April-June 2011April-June 2011 PHILJA NEWSPHILJA NEWS 1philja.judiciary.gov.ph/files/bulletin/Bul50.pdf · 2019-11-19 · April-June 2011April-June 2011 PHILJA NEWSPHILJA NEWS 1 T

PHILJA NEWSPHILJA NEWS 1April-June 2011April-June 2011

��

��

��

��

�

��

�

��

��

��

��

April to June 2011 Volume XIII, Issue No. 50

Excellence

in

the

Judiciary

Excellence

in

the

Judiciary

SUPREME COURT

RE

PU

BLIC

OF THE PHILIP

PI N

ES

BATAS AT BAYAN

PHILJA BulletinPHILJA BulletinPHILJA NEWS2

(ELK) and enforced disappearances (ED). It is intendedto (a) further disseminate the knowledge shared duringthe PHILJA seminar-workshops on extralegal killings andenforced disappearances; (b) provide applicable laws,systems, and processes to guide the different pillars ofthe justice system, the NGOs, and the community on howbest to address the needs of victims of human rightsviolations with the view of effectively resolving cases ofELKs and EDs; and (c) identify gaps in the legal systemand processes of concerned agencies and makerecommendations on how to address these gaps.

In his message, UNDP Country Director RenaudMeyer described the book, Access to Environmental Justice:A Sourcebook on Environmental Rights and Legal Remedies as“a rich and valuable sourcebook on the access points toand the procedures of Environmental Justice” andemphasized that it is “not only for the judicial courts, butalso for government departments, internationalorganizations, communities, and individuals, all of whomnow have the tools with which to implementEnvironmental Justice themselves.”

USAID Deputy Chief Mr. Daniel Miller, in his message,acknowledged the Supreme Court of the Philippines andthe Philippine Judicial Academy for making the Helpbookon Human Rights Issues: Extralegal Killings and EnforcedDisappearances available and expressed the hope that theHelpbook will serve as a user-friendly reference for abetter response of all to cases of human rights violations.TAF Country Representative Dr. Steven Roodcommended the hard work, research and thoroughdiscussions of representatives of various sectors fromall over the country that led to the production of this“important and useful work x x x written as a guide for allstakeholders” and in clear and easy to understandlanguage.

Chief Justice Renato C. Corona, in his keynoteaddress, acknowledged the support of the UNDP andthe USAID, and congratulated the PHILJA for initiatingthe training of judges, prosecutors, and other keystakeholders in order to build their capacity to hearand adjudicate environmental and human rights cases.

The event was attended by Supreme Court andCourt of Appeals Justices, Supreme Court officials,PHILJA officials and staff, and representatives from theAlternative Law Groups (ALG), Armed Forces of thePhilippines (AFP), Ateneo Human Rights Center (AHRC),Ateneo Law School, Australian Embassy, Commission onHuman Rights (CHR), Department of Energy and NaturalResources (DENR), Department of Justice (DOJ), Familiesof Victims of Involuntary Disappearances (FIND),National Bureau of Investigation (NBI), Philippine Allianceof Human Rights Advocates (PAHRA), Philippine CoastGuard (PCG), Philippine National Police (PNP), The AsiaFoundation (TAF), United Nations DevelopmentProgramme-Philippines (UNDP), United States Agencyfor International Development (USAID), and Upholding

Life and Nature (ULAN).

Launch of the Sourcebook onEnvironmental Rights and Legal Remediesand the Helpbook on Human Rights Issues:

Extralegal Killings and Enforced Disappearances

The Supreme Court of the Philippines and thePhilippine Judicial Academy, together with the ProgramManagement Office (PMO), and in partnership with theUnited Nations Development Programme (UNDP), theUnited States Agency for International Development(USAID) and The Asia Foundation (TAF), held a back-to-back launching of the books Access to Environmental Justice:A Sourcebook on Environmental Rights and Legal Remedies andthe Helpbook on Human Rights Issues: Extralegal Killings andEnforced Disappearances on June 10, 2011, at the New

Building Lobby, Supreme Court, Manila.

The Access to Environmental Justice: A Sourcebook onEnvironmental Rights and Legal Remedies was produced alongwith a Capacity Assessment Report on EnvironmentalJustice, both outcomes of the UNDP project entitled“Development of Framework and Capacity Assessmenton Environmental Justice” under the Enhancing Accessto the Pillars of Justice Component of the UNDP’sFostering Democratic Governance Programme. TheSourcebook lays down the principles and framework ofenvironmental justice in the Philippines, identifies theemerging trends in environmental jurisprudence and bestpractices, and recommends strategies to remedy policygaps and to promote and enhance Environmental Justicein the Philippine legal system.

On the other hand, the Helpbook on Human Rights Issues:Extralegal Killings and Enforced Disappearances, funded bythe USAID, through The Asia Foundation, focuses on stateresponsibility, human rights and humanitarian law, thedoctrine of command responsibility, extralegal killings


Seminar-Workshop on Dangerous Drugs Lawfor Judges, Prosecutors and Law Enforcers ofRegions IX, X, XI, and XII

Development Partners: DDBDate: April 5 to 7, 2011Venue: Royal Mandaya Hotel, Davao CityParticipants: 134 comprising RTC and SHCC judges,prosecutors and law enforcers of Regions 9 to 12

Convention and Seminar and Election ofOfficers of the Sheriffs’ Confederation of thePhilippines (SCOPHIL)

Theme: Tapat sa Tungkulin, Sapat na Kaalaman, Susisa PagbabagoDate: April 5 to 7, 2011Venue: Ibalong Center for Recreation, Legazpi TerminalCompound, Bitano, Legazpi CityParticipants: 689 court sheriffs

Third Seminar-Workshop on the Special Rulesof Court on Alternative Dispute Resolution

Date: April 12 to 14, 2011Venue: Montebello Villa Hotel, Cebu CityParticipants: 29 RTC judges from Regions 3, 6, 7, and 8

Eighth National Convention and Election ofOfficers of the Process Servers Association ofthe Philippines (PROSAPHIL)

Theme: The Role of Process Servers in the SpeedyAdministration of JusticeDate: April 13 to 15, 2011Venue: Brokenshire Resort and Convention Center,Madapo, Davao City

Participants: 414 process servers

Seminar-Workshop on Land Valuation and JustCompensation for Special Agrarian CourtJudges

Development Partners: DAR, LBP

Date: April 13 to 15, 2011Venue: Taal Vista Hotel, Tagaytay CityParticipants: 61 comprising Special Agrarian CourtJudges of NCJR and Regions 1 to 5 and LBP Lawyers

Date: May 17 to 19, 2011Venue: Flushing Meadows Resort, Panglao, BoholParticipants: 57 Special Agrarian Court Judges andrepresentatives of DAR and LBP from Regions 6 to 12

“Constitution and Peace: Lessons from PeaceAgreements” – A Roundtable Discussion

Development Partners: Conciliation ResourcesInternational Alert, Ateneo Law SchoolDate: April 15, 2011Venue: En Banc Conference Room, Supreme Court,ManilaParticipants: 14 comprising Supreme Court and Courtof Appeals justices, PHILJA officials and AcademicCouncil Curricular Departments chairpersons,representatives from International Alert and otherguests

Seminar-Workshop on the Rule of Procedure forSmall Claims Cases for NCJR and Luzon

Development Partners: USAID, ABA-ROLIDate: April 26, 2011Venue: Traders Hotel, Pasay CityParticipants: 44 comprising MeTC, MTC, and MCTCjudges and clerks of court of NCJR and Luzon Regions

Multi-Sectoral Capacity Building onEnvironmental Laws and the Rules of Procedurefor Environmental Cases

Development Partners: DENR, USAID, United States-Department of the Interior, PMO

Date: April 27 to 29, 2011Venue: Imperial Palace Suites, Quezon CityParticipants: 96 comprising RTC and MTCC judges andbranch clerks of court, prosecutors, PAO lawyers,representatives from DENR, BFAR, PCG, PNP, LGU,NGO of CALABARZON Region

Date: May 25 to 27, 2011Venue: Holiday Inn Clark, PampangaParticipants: 89 comprising RTC and MTCC judges andbranch clerks of court, prosecutors, PAO lawyers,representatives from BFAR, PCG, Federation of PhilippineIndustries, and PNP of Region 3

Seminar-Workshop on CEDAW and GenderSensitivity for the Judges, Clerks of Court, LegalResearchers, and Interpreters

Development Partners: CGRJ, Sub committee on Trainingand Capacity Building, AHRC

City of DumagueteDate: April 28 to 29, 2011Venue: Plaza Maria Luisa Suites Inn, Dumaguete CityParticipants: 56 comprising RTC and MTCC judges,clerks of court, court legal researchers, and courtinterpreters


Province of PalawanDate: May 12 to 13, 2011Venue: Hotel Fleuris, Puerto Princesa City, PalawanParticipants: 49 comprising RTC, MTCC, MTC and MCTCjudges, clerks of courts, court legal researchers andcourt interpreters

National Capital Judicial RegionDate: June 2 to 3, 2011Venue: Century Park Hotel, ManilaParticipants: 44 comprising selected RTC judges andclerks of court

Information Dissemination Through a Dialoguebetween Barangay Officials and Court Officials

City of DipologDate: May 5, 2011Venue: Atrium, Top Plaza Hotel, Dipolog CityParticipants: 102 barangay officials

City of OroquietaDate: May 6, 2011Venue: Farmers Cultural and Training Center,Provincial Capitol, Oroquieta CityParticipants: 154 barangay officials

Municipalities of Ipil and Imelda and the City ofZamboangaDate: June 2, 2011Venue: Grand Astoria Hotel, Zamboanga CityParticipants: 388 barangay officials

City of AntipoloDate: June 9, 2011Venue: Ynares Sports Complex, Antipolo CityParticipants: 177 barangay officials

City of Isabela, BasilanDate: June 30, 2011Venue: Querexeta Formation Center, Isabela City,BasilanParticipants: 76 barangay officials

Seminar on Speedy Trial and Disposition ofCases

Development Partners: USAID, ABA-ROLIDate: May 13, 2011Venue: Pryze Plaza Hotel, Cagayan de Oro CityParticipants: 52 comprising RTC and MTCC judges fromRegions 9 to 12

Sixth National Convention and Seminar of theCourt Stenographers Association of thePhilippines (COSTRAPHIL)

Theme: COSTRAPHIL: Moving Forward to a SustainedGrowth and Leadership through Professionalism andIntegrity

Date: May 18 to 20, 2011Venue: Grand Men Seng Hotel, Davao City

Participants: 2174 court stenographers

Orientation Conference with Stakeholders onCourt-Annexed Mediation (Isabela MediationProgram)

Date: May 24, 2011Venue: The Hotel Andrea, Cauayan City, IsabelaParticipants: 95 comprising RTC, MTCC, MTC, and MCTCjudges, clerks of court, branch clerks of court, andstakeholders from the province of Isabela

Convention and Seminar of the Court LibrariansAssociation of the Philippines (CLAPHIL)

Theme: The Challenges and Information ServicesDelivery of Court Libraries in an Environment ofChange and ReformsDate: May 25 to 27, 2011Venue: Santa Monica Beach Resort, Dumaguete CityParticipants: 20 court librarians

Judicial Settlement Conference for Judges onJudicial Dispute Resolution (JDR)(Skills-BasedCourse)

Development Partner: IBP Davao ChapterDate: May 31 to June 2, 2011Venue: Grand Regal Hotel, Davao CityParticipants: 41 RTC, MTCC, MTC, and MCTC judges

from Davao and Misamis Oriental

Orientation of Clerks of Court, PublicProsecutors, Public Attorneys, and LawPractitioners of Davao on Judicial DisputeResolution

Development Partner: IBP Davao ChapterDate: June 1, 2011Venue: Grand Regal Hotel, Davao CityParticipants: 98 RTC, MTCC, MTC, and MCTC clerks ofcourt, public prosecutors, public attorneys and lawpractitioners of Davao

Seminar-Workshop on Combating HumanTrafficking in the Philippines

Development Partners: US Department of Justice CriminalDivision, USAID, ABA-ROLI

Date: June 15 to 16, 2011Venue: Waterfront Insular Hotel, Davao CityParticipants: 45 comprising RTC judges and prosecutorsfrom Regions 9 to 12


PHILJA BulletinPHILJA Bulletin6 NEW RULINGS AND DOCTRINAL REMINDERS OF THE SUPREME COURT

New Ruling

REMEDIAL LAW

Law on Evidence–DNA Evidence; DNA testingorder.

The Rule on DNA Evidence was enacted to guidethe Bench and the Bar for the introduction and use ofDNA evidence in the judicial system. It provides the“prescribed parameters on the requisite elements forreliability and validity (i.e., the proper procedures,protocols, necessary laboratory reports, etc.), thepossible sources of error, the available objections tothe admission of DNA test results as evidence as wellas the probative value of DNA evidence.” It seeks “toensure that the evidence gathered, using variousmethods of DNA analysis, is utilized effectively andproperly, [and] shall not be misused and/or abusedand, more importantly, shall continue to ensure thatDNA analysis serves justice and protects, rather thanprejudice the public.”

Not surprisingly, Section 4 of the Rule on DNAEvidence merely provides for conditions that are aimedto safeguard the accuracy and integrity of the DNA

testing. Section 4 states:

SEC. 4. Application for DNA Testing Order. – Theappropriate court may, at any time, either motuproprio or on application of any person who has alegal interest in the matter in litigation, order aDNA testing. Such order shall issue after duehearing and notice to the parties upon a showingof the following:

(a) A biological sample exists that is relevant tothe case;

(b) The biological sample: (i) was not previouslysubjected to the type of DNA testing nowrequested; or (ii) was previously subjectedto DNA testing, but the results may requireconfirmation for good reasons;

(c) The DNA testing uses a scientifically validtechnique;

(d) The DNA testing has the scientific potentialto produce new information that is relevantto the proper resolution of the case; and

(e) The existence of other factors, if any, whichthe court may consider as potentiallyaffecting the accuracy or integrity of the DNAtesting.

This Rule shall not preclude a DNA testing,without need of a prior court order, at the behestof any party, including law enforcement agencies,

before a suit or proceeding is commenced.

This does not mean, however, that a DNA testingorder will be issued as a matter of right if, during thehearing, the said conditions are established.

In some states, to warrant the issuance of the DNAtesting order, there must be a show cause hearingwherein the applicant must first present sufficientevidence to establish a prima facie case or a reasonablepossibility of paternity or “good cause” for the holdingof the test. In these states, a court order for bloodtesting is considered a “search,” which, under theirConstitutions (as in ours), must be preceded by afinding of probable cause in order to be valid. Hence,the requirement of a prima facie case, or reasonablepossibility, was imposed in civil actions as acounterpart of a finding of probable cause. TheSupreme Court of Louisiana eloquently explained –

Although a paternity action is civil, not criminal,the constitutional prohibition againstunreasonable searches and seizures is stillapplicable, and a proper showing of sufficientjustification under the particular factualcircumstances of the case must be made beforea court may order a compulsory blood test.Courts in various jurisdictions have differedregarding the kind of procedures which arerequired, but those jurisdictions have almostuniversally found that a preliminary showingmust be made before a court can constitutionallyorder compulsory blood testing in paternitycases. We agree, and find that, as a preliminarymatter, before the court may issue an order forcompulsory blood testing, the moving party mustshow that there is a reasonable possibility ofpaternity. As explained hereafter, in cases inwhich paternity is contested and a party to theaction refuses to voluntarily undergo a blood test,a show cause hearing must be held in which thecourt can determine whether there is sufficientevidence to establish a prima facie case whichwarrants issuance of a court order for blood

testing.

The same condition precedent should be appliedin our jurisdiction to protect the putative father frommere harassment suits. Thus, during the hearing onthe motion for DNA testing, the petitioner mustpresent prima facie evidence or establish a reasonablepossibility of paternity.

Notwithstanding these, it should be stressed thatthe issuance of a DNA testing order remainsdiscretionary upon the court. The court may, forexample, consider whether there is absolute necessityfor the DNA testing. If there is already preponderanceof evidence to establish paternity and the DNA testresult would only be corroborative, the court may, in

its discretion, disallow a DNA testing.

(Nachura, J., Jesse U. Lucas v. Jesus S. Lucas, G.R. No. 190710,

June 6, 2011.)

PHILJA NEWS 7NEW RULINGS AND DOCTRINAL REMINDERS OF THE SUPREME COURTApril-June 2011April-June 2011

ADMINISTRATIVE LAW

Contracts involving expenditure of public funds;requirements to be valid.

The Administrative Code of 1987 expresslyprohibits the entering into contracts involving theexpenditure of public funds unless two priorrequirements are satisfied. First, there must be anappropriation law authorizing the expenditurerequired in the contract. Second, there must beattached to the contract a certification by the properaccounting official and auditor that funds have beenappropriated by law and such funds are available.Failure to comply with any of these two requirementsrenders the contract void.

In several cases, the Court had the occasion to applythese provisions of the Administrative Code of 1987and the Government Auditing Code of the Philippines.In these cases, the Court clearly ruled that the tworequirements – the existence of appropriation and theattachment of the certification – are “conditions sinequa non for the execution of government contracts.”

In COMELEC v. Quijano-Padilla, we stated:

It is quite evident from the tenor of the languageof the law that the existence of appropriationsand the availability of funds are indispensableprerequisites to or conditions sine qua non for theexecution of government contracts. The obviousintent is to impose such conditions as a priori

requisites to the validity of the proposed contract.

The law expressly declares void a contract thatfails to comply with the two requirements, namely,an appropriation law funding the contract and acertification of appropriation and fund availability.The clear purpose of these requirements is to insurethat government contracts are never signed unlesssupported by the corresponding appropriation lawand fund availability.

The three contracts between PNR and Kanlaon donot comply with the requirement of a certification ofappropriation and fund availability. Even if acertification of appropriation is not applicable to PNRif the funds used are internally generated, still acertificate of fund availability is required. Thus, thethree contracts between PNR and Kanlaon are voidfor violation of Sections 46, 47, and 48, Chapter 8,Subtitle B, Title I, Book V of the Administrative Codeof 1987, as well as Sections 85, 86, and 87 of theGovernment Auditing Code of the Philippines.

(Carpio, J., Philippine National Railways v. Kanlaon ConstructionEnterprises Co., Inc., G.R. No. 182967, April 6, 2011.)

Doctrinal Reminders Casual or temporary employees enjoy securityof tenure.

By the nature of their employment, casualemployees were deemed to be not covered by thesecurity of tenure protection as they could be removedfrom the service at anytime, with or without cause.Then came the recent case of Moral, which was thebasis of the CA Decision where the Court resolved theissue of whether or not a shuttle bus driver could beterminated from his casual employment withoutcause. Pertinent portions of the said en bancResolution reads:

Article IX (B) of the Constitution

SEC. 2. x x x

(3) No officer or employee of the civil serviceshall be removed or suspended except forcause provided by law.

x x x x

(6) Temporary employees of the Governmentshall be given such protection as may beprovided by law.

The Civil Service Law

SEC. 46. Discipline: General Provisions. – (a) No officeror employee in the Civil Service shall besuspended or dismissed except for cause asprovided by law after due process.

Further, Civil Aeronautics Administration v. IAC heldthat “the mantle of protection against arbitrarydismissals is accorded to an employee even ifhe is a non-eligible and holds a temporaryappointment.”

Hence, a government employee holding a casualor temporary employment cannot be terminatedwithin the period of his employment except forcause. [Emphases supplied]

The Court further stated in Moral that since therewas no evidence supporting the charge of gross neglectof duty on the part of respondent, the recommendationof the Office of Administrative Services (OAS) for hisdismissal on the ground that he was a mere casualemployee could not be sustained. The Court wrotethat:

x x x. Even a casual or temporary employee enjoyssecurity of tenure and cannot be dismissed exceptfor cause enumerated in Sec. 22, Rule XIV of theOmnibus Civil Service Rules and Regulations andother pertinent laws. [Emphasis supplied]

Despite this new ruling on casual employees, it isnot the intention of the Court to make the status of acasual employee at par with that of a regular

(Continued on next page)


Doctrinal RemindersADMINISTRATIVE LAW (continued)

employee, who enjoys permanence of employment.The rule is still that casual employment will ceaseautomatically at the end of the period unless renewedas stated in the Plantilla of Casual Employment.Casual employees may also be terminated anytimethough subject to certain conditions or qualificationswith reference to the abovequoted CSC Form No. 001.Thus, they may be laid off anytime before theexpiration of the employment period provided any ofthe following occurs: (1) when their services are nolonger needed; (2) funds are no longer available; (3)the project has already been completed/finished; or(4) their performance are below par.

Equally important, they are entitled to dueprocess especially if they are to be removed for moreserious causes or for causes other than the reasonsmentioned in CSC Form No. 001. This is pursuant toSection 2, Article IX(B) of the Constitution and Section46 of the Civil Service Law. The reason for this is thattheir termination from the service could carry apenalty affecting their rights and future employmentin the government.

In the case at bench, the action of petitionersclearly violated Lapid’s basic rights as a casualemployee. As pointed out by the CSC itself, Lapid wasNEVER formally charged with the administrativeoffenses of Discourtesy in the Course of Official Dutiesand Grave Misconduct. According to the CSC, theFormal Charge, was even unsigned, and itcategorically stated that PCSO failed to observe dueprocess.

Lapid moved for the reconsideration of ResolutionNo. 340. In Resolution No. 401, Series of 2005, the Boardof Directors of PCSO, upon the recommendation ofthe Assistant General Manager for Online LotterySector and the Manager of the Northern and CentralLuzon, denied said motion for reconsideration. It wasonly in the said resolution that it was belatedly statedthat her services was no longer needed per the list ofPlantilla of Casual Appointment. This was an emptystatement, however, as this was not substantiated.

Section 3(2), Article XIII of the Constitutionguarantees the rights of all workers not just in termsof self-organization, collective bargaining, peacefulconcerted activities, the right to strike withqualifications, humane conditions of work, and aliving wage but also to security of tenure. Likewise,Section 2(3), Article IX-B of the Constitution providesthat “no officer or employee of the civil service shallbe removed or suspended except for cause provided

by law.” Apparently, the Civil Service Law echoes thisconstitutional edict of security of tenure of theemployees in the civil service. Thus, Section 46 (a) ofthe Civil Service Law provides that “no officer oremployee in the Civil Service shall be suspended ordismissed except for cause as provided by law afterdue process.” [Emphases supplied]

(Mendoza, J., Philippine Charity Sweepstakes Office Board of

Directors and Reynaldo P. Martin v. Marie Jean C. Lapid, G.R.

No. 191940, April 12, 2011.)

Misconduct; definition of; distinguished fromconduct prejudicial to the best interest of theservice.

In Manuel v. Calimag, Jr., the Court emphatically

ruled:

In order to be considered as “misconduct,” theact must have a “direct relation to and beconnected with the performance of his officialduties amounting either to maladministration orwillful, intentional neglect or failure to dischargethe duties of the office. Misconduct in office hasbeen authoritatively defined by Justice Tuazonin Lacson v. Lopez in these words: “Misconduct inoffice has a definite and well-understood legalmeaning. By uniform legal definition, it is amisconduct such as affects his performance ofhis duties as an officer and not such only asaffects his character as a private individual. Insuch cases, it has been said at all times, it isnecessary to separate the character of the manfrom the character of the officer x x x. It is settledthat misconduct, misfeasance, or malfeasancewarranting removal from office of an officer musthave direct relation to and be connected withthe performance of official duties amountingeither to maladministration or willful, intentionalneglect and failure to discharge the duties of theoffice x x x. More specifically, in Buenaventura v.Benedicto, an administrative proceeding againsta judge of the court of first instance, the presentChief Justice defines misconduct as referring ‘toa transgression of some established and definiterule of action, more particularly, unlawfulbehavior or gross negligence by the public

officer.’” [Emphasis ours, citations excluded]

In Cabalitan v. Department of Agrarian Reform, theCourt sustained the ruling of the CSC that the offensecommitted by the employee in selling fake UnifiedVehicular Volume Program exemption cards to hisofficemates during office hours was not gravemisconduct, but conduct prejudicial to the bestinterest of the service. In Mariano v. Roxas, the Courtheld that the offense committed by a CA employee inforging some receipts to avoid her private contractualobligations was not misconduct but conductprejudicial to the best interest of the service because


her acts had no direct relation to or connection withthe performance of her official duties.

Accordingly, the complained acts of respondentMayordomo constitute the administrative offense ofConduct Prejudicial to the Best Interest of the Service,which need not be related to or connected with thepublic officer’s official functions. As long as thequestioned conduct tarnishes the image and integrityof his/her public office, the corresponding penalty maybe meted on the erring public officer or employee.Under the Civil Service law and rules, there is noconcrete description of what specific acts constitutethe grave offense of Conduct Prejudicial to the BestInterest of the Service. Jurisprudence, however, isinstructive on this point. The Court has consideredthe following acts or omissions, inter alia, as ConductPrejudicial to the Best Interest of the Service:misappropriation of public funds, abandonment ofoffice, failure to report back to work without priornotice, failure to safekeep public records and property,making false entries in public documents andfalsification of court orders. The Court also consideredthe following acts as conduct prejudicial to the bestinterest of the service, to wit: a Judge’s act ofbrandishing a gun and threatening the complainantsduring a traffic altercation; a court interpreter ’sparticipation in the execution of a document conveyingcomplainant’s property which resulted in a quarrel in

the latter’s family.

(Mendoza, J., Government Service Insurance System (GSIS)

and Winston F. Garcia, in his capacity as President and General

Manager of the GSIS v. Arwin T. Mayordomo, G.R. No. 191218,

May 31, 2011.)

LABOR LAW

Gross insubordination; elements thereof.

Bascon v. Court of Appeals outlines the elements ofgross insubordination as follows:

As regards the appellate court’s finding thatpetitioners were justly terminated for grossinsubordination or wilful disobedience, Article 282of the Labor Code provides in part:

An employer may terminate an employmentfor any of the following causes:

(a) Serious misconduct or wilful disobedience bythe employee of the lawful orders of hisemployer or representative in connectionwith his work.

However, wilful disobedience of the employer’slawful orders, as a just cause for dismissal of an

Doctrinal RemindersADMINISTRATIVE LAW (continued)

employee, envisages the concurrence of at leasttwo requisites: (1) the employee’s assailed conductmust have been wilful, that is, characterized by awrongful and perverse attitude; and (2) the orderviolated must have been reasonable, lawful, madeknown to the employee and must pertain to theduties which he had been engaged to discharge.(Emphasis and underscoring supplied)

Clearly, petitioner’s adamant refusal to transfer,coupled with her failure to heed the order for her toreturn the company vehicle assigned to her and, moreimportantly, allowing her counsel to write letterscouched in harsh language to her superiorsunquestionably show that she was guilty ofinsubordination, hence, not entitled to the award ofseparation pay.

(Carpio Morales, J., Juliet G. Apacible v. Multimed IndustriesIncorporated and the Board of Directors of Multimed Industries,The President Mr. Joselito Tambunting, Managers Marlene L.Orozco, Veronica C. Timog, Olga F. Marino and Ma. Luz B. Yan,G.R. No. 178903, May 30, 2011.)

LAND REGISTRATION LAW

Reconstitution of Torrens Certificates of Title lost ordestroyed; mandatory character of the requirementsof Republic Act No. 26.

Our jurisprudence is replete with rulingsregarding the mandatory character of therequirements of RA No. 26. As early as 1982, theSupreme Court ruled:

Republic Act No. 26 entitled “An act providing aspecial procedure for the reconstitution ofTorrens Certificates of Title lost or destroyed”approved on September 25, 1946 confersjurisdiction or authority to the Court of FirstInstance to hear and decide petitions for judicialreconstitution. The Act specifically provides thespecial requirements and mode of procedure thatmust be followed before the court can properlyact, assume and acquire jurisdiction or authorityover the petition and grant the reconstitutionprayed for. These requirements and procedureare mandatory. The Petition for Reconstitutionmust allege certain specific jurisdictional facts;the notice of hearing must be published in theOfficial Gazette and posted in particular placesand the same sent or notified to specifiedpersons. Sections 12 and 13 of the Act providespecifically the mandatory requirements andprocedure to be followed.

Liberal construction of the Rules of Court does notapply to land registration cases. Indeed, to furtherunderscore the mandatory character of thesejurisdictional requirements, the Rules of Court do notapply to land registration cases. In all cases where the



authority of the courts to proceed is conferred by astatute, and when the manner of obtaining jurisdictionis prescribed by a statute, the mode of proceeding ismandatory, and must be strictly complied with, orthe proceeding will be utterly void. When the trialcourt lacks jurisdiction to take cognizance of a case, itlacks authority over the whole case and all its aspects.All the proceedings before the trial court, includingits order granting the petition for reconstitution, arevoid for lack of jurisdiction.

(Carpio, J., Bienvenido Castillo v. Republic of the Philippines,G.R. No. 182980, June 22, 2011.)

CRIMINAL LAW

Probable cause; definition of.

Probable cause, for purposes of filing a criminalinformation, has been defined as such facts as aresufficient to engender a well-founded belief that a crimehas been committed and that respondent is probablyguilty thereof, and should be held for trial. Probablecause is meant such set of facts and circumstances,which would lead a reasonably discreet and prudentman to believe that the offense charged in theInformation, or any offense included therein, has beencommitted by the person sought to be arrested. Indetermining probable cause, the average personweighs facts and circumstances without resorting tothe calibrations of the rules of evidence of which hehas no technical knowledge. He relies on commonsense. A finding of probable cause needs only to reston evidence showing that, more likely than not, a crimehas been committed and that it was committed by theaccused. Probable cause demands more than baresuspicion, but it requires less than evidence that wouldjustify a conviction.

A finding of probable cause does not require aninquiry as to whether there is sufficient evidence tosecure a conviction. It is enough that the act oromission complained of constitutes the offensecharged. The term does not mean “actual and positivecause” nor does it import absolute certainty. It ismerely based on opinion and reasonable belief. A trialis intended precisely for the reception of prosecutionevidence in support of the charge. The court is taskedto determine guilt beyond reasonable doubt based onthe evidence presented by the parties at a trial on themerits.

(Nachura, J., Clay & Feather International, Inc., Raul O. Arambulo,and Adam E. Jimenez III (for themselves and for Clay and FeatherInt’l., Inc. v. Alexander T. Lichaytoo and Clifford T. Lichaytoo,

G.R. No. 193105, May 30, 2011.)

REMEDIAL LAW

Certificate of non-forum shopping must be signedby the party; verification; pleadings that requireverification.

In Pajuyo v. Court of Appeals, the Supreme Courtpointed out that:

A party’s failure to sign the certification againstforum shopping is different from the party’sfailure to sign personally the verification. Thecertificate of non-forum shopping must be signedby the party, and not by counsel. The certificationof counsel renders the petition defective.

On the other hand, the requirement onverification of a pleading is a formal and not ajurisdictional requisite. It is intended simply tosecure an assurance that what are alleged in thepleading are true and correct and not the productof the imagination or a matter of speculation, andthat the pleading is filed in good faith. The partyneed not sign the verification. A party’srepresentative, lawyer or any person whopersonally knows the truth of the facts alleged in

the pleading may sign the verification.

In the case before us, we stress that as a generalrule, a pleading need not be verified, unless there is alaw or rule specifically requiring the same. Examplesof pleadings that require verification are: (1) allpleadings filed in civil cases under the 1991 RevisedRules on Summary Procedure; (2) petition for reviewfrom the Regional Trial Court to the Supreme Courtraising only questions of law under Rule 41, Section 2;(3) petition for review of the decision of the RegionalTrial Court to the Court of Appeals under Rule 42,Section 1; (4) petition for review from quasi-judicialbodies to the Court of Appeals under Rule 43, Section5; (5) petition for review before the Supreme Courtunder Rule 45, Section 1; (6) petition for annulment ofjudgments or final orders and resolutions under Rule47, Section 4; (7) complaint for injunction under Rule58, Section 4; (8) application for preliminary injunctionor temporary restraining order under Rule 58, Section4; (9) application for appointment of a receiver underRule 59, Section 1; (10) application for support pendentelite under Rule 61, Section 1; (11) petition for certiorariagainst the judgments, final orders or resolutions ofconstitutional commissions under Rule 64, Section 2;(12) petition for certiorari, prohibition, and mandamus underRule 65, Sections 1 to 3; (13) petition for quo warrantounder Rule 66, Section 1; (14) complaint forexpropriation under Rule 67, Section 1; (15) petitionfor indirect contempt under Rule 71, Section 4, all fromthe 1997 Rules of Court; (16) all complaints or petitionsinvolving intra-corporate controversies under theInterim Rules of Procedure on Intra-Corporate

Doctrinal RemindersLAND REGISTRATION LAW (continued)


Controversies; (17) complaint or petition forrehabilitation and suspension of payment under theInterim Rules on Corporate Rehabilitation; and (18)petition for declaration of absolute nullity of voidmarriages and annulment of voidable marriages aswell as petition for summary proceedings under theFamily Code.

In contrast, all complaints, petitions,applications, and other initiatory pleadings must beaccompanied by a certificate against forum shopping,first prescribed by Administrative Circular No. 04-94, which took effect on April 1, 1994, then later onby Rule 7, Section 5 of the 1997 Rules of Court. It isnot disputed herein that respondent’s complaint fordamages was accompanied by such a certificate.

In addition, verification, like in most casesrequired by the rules of procedure, is a formal, notjurisdictional, requirement, and mainly intended tosecure an assurance that matters which are allegedare done in good faith or are true and correct and notof mere speculation. When circumstances warrant,the court may simply order the correction ofunverified pleadings or act on it and waive strictcompliance with the rules in order that the ends ofjustice may thereby be served.

(Leonardo-De Castro, J., Vallacar Transit, Inc. v. Jocelyn Catubig,

G.R. No. 175512, May 30, 2011.)

Jurisdiction of the Commission on the Settlementof Land Problems (COSLAP).

The COSLAP was created by virtue of ExecutiveOrder (E.O.) No. 561, issued on September 21, 1979,by then President Ferdinand E. Marcos. It is anadministrative body established as a means ofproviding a mechanism for the expeditioussettlement of land problems among small settlers,landowners and members of the cultural minoritiesto avoid social unrest.

Section 3 of E.O. No. 561 specifically enumeratesthe instances when the COSLAP can exercise itsadjudicatory functions:

SEC. 3. Powers and Functions. – The Commissionshall have the following powers and functions:

x x x x

2. Refer and follow up for immediateaction by the agency havingappropriate jurisdiction any landproblem or dispute referred to theCommission: Provided, That theCommission may, in the followingcases, assume jurisdiction andresolve land problems or disputes

Doctrinal RemindersREMEDIAL LAW (continued)

which are critical and explosive innature considering, for instance, thelarge number of the parties involved,the presence or emergence of socialtension or unrest, or other similarcritical situations requiringimmediate action:

(a) Between occupants/squatters andpasture lease agreement holders ortimber concessionaires;

(b) Between occupants/squatters andgovernment reservation grantees;

(c) Between occupants/squatters andpublic land claimants or applicants;

(d) Petitions for classification, releaseand/or subdivision of lands of thepublic domain; and

(e) Other similar land problems of graveurgency and magnitude.

Administrative agencies, like the COSLAP, aretribunals of limited jurisdiction that can only wieldpowers which are specifically granted to it by itsenabling statute. Under Section 3 of E.O. No. 561, theCOSLAP has two options in acting on a land dispute orproblem lodged before it, to wit: (a) refer the matter tothe agency having appropriate jurisdiction forsettlement/resolution; or (b) assume jurisdiction if thematter is one of those enumerated in paragraph 2 (a) to(e) of the law, if such case is critical and explosive innature, taking into account the large number of partiesinvolved, the presence or emergence of social unrest,or other similar critical situations requiring immediateaction. In resolving whether to assume jurisdictionover a case or to refer the same to the particular agencyconcerned, the COSLAP has to consider the nature orclassification of the land involved, the parties to thecase, the nature of the questions raised, and the needfor immediate and urgent action thereon to preventinjuries to persons and damage or destruction toproperty. The law does not vest jurisdiction on theCOSLAP over any land dispute or problem.

In the instant case, the COSLAP has no jurisdictionover the subject matter of respondents’ complaint. Thepresent case does not fall under any of the casesenumerated under Section 3, paragraph 2(a) to (e) ofE.O. No. 561. The dispute between the parties is notcritical and explosive in nature, nor does it involve alarge number of parties, nor is there a presence oremergence of social tension or unrest. It can also hardlybe characterized as involving a critical situation thatrequires immediate action.

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 orcomplaint is determined by the material allegationstherein and the character of the relief prayed for,irrespective of whether the petitioner or complainantis entitled to any or all such reliefs.

Respondents’ cause of action before the COSLAPpertains to their claim of ownership over the subjectproperty, which is an action involving title to orpossession of real property, or any interest therein,the jurisdiction of which is vested with the RegionalTrial Courts or the Municipal Trial Courts dependingon the assessed value of the subject property.

The case of Banaga v. Commission on the Settlement ofLand Problems, applied by the CA and invoked by therespondents, is inapplicable to the present case. Banagainvolved parties with conflicting free patentapplications over a parcel of public land and pendingwith the Bureau of Lands. Because of the Bureau ofLand’s inaction within a considerable period of timeon the claims and protests of the parties and to conductan investigation, the COSLAP assumed jurisdictionand resolved the conflicting claims of the parties. TheCourt held that since the dispute involved a parcel ofpublic land on a free patent issue, the COSLAP hadjurisdiction over that case. In the present case, there isno showing that the parties have conflicting free patentapplications over the subject parcel of land that wouldjustify the exercise of the COSLAP’s jurisdiction.

Since the COSLAP has no jurisdiction over theaction, all the proceedings therein, including thedecision rendered, are null and void. A judgmentissued by a quasi-judicial body without jurisdictionis void. It cannot be the source of any right or createany obligation. All acts performed pursuant to it andall claims emanating from it have no legal effect.Having no legal effect, the situation is the same as itwould be as if there was no judgment at all. It leavesthe parties in the position they were before theproceedings.

(Peralta, J., Celia S. VDA. De Herrera v. Emelita Bernardo, EvelynBernardo as Guardian of Erlyn, Crislyn and Crisanto Bernardo,G.R. No. 170251, June 1, 2011.)

Ruling of the Secretary of Justice not binding oncourts once a case is filed with the court. Doublejeopardy; its requisites.

Well-entrenched is the rule that once a case is filedwith the court, any disposition of it rests on the sounddiscretion of the court. In thus resolving a motion todismiss a case or to withdraw an Information, the trialcourt should not rely solely and merely on the findingsof the public prosecutor or the Secretary of Justice. It

is the court’s bounden duty to assess independentlythe merits of the motion, and this assessment must beembodied in a written order disposing of the motion.While the recommendation of the prosecutor or theruling of the Secretary of Justice is persuasive, it is notbinding on courts.

In this case, it is obvious from the March 17, 2004Order of the RTC, dismissing the criminal case, thatthe RTC judge failed to make his own determinationof whether or not there was a prima facie case to holdrespondents for trial. He failed to make anindependent evaluation or assessment of the meritsof the case. The RTC judge blindly relied on themanifestation and recommendation of the prosecutorwhen he should have been more circumspect andjudicious in resolving the Motion to Dismiss andWithdraw Information especially so when theprosecution appeared to be uncertain, undecided, andirresolute on whether to indict respondents.

The same holds true with respect to the October24, 2006 Order, which reinstated the case. The RTCjudge failed to make a separate evaluation and merelyawaited the resolution of the DOJ Secretary. This isevident from the general tenor of the Order andhighlighted in the following portion thereof:

As discussed during the hearing of the Motionfor Reconsideration, the Court will resolve itdepending on the outcome of the Petition forReview. Considering the findings of theDepartment of Justice reversing the resolutionof the City Prosecutor, the Court gives favorableaction to the Motion for Reconsideration.

By relying solely on the manifestation of the publicprosecutor and the resolution of the DOJ Secretary,the trial court abdicated its judicial power andrefused to perform a positive duty enjoined by law. The said Orders were thus stained with grave abuseof discretion and violated the complainant’s right todue process. They were void, had no legal standing,and produced no effect whatsoever.

This Court must therefore remand the case to theRTC, so that the latter can rule on the merits of thecase to determine if a prima facie case exists andconsequently resolve the Motion to Dismiss andWithdraw Information anew.

It is beyond cavil that double jeopardy did not setin. Double jeopardy exists when the followingrequisites are present: (1) a first jeopardy attachedprior to the second; (2) the first jeopardy has beenvalidly terminated; and (3) a second jeopardy is forthe same offense as in the first. A first jeopardyattaches only (a) after a valid indictment; (b) before acompetent court; (c) after arraignment; (d) when avalid plea has been entered; and (e) when the accused



has been acquitted or convicted, or the case dismissedor otherwise terminated without his express consent.

Since we have held that the March 17, 2004 Ordergranting the motion to dismiss was committed withgrave abuse of discretion, then respondents were notacquitted nor was there a valid and legal dismissal ortermination of the case. Ergo, the fifth requisite whichrequires the conviction and acquittal of the accused,or the dismissal of the case without the approval ofthe accused, was not met. Thus, double jeopardy hasnot set in.

(Nachura, J., Joseph C. Cerezo v. People of the Philippines, JulietYaneza, Pablo Abunda, Jr., and Vicente Afulugencia, G.R. No.185230, June 1, 2011.)

Summary judgment; when proper.

Summary judgments are proper when, upon motion ofthe plaintiff or the defendant, the court finds that theanswer filed by the defendant does not tender agenuine issue as to any material fact and that one partyis entitled to a judgment as a matter of law. A deeperunderstanding of summary judgments is found inViajar v. Estenzo:

Relief by summary judgment is intended toexpedite or promptly dispose of cases where thefacts appear undisputed and certain from thepleadings, depositions, admissions and affidavits.But if there be a doubt as to such facts and therebe an issue or issues of fact joined by the parties,neither one of them can pray for a summaryjudgment. Where the facts pleaded by theparties are disputed or contested, proceedingsfor a summary judgment cannot take the placeof a trial.

An examination of the Rules will readily showthat a summary judgment is by no means a hastyone. It assumes a scrutiny of facts in a summaryhearing after the filing of a motion for summaryjudgment by one party supported by affidavits,depositions, admissions, or other documents, withnotice upon the adverse party who may file anopposition to the motion supported also byaffidavits, depositions, or other documents x x x.In spite of its expediting character, relief bysummary judgment can only be allowed aftercompliance with the minimum requirement ofvigilance by the court in a summary hearingconsidering that this remedy is in derogation ofa party’s right to a plenary trial of his case. Atany rate, a party who moves for summaryjudgment has the burden of demonstratingclearly the absence of any genuine issue of fact,or that the issue posed in the complaint is sopatently unsubstantial as not to constitute agenuine issue for trial, and any doubt as to the

existence of such an issue is resolved againstthe movant.

“A summary judgment is permitted only if thereis no genuine issue as to any material fact and [the]moving party is entitled to a judgment as a matter oflaw.” The test of the propriety of rendering summaryjudgments is the existence of a genuine issue of fact,“as distinguished from a sham, fictitious, contrivedor false claim.” “[A] factual issue raised by a party isconsidered as sham when by its nature it is evidentthat it cannot be proven or it is such that the partytendering the same has neither any sincere intentionnor adequate evidence to prove it. This usuallyhappens in denials made by defendants merely forthe sake of having an issue and thereby gaining delay,taking advantage of the fact that their answers arenot under oath anyway.”

In determining the genuineness of the issues, andhence the propriety of rendering a summaryjudgment, the court is obliged to carefully study andappraise, not the tenor or contents of the pleadings,but the facts alleged under oath by the parties and/ortheir witnesses in the affidavits that they submittedwith the motion and the corresponding opposition.Thus, it is held that, even if the pleadings on their faceappear to raise issues, a summary judgment is properso long as “the affidavits, depositions, and admissionspresented by the moving party show that such issuesare not genuine.”

The filing of a motion and the conduct of a hearingon the motion are therefore important because theseenable the court to determine if the parties’ pleadings,affidavits and exhibits in support of, or against, themotion are sufficient to overcome the opposing papersand adequately justify the finding that, as a matter oflaw, the claim is clearly meritorious or there is nodefense to the action. The non-observance of theprocedural requirements of filing a motion andconducting a hearing on the said motion warrantsthe setting aside of the summary judgment.

In the case at bar, the trial court proceeded torender summary judgment with neither of the partiesfiling a motion therefor. In fact, the respondent itselffiled an opposition when the trial court directed it tofile the motion for summary judgment. Respondentinsisted that the case involved a genuine issue of fact.Under these circumstances, it was improper for thetrial court to have persisted in rendering summaryjudgment. Considering that the remedy of summaryjudgment is in derogation of a party’s right to a plenarytrial of his case, the trial court cannot railroad theparties’ rights over their objections.


(Continued on page 35)

PHILJA BulletinPHILJA BulletinRESOLUTIONS, ORDERS AND CIRCULARS14

OCA CIRCULAR NO. 47-2011

TO: ALL JUDGES AND COURT PERSONNEL OFTHE FIRST AND SECOND LEVEL COURTS

SUBJECT: PROHIBITION AGAINST SOLICITATIONFOR CONTRIBUTIONS BY COURT PERSONNEL

Reports had reached this Court that despiteprohibition, solicitations for contributions/donationsby court personnel from lawyers and litigants remainrampant.

Accordingly, all court personnel of the first andsecond level courts are hereby REMINDED to strictlyobserve the mandate of (a) Section 2, Canon I andSection 2(e), Canon III of Administrative Matter No.03-06-13-SC (Code of Conduct for Court Personnel) onimproper solicitation; and (b) Circular No. 4-91, datedMay 31, 1991 (Re: Letter-Complaint AgainstSolicitations for Contributions by Court Personnel),to quote:

x x x x

Henceforth, all personnel of the lower courtsunder the administrative supervision of theOffice of the Court Administrator are strictlyenjoined from making any form of solicitation forcontributions as it is strictly prohibited by law.(Emphasis supplied)

Consequently, all those found soliciting for and/or receiving contributions, in cash or in kind, fromany person, whether or not a litigant or lawyer,will be dealt with severely in accordance with thesanctions prescribed by law.

Further, all court’ personnel are reminded thatcommitting improper solicitation is an offense whichmerit a grave penalty. Under Section 52(A)(11) of RuleIV of the Uniform Rules on Administrative Cases inthe Civil Service, dismissal is the penalty for impropersolicitation at the first offense. Section 58(a) of the sameRule provides that the penalty of dismissal shall carrywith it the cancellation of eligibility, forfeiture ofretirement benefits, and perpetual disqualification ofreemployment in the government service, unlessotherwise provided in the decision.

April 1, 2011.

(Sgd.) JOSE MIDAS P. MARQUEZ

Court Administrator


TO: THE JUDGES, CLERKS OF COURT ANDBRANCH CLERKS OF COURT OF ALL REGIONALTRIAL COURTS AND FIRST LEVEL COURTS

SUBJECT: CONSOLIDATED AND REVISEDGUIDELINES TO IMPLEMENT THE EXPANDEDCOVERAGE OF COURT-ANNEXED MEDIATION(CAM) AND JUDICIAL DISPUTE RESOLUTION(JDR)

WHEREAS, in a Resolution dated January 11,2011, in A.M. No. 11-1-6-SC-PHILJA, the Court EnBanc approved the Consolidated and RevisedGuidelines to Implement the Expanded Coverage ofCourt-Annexed Mediation (CAM) and Judicial DisputeResolution (JDR) (hereinafter, “Guidelines”);

WHEREAS, as stated in the Guidelines, “[t]hediversion of pending court cases both to CAM and toJDR is plainly intended to put an end to pendinglitigation through a compromise agreement of theparties and thereby help solve the ever-pressingproblem of court docket congestion”;

WHEREAS, all Judges, Clerks of Court, and BranchClerks of Court must be informed of said Guidelines,particularly, of the need to collect mediation fees ascontribution to promote mediation although noPhilippine Mediation Center (PMC) Units have as yetbeen established in some courts;

WHEREFORE, in accordance with the Guidelines,the Clerks of Court are mandated to collect mediationfees in the amount of FIVE HUNDRED PESOS (P500.00)*upon the filing of the following:

(1) Complaint or an Answer with a mediatablepermissive counterclaim or cross-claim, complaint-in-intervention, third-party complaint, fourth-party complaint, etc., in civil cases, a Petition, anOpposition, and a Creditors’ Claim in SpecialProceedings;

(2) Complaint/Information for offenses withmaximum imposable penalty of prision correccionalin its maximum period or six years imprisonment,except where the civil liability is reserved or issubject of a separate action;

(3) Complaint/Information for estafa, theft, and libelcases, except where the civil liability is reservedor is subject of a separate action;

(4) Complaint/Information for Quasi-Offenses underTitle 14 of the Revised Penal Code;

(5) Intellectual Property cases;

* No mediation fees shall be collected from the accused.

PHILJA NEWSRESOLUTIONS, ORDERS AND CIRCULARS 15April-June 2011April-June 2011

Annex “A” of A.M. No. 11-1-6-SC-PHILJA

CONSOLIDATED AND REVISED GUIDELINES TOIMPLEMENT THE EXPANDED COVERAGE OFCOURT-ANNEXED MEDIATION (CAM) ANDJUDICIAL DISPUTE RESOLUTION (JDR)

TABLE OF CONTENTS

PART ONE

GENERAL PROVISIONS AND COVERAGE

1. Concept of court diversion of pending cases

1.1 Indigenous ADR under CAM

1.2 The Three Stages of Diversion

2. Rationale for expanded mediation jurisdiction overthe civil liability arising from more serious offenses

3. Mandatory Coverage for Court-AnnexedMediation (CAM) and Judicial Dispute Resolution(JDR)

PART TWO

COURT-ANNEXED MEDIATION

ProcedureSanctionsDuration of mediation proceedings in the PMCOSuspension of PeriodsSettlement

PART THREE

JUDICIAL DISPUTE RESOLUTION (JDR)

MandateProcedureSanctionsDuration of JDR ProceedingsSuspension of periodsSettlementPre-trial properTrial and Judgment

PART FOUR

COMMON PROVISIONS FOR CAM AND JDR

ConfidentialityRole of Lawyers in Mediation and JDR proceedings

PART FIVE

SC-PHILJA-PMC MEDIATION TRUST FUND

PART SIX

THE PHILIPPINE MEDIATION CENTER OFFICE(PMCO)

AND MEDIATION CENTER UNITS

(6) Commercial or corporate cases; and

(7) Environmental cases.

Further, all Judges and Branch Clerks of Court aredirected to inform the Clerks of Court of the filing ofan Answer with a mediatable permissivecounterclaim or cross-claim, complaint-in-intervention, third-party complaint, fourth-partycomplaint, etc., in civil cases, and a Creditors’ Claimin Special Proceedings, for the proper assessment andcollection of legal fees and mediation fees.

For your information and guidance, copies of theGuidelines and list of courts where PMC Units havebeen established are attached hereto as Annexes “A”and “B,” respectively.

For strict compliance.

April 6, 2011.

(Sgd.) JOSE MIDAS P. MARQUEZ

Court Administrator

EN BANC NOTICE

Sirs/Mesdames:

Please take notice that the Court en banc issued aResolution dated January 11, 2011, which reads asfollows:

A.M. No. 11-1-6-SC-PHILJA (Re: Consolidated andRevised Guidelines to Implement the ExpandedCoverage of Court-Annexed Mediation [CAM]and Judicial Dispute Resolution [JDR]). – TheCourt resolved to

(a) NOTE the Letter dated December 20, 2010of Justice Adolfo S. Azcuna, Chancellor,PHILJA, transmitting, among others, BOTResolution No. 10-29 approving theConsolidated and Revised Guidelines toImplement the Expanded Coverage ofCourt-Annexed Mediation (CAM) andJudicial Dispute Resolution (JDR); and

(b) NOTE the aforesaid BOT Resolution No. 10-29, dated November 23, 2010.

The Court further Resolved to APPROVE theConsolidated and Revised Guidelines toImplement the Expanded Coverage of Court-Annexed Mediation (CAM) and Judicial DisputeResolution (JDR), herein attached as “Annex A.”

(151)

Very truly yours,

(Sgd.) ENRIQUETA E. VIDALClerk of Court (Continued on next page)

OCA CIRCULAR. NO. 51-2011 (continued)


2 The English Utilitarian posits that of the three variables,

severity of penalty is the least important.


REPUBLIC OF THE PHILIPPINESSUPREME COURT

Manila

TO: 1. ALL COURTS WHERE PHILIPPINEMEDIATION CENTER UNITS HAVE BEENESTABLISHED.

2. ALL COURTS IN THE PROVINCES OFPAMPANGA, NEGROS OCCIDENTAL, BENGUET,LA UNION, MISAMIS ORIENTAL, MAKATI CITY,AND SUCH OTHER AREAS TO BE ESTABLISHEDFOR JUDICIAL DISPUTE RESOLUTION (JDR)[FORMERLY UNDER THE JUSTICE REFORMINITIATIVES SUPPORT (JURIS) PROJECT]

SUBJECT: CONSOLIDATED AND REVISEDGUIDELINES1 TO IMPLEMENT THE EXPANDEDCOVERAGE OF COURT-ANNEXED MEDIATION(CAM) AND JUDICIAL DISPUTE RESOLUTION(JDR)

PART ONE

GENERAL PROVISIONS AND COVERAGE

Concept of court diversion of pending cases

The diversion of pending court cases both to Court-Annexed Mediation (CAM) and to Judicial DisputeResolution (JDR) is plainly intended to put an end topending litigation through a compromise agreementof the parties and thereby help solve the ever-pressingproblem of court docket congestion. It is also intendedto empower the parties to resolve their own disputesand give practical effect to the State Policy expresslystated in the ADR Act of 2004 (RA No. 9285), to wit:

to actively promote party autonomy in the resolutionof disputes or the freedom of the parties to make theirown arrangement to resolve disputes. Towards thisend, the State shall encourage and actively promotethe use of Alternative Dispute Resolution (ADR) asan important means to achieve speedy and impartialjustice and de-clog court dockets.

1.1 Indigenous ADR under CAM

Such State Policy promoting party autonomywould necessarily include recognition of indigenousmodes of dispute resolution.

1.2 The Three Stages of Diversion

Simply stated, court diversion is a three-stageprocess. The first stage is the Court-Annexed Mediation(CAM) where the judge refers the parties to thePhilippine Mediation Center (PMC) for the mediationof their dispute by trained and accredited mediators.

Upon failing to secure a settlement of the disputeduring the first stage, a second attempt is made at theJDR stage. There, the JDR judge sequentially becomes amediator-conciliator-early neutral evaluator in acontinuing effort to secure a settlement. Still failingthat second attempt, the mediator-judge must turnover the case to another judge (a new one by raffle ornearest/pair judge) who will try the unsettled case.The trial judge shall continue with the pre-trial properand, thereafter, proceed to try and decide the case.

The third stage is during the appeal where coveredcases are referred to the PMC-Appeals Court Mediation(ACM) unit for mediation.

The ultimate common end of both theKatarungang Pambarangay Law and Court-AnnexedMediation is to restore the role of the judiciary as theforum of last recourse to be resorted to only after allprior earnest efforts to arrive at privateaccommodation and resolution of disputes have failed.

Rationale for expanded mediation jurisdiction overthe civil liability for more serious offenses

Deterrence, which is achieved from a consistentand swift imposition of the appropriate penaltyimposed for the crime committed, is the principle uponwhich societal security rests. It is for this reason thatArticle 2034 of the Civil Code provides that:

There may be a compromise upon the civil liability arisingfrom the offense, but such compromise shall notextinguish the public action for the imposition of the

legal penalty.

It is significantly important to note that the above-quoted statutory provision does not restrict the crimementioned to the gravity of the imposable penalty asa condition for allowing a compromise agreement tobe reached on the civil liability arising from the crime.Presumably, therefore, the allowed compromise of civilliability applies to all crimes, subject only to the policyconsiderations of deterrence variables arising from thecelerity, certainty and severity of punishment actuallyimposed.2

Expansion of mediation jurisdiction over lessgrave felonies (punishable by correctional penalties

1 Consolidation entailed the integration of the original

guidelines separately governing Court-Annexed Mediation(CAM) and Judicial Dispute Resolution (JDR), together withall their respective amendments and revisions into a singleconsolidated guidelines that will supplant said earlierissuances that are in conflict or inconsistent with theseconsolidated guidelines.


OCA CIRCULAR NO. 51-2011 (continued)

of not exceeding six years)3 is justified since,presumably, the deterrent effect upon which societalsecurity rests is not the principal purpose ofcorrectional penalties. They are intended for therehabilitation and correction of the offender. It is forthis reason that offenses punishable by correctionalpenalties are subject to probation.4

The qualified offender granted probation is givenconditional freedom and released to society. It isfurther relevant and significant to note that theDepartment of Justice has initiated and is running aprogram of training prosecutors to be mediators forcriminal cases where the imposable penalty does notexceed six years.5

In contrast, the penalties classified under theRevised Penal Code as afflictive and capital6 are explicitthat their purpose is punishment. Probation is deniedto convicts who are imposed said afflictive penalties,thereby showing that isolation from society throughimprisonment is necessary for the protection ofsociety. Thus, the imposition of afflictive punishmentfor grave offenses is surely the underlying basis forachieving the principle of deterrence, not only of theperson punished but also of the general public, throughthe principle of exemplarity.

Further, the expansion to less grave offense isneeded if a greater impact of court diversion ofpending cases is to be achieved. This is so since civilcases constitute only a small 16 percent of all casesfiled in court, while special proceedings constituteeven a smaller 7.6 percent.7

Under the expanded jurisdiction of the first levelcourts,8 all less grave felonies will fall under theiroriginal and exclusive jurisdiction.9

3. Mandatory Coverage for Court-AnnexedMediation (CAM) and Judicial DisputeResolution (JDR)

The following cases shall be 1) referred to Court-Annexed Mediation (CAM) and 2) be the subject ofJudicial Dispute Resolution (JDR) proceedings:

(1) All civil cases and the civil liability of criminalcases covered by the Rule on Summary Procedure,including the civil liability for violation of BP Blg.22, except those which by law may not becompromised;

(2) Special proceedings for the settlement of estates;

(3) All civil and criminal cases filed with a certificateto file action issued by the Punong Barangay or thePangkat ng Tagapagkasundo under the RevisedKatarungang Pambarangay Law;10

(4) The civil aspect of Quasi-Offenses under Title 14of the Revised Penal Code;

(5) The civil aspect of less grave felonies punishableby correctional penalties not exceeding sixyears imprisonment, where the offended party isa private person;

(6) The civil aspect of estafa, theft and libel;

(7) All civil cases and probate proceedings, testateand intestate, brought on appeal from theexclusive and original jurisdiction granted to thefirst level courts under Section 33, par. (1) of theJudiciary Reorganization Act of 1980;11

(8) All cases of forcible entry and unlawful detainerbrought on appeal from the exclusive and originaljurisdiction granted to the first level courts underSection 33, par. (2) of the Judiciary ReorganizationAct of 1980; 12

(9) All civil cases involving title to or possession ofreal property or an interest therein brought onappeal from the exclusive and original jurisdictiongranted to the first level courts under Section 33,par.(3) of the Judiciary Reorganization Act of 1980;13 and

1 0 Chapter 7, Local Government Code of 1991, RA No. 7160,

essentially re-enacts the Katarungang Pambarangay Law withsome revisions and, therefore, is referred to as the Revised

KB Law.

1 1 A.M. No. 08-9-10-SC-PHILJA-Re: Guidelines to Implement

Mediation in the Regional Trial Courts Acting as AppellateCourts in Appeals from First Level Courts approved by theCourt En Banc on February 10, 2009.

1 2 Ibid.

1 3 Ibid.


3 Article 9, in relation to Article 25, Revised Penal Code.

4 The Probation Law, Act No. 4221, as amended.

5 DOJ mediation program.

6 Article 25 of the RPC categorizes these penalties as those

punishable with prision mayor, reclusion temporal, reclusionperpetua and death (six years and one day, 20 years and lifeimprisonment to death). See Table of Penalties under Article

76.

7 Summary Report of Cases for 2006 shows that only 108,855

civil cases were pending at the end of the period, while

524,685 criminal cases were similarly pending.

8 RA No. 7691 expanded the jurisdiction of the first level courts

to crimes punishable by imprisonment not exceeding six

years, irrespective of the amount of fine.

9 Section 32(2), BP Blg. 129, The Judiciary Reorganization

Act of 1980.


(10) All habeas corpus cases decided by the first levelcourts in the absence of the Regional Trial Courtjudge, that are brought up on appeal from thespecial jurisdiction granted to the first level courtsunder Section 35 of the Judiciary ReorganizationAct of 1980;14

The following cases shall not be referred to CAMand JDR:

1. Civil cases which by law cannot be compromised(Article 2035, New Civil Code);

2. Other criminal cases not covered underparagraphs 3 to 6 above;

3. Habeas Corpus petitions;

4. All cases under Republic Act No. 9262 (ViolenceAgainst Women and Children); and

5. Cases with pending application for RestrainingOrders/Preliminary Injunctions.

However, in cases covered under 1, 4, and 5 wherethe parties inform the court that they have agreed toundergo mediation on some aspects thereof, e.g.,custody of minor children, separation of property, orsupport pendente lite, the court shall refer them tomediation.

PART TWO

COURT-ANNEXED MEDIATION (CAM)

TO: ALL JUDGES OF COURTS WHERE PHILIPPINEMEDIATION CENTER (PMC) UNITS HAVE BEENESTABLISHED

Procedure

1. After the last pleading has been filed, the judgeshall issue an order requiring the parties toforthwith appear before the concerned PhilippineMediation Center (PMC) Unit staff to start theprocess for the settlement of their dispute throughmediation. On the same date, the court shall giveto the PMC a copy of the Order for mediation.

2. Individual parties are required to personallyappear for mediation. In the event they cannot doso, they can send their representatives who mustbe fully authorized to appear, negotiate and enterinto a compromise, through a Special Power ofAttorney.

3. Corporations, partnerships, or other juridicalentities shall be represented by a rankingcorporate officer fully authorized by a Board


1 4 Ibid.

Resolution to offer, negotiate, accept, decide andenter into a compromise agreement, without needof further approval by or notification to theauthorizing party.

4. The Order issued shall include a clear warningthat sanctions may be imposed upon a party forfailure to comply therewith, in accordance withthe Section below on sanctions.

5. On the date set in the Order, the parties shallproceed to select a mutually acceptable mediatorfrom among the list of accredited mediators. If noagreement is reached, the PMC Unit Staff shall, inthe presence of the parties and the Mediators,choose by lot the one who will mediate the disputefrom among the Mediators inside the Unit, ensuringa fair and equal distribution of cases: Provided,however, that in exceptional circumstances wherespecial qualifications are required of the mediator,the parties shall be given an opportunity to selectfrom the entire list of accredited mediators.

6. The Mediator shall be considered an officer of thecourt while performing his duties as such or inconnection therewith.

7. The concerned Mediator shall forthwith start themediation process, unless the parties and mediatoragree to reset the initial mediation conference,which shall not be later than five days from theoriginal date.

8. At the initial conference, the Mediator shall explainto both parties the mediation process, stressingthe benefits of an early settlement of their disputebased on serving their mutual interests, ratherthan the legal positions taken by them.

9. With the consent of both parties, the Mediator mayhold separate caucuses with each party todetermine their respective real interests in thedispute. Thereafter, another joint conference maybe held to consider various options that mayresolve the dispute through reciprocal concessionsand on terms that are mutually beneficial to boththe parties.

10. The Mediator shall not record in any manner theproceedings of the joint conferences or of theseparate caucuses. No transcript or minutes ofmediation proceedings shall be taken. If personalnotes are taken for guidance, the notes shall beshredded and destroyed. Should such recordexists, they shall not be admissible as evidence inany other proceedings.

11. If no settlement has been reached at the end of theperiod given, the case must be returned to thereferring judge.


Sanctions

The court, upon recommendation of the Mediator,may impose sanctions upon a party who fails toappear before the Philippine Mediation Center (PMC)Unit as directed by the referring judge, or upon anyperson who engages in abusive conduct duringmediation proceedings, as provided for in the Rules ofCourt as part of the Pre-Trial and other issuances ofthe Supreme Court, including, but not limited tocensure, reprimand, contempt, requiring the absentparty to reimburse the appearing party his costs,including attorney’s fees for that day up to treble suchcosts, payable on or before the date of the re-scheduledsetting. Sanctions may also be imposed by the referringjudge upon his own initiative or upon motion of theinterested party.

Upon justifiable cause duly proved in the hearingcalled on the motion to reconsider filed by the absentparty, concurred in by the concerned mediator, thesanctions imposed may be lifted or set aside in thesound discretion of the referring judge.

Duration of Mediation in the PMC

The Mediator shall have a period of not exceeding30 days to complete the mediation process. Such periodshall be computed from the date when the parties firstappeared for the initial conference as stated in theOrder to appear. An extended period of another 30days may be granted by the court, upon motion filedby the Mediator, with the conformity of the parties.

Suspension of periods

The period during which the case is undergoingmediation shall be excluded from the regular andmandatory periods for trial and rendition of judgmentin ordinary cases and in cases under summaryproceedings.

Settlement

If full settlement of the dispute is reached, theparties, assisted by their respective counsels, shalldraft the compromise agreement which shall besubmitted to the court for judgment upon compromiseor other appropriate action. Where compliance isforthwith made, the parties shall instead submit asatisfaction of claims or a mutual withdrawal of thecase and, thereafter, the court shall enter an orderdismissing the case.

If partial settlement is reached, the parties shall,with the assistance of counsel, submit the terms

OCA CIRCULAR. NO. 51-2011 (continued) thereof for the appropriate action of the court, withoutwaiting for resolution of the unsettled part.

In relation to the unsettled part of the dispute, thecourt shall proceed to conduct JDR proceedings inaccordance with PART THREE hereof where JDR isavailable.

PART THREE

JUDICIAL DISPUTE RESOLUTION

I. Mandate

Unless otherwise directed by the Supreme Court,all judges who have undergone orientation in JDRprocedures and completed their training in mediation,conciliation and neutral evaluation, are authorized toconduct JDR proceedings in accordance with theseguidelines for the settlement of disputes pending intheir courts, after the parties failed to settle theirdisputes during Court-Annexed Mediation at thePhilippine Mediation Center Units (PMCU).

II. Procedure

Judicial proceedings shall be divided into twostages: (1) from the filing of a complaint to the conductof CAM and JDR during the pre-trial stage, and (2) pre-trial proper to trial and judgment. The judge to whomthe case has been originally raffled, who shall be calledthe JDR Judge, shall preside over the first stage. Thejudge, who shall be called the trial judge, shall presideover the second stage.

At the initial stage of the pre-trial conference, theJDR judge briefs the parties and counsels of the CAMand JDR processes. Thereafter, he issues an Order ofReferral of the case to CAM and directs the parties andtheir counsels to proceed to the PMCU bringing withthem a copy of the Order of Referral. The JDR judge

shall include in said Order, or in another Order, the

pre-setting of the case for JDR not earlier than 45 days

from the time the parties first personally appear atthe PMCU so that JDR will be conducted immediatelyif the parties do not settle at CAM.

All incidents or motions filed during the first stageshall be dealt with by the JDR judge. If JDR is notconducted because of the failure of the parties to appear,the JDR judge may impose the appropriate sanctionsand shall continue with the proceedings of the case.

If the parties do not settle their dispute at CAM,the parties and their counsels shall appear at the presetdate before the JDR judge, who will then conduct theJDR process as mediator, neutral evaluator and/orconciliator in order to actively assist and facilitate



1 8 Paragraph 1, Article 2030 of the Civil Code.

negotiations among the parties for them to settle theirdispute. As mediator and conciliator, the judgefacilitates the settlement discussions between theparties and tries to reconcile their differences. As aneutral evaluator, the judge assesses the relativestrengths and weaknesses of each party’s case andmakes a non-binding and impartial evaluation of thechances of each party’s success in the case. On thebasis of such neutral evaluation, the judge persuadesthe parties to a fair and mutually acceptablesettlement of their dispute.

The JDR judge shall not preside over the trial ofthe case15 when the parties did not settle their disputeat JDR.

III. Courts

1. Multiple Sala Court – If the case is not resolvedduring JDR, it shall be raffled to another branch forthe pre-trial proper16 up to judgment.

For cases with pending applications forrestraining orders/preliminary injunctions, the judgeto whom the case was raffled shall rule on the saidapplications. During the pre-trial stage, the judge refersthe case to CAM, but if the parties do not settle at CAM,the case will be raffled to another branch for JDR. Ifthe parties do not settle at JDR, the case will be returnedto the branch that ruled on the applications for thepre-trial proper and up to judgment.17

2. Single Sala Court – Unless otherwise agreed uponas provided below, the JDR proceedings will beconducted by the judge of the pair court, if any,otherwise, by the judge of the nearest court asdetermined by the concerned Executive Judge. The JDRproceedings shall be conducted at the station wherethe case was originally filed. The result of the JDRproceedings shall be referred to the court of origin forappropriate action, e.g., approval of the compromiseagreement, trial, etc.

Notwithstanding the foregoing, before thecommencement of the JDR proceedings, the partiesmay file a joint written motion requesting that thecourt of origin conduct the JDR proceedings and trial.

OCA CIRCULAR. NO. 51-2011 (continued) 3. Family Courts – Unless otherwise agreed upon asprovided below, the JDR proceedings in areas whereonly one court is designated as a family court, shall beconducted by a judge of another branch through raffle.However, if there is another family court in the samearea, the family court to whom the case was originallyraffled shall conduct JDR proceedings and if nosettlement is reached, the other family court shallconduct the pre-trial proper and trial.

Notwithstanding the foregoing, beforecommencement of the JDR proceedings, the partiesmay file a joint written motion requesting that thefamily court to which the case was originally raffledshall conduct the JDR proceedings and trial.

Despite the non-mediatable nature of the principalcase, like annulment of marriage, other issues such ascustody of children, support, visitation, propertyrelations and guardianship, may be referred to CAMand JDR to limit the issues for trial.

4. Commercial, Intellectual Property, andEnvironmental Courts – Unless otherwise agreed uponas provided below, the JDR proceedings in areas whereonly one court is designated as commercial/intellectualproperty/environmental court, hereafter referred toas special court, shall be conducted by another judgethrough raffle and not by the judge of the special court.Where settlement is not reached, the judge of thespecial court shall be the trial judge. Any incident ormotion filed before the pre-trial stage shall be dealtwith by the special court that shall refer the case toCAM.

Notwithstanding the foregoing, beforecommencement of the JDR proceedings, the partiesmay file a joint written motion requesting that thespecial courts to which the case was originally raffledshall conduct the JDR proceedings and trial.

IV. JDR During Trial

Cases may be referred to JDR even during the trialstage upon written motion of one or both partiesindicating willingness to discuss a possiblecompromise. If the motion is granted, the trial shall besuspended18 and the case referred to JDR, which shallbe conducted by another judge through raffle inmultiple sala courts.

If settlement is reached during JDR, the JDR courtshall take appropriate action thereon, i.e., approval/disapproval of the compromise agreement. Ifsettlement is not reached at JDR, the case shall bereturned to the referring court for continuation of trial.

1 5 Parties will be more spontaneous once they are assured that

the JDR judge will not be the one to try the case. This is sobecause, the JDR judge may have elicited confidentialinformation that may create bias and partiality that could affect

the judgment.

1 6 Rule 18, Sec. 2, paragraphs b, c, d, e, f, g, and i.

1 7 Includes post-judgment proceedings, e.g., motion for

reconsideration, execution, etc.


In single sala courts, the JDR shall be conductedby the nearest court (or pair court, if any) regardlessof the level of the latter court. The result of the JDRproceedings shall be referred to the court of origin forappropriate action, e.g., approval of the compromiseagreement, trial, etc.

The parties may, by joint written motion, despiteconfidential information that may be divulged duringJDR proceedings, file a request that their case be nottransferred to other courts for JDR and that they agreeto have the trial judge continue the trial should thecase not be settled through JDR.

V. Settlement Period

Any Settlement Period declared by the SupremeCourt is understood to include JDR and, therefore, halfof all cases referred to mediation shall be for JDRsettlement. The procedure shall be as stated in RomanNumeral IV above, except that no written motion isrequired from the parties for their case to be referredto JDR.

VI. Party Participation

1. Individual Party Litigants

The party litigants shall personally attend allmediation conferences or through duly authorizedrepresentatives. The authority of the representativesshall be in writing and shall state that they are fullyempowered to offer, negotiate, accept, decide, and enterinto a compromise agreement without need of furtherapproval by or notification to the authorizing parties.

2. Corporate Party Litigants

In case of corporations, the representatives mustbe senior management officials with written authorityfrom the Board of Directors to offer, negotiate, accept,decide, and enter into compromise agreement withoutneed of further approval by or notification to theauthorizing parties.

VII. Judgments/Decisions in JDR

Decisions/Judgments approving the compromiseagreements of the parties, through the efforts of thejudge as a mediator, conciliator or neutral evaluator,shall contain a statement to the effect that theJudgments/Decisions were achieved through JDR. Thisis to distinguish Judgments/Decisions approvingcompromise agreements secured through CAM. Copiesof said Judgments/Decisions shall be submitted to thePhilippine Mediation Center Unit for documentationpurposes.

VIII. Sanctions

A party who fails to appear on the date set for JDRconference, may forthwith be imposed the appropriatesanction as provided in Rule 18 of the Revised Rules ofCourt and relevant issuances of the Supreme Courtincluding, but not limited to censure, reprimand,contempt, and requiring the absent party to reimbursethe appearing party his costs, including attorney’s feesfor that day up to treble such costs, payable on or beforethe date of the re-scheduled setting. Sanctions may beimposed by the JDR judge upon motion of theappearing party or motu proprio.

Upon justifiable cause duly proved in the hearingof the motion to reconsider filed by the absent party,the sanctions imposed may be lifted, set aside, ormodified in the sound discretion of the JDR judge.

A representative who appears on behalf of anindividual or corporate party without the requiredauthorization by special power of attorney or boardresolution, respectively, may similarly be imposedappropriate sanctions.

IX. Duration of JDR proceedings

To complete the JDR process, judges of the FirstLevel Courts shall have a period of not exceeding 30days, while judges of the Second Level Courts shallhave a period of not exceeding 60 days. A longer period,however, may be granted upon the discretion of theJDR judge if there is a high probability of settlementand upon joint written motion of the parties. Bothperiods shall be computed from the date when theparties first appeared for JDR proceedings as directedin the respective Orders issued by the judge. As far aspracticable, JDR conferences shall be set not more thantwo weeks apart so as to afford the parties ample time

to negotiate meaningfully for settlement.

In criminal cases covered by CAM and JDR, wheresettlement on the civil aspect has been reached butthe period of payment in accordance with the terms ofsettlement exceeds one year, the case may be archivedupon motion of the prosecution, with notice to theprivate complainant and approval by the judge.

X. Suspension of periods

The period during which the case undergoing JDRproceedings shall be excluded from the regular andmandatory periods for trial and rendition of judgmentin ordinary cases and in cases under summaryproceedings.




1 9 Guidelines for Parties’ Counsel in Court-Annexed Mediation

Cases, A.M. No. 04-3-15-SC PHILJA, March 15, 2004.


XI. Settlement

A. Civil Cases

If full settlement of the dispute is reached, theparties, assisted by their respective counsels, shalldraft the compromise agreement which shall besubmitted to the court for a judgment uponcompromise, enforceable by execution.

Where full compliance with the terms of thecompromise is forthwith made, the parties, instead ofsubmitting a compromise agreement, shall submit asatisfaction of claims or a mutual withdrawal of theparties’ respective claims and counterclaims.Thereafter, the court shall enter an order dismissingthe case.

If partial settlement is reached, the parties shall,with the assistance of counsel, submit the termsthereof for the court’s approval and rendition of ajudgment upon partial compromise, which may beenforced by execution without waiting for resolutionof the unsettled part.

In relation to the unsettled part of the dispute, thecourt shall proceed to conduct trial on the merits ofthe case should the parties file a joint motion for himto do so, despite confidential information that mayhave been divulged during the conciliation/mediationstage of the proceedings. Otherwise, the JDR Judge shallturn over the case to a new judge by re-raffle inmultiple sala courts or to the originating court in singlesala courts, for the conduct of pre-trial proper andtrial.

B. Criminal Cases

If settlement is reached on the civil aspect of thecriminal case, the parties, assisted by their respectivecounsels, shall draft the compromise agreement whichshall be submitted to the court for appropriate action.

Action on the criminal aspect of the case will bedetermined by the Public Prosecutor, subject to theappropriate action of the court.

If settlement is not reached by the parties on thecivil aspect of the criminal case, the JDR judge shallproceed to conduct the trial on the merits of the caseshould the parties file a joint written motion for himto do so, despite confidential information that mayhave been divulged during the JDR proceedings.Otherwise, the JDR Judge shall turn over the case to anew judge by re-raffle in multiple sala courts or to theoriginating court in single sala courts, for the conductof pre-trial proper and trial.

XII.Pre-trial Proper

Where no settlement or only a partial settlementwas reached, and there being no joint written motionsubmitted by the parties, as stated in the lastpreceding paragraphs, the JDR judge shall turn overthe case to the trial judge, determined by re-raffle inmultiple sala courts or to the originating court insingle sala courts, as the case may be, to conduct pre-trial proper, as mandated by Rules 18 and 118 of theRules of Court.

XIII. Trial and Judgment

The trial judge to whom the case was turned over,shall expeditiously proceed to trial after the pre-trialand, thereafter, render judgment in accordance withthe established facts, evidence, and the applicablelaws.

PART FOUR

PROVISIONS COMMONTO BOTH CAM AND JDR

I. Confidentiality

Any and all matters discussed orcommunications made, including requests formediation, and documents presented during themediation proceedings before the PhilippineMediation Center or the JDR proceedings before thetrial judge, shall be privileged and confidential, andthe same shall be inadmissible as evidence for anypurpose in any other proceedings. However, evidenceor information that is otherwise admissible does notbecome inadmissible solely by reason of its use inmediation or conciliation.

Further, the JDR judge shall not pass anyinformation obtained in the course of conciliation andearly neutral evaluation to the trial judge or to anyother person. This prohibition shall include all courtpersonnel or any other person present during suchproceedings. All JDR conferences shall be conductedin private.

II. Role of Lawyers in Mediation19 and in JDRProceedings

Lawyers may attend mediation proceedings inthe role of adviser and consultant to their clients,dropping their combative role in the adjudicativeprocess, and giving up their dominant role in judicialtrials. They must accept a less directive role in orderto allow the parties more opportunities to craft theirown agreement.



In particular, they shall perform the followingfunctions:

1. Help their clients comprehend the mediationprocess and its benefits and allow them to assumegreater personal responsibility in makingdecisions for the success of mediation in resolvingthe dispute.

2. Discuss with their clients the following:

• The substantive issues involved in the

dispute.

• Prioritization of resolution in terms of

importance to client.

• Understanding the position of the other side

and the underlying fears, concerns, andneeds underneath that position.

• Need for more information or facts to be

gathered or exchanged with the other side forinformed decision making.

• Possible bargaining options but stressing

the need to be open-minded about otherpossibilities.

• The best, worst, and most likely

alternatives to a negotiated agreement.

3. Assist in preparing a compromise agreement thatis not contrary to law, morals, good customs,public order, or public policy so that the samemay be approved by the court, paying particularattention to issues of voluntary compliance ofwhat have been agreed upon, or otherwise toissues of enforcement in case of breach.

4. Assist, wherever applicable, in the preparationof a manifestation of satisfaction of claims andmutual withdrawal of complaint andcounterclaim as basis for the court to issue anorder of dismissal.

PART FIVE

SC-PHILJA-PMC MEDIATION TRUST FUND

I. Creation of Trust Fund

The Mediation Fees collected and collectible,pursuant to Section 9, Rule 141, as amended, of theRules of Court, and all income therefrom shallconstitute a special fund, to be known as the SC-PHILJA-PMC Mediation Trust Fund, which shall beadministered and disbursed in accordance withguidelines set by court issuances, for purposesenumerated in Section 9, Rule 141 of the Revised Rulesof Court.

All revenues of the PMC Office from sources otherthan the mediation fees above shall form part of itsSpecial ADR Fund (SAF), which shall be administeredand disbursed by PHILJA in accordance with theexisting guidelines approved by the Supreme Court.

II. Collection of Mediation Fees(Section 9 of Rule 141, A.M. No. 04-2-04-SC)

A. Trial Courts

The Clerks of Court of the Regional Trial Courtsand the First Level Courts shall collect the amount ofFIVE HUNDRED PESOS (P500.00) upon the filing ofthe following:

(1) Complaint or an Answer with a mediatablepermissive counterclaim or cross-claim, complaint-in-intervention, third-party complaint, fourth-party complaint, etc., in civil cases, a Petition, anOpposition, and a Creditors’ Claim in SpecialProceedings;

(2) Complaint/Information for offenses withmaximum imposable penalty of prision correccionalin its maximum period or six years imprisonment,except where the civil liability is reserved or issubject of a separate action;

(3) Complaint/Information for estafa, theft, and libelcases, except where the civil liability is reservedor is subject of a separate action;

(4) Complaint/Information for Quasi-Offenses underTitle 14 of the Revised Penal Code;

(5) Intellectual Property cases;

(6) Commercial or corporate cases; and

(7) Environmental cases.

The Clerks of Court of the First Level Courts shallcollect the amount of FIVE HUNDRED PESOS (P500.00)upon the filing of a Notice of Appeal with the RegionalTrial Court.

The Clerks of Court of the Regional Trial Courtshall collect the amount of ONE THOUSAND PESOS(P1,000.00) upon the filing of a Notice of Appeal withthe Court of Appeals or the Sandiganbayan.

B. Court of Appeals and Court of Tax Appeals

The Clerks of Court of the Court of Appeals andCourt of Tax Appeals shall collect the amount of ONETHOUSAND PESOS (P1,000.00) upon the filing of amediatable case, petition, special civil action, acomment/answer to the petition or action, and theappellee’s brief. The Clerk of Court of the Court of Tax



Appeals shall also collect the amount of ONETHOUSAND PESOS (P1,000.00) for the appeal fromthe decision of a CTA Division to the CTA En Banc.

Provided that, in all cases, a pauper litigant shallbe exempt from contributing to the Mediation Fund.Despite such exemption, the court shall provide thatthe unpaid contribution to the Mediation Fund shallbe considered a lien on any monetary award in ajudgment favorable to the pauper litigant.

And, provided further, that an accused-appellantshall also be exempt from contributing to theMediation Fund.

The amount collected shall be receipted andseparated as part of a special fund, to be known as the“Mediation Fund,” and shall accrue to the SC-PHILJA-PMC Fund, disbursements from which are and shallbe pursuant to guidelines approved by the SupremeCourt.

The Fund shall be utilized for the promotion ofcourt-annexed mediation and other relevant modesof alternative dispute resolution (ADR), training ofmediators, payment of mediator’s fees, and operatingexpenses for technical assistance and organizations/individuals, transportation/communication expenses,photocopying, supplies and equipment, expenseallowance, and miscellaneous expenses, whenevernecessary, subject to auditing rules and regulations.In view thereof, the mediation fees shall not form partof the Judicial Development Fund (JDF) under PD No.1949 nor of the special allowances granted to justicesand judges under Republic Act No. 9227.

III. Utilization and Disbursement(A.M. No. 05-3-25-SC-PHILJA, dated April 26,2005)

A. Purpose and Utilization of the Mediation Fund

The Fund shall be used for:

a. Establishment of PMC Units;

b. Training seminars/workshops/internshipprograms for Mediators;

c. Payment of Mediators’ Fees, including thePMC Unit Staff;

d. Payment of operating expenses;

e. Advocacy and promotion of court-annexedmediation and other relevant modes ofADR;

f. Such other expenses as authorized bySection 9, Rule 141 of the Rules of Court.

OCA CIRCULAR. NO. 51-2011 (continued) The Fund shall be managed by PHILJA subject toaccounting and auditing rules and regulations.

B. Deposit of the Mediation Fund

The Philippine Judicial Academy (PHILJA) hasalready closed the SC PHILJA TRUST FUND PesoCurrent Account No. 3472-1001-30 as of March 30,2009. Hence, all mediation fees collected are to bedeposited solely under SC PHILJA PMC Rule 141 PesoCurrent Account (CA) No. 3472-1000-08.20

IV. Mediation Fee, Mediator’s Fee and MediationFund, distinguished

The mediation fee is the amount collected from theparties. The amount is added to the mediation fundfrom where disbursements are made for the authorizedexpenditures stated above. The mediation fee is notcollected for mediation services rendered or to berendered. It is intended as a contribution to promotemediation. The mediator’s fee is the authorized amountpaid from the mediation fund for services rendered bya mediator.

PART SIX

THE PHILIPPINE MEDIATION CENTER OFFICE(PMCO)

AND MEDIATION CENTER UNITS(A.M. No. 33-2008, February 12, 2008)

I. Philippine Mediation Center Office and PMCUnits

The Philippine Mediation Center Office shallprimarily be responsible for the expansion,development, implementation, monitoring, andsustainability of SC ADR mechanisms, namely:

a. Court-Annexed Mediation (CAM)

b. Appellate Court Mediation (ACM)

c. Judicial Dispute Resolution (JDR)

d. Mobile Court-Annexed Mediation (MCAM)

e. Court-Annexed Arbitration (CAA) and otherAlternative Dispute Resolution mechanisms

The PMCO shall likewise be primarily tasked withthe organization of PMC units, as it may deemnecessary, throughout the country. It shall be underthe operational control of and supervision of PHILJA,in coordination with the Office of the CourtAdministrator, through the Executive Judges.

2 0 OCA Circular No. 28-2009, dated April 13, 2009.


II. Organizational Structure

The Philippine Mediation Center Office shall becomposed of:

a) Executive Committee21 – The powers andauthority of the PMC Office shall be vested in andexercised by an Executive Committee composedof:

PHILJA Chancellor – Chairperson

Four regular members, namely:

1. Dean Eduardo D. De los Angeles

2. Dean Pacifico A. Agabin

3. Judge Divina Luz P. Aquino-Simbulan

4. Atty. Linda L. Malenab-Hornilla

Four ex officio members, namely:

Court Administrator

Executive Secretary, PHILJA22

PHILJA Chief of Office for PMC

Chairperson, PHILJA ADR Department

b) PHILJA Chief of Office for PMC- Chief of Office ofthe Philippine Mediation Center Office

c) PHILJA Assistant Chief of Office for PMC

d) CENTRAL OFFICE

a. Mediation Planning and Research Division

b. Mediation Resource Management Division

c. Mediation Education, Training andMonitoring Division

e) Mediation Center Units, composition

a. Court-Annexed Mediation (CAM)

• Mediation Staff Officer V

• Mediation Staff Assistant II

• Mediation Aide

• Accredited Mediators

b. Appellate Court Mediation (ACM)

• Mediation Staff Officer VI

• Mediation Staff Officer IV


• Mediation Aide


c. Judicial Dispute Resolution (JDR)



• Mediation Aide

d. Mobile Court-Annexed Mediation (MCAM)

Every bus of the Justice on Wheels (JOW)deployed for mediation in selected areas isconsidered as a PMC Unit, thus, it is entitled tothe following:



• Mediation Aide


III. Powers and Functions of the PMCO

The PMC Office shall exercise the followingpowers and functions in order to accomplish itsmandate under A.M. 01-10-5-SC-PHILJA:

a. Develop and promulgate rules and regulationsthat it may deem necessary, subject to theapproval of the Supreme Court, uponrecommendation of the Executive Committee andthe PHILJA Board of Trustees;

b. Implement, in coordination with the Office of theCourt Administrator, rules and policies of theSupreme Court on ADR mechanisms, namely,Court-Annexed Mediation (CAM), AppellateCourt Mediation (ACM), Judicial DisputeResolution ( JDR), Mobile Court-AnnexedMediation (MCAM), and eventually Court-Annexed Arbitration (CAA) and other AlternativeDispute Resolution mechanisms;

c. Establish such PMC Units as may be necessary;

d. Provide a system for the recruitment, screening,training, and accreditation of Mediators;

e. Monitor and evaluate the performance ofMediators, such as in settling disputes and in



2 1 Court En Banc Resolution, dated June 3, 2008, under A.M.No. 08-2-5-SC-PHILJA.

2 2 Justice Justo P. Torres, Jr., PHILJA [Vice] Chancellor,

changed to Justice Marina L. Buzon, Executive Secretary,per Board Resolution No. 08-18, dated May 15, 2008, of the

PHILJA Board of Trustees.


Annex “B”

Career Enhancement Program for Clerks of Court(Region 2)September 14-16, Tuguegarao City

Orientation Seminar-Workshop on ComparativeAnalysis between the Family Code and the Code ofMuslim Personal LawsSeptember 19-21, Dipolog City

Increasing Judicial Efficiency: Seminar-Workshop forJudges on the Effective Use of the Benchbook forPhilippine Trial Courts (Revised and Expanded) forNational Capital Judicial Region (Batch 1)September 20, Pasay City

Increasing Judicial Efficiency: Seminar-Workshop forJudges on the Effective Use of the Benchbook forPhilippine Trial Courts (Revised and Expanded) forNational Capital Judicial Region (Batch 2)September 21, Pasay City

Roundtable Discussion on Combating Human Traffickingin the Philippines for Selected Appellate Court Justices(Manila, Cebu and Cagayan de Oro)September 22, Manila

Information Dissemination Through A Dialoguebetween Barangay Officials of the Province of Antiqueand Court OfficialsSeptember 22, San Jose, Antique

Information Dissemination Through A Dialoguebetween Barangay Officials of the Municipality of Kaliboand Court OfficialsSeptember 23, Kalibo, Aklan

Ninth Multi-Sectoral Capacity Building onEnvironmental Laws and the Rules of Procedure forEnvironmental CasesSeptember 28-30, Davao City

Upcoming Activities

observing the Code of Ethical Standards for

Mediators, upgrade their mediation skills, and

oversee their further development. Such

evaluation shall be the basis for the renewal of

their accreditation as Mediators;

f. Provide a grievance mechanism and procedure for

addressing complaints against Mediators and

PMC Unit Staff;

g. Promote and sustain the programs and activities

of Court-Annexed Mediation (CAM), Appellate

Court Mediation (ACM), Judicial Dispute

Resolution ( JDR), Mobile Court-Annexed

Mediation (MCAM), and eventually Court-

Annexed Arbitration (CAA), and other Alternative

Dispute Resolution mechanisms;

h. Call on any government agency, office,

instrumentality, commission or council to render

such assistance as may be necessary for the

efficient performance of its functions; and

i. Exercise such other functions necessary in

furtherance of its mandate.


(Continued from page 36)





















More importantly, by proceeding to ruleagainst petitioners without any trial, the trial andappellate courts made a conclusion which wasbased merely on an assumption that petitioners’defense of acquisitive prescription was a sham, andthat the ultimate facts pleaded in their Answer(e.g., open and continuous possession of theproperty since the early 1900s) cannot be provenat all. This assumption is as baseless as it ispremature and unfair. No reason was given whythe said defense and ultimate facts cannot beproven during trial. The lower courts merelyassumed that petitioners would not be able to provetheir defense and factual allegations, without firstgiving them an opportunity to do so.

It is clear that the guidelines and safeguardsfor the rendition of a summary judgment were allignored by the trial court. The sad result was ajudgment based on nothing else but anunwarranted assumption and a violation ofpetitioners’ due process right to a trial where theycan present their evidence and prove their defense.

(Del Castillo, J., Aniceto Calubaquib, Wilma Calubaquib,Edwin Calubaquib, Alberto Calubaquib, and Eleuterio FaustinoCalubaquib v. Republic of the Philippines, G.R. No. 170658,June 22, 2011.)

Doctrinal RemindersREMEDIAL LAW (continued from page 13)


TO: ALL JUDGES OF THE SECOND LEVEL COURTS

SUBJECT: REITERATION OF PARAGRAPH 3 OFCIRCULAR NO. 39-97, DATED JUNE 19, 1997 (RE:GUIDELINES IN THE ISSUANCE OF HOLD-DEPARTURE ORDERS)

In his May 5, 2011 letter, Commissioner RicardoA. David, Jr. of the Bureau of Immigration requests thereiteration of Circular No. 39-97, dated June 19, 1997(Re: Guidelines in the Issuance of Hold-Departure Orders). Itappears that despite the issuance of OCA Circular No.18-2003 dated February 20, 2003 (Re: Reiteration of Par.3, Circular No. 39-97, dated June 19, 1997), the Bureau stillencounters the same problem where passengers withnamesakes complain of being withheld for secondaryinspection due to lack of middle name and date ofbirth entries in the Hold-Departure Orders issued bythe courts.

To address the concern of the Bureau and enable itto effectively implement the Hold-Departure Ordersissued by the courts, all concerned Judges are againhereby REMINDED to strictly observe the guidelinesset forth in Circular No. 39-97, particularly paragraph3 thereof:

3. The Hold-Departure Order shall contain thefollowing information:

a. The complete name (including the middle name),the date and place of birth and the place of lastresidence of the person against whom a Hold-Departure Order has been issued or whosedeparture from the country has beenenjoined;

b. The complete title and the docket number of thecase in which the Hold-Departure Order wasissued;

c. The specific nature of the case; and

d. The date of the Hold-Departure Order.

If available, a recent photograph of the personagainst whom a Hold-Departure has been issuedor whose departure from the country has beenenjoined should also be included” (italics

supplied).

May 20, 2011.

(Sgd.) NIMFA C. VILCHES Deputy Court Administrator

andOfficer-in-Charge

Office of the Court Administrator

JUSTICE ADOLFO S. AZCUNA

Chancellor

PROFESSOR SEDFREY M. CANDELARIA

Editor in Chief

Editorial and Research StaffATTY. ORLANDO B. CARIÑO

ATTY. MA. MELISSA DIMSON-BAUTISTA

ARSENIA M. MENDOZA

ARMIDA M. SALAZAR

JOCELYN D. BONDOC

RONALD P. CARAIG

JUDITH P. DEL ROSARIO

CHRISTINE A. FERRER

JOANNE NARCISO-MEDINA

CHARMAINE S. NICOLAS

SARAH JANE S. SALAZAR

JENIFFER P. SISON

Circulation and Support StaffROMEO A. ARCULLO

LOPE R. PALERMO

DANIEL S. TALUSIG

Printing ServicesLETICIA G. JAVIER AND PRINTING STAFF

The PHILJA BulletinPHILJA BulletinPHILJA BulletinPHILJA BulletinPHILJA Bulletin is published quarterly by the Research, Publications andLinkages Office of the Philippine Judicial Academy, with office at the 3rd Floor ofthe Supreme Court Centennial Building, Padre Faura Street corner Taft Avenue,Manila. Tel: 552-9524; Fax: 552-9621; E-mail: [email protected];[email protected]; Website: http://philja.judiciary.gov.ph


3rd Floor, Supreme Court Centennial BuildingPadre Faura Street corner Taft Avenue, Manila 1000Philippines

PRIVATE OR UNAUTHORIZED USE TO AVOIDPAYMENT OF POSTAGE IS PENALIZED BY FINE ORIMPRISONMENT OR BOTH.PHILJA BulletinPHILJA Bulletin

2011 Upcoming PHILJA Events2011 Upcoming PHILJA Events

Documents

April-June 2011April-June 2011 PHILJA NEWSPHILJA NEWS 1philja.judiciary.gov.ph/files/bulletin/Bul50.pdf · 2019-11-19 · April-June 2011April-June 2011 PHILJA NEWSPHILJA NEWS 1 T