Volume X, Issue No. 39 July-September 2008

Transcription

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July to September 2008
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PHILJA
PHILJA NEWS
NEWS
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July - September 2008
T O F THE
Volume X, Issue No. 39
2
PHILJA NEWS
X RJCEP (Level 5)
Date conducted: July 1 to 3, 2008
Venue: Hotel Supreme, Baguio City
Participants: 128 Regional Trial Court and First Level
Trial Court judges of the First Judicial Region
X Access to Justice and Code of Conduct for Court
Personnel
Development Partners: European Commission; DSWD;
DOJ; DILG; ALG
Batches 1 and 2
Dates conducted: July 2, 2008; July 3, 2008
Venue: Legend International Resorts, Subic,
Zambales
Participants: 127 and 118 court personnel
Batches 3 and 4
Venue: Bethel Guest House, Dumaguete City
Batches 5 and 6
Venue: Casablanca Hotel, Legazpi City
X 53rd Orientation Seminar-Workshop for Newly
Appointed Judges
Venue: College of Saint Benilde Hotel, Malate, Manila
Participants: 26 judges
A. NEW APPOINTMENTS
REGIONAL TRIAL COURTS
NATIONAL CAPITAL JUDICIAL REGION
Hon. Celso Raymundo L. Magsino, Jr.
RTC Br. 74, Malabon City
Hon. Nancy R. Palmones
RTC Br. 172, Valenzuela City
REGION III
Hon. Virgilita B. Castillo
RTC Br. 12, Malolos, Bulacan
REGION IV
Hon. Wilfredo P. Castillo
RTC Br. 85, Lipa City, Batangas
REGION VI
Hon. Alejandro S. Bahonsua, Jr.
RTC Br. 46, Larena, Siquijor
REGION XI
Hon. Ridgway M. Tanjili
RTC Br. 15, Davao City, Davao del Sur
B. PROMOTED
NATIONAL CAPITAL JUDICIAL REGION
PHILJA Bulletin
Bulletin
PHILJA
Hon. Dinnah Aguila-Topacio
RTC Br. 42, Manila
Hon. Gina M. Bibat-Palamos
RTC Br. 64, Makati City
Hon. Rowena De Juan-Quinagoran
RTC Br. 166, Pasig City
REGION I
Hon.Victor O. Concepcion
RTC Br. 66, San Fernando, La Union
REGION IV
Hon. Carolina F. De Jesus
RTC Br. 9, Balayan, Batangas
Hon. Noel M. Lindog
RTC Br. 13, Lipa City, Batangas
Hon. Romeo L. Villanueva
RTC Br. 60, Lucena City, Quezon
REGION XI
Hon. Jose Emmanuel M. Castillo
METROPOLITAN TRIAL COURTS
Hon. Rosalia I. Hipolito-Bunagan
MeTC Br. 29, Manila
Hon. Emily L. San Gaspar-Gito
MeTC Br. 20, Manila
Hon. Joy N. Casihan-Dumlao
MeTC Br. 72, Pasig City
Hon. Arthur O. Malabaguio
MeTC Caloocan City
Hon. Ma. Ofelia S. Contreras-Soriano
MeTC Br. 55, Malabon City
Hon. Restituto V. Mangalindan, Jr.
MeTC Br. 46, Pasay City
MUNICIPAL TRIAL COURTS IN CITIES
REGION III
Hon. Mary Jane B. Dacara-Buenaventura
MTCC Br. 2, San Fernando City, Pampanga
REGION X
Hon. Dennis B. Castilla
MTCC Br. 1, Butuan City, Agusan del Norte
MUNICIPAL TRIAL COURTS
REGION III
Hon. Myrna S. Lagrosa
MTC Balagtas, Bulacan
REGION IV
Hon. Nilo P. Exchaure
MTC Sto. Tomas, Batangas
Hon. Cornelio A. Sy
MTC San Jose, Mindoro Occidental
MUNICIPAL CIRCUIT TRIAL COURT
REGION I
Hon. Cristeta C. Flores
9th MCTC Tayug-San Nicolas, Pangasinan
3
PHILJA
PHILJA NEWS
NEWS
X Study Program on the Judicial Help-Book on R.A.
X 16th Pre-Judicature Program
No. 9208 (Anti-Trafficking Persons Act of 2003)
Development Partners: USAID; ROLE
Venue: Montevista Villas, Mimosa Golf and Country
Club, Pampanga
Date conducted: August 4 to 14, 2008
Venue: Plaza Maria Luisa Suites Inn, Dumaguete City
Participants: 46 lawyers
X Multi-Sectoral Consultative Workshop on the
Manual and Training Design for Green Courts
Development Partners: ASOG; US-DOI; USAID; AECEN;
PTFCF
Venue: The Pearl Manila Hotel, Manila
Participants: 34 comprising Court of Appeals Justices,
Environmental Court judges, prosecutors,
Environmental Law practitioners, and representatives
from OSG, DENR, BFAD and PNP.
X RJCEP (Level 5)
Venue: Crown Regency Hotel, Fuente Osmena, Cebu City
Trial Court Judges of Region VII
X Personal Security Training for Judges
Development Partners: OCA; NBI
Venue: Waterfront Insular Hotel, Davao City
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Edwin B. Abil
Juditho J. Agan
Thelma C. Aguilar-Barot
Maria Angelita B. Alcoran
Ulysses C. Andora
Alvin A. Aseniero
Nerio Narciso B. Bulado
Maria Antonia L. Bulado
Biena Marieta C. Cabusao
Ellen A. Calingacion
Beth-Nectarine G. Catacutan-Andora
Lalaine E. Cimafranca
Martin Gerard S. Cornelio
Angela Charina M. Cortes
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Noel Darren Cenit Damian
Aileen Liza Mamasabulod David
Ma. Wengel Lou S. Dimalig
May FlorV. Duka
Don Ada Dupio
Ramon Eduardo C. Elesteria
Marie Liza Chagas Fallorin
Gloria G. Futalan
Maria Corazon Calimbayan Gadugdug
Philger Noel Inovejas
Alejandro D. Jovellar
Bienvenido B. Llanes, Jr.
Julito N. Lumusad
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PHILJA NEWS
Leonardo E. Mandajoyan
Allan C. Martinez
Amelia Lourdes U. Mendoza
Jose Ramon M. Nakao
Leah M. Nazareno
Joel C. Obar
Eva Fel C. Pacurib
John Iggy G. Pallera
Ma. Anna Priscila M. Pareja
Rolando A. Piñero
Eugene D. Salon
Leo L. Señires
Christopher Tomaneng Singson
Whelma F. Siton-Yap
Ronald R. Tenaja
Tabitha E. Tinagan
Ernesto Leonardo G. Valencia
Edna S. Villamil
Ernesto S. Yee
PHILJA Bulletin
Bulletin
PHILJA
X Fourth Distinguished Lecture, Series of 2008
Topic: Customary International Humanitarian law:
(ILHL): Issues on State Responsibility and Command
Responsibility
Lecturer: Dr. Jean-Marie Henckaerts, Head of
Customary International Humanitarian Law Project
of the International Committee of the Red Cross
Development Partner: ICRC
Date conducted: August 13, 2008
Venue: Court of Appeals Auditorium
Participants: members of the Judiciary, members of the
diplomatic corps, Supreme Court officials, PHILJA
officials and Corps of Professors, court attorneys,
lawyers, law professors and law students
X Seminar-Workshop on Managing Environmental
Cases
Development Partners: USEPA; USAID; AECEN
Venue: Traders Hotel, Pasay City
Participants: 25 comprising Environmental Court
judges, prosecutors and representatives from DENR
X Multi-Sectoral and Skills-Building Seminar-
X Roundtable Discussion on Public and Private
Workshop on Human Rights Issues: Extralegal Killings
and Enforced Disappearances
Development Partners: CHR; USAID; TAF
Venue: Marco Polo Plaza, Cebu City
Participants: 61 comprising judges, public attorneys,
prosecutors and others stakeholders of Region VII
(Batch 1)
International Law Issues for the Philippine Judiciary
Development Partners: Ateneo Law School, Center for
International Economic Law; British Embassy
Venue: Pan Pacific Hotel, Manila
Participants: 34 comprising members of the Judiciary
and PHILJA Training Team
PHILJA
PHILJA NEWS
NEWS
X 12th Orientation Seminar-Workshop for Newly
Appointed Clerks of Court
Venue: Hotel Fortuna, Cebu City
Participants: 22 newly appointed clerks of court
REGION VI
Atty. Jena Esther G. Agustin
RTC Br. 56, Himamaylan, Negros Occidental
Atty. Raincelle D. Omayao
RTC OCC, Iloilo City
REGION VII
Atty. Alfredo Y. Arreza, Jr.
RTC Br. 50, Laoay, Bohol
Atty. Hazel A. Betco
RTC Br. 1, Tagbilaran City, Bohol
Atty. Joan S. Calipes
RTC Br. 16, Cebu City
Atty. Christine D. Doller
RTC Br. 6, Cebu City
Atty. Bienvenido B. Llanes, Jr.
RTC Br. 35, Dumaguete City, Negros Oriental
Atty. Ruben Jay G. Medina
Atty. Maria Cristina P. Tecson
REGION VIII
Atty. Shirley Joyce O. Bohol
RTC OCC, Calbayog City, Samar
Atty. Phenalyn P. Brazil-Abellar
RTC Br. 13, Carigara, Leyte
Atty. Rona Pecayo-Diongzon
RTC Br. 16, Naval, Biliran
Atty. Michelle Marie P. Polo-Tesorero
RTC Br. 14, Baybay, Leyte
REGION X
Atty. Claudine Ann L. Calo
RTC OCC, Butuan City
Atty. Glerma C. Catotal-Cabrera
RTC Br. 23, Cagayan de Oro City
Atty. Galerie Gee Y. Flores
RTC Br. 14, Oroquieta City, Misamis Occidental
Atty. Gregory A. Macoy
RTC Br. 12, Oroquieta City, Misamis Occidental
REGION XI
Atty. Jimmy B. Boco
RTC Br. 30, Tagum City, Davao del Norte
Atty. Catherine M. Guerzo
5
FIRST LEVEL TRIAL COURTS
REGION II
Ms. Karen L. Oleriana
MCTC, Amulung-Iguig, Cagayan
REGION VI
Ms. Rosalinda C. Caduhada
MCTC, Isabela-Moises Padilla, Negros Occidental
REGION IX
Mr. Abraham M. Hakim
MTCC OCC, Zamboanga City
X RJCEP (Level 5)
Venue: Waterfront Insular Hotel, Davao City
Trial Court Judges of the 11th Judicial Region
X Personal Security Training for Judges
Development Partners: OCA; NBI
Venue: Hotel Veniz, Baguio City
X Multi-Sectoral and Skills-Building SeminarWorkshop on Human Rights Issues: Extralegal Killings
and Enforced Disappearances
Development Partners: CHR; USAID; TAF
Venue: MetroCentre Hotel and Convention Center, Bohol
Participants: 45 comprising judges, public attorneys,
prosecutors and others stakeholders of Region VII
(Batch 2)
X 10th Convention-Seminar of the Metropolitan Trial
Court Judges (METCJAP)
Theme: Strong Judiciary: Facing the Challenges of the
Times
Date conducted: September 1 to 5, 2008
Venue: Bacolod Pavilion Hotel, Bacolod City
Participants: 128 metropolitan trial court judges
X Seminar-Workshop on CEDAW and Gender
Sensitivity for Sandiganbayan Employees
Development Partners: CGRJ; Sandiganbayan; AHRC
Date conducted: September 11, 2008
Venue: Sandiganbayan, Quezon City
Participants: 49 Sandiganbayan personnel
6
PHILJA Bulletin
Bulletin
PHILJA
PHILJA NEWS
X Roundtable Discussion of Women Leaders in
Biodiversity Conservation
Presenters: H.E. Kristie A. Kenney, US Embassy;
Ombudsman Merceditas Gutierrez; Undersecretary
Mary Ann Lucille L. Sering, DENR; Senior Justice Portia
Aliño Hormachuelos, Court of Appeals; Chancellor
Ameurfina A. Melencio Herrera, PHILJA; Governor
Maria Gracia Cielo Padaca, Isabela; Governor Vilma
Santos-Recto, Batangas; Director Theresa Mundita S.
Lim, PAWB; and Director Rosa F. Macas, BFAR
Development Partners: USAID; US-DOI
Venue: Pan Pacific Hotel, Manila
Participants: 65 comprising selected Metro Manila
judges, representatives of NGOs, and representatives
of government agencies and local government units
X MEDIATION
Advanced Course for Mediators
La Union Mediation Program
Date conducted: July 3, 2008
Venue: Hotel Ariana, La Union
Cebu Mediation Program
Leyte Mediation Program
Venue: Hotel Alejandro, Tacloban City
Bulacan Mediation Program and Program
Assessment on Court-Annexed Advanced
Courts for Mediators
Venue: Justice’s Lounge, Supreme Court,
Manila
Davao Mediation Program
Venue: Waterfront Hotel, Davao City
Cagayan Mediation Program
Venue: Villa Blanca Hotel, Tuguegarao City
Program Assessment on Court-Annexed
Mediation with Judges, Clerks of Court, Branch
Clerks of Court, and Selected Stakeholders
Venue: Hotel Ariana, La Union
X International Conference on the International
Criminal Court
Development Partner: Italian Embassy in Manila
Venue: Renaissance Makati City Hotel, Makati City
Participants: 374 comprising members of the Judiciary,
representatives from the Office of the President, Senate,
House of Representatives, CHR, DFA, DOJ, DND, DILG,
AFP, NBI, IBP, and faculty and students from different
universities.
X Seminar-Workshop on the Rule of Procedure for
Small Claims
Development Partners: OCA; USAID; ABA-ROLI
Venue: Manila Pavilion Hotel, Manila
Venue: Hotel Alejandro, Tacloban City
Venue: Waterfront Hotel, Davao City
Orientation Conference with Stakeholders on
Court-Annexed Mediation
Pangasinan Mediation Program
Venue: Pangasinan Regency Hotel,
Pangasinan
7
PHILJA
PHILJA NEWS
NEWS
Oath-Taking of Tuguegarao Mediators and
Program Assessment on Court-Annexed Mediation
with Judges, Clerks of Court, Branch Clerks of Court
and Selected Stakeholders
Cagayan Mediation Program
Venue: Hall of Justice and Villa Blanca Hotel,
Tuguegarao City
Basic Mediation Course
Pangasinan Mediation Program
Venue: Hotel Consuelo Resort and Chinese
Restaurant, Pangasinan
Pre-Settlement Period Orientation with Judge,
Clerks of Court, Branch Clerks of Court and
Mediators
Venue: Hotel Ariana, Bauang, La Union
Benguet Mediation Program
Venue: Hotel Veniz, Baguio City
Bulacan Mediation Program
Venue: Barcie International Center, Bulacan
Pampanga Mediation Program
Venue: Oasis Hotel, Pampanga
Manila Mediation Program
Batch 1
Venue: Trader’s Hotel, Pasay City
Batch 2
Venue: Golden Apple Seafood Restaurant,
Caloocan City
Batch 3
Venue: Bayview Park Hotel, Manila
Batch 4
Venue: Camelot Hotel, Quezon City
Batangas Mediation Program
Venue: Batangas Country Club,
Batangas City
Negros Occidental Mediation Program
Venue: Bacolod Pavilion Resort Hotel
Restaurant, Bacolod City
Venue: Montebello Villa Hotel, Cebu City
Venue: Tacloban Celebrity Plaza,
Tacloban City
Misamis Oriental Mediation Program
Venue: Dynasty Court Hotel, Cagayan de Oro
City
South Cotabato Mediation Program
Venue: Casa Luisa Restaurant, General
Santos City
Venue: Grand Menseng Hotel, Davao City
Zamboanga Mediation Program
Venue: Grand Astoria Hotel and Restaurant,
Zamboanga City
JUSTICE AMEURFINA A. MELENCIO HERRERA
Chancellor, Philippine Judicial Academy
PROFESSOR SEDFREY M. CANDELARIA
Editor-in-Chief
ARMIDA M. SALAZAR
Assistant Editor
ATTY. ORLANDO B. CARIÑO
JOCELYN D. BONDOC
CHRISTINE A. FERRER
MA. INA D. MACARIOLA
JENIFFER P. SISON
Editorial Staff
SARAH JANE S.SALAZAR
Circulation
EDMUNDO M. MOREDO
LETICIA G. JAVIER
Printing Services
The PHILJA Bulletin is published quarterly by the
Research, Publications, and Linkages Office of the
Philippine Judicial Academy, with office at the 3rd
Floor of the Supreme Court Centennial Building,
Padre Faura Street cor. Taft Avenue, Manila.
Telephone No. 552-9524; Telefax No. 552-9621
E-mail address: research_philja@yahoo.com
Website address:http://philja.judiciary.gov.ph
8
NEW RULINGS OF THE SUPREME COUR
T
COURT
PHILJA Bulletin
Bulletin
PHILJA
POLITICAL LAW
Only Congress can create provinces and cities
The Supreme Court ruled that Section 19, Article
VI of R.A. No. 9054, insofar as it grants to the ARMM
Regional Assembly the power to create provinces and
cities, is void for being contrary to Section 5 of Article
VI and Section 20 of Article X of the Constitution, as
well as Section 3 of the Ordinance appended to the
Constitution. Only Congress can create provinces
and cities because the creation of provinces and cities
necessarily includes the creation of legislative
districts, a power only Congress can exercise under
Section 5, Article VI of the Constitution and Section 3
of the Ordinance appended to the Constitution. The
ARMM Regional Assembly cannot create a province
without a legislative district because the Constitution
mandates that every province shall have a legislative
district. Moreover, the ARMM Regional Assembly
cannot enact a law creating a national office like the
office of a district representative of Congress because
the legislative powers of the ARMM Regional
Assembly operate only within its territorial
jurisdiction as provided in Section 20, Article X of the
Constitution. Thus, the Supreme Court ruled that
MMA Act 201, enacted by the ARMM Regional
Assembly and creating the Province of Shariff
Kabunsuan, is void.
Carpio, J., Bai Sandra S.A. Sema, petitioner, v.
Commission on Elections and Didagen P. Dilangalen,
G.R. No. 177597 and 178628, July 16, 2008.)
ELECTION LAW
Condition before a Filipino of dual citizenship can
qualify to run for an elective office
R.A. No. 9225 expressly provides for the conditions
before those who re-acquired Filipino citizenship may
run for a public office in the Philippines. Section 5 of
the said law states:
Section 5. Civil and Political Rights and
Liabilities. -- Those who retain or re-acquire
Philippine citizenship under this Act shall
enjoy full civil and political rights and be
subject to all attendant liabilities and
responsibilities under existing laws of the
Philippines and the following conditions:
xxxx
(2) Those seeking elective public office in the
Philippines shall meet the qualification for
holding such public office as required by the
Constitution and existing laws and, at the time
of the filing of the certificate of candidacy,
make a personal and sworn renunciation of
any and all foreign citizenship before any
public officer authorized to administer an
oath. (Emphasis added)
Petitioner re-acquired his Filipino citizenship
under the cited law. This new law explicitly provides
that should one seek elective public office, he should
first “make a personal and sworn renunciation of any
and all foreign citizenship before any public officer
authorized to administer an oath.”
Petitioner failed to comply with this requirement.
We quote with approval the COMELEC observation
on this point:
While respondent was able to regain his
Filipino Citizenship by virtue of the Dual
Citizenship Law when he took his oath of
allegiance before the Vice Consul of the
Philippine Consulate General’s Office in Los
Angeles, California, the same is not enough to
allow him to run for a public office. The abovequoted provision of law mandates that a
candidate with dual citizenship must make a
personal and sworn renunciation of any and
all foreign citizenship before any public officer
authorized to administer an oath. There is no
evidence presented that will show that
respondent complied with the provision of
R.A. No. 9225. Absent such proof we cannot
allow respondent to run for Barangay
Chairman of Barangay Bagacay.
For the renunciation to be valid, it must be
contained in an affidavit duly executed before
an officer of law who is authorized to
administer an oath. The affiant must state in
clear and unequivocal terms that he is
renouncing all foreign citizenship for it to be
effective. In the instant case, respondent
Lopez’s failure to renounce his American
citizenship as proven by the absence of an
affidavit that will prove the contrary leads this
Commission to believe that he failed to
comply with the positive mandate of law. For
failure of respondent to prove that he
abandoned his allegiance to the United States,
this Commission holds him disqualified from
running for an elective position in the
Philippines. (Emphasis added)
(Reyes, R.T., J., Eusebio Eugenio K. Lopez v. Commission
on Elections and Tessie P. Villanueva, G.R. No. 182701,
July 23, 2008.)
July -- September
September 2008
2008
July
DOCTRINAL
REMINDERS
PHILJA NEWS
9
CIVIL LAW
Contract of Sale and Contract to Sell distinguished
The difference between contracts of sale and
contracts to sell is relevant. In a contract of sale, the
title to the property passes to the vendee upon the
delivery of the thing sold; in a contract to sell,
ownership is, by agreement, reserved in the vendor
and is not to pass to the vendee until full payment of
the purchase price. Otherwise stated, in a contract of
sale, the vendor loses ownership over the property
and cannot recover it until and unless the contract is
resolved or rescinded; whereas in a contract to sell,
title is retained by the vendor until full payment of
the price. In the latter contract, payment of the price is
a positive suspensive condition, failure of which is not
a breach but an event that prevents the obligation of
the vendor to convey title from becoming effective.
A careful reading of the stipulations in the Deed of
Conditional Sale conveys the intent of the parties to enter
into a contract to sell. The fourth paragraph of the
contract explicitly states that only when full payment
of the purchase price is made shall Antonio execute
the deed of absolute sale transferring and conveying
his shares in the subject properties. Clearly, the intent
is to reserve ownership in the seller, Antonio, until
the buyer, Titan, pays in full the purchase price. The
full payment of the purchase price does not
automatically vest ownership in Titan. A deed of
absolute sale still has to be executed by Antonio.
(Tinga, J., Heirs of Antonio F. Bernabe (namely: Evelyn
C. Vda. De Bernabe and Jose III, Shirley Ann, Gregory,
Alexander, and Michael, all surnamed Bernabe) v.
Court of Appeals and Titan Construction Corporation,
G.R. No. 154402, July 21, 2008.)
MERCANTILE LAW
Warsaw Convention; its applicability and limitations
The Warsaw Convention applies to “all
international transportation of persons, baggage or
goods performed by any aircraft for hire.” It seeks to
accommodate or balance the interests of passengers
seeking recovery for personal injuries and the
interests of air carriers seeking to limit potential
liability. It employs a scheme of strict liability favoring
passengers and imposing damage caps to benefit air
carriers. The cardinal purpose of the Warsaw
Convention is to provide uniformity of rules governing
claims arising from international air travel; thus, it
precludes a passenger from maintaining an action for
personal injury damages under local law when his or
her claim does not satisfy the conditions of liability
under the Convention.
Article 19 of the Warsaw Convention provides
for liability on the part of a carrier for “damages
occasioned by delay in the transportation by air of
passengers, baggage or goods.” Article 24 excludes
other remedies by further providing that “(1) in the
cases covered by Articles 18 and 19, any action for
damages, however founded, can only be brought
subject to the conditions and limits set out in this
convention.” Therefore, a claim covered by the
Warsaw Convention can no longer be recovered under
local law, if the statute of limitations of two years has
already lapsed.
Nevertheless, the Court notes that jurisprudence
in the Philippines and the United States also
recognizes that the Warsaw Convention does not
“exclusively regulate” the relationship between
passenger and carrier on an international flight. The
Court finds that the present case is substantially
similar to cases in which the damages sought were
considered to be outside the coverage of the Warsaw
Convention.
In United Airlines v. Uy, the Court distinguished
between the (1) damage to the passenger’s baggage
and (2) humiliation he suffered at the hands of the
airline’s employees. The first cause of action was
covered by the Warsaw Convention which prescribes
in two years, while the second was covered by the
provisions of the Civil Code on torts, which prescribes
in four years.
Similar distinctions were made in American
jurisprudence. In Mahaney v. Air France, a passenger
was denied access to an airline flight between New
York and Mexico, despite the fact that she held a
confirmed reservation. The court therein ruled that if
the plaintiff were to claim damages based solely on
the delay she experienced – for instance, the costs of
renting a van, which she had to arrange on her own
as a consequence of the delay – the complaint would
be barred by the two-year statute of limitations.
However, where the plaintiff alleged that the airlines
subjected her to unjust discrimination or undue or
unreasonable preference or disadvantage, an act
punishable under the United States laws, then the
plaintiff may claim purely nominal compensatory
damages for humiliation and hurt feelings, which are
not provided for by the Warsaw Convention. In
another case, Wolgel v. Mexicana Airlines, the court
pronounced that actions for damages for the
“bumping off ” itself, rather than the incidental
damages due to the delay, fall outside the Warsaw
Convention and do not prescribe in two years.
10
DOCTRINAL REMINDERS
PHILJA Bulletin
Bulletin
PHILJA
MERCANTILE LAW (continued)
In the Petition at bar, private respondent’s
Complaint alleged that both PAL and Singapore
Airlines were guilty of gross negligence, which
resulted in his being subjected to “humiliation,
embarrassment, mental anguish, serious anxiety, fear
and distress.” The emotional harm suffered by the
private respondent as a result of having been
unreasonably and unjustly prevented from boarding
the plane should be distinguished from the actual
damages which resulted from the same incident.
Under the Civil Code provisions on tort, such
emotional harm gives rise to compensation where
gross negligence or malice is proven.
The instant case is comparable to the case of
Lathigra v. British Airways.
(Chico-Nazario, J. Philippine Airlines, Inc. v. Hon.
Adriano Savillo, Presiding Judge of RTC Branch 30,
Iloilo City, and Simplicio Griño, G.R. No. 149547, July
4, 2008.)
REMEDIAL LAW
Requirement of Notice and hearing in motions filed
As the Court declared in New Japan Motors, Inc. v.
Perucho:
Under Sections 4 and 5 of Rule 15 of the Rules of
Court, x x x a motion is required to be accompanied
by a notice of hearing which must be served by
the applicant on all parties concerned at least
three days before the hearing thereof. Section 6
of the same rule commands that ‘(n)o motion shall
be acted upon by the Court, without proof of
service of the notice thereof x x x.’ It is therefore
patent that the motion for reconsideration in
question is fatally defective for it did not contain
any notice of hearing. We have already
consistently held in a number of cases that the
requirements of Sections 4, 5 and 6 of Rule 15 of
the Rules of Court are mandatory and that failure
to comply with the same is fatal to movant’s cause.
Since the assailed motion of the respondent failed
to comply with Sections 4 and 5 of Rule 15 of the
Revised Rules of Court, the MTC, therefore, had no
jurisdiction to act upon it. Such motion is nothing but
a piece of paper unworthy of judicial cognizance.
Hence, the MTC, in receiving and granting such motion,
committed patent errors that must accordingly be
rectified. Thus, the Orders dated 22 October 1997, 23
October 1997, and 10 August 1998 issued by the MTC
are null and void and must be set aside.
(Chico-Nazario, J., Solar Resources, Inc. v. Inland
Trailways, Inc., G.R. No. 173566, July 4, 2008.)
Submission of Memorandum
In Enriquez v. Court of Appeals, the Court further
elucidated on the meaning and consequence of the
provisions of Section 7(b), Rule 40 of the Rules of Court,
to wit:
Rule 40, Section 7 (b) provides that, “it shall be
the duty of the appellant to submit a
memorandum” and failure to do so “shall be a
ground for dismissal of the appeal.” The use of
the word “shall” in a statute or rule expresses
what is mandatory and compulsory. Further, the
Rule imposes upon an appellant the “duty” to
submit his memorandum. A duty is a “legal or
moral obligation, mandatory act, responsibility,
charge, requirement, trust, chore, function,
commission, debt, liability, assignment, role,
pledge, dictate, office, (and) engagement.” Thus,
under the express mandate of said Rule, the
appellant is duty-bound to submit his
memorandum on appeal. Such submission is not
a matter of discretion on his part. His failure to
comply with this mandate or to perform said duty
will compel the RTC to dismiss his appeal.
In rules of procedure, an act which is
jurisdictional, or of the essence of the
proceedings, or is prescribed for the protection
or benefit of the party affected is mandatory. As
private respondent points out, in appeals from
inferior courts to the RTC, the appellant’s brief is
mandatory for the assignment of errors is vital
to the decision of the appeal on the merits. This is
because on appeal only errors specifically
assigned and properly argued in the brief or
memorandum will be considered, except those
affecting jurisdiction over the subject matter as
well as plain and clerical errors. Otherwise stated,
an appellate court has no power to resolve an
unassigned error, which does not affect the
court’s jurisdiction over the subject matter, save
for a plain or clerical error.
It is true that the Rules should be interpreted so
as to give litigants ample opportunity to prove
their respective claims and that a possible denial
of substantial justice due to legal technicalities
should be avoided. But it is equally true that an
appeal being a purely statutory right, an
appealing party must strictly comply with the
requisites laid down in the Rules of Court. In
other words, he who seeks to avail of the right to
appeal must play by the rules. This the petitioner
failed to do when she did not submit her
memorandum of appeal in Civil Case No. 12044
as required by Rule 40, Section 7 of the 1997 Rules
of Civil Procedure. That she lost her case is not
the trial court’s fault but her own.
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REMEDIAL LAW (continued)
The aforequoted ruling of the Court was reiterated
in the more recent case of Gonzales v. Gonzales, G.R. No.
151376, February 22, 2006, 483, SCRA 57, 66-69.
(Austria-Martinez, J., Dr. Lorna Villa v. Heirs of Enrique
Altavas, namely: Enrique Altavas II, Erlinda Liboro
and Maria A. de Jesus, G.R. No. 162028, July 14, 2008.)
Issue of jurisdiction cannot be waived
The general rule should, however, be, as it has
always been, that the issue of jurisdiction may be raised at
any stage of the proceedings, even on appeal, and is not lost by
waiver or by estoppel. Estoppel by laches, to bar a litigant from
asserting the court’s absence or lack of jurisdiction, only
supervenes in exceptional cases similar to the factual milieu of
Tijam v. Sibonghanoy. Indeed, the fact that a person
attempts to invoke unauthorized jurisdiction of a
court does not estop him from thereafter challenging
its jurisdiction over the subject matter, since such
jurisdiction must arise by law and not by mere consent
of the parties. This is especially true where the person
seeking to invoke unauthorized jurisdiction of the court
does not thereby secure any advantage or the adverse
party does not suffer any harm.
Applying the said doctrine to the instant case, the
petitioner is in no way estopped by laches in assailing
the jurisdiction of the RTC, considering that he raised
the lack thereof in his appeal before the appellate court.
At that time, no considerable period had yet elapsed
for laches to attach. True, delay alone, though
unreasonable, will not sustain the defense of “estoppel
by laches” unless it further appears that the party, knowing
his rights, has not sought to enforce them until the condition of
the party pleading laches has in good faith become so changed
that he cannot be restored to his former state, if the rights be
then enforced, due to loss of evidence, change of title,
intervention of equities, and other causes. In applying the
principle of estoppel by laches in the exceptional case
of Sibonghanoy, the Court therein considered the patent
and revolting inequity and unfairness of having the
judgment creditors go up their Calvary once more after
more or less 15 years. The same, however, does not
obtain in the instant case.
We note at this point that estoppel, being in the
nature of a forfeiture, is not favored by law. It is to be
applied rarely—only from necessity, and only in
extraordinary circumstances. The doctrine must be
applied with great care and the equity must be strong
in its favor. When misapplied, the doctrine of estoppel
may be a most effective weapon for the
accomplishment of injustice. Moreover, a judgment
rendered without jurisdiction over the subject matter
is void. Hence, the Revised Rules of Court provides for
remedies in attacking judgments rendered by courts
or tribunals that have no jurisdiction over the
concerned cases. No laches will even attach when the
judgment is null and void for want of jurisdiction. As
we have stated in Heirs of Julian Dela Cruz and Leonora
Talaro v. Heirs of Alberto Cruz,
It is axiomatic that the jurisdiction of a tribunal,
including a quasi-judicial officer or government
agency, over the nature and subject matter of a
petition or complaint is determined by the
material allegations therein and the character of
the relief prayed for, irrespective of whether the
petitioner or complainant is entitled to any or all
such reliefs. Jurisdiction over the nature and subject
matter of an action is conferred by the Constitution
and the law, and not by the consent or waiver of the
parties where the court otherwise would have no
jurisdiction over the nature or subject matter of the
action. Nor can it be acquired through, or waived by,
any act or omission of the parties. Moreover, estoppel
does not apply to confer jurisdiction to a tribunal that
has none over the cause of action.x x x
Indeed, the jurisdiction of the court or tribunal is
not affected by the defenses or theories set up
by the defendant or respondent in his answer or
motion to dismiss. Jurisdiction should be
determined by considering not only the status or
the relationship of the parties but also the nature
of the issues or questions that is the subject of
the controversy. x x x The proceedings before a court
or tribunal without jurisdiction, including its decision,
are null and void, hence, susceptible to direct and
collateral attacks .
(Nachura, J., Venancio Figueroa y Cervantes v. People
of the Philippines, G.R. No. 147406, July 14, 2008.)
Actions for forcible entry and unlawful detainer;
similarities and dissimilarities
The actions for forcible entry and unlawful
detainer are similar because they are both summary
actions where the issue is purely physical possession.
Other than these commonalities, however, they
possess dissimilarities that are clear, distinct, and well
established in law.
In forcible entry, (1) the plaintiff must prove that
he was in prior physical possession of the property
until he was deprived of possession by the defendant;
(2) the defendant secures possession of the disputed
property from the plaintiff by means of force,
intimidation, threat, strategy or stealth; hence, his
possession is unlawful from the beginning; (3) the law
does not require a previous demand by the plaintiff
for the defendant to vacate the premises; and (4) the
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action can be brought only within one-year from the
date the defendant actually and illegally entered the
property.
2, 1992, there is nothing in the fallo suggesting at the
very least when the P2,000 per Sunday liability will
end.
In marked contrast, unlawful detainer is attended
by the following features: (1) prior possession of the
property by the plaintiff is not necessary; (2)
possession of the property by the defendant at the start
is legal but the possession becomes illegal by reason
of the termination of his right to possession based on
his or her contract or other arrangement with the
plaintiff; (3) the plaintiff is required by law to make a
demand as a jurisdictional requirement; and (4) the
one-year period to bring the complaint is counted from
the date of the plaintiff’s last demand on the defendant.
In accordance with the exception for modification
of a final judgment, there is a need to amend the
decision of the RTC pursuant to the nunc pro tunc rule
which, we hasten to add, will cause no prejudice to
any party. In this regard, justice and equity dictate
that respondent and Azur should be held solidarily
liable for actual damages in the amount of P2,000 for
every actual illegal cockfight held, regardless of the
staging date, in Azur’s cockpit in Caibiran, Biliran,
reckoned from August 2, 1992 to June 22, 2001 when
the finality of the RTC Decision dated February 17,
1995 set in.
(Brion, J. Sps. Narciso Barnachea and Julita Barnachea
(now heirs of deceased Julita Barnachea), petitioners,
v. Hon. Court of Appeals, Hon. Oscar C. Herrera, Jr.,
Presiding Judge, RTC Branch 20, Malolos, Bulacan,
Hon. Horacio . Viola, Presiding Judge, MTC Pulilan,
Bulacan, and Sps. Avelino and Priscilla Ignacio,
respondents, G.R. No. 150025, July 23, 2008.)
Nunc pro tunc – jugments; definition and characteristic
of
Nunc pro tunc judgments have been defined and
characterized by the Court in the following manner:
The object of a judgment nunc pro tunc is not the
rendering of a new judgment and the
ascertainment and determination of new rights, but
is one placing in proper form on the record, the
judgment that had been previously rendered, to
make it speak the truth, so as to make it show what
the judicial action really was, not to correct judicial
errors, such as to render a judgment which the court
ought to have rendered, in place of the one it did
erroneously render, nor to supply nonaction by
the court, however erroneous the judgment may
have been. (Wilmerding v. Corbin Banking Co., 28
South., 640, 641; 126 Ala., 268.)
A nunc pro tunc entry in practice is an entry made
now of something which was actually previously
done, to have effect as of the former date. Its
office is not to supply omitted action by the court,
but to supply an omission in the record of action
really had, but omitted through inadvertence or
mistake. (Perkins v. Haywood, 31 N. E., 670, 672.)
Unquestionably, respondent and Azur were
adjudged by the RTC jointly and severally liable for
actual damages. But the fallo of the RTC decision did
not indicate how the amount of the actual damages
award should be determined. While the decision
stated that the award of actual damages in the amount
of P2,000 per Sunday was to be computed from August
(Velasco, Jr., J., Dominador A. Mocorro, Jr. v. Rodito
Ramirez, G.R. No. 178366, July 28, 2008.)
Probable Cause; definition of; an executive function
Probable cause, for the purpose of filing a criminal
information, has been defined as such facts as are
sufficient to engender a well-founded belief that a crime
has been committed and that respondent is probably
guilty thereof. The term does not mean “actual and
positive cause” nor does it import absolute certainty.
It is merely based on opinion and reasonable belief.
Probable cause does not require an inquiry into
whether there is sufficient evidence to procure a
conviction. It is enough that it is believed that the act
or omission complained of constitutes the offense
charged.
A finding of probable cause needs only to rest on
evidence showing that more likely than not a crime
has been committed by the suspects. It need not be
based on clear and convincing evidence of guilt, not
on evidence establishing guilt beyond reasonable
doubt, and definitely not on evidence establishing
absolute certainty of guilt. In determining probable
cause, the average man weighs facts and
circumstances without resorting to the calibrations
of the rules of evidence of which he has no technical
knowledge. He relies on common sense. What is
determined is whether there is sufficient ground to
engender a well-founded belief that a crime has been
committed, and that the accused is probably guilty
thereof and should be held for trial. It does not require
an inquiry as to whether there is sufficient evidence
to secure a conviction.
These findings of probable cause fall within the
jurisdiction of the prosecutor or fiscal in the exercise
of executive power, which the courts do not interfere
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13
with unless there is grave abuse of discretion. The
determination of its existence lies within the
discretion of the prosecuting officers after conducting
a preliminary investigation upon complaint of an
offended party. Thus, the decision whether to dismiss
a complaint or not is dependent upon the sound
discretion of the prosecuting fiscal. He may dismiss
the complaint forthwith, if he finds the charge
insufficient in form or substance or without any
ground. Or he may proceed with the investigation if
the complaint in his view is sufficient and in proper
form. To emphasize, the determination of probable
cause for the filing of information in court is an
executive function, one that properly pertains at the
first instance to the public prosecutor and, ultimately,
to the Secretary of Justice, who may direct the filing
of the corresponding information or move for the
dismissal of the case. Ultimately, whether or not a
complaint will be dismissed is dependent on the sound
discretion of the Secretary of Justice. And unless made
with grave abuse of discretion, findings of the
Secretary of Justice are not subject to review.
For this reason, the Court considers it sound
judicial policy to refrain from interfering in the
conduct of preliminary investigations and to leave
the Department of Justice ample latitude of discretion
in the determination of what constitutes sufficient
evidence to establish probable cause for the
prosecution of supposed offenders. Consistent with
this policy, courts do not reverse the Secretary of
Justice’s findings and conclusions on the matter of
probable cause except in clear cases of grave abuse of
discretion.
(Chico-Nazario, J. Anthony T. Reyes v. Pearlbank
Securities, Inc., G.R. No. 171435, July 30, 2008.)
Prejudicial question; its concept
Our concept of prejudicial question was lifted
from Spain, where civil cases are tried exclusively by
civil courts, while criminal cases are tried exclusively
in criminal courts. Each kind of court is
jurisdictionally distinct from and independent of the
other. In the Philippines, however, courts are
invariably tribunals of general jurisdiction. This
means that courts here exercise jurisdiction over both
civil and criminal cases. Thus, it is not impossible that
the criminal case, as well as the civil case in which a
prejudicial question may rise, may be both pending
in the same court. For this reason, the elements of
prejudicial question have been modified in such a way
that the phrase “pendency of the civil case in a
different tribunal” has been eliminated.
The rule is that there is prejudicial question when
(a) the previously instituted civil action involves an
issue similar or intimately related to the issue raised
in the subsequent criminal action, and (b) the
resolution of such issue determines whether or not
the criminal action may proceed. It comes into play
generally in a situation where a civil action and a
criminal action are both pending and there exists in
the former an issue which must be preemptively
resolved before the criminal action may proceed. This
is so because howsoever the issue raised in the civil
action is resolved would be determinative juris et de
jure of the guilt or innocence of the accused in the
criminal case.
Here, no prejudicial question exists because there
is no pending criminal case. The consolidated NLRC
cases cannot be considered as “previously instituted
civil action.” In Berbari v. Concepcion, it was held that a
prejudicial question is understood in law to be that
which must precede the criminal action, that which
requires a decision with which said question is closely
related.
Neither can the doctrine of prejudicial question
be applied by analogy . The issue in the case filed by
Dr. Climaco with the SSC involves the question of
whether or not he is an employee of Coca-Cola Bottlers
(Phils.), Inc. and subject to the compulsory coverage
of the Social Security System. On the contrary, the
cases filed by Dr. Climaco before the NLRC involved
different issues. In his first complaint, Dr. Climaco
sought recognition as a regular employee of the
company and demanded payment of his 13th month
pay, cost of living allowance, holiday pay, service
incentive leave pay, Christmas bonus and all other
benefits. The second complaint was for illegal
dismissal, with prayer for reinstatement to his former
position as company physician of the company’s
Bacolod Plant, without loss of seniority rights, with
full payment of backwages, other unpaid benefits, and
for payment of damages. Thus, the issues in the NLRC
cases are not determinative of whether or not the SSC
should proceed. It is settled that the question claimed
to be prejudicial in nature must be determinative of
the case before the court.
(Reyes, RT., J., Coca-Cola Bottlers (Phils.), Inc. and Eric
Montinola v. Social Security Commission and Dr. Dean
Climaco, G.R. No. 159323, July 31, 2008.)
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AGRARIAN LAW
Jurisdiction of the DARAB; DARAB has no criminal
jurisdiction
II of the DARAB 2003 Rules of Procedure
read:
In Bautista v. Mag-isa Vda. de Villena, the Supreme
Court outlined the jurisdiction of the DARAB, to wit:
SECTION 1. Primary and Exclusive Original
Jurisdiction. — The Adjudicator shall
have primary and exclusive original
jurisdiction to determine and adjudicate
the following cases:
For agrarian reform cases, jurisdiction is vested
in the Department of Agrarian Reform (DAR);
more specifically, in the Department of Agrarian
Reform Adjudication Board (DARAB).
Executive Order 229 vested the DAR with (1)
quasi-judicial powers to determine and
adjudicate agrarian reform matters; and (2)
jurisdiction over all matters involving the
implementation of agrarian reform, except those
falling under the exclusive original jurisdiction
of the Department of Agriculture and the
Department of Environment and Natural
Resources. This law divested the regional trial
courts of their general jurisdiction to try agrarian
reform matters.
Under Republic Act No. 6657, the DAR retains
jurisdiction over all agrarian reform matters. The
pertinent provision reads:
SEC. 50. Quasi-Judicial Powers of the DAR.
— The DAR is hereby vested with the
primary jurisdiction to determine and
adjudicate agrarian reform matters and
shall have exclusive original jurisdiction
over all matters involving the
implementation of agrarian reform,
except those falling under the exclusive
jurisdiction of the Department of
Agriculture and the Department of
Environment and Natural Resources.
It shall not be bound by technical rules
of procedure and evidence but shall
proceed to hear and decide all cases,
disputes or controversies in a most
expeditious manner, employing all
reasonable means to ascertain the facts
of every case in accordance with justice
and equity and the merits of the case.
Toward this end, it shall adopt a uniform
rule of procedure to achieve a just,
expeditious
and
inexpensive
determination of every action or
proceeding before it.
xxxx
Subsequently, in the process of
reorganizing and strengthening the
DAR, Executive Order No. 129-A was
issued; it created the DARAB to assume
the adjudicatory powers and functions
of the DAR. Pertinent provisions of Rule
1.1. The rights and obligations of
persons, whether natural or
juridical,
engaged
in
the
management, cultivation, and use of
all agricultural lands covered by
Republic Act (RA) No. 6657,
otherwise
known
as
the
Comprehensive Agrarian Reform
Law (CARL), and other related
agrarian laws;
xxxx
1.4. Those cases involving the ejectment
and dispossession of tenants and/
or leaseholders;
xxxx
Section 3(d) of R.A. No. 6657, or the CARL, defines
an “agrarian dispute” over which the DARAB has
exclusive original jurisdiction as:
(d) x x x refer[ing] to any controversy relating to
tenurial arrangements, whether leasehold,
tenancy, stewardship or otherwise, over
lands devoted to agriculture, including
disputes
concerning
farmworkers
associations or representation of persons in
negotiating, fixing, maintaining, changing or
seeking to arrange terms or conditions of
such tenurial arrangements including any
controversy relating to compensation of
lands acquired under this Act and other
terms and conditions of transfer of
ownership from landowners to farmworkers,
tenants and other agrarian reform
beneficiaries, whether the disputants stand
in the proximate relation of farm operator
and beneficiary, landowner and tenant, or
lessor and lessee.
Clearly, the law and the DARAB Rules are
deafeningly silent on the conferment of any criminal
jurisdiction in favor of the DARAB. It is worth stressing
that even the jurisdiction over the prosecution of
criminal offenses in violation of R.A. No. 6657 per se is
lodged with the SACs and not with the DARAB.
(Nachura, J., People of the Philippines v. Samuel and
Loreta Valenzuela, G.R. No. 178266, July 21, 2008.)
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ORDERS AND CIRCULARS
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15
SUPREME COURT
RESOLUTION of the COURT En Banc dated
September 16, 2008, on A.M. No. 05-11-07-CTA
Acting on the letter of the Presiding Justice, Court
of Tax Appeals, submitting for the consideration and
approval of the Court the “Proposed Amendments to
the Revised Rules of the Court of Tax Appeals,” the
Court Resolved to APPROVE the same,
The Rule shall take effect on October 15, 2008
following its publication in two newspapers of general
circulation in the Philippines.
September 16, 2008.
(Sgd.) PUNO, CJ, QUISUMBING, YNARES-SANTIAGO,
CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO
MORALES, AZCUNA, TINGA, CHICO-NAZARIO,
VELASCO, JR., NACHURA, REYES, LEONARDO-DE
CASTRO, BRION, JJ.
AMENDMENTS TO THE 2005 RULES
OF THE COURT OF TAX APPEALS
Pursuant to the promulgation of Republic Act No.
9503, An Act Enlarging the Organization Structure of the
Court of Tax Appeals, Amending for the Purpose Certain
Sections of the Law Creating the Court of Tax Appeals, and for
Other Purposes” on June 12, 2008, the 2005 Revised Rules
of the Court of Tax Appeals which was approved by
the Supreme Court on November 22, 2005, should now
be amended.
SECTION I. – Section 1, 3, 4, 6(a), 6(b), 6(c), 7 and 8 of Rule
2 are hereby amended to read:
RULE 2
THE COURT, ITS ORGANIZATION
AND FUNCTIONS
SECTION 1. Composition of the Court. – The Court
is composed of a presiding justice and eight
associate justices appointed by the President of
the Philippines. In appropriate cases, the Court
shall sit en banc, or in three Divisions of three
justices each, including the presiding justice, who
shall be the Chairperson of the First Division and
the two most Senior Associate Justices shall
serve as Chairpersons of the Second and Third
Divisions respectively. (a)
xxxx
SEC. 3. Court En Banc; quorum and voting. – The
presiding justice or, if absent, the most senior
justice in attendance shall preside over the
sessions of the Court En Banc. The attendance of
five justices of the Court shall constitute a quorum
for its session en banc. The presence at the
deliberation and the affirmative vote of five
members of the Court En Banc shall be necessary
to reverse a decision of a decision of a Division
but only a simple majority of the justices present
to promulgate a resolution or decision in all other
cases. Where the necessary majority vote
cannot be had, the petition shall be dismissed; in
appealed cases, the judgment or order appealed
from shall stand affirmed; and on all incidental
matters, the petition or motion shall be denied. (a)
SEC. 4. The Court in Division; quorum and voting.
– The Chairperson of the Division or, if absent,
the most senior member shall preside over the
sessions of the Court in Divisions. The attendance
of at least two justices of the Court shall be
necessary to constitute a quorum for its sessions
in Divisions. The presence at the deliberation
and the affirmative vote of at least two justices
shall be required for the pronouncement of a
judgment or final resolution of the Court in
Divisions. (a)
SEC. 6. Disqualification of justices. –
(a) Mandatory. – No justice or other officer or
employee of the Court shall intervene, directly
or indirectly, in the management or control of
any private enterprise which in any way may
be affected by the functions of the Court.
Justices of the Court shall be disqualified from
sitting in any case on the same grounds
provided under the first paragraph, Section 1,
Rule 137 of the Rules of Court. No person who
has once served in the Court either as
presiding justice or as associate justice shall
be qualified to practice as counsel before the
Court for a period of one year from that
person’s retirement or resignation as such. (a)
(b) Disclosure and consent of parties and lawyers. – A
justice disqualified under the first paragraph,
Section 1 of Rule 137 of the Rules of Court,
may, instead of withdrawing from a case of
proceeding, disclose on the records the basis
of the disqualification. If, based on such
disclosure, the parties and lawyers,
independently of the justice’s participation, all
agree in writing that the reason for the
inhibition is immaterial or unsubstantial, the
justice may participate in the action or
proceeding. The agreement, assigned by all
parties and lawyers, shall be incorporated in
the record of the action or proceeding.
(c) Voluntary. – A justice of the Court may, in the
exercise of sound discretion, disqualify
voluntarily from sitting in a case or
proceeding, for just or valid reasons other
than those mentioned above.
A justice of the Court who inhibits from sitting
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PHILJA
RESOLUTION, dated September 16, 2008
on A.M. No. 05-11-07 CTA (continued)
in a case or proceeding shall immediately notify
in writing the presiding justice and the members
of the Division where the said justice belongs. (a)
SEC. 7. Motion to inhibit a justice. – When a motion
for inhibition of a justice is filed, the Court En
Banc or in Division, shall act upon the motion.
However, if the motion for inhibition is based on
a discretionary ground, the Court shall refer the
motion to the justice involved for appropriate
action. (a)
SEC. 8. Disqualification of clerk of court or assistant
clerk of court or division clerk of court or assistant
division clerk of court. – The disqualification under
the first paragraph, Section 1, Rule 137 of the
Rules of Court shall likewise apply to the Clerk of
Court or Assistant Division Clerk of Court of this
Court insofar as it is relevant to them in the
performance of their respective functions and
duties.
Such person must immediately notify in
writing the Presiding Justice and the members of
the Court En Banc, or the Chairperson and the
Members of the Division, whichever is applicable,
stating the grounds and the reasons for inhibition
and further indicate the case number and title.
The Presiding Justice or the Chairperson of the
Division may approve the request for inhibition
and in such event appoint a temporary Clerk of
Court to hear and handle the case. (n)
SEC. 2. – Section 3(a)(5) of Rule 4 is hereby amended to
read:
RULE 4
JURISDICTION OF THE COURT
SEC. 3. Cases within the jurisdiction of the Court
in Divisions. –
(a) Exclusive original over or appellate jurisdiction to
review by appeal the following:
xxxx
(5) Decisions of the Secretary of Finance on
customs cases elevated for automatic
review from decisions of the
Commissioner of Customs adverse to
the Government under Section 2315 of
the Tariff and customs Code; and (a)
SEC. 3. – Sections 4(a), 5(b) and 6 or Rule 6 are hereby
amended to read:
RULE 6
PLEADINGS FILLED WITH THE COURT
SEC. 4. Bill of Particulars. –
(a) Requirement for bill of particulars. – The Court,
on its own initiative or upon motion of either
party filed before responding to a pleading
or, if no responsive pleading is permitted by
these Rules, within ten days after service of
the pleading, may order a party to submit a
detailed statement of the nature of the claim
or defense or of any matter stated in any
pleading, which is not averred with sufficient
definiteness or particularity. Such order or
motion shall point out the defects complained
of and the details desired. After service of
the bill of particulars or of a more definite
pleading, the moving or adverse party may
file a responsive pleading within ten days.
xxxx
SEC. 5. Answer. –
xxxx
(b) Transmittal of records. – The respondent
Commissioner of Internal Revenue,
Commissioner of Customs, the Secretary of
Finance, the Secretary of Agriculture, or the
Secretary of Trade and Industry, within ten
days after filing an answer, the Chairperson
of the Central Board of Assessment Appeals
and the presiding judges of the Regional Trial
Courts, within ten days from receipt of notice,
shall certify and forward to the Court all the
records of the case in their possession, with
the pages duly numbered, and, if the records
are in separate folders, then the folders will
also be numbered. If there are no records,
such fact shall be manifested too the Court
within the same period of ten days. The Court
may, on motion, and for good cause shown,
grant an extension of time within which to
submit the aforesaid records of the case.
Failure to transmit the records within the time
prescribed herein or within the time allowed
by the Court may constitute indirect
contempt of court. (a)
SEC. 6. Entry of appearance. – An attorney may
enter an appearance by signing the initial
pleading. An attorney may later enter an
appearance only by filing an entry of
appearance with the written conformity of
the client.
The initial pleading or entry of appearance
must contain the following:
(1) The attorney’s specific address, which
must not be a Post Office Box number;
(2) The Roll of Attorney’s Number;
(3) The date and number of current
membership due in the Integrated Bar
of the Philippines (IBP) per Official
Receipt, or Lifetime Member Number;
(4) The Current Professional Tax Receipt
(PTR) number together with date and
July -- September
September 2008
2008
July
RESOLUTIONS,
PHILJA NEWS
17
place of issuance; and
(5) The MCLE certificate number and date
of issue, unless exempt.
The attorney or party entering an
appearance shall serve a copy of the entry of
appearance upon the opposing party. An
attorney who appears in open court without
previously having filed a written appearance must
give the said counsel’s business address to the
Clerk of Court and file a written appearance within
48 hours from such open court appearance. An
attorney of party who has filed an appearance
and who changes address of record shall notify
the Clerk of Court and the adverse party of such
change o address, and a separate notice of such
change of address shall be filed for each
additional case. (a)
SEC. 4. – Sections 4, 5, 6, 7, and 10 of Rule 9 are hereby
amended to read:
RULE 9
PROCEDURE IN CRIMINAL CASES
SEC. 4. Warrant of arrest. – Within ten days from
the filing of the information, the Division of the
Court to which the case was raffled shall evaluate
the resolution of the public prosecutor and its
supporting evidence.
The Division may
immediately dismiss the case if it finds that the
evidence on record clearly fails to establish
probable cause. If the Division finds probable
cause, it shall issue a warrant of arrest signed by
the Chairperson of the Division. In case of doubt
on the existence of probable cause, the Division
may order the prosecutor to present additional
evidence, ex parte, within five days from notice.
(a)
SEC . 5. When search warrant may issue. – The
Division may issue a search warrant signed by its
Chairperson following the requirements of Rule
126 of the Rules of Court. (a)
SEC. 6. Bail, how amount fixed; approval. – The
amount of bail to be posted in a case filed with the
Court shall be fixed and approved by the Division
to which the case is raffled: Provide, however, that
where the accused is arrested, detained or
otherwise placed in custody outside the
Metropolitan Manila area, any judge of the
Regional Trial Court of the place where the arrest
is made may accept and approve the bail for
release of the accused and appearance before
the Division to which the case is assigned. The
judge who accepted the bail and released the
accused shall inform the Division that issued the
order of arrest of the action and forward to it the
papers relative to the case. (a)
SEC. 7. Conditions of the bail. – The conditions of
the bail are that the accused shall appear and
answer the complaint or information in the
Division of the Court to which it I raffled or
transferred for trial and submit the same to its
orders and processes. If convicted, and the case
is appealed to the Court En Banc or to the Supreme
Court, the accused will surrender for the
execution of such judgment as the Court En Banc
or the Supreme Court may render; or that, in the
event the case is to be tried anew or remanded
for a new trial, the same shall appear before the
Division to which it may be remanded and submit
to its orders and processes. (a)
SEC. 10. Solicitor General as counsel for the People
and government officials sued in their official
capacity. – The Solicitor General shall represent
the People of the Philippines and government
officials sued in their official capacity in all cases
brought to the Court in the exercise of its
appellate jurisdiction. The former may deputize
the legal officers of the Bureau of Internal
Revenue in cases brought under the National
Internal Revenue Code or other laws enforced
by the Bureau of Internal Revenue, or the legal
officers of the Bureau of Customs in cases
brought under the Tariff and Customs Code of
the Philippines or other laws enforced by the
Bureau of Customs, to appear in behalf of the
officials of said agencies sued in their official
capacity: Provided, however, such duly deputized
legal officers shall remain at all times under the
direct control and supervision of the Solicitor
General. (a)
SEC. 5. – Section 1 of Rule 10 is hereby amended to
read:
RULE 10
SUSPENSION OF COLLECTION OF TAX
SECTION 1. No suspension of collection of tax, except
as herein prescribed. – No appeal taken to the
Court shall suspend the payment, levy, distraint,
or sale of any property of the taxpayer for the
satisfaction of tax liability as provided under
existing laws, except as hereinafter prescribed.
(a)
SEC. 6. – Sections 3 and 6(c) of Rule 11 are hereby
amended to read:
RULE 11
PRE-TRIAL
SEC. 3. Setting for an earlier date. – Where, due to
the urgency of the case, either party desires that
the pre-trial be set on an earlier date, such party
shall so statre in the pleading, in which event the
Clerk of Court shall set the pre-trial on the first
available date immediately after the filing of the
answer. (a)
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xxxx
SEC. 6. Procedure in criminal cases. –
xxxx
(c) During the pre-trial conference
xxxx
The Court may impose appropriate
sanctions or penalties on the accused or counsel
or the prosecutor who does not appear at the
pre-trial conference and does not offer an
acceptable excuse for the said person’s absence
and lack of cooperation. (a)
SEC. 7. – Sections 3, 4, and 5(a) of Rule 12 are hereby
amendedto read:
RULE 12
TRIAL
SEC. 3. Taking of evidence by a justice. – The Court
may, motu proprio or upon proper motion, direct
that a case, or any issue therein, be assigned to
one of its members for the taking of evidence,
when the determination of a question of fact arises
at any stage of the proceedings, or when the
taking of an account is necessary, or when the
determination of an issue of fact requires the
examination of a long account. The hearing
before such justice shall proceed in all respects
as though the same had been made before the
Court. (a)
SEC. 5. Presentation of voluminous documents or
long accounts. – In the interest of speedy
administration of justice, the following rules shall
govern the presentation of voluminous
documents or long accounts, such as receipts,
invoices and vouchers, as evidence to establish
certain facts:
(a) Summary and CPA certification. –
xxxx
The name of the Certified Public Accountant
or partner of a professional partnership of
certified public accountants in charge must be
stated in the motion. The Court shall issue a
commission authorizing the independent CPA to
conduct an audit and, thereafter, testify relative
to such summary and certification.
SEC. 8. – Section 5 of Rule 14 is hereby amended to
read:
RULE 14
JUDGMENT, ITS ENTRY AND EXECUTION
Sec. 5. Promulgation and notice of decision and
resolution. – The Clerk of Court or Deputy Clerk
of Court shall have the direct responsibility for
the promulgation of the decision and resolution
of the Court and shall see to it that such decision
and resolution are properly signed by the
concurring and dissenting justices and the
required certification is duly accomplished.
Upon the completion of such hearing, the
justice concerned shall promptly submit to the
Court a written report thereon, stating therein
the findings and conclusions. Thereafter, the
Court shall render its decision on the case,
adopting, modifying, or rejecting the report in
whole or in part, or, the Court may, in its
discretion, recommit it to the justice with
instructions, or receive further evidence. (a)
Promulgation consists of the filing of the
decision or resolution with the Clerk of Court or
Division Clerk of Court, who shall forthwith
annotate the date and time of receipt and attest
to it by signing thereon. The Clerk of Court or
Division Clerk of Court shall serve notice of such
decision or resolution upon the parties or their
counsel, furnishing them with certified true copies
thereof.
SEC. 4. Taking of evidence by Court official. – In
default or ex parte hearings, or in any case where
the parties agree in writing, the Court may
delegate the reception of evidence to the Clerk
of Court, the Division Clerks of Court, their
assistants who are members of the Philippine bar,
or any Court attorney. The reception of
documentary evidence by a Court official shall
be for the sole purpose of marking, comparison
with the original, and identification by witnesses
of such documentary evidence. The Court official
shall have no power to rule on objections to any
question or to the admission of exhibits, which
objections shall be resolved by the Court upon
submission of the report and the transcripts within
ten days from termination of the hearing. (a)
In criminal cases originally filed with and
decided by the Court in Division, the Chairperson
shall cause the decision or resolution to be filed
with the Division Clerk of Court in a sealed
envelope, who shall schedule its promulgation,
giving notice to the prosecution, the accused
personally or through bondsman or warden, and
counsel requiring their presence at the
promulgation.
The promulgation shall consist of the reading
by the Division Clerk of Court of the dispositive
portion of the decision or resolution in the
presence of the accused and a justice of the
Division that rendered the same. If the accused
is detained, the warden shall produce such person
before the Court. However, if the accused is
detained outside Metro Manila, the Court may
July -- September
September 2008
2008
July
RESOLUTIONS,
PHILJA NEWS
19
authorize the executive judge of the Regional Trial
Court having territorial jurisdiction over the place
of detention to promulgate the decision or
resolution at such place. (a)
SEC. 9. – Sections 1, 2, and 5(a), 5(b) of Rule 15 are hereby
amended to read:
RULE 15
MOTION FOR RECONSIDERATION
OR NEW TRIAL
SECTION 1. Who may and when to file motion. – Any
aggrieved party may seek a reconsideration or
new trial of any decision, resolution or order of
the Court by filing a motion for reconsideration or
new trial within 15 days from the date of receipt of
notice of the decision, resolution or order of the
Court in question. (a)
SEC. 2. Opposiiton. – The adverse party may file
an opposition to the motion for reconsideration
or new trial within 10 days after receipt of a copy
of the motion for reconsideration or new trial of a
decision, resolution or order of the Court. (a)
SEC. 5. Grounds of motion for new trial. – xxx
(a) Fraud, accident, mistake or excusable
negligence which ordinary prudence could not
have guarded against and by reason of which
the rights of such aggrieved party has
probably been impaired; or
(b) Newly discovered evidence, which the party
could not, with reasonable diligence, have
discovered and produced at the trial and,
which, if presented, would probably alter the
result.
xxxx
SEC. 10. Effectivity Clause. – These Rules shall become
effective on October 15, 2008 after publication in two
newspapers of general circulation in the Philippines.
(n)
ADMINISTRATIVE ORDER NO. 141-2008
RE: DESIGNATION OF PILOT COURTS FOR
SMALL CLAIMS CASES
WHEREAS, the Court En Banc in its Resolution
dated September 9, 2008 in A.M. No. 08-8-7-SC has
promulgated the “Rule of Procedure for Small Claims
Cases” governing the procedure in actions before the
Metropolitan Trial Courts, Municipal Trial Courts in
Cities, Municipal Trial Courts and Municipal Circuit
Trial Courts for payment of money where the value of
the claim does not exceed One Hundred Thousand
Pesos (P100,000.00) exclusive of interest and costs;
WHEREAS, to determine the necessity and
efficacy of the Rule as a tool for declogging docket or
for better access to justice, a pilot project will be
launched in selected first level courts where the Rule
shall be applied;
NOW, THEREFORE, the following first level
courts are hereby designated as Pilot Courts for small
claims cases, to wit:
Station/Branch: MeTC, Branch 23, Manila
Name of Judge: Hon. Maria Zorayda Z. Tuazon
Station/Branch: MeTC, Branch 34, Quezon City
Name of Judge: Hon. Caridad W. Lutero
Station/Branch: MeTC, Branch 48, Pasay City
Name of Judge: Hon. Catherine P. Manodon
Station/Branch: MeTC, Branch 66, Makati City
Name of Judge: Hon. Josefino A. Subia
Station/Branch: MeTC, Branch 49, Caloocan City
Name of Judge: Hon. Glenda C. Marin
Station/Branch: MeTC, Branch 72, Pasig City
Name of Judge: Hon. Joy Nerves Casihan-Dumlao
Station/Branch: MTCC, Branch 2, Baguio City
Name of Judge: Hon. Cleto R. Villacorta III
Station/Branch: MTCC, Branch 3, Angeles City
Name of Judge: Hon. Gemma Theresa H. Logronio
Station/Branch: MTCC, Branch 2, City of SanFernando,
Pampanga
Name of Judge: Hon. Mary Jane Dacara-Buenaventura
Station/Branch: MTCC, Branch 2, Cabanatuan City
Name of Judge: Hon. Wenceslao Trese
Station/Branch: MTCC, Branch 2, Malolos City
Name of Judge: Hon. Nemesio V. Manlangit
Station/Branch: MTCC, Branch 2, San Pablo City
Name of Judge: Hon. Dinah Evangeline B. Bandong
Station/Branch: MTCC, Branch 1, Legazpi City
Name of Judge: Hon. Arlinda G. Resari
Station/Branch: MTC, Bacoor, Cavite
Name of Judge: Hon. Manolito Y. Gumarang
(Assisting Judge)
Station/Branch: MTCC, Antipolo City
Name of Judge: Hon. Ma. Consuelo M. Gengos-Ignalaga
Station/Branch: MTCC, Branch 1, Bacolod City
Name of Judge: Hon. Jose Paolo G. Ariola
Station/Branch: MTCC, Branch 4, Iloilo City
Name of Judge: Hon. Mary Yvette D. Go
Station/Branch: MTCC, Branch 7, Cebu City
Name of Judge: Hon. Francisco A. Seville
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A.O. No. 141-2008 (continued)
Station/Branch: MTCC, Branch 1, Zamboanga City
Name of Judge: Hon. Nancy Cuaresma
Station/Branch: MTCC, Branch 3, Cagayan de Oro City
Name of Judge: Hon. Romualdo E. Galarita
Station/Branch: MTCC, Branch 2, Davao City
Name of Judge: Hon. Alltonina B. Escovilla
Station/Branch: MTCC, Branch 3, Gen. Santos City
Name of Judge: Hon. Alejandro Ramon C. Alano
The Pilot Courts herein designated shall hear and
decide the small claims cases in accordance with The
Rule of Procedure for Small Claims Cases (A.M. No.
08-8-7-SC dated September 9, 2008).
Upon effectivity of this Order, all small claims cases
filed in the station of these Pilot Courts shall be
assigned immediately to the said courts. The Pilot
Courts herein designated shall continue to be included
in the raffle of cases, criminal and civil, provided that
the small claims cases assigned to them shall be
considered as raffled to them for equal distribution of
cases.
The Pilot Courts shall fix at least one day of the
week in their court calendar for the hearing of small
claims cases which shall be posted in three
conspicuous places in their respective station at the
entrance of the Hall of Justice, entrance of the
courtroom and entrance of the Office of the Clerk of
Court.
The Pilot Courts thus designated shall continue to
perform their functions as such within the purview of
this Administrative Order even after the retirement,
promotion, transfer or detail of the judges appointed/
designated to preside over them. Their successors,
whether permanent or temporary, shall act as
Presiding Judges of these Pilot Courts unless the
Supreme Court otherwise directs.
Three months after the implementation of the Rule,
an initial assessment shall be undertaken by the
Technical Working Group on Small Claims Courts Pilot
Project, and six months thereafter a final assessment
and project review shall be submitted to recommend
the feasibility of applying the Rule to all small claims
cases in all first level courts.
The Clerks of Court of these Pilot Courts shall
submit a monthly inventory report on small claims
cases on or before the 10th day of the succeeding month
to the: The Secretariat, Technical Working Group
(TWG) on Small Claims Courts Pilot Project, Office
of the Court Administrator, Supreme Court, Padre
Faura Street Manila.
The following presiding judges of the pairing
courts of the Pilot Courts shall hear and decide the
small claims cases pursuant to Section 22 of the Rule,
to wit:
Pilot Court: MeTC, Branch 23, Manila
Pairing Court/Presiding Judge: MeTC, Br. 24, Manila
Hon. Jesusa P. Maningas
Pilot Court: MeTC, Branch 34, Quezon City
Pairing Court/Presiding Judge: MeTC, Br. 33, Quezon City
Hon. Alfredo D. Ampuan
Pilot Court: MeTC, Branch 48, Pasay City
Pairing Court/Presiding Judge: MeTC, Br. 45, Pasay City
Hon. Bibiano G. Colasito
Pilot Court: MeTC, Branch 66, Makati City
Pairing Court/Presiding Judge: MeTC, Br. 65, Makati City
Hon. Henry A. Laron
Pilot Court: MeTC, Branch 49, Caloocan City
Pairing Court/Presiding Judge: MeTC, Br. 50, Caloocan City
Hon. Norma Z. Go
Pilot Court: MeTC, Branch 72, Pasig City
Pairing Court/Presiding Judge: MeTC, Br. 71, Pasig City
Hon. Maria Gracia
Casaclang
Pilot Court: MTCC, Branch 2, Baguio City
Pairing Court/Presiding Judge: MTCC, Br. 1, Baguio City
Hon. Roberto R. Mabalot
Pilot Court: MTCC, Branch 3, Angeles City
Pairing Court/Presiding Judge: MTCC, Br. 1,Angeles City
Hon. Irineo P. Pangilinan
Pilot Court: MTCC, Branch 2, City of San Fernando,
Pampanga
Pairing Court/Presiding Judge: MTCC, Br. 1, City of San
Fernando, Pampanga
Hon. Ma. Lourdes F.
Tolentino
Pilot Court: MTCC, Branch 2, Cabanatuan City
Pairing Court/Presiding Judge: MTCC, Br. 1,
Cabanatuan City
Hon. Renato D. Pinlac
Pilot Court: MTCC, Branch 2, Malolos City
Pairing Court/Presiding Judge: MTCC, Br. 1, Malolos City
Hon. Mario B. CapeIIan
Pilot Court: MTCC, Branch 2, San Pablo City
Pairing Court/Presiding Judge: MTCC, Br. 1, San Pablo City
Hon. Priscilla U. Acedera
Pilot Court: MTCC, Branch 1, Legazpi City
Pairing Court/Presiding Judge: MTCC, Br. 2,Legazpi City
Hon. Raymund M. Jacob
Pilot Court: MTC, Bacoor, Cavite
Pairing Court/Presiding Judge: MTC, Imus Cavite
Hon. Emily A. Geluz
July -- September
September 2008
2008
July
RESOLUTIONS,
PHILJA NEWS
21
A.O. No. 141-2008 (continued)
Pilot Court: MTCC, Branch 2, Antipolo City
Pairing Court/Presiding Judge: MTCC, Br. I, Antipolo City
Hon. Antonio Murillo
Olivete
Pilot Court: MTCC, Branch 1, Bacolod City
Pairing Court/Presiding Judge: MTCC, Br. 2,Bacolod City
Hon. Ma. Lorna P.
Demonteverde
Pilot Court: MTCC, Branch 4, Iloilo City
Pairing Court/Presiding Judge: MTCC, Br. 3, Iloilo City
Hon. Alexis A. Zerrudo
Pilot Court: MTCC, Branch 7, Cebu City
Pairing Court/Presiding Judge: MTCC, Br. 8, Cebu City
Hon. Edgemelo C. Rosales
Pilot Court: MTCC, Branch 1, Zamboanga City
Pairing Court/Presiding Judge: MTCC, Br. 2,
Zamboanga City
Hon. Ivan C. Mendoza, Jr.
Pilot Court: MTCC, Branch 3, Cagayan de Oro City
Pairing Court/Presiding Judge: MTCC, Br. 4 , Cagayan de
Oro City
Hon. Vincent Filomeno B.
Rosales
Pilot Court: MTCC, Branch 2, Davao City
Pairing Court/Presiding Judge: MTCC, Br. 1, Davao City
Hon. Evalyn A. Morales
(APJ)
Pilot Court: MTCC, Branch 3, General Santos City
Pairing Court/Presiding Judge: MTCC, Br. 1, General
Santos City
Hon. Marie Ellengrid S.
Baliguat
ADMINISTRATIVE CIRCULAR No. 66-2008
RE: GUIDELINES ON THE PROCEDURE FOR THE
RELEASE OF RETIREMENT GRATUITY AND
TERMINAL LEAVE BENEFITS OF DECEASED
MEMBERS, OFFICIALS AND EMPLOYEES OF THE
JUDICIARY
The following guidelines are hereby adopted for
the release of retirement gratuity and terminal leave
benefits of deceased members, officials and employees
of the judiciary.
A. COVERAGE
These guidelines shall apply to all heirs,
beneficiaries and claimants of the deceased members
and officials of the judiciary and all other officials and
employees thereof who are entitled to receive
retirement gratuity benefits under Republic Act No.
910, as amended, and Republic Act No. 1616,
respectively, and termina1 leave benefits.
B. PURPOSE
To establish the parameters that shall be
uniformly observed and for expediency and proper
procedure regarding the release of retirement gratuity
and terminal leave benefits of deceased members,
officials and employees of the judiciary.
C. REQUIREMENTS
For RETIREMENT GRATUITY BENEFITS
1.
The Presiding Judges of the Pilot Courts as well as
the paired courts and their clerks of court shall
undergo a one day orientation seminar.
Duly accomplished application form for
retirement accompanied by the following
documents:
a.
This Administrative Order shall take effect
October 1, 2008
September 29, 2008.
b. Updated Sworn Statement of Assets and
Liabilities;
(Sgd.) REYNATO S. PUNO
Chief Justice
c.
(Sgd.) LEONARDO A. QUISUMBING
Associate Justice
Chairperson, Second Division
(Sgd.) CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division
Complete Service Record including
Service Record from other government
offices, if any, duly certified by the official
concerned and with proper notation of
Leave of Absence with or without pay;
Copy of last appointment; and
d. Certification of regular monthly salary
and other emoluments (for justices and
other officials with judicial ranking);
2.
General clearance to be issued by the Clerk of
Court, Office of the Clerk of Court of the
Supreme Court, Court of Appeals (CA),
Sandiganbayan, Court of Tax Appeals (CTA),
as the case maybe, or by the Office of the Court
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A.C. No. 66-2008 (continued)
Administrator (OCA), for the lower courts,
supported by the following clearances:
a.
For all officials and employees, except
members of the judiciary, clearance as to
no pending administrative case from the
concerned regional office of the
Ombudsman;
b. Clearance issued by the Clerk of Court,
Office of the Clerk of Court of the
concerned lower court and duly noted by
the Provincial/City/Municipal Treasurer
as to no MONEY and PROPERTY
accountabilities and as to no pending
criminal and administrative case;
c.
GSIS Clearance (Leave Division, OAS to
issue request);
d. For stenographers, clearance from the
concerned office of the respective courts
as to no untranscribed stenographic
notes;
3.
7.
For TERMINAL LEAVE BENEFITS
1.
Duly accomplished/approved application
for terminal leave with required supporting
documents; and
2.
All requirements for Retirement Gratuity
Benefits.
D. PROCEDURES
1.
Claimants shall inform the respective
Retirement and Welfare Division, OAS of the
death of the Court official/employee and shall
secure the forms therefrom.
2.
Claimants shall file their claims with the
respective Retirement and Welfare Division,
OAS for the retirement gratuity and
terminal1eave benefits if any.
3.
The offices concerned shall process the claims
for completeness and sufficiency of the
requirements and shall refer the same to the
Court for approval. Upon approval, a
disbursement voucher shall be prepared by
the Finance/ Accounting/Cashier Division of
the respective offices.
4.
The Budget Division of the Fiscal Management
and Budget Office shall request the
Department of Budget and Management for
the release of a Special Allotment Release
Order (SARO) with corresponding Notice of
Cash Allocation (NCA).
5.
Upon receipt of the SARO, the voucher shall
be prepared and processed and the
corresponding check payable to the claimants/
heirs shall be issued.
6.
Upon presentation of two valid IDs, the check
shall be released to the claimants.
7.
In case claimants cannot personally claim the
check, a special power of attorney duly
notarized by a notary public commissioned
in accordance with A.M. No. 02-8-l3-SC
promulgated on July 6, 2004 shall be
presented by the authorized representative.
The following records of the deceased duly
certified by the National Statistics Office
(NSO):
a.
Birth certificate and, in the absence of a
birth certificate, affidavit of two
disinterested persons attesting as to the
date of birth and certificate of loss of
records from the Local Civil Registrar
(LCR);
b. Marriage contract and, in case deceased
is single, marriage contract of the parents.
In case both parents ate deceased, birth
certificates of surviving legal heirs duly
certified by the NSO are to be submitted;
and
c.
Death certificate;
4.
Proofs of Surviving Legal Heirs duly notarized
with supporting documents as may be
required;
5.
Certification to be issued by the Clerk of Court,
RTC, which has jurisdiction over the last
residence of the deceased at the time of death,
as to no Testate or Intestate proceedings on
the estate of the deceased;
6.
Special power of attorney of the recipient of
the benefits authorizing the claimant/s to
receive the benefits, if applicable; and
Such other documents as may be required.
E. DISTRIBUTION OF BENEFITS OF NET
PROCEEDS
1.
Deceased is married:
July -- September
September 2008
2008
July
RESOLUTIONS,
PHILJA NEWS
23
OFFICE OF THE COURT ADMINISTRATOR
1.1. If legitimate family shall claim, the
following distribution shall be observed,
after deducting all debts, charges and
obligations:
Retirement Gratuity Benefits:
a. ½ for the surviving spouse;
b. ½ for the children and surviving
spouse.
Terminal Leave Benefits shall be divided
equally among the surviving spouse and the
children in accordance with resolution of the
Court dated October 18, 1990 in A.M. No.906-015-SC Re: Request of Atty. Bernardo Zialcita.
1.2. If other than legitimate family shall claim,
the matter may be referred to the Office of
Chief Attorney, Supreme Court, for
Members of the Supreme Court, its
officials and employees, or to concerned
offices of CA, Sandiganbayan, CTA or OCA
for the lower court for study and
recommendation to be submitted to the
Court for approval, as the case maybe.
2.
Deceased is single:
2.1. If deceased is survived by both legitimate
parents, the benefits shall be divided
between them equally. If one of the parents
should have died, the whole amount shall
be given to the survivor.
2.2. The pertinent provisions of the New Civil
Code of the Philippines, as amended, and
other jurisprudence on succession shall
apply in case the above provisions are not
applicable.
F. OTHER APPLICABLE RULES
All existing rules and regulations shall be applied
to these guidelines.
G. EFFECTIVITY
These guidelines shall take effect immediately.
Issued this 1st day of July, 2008.
(Sgd.) REYNATO S. PUNO
Chief Justice
OCA CIRCULAR NO. 65-2008
TO: ALL TRIAL JUDGES
SUBJECT: TERMINATION OF THE PROBATION IN
CASES WHERE THE SUPERVISION OVER THE
PROBATIONER IS TRANSFERRED TO ANOTHER
COURT
For the information and guidance of all concerned,
quoted hereunder is a portion of the Resolution of the
Court En Banc dated July 1, 2008, in A.M. No. 08-6316-RTC- Re: Query of Executive Judge Aurora V.
Maqueda-Roman, RTC-Gumaca, Quezon on the
Termination of the Probation in Cases where the
Supervision over the Probationer is Transferred to
Another Court, to wit:
(b) ADVISE the Executive Judges of the Regional
Trial Courts that the Probation Law of 1976,
which provides that “[t]hereafter, the Executive
Judge to whom jurisdiction over the probationer
is transferred shall have the power with respect
to him that was previously possessed by the
court which granted the probation” (emphasis
supplied), includes the power to issue an
order terminating the probation and finally
discharging the probationer;
(c) REQUIRE the court to which the probation
case has been transferred to furnish the
court, which originally granted the probation
and which is in custody of the complete
records of the case concerned, a copy of the
Order of termination, revocation or
modification of the probation, so that the
latter may be apprised of the date and mode
by which the probation case was closed.
For strict compliance.
July 22, 2008.
(Sgd.) JOSE P. PEREZ
Court Administrator
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TO:
THE
COURT
OF
APPEALS,
SANDIGANBAYAN, COURT OF TAX APPEALS,
REGIONAL TRIAL COURTS, SHARI’A DISTRICT
COURTS, METROPOLITAN TRIAL COURTS,
MUNICIPAL TRIAL COURTS IN CITIES,
MUNICIPAL TRIAL COURTS, MUNICIPAL
CIRCUIT TRIAL COURTS, SHARI’A CIRCUIT
COURTS, THE OFFICE OF THE STATE
PROSECUTOR, PUBLIC ATTORNEY’S OFFICE
AND THE INTEGRATED BAR OF THE
PHILIPPINES
TO: THE COURT OF APPEALS, SANDIGANBAYAN,
COURT OF TAX APPEALS, REGIONAL TRIAL
COURTS, SHARI’A DISTRICT COURTS,
METROPOLITAN TRIAL COURTS, MUNICIPAL
TRIAL COURTS IN CITIES, MUNICIPAL TRIAL
COURTS, MUNICIPAL CIRCUIT TRIAL COURTS,
SHARI’A CIRCUIT COURTS, THE OFFICE OF THE
STATE PROSECUTOR, PUBLIC ATTORNEY’S
OFFICE AND THE INTEGRATED BAR OF THE
PHILIPPINES
SUBJECT: ALL PRACTICING MEMBERS OF THE
BAR TO INDICATE IN ALL PLEADINGS FILED
BEFORE THE COURTS OR QUASI-JUDICIAL
BODIES THE NUMBER AND DATE OF ISSUE OF
THEIR MCLE CERTIFICATE OF COMPLIANCE OR
CERTIFICATE OF EXEMPTION
For the information and guidance of all
concerned, quoted hereunder is the Resolution of the
Court En Banc dated June 3, 2008, Bar Matter No. 1922,
to wit:
xxxx
The
Court
further
Resolved,
upon
recommendation of the Committee on Legal
Education and Bar Matters, to REQUIRE
practicing members of the Bar to INDICATE in
all pleadings filed before the courts or quasijudicial bodies, the number and date of issue of
their MCLE Certificate of Compliance or
Certificate of Exemption, as may be applicable,
for the immediately preceding compliance
period. Failure to disclose the required
information would cause the dismissal of the case
and the expunction of the pleadings from the
records.
The New Rule shall take effect 60 days after its
publication in a newspaper of general
circulation.
The New Rule was published in the June 26, 2008
issue of the Manila Bulletin.
July 22, 2008.
Court Administrator
SUBJECT: GUIDELINES FOR MCLE COMPLIANCE
OF NEW LAWYERS IN VIEW OF BAR MATTER NO.
1922, S. 2008
The MCLE Governing board in its meeting of
February 6, 2008 laid down the guidelines for
compliance by new lawyers with the MCLE
requirements under Section 3 (a) of Bar Matter No. 850,
as follows:
Where four months or less remain of current
compliance period upon admission or readmission
to the Bar, the member is not required to comply
with the MCLE program requirement for the said
compliance period.
Thus, lawyers who pass the Bar when only four
months or less remain of the compliance period, are
exempted from complying with the MCLE requirement
for the said compliance period. They shall comply with
MCLE requirement for the next compliance period.
However, lawyers who are admitted to the Bar
either one year after the start of the current compliance
period, or two years after the start of the said
compliance period, are required to comply with the
MCLE requirements in accordance with the MCLE
Governing Board Resolution dated October 20, 2004,
i.e. those admitted one year after the start of the current
compliance period must comply with two-thirds of
the credit units required (24 c.u.) for that period; while
those admitted two years after the start of compliance
period should comply with one-third of the required
credit units (12 c.u.).
LAWYERS ADMITTED TO THE BAR
ONE YEAR AFTER THE START OF THE
COMPLIANCE PERIOD*
MCLE Subject: Updates on Substantive and
Procedural Laws and Jurisprudence
Number of Units/Hours Required: 6
MCLE Subject: MCLE Committee Prescribed Subjects
July -- September
September 2008
2008
July
RESOLUTIONS,
PHILJA NEWS
25
OCA Circular No. 67-2008 (continued)
MCLE Subject: Legal Ethics
Number of Units /Hours Required: 4
MCLE Subject: Alternative Dispute Resolution
MCLE Subject: Legal Writing and Oral Advocacy
MCLE Subject: Trial and Pre-Trial Skills
MCLE Subject: International Law and International
Conventions
Total: 24 Credit Units
*This is the MCLE compliance of 2002 and 2005 lawyers
LAWYERS ADMITTED TO THE BAR
TWO YEARS AFTER THE START OF THE
COMPLIANCE PERIOD
MCLE Subject: Updates on Substantive and
Procedural Laws and Jurisprudence
MCLE Subject: MCLE Committee Prescribed Subjects
MCLE Subject: Legal Ethics
Number of Units /Hours Required: 2
MCLE Subject: Alternative Dispute Resolution
MCLE Subject: Legal Writing and Oral Advocacy
MCLE Subject: Trial and Pre-Trial Skills
MCLE Subject: International Law and International
Conventions
Total: 12 Credit Units
Lawyers who have complied with the MCLE
requirement may secure an MCLE Certificate of
Compliance the number and date of issue of which shall
be indicated under their signature in all pleadings filed
by them before the courts and quasi-judicial bodies
pursuant to Bar Matter No. 1922, s. 2008.
For your information.
July 22, 2008.
Court Administrator
TO: ALL EXECUTIVE JUDGES OF REGIONAL
TRIAL COURTS, PRESIDING JUDGES AND
CLERKS OF COURT/BRANCH CLERKS OF COURT
OF REGIONAL TRIAL COURTS HANDLING
DRUGS CASES
SUBJECT: EXEMPTION OF THE PHILIPPINE
DRUG ENFORCEMENT AGENCY (PDEA) FROM
PAYMENT OF FEES FOR COPIES OF TRANSCRIPT
OF STENOGRAPHIC NOTES (TSN)
WHEREAS, Rule 141 of the Revised Rules of
Court, provides that:
SEC. 11. Stenographers. – Stenographers shall give
certified transcript of notes taken by them to
every person requesting the same upon
payment to the Clerk of Court of (a) TEN PESOS
(P10.00) for each page of not less than 250 words
before the appeal is taken and (b) FIVE PESOS
(P5.00) for the same page, after the filing of the
appeal, provided, however, that one-third of the
total charges shall accrue to the Judiciary
Development Fund (JDF) and the remaining twothirds to the stenographer concerned.
WHEREAS, pursuant to a resolution of the Court
En Banc dated June 3, 2008 in A.M. No. 08-4-9-SC, the
Court resolved to “NOTE and GRANT the request of
(Ret.) General Dionisio R. Santiago, Senior
Undersecretary/Director General, Philippine Drug
Enforcement Agency (PDEA) to allow the PDEA to
acquire copies of Transcripts of Stenographic Notes
(TSN) free of charge from Drug Courts.”
NOW, THEREFORE, the Philippine Drug
Enforcement Agency (PDEA) is now exempted from
the provisions of Sec. 11, Rule 141 of the Revised Rules
of Court and is, henceforth, allowed to secure copies
of the Transcript of Stenographic Notes taken during
the proceedings of drugs cases free of charge.
August 13, 2008
Court Administrator
26
and (d) rename the Supreme Court
Motorcycle and Computer Acquisition
Program (SC-MCAP) as Supreme Court
Motorcycle, Computer and Handgun
Acquisition Program or SC-MCHAP;
TO: ALL JUDGES, CLERKS OF COURT, BRANCH
CLERKS OF COURT AND OFFICERS-IN-CHARGE
OF THE LOWER COURTS
SUBJECT: MAILING OF CORRESPONDENCE
In line with the directive enunciated in OCA
Circular No. 151-2003 dated October 23, 2003, all
Judges, Clerks of Court and Branch Clerks of Court
are hereby directed to: (a) include only one (1) report
and/or matter in each envelope to be submitted to the
Office of the Court Administrator; and (b) specify in
the mailing envelope the appropriate office of the
Office of the Court Administrator for which the
communication is intended.
Judges and Clerks of Court/Officers-in-Charge are
hereby reminded to strictly comply with this directive
in order to expedite action on all communications
received by the Office of the Court Administrator.
PHILJA Bulletin
Bulletin
PHILJA
(2) CHARGE the allocation of Ten Million Pesos
(P10 million) for the Handgun Acquisition
Program to the Judiciary Development Fund;
(3) APPROVE the Official Application Form for
the Handgun Acquisition Program;
(4)
xxxx
For your information and guidance.
August 29, 2008
Court Administrator
August 13, 2008.
Court Administrator
TO: ALL JUDGES AND CLERKS OF COURT OF THE
FIRST AND SECOND LEVEL COURT
TO: FIRST AND SECOND LEVEL COURT JUDGES
SUBJECT: AMENDED GUIDELINES ON THE
HANDGUN ACQUISITION PROGRAM FOR
JUDGES
The Supreme Court En Banc in its Resolution dated
June 17, 2008 in A.M. No. 08-3-13-SC, Re: Proposed
Guidelines on the Handgun Acquisition Program for
Judges, Resolved among others, upon the
recommendation of the Supreme Court Motorcycle and
Computer Acquisition Program (SC-MCAP)
Committee with the recommending approval of Court
Administrator Zenaida N. Elepano, to
(1) AMEND the Guidelines on the Handgun
Acquisition Program to (a) include judges of
the Shari’a District Court and Circuit Courts;
(b) increase the minimum leave credits
requirement from 30 days to 60 days; (c)
delete the sixth paragraph of Section A (Re:
Filing and Processing of Applications,
Delivery and Payment, to wit: it is understood
the gun shall remain the property of the
Supreme Court until the judge-borrower
satisfies in full his/her obligation to the court;
SUBJECT:
GUIDELINES
ON
THE
SOLEMNIZATION OF MARRIAGE BY THE
MEMBERS OF THE JUDICIARY
The Supreme Court En Banc in its Resolution dated
August 12, 2008 in A.M. No. 08-7-429-RTC, Re: Queries
and Comments of Judges on Administrative Order No.
125-2007 [Guidelines on the Solemnization of
Marriage by the Members of the Judiciary.– The Court
Resolved, among others upon the recommendation of
the Court Administrator, to
x x x x
(c) DIRECT the Judges of multiple sala courts
to strictly observe the raffling of requests
for solemnization of marriage because of
numerous anomalies discovered in the
solemnization of marriage during various
judicial audits in the lower court. Unless for
valid reasons, the refusal of a judge to
participate in the raffle of request for
solemnization of marriage shall be construed
as shirking from judicial duty;
(d) DISALLOW special raffle in the
solemnization of marriage except in very
remote cases i.e. the judge to whom the
request was raffled cannot perform the
July -- September
September 2008
2008
July
RESOLUTIONS,
PHILJA NEWS
27
Chancellor’ss Desk
F rom the Chancellor’
marriage due to any fortuitous event or
unavoidable circumstances. Likewise,
assigning individual request to a certain judge
is disallowed so as not to defeat the purpose
of the issuance of the abovementioned Order;
and
(e) REQUIRE all request for solemnization of
marriage in instances where the offices of the
first and second level courts (multiple sala or
not) are located in the same Hall of Justice, to
be filed with the Office of the Clerk of Court
of the Regional Trial Court of said area. The
requests would then be raffled and equally
distributed among the first and second level
court judges thereat.
September 8, 2008
Court Administrator
TO: ALL JUDGES AND CLERKS OF COURT OF THE
REGIONAL TRIAL COURT
SUBJECT: REQUEST OF THE DANGEROUS DRUGS
BOARD TO BE FURNISHED COPIES OF
SUBPOENAS AND/OR SHOW CAUSE ORDERS
In a letter dated August 11, 2008, Undersecretary
Edgar C. Galvante, Secretary of the Board, Dangerous
Drugs Board (DDB) requests that the Board be furnished
copies of subpoenas and/or show cause orders that are
issued to police witnesses so that it can effectively
monitor the progress of drug-related cases.
Thus, you are DIRECTED to furnish copies of court
notices of cases pending in the National Capital Region
to the Dangerous Drugs Board, 3F, DDB-PDEA Building,
NIA Road, National Government Center, East Triangle,
Diliman, Quezon City, Philippines while, copies of
court notices of drug-related cases that are pending in
the provinces shall be forwarded to the respective
Regional Offices of the DDB.
September 17,2008
Court Administrator
(Continued from page 1)
In the same breath, and with equal zeal,
PHILJA gathered for a roundtable discussion of
women leaders known for their respective
implementation of environmental policy in their
own areas. Likewise, we got together
environmental court judges in a SeminarWorkshop on Managing Environmental Cases,
whose active participation in the open forums
reflected their leadership and wise counsel. These
activities were the result of the request of the US
Environmental Protection Agency for our
comments and inputs on the draft environmental
program for judges that they had earlier crafted.
Our continuing programs for newly
appointed judges and clerks of court facilitated
their acquisition of knowledge and skills that
would help them successfully assume office and
effectively discharge their duties.
The 16th Pre-Judicature Program, offering
complete compliance with MCLE requirements,
was the most well-attended, with 46 lawyeraspirants for judicial posts.
Described in greater detail in the succeeding
pages are the 62 seminar-workshops held in this
very busy quarter, for an average of 20 seminars
per month or practically one seminar a day.
As we look forward to a less hectic pace in
the next quarter and the onset of the holiday
season, we close with a message of fulfillment
and gratitude to all who continue to support us
in our constant search for new directions that
will propel our goals for an independent, upright,
credible and excellent judiciary.
Ameurfina A. Melencio Herrera
Chancellor
PHILJA Bulletin
Bulletin
PHILJA
PHILJA NEWS
PRIVATE
PHILJA Bulletin
Bulletin
PHILJA
OR UNAUTHORIZED USE TO AVOID
PAYMENT OF POSTAGE IS PENALIZED BY FINE OR
IMPRISONMENT OR BOTH.
3rd Floor, Supreme Court Centennial Building
Padre Faura St. cor. Taft Ave., Manila, Philippines
1000
2008
2008 Upcoming
Upcoming PHILJA
PHILJA Events
Events

Volume X, Issue No. 39 July-September 2008

Transcription

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