Each contest shall refer exclusively to one office; however, contests for offices of Sangguniang Bayan or Sangguniang Barangay may be consolidated in one case.
A petition for quo warranto against an elective municipal or barangay official shall be filed with the proper regional trial court or municipal trial court by any registered voter who has voted in the election concerned. (This amends Secs. 5 and 6, Rule 66, which grants the power to commence this kind of suit only to persons claiming to be entitled to the office usurped).
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 the allegations therein are true and correct of affiant’s own knowledge or based on authentic records. 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 petition or one with insufficient verification or unaccompanied by a certificate of non-forum shopping shall be dismissed outright and shall not suspend the running of the reglementary period to file an election protest or petition for quo warranto.
The election protest or petition for quo warranto shall be filed within the non-extendible period of ten (10) days following the date of proclamation. The pendency of a pre-proclamation controversy involving the validity of the proclamation as defined by law shall suspend the running of the period to file an election protest or petition for quo warranto.
A decision of the Commission on Elections, either in division or en banc, in a disqualification case shall not bar the filing of a petition for quo warranto based on the same ground, except when the Supreme Court has affirmed the COMELEC decision.
An election protest or petition for quo warranto shall specifically state the position involved; the date of proclamation; the number of votes credited to the parties per proclamation; the total number of precincts of the municipality or the barangay concerned; the protested precincts and votes of the parties in the protested precincts per the Statement of Votes By Precinct or, if the votes of the parties are not specified, an explanation why the votes are not specified; and a detailed specification of the acts or omissions complained of showing the electoral frauds, anomalies or irregularities in the protested precincts.
The Court may order a change of venue or place of trial for compelling reasons to avoid a miscarriage of justice.
The court shall summarily dismiss, motu proprio, 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 in Section 11 hereof;
(c) The petition is filed beyond the period prescribed in these Rules;
(d) The filing fee is not paid within the period for filing the election protest or petition for quo warranto; and
(e) In case of protest where a cash deposit is required, the cash deposit is not paid within five days from the filing of the protest.
Within twenty-four hours from the filing of the protest or petition, the clerk of court shall issue the corresponding summons to the protestee or respondent, together with a copy of the protest or petition, requiring the filing of an answer within a non-extendible period of five (5) days from notice.
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. Within five days from receipt of the summons and a copy of the protest or petition, the protestee or respondent shall file an answer in three legible copies, with proof of service of a copy upon the protestant or petitioner.
The counter-protest shall specify the counter-protested precincts and any votes of the parties therein per the Statement of Votes By Precinct, or, if not so specified, an explanation why the votes are not specified, and a detailed specification of the acts or omissions complained of showing the electoral frauds, anomalies or irregularities in the counter-protested precincts.
The protestant or petitioner shall answer the counterclaim or counter-protest within a non-extendible period of five days from notice.
A protestee or respondent must specify each material allegation of fact the truth of which is not admitted and, whenever practicable, shall set forth the substance of the matters relied upon in support of the denial. The protestee or respondent shall specify so much of the averments that are true and material and shall deny the remainder. Material averment in the protest or petition, other than the amount of unliquidated damages and issues as to the appreciation of ballots, shall be deemed admitted when not specifically denied.
Defenses and objections not pleaded are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or the statute of limitations, the court shall dismiss the claim.
A compulsory counterclaim, or a cross-claim not set up shall be barred.
In an election protest that does not involve ballot revision or a petition for quo warranto, if the protestee or respondent fails to file an answer within the time allowed, the court shall, upon motion of the protestant or petitioner with notice to the protestee or respondent and upon proof of such failure, proceed to render judgment on the basis of the allegations of the verified election protest or petition for quo warranto granting the relief prayed for, unless the court in its discretion requires the protestant or petitioner to submit evidence ex parte.
However, in the case of election protests involving ballot revision or examination, verification or re-tabulation of the election returns, the court shall order such revision of ballots or examination, verification or re-tabulation of election returns. The court shall proceed to render judgment based on the results of the revision or examination, verification or re-tabulation of election returns. During the revision or examination, verification or re-tabulation of election returns, only the revisors of the protestant may participate. The protestee or duly authorized representative has the right to be present and observe the proceedings without the right to object and make claims to ballots and election returns.
After the expiration of the period for the filing of the election protest, counter-protest or petition for quo warranto, substantial amendments that broaden the scope of the action or introduce an additional cause or causes of action may be allowed only upon leave of court. Such leave may be refused if it appears to the court that the motion was made with intent to 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 be summarily corrected by the court at any stage of the proceedings, at its initiative or on motion, provided no prejudice is caused thereby to the adverse party.
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 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, Rule 13 of these Rules;
(h) Motion to declare the protestee or respondent in default;
(i) Dilatory motion for postponement;
(j) Motion to inhibit the presiding judge except on clearly valid grounds;
(k) Reply or rejoinder; and
(l) Third-party complaint.
All grounds to dismiss an election protest or petition for quo warranto must be set up or pleaded as affirmative or special defenses. Defenses not raised are deemed waived. The court may, in its discretion, hold a preliminary hearing on the grounds so pleaded.
No protest, counter-protest or petition for quo warranto shall be accepted for filing without the payment of a filing fee in the amount of Three Thousand Pesos (P3,000.00) for each interest. If claims for damages and attorney’s fees are set forth in a protest or counter-protest, additional filing fees shall be paid in accordance with the schedule provided for in Rule 141 of the Rules of Court, as amended.
In addition to the fees prescribed above, the protestant in an election protest requiring revision of ballots or examination, verification or re-tabulation of election returns, or which may require the bringing to the court of copies of other election documents and paraphernalia, shall make a cash deposit with the court in the following amounts:
(1) One Thousand Pesos (P1,000.00) for each precinct involved in the protest or counter-protest; provided that, in no case shall the deposit be less than Twenty-Five Thousand Pesos (P25,000.00) to be paid upon the filing of the election protest (counter-protest);
(2) If the amount to be deposited does not exceed One Hundred Thousand Pesos (P100,000.00), the same shall be paid in full within ten days after the filing of the protest; and
(3) If the deposit exceeds 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 days after the filing of the protest. The balance shall be paid in such installments as may be required by the court with at least five days advance notice to the party required to make the deposit.
The cash deposit shall be applied by the court to the payment of the compensation of revisors and of all expenses incidental to revision but not limited to supplies and miscellaneous expenses of the revision committee. When the court determines that the circumstances so demand, as when the deposit has been depleted, it may require additional cash deposits. Any unused cash deposit shall be returned to the party making the same after 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. Once required, the protestee (counter-protestant) shall pay the cash deposit within a non-extendible period of three days from receipt of the corresponding order.
Failure to make the cash deposits required within the prescribed time limit shall result in the automatic dismissal of the protest, or counter-protest.
Where the allegations in a protest so warrant, and simultaneously with the issuance of summons, the court shall order the municipal treasurer and election officer concerned to take immediate steps or measures to safeguard the integrity of all the ballot boxes, lists of voters with voting records, books of voters and other documents or paraphernalia used in the election.
Within forty-eight hours from receipt of the answer with counter-protest, if any, and whenever the allegations in a protest or counter-protest so warrant, the court shall order the ballot boxes with their keys, lists of voters with voting records, books of voters and other documents or paraphernalia involved in the protest or counterprotest, to be brought before it.
The court shall notify the parties of the date and time for the retrieval from their respective custodians of the ballot boxes and election documents. The parties may send representatives to witness the activity. The absence, however, of a representative of a party shall not be reason to postpone or delay the bringing of the ballot boxes and election documents into the custody of the court.
The court, in its discretion, may seek the assistance of the Philippine National Police or the Armed Forces of the Philippines in ensuring the safe delivery of the ballot boxes and election paraphernalia into the custody of the court.
Where any of the ballot boxes, ballots, election returns, election documents or paraphernalia mentioned in the first paragraph above are also involved in election contests before other fora, such as the Presidential Electoral Tribunal, the Senate Electoral Tribunal, the House of Representatives Electoral Tribunal or the Commission on Elections, which, under COMELEC Resolution No. 2812 dated 17 October 1995, have preferential right over the custody and revision of ballots involved in simultaneous protests, the court shall make the appropriate coordination and request with the higher tribunal involved as to temporary prior custody of ballot boxes and revision of ballots and other documents, or synchronization of such revision of ballots and other election documents.
The expenses necessary and incidental to the bringing of the ballot boxes and election documents shall be shouldered and promptly paid by the protestant. The expenses necessary and incidental to the return of the ballot boxes and election documents to their original custodians or the proper tribunal after the termination of the case shall be shared proportionately by the protestant and protestee based on the number of precincts respectively contested by them.
Within three days after filing of the last responsive pleading allowed by these Rules, or the expiration of the same period without any responsive pleading having been filed, the court shall conduct a mandatory preliminary conference among the parties to consider:
(1) The simplification of issues;
(2) The necessity or desirability of amendments to the pleadings;
(3) The possibility of obtaining stipulations or admission of facts and of documents to avoid unnecessary proof;
(4) The limitation of the number of witnesses;
(5) The nature of the testimonies of the witnesses and whether they relate to evidence aliunde the ballots, or otherwise;
(6) The withdrawal of certain protested or counter-protested precincts (especially those where the ballot boxes or ballots are unavailable or are missing and cannot be located or destroyed due to natural disasters or calamities);
(7) The number of revision committees to be constituted;
(8) The procedure to be followed in case the election protest or counter-protest seeks, wholly or partially, the examination, verification or re-tabulation of election returns; and
(9) Such other matters as may aid in the prompt disposition of the case.
The notice of preliminary conference shall be served on counsel or on the party who has no counsel. Notice to counsel is notice to the party, as counsel is charged with the duty to notify the party represented.
The parties shall file with the court and serve on the adverse party, in such manner as shall ensure their receipt at least one day before the date of the preliminary conference, their respective briefs which shall contain the following:
(1) A summary of admitted facts and proposed stipulation of facts;
(2) The issues to be tried or resolved;
(3) The pre-marked documents or exhibits to be presented, stating their purpose;
(4) A manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners;
(5) The number and names of the witnesses, their addresses, and the substance of their respective testimonies. The testimonies of the witnesses shall be by affidavits in question and answer form as their direct testimonies, subject to oral cross examination;
(6) A manifestation of withdrawal of certain protested or counter-protested precincts, if such is the case;
(7) The proposed number of revision committees and names of their revisors and alternate revisors; and
(8) In case the election protest or counter-protest seeks the examination, verification or re-tabulation of election returns, the procedure to be followed.
Failure to file the brief or to comply with its required contents shall have the same effect as failure to appear at the preliminary conference.
The failure of the protestant or counsel to appear at the preliminary conference shall be cause for dismissal, motu proprio, of the protest or counter-protest. In case of failure of the protestee or counsel to appear at the preliminary conference, the court may allow the protestant to present evidence ex parte and render judgment based on the evidence presented.
Within three days following the date of the preliminary conference, the court shall issue an order summarizing the matters taken up and stipulations or agreements reached during the conference. The court shall specify in the preliminary conference order when the revision of ballots will commence, which shall be within five days from the termination of the preliminary conference.
There shall be constituted such number of revision committees as may be necessary. Each revision committee shall be composed of a chairperson and two members, one designated by the protestant and another designated by the protestee. The court shall designate the chairperson 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 as may be designated by the court, 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 as if undertaken by the court itself. They shall exercise extraordinary diligence and take precautionary measures to prevent the loss, disappearance or impairment of the integrity (such as marking or spoilage by any means) of the ballots and election documents.
The court shall fix the compensation of the revisors at Four Hundred Pesos (P400.00) per ballot box for the chairperson and One Hundred Fifty Pesos (P150.00) per ballot box for each party revisor. The party revisors shall be entitled to an additional per diem of Five Hundred Pesos (P500.00) each per day. This compensation shall be chargeable against the cash deposit as provided for in Section 2, Rule 7 of these Rules.
During the revision of ballots, no person other than the judge, the clerk of court, the chairperson and the members of the revision committees, the parties and their duly authorized representatives, shall have access to the revision area.
The committee shall prepare and submit to the court a revision report per precinct stating the following:
(a) the precinct number;
(b) the date, place and time of revision;
(c) the votes of the parties per physical count;
(d) the condition and serial numbers of the following:
(1) ballot boxes;
(2) self-locking security metal or plastic seals (inner and outer) and padlocks of the ballot boxes;
(3) security envelopes containing the election returns; and
(4) numbered paper seal of the envelopes;
(e) the votes of the parties per ballot-box copy of the election returns and per the tally sheet/board found inside the ballot box;
(f) the number of ballots objected to by the parties indicating therein the exhibit numbers;
(g) the grounds of objections;
(h) the number of stray ballots;
(i) the claims on ballots with their exhibit numbers; and
(j) the entries in the Minutes of Voting and Counting, particularly:
(1) the number of registered voters;
(2) the number of voters who actually voted;
(3) the number of official ballots together with their serial numbers used in the election;
(4) the number of ballots actually used indicating the serial numbers of the ballots; and
(5) the unused ballots together with their serial numbers.
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 in the revision of ballots from the protested precincts and later from the counter-protested precincts, if so conducted. Each party furnished with a copy of the committee report may submit their comments thereon within a non-extendible period of three days from notice.
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 election documents from the Chairman, Commission on Elections, who shall be obliged to indicate such markings and other vital information that may aid the court in determining the authenticity of ballots and election documents. The parties shall be notified of the results of such inquiry.
Immediately after the revision of ballots or the examination, verification or re-tabulation of election returns in all protested precincts, the protestant shall be required to pinpoint a number of precincts, corresponding to twenty percent of the total revised protested precincts, that will best attest to the votes recovered or will best exemplify the frauds or irregularities pleaded in the protest. In the meanwhile, the revision of ballots or the examination, verification or re-tabulation of election returns in the counter-protested precincts shall be suspended for a period not exceeding fifteen days, during which the court shall determine through appreciation of ballots or election documents the merit or legitimacy of the protest relative to the twenty percent pinpointed precincts.
Based on the results of such post-revision determination, the court may dismiss the protest without further proceedings, if and when no reasonable recovery was established from the twenty percent pinpointed precincts, or proceed with revision of the ballots or the examination, 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 days from notice.
While the ballots or election documents from the counter-protested precincts are being revised, the court shall continue with its appreciation of ballots from the remaining revised eighty percent protested precincts and, once completed, shall proceed with the appreciation of ballots from the counter-protested precincts.
A party may move for the technical examination within five days after completion of revision in the protest or counter-protest, except when it involves allegation of massive substitute voting in the protest or counterprotest, specifying:
(a) The nature of the technical examination requested (e.g., fingerprint examination, etc.);
(b) The documents 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 such objections.
The court may grant the motion for technical examination at its discretion and under such conditions it may impose. If the motion is granted, the technical examination shall start within five days from notice to both parties and shall be completed within the period specified by the court, in no case to exceed 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 the party, provided due notice has been given to the party.
On motion of a party, the court may allow the photocopying of ballots and election documents, upon such terms and conditions as it 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.
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 party concerned shall provide an efficient photocopying unit and shall bear all expenses relative thereto.
If at the preliminary conference the parties have agreed on issues aliunde the 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.
The reception of evidence on all other matters or issues incidental to or interwoven with 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:
(1) The protestant or petitioner shall present evidence in support of the protest or petition;
(2) The protestee or respondent shall then adduce evidence in support of the defense, counterclaim or counter-protest, if any;
(3) The parties may then respectively offer rebutting evidence only, unless the court for good reasons, in the furtherance of justice, permits them to offer
Rules of Procedure in Election Contests page 25
evidence upon their original case; and
(4) 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 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 matters stated therein. The affidavit shall be in question and answer form. The affidavit shall be submitted to the court and served on the adverse party at least three days before the hearing. Failure to submit the affidavit of a 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, that is, a witness has to be fully cross-examined in one day only shall be strictly adhered to. The court, at its discretion, may extend the cross-examination for justifiable reasons.
The revision reports, as well as the objected and claimed ballots referred to therein, shall automatically form part of court records and may be adopted by the parties as their evidence.
The court shall consider no 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 last witness. The opposing party shall be required to immediately interpose objections thereto. 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. If the court rejects any evidence offered, the party may make a tender of the excluded evidence.
Reception of evidence, once commenced, shall continue from day to day as far as practicable until terminated. In no case shall the entire period for reception of evidence exceed ten successive days for each party from the first day of such reception, unless authorized by the Supreme Court.
Burden of proof is the duty of a party to present evidence of the facts in issue, necessary to establish one’s claim or defense.
The following presumptions are considered as facts, unless contradicted and overcome by other evidence:
(a) On the election procedure:
(1) The election of candidates was held on the date and time set and in the polling place determined by the Commission on Elections;
(2) The Boards of Election Inspectors were duly constituted and organized;
(3) Political parties and candidates were duly represented by pollwatchers;
(4) Pollwatchers were able to perform their functions; and
(5) The Minutes of Voting and Counting contains all the incidents that transpired before the Board of Election Inspectors.
(b) On election paraphernalia:
(1) Ballots and election returns that bear the security markings and features prescribed by the Commission on Elections are genuine;
(2) The data and information supplied by the members of the Boards of Election Inspectors in the accountable forms are true and correct; and
(3) The allocation, packing and distribution of election documents or paraphernalia were properly and timely done.
(c) On appreciation of ballots:
(1) A ballot with appropriate security markings is valid;
(2) The ballot reflects the intent of the voter;
(3) The ballot is properly accomplished;
(4) A voter personally prepared one ballot, except in the case of assistors; and
(5) The exercise of one’s right to vote was voluntary and free.
The court may allow the parties to submit their respective memoranda within a non-extendible period of ten days from the verbal ruling of the court on the last offer of exhibits; or, if the offer was made in writing, within ten days from receipt of the written ruling of the court. No supplemental, reply or rebuttal memorandum shall be allowed.
The court shall decide the election contest within thirty days from the date it is submitted for decision, in no case beyond six months after its filing, unless the Supreme Court authorizes an extension in writing. Failure to comply herewith shall be considered a serious offense and shall be ground for disciplinary action against the judge. In addition, after the expiration of six months, 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 such 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.
After termination of the revision of ballots and before rendering its decision in an election protest that involved such revision, the court shall examine and appreciate the original ballots. The court, in its appreciation of the ballots and in rendering rulings on objections and claims to ballots of the parties, shall observe the following rules:
(a) On Marked Ballots — The court must specify the entries in the ballots that clearly indicate that the intention of the voter is to identify the ballot. The specific markings in the ballots must be illustrated or indicated;
(b) On Fake or Spurious Ballots — The court must specify the COMELEC security markings that are not found in the ballots that are considered fake or spurious;
(c) On Stray Ballots — The court must specify and state in detail why the ballots are considered stray;
(d) On Pair or Group of Ballots Written by One or Individual Ballots Written By Two — When ballots are invalidated on the ground of written by one person, the court must clearly and distinctly specify why the pair or group of ballots has been written by only one person. The specific strokes, figures or letters indicating that the ballots have been written by one person must be specified. A simple ruling that a pair or group of ballots has been written by one person would not suffice. The same is true when ballots are excluded on the ground of having been written by two persons. The court must likewise take into consideration the entries of the Minutes of Voting and Counting relative to illiterate or disabled voters, if any, who cast their votes through assistors, in determining the validity of the ballots found to be written by one person, whether the ballots are in pairs or in groups; and
(e) On Claimed Ballots — The court must specify the exact basis for admitting or crediting claimed votes to either party.
The decision of the court shall become final and executory five days after filing with the clerk of court and receipt of notice by the parties.
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 such judgment has become final and executory.
As soon as the decision becomes final, the clerk of court shall send notices to the Commission on Elections, the Department of the Interior and Local Government, and the Commission on Audit.
An aggrieved party may appeal the decision to the Commission on Elections, within five days after promulgation, by filing a notice of appeal with the court that rendered the decision, with copy served on the adverse counsel or party if not represented by counsel.
The clerk of court shall, within fifteen days from the filing of the notice of appeal, transmit to the Electoral Contests Adjudication Department, Commission on Elections, 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.
On motion of the prevailing party with notice to the adverse party, the court, while still in possession of the original records, may, at its discretion, order the execution of the decision in an election contest before the expiration of the period to appeal, subject to the following rules:
(a) There must be a motion by the prevailing party with three-day notice to the adverse party. Execution pending appeal shall not issue without prior notice and hearing. There must be good reasons for the execution pending appeal. The court, in a special order, must state the good or special reasons justifying the execution pending appeal. Such reasons must:
(1) constitute superior circumstances demanding urgency that will outweigh the injury or damage should the losing party secure a reversal of the judgment on appeal; and
(2) be 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 Commission on Elections. The corresponding writ of execution shall issue after twenty days, if no restraining order or status quo order is issued. During such period, the writ of execution pending appeal shall be stayed.
The Commission on Elections 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 and barangay officials.
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.
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 such claims in the pleadings.
The new Rule repealed all rules, resolutions, regulations or circulars of the Supreme Court or parts thereof that are inconsistent with any provision thereof. Rules 35 and 36 of the 1993 COMELEC Rules of Procedure governing election contests and quo warranto cases before the trial courts are deemed superseded.
The new Rule took effect on May 15, 2007 following their publication in two newspapers of general circulation in the Philippines.
Enforcement
Philippine economist and columnist Cielito Habito has summarized in his recent article what many Filipinos and foreigners have all along believed with respect to the reasons behind the failed state of the Philippine legal system, one of which is the “lack of enforcement and implementation of Philippine laws”.
I am reproducing his recent column below.
Among other things, he made the following points:
1. "There are, to my mind, at least three things that get in our way: (1) We do not enforce our laws, (2) our government departments and agencies have great difficulty with coordination and teamwork and (3) the laws themselves have inconsistencies and flaws that undermine their proper enforcement."
2. "One often feels that our system actually reinforces, rather than deters, violations of the law, such that the obedient and compliant are the ones who lose out."
3. "The problem in many cases is that powerful political interests are either behind or directly responsible for the incursions. The issue thus commonly boils down to the entrenched culture of corruption in government."
Many young and idealistic Filipinos have lost hope. They feel that “the system does not work”.
Do you wonder why communist and Muslim rebellion and secessionist movements escalate and spread in poverty-stricken towns and cities of the Philippines?
No Free Lunch
Our failure: Enforcement and implementation
By Cielito Habito
Philippine Daily Inquirer
First Posted 23:18:00 03/15/2009
WE OFTEN HEAR IT SAID THAT we in the Philippines have no lack of good plans, programs, policies and laws, but our problem lies in enforcement and implementation. For example, we pride ourselves as being among the first in the world to have formulated a national strategy for sustainable development after the 1992 Rio Earth Summit, with our Philippine Agenda 21. We’ve had carefully crafted six-year Medium Term Philippine Development Plans (MTPDPs) for at least three decades now. We often claim that we have a more mature legal framework for attracting business than, say, China and Vietnam. And so on and so forth.
And yet our environmental situation is not something particularly worthy of emulation. Our economic performance has benefited few, with poverty having, in fact, risen and education and health indicators worsened in recent years. And we have certainly been attracting a lot less business than China and Vietnam. There are, to my mind, at least three things that get in our way: (1) We do not enforce our laws, (2) our government departments and agencies have great difficulty with coordination and teamwork and (3) the laws themselves have inconsistencies and flaws that undermine their proper enforcement.
Nonenforcement
From simple traffic rules to laws against graft and corruption, offenders simply manage to get away with what they do, often with impunity. One often feels that our system actually reinforces, rather than deters, violations of the law, such that the obedient and compliant are the ones who lose out. Drivers who stay on their proper place on the road are the last ones to get through. There are too many “open secrets” of flagrant corruption and tax evasion, of which the recent World Bank debarment of seven firms is just the latest manifestation.
Law enforcement failures are particularly common for (but certainly not limited to) environmental laws. An example is the persistent incursion of commercial fishing vessels within the 15-kilometer zone reserved by the Fisheries Code to small artisanal municipal fishers. Another is the persistence of illegal fishpens in both inland and coastal fisheries. The problem in many cases is that powerful political interests are either behind or directly responsible for the incursions. The issue thus commonly boils down to the entrenched culture of corruption in government.
Coordination pitfalls
Development challenges usually require interagency, multisectoral and multidisciplinary approaches and solutions. The Philippines has actually been at the forefront of establishing coordinative and consultative mechanisms to deal with sustainable development and other governance concerns. But coordination difficulties persist, particularly because governments have always been organized along distinct sectoral lines. Even then, overlapping and duplicating functions across government departments and offices are common.
A prime illustration of this lack of coordination is the confused state of our land administration system, something already discussed before in this column (“Losing from land,” 2-12-07). In its Philippines Environmental Profile in 2005, the European Commission in the Philippines observed that “there is a complex situation of overlapping of agencies and laws. There are also multiple standards for land valuation, which offer ample opportunities for corruption.” The problems still persist, and our land administration and management system is in dire need of an overhaul that would require consolidation of functions currently lying within several land registration and administration agencies, which in turn fall within at least two government Cabinet-level departments (DENR and DOJ).
Flaws in laws
Some of the difficulties of past years stem from inconsistencies and ambiguities in the laws themselves. Among the most controversial legislations pertaining to the environment has been the Philippine Mining Act of 1995 (RA 7942), whose constitutionality had been questioned at, and later affirmed (but not unanimously) by the Supreme Court. Another major problem has been the inconsistency of certain provisions of the same Mining Act with the Indigenous Peoples Rights Act (RA 8371), which recognizes and promotes the rights of indigenous peoples to ancestral domains and lands; their right to self-governance, economic and social rights; and their cultural integrity, including indigenous culture, traditions and institutions. However, the Mining Act is invoked by investors and certain government offices in allowing mining exploration and development activities in areas that would otherwise be barred from such by the Ipra.
From the above, the picture that emerges is one where the appropriate elements of a strategy and action agenda for the pursuit of sustainable development in the country would seem to be largely in place. The main barrier, however, to achieving desired outcomes and impacts is shortcomings in institutions and mechanisms--and in the people comprising them--for translating strategies, policies and programs into concrete action. Until we overcome our failures in politics and governance, moving our country forward would continue being a formidable challenge indeed.
See:
http://business.inquirer.net/money/columns/view/20090315-194312/Our-failure-Enforcement-and-implementation
I am reproducing his recent column below.
Among other things, he made the following points:
1. "There are, to my mind, at least three things that get in our way: (1) We do not enforce our laws, (2) our government departments and agencies have great difficulty with coordination and teamwork and (3) the laws themselves have inconsistencies and flaws that undermine their proper enforcement."
2. "One often feels that our system actually reinforces, rather than deters, violations of the law, such that the obedient and compliant are the ones who lose out."
3. "The problem in many cases is that powerful political interests are either behind or directly responsible for the incursions. The issue thus commonly boils down to the entrenched culture of corruption in government."
Many young and idealistic Filipinos have lost hope. They feel that “the system does not work”.
Do you wonder why communist and Muslim rebellion and secessionist movements escalate and spread in poverty-stricken towns and cities of the Philippines?
No Free Lunch
Our failure: Enforcement and implementation
By Cielito Habito
Philippine Daily Inquirer
First Posted 23:18:00 03/15/2009
WE OFTEN HEAR IT SAID THAT we in the Philippines have no lack of good plans, programs, policies and laws, but our problem lies in enforcement and implementation. For example, we pride ourselves as being among the first in the world to have formulated a national strategy for sustainable development after the 1992 Rio Earth Summit, with our Philippine Agenda 21. We’ve had carefully crafted six-year Medium Term Philippine Development Plans (MTPDPs) for at least three decades now. We often claim that we have a more mature legal framework for attracting business than, say, China and Vietnam. And so on and so forth.
And yet our environmental situation is not something particularly worthy of emulation. Our economic performance has benefited few, with poverty having, in fact, risen and education and health indicators worsened in recent years. And we have certainly been attracting a lot less business than China and Vietnam. There are, to my mind, at least three things that get in our way: (1) We do not enforce our laws, (2) our government departments and agencies have great difficulty with coordination and teamwork and (3) the laws themselves have inconsistencies and flaws that undermine their proper enforcement.
Nonenforcement
From simple traffic rules to laws against graft and corruption, offenders simply manage to get away with what they do, often with impunity. One often feels that our system actually reinforces, rather than deters, violations of the law, such that the obedient and compliant are the ones who lose out. Drivers who stay on their proper place on the road are the last ones to get through. There are too many “open secrets” of flagrant corruption and tax evasion, of which the recent World Bank debarment of seven firms is just the latest manifestation.
Law enforcement failures are particularly common for (but certainly not limited to) environmental laws. An example is the persistent incursion of commercial fishing vessels within the 15-kilometer zone reserved by the Fisheries Code to small artisanal municipal fishers. Another is the persistence of illegal fishpens in both inland and coastal fisheries. The problem in many cases is that powerful political interests are either behind or directly responsible for the incursions. The issue thus commonly boils down to the entrenched culture of corruption in government.
Coordination pitfalls
Development challenges usually require interagency, multisectoral and multidisciplinary approaches and solutions. The Philippines has actually been at the forefront of establishing coordinative and consultative mechanisms to deal with sustainable development and other governance concerns. But coordination difficulties persist, particularly because governments have always been organized along distinct sectoral lines. Even then, overlapping and duplicating functions across government departments and offices are common.
A prime illustration of this lack of coordination is the confused state of our land administration system, something already discussed before in this column (“Losing from land,” 2-12-07). In its Philippines Environmental Profile in 2005, the European Commission in the Philippines observed that “there is a complex situation of overlapping of agencies and laws. There are also multiple standards for land valuation, which offer ample opportunities for corruption.” The problems still persist, and our land administration and management system is in dire need of an overhaul that would require consolidation of functions currently lying within several land registration and administration agencies, which in turn fall within at least two government Cabinet-level departments (DENR and DOJ).
Flaws in laws
Some of the difficulties of past years stem from inconsistencies and ambiguities in the laws themselves. Among the most controversial legislations pertaining to the environment has been the Philippine Mining Act of 1995 (RA 7942), whose constitutionality had been questioned at, and later affirmed (but not unanimously) by the Supreme Court. Another major problem has been the inconsistency of certain provisions of the same Mining Act with the Indigenous Peoples Rights Act (RA 8371), which recognizes and promotes the rights of indigenous peoples to ancestral domains and lands; their right to self-governance, economic and social rights; and their cultural integrity, including indigenous culture, traditions and institutions. However, the Mining Act is invoked by investors and certain government offices in allowing mining exploration and development activities in areas that would otherwise be barred from such by the Ipra.
From the above, the picture that emerges is one where the appropriate elements of a strategy and action agenda for the pursuit of sustainable development in the country would seem to be largely in place. The main barrier, however, to achieving desired outcomes and impacts is shortcomings in institutions and mechanisms--and in the people comprising them--for translating strategies, policies and programs into concrete action. Until we overcome our failures in politics and governance, moving our country forward would continue being a formidable challenge indeed.
See:
http://business.inquirer.net/money/columns/view/20090315-194312/Our-failure-Enforcement-and-implementation
Saturday, March 14, 2009
Return to ethics
In a keynote address delivered by retired Chief Justice ARTEMIO V. PANGANIBAN during the First Integrity and Human Rights Conference held at the Hyatt Regency Hotel, Pedro Gil Street, Ermita, Manila, on January 27 to 28, 2009, sponsored by the Commission on Human Rights of the Philippines, the Business for Integrity and Stability of Our Nation (Bisyon 2020) and Transparency International in cooperation with the United Nations Development Programme (UNDP), he made certain important points that bear on the rule of law in the Philippines, which I wish to reproduce here. Thus:
X x x.
The World Bank and TI perceive the Philippines as the most graft ridden in East Asia and among the worst in the world. More tellingly, our own people regard the Arroyo administration as the most corrupt in our history. To the question: “In your opinion, under which administration has there been the most intense allegation of corruption?” a Pulse Asia face-to-face survey conducted on October 30-31, 2007 revealed the following replies in percentages: Arroyo administration, 45 percent; Marcos, 31 percent; Estrada, 14 percent; Ramos, 7 percent; Aquino, 1 percent; and none, refused to answer/can’t say, 1 percent.
To the more specific question “In your opinion, which president is the most corrupt in the history of the Philippines?” the answers were: Gloria Arroyo, 42 percent; Ferdinand Marcos, 35 percent; Joseph Estrada, 16 percent; Fidel Ramos, 5 percent; Corazon Aquino, 1 percent; and none/refused to answer/can’t say, 1 percent.
This pitiful corruption perception survey of Pulse Asia must have been triggered by many scandals like the allegedly overpriced P1.2 billion Diosdado Macapagal Boulevard near Manila Bay, the Comelec’s P3 billion three-phased modernization program, the P728 million fertilizer scam, the $503 million North Rail project and the stinking $329 million National Broadband ZTE deal.
The Social Weather Stations Survey of Enterprises on Corruption made a more recent study on graft. On September 9 to October 10, 2008, SWS interviewed managers from 402 different companies in Metro Manila, Cebu City and Davao City. A staggering 71 percent said they were blatantly asked for bribes in connection with their dealings with government, like when they secure business permits, comply with import regulations, pay customs duties and income taxes, supply the government with goods and services, collect government receivables and avail of government incentives.
X x x.
How about in protecting and promoting human rights, what is our government’s track record?
According to Commission on Human Rights Chairperson Leila M. de Lima during her speech commemorating the 60th anniversary of the Universal Declaration of Human Rights last December, our country’s overall record is “dismal.” She deplored the recent resurgence of extra judicial killings and enforced disappearances “with the Armed Forces as the primary suspect.”
She eloquently declared, “We have not seen a single conviction in the cases of extralegal killings, enforced disappearances and torture. We have not seen a sufficient supply of adequate housing for all Filipinos … (or) an equitable distribution of wealth and land…(or) compensation for the injured during operations of State security forces…(or) a lasting peace agreement between the government and the insurgent communities in the South…(or) enough prosecutions by the Ombudsman…(or) the light at the tunnel’s end in our fight against corruption…(or) decent education available to every single Filipino child…(or) speedy justice for the thousands who languish in jails without finality of their court cases…(or) true and equal accessibility to employment for the disabled…(or) the right of suffrage available to all…(or) the full protection of the vote of those who exercise their right to suffrage…(or) the end of the suppression of the freedom of speech, of expression and assembly.”
During the same occasion, Archbishop Angel Lagdameo, the president of the Catholic Bishops Conference of the Philippines, lamented that the observance of Human Rights Day “gives us a feeling of shame and embarrassment because of the innumerable human rights violations that have remained unexamined, unexplained and unsolved or covered up by events.”
The human rights group Karapatan was more specific. According to a news reports printed on December 10, 2008, Karapatan documented 977 victims of extra judicial killings, 1,010 victims of torture and 1,464 victims of illegal arrest during the eight years of the Arroyo administration. During the 10-month period from January to October 2008 alone, there were at least four cases of forced disappearances and 50 victims of extra judicial killings.
The harrowing tale narrated by Raymond Manalo of his, and his brother Reynaldo’s torture (as well as that of missing UP students Karen Empeno and Sherlyn Cadapan) at the hands of the Armed Forces of the Philippines aired in ANC’s “Storyline” two weeks ago should convinced even the most jaded among us of the urgent need to vindicate violations of human rights in our country.
X x x.
In the swirl of this dismal and worsening track record of corruption and human rights violations in our country, what has been the response of our leaders and policy makers?
I am afraid mostly rhetoric, evasiveness and finger-pointing, like calling TI biased and suggesting it had been bought by the opposition, or ignoring the World Bank reports and hoping its jarring findings would slip into oblivion, or proposing some kind of authoritarian rule and shooting drug suspects like Ferdinand Marcos did, or condemning our presidential form of government and instituting the parliamentary system as the end-all remedy to the ills of governance, or dismissing President Obama’s warning and saying that all governments in the world are corrupt anyway (Susmariosep!).
Let me be a little more specific to demonstrate my point. After the drug enforcement officers hurled the current bribery allegations against the prosecutors of the Department of Justice, President Gloria Macapagal Arroyo immediately called for the creation of an independent citizens’ committee to investigate the brouhaha and to recommend punitive actions against the erring officials.
On the surface, this proposal may serve to quiet down public indignation on this issue by shifting attention to the work of the citizens’ committee. But on deeper reflection, I believe that this is not the proper solution. Why should private citizens be given the burden of discharging the responsibility of public officers when there are enough public offices created by the Constitution and given ample powers and prerogatives by law to deal precisely with these shenanigans?
The Office of the Ombudsman was conceived by the Constitution precisely to meet this kind of contingency. This office is mandated to “investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient.”
Ombudsman Merceditas Gutierrez is given not only the responsibility of curbing corruption and violations of human rights but is also granted plenary power “to stop, prevent and correct any abuse or impropriety in the performance of duties.” She could prosecute, suspend, dismiss or otherwise penalize erring officials. Like the judiciary, the Ombudsman enjoys fiscal autonomy and independence. Let the Ombudsman perform her constitutional duty. If she refuses or cannot do so, let her resign or be replaced. But let not civilians, never mind how well intentioned, perform her duties for her.
In comparison to the Ombudsman, a citizens’ committee does not enjoy fiscal autonomy but must depend on the generosity of the political branches of government for its personnel and funding. It does not have coercive powers to compel the attendance of witnesses or to hold them in contempt for ignoring or violating its orders. Its actions and orders may be challenged in court, resulting in unnecessary complications and delays.
Moreover, a citizens’ committee merely duplicates unnecessarily the work of another government agency that is well funded and well empowered to deal with the problem more efficiently and speedily. I even think that the creation of such citizens’ committee is an insult to the Ombudsman. It shows utter lack of confidence on her competence and independence to perform her constitutional duties and powers.
My point is that we have enough laws and enough democratic institutions to fight graft and to uphold human rights, like the Ombudsman and the Commission on Audit (COA), not to mention the largely cosmetic Presidential Anti-Graft Commission. What is needed is leadership by example by President Arroyo to stamp out graft, the Office of the Ombudsman’s exercise of its independence and diligence to prosecute monster scalawags and the COA’s dogged insistence on accountability.
Parenthetically, the same insistence should be made on other institutions, like the Supreme Court, the Commission on Elections and the Civil Service Commission to perform their duties without fear or favor and with integrity and devotion.
The problem is that many of our institutions have been metastasized by incompetence, shoddiness, deference to the appointing authority, more than to the Constitution and to the people. Unfortunately, while our Constitution and laws have created laudable democratic institutions and given them sufficient powers to solve the demons of corruption and human rights violations, far too many of the incumbents do not have the moral courage and the competence to perform their mandates. What we need therefore is not a change of Constitutions or laws, but a change of our officials; in fact, not just a change of officials, but a change in our officials from the inside out.
X x x.
For government officials, the ethical standard is contained in Republic Act No. 6713 entitled “An Act Establishing a Code of Conduct and Ethical Standards for Public Officials and Employees x x x.” This law begins with a declaration of policy that “(p)ublic officials and employees shall at all times be accountable to the people and shall discharge their duties with utmost responsibility, integrity, competence and loyalty, act with patriotism and justice, lead modest lives and uphold public interest over private interest.”
In our world of short cuts and make believe, society has bastardized ethics into public relations techniques. Instead of emphasizing the Ethical Standards Law, our so-called leaders display double standards – one for kin and friends, another for the rest of mankind; engage in double speak or talk of one thing and do quite another; employ so called “spin doctors” who try to create an image of public acceptability for their clients without changing old habits and ways.
Such duplicity is fundamentally flawed. Instead of being a beacon of success and happiness, pretension is really a source of anxiety and frustration, because the subject knows that the public image is false and dishonest. It does not represent reality. Yes, duplicity is the opposite of integrity. It is a malaise that befuddles the inner fabric of society and is the cause of many national ills. The game of pretend has been used as a substitute for integrity. As a result, our character as a people has been subverted.
It is interesting to note that more than 90 percent of our people are Christians who profess to know, to follow and to serve Jesus Christ, the God who preached that the truth shall set us free; the God who condemned violence, selfishness and corruption. Why, then, is our country one of the poorest, most graft-ridden and most violent in this part of the world? The answer is that Christians live dichotomized lives; they are Christians only in their thoughts, not in their actions; Christians only in their faith, not in their deeds; Christians only while worshipping inside the churches, not while working in their offices.
X x x.
The solution? A return to ethics – to the “old-fashioned” ethical values of integrity, fidelity, hard work, humility, patriotism, honor and rectitude. To change society, to change our government, we need not just a change of leaders, but a change in leaders from the inside out. The change we are looking for embraces the whole person – head, heart, hands and feet; head so as to know what traits and habits are to be reformed; heart so as to have the will and the courage to change; hands and feet, so as to carry out the reforms willed.
X x x.
X x x.
The World Bank and TI perceive the Philippines as the most graft ridden in East Asia and among the worst in the world. More tellingly, our own people regard the Arroyo administration as the most corrupt in our history. To the question: “In your opinion, under which administration has there been the most intense allegation of corruption?” a Pulse Asia face-to-face survey conducted on October 30-31, 2007 revealed the following replies in percentages: Arroyo administration, 45 percent; Marcos, 31 percent; Estrada, 14 percent; Ramos, 7 percent; Aquino, 1 percent; and none, refused to answer/can’t say, 1 percent.
To the more specific question “In your opinion, which president is the most corrupt in the history of the Philippines?” the answers were: Gloria Arroyo, 42 percent; Ferdinand Marcos, 35 percent; Joseph Estrada, 16 percent; Fidel Ramos, 5 percent; Corazon Aquino, 1 percent; and none/refused to answer/can’t say, 1 percent.
This pitiful corruption perception survey of Pulse Asia must have been triggered by many scandals like the allegedly overpriced P1.2 billion Diosdado Macapagal Boulevard near Manila Bay, the Comelec’s P3 billion three-phased modernization program, the P728 million fertilizer scam, the $503 million North Rail project and the stinking $329 million National Broadband ZTE deal.
The Social Weather Stations Survey of Enterprises on Corruption made a more recent study on graft. On September 9 to October 10, 2008, SWS interviewed managers from 402 different companies in Metro Manila, Cebu City and Davao City. A staggering 71 percent said they were blatantly asked for bribes in connection with their dealings with government, like when they secure business permits, comply with import regulations, pay customs duties and income taxes, supply the government with goods and services, collect government receivables and avail of government incentives.
X x x.
How about in protecting and promoting human rights, what is our government’s track record?
According to Commission on Human Rights Chairperson Leila M. de Lima during her speech commemorating the 60th anniversary of the Universal Declaration of Human Rights last December, our country’s overall record is “dismal.” She deplored the recent resurgence of extra judicial killings and enforced disappearances “with the Armed Forces as the primary suspect.”
She eloquently declared, “We have not seen a single conviction in the cases of extralegal killings, enforced disappearances and torture. We have not seen a sufficient supply of adequate housing for all Filipinos … (or) an equitable distribution of wealth and land…(or) compensation for the injured during operations of State security forces…(or) a lasting peace agreement between the government and the insurgent communities in the South…(or) enough prosecutions by the Ombudsman…(or) the light at the tunnel’s end in our fight against corruption…(or) decent education available to every single Filipino child…(or) speedy justice for the thousands who languish in jails without finality of their court cases…(or) true and equal accessibility to employment for the disabled…(or) the right of suffrage available to all…(or) the full protection of the vote of those who exercise their right to suffrage…(or) the end of the suppression of the freedom of speech, of expression and assembly.”
During the same occasion, Archbishop Angel Lagdameo, the president of the Catholic Bishops Conference of the Philippines, lamented that the observance of Human Rights Day “gives us a feeling of shame and embarrassment because of the innumerable human rights violations that have remained unexamined, unexplained and unsolved or covered up by events.”
The human rights group Karapatan was more specific. According to a news reports printed on December 10, 2008, Karapatan documented 977 victims of extra judicial killings, 1,010 victims of torture and 1,464 victims of illegal arrest during the eight years of the Arroyo administration. During the 10-month period from January to October 2008 alone, there were at least four cases of forced disappearances and 50 victims of extra judicial killings.
The harrowing tale narrated by Raymond Manalo of his, and his brother Reynaldo’s torture (as well as that of missing UP students Karen Empeno and Sherlyn Cadapan) at the hands of the Armed Forces of the Philippines aired in ANC’s “Storyline” two weeks ago should convinced even the most jaded among us of the urgent need to vindicate violations of human rights in our country.
X x x.
In the swirl of this dismal and worsening track record of corruption and human rights violations in our country, what has been the response of our leaders and policy makers?
I am afraid mostly rhetoric, evasiveness and finger-pointing, like calling TI biased and suggesting it had been bought by the opposition, or ignoring the World Bank reports and hoping its jarring findings would slip into oblivion, or proposing some kind of authoritarian rule and shooting drug suspects like Ferdinand Marcos did, or condemning our presidential form of government and instituting the parliamentary system as the end-all remedy to the ills of governance, or dismissing President Obama’s warning and saying that all governments in the world are corrupt anyway (Susmariosep!).
Let me be a little more specific to demonstrate my point. After the drug enforcement officers hurled the current bribery allegations against the prosecutors of the Department of Justice, President Gloria Macapagal Arroyo immediately called for the creation of an independent citizens’ committee to investigate the brouhaha and to recommend punitive actions against the erring officials.
On the surface, this proposal may serve to quiet down public indignation on this issue by shifting attention to the work of the citizens’ committee. But on deeper reflection, I believe that this is not the proper solution. Why should private citizens be given the burden of discharging the responsibility of public officers when there are enough public offices created by the Constitution and given ample powers and prerogatives by law to deal precisely with these shenanigans?
The Office of the Ombudsman was conceived by the Constitution precisely to meet this kind of contingency. This office is mandated to “investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient.”
Ombudsman Merceditas Gutierrez is given not only the responsibility of curbing corruption and violations of human rights but is also granted plenary power “to stop, prevent and correct any abuse or impropriety in the performance of duties.” She could prosecute, suspend, dismiss or otherwise penalize erring officials. Like the judiciary, the Ombudsman enjoys fiscal autonomy and independence. Let the Ombudsman perform her constitutional duty. If she refuses or cannot do so, let her resign or be replaced. But let not civilians, never mind how well intentioned, perform her duties for her.
In comparison to the Ombudsman, a citizens’ committee does not enjoy fiscal autonomy but must depend on the generosity of the political branches of government for its personnel and funding. It does not have coercive powers to compel the attendance of witnesses or to hold them in contempt for ignoring or violating its orders. Its actions and orders may be challenged in court, resulting in unnecessary complications and delays.
Moreover, a citizens’ committee merely duplicates unnecessarily the work of another government agency that is well funded and well empowered to deal with the problem more efficiently and speedily. I even think that the creation of such citizens’ committee is an insult to the Ombudsman. It shows utter lack of confidence on her competence and independence to perform her constitutional duties and powers.
My point is that we have enough laws and enough democratic institutions to fight graft and to uphold human rights, like the Ombudsman and the Commission on Audit (COA), not to mention the largely cosmetic Presidential Anti-Graft Commission. What is needed is leadership by example by President Arroyo to stamp out graft, the Office of the Ombudsman’s exercise of its independence and diligence to prosecute monster scalawags and the COA’s dogged insistence on accountability.
Parenthetically, the same insistence should be made on other institutions, like the Supreme Court, the Commission on Elections and the Civil Service Commission to perform their duties without fear or favor and with integrity and devotion.
The problem is that many of our institutions have been metastasized by incompetence, shoddiness, deference to the appointing authority, more than to the Constitution and to the people. Unfortunately, while our Constitution and laws have created laudable democratic institutions and given them sufficient powers to solve the demons of corruption and human rights violations, far too many of the incumbents do not have the moral courage and the competence to perform their mandates. What we need therefore is not a change of Constitutions or laws, but a change of our officials; in fact, not just a change of officials, but a change in our officials from the inside out.
X x x.
For government officials, the ethical standard is contained in Republic Act No. 6713 entitled “An Act Establishing a Code of Conduct and Ethical Standards for Public Officials and Employees x x x.” This law begins with a declaration of policy that “(p)ublic officials and employees shall at all times be accountable to the people and shall discharge their duties with utmost responsibility, integrity, competence and loyalty, act with patriotism and justice, lead modest lives and uphold public interest over private interest.”
In our world of short cuts and make believe, society has bastardized ethics into public relations techniques. Instead of emphasizing the Ethical Standards Law, our so-called leaders display double standards – one for kin and friends, another for the rest of mankind; engage in double speak or talk of one thing and do quite another; employ so called “spin doctors” who try to create an image of public acceptability for their clients without changing old habits and ways.
Such duplicity is fundamentally flawed. Instead of being a beacon of success and happiness, pretension is really a source of anxiety and frustration, because the subject knows that the public image is false and dishonest. It does not represent reality. Yes, duplicity is the opposite of integrity. It is a malaise that befuddles the inner fabric of society and is the cause of many national ills. The game of pretend has been used as a substitute for integrity. As a result, our character as a people has been subverted.
It is interesting to note that more than 90 percent of our people are Christians who profess to know, to follow and to serve Jesus Christ, the God who preached that the truth shall set us free; the God who condemned violence, selfishness and corruption. Why, then, is our country one of the poorest, most graft-ridden and most violent in this part of the world? The answer is that Christians live dichotomized lives; they are Christians only in their thoughts, not in their actions; Christians only in their faith, not in their deeds; Christians only while worshipping inside the churches, not while working in their offices.
X x x.
The solution? A return to ethics – to the “old-fashioned” ethical values of integrity, fidelity, hard work, humility, patriotism, honor and rectitude. To change society, to change our government, we need not just a change of leaders, but a change in leaders from the inside out. The change we are looking for embraces the whole person – head, heart, hands and feet; head so as to know what traits and habits are to be reformed; heart so as to have the will and the courage to change; hands and feet, so as to carry out the reforms willed.
X x x.
Dismissed
The Supreme Court has dismissed for gross misconduct, gross ignorance of the law, and gross negligence and inefficiency the Presiding Judge of the Olongapo City, Zambales Regional Trial Court, Branch 73.
Parenthetically, the said judge initially heard in Subic the rape case against the Lance Corporal Daniel Smith who had since been convicted by a Makati RTC, and the court stenographer assigned in the same sala for graft and corruption.
In a 28-page consolidated per curiam decision, the Court also ordered the forfeiture of all retirement benefits, excluding accrued leave benefits, and the perpetual disqualification from public office of Judge Renato J. Dilag and Court Stenographer III Concepcion A. Pascua. The case against Pascua was also referred to the Office of the Ombudsman for appropriate action.
The Court, adopting the findings of fact and recommendations of the Investigating Justice, dismissed the administrative charges of graft and corruption against Judge Dilag but found him guilty of serious charges under sec. 8 of Rule 140 of the Rules of Court, namely gross misconduct constituting violations of the Code of Judicial Conduct for signing conflicting decisions and gross ignorance of the law or procedure, as well as gross negligence or inefficiency for failing to administer proper supervision over his staff when a fake registry return receipt and entries of judgment were effected in separate cases.
He was meted the maximum penalty of dismissal because he had already been administratively sanctioned in De Jesus v. Dilag wherein he was fined PhP30,000 also for gross ignorance of the law.
The charges against Dilag and Pascua stemmed from the complaint-affidavit of Court Stenographer Nilda Verginesa-Suarez, also assigned in the same court, who accused of them receiving money from litigants in exchange for favorable judgments in cases for annulment or declaration of nullity of marriage.
Pascua purportedly received the cash payment from the litigants.
The Court noted that in view of the evidence on record, Pascua should be investigated for possible criminal liability for graft and corruption.
The Court dismissed for lack of merit the counter-administrative charges of falsification, negligence in the transcription of stenographic notes, and absence without official leave against Suarez who has since resigned.
(AM No. RTJ-06-2014, Suarez v. Judge Dilag, March 4, 2009)
see:
http://sc.judiciary.gov.ph/news/courtnews%20flash/2009/03/03060901.php
Parenthetically, the said judge initially heard in Subic the rape case against the Lance Corporal Daniel Smith who had since been convicted by a Makati RTC, and the court stenographer assigned in the same sala for graft and corruption.
In a 28-page consolidated per curiam decision, the Court also ordered the forfeiture of all retirement benefits, excluding accrued leave benefits, and the perpetual disqualification from public office of Judge Renato J. Dilag and Court Stenographer III Concepcion A. Pascua. The case against Pascua was also referred to the Office of the Ombudsman for appropriate action.
The Court, adopting the findings of fact and recommendations of the Investigating Justice, dismissed the administrative charges of graft and corruption against Judge Dilag but found him guilty of serious charges under sec. 8 of Rule 140 of the Rules of Court, namely gross misconduct constituting violations of the Code of Judicial Conduct for signing conflicting decisions and gross ignorance of the law or procedure, as well as gross negligence or inefficiency for failing to administer proper supervision over his staff when a fake registry return receipt and entries of judgment were effected in separate cases.
He was meted the maximum penalty of dismissal because he had already been administratively sanctioned in De Jesus v. Dilag wherein he was fined PhP30,000 also for gross ignorance of the law.
The charges against Dilag and Pascua stemmed from the complaint-affidavit of Court Stenographer Nilda Verginesa-Suarez, also assigned in the same court, who accused of them receiving money from litigants in exchange for favorable judgments in cases for annulment or declaration of nullity of marriage.
Pascua purportedly received the cash payment from the litigants.
The Court noted that in view of the evidence on record, Pascua should be investigated for possible criminal liability for graft and corruption.
The Court dismissed for lack of merit the counter-administrative charges of falsification, negligence in the transcription of stenographic notes, and absence without official leave against Suarez who has since resigned.
(AM No. RTJ-06-2014, Suarez v. Judge Dilag, March 4, 2009)
see:
http://sc.judiciary.gov.ph/news/courtnews%20flash/2009/03/03060901.php
Delay and misconduct
Below are two news items from the Philippine Supreme Court. One is about an awardee Metro Manila trial judge who was fined by the Court for undue delay in resolving his pending cases. The other is about a hot-headed provincial judge who was disciplined for vulgar and unbecoming conduct and for bringing a handgun to his sala to intimidate a trial lawyer appearing before his court. Thus:
A Judicial Excellence Award is no shield against administrative liabilities.
Thus the Supreme Court fined 2004 Judicial Excellence Award (JEA) winner Judge Ralph S. Lee of the Quezon City Regional Trial Court, Branch 83 PhP20,000 for failing to decide within the period fixed by law the cases he had left behind when he was a first-level court judge.
Judge Lee, chosen in 2004 as Outstanding First Level Court Judge when he was then Presiding Judge of the Metropolitan Trial Court (MeTC) Quezon City, Branch 38, was also sternly warned that a repetition of the same or similar offense shall dealt with more severely. The Court found Judge Lee liable for undue delay in deciding the cases he had left behind in the MeTC.
Under sec. 9(1), Rule 140 of the Rules of Court, as amended, and sec. 11(b) of the same Rule, undue delay in rendering a decision or order constitutes a less serious charge punishable by suspension from office without salary and other benefits for not less than one month, but not more than three months, or a fine of more than PhP10, 000, but not exceeding PhP20, 000. The Court imposed the maximum fine “in order not to adversely affect” the work of Lee’s sala.
“We deem it appropriate to impose the maximum fine of PhP20, 000 on Judge Lee considering that his transgression touched on parties’ right to the speedy disposition of their cases and that fact that he is already a repeat offender. We note that, as reported by the [Office of Court Administrator] OCA, he had been fined PhP5, 000 for indirect contempt by the Court in an earlier administrative matter,” said the Court in a nine-page decision penned by Justice Arturo D. Brion.
The Court said that the records clearly showed that Lee, following his promotion to the RTC in August 2005, submitted a monthly report containing grossly inaccurate entries, and a certification that he had left no pending cases in the MeTC when he had assumed the RTC post. However, it turned out that he had still three undecided cases.
In another decision, also penned by Justice Brion, the Court imposed a PhP10, 000 fine on Judge Eric F. Menchavez of the Cebu City RTC, Branch 21, for vulgar and unbecoming conduct as a judge. He was also warned that a repetition of the same infraction will be dealt with more severely.
Investigation by the OCA showed that Judge Menchavez had a heated altercation with Atty. Antonio G. Cañeda and that the judge brought a handgun into the courtroom and placed it on his table during a court hearing. Cañeda, however, was given by the Court an admonition that in representing his clients, he should ever be mindful of the respect due to the court and avoid actions bordering on disrespect.
“[T]he judge himself must observe decorum by acting with dignity and courtesy to all those present in the courtroom. This, the respondent judge failed to do. The severity of his violation is not tampered by his allegation that the complainant himself contributed to the events that led to [his] show of temper,” the Court said. (AM No. 06-3-112 MeTC, Re: Cases Left Undecided by Former Judge Ralph S. Lee, MeTC, Branch 38, Quezon City; AM No. RTJ-06-2026, Cañeda v. Judge Menchavez, March 4, 2009).
See:
http://sc.judiciary.gov.ph/news/courtnews%20flash/2009/03/03090901.php
A Judicial Excellence Award is no shield against administrative liabilities.
Thus the Supreme Court fined 2004 Judicial Excellence Award (JEA) winner Judge Ralph S. Lee of the Quezon City Regional Trial Court, Branch 83 PhP20,000 for failing to decide within the period fixed by law the cases he had left behind when he was a first-level court judge.
Judge Lee, chosen in 2004 as Outstanding First Level Court Judge when he was then Presiding Judge of the Metropolitan Trial Court (MeTC) Quezon City, Branch 38, was also sternly warned that a repetition of the same or similar offense shall dealt with more severely. The Court found Judge Lee liable for undue delay in deciding the cases he had left behind in the MeTC.
Under sec. 9(1), Rule 140 of the Rules of Court, as amended, and sec. 11(b) of the same Rule, undue delay in rendering a decision or order constitutes a less serious charge punishable by suspension from office without salary and other benefits for not less than one month, but not more than three months, or a fine of more than PhP10, 000, but not exceeding PhP20, 000. The Court imposed the maximum fine “in order not to adversely affect” the work of Lee’s sala.
“We deem it appropriate to impose the maximum fine of PhP20, 000 on Judge Lee considering that his transgression touched on parties’ right to the speedy disposition of their cases and that fact that he is already a repeat offender. We note that, as reported by the [Office of Court Administrator] OCA, he had been fined PhP5, 000 for indirect contempt by the Court in an earlier administrative matter,” said the Court in a nine-page decision penned by Justice Arturo D. Brion.
The Court said that the records clearly showed that Lee, following his promotion to the RTC in August 2005, submitted a monthly report containing grossly inaccurate entries, and a certification that he had left no pending cases in the MeTC when he had assumed the RTC post. However, it turned out that he had still three undecided cases.
In another decision, also penned by Justice Brion, the Court imposed a PhP10, 000 fine on Judge Eric F. Menchavez of the Cebu City RTC, Branch 21, for vulgar and unbecoming conduct as a judge. He was also warned that a repetition of the same infraction will be dealt with more severely.
Investigation by the OCA showed that Judge Menchavez had a heated altercation with Atty. Antonio G. Cañeda and that the judge brought a handgun into the courtroom and placed it on his table during a court hearing. Cañeda, however, was given by the Court an admonition that in representing his clients, he should ever be mindful of the respect due to the court and avoid actions bordering on disrespect.
“[T]he judge himself must observe decorum by acting with dignity and courtesy to all those present in the courtroom. This, the respondent judge failed to do. The severity of his violation is not tampered by his allegation that the complainant himself contributed to the events that led to [his] show of temper,” the Court said. (AM No. 06-3-112 MeTC, Re: Cases Left Undecided by Former Judge Ralph S. Lee, MeTC, Branch 38, Quezon City; AM No. RTJ-06-2026, Cañeda v. Judge Menchavez, March 4, 2009).
See:
http://sc.judiciary.gov.ph/news/courtnews%20flash/2009/03/03090901.php
Judge
In the very recent case of EDGARDO D. AREOLA (a.k.a. MOHAMMAD KAHDAFFY) vs. JUDGE BAYANI Y. ILANO, Regional Trial Court, Branch 71, Antipolo City, A.M. No. RTJ-09-2163 (Formerly OCA IPI No. 07-2717-RTJ), February 18, 2009, the Philippine Supreme Court reiterated important doctrinal pronouncements which I wish to reproduce here, for legal research purposes of the visitors of this blog. Thus:
1. “In the Memorandum dated January 8, 2009, the Office of the Court Administrator (OCA), clarified that the fact of death of the respondent during the pendency of the case does not render the case moot and academic. The Court retains its jurisdiction either to pronounce the respondent innocent of the charges or declare him guilty thereof. If innocent, respondent merits vindication of his name and integrity; if guilty, he deserves to receive the correspondent censure and penalty proper and imposable under the situation.”
2. “After a perusal of the records, we find complainant’s charges against respondent Judge without basis. The orders which were adverse to the complainant pertained to the adjudicative function of respondent Judge. As a matter of policy, the acts of a judge in his judicial capacity are not subject to disciplinary action, no matter how erroneous, as long as he acts in good faith. In the instant case, the administrative complaint was obviously resorted to when complainant failed to obtain the favorable action he wanted from the court. It must be stressed that the filing of an administrative complaint is not an appropriate remedy where judicial recourse is still available, such as a motion for reconsideration, an appeal, or a petition for certiorari, unless issued or rendered with ill motive. Only judicial errors tainted with fraud, dishonesty, gross ignorance, bad faith or deliberate intent to do an injustice will be administratively sanctioned. In the instant case, there is no proof that the respondent Judge was moved by bad faith when he issued the alleged erroneous orders. Needless to state, bare allegations of bias and partiality will not suffice. There must be clear and convincing proof to overcome the presumption that the judge dispensed justice according to law and evidence, without fear or favor”.
3. “All these notwithstanding, the Court can not gloss over the fact that respondent Judge was remiss in his duty for his failure to resolve the pending motion for reconsideration with dispatch. Under the Constitution, trial judges are given only ninety (90) days from the filing of the last pleading within which to resolve the matter at hand. Rule 3.05, Canon 3 of the Code of Judicial Conduct, likewise, enunciates that judges should administer justice without delay and dispose of the court’s business promptly within the period prescribed by law. When respondent Judge took over the case, the motion for reconsideration had already been long pending and several motions were filed for its urgent resolution. Respondent Judge acted on said motion only after five (5) months from the time the case was assigned to him. Unfortunately, respondent Judge’s explanation on this matter is wanting as he failed to file any comment on the charges hurled against him”.
1. “In the Memorandum dated January 8, 2009, the Office of the Court Administrator (OCA), clarified that the fact of death of the respondent during the pendency of the case does not render the case moot and academic. The Court retains its jurisdiction either to pronounce the respondent innocent of the charges or declare him guilty thereof. If innocent, respondent merits vindication of his name and integrity; if guilty, he deserves to receive the correspondent censure and penalty proper and imposable under the situation.”
2. “After a perusal of the records, we find complainant’s charges against respondent Judge without basis. The orders which were adverse to the complainant pertained to the adjudicative function of respondent Judge. As a matter of policy, the acts of a judge in his judicial capacity are not subject to disciplinary action, no matter how erroneous, as long as he acts in good faith. In the instant case, the administrative complaint was obviously resorted to when complainant failed to obtain the favorable action he wanted from the court. It must be stressed that the filing of an administrative complaint is not an appropriate remedy where judicial recourse is still available, such as a motion for reconsideration, an appeal, or a petition for certiorari, unless issued or rendered with ill motive. Only judicial errors tainted with fraud, dishonesty, gross ignorance, bad faith or deliberate intent to do an injustice will be administratively sanctioned. In the instant case, there is no proof that the respondent Judge was moved by bad faith when he issued the alleged erroneous orders. Needless to state, bare allegations of bias and partiality will not suffice. There must be clear and convincing proof to overcome the presumption that the judge dispensed justice according to law and evidence, without fear or favor”.
3. “All these notwithstanding, the Court can not gloss over the fact that respondent Judge was remiss in his duty for his failure to resolve the pending motion for reconsideration with dispatch. Under the Constitution, trial judges are given only ninety (90) days from the filing of the last pleading within which to resolve the matter at hand. Rule 3.05, Canon 3 of the Code of Judicial Conduct, likewise, enunciates that judges should administer justice without delay and dispose of the court’s business promptly within the period prescribed by law. When respondent Judge took over the case, the motion for reconsideration had already been long pending and several motions were filed for its urgent resolution. Respondent Judge acted on said motion only after five (5) months from the time the case was assigned to him. Unfortunately, respondent Judge’s explanation on this matter is wanting as he failed to file any comment on the charges hurled against him”.
Tuesday, March 10, 2009
Wait and see
In the case of WILHELMINA C. VIRGO, ATTY. OLIVER V. AMORIN, A.C. No. 7861, January 30, 2009, the Philippine Supreme Court in effect applied the doctrine of procedural antecedent or prejudicial question, in its loose sense, when it held that while it is true that disbarment proceedings look into the worthiness of a respondent to remain as a member of the bar, and need not delve into the merits of a related case, however, the Court could not ascertain whether respondent Atty. Oliver Amorin indeed committed acts in violation of his oath as a lawyer concerning the sale and conveyance of the Virgo Mansion without going through the factual matters that were subject of the pending Civil Case No. 01-45798 and its companion cases.
The Court added that as a matter of prudence and so as not to preempt the conclusions that would be drawn by the trial court where the civil case was pending, the Court deemed it wise to dismiss the administrative case against the respondent lawyer without prejudice to the filing of another one, depending on the final outcome of the said civil cases.
In the same decision, the Court clarified when lawyer-client relationship exists. It stated that an attorney-client relationship is said to exist when a lawyer acquiesces or voluntarily permits the consultation of a person, who in respect to a business or trouble of any kind, consults a lawyer with a view of obtaining professional advice or assistance. It is not essential that the client should have employed the lawyer on any previous occasion or that any retainer should have been paid, promised or charged for; neither is it material that the attorney consulted did not afterward undertake the case about which the consultation was had, for as long as the advice and assistance of the attorney is sought and received in matters pertinent to his profession.
However, the Court added that there were instances when it found that no attorney-client relationship existed between the parties, such as when the relationship stemmed from a personal transaction between them rather than the practice of law of respondent or when the legal acts done were only incidental to their personal transaction.
Let me digest the said decision for legal research purposes of the visitors of this blog. Thus:
X x x.
Atty. Salvador B. Hababag, Commissioner of the IBP-CBD, submitted his Report dated January 7, 2008 finding Atty. Amorin guilty of misconduct and recommending his suspension from the practice of law for six months.
Commissioner Hababag found that: Atty. Amorin used his legal knowledge and training to induce complainant to part with her property; Atty. Amorin admitted preparing three deeds of sale, but denies the existence of a fourth one which complainant claims to embody their real intent as to the purchase price; this was Atty. Amorin's scheme to defraud not only complainant but also the government of its taxes from the sale; Atty. Amorin failed to fulfill his promise to pay the purchase price in cash and to pay the P25million balance, issuing three postdated checks which were dishonored, however, due to insufficient funds; Atty. Amorin also intentionally altered his signature on the checks and when complainant tried to collect the balance, Atty. Amorin filed several cases to harass her; Atty. Amorin violated Rule 1.02 of the Code of Professional Responsibility, which provides that “A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system” and Rule 1.01 of the CPR, which states “A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct”; finally, complainant was not a party to CA-GR SP No. 77986; thus, she was not able to defend herself and introduce evidence on her behalf.
X x x.
Atty. Amorin argues that: the IBP Commissioner's Report which the IBP Board of Governors adopted is based solely on the pleadings and documents of complainant which are self-serving and unsupported by official documents; the findings of fact of the IBP crumble when arrayed against the CA Decision dated September 7, 2004 in CA-GR SP No. 77986 which found complainant to have acted in bad faith; his evidence, consisting primarily of the CA Decision in CA-GR SP No. 77986 and the sworn statement of complainant's own husband show the opposite of the IBP's findings of facts, i.e., it was complainant who committed fraud and deceit against him; both documents show that complainant used the property which she already sold to him, as collateral for a new loan of P12M from the BPI; the Counter-Affidavit of Antonio Virgo, as one of the respondents in IS No. 17683, an Estafa and B.P. Blg. 22 case, stated that he and his wife sold the Virgo Mansion to Atty. Amorin for P15M to be paid with FEBTC checks and the assumption of the balance of the complainant's loan with FEBTC; although complainant is not a respondent in CA-GR SP No. 77986, said case is admissible as evidence against her, since the CA case was derived from two other cases in the RTC; Civil Case No. Q-01-45798 and LRC Case No. Q-1538 (02); complainant is a private respondent in Civil Case No. Q-01-45798 pending before Branch 221 of RTC-QC. Atty. Amorin also argues that the facts which are used by the IBP as the basis for placing Atty. Amorin under suspension from the practice of law for one year are the facts in litis in said case; thus, it is premature and improper for the IBP to render the herein assailed Resolution, as it will preempt the findings and decision that the RTC will render in the civil case.
X x x.
The Court finds the petition to be with merit.
First, the existence of an attorney-client relationship between Atty. Amorin and complainant was not established.
An attorney-client relationship is said to exist when a lawyer acquiesces or voluntarily permits the consultation of a person, who in respect to a business or trouble of any kind, consults a lawyer with a view of obtaining professional advice or assistance. It is not essential that the client should have employed the lawyer on any previous occasion or that any retainer should have been paid, promised or charged for; neither is it material that the attorney consulted did not afterward undertake the case about which the consultation was had, for as long as the advice and assistance of the attorney is sought and received in matters pertinent to his profession.
There are instances, however, when the Court finds that no attorney-client relationship exists between the parties, such as when the relationship stemmed from a personal transaction between them rather than the practice of law of respondent or when the legal acts done were only incidental to their personal transaction.
X x x.
While it is true that disbarment proceedings look into the worthiness of a respondent to remain as a member of the bar, and need not delve into the merits of a related case, the Court, in this instance, however, cannot ascertain whether Atty. Amorin indeed committed acts in violation of his oath as a lawyer concerning the sale and conveyance of the Virgo Mansion without going through the factual matters that are subject of the aforementioned civil cases, particularly Civil Case No. 01-45798. As a matter of prudence and so as not to preempt the conclusions that will be drawn by the court where the case is pending, the Court deems it wise to dismiss the present case without prejudice to the filing of another one, depending on the final outcome of the civil case.
X x x.
The Court added that as a matter of prudence and so as not to preempt the conclusions that would be drawn by the trial court where the civil case was pending, the Court deemed it wise to dismiss the administrative case against the respondent lawyer without prejudice to the filing of another one, depending on the final outcome of the said civil cases.
In the same decision, the Court clarified when lawyer-client relationship exists. It stated that an attorney-client relationship is said to exist when a lawyer acquiesces or voluntarily permits the consultation of a person, who in respect to a business or trouble of any kind, consults a lawyer with a view of obtaining professional advice or assistance. It is not essential that the client should have employed the lawyer on any previous occasion or that any retainer should have been paid, promised or charged for; neither is it material that the attorney consulted did not afterward undertake the case about which the consultation was had, for as long as the advice and assistance of the attorney is sought and received in matters pertinent to his profession.
However, the Court added that there were instances when it found that no attorney-client relationship existed between the parties, such as when the relationship stemmed from a personal transaction between them rather than the practice of law of respondent or when the legal acts done were only incidental to their personal transaction.
Let me digest the said decision for legal research purposes of the visitors of this blog. Thus:
X x x.
Atty. Salvador B. Hababag, Commissioner of the IBP-CBD, submitted his Report dated January 7, 2008 finding Atty. Amorin guilty of misconduct and recommending his suspension from the practice of law for six months.
Commissioner Hababag found that: Atty. Amorin used his legal knowledge and training to induce complainant to part with her property; Atty. Amorin admitted preparing three deeds of sale, but denies the existence of a fourth one which complainant claims to embody their real intent as to the purchase price; this was Atty. Amorin's scheme to defraud not only complainant but also the government of its taxes from the sale; Atty. Amorin failed to fulfill his promise to pay the purchase price in cash and to pay the P25million balance, issuing three postdated checks which were dishonored, however, due to insufficient funds; Atty. Amorin also intentionally altered his signature on the checks and when complainant tried to collect the balance, Atty. Amorin filed several cases to harass her; Atty. Amorin violated Rule 1.02 of the Code of Professional Responsibility, which provides that “A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system” and Rule 1.01 of the CPR, which states “A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct”; finally, complainant was not a party to CA-GR SP No. 77986; thus, she was not able to defend herself and introduce evidence on her behalf.
X x x.
Atty. Amorin argues that: the IBP Commissioner's Report which the IBP Board of Governors adopted is based solely on the pleadings and documents of complainant which are self-serving and unsupported by official documents; the findings of fact of the IBP crumble when arrayed against the CA Decision dated September 7, 2004 in CA-GR SP No. 77986 which found complainant to have acted in bad faith; his evidence, consisting primarily of the CA Decision in CA-GR SP No. 77986 and the sworn statement of complainant's own husband show the opposite of the IBP's findings of facts, i.e., it was complainant who committed fraud and deceit against him; both documents show that complainant used the property which she already sold to him, as collateral for a new loan of P12M from the BPI; the Counter-Affidavit of Antonio Virgo, as one of the respondents in IS No. 17683, an Estafa and B.P. Blg. 22 case, stated that he and his wife sold the Virgo Mansion to Atty. Amorin for P15M to be paid with FEBTC checks and the assumption of the balance of the complainant's loan with FEBTC; although complainant is not a respondent in CA-GR SP No. 77986, said case is admissible as evidence against her, since the CA case was derived from two other cases in the RTC; Civil Case No. Q-01-45798 and LRC Case No. Q-1538 (02); complainant is a private respondent in Civil Case No. Q-01-45798 pending before Branch 221 of RTC-QC. Atty. Amorin also argues that the facts which are used by the IBP as the basis for placing Atty. Amorin under suspension from the practice of law for one year are the facts in litis in said case; thus, it is premature and improper for the IBP to render the herein assailed Resolution, as it will preempt the findings and decision that the RTC will render in the civil case.
X x x.
The Court finds the petition to be with merit.
First, the existence of an attorney-client relationship between Atty. Amorin and complainant was not established.
An attorney-client relationship is said to exist when a lawyer acquiesces or voluntarily permits the consultation of a person, who in respect to a business or trouble of any kind, consults a lawyer with a view of obtaining professional advice or assistance. It is not essential that the client should have employed the lawyer on any previous occasion or that any retainer should have been paid, promised or charged for; neither is it material that the attorney consulted did not afterward undertake the case about which the consultation was had, for as long as the advice and assistance of the attorney is sought and received in matters pertinent to his profession.
There are instances, however, when the Court finds that no attorney-client relationship exists between the parties, such as when the relationship stemmed from a personal transaction between them rather than the practice of law of respondent or when the legal acts done were only incidental to their personal transaction.
X x x.
While it is true that disbarment proceedings look into the worthiness of a respondent to remain as a member of the bar, and need not delve into the merits of a related case, the Court, in this instance, however, cannot ascertain whether Atty. Amorin indeed committed acts in violation of his oath as a lawyer concerning the sale and conveyance of the Virgo Mansion without going through the factual matters that are subject of the aforementioned civil cases, particularly Civil Case No. 01-45798. As a matter of prudence and so as not to preempt the conclusions that will be drawn by the court where the case is pending, the Court deems it wise to dismiss the present case without prejudice to the filing of another one, depending on the final outcome of the civil case.
X x x.
Disbarment
In disbarment proceedings, the burden of proof rests on the complainant; and, considering the gravity of the penalty of disbarment or suspension as a member of the Bar, a lawyer may only be disbarred or suspended if there is clear, convincing, and satisfactory proof that he or she committed transgressions defined by the rules as grounds to strip him or her of his professional license.
In the very recent case of CONRADO G. FERNANDEZ vs. ATTY. MARIA ANGELICA P. DE RAMOS-VILLALON, A.C. No. 7084, February 27, 2009, the Philippine Supreme Court dismissed a petition for disbarment against a lawyer, for lack of merit.
Let me digest the doctrinal parts of the abovementioned decision for purposes of legal research of the visitors of this blog. Thus:
X x x.
A lawyer, as an officer of the court, has a duty to be truthful in all his dealings. However, this duty does not require that the lawyer advance matters of defense on behalf of his or her client’s opponent. A lawyer is his or her client’s advocate; while duty-bound to utter no falsehood, an advocate is not obliged to build the case for his or her client’s opponent.
The respondent’s former client, Palacios, approached her to file a complaint for the annulment of the Deed of Donation. This was the cause of action chosen by her client. Assuming arguendo that the respondent knew of the presence of the Deed of Absolute Sale, its existence, is, indeed, a matter of defense for Fernandez. We cannot fault the respondent for choosing not to pursue the nullification of the Deed of Absolute Sale. The respondent alleged that her former client, Palacios, informed her that the Deed of Absolute Sale was void for lack of consideration. Furthermore, unlike the Deed of Donation, the Deed of Absolute Sale was not registered in the Registry of Deeds and was not the basis for the transfer of title of Palacios’ property to Fernandez. Under the circumstances, it was not unreasonable for a lawyer to conclude, whether correctly or incorrectly, that the Deed of Absolute Sale was immaterial in achieving the ultimate goal – the recovery of Palacios’ property.
On the second issue, the petitioner complains that Commissioner Funa failed to consider Heredia’s affidavit of retraction. As a rule, we view retractions with caution; they can be bought and obtained through threats, intimidation, or monetary consideration. The better rule is to examine them closely by considering the original, the new statements and the surrounding circumstances, based on the rules of evidence.
The petitioner raised the retraction for the first time in his Supplemental to (sic) Reply to Comment filed with the Office of the Bar Confidant on November 10, 2006. The petitioner attached Heredia’s affidavit of December 11, 2005 and her affidavit of retraction.
In her affidavit of December 11, 2005, Heredia attested that:
1) Palacios sought her help when a syndicate attempted to grab his land;
2) she referred Palacios to the group of Castro, Fernandez, and Jimenez who were then helping her with her own legal problems;
3) she regretted having referred Palacios to this group as she herself was later “victimized by the group;
4) they made her sign blank papers after gaining her trust and confidence, which signed blanks the group later filled up to make it appear that they bought and paid for her real property;
5) she terminated the services of this group sometime in April 2005; 6) she only recently came to know of this group’s modus operandi; and 7) Palacios eventually became one of the group’s victims.
In her affidavit of retraction, Heredia basically averred that the statements in the affidavit of December 11, 2005 were prepared by Villalon who asked her, in the presence of Palacios, to sign the affidavit; that the affidavit contained lies which she rejected outright, but Palacios and the respondent convinced her that they would only use the affidavit to convince Fernandez to give additional sums of money for Palacios’ property; that Palacios admitted getting a motorcyle from Fernandez; that Palacios had been paid not less than P6,000,000.00 for his property; that the respondent and Palacios used her affidavit in the cases they filed against Fernandez; that this violated their agreement that the affidavit would only be used in their negotiations to get more money for the property; that Palacios admitted to her that he executed a Deed of Absolute Sale with Fernandez; that the execution of the Deed of Donation was his idea; that Palacios had Fernandez’ signature in the Deed of Donation forged and was regretting having done so because Fernandez filed various charges, including perjury, against him; that she executed the affidavit of retraction in the interest of justice, to tell the truth about the circumstances surrounding the affidavit of December 11, 2005, to clear her name, to show that she is not part of the lies concocted by Atty. Villalon and Palacios, and to correct the wrong that was done by the affidavit of December 11, 2005 to the persons of Conrado Fernandez, Romeo Castro, and Atty. Augusto Jimenez, Jr.
In the Mandatory Conference and Hearing held on July 4, 2007, Commissioner Funa asked the respondent, through counsel, whether she wanted to cross-examine Heredia regarding her affidavit of retraction. The respondent passed up the chance for a direct confrontation and opted to adopt her comment as her position paper. In the position paper she submitted on January 14, 2008, she attacked the credibility of Heredia’s affidavit of retraction. She posited that Heredia contradicted herself when she said that she rejected the pre-prepared contents of the first affidavit outright but still signed it; that Heredia’s claim that she had been hoodwinked into signing the first affidavit because she was assured that it was a mere scrap of paper, was unbelievable; and that Heredia failed to rebut her earlier statement that she regretted having referred Fernandez’ group to Palacios because she herself fell victim to the group.
In disbarment proceedings, the burden of proof rests on the complainant. Considering the gravity of the penalty of disbarment or suspension as a member of the Bar, a lawyer may only be disbarred or suspended if there is clear, convincing, and satisfactory proof that he or she committed transgressions defined by the rules as grounds to strip him or her of his professional license.
In this case, we find no clear evidence we can satisfactorily accept showing that the respondent improperly induced Heredia to sign the affidavit of December 11, 2005, as alleged in Heredia’s affidavit of retraction.
First, the original affidavit and the retraction stand uncorroborated by any other evidence and, in our view, stand on the same footing. Neither affidavit provides clear, convincing and satisfactory proof of what they allege. They cannot therefore stand as meritorious basis for an accusation against the respondent.
Second, the allegations in both sworn statements are so contradictory that we can only conclude that Heredia had grossly lied in either or even in both instruments. We find it incredible that Heredia, as stated in her affidavit of retraction, vehemently rejected the statements in the first affidavit, but nevertheless agreed to sign it because it would only be used to aid Palacios in his negotiations with Fernandez. Effectively, she admitted in her retraction that she had lied under oath and entered into a conspiracy to extract additional funds from Fernandez who would not have accepted the demand if they were falsely made. Why she did what she said she did is not at all clear from her retraction, which itself was not convincingly clear on why she was retracting. For this Court to accept a retraction that raises more questions than answers, made by a witness of doubtful credibility allegedly for the sake of truth, is beyond the limits of what this Court can accept.
In these lights, the retraction has no particular relevance so that the Commissioner’s failure to consider it would matter.
X x x.
In the very recent case of CONRADO G. FERNANDEZ vs. ATTY. MARIA ANGELICA P. DE RAMOS-VILLALON, A.C. No. 7084, February 27, 2009, the Philippine Supreme Court dismissed a petition for disbarment against a lawyer, for lack of merit.
Let me digest the doctrinal parts of the abovementioned decision for purposes of legal research of the visitors of this blog. Thus:
X x x.
A lawyer, as an officer of the court, has a duty to be truthful in all his dealings. However, this duty does not require that the lawyer advance matters of defense on behalf of his or her client’s opponent. A lawyer is his or her client’s advocate; while duty-bound to utter no falsehood, an advocate is not obliged to build the case for his or her client’s opponent.
The respondent’s former client, Palacios, approached her to file a complaint for the annulment of the Deed of Donation. This was the cause of action chosen by her client. Assuming arguendo that the respondent knew of the presence of the Deed of Absolute Sale, its existence, is, indeed, a matter of defense for Fernandez. We cannot fault the respondent for choosing not to pursue the nullification of the Deed of Absolute Sale. The respondent alleged that her former client, Palacios, informed her that the Deed of Absolute Sale was void for lack of consideration. Furthermore, unlike the Deed of Donation, the Deed of Absolute Sale was not registered in the Registry of Deeds and was not the basis for the transfer of title of Palacios’ property to Fernandez. Under the circumstances, it was not unreasonable for a lawyer to conclude, whether correctly or incorrectly, that the Deed of Absolute Sale was immaterial in achieving the ultimate goal – the recovery of Palacios’ property.
On the second issue, the petitioner complains that Commissioner Funa failed to consider Heredia’s affidavit of retraction. As a rule, we view retractions with caution; they can be bought and obtained through threats, intimidation, or monetary consideration. The better rule is to examine them closely by considering the original, the new statements and the surrounding circumstances, based on the rules of evidence.
The petitioner raised the retraction for the first time in his Supplemental to (sic) Reply to Comment filed with the Office of the Bar Confidant on November 10, 2006. The petitioner attached Heredia’s affidavit of December 11, 2005 and her affidavit of retraction.
In her affidavit of December 11, 2005, Heredia attested that:
1) Palacios sought her help when a syndicate attempted to grab his land;
2) she referred Palacios to the group of Castro, Fernandez, and Jimenez who were then helping her with her own legal problems;
3) she regretted having referred Palacios to this group as she herself was later “victimized by the group;
4) they made her sign blank papers after gaining her trust and confidence, which signed blanks the group later filled up to make it appear that they bought and paid for her real property;
5) she terminated the services of this group sometime in April 2005; 6) she only recently came to know of this group’s modus operandi; and 7) Palacios eventually became one of the group’s victims.
In her affidavit of retraction, Heredia basically averred that the statements in the affidavit of December 11, 2005 were prepared by Villalon who asked her, in the presence of Palacios, to sign the affidavit; that the affidavit contained lies which she rejected outright, but Palacios and the respondent convinced her that they would only use the affidavit to convince Fernandez to give additional sums of money for Palacios’ property; that Palacios admitted getting a motorcyle from Fernandez; that Palacios had been paid not less than P6,000,000.00 for his property; that the respondent and Palacios used her affidavit in the cases they filed against Fernandez; that this violated their agreement that the affidavit would only be used in their negotiations to get more money for the property; that Palacios admitted to her that he executed a Deed of Absolute Sale with Fernandez; that the execution of the Deed of Donation was his idea; that Palacios had Fernandez’ signature in the Deed of Donation forged and was regretting having done so because Fernandez filed various charges, including perjury, against him; that she executed the affidavit of retraction in the interest of justice, to tell the truth about the circumstances surrounding the affidavit of December 11, 2005, to clear her name, to show that she is not part of the lies concocted by Atty. Villalon and Palacios, and to correct the wrong that was done by the affidavit of December 11, 2005 to the persons of Conrado Fernandez, Romeo Castro, and Atty. Augusto Jimenez, Jr.
In the Mandatory Conference and Hearing held on July 4, 2007, Commissioner Funa asked the respondent, through counsel, whether she wanted to cross-examine Heredia regarding her affidavit of retraction. The respondent passed up the chance for a direct confrontation and opted to adopt her comment as her position paper. In the position paper she submitted on January 14, 2008, she attacked the credibility of Heredia’s affidavit of retraction. She posited that Heredia contradicted herself when she said that she rejected the pre-prepared contents of the first affidavit outright but still signed it; that Heredia’s claim that she had been hoodwinked into signing the first affidavit because she was assured that it was a mere scrap of paper, was unbelievable; and that Heredia failed to rebut her earlier statement that she regretted having referred Fernandez’ group to Palacios because she herself fell victim to the group.
In disbarment proceedings, the burden of proof rests on the complainant. Considering the gravity of the penalty of disbarment or suspension as a member of the Bar, a lawyer may only be disbarred or suspended if there is clear, convincing, and satisfactory proof that he or she committed transgressions defined by the rules as grounds to strip him or her of his professional license.
In this case, we find no clear evidence we can satisfactorily accept showing that the respondent improperly induced Heredia to sign the affidavit of December 11, 2005, as alleged in Heredia’s affidavit of retraction.
First, the original affidavit and the retraction stand uncorroborated by any other evidence and, in our view, stand on the same footing. Neither affidavit provides clear, convincing and satisfactory proof of what they allege. They cannot therefore stand as meritorious basis for an accusation against the respondent.
Second, the allegations in both sworn statements are so contradictory that we can only conclude that Heredia had grossly lied in either or even in both instruments. We find it incredible that Heredia, as stated in her affidavit of retraction, vehemently rejected the statements in the first affidavit, but nevertheless agreed to sign it because it would only be used to aid Palacios in his negotiations with Fernandez. Effectively, she admitted in her retraction that she had lied under oath and entered into a conspiracy to extract additional funds from Fernandez who would not have accepted the demand if they were falsely made. Why she did what she said she did is not at all clear from her retraction, which itself was not convincingly clear on why she was retracting. For this Court to accept a retraction that raises more questions than answers, made by a witness of doubtful credibility allegedly for the sake of truth, is beyond the limits of what this Court can accept.
In these lights, the retraction has no particular relevance so that the Commissioner’s failure to consider it would matter.
X x x.
Notary
Among many Filipinos, the special legal nature of notarized documents is not recognized, in the same way that they dishonor the special value of testimonies under oath given in open court. Many lawyers and notaries public are guilty of such an attitude. It should be noted that under the Rules of Evidence, notarized documents are special public documents that require no tedious proof of due execution and technical authentication unlike private documents.
In the case of AVELINO O. ANGELES, et. al. vs. ATTY. AMADO O. IBAÑEZ, A.C. No. 7860, January 15, 2009, the Philippine Supreme Court found respondent Atty. Amado O. Ibañez GUILTY of notarizing an “Extrajudicial Partition with Absolute Sale” in the absence of the affiants.
The Court SUSPENDED him from the practice of law for one year, REVOKED his incumbent notarial commission, if any, and PROHIBITED him from being commissioned as a notary public for one year, effective immediately, with a stern warning that a repetition of the same or similar offense shall be dealt with more severely.
The said decision is digested below. Thus:
X x x.
In a Report dated 21 January 2008, IBP Commissioner for Bar Discipline Rico A. Limpingco (Commissioner Limpingco) found that respondent notarized the “Extrajudicial Partition with Absolute Sale” in the absence of affiants and without a notarial commission. Thus:
As stated earlier, the present administrative complaint may seem at first to be one for falsification, land grabbing, etc., but a closer examination of the complainants’ allegations coupled with their own verbal confirmation during the Mandatory Conference, shows that the complainants are actually accusing respondent Atty. Amado Ibañez of notarizing an “Extrajudicial Partition with Absolute Sale” in the City of Manila on 18 February 1979 (entered in his Notarial Book as Doc. No. 735, p. 147 and Book No. II, Series of 1979) without requiring the presence of the parties thereto, and further, for notarizing the said document even if he did not have a notarial commission at that time.
The respondent contends that the complainants have previously filed the same administrative complaint against him, docketed as Administrative Case No. 3581, and that the same was eventually dismissed by the Supreme Court. He alleged that as in this prior complaint, the present case must likewise be dismissed for forum shopping.
It appears, however, that Administrative Case No. 3581 is entirely different and distinct from the present complaint. A reading of the photocopy of IBP Board of Governors Resolution dated 27 June 1999, adopting and approving the attached Report and Recommendation of Comm. Victor Fernandez dismissing Administrative Case No. 3581, entitled “Rosalina Angeles, et al. vs. Atty. Amado Ibañez” (as attached by the respondent himself in his Motion to Dismiss) shows that this earlier complaint pertains to herein respondent’s alleged “land-grabbing” of two (2) parcels of land in Bgy. Zapang, Ternate, Cavite. As stated in the report authored by then Commissioner Victor Fernandez, the earlier administrative case relates to the sale of the said property to the Sps. Danilo Andra and Angela Olano, and its subsequent sale to the respondent, Atty. Amado Ibañez, who for his part later applied for, and was granted, free patent titles over the same. Branding the transaction as land-grabbing, the complainants filed an action in court to recover possession and annul the titles but the case was eventually dismissed by the Supreme Court for lack of merit. The complainants then filed the same complaint with the Office of the Ombudsman, the Dept. of Justice, the Bureau of Internal Revenue and the Supreme Court, which eventually referred the matter to the IBP. In his report, then-Commissioner Victor Fernandez declared that the complainants were engaged in forum-shopping, reasoning that unsuccessful in their effort to obtain the result they desire from the courts, they would attempt to refile their dismissed action under the guise of an administrative case.
The present administrative complaint may be in one way or another related to the alleged land-grabbing which was the subject of Administrative Case No. 3581, but it pertains to an altogether different matter. In the present complaint, respondent Atty. Ibañez is not being accused of land-grabbing or falsification, but rather, for misconduct in notarizing a document.
We would point out that respondent Atty. Amado Ibañez admitted that he did not require the presence of the parties to the document because he was assured as to the authenticity of their signatures. We would also stress that the respondent never denied that he notarized the “Extrajudicial Partition with Absolute Sale,” but claimed that he did so not in Manila as stated in document, but in Cavite where he claimed to be a commissioned notary public; he attributed the mistake to his legal secretary, and he insisted that the sale remained valid despite the defects in notarization.
That is not the point, however. The validity of the transaction covered by the “Extrajudicial Partition with Absolute Sale” is not at issue in this administrative case for that is a matter for the courts to adjudicate, if they have not already done so.
As it is, no less than the respondent himself categorically admitted that he notarized the “Extrajudicial Partition with Absolute Sale” in the absence of the parties thereto. To make matters worse, the certifications submitted by the complainants clearly indicate that respondent Atty. Amado Ibañez did not have any notarial commission whether for Manila or Cavite, in 18 February 1979 when he notarized the subject document. The respondent, for his part, has been completely unable to proffer any kind of proof of his claim that he had a commission as a notary public for and in the Province of Cavite in 1979, or of his submission of notarial reports and notarial register during the said period.
x x x
While the case of respondent Atty. Amado Ibañez is not perfectly identical to the facts and circumstances obtaining in these cases, his act of notarizing a document without the necessary commission is nonetheless clear and undeniable. Guided by the foregoing rulings of the Supreme Court vis-a-vis the facts in the present complaint, it is therefore respectfully recommended that respondent Atty. Amado Ibañez:
1. Be barred from being commissioned as a notary public for a period of two (2) years, and in the event that he is presently commissioned as a notary public, that his commission be immediately revoked and suspended for such period; and
2. Be suspended from the practice of law for a period of one (1) year.
Respectfully submitted. (Emphasis added)
X x x.
We sustain the findings of the IBP and adopt its recommendations with modification. Respondent violated his oath as a lawyer and the Code of Professional Responsibility when he notarized the “Extrajudicial Partition with Absolute Sale” in the absence of the affiants.
Respondent Notarized the “Extrajudicial Partition with Absolute Sale”
in the Absence of the Affiants
Respondent himself admits that he merely relied on the representation of Rosalina Angeles that the signatures appearing on the “Extrajudicial Partition with Absolute Sale” subject of the present complaint are those of her co-heirs. Respondent claims that he reposed confidence upon Rosalina Angeles because she is his confidential secretary. Unfortunately for respondent, he cannot exculpate himself from the consequences of his recklessness and his failure to comply with the requirements of the law by relying on his confidential secretary.
Time and again, we have reminded lawyers commissioned as notaries public that the affiants must personally appear before them. Section 1 of Public Act No. 2103, or the Notarial Law, provides:
Sec. 1. (a) The acknowledgement shall be before a notary public or an officer duly authorized by law of the country to take acknowledgements of instruments or documents in the place where the act is done. The notary public or the officer taking the acknowledgement shall certify that the person acknowledging the instrument or document is known to him and that he is the same person who executed it, acknowledged that the same is his free act and deed. The certificate shall be made under the official seal, if he is required by law to keep a seal, and if not, his certificate shall so state.
Section 2(b) of Rule IV of the Rules on Notarial Practice of 2004 reads:
A person shall not perform a notarial act if the person involved as signatory to the instrument or document -
(1) is not in the notary’s presence personally at the time of the notarization; and
(2) is not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by these Rules.
The physical presence of the affiants enables the notary public to verify the genuineness of the signatures of the acknowledging parties and to ascertain that the document is the parties’ free act and deed.
Notarization of a private document converts such document into a public one, and renders it admissible in court without further proof of its authenticity. Courts, administrative agencies and the public at large must be able to rely upon the acknowledgment executed by a notary public and appended to a private instrument. Notarization is not an empty routine; to the contrary, it engages public interest in a substantial degree and the protection of that interest requires preventing those who are not qualified or authorized to act as notaries public from imposing upon the public and the courts and administrative offices generally.
Under the facts and circumstances of the case, respondent’s notarial commission should not only be suspended but respondent must also be suspended from the practice of law.
X x x.
In the case of AVELINO O. ANGELES, et. al. vs. ATTY. AMADO O. IBAÑEZ, A.C. No. 7860, January 15, 2009, the Philippine Supreme Court found respondent Atty. Amado O. Ibañez GUILTY of notarizing an “Extrajudicial Partition with Absolute Sale” in the absence of the affiants.
The Court SUSPENDED him from the practice of law for one year, REVOKED his incumbent notarial commission, if any, and PROHIBITED him from being commissioned as a notary public for one year, effective immediately, with a stern warning that a repetition of the same or similar offense shall be dealt with more severely.
The said decision is digested below. Thus:
X x x.
In a Report dated 21 January 2008, IBP Commissioner for Bar Discipline Rico A. Limpingco (Commissioner Limpingco) found that respondent notarized the “Extrajudicial Partition with Absolute Sale” in the absence of affiants and without a notarial commission. Thus:
As stated earlier, the present administrative complaint may seem at first to be one for falsification, land grabbing, etc., but a closer examination of the complainants’ allegations coupled with their own verbal confirmation during the Mandatory Conference, shows that the complainants are actually accusing respondent Atty. Amado Ibañez of notarizing an “Extrajudicial Partition with Absolute Sale” in the City of Manila on 18 February 1979 (entered in his Notarial Book as Doc. No. 735, p. 147 and Book No. II, Series of 1979) without requiring the presence of the parties thereto, and further, for notarizing the said document even if he did not have a notarial commission at that time.
The respondent contends that the complainants have previously filed the same administrative complaint against him, docketed as Administrative Case No. 3581, and that the same was eventually dismissed by the Supreme Court. He alleged that as in this prior complaint, the present case must likewise be dismissed for forum shopping.
It appears, however, that Administrative Case No. 3581 is entirely different and distinct from the present complaint. A reading of the photocopy of IBP Board of Governors Resolution dated 27 June 1999, adopting and approving the attached Report and Recommendation of Comm. Victor Fernandez dismissing Administrative Case No. 3581, entitled “Rosalina Angeles, et al. vs. Atty. Amado Ibañez” (as attached by the respondent himself in his Motion to Dismiss) shows that this earlier complaint pertains to herein respondent’s alleged “land-grabbing” of two (2) parcels of land in Bgy. Zapang, Ternate, Cavite. As stated in the report authored by then Commissioner Victor Fernandez, the earlier administrative case relates to the sale of the said property to the Sps. Danilo Andra and Angela Olano, and its subsequent sale to the respondent, Atty. Amado Ibañez, who for his part later applied for, and was granted, free patent titles over the same. Branding the transaction as land-grabbing, the complainants filed an action in court to recover possession and annul the titles but the case was eventually dismissed by the Supreme Court for lack of merit. The complainants then filed the same complaint with the Office of the Ombudsman, the Dept. of Justice, the Bureau of Internal Revenue and the Supreme Court, which eventually referred the matter to the IBP. In his report, then-Commissioner Victor Fernandez declared that the complainants were engaged in forum-shopping, reasoning that unsuccessful in their effort to obtain the result they desire from the courts, they would attempt to refile their dismissed action under the guise of an administrative case.
The present administrative complaint may be in one way or another related to the alleged land-grabbing which was the subject of Administrative Case No. 3581, but it pertains to an altogether different matter. In the present complaint, respondent Atty. Ibañez is not being accused of land-grabbing or falsification, but rather, for misconduct in notarizing a document.
We would point out that respondent Atty. Amado Ibañez admitted that he did not require the presence of the parties to the document because he was assured as to the authenticity of their signatures. We would also stress that the respondent never denied that he notarized the “Extrajudicial Partition with Absolute Sale,” but claimed that he did so not in Manila as stated in document, but in Cavite where he claimed to be a commissioned notary public; he attributed the mistake to his legal secretary, and he insisted that the sale remained valid despite the defects in notarization.
That is not the point, however. The validity of the transaction covered by the “Extrajudicial Partition with Absolute Sale” is not at issue in this administrative case for that is a matter for the courts to adjudicate, if they have not already done so.
As it is, no less than the respondent himself categorically admitted that he notarized the “Extrajudicial Partition with Absolute Sale” in the absence of the parties thereto. To make matters worse, the certifications submitted by the complainants clearly indicate that respondent Atty. Amado Ibañez did not have any notarial commission whether for Manila or Cavite, in 18 February 1979 when he notarized the subject document. The respondent, for his part, has been completely unable to proffer any kind of proof of his claim that he had a commission as a notary public for and in the Province of Cavite in 1979, or of his submission of notarial reports and notarial register during the said period.
x x x
While the case of respondent Atty. Amado Ibañez is not perfectly identical to the facts and circumstances obtaining in these cases, his act of notarizing a document without the necessary commission is nonetheless clear and undeniable. Guided by the foregoing rulings of the Supreme Court vis-a-vis the facts in the present complaint, it is therefore respectfully recommended that respondent Atty. Amado Ibañez:
1. Be barred from being commissioned as a notary public for a period of two (2) years, and in the event that he is presently commissioned as a notary public, that his commission be immediately revoked and suspended for such period; and
2. Be suspended from the practice of law for a period of one (1) year.
Respectfully submitted. (Emphasis added)
X x x.
We sustain the findings of the IBP and adopt its recommendations with modification. Respondent violated his oath as a lawyer and the Code of Professional Responsibility when he notarized the “Extrajudicial Partition with Absolute Sale” in the absence of the affiants.
Respondent Notarized the “Extrajudicial Partition with Absolute Sale”
in the Absence of the Affiants
Respondent himself admits that he merely relied on the representation of Rosalina Angeles that the signatures appearing on the “Extrajudicial Partition with Absolute Sale” subject of the present complaint are those of her co-heirs. Respondent claims that he reposed confidence upon Rosalina Angeles because she is his confidential secretary. Unfortunately for respondent, he cannot exculpate himself from the consequences of his recklessness and his failure to comply with the requirements of the law by relying on his confidential secretary.
Time and again, we have reminded lawyers commissioned as notaries public that the affiants must personally appear before them. Section 1 of Public Act No. 2103, or the Notarial Law, provides:
Sec. 1. (a) The acknowledgement shall be before a notary public or an officer duly authorized by law of the country to take acknowledgements of instruments or documents in the place where the act is done. The notary public or the officer taking the acknowledgement shall certify that the person acknowledging the instrument or document is known to him and that he is the same person who executed it, acknowledged that the same is his free act and deed. The certificate shall be made under the official seal, if he is required by law to keep a seal, and if not, his certificate shall so state.
Section 2(b) of Rule IV of the Rules on Notarial Practice of 2004 reads:
A person shall not perform a notarial act if the person involved as signatory to the instrument or document -
(1) is not in the notary’s presence personally at the time of the notarization; and
(2) is not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by these Rules.
The physical presence of the affiants enables the notary public to verify the genuineness of the signatures of the acknowledging parties and to ascertain that the document is the parties’ free act and deed.
Notarization of a private document converts such document into a public one, and renders it admissible in court without further proof of its authenticity. Courts, administrative agencies and the public at large must be able to rely upon the acknowledgment executed by a notary public and appended to a private instrument. Notarization is not an empty routine; to the contrary, it engages public interest in a substantial degree and the protection of that interest requires preventing those who are not qualified or authorized to act as notaries public from imposing upon the public and the courts and administrative offices generally.
Under the facts and circumstances of the case, respondent’s notarial commission should not only be suspended but respondent must also be suspended from the practice of law.
X x x.
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