Dear PAO,
I filed a Motion for Reconsideration to the Resolution of the fiscal
recommending the filing of serious physical injuries against me. Do I
still have a remedy if my motion is not granted? Does your office give
assistance to this kind of problem?
ML
Dear ML,
Resolutions of the prosecutors on the preliminary investigation of
criminal complaint filed before them may be appealed to the Secretary of
Justice. If your Motion for Reconsideration is denied, you may appeal
the same by filing a verified petition for review before the Office of
the Secretary of Justice and furnishing copies thereof to the adverse
party and the Prosecutor’s Office which issued the resolution (Section
4, NPS Rule on Appeal). Your petition shall be filed within fifteen (15)
days from the receipt of the resolution denying your motion for
reconsideration (Section 3, NPS Rule on Appeal).
The petition shall contain or state the following: (a) the names and
addresses of the parties; (b) the investigation slip number (I.S. No.)
and criminal case number, if any, and title of the case, including the
offense charged in the complaint; (c) the venue of the preliminary
investigation; (d) the specific material dates showing that it was filed
on time; (e) a clear and concise statement of the facts, the assignment
of errors, and the reasons or arguments relied upon for the allowance
of the appeal; and (f) proof of service of a copy of the petition to the
adverse party and the Prosecution Office concerned. The petition shall
be accompanied by legible duplicate original or certified true copy of
the resolution appealed from together with legible true copies of the
complaint, affidavits/sworn statements and other evidence submitted by
the parties during the preliminary investigation/ reinvestigation. If an
information has been filed in court pursuant to the appealed
resolution, a copy of the Motion to Defer proceedings filed in court
must also accompany the petition (Section 5, NPS Rule on Appeal).
As to your second question, the Public Attorney’s Office (PAO) gives
assistance to qualified clients in civil, criminal, labor,
administrative and other quasi-judicial cases. To be qualified, the
prospective client shall pass both the merit and indigency tests. A case
shall be considered meritorious, if an assessment of the law and
evidence on hand, discloses that the legal services of the office will
assist, or be in aid of, or in the furtherance of justice, taking into
consideration the interests of the party and those of society. In
criminal cases, the accused enjoys the constitutional presumption of
innocence until the contrary is proven, hence, cases of defendants in
criminal actions are considered meritorious (Section 2, PAO Operations
Manual). On the other hand, the following are considered indigent
persons: 1) If residing in Metro Manila, whose net income does not
exceed P14,000.00 a month; 2) If residing in other cities, whose net
income does not exceed P13,000.00 a month; and 3) If residing in all
other places, whose net income does not exceed P12,000.00 a month
(Section 3, PAO Operations Manual).
We hope that we were able to answer your queries. Please be reminded
that this advice is based solely on the facts you have narrated and our
appreciation of the same. Our opinion may vary when other facts are
changed or elaborated.
source: Manila Times' Column of Atty Persida Acosta
Sunday, September 15, 2013
Tuesday, August 27, 2013
Towards a paperless judiciary
RECENT DEVELOPMENTS in digital and
communications technology and the emergence of the information
superhighway have paved the way for the proliferation of paperless
transactions and activities undertaken in the virtual environment. The
enactment of Republic Act No. 8792, or the Electronic Commerce Act of
2000, provided a framework which sought to address legal concerns with
respect to electronic documents and transactions. For the judiciary’s
part, which is generally perceived as the more “conservative” or
“traditional” branch of government, the Philippine Supreme Court was
quick to embrace the challenges posed by the information superhighway
and promulgated, in August 2001, the Rules of Electronic Evidence. At
that time, the Philippines was considered by several reputable
international study groups and analysts as one of the more e-ready
countries in terms of providing secure legal framework for electronic or
paperless transactions.
To date, our Supreme Court continues to actively seek and institute reforms in the judiciary, particularly in the practice of law, not only to cope with our fast-paced borderless world but to address other broader contemporary issues. On Nov. 13, 2012, the Supreme Court En Banc signed A.M. No. 11-9-4-SC, otherwise known as the Efficient Use of Paper Rule (“EUPR”). The said rule took effect on Jan. 1, 2013. As stated in the Whereas clauses of the EUPR, the primary intention of the Supreme Court in promulgating this rule is to reinforce the rule of the judiciary to save the environment by minimizing the “judicial system’s use of excessive quantities of costly paper, save our forests, avoid landslides, and mitigate the worsening effects of climate change.” It is very rare that we see the foregoing words in a procedural rule promulgated by none other that the country’s highest judicial body actively advocating an environmental cause. This notwithstanding, the underlying intent is to provide more efficient services, as the EUPR is seen to contribute to a more speedy judicial process.
The scope of application of the EUPR covers all courts and quasi-judicial bodies under the administrative supervision of the Supreme Court. Essentially, the EUPR prescribes the format, style, and number of copies of pleadings/documents to be filed with the courts and tribunals, as well as all documents issued by the latter (including their reports and transcript of stenographic notes or TSNs). Now, all pleadings/documents filed with the courts must be single-spaced, with spacing of 1 space in between paragraphs, use a font size of 14, and written on a long bond white paper (8.5” by 13”). The foregoing format is also prescribed for all documents prepared and issued by the courts. The EUPR also prescribes that the margins for court-bound documents must be 1.5” on the side, 1.2” on the upper side, and 1.0” on both the right and lower portions. With respect to the number of copies to be filed, the rule provides the following:
(a) Supreme Court En Banc one original copy (properly marked as such) and 10 additional copies, with two sets of annexes (one attached to the original copy and the other as extra copy);
(b) Supreme Court Division -- one original copy (properly marked as such) and four additional copies, with two sets of annexes (one attached to the original copy and the other as extra copy);
(c) Court of Appeals and Sandiganbayan -- one original copy (properly marked as such) and two additional copies with annexes;
(d) Court of Tax Appeals -- one original copy (properly marked as such) and two additional copies with annexes. If filed with the Court of Tax Appeals En Banc, one has to submit six more additional copies with annexes on top of the foregoing requirement;
(e) Other courts -- one original copy (properly marked as such) with stated annexes attached to it.
The foregoing requirement on the number of copies significantly reduces the volume of paper documents submitted. In addition to this and recognizing the increasing role technology plays in streamlining procedures and providing for more efficient means of doing things, the EUPR requires that for respect to pleadings/documents filed with the Supreme Court, parties must file soft copies of the pleading or motion and their annexes (annexes required under the EUPR to be in a PDF format) either by e-mail or CD. This additional submission requirement is on a voluntary basis until 01 October 2013. After Oct. 1, 2013, it will be compulsory.
For copies of pleadings/documents served by one party to an adverse party, the serving party need not attach copies of annexes to the pleadings which, based on the records of the court, the adverse party already has in his possession. However, should the adverse party request a set of annexes actually filed with the court, the party who filed the paper should comply with the request within five days from receipt thereof.
It is expected that the EUPR will change the landscape of legal practice in the Philippines. It somehow paves the way towards a paperless system of filing and serving court documents and pleadings in the judiciary. Currently, there are initiatives in the Supreme Court to establish a framework that will allow the electronic filing and service of pleadings and other documents, similar to the current system in other sophisticated jurisdictions such as Singapore. Moreover, there are efforts to promulgate rules on electronic notarization to further facilitate commercial and non-commercial transactions that utilize paperless or electronic documents. Various committees and technical working groups have been put in place to, among others, study the feasibility and implementation of these projects, as well as crafting procedures and rules that are responsive to the requirements of various judicial institutions and stakeholders.
(The author is a partner of the Angara Abello Concepcion Regala & Cruz Law Offices. He can be contacted at 830-8000 or through jmgaba@accralaw.com. The views and opinions expressed in this article are those of the author. This article is for general informational and educational purposes only and not offered as and does not constitute legal advice or legal opinion).
source: Businessworld
To date, our Supreme Court continues to actively seek and institute reforms in the judiciary, particularly in the practice of law, not only to cope with our fast-paced borderless world but to address other broader contemporary issues. On Nov. 13, 2012, the Supreme Court En Banc signed A.M. No. 11-9-4-SC, otherwise known as the Efficient Use of Paper Rule (“EUPR”). The said rule took effect on Jan. 1, 2013. As stated in the Whereas clauses of the EUPR, the primary intention of the Supreme Court in promulgating this rule is to reinforce the rule of the judiciary to save the environment by minimizing the “judicial system’s use of excessive quantities of costly paper, save our forests, avoid landslides, and mitigate the worsening effects of climate change.” It is very rare that we see the foregoing words in a procedural rule promulgated by none other that the country’s highest judicial body actively advocating an environmental cause. This notwithstanding, the underlying intent is to provide more efficient services, as the EUPR is seen to contribute to a more speedy judicial process.
The scope of application of the EUPR covers all courts and quasi-judicial bodies under the administrative supervision of the Supreme Court. Essentially, the EUPR prescribes the format, style, and number of copies of pleadings/documents to be filed with the courts and tribunals, as well as all documents issued by the latter (including their reports and transcript of stenographic notes or TSNs). Now, all pleadings/documents filed with the courts must be single-spaced, with spacing of 1 space in between paragraphs, use a font size of 14, and written on a long bond white paper (8.5” by 13”). The foregoing format is also prescribed for all documents prepared and issued by the courts. The EUPR also prescribes that the margins for court-bound documents must be 1.5” on the side, 1.2” on the upper side, and 1.0” on both the right and lower portions. With respect to the number of copies to be filed, the rule provides the following:
(a) Supreme Court En Banc one original copy (properly marked as such) and 10 additional copies, with two sets of annexes (one attached to the original copy and the other as extra copy);
(b) Supreme Court Division -- one original copy (properly marked as such) and four additional copies, with two sets of annexes (one attached to the original copy and the other as extra copy);
(c) Court of Appeals and Sandiganbayan -- one original copy (properly marked as such) and two additional copies with annexes;
(d) Court of Tax Appeals -- one original copy (properly marked as such) and two additional copies with annexes. If filed with the Court of Tax Appeals En Banc, one has to submit six more additional copies with annexes on top of the foregoing requirement;
(e) Other courts -- one original copy (properly marked as such) with stated annexes attached to it.
The foregoing requirement on the number of copies significantly reduces the volume of paper documents submitted. In addition to this and recognizing the increasing role technology plays in streamlining procedures and providing for more efficient means of doing things, the EUPR requires that for respect to pleadings/documents filed with the Supreme Court, parties must file soft copies of the pleading or motion and their annexes (annexes required under the EUPR to be in a PDF format) either by e-mail or CD. This additional submission requirement is on a voluntary basis until 01 October 2013. After Oct. 1, 2013, it will be compulsory.
For copies of pleadings/documents served by one party to an adverse party, the serving party need not attach copies of annexes to the pleadings which, based on the records of the court, the adverse party already has in his possession. However, should the adverse party request a set of annexes actually filed with the court, the party who filed the paper should comply with the request within five days from receipt thereof.
It is expected that the EUPR will change the landscape of legal practice in the Philippines. It somehow paves the way towards a paperless system of filing and serving court documents and pleadings in the judiciary. Currently, there are initiatives in the Supreme Court to establish a framework that will allow the electronic filing and service of pleadings and other documents, similar to the current system in other sophisticated jurisdictions such as Singapore. Moreover, there are efforts to promulgate rules on electronic notarization to further facilitate commercial and non-commercial transactions that utilize paperless or electronic documents. Various committees and technical working groups have been put in place to, among others, study the feasibility and implementation of these projects, as well as crafting procedures and rules that are responsive to the requirements of various judicial institutions and stakeholders.
(The author is a partner of the Angara Abello Concepcion Regala & Cruz Law Offices. He can be contacted at 830-8000 or through jmgaba@accralaw.com. The views and opinions expressed in this article are those of the author. This article is for general informational and educational purposes only and not offered as and does not constitute legal advice or legal opinion).
source: Businessworld
Tuesday, July 23, 2013
SC’s new e-Court system uses PH-developed software
The newly launched e-Court system of the Supreme Court is using a homegrown solution from local software house Ideyatech Inc., a first step by the judiciary towards automating court processes and to go paperless.
source: Newsbytes
The e-Court system, which is being funded by the USAID, is an electronic end-to-end case management system that organizes cases digitally, from filing of complaints to resolution and enforcement.
Ideyatech specializes on Java technology and is based in Ortigas, Pasig City. It has provided software services for the Philippine legal sector, including the Court of Appeals, Court of Tax Appeals, Office of the Solicitor General, as well as other government agencies such the Department of Agrarian Reform.
Chief Justice Maria Lourdes Sereno led the launch of the project last June 14 in Quezon City where the e-Court is being piloted. “We can only deliver justice if the systems that will deliver justice are abled… and the e-Court system is a step in the right direction,” Sereno said.
The e-Court system allows the capture of basic case information, as well as the tracking and monitoring of cases, down to the issuance of notices of decision and writs of execution.
It allows automatic computation of court fees and issues official receipts, corresponding to a generated docket number for new cases. It also allows electronic raffling or assigning of cases which removes human intervention and prevents assumptions of rigging of cases.
A calendar of hearings is also a feature of the system that allows judges to view happenings on a daily, weekly, up to an annual basis.
The public can also search for cases according to case number, category, or title, and allows monitoring of cases in terms of history or status. The e-Court can show the status of active and pending cases, as well as a notice of overstaying detainees that efficiently reminds the concerned judge or legal entity.
Sereno said that the system is open for further innovation, including possibly serving court notices digitally that can be received by lawyers and litigation officers, archiving and retrieval, and the use of electronic forms that streamline administrative processes.
The project will be pilot-tested in regional trial courts in Quezon City which holds majority of the cases in the entire Metro Manila. SC Associate Justice Teresita Leonardo de Castro, chairperson of the Computerization and Library Committee, said this pilot testing will hopefully serve as a model when SC eventually rolls out the project in all other regions in the country.
“Working with government agencies on automation projects could be very daunting. Our team, however, is consistent in addressing the software requirements of our clients in a timely and orderly manner. Our efforts result not only to successful system implementations, but also ultimately to contribute to the country’s growth, which is priceless for us,” Tan said. source: Newsbytes
Saturday, July 6, 2013
A call for judicial reforms
The business sector is obviously very happy with the performance of
the P-Noy government. A letter to the President by the 13 biggest
business groups in the country said:
“Since 2010, the Philippines has seen a resurgence in confidence, both in economic terms and in terms of governance, led by your administration’s reforms towards a more transparent, fair and inclusive nation. The impressive economic growth rates, achievement of investment grade ratings, improving national competitiveness, and a palpable optimism and vigilance against corruption within the people are testaments to your leadership and the management of your Cabinet.”
This is not surprising considering that in the last three years, many businesses have had record profits, the stock market index has dramatically gone up, crony capitalism eliminated and investments — domestic and foreign — have been increasing every year.
The London Financial Times calls the Philippines the fastest growing economy in Asia and a rejuvenated manufacturing sector is one of the prime reasons.
The letter of the Philippine Business Groups includes proposed measures for the remainder of the President’s term. One proposal I strongly support is reforming the judicial system. The letter continues: “Furthermore, concerns surrounding the seemingly arbitrary issuances and interpretations and the slow disposition of cases may create a perception of distrust in our legal processes.”
One of the recommendations is to “provide an efficient mechanism to aggressively investigate judges suspected of corruption and pursue legal and administrative actions once offense is established.”
I am aware that the Judiciary is supposed to be a separate but equal branch of government together with the Executive and Legislative branches. But it is not clear who is the point person in the Judiciary for ensuring action against corruption.
For example, I am aware that BIR Commissioner Kim Henares has filed more than 160 tax evasion cases and is actively pursuing other tax evaders. I am sure that is the reason why there is a concerted “demolition” job to try and destroy her reputation. This is one proof that she is doing an effective job.
Leila de Lima has also vigorously prosecuted criminal cases including the oil smuggling case against Phoenix Petroleum. This effort was, however, blocked by a TRO issued by three Court of Appeals Justices: Justices Romeo Barza, Francisco Acosta, and Angelita Gacutan.
I am not a lawyer but in my own analysis of the judicial system, it seems to me there is a mechanism in place for investigating judges and pursuing appropriate actions. In the Guidelines on the Functions of the Court Administrator, it states that among the “work attended to by the Office of the Court Administrator” is “Judicial discipline of lower court justices, judges and personnel.” Another provision states that “The Court thus acts through the Court Administrators in the exercise of its administrative functions.”
The Court Administrator is Jose Midas Marquez. His profile says that the “Supreme Court Justices, in an unprecedented move, unanimously appointed him the youngest ever Court Administrator with the rank of Presiding Justice of the Court of Appeals. “
But the most interesting sentence in the profile says, “He [Midas Marquez] now has supervision over all 2,000 justices of the 3rd level courts and judges and 27,000 court personnel across the country, many of them twice his age.”
This young man’s position sounds extremely powerful and apparently he controls the mechanism to impose “judicial discipline.” Perhaps, this is the person we can hold accountable for cleansing the Judiciary. Unless, of course, Court Administrator Marquez believes that the level of corruption in the Judiciary is minimal and not a national concern.
The last time I saw and heard the Hon. Midas Marquez on television, he was reliving the impeachment trial of ex-Supreme Court Chief Justice Corona. I was hoping he would discuss their own version of an anti-corruption initiative in the Judiciary instead.
If the Judiciary cannot reform itself, then there is a clear need for the Executive and Legislative branches, hopefully with the cooperation of the Judicial branch, to follow the proposal of the Business Groups “to institute reforms that would address issues of competence and efficiency in the justice system.”
The Business Groups’ letter also talked about rationalizing incentive-giving laws to further spur investments in sectors that would generate jobs. This is a very laudable proposal. The business sector is not only the primary engine of economic growth but also the generator of sustainable employment.
The World Bank study concludes that two-thirds of the fall in poverty was due to economic growth and one third from greater income equality. More equal countries cut poverty further and faster than unequal ones. Job generation is clearly the first major step to income equality.
Unfortunately, the letter did not contain any specific measures or recommendations for job generation. Business, even those planning to expand, will not necessarily create more jobs. One of the primary goals of business is to improve productivity which means lowering the cost of operations. This actually means looking for ways to employ less people and save on labor costs.
But if business takes a long term and macroenvironmental view, creating more jobs leads to higher demand which leads to higher revenues. Businessmen will normally agree with this holistic view and still base their decisions on their short term, profit maximizing goal. But the issue of creating more jobs in the private sector demands immediate attention by both business and the government.
A fair and prosperous Philippine society built on the rule of law requires weeding out systemic corruption in all branches of government, including the Judiciary. It also requires a society that will give everyone equal opportunity for finding a decent job and being able to live a life of human dignity.
(The Philippine Star)
“Since 2010, the Philippines has seen a resurgence in confidence, both in economic terms and in terms of governance, led by your administration’s reforms towards a more transparent, fair and inclusive nation. The impressive economic growth rates, achievement of investment grade ratings, improving national competitiveness, and a palpable optimism and vigilance against corruption within the people are testaments to your leadership and the management of your Cabinet.”
This is not surprising considering that in the last three years, many businesses have had record profits, the stock market index has dramatically gone up, crony capitalism eliminated and investments — domestic and foreign — have been increasing every year.
The London Financial Times calls the Philippines the fastest growing economy in Asia and a rejuvenated manufacturing sector is one of the prime reasons.
The letter of the Philippine Business Groups includes proposed measures for the remainder of the President’s term. One proposal I strongly support is reforming the judicial system. The letter continues: “Furthermore, concerns surrounding the seemingly arbitrary issuances and interpretations and the slow disposition of cases may create a perception of distrust in our legal processes.”
One of the recommendations is to “provide an efficient mechanism to aggressively investigate judges suspected of corruption and pursue legal and administrative actions once offense is established.”
I am aware that the Judiciary is supposed to be a separate but equal branch of government together with the Executive and Legislative branches. But it is not clear who is the point person in the Judiciary for ensuring action against corruption.
For example, I am aware that BIR Commissioner Kim Henares has filed more than 160 tax evasion cases and is actively pursuing other tax evaders. I am sure that is the reason why there is a concerted “demolition” job to try and destroy her reputation. This is one proof that she is doing an effective job.
Leila de Lima has also vigorously prosecuted criminal cases including the oil smuggling case against Phoenix Petroleum. This effort was, however, blocked by a TRO issued by three Court of Appeals Justices: Justices Romeo Barza, Francisco Acosta, and Angelita Gacutan.
I am not a lawyer but in my own analysis of the judicial system, it seems to me there is a mechanism in place for investigating judges and pursuing appropriate actions. In the Guidelines on the Functions of the Court Administrator, it states that among the “work attended to by the Office of the Court Administrator” is “Judicial discipline of lower court justices, judges and personnel.” Another provision states that “The Court thus acts through the Court Administrators in the exercise of its administrative functions.”
The Court Administrator is Jose Midas Marquez. His profile says that the “Supreme Court Justices, in an unprecedented move, unanimously appointed him the youngest ever Court Administrator with the rank of Presiding Justice of the Court of Appeals. “
But the most interesting sentence in the profile says, “He [Midas Marquez] now has supervision over all 2,000 justices of the 3rd level courts and judges and 27,000 court personnel across the country, many of them twice his age.”
This young man’s position sounds extremely powerful and apparently he controls the mechanism to impose “judicial discipline.” Perhaps, this is the person we can hold accountable for cleansing the Judiciary. Unless, of course, Court Administrator Marquez believes that the level of corruption in the Judiciary is minimal and not a national concern.
The last time I saw and heard the Hon. Midas Marquez on television, he was reliving the impeachment trial of ex-Supreme Court Chief Justice Corona. I was hoping he would discuss their own version of an anti-corruption initiative in the Judiciary instead.
If the Judiciary cannot reform itself, then there is a clear need for the Executive and Legislative branches, hopefully with the cooperation of the Judicial branch, to follow the proposal of the Business Groups “to institute reforms that would address issues of competence and efficiency in the justice system.”
The Business Groups’ letter also talked about rationalizing incentive-giving laws to further spur investments in sectors that would generate jobs. This is a very laudable proposal. The business sector is not only the primary engine of economic growth but also the generator of sustainable employment.
The World Bank study concludes that two-thirds of the fall in poverty was due to economic growth and one third from greater income equality. More equal countries cut poverty further and faster than unequal ones. Job generation is clearly the first major step to income equality.
Unfortunately, the letter did not contain any specific measures or recommendations for job generation. Business, even those planning to expand, will not necessarily create more jobs. One of the primary goals of business is to improve productivity which means lowering the cost of operations. This actually means looking for ways to employ less people and save on labor costs.
But if business takes a long term and macroenvironmental view, creating more jobs leads to higher demand which leads to higher revenues. Businessmen will normally agree with this holistic view and still base their decisions on their short term, profit maximizing goal. But the issue of creating more jobs in the private sector demands immediate attention by both business and the government.
A fair and prosperous Philippine society built on the rule of law requires weeding out systemic corruption in all branches of government, including the Judiciary. It also requires a society that will give everyone equal opportunity for finding a decent job and being able to live a life of human dignity.
* * *
E-mail: elfrencruz@gmail.com (The Philippine Star)
One cannot participate in trial if held in default by court
Dear PAO,
A case was filed against me for collection of sum of money before a court in Metro Manila. Out of disbelief that this person filed a case against me, I did not appear in the hearings scheduled in the letter sent to me by the court. I then received notice that I was being held in default, and that I cannot participate in the proceedings. I think this is unfair. What does being in default mean? What should I do? Thank you!
Ton-ton
Dear Ton-ton,
Rule 9, Section 3 of our Rules of Court states that when a court declares you in default, it means that you failed to answer the complaint within the time allowed by the court.
The other party filed a motion with notice to you to declare you in default. When the court finds that you are in fact in default, it will proceed to render judgment granting the reliefs it is seeking from the court or renders judgment after the claimant submits evidence.
An order of default will subject the other party held in default to notice of subsequent proceedings, but he cannot take part in the trial.
It may seem unfair at first, but the law assumes that the notice which the respondent receives from the court, called a summons, is sufficient notification for the respondent to be aware that a case has been filed against him. The notice from the court requiring the respondent to answer the complaint within a certain period of time is enough for him to be prudent in preparing his own response to the complaint. If no answer is submitted, despite these notices, the respondent loses his opportunity to answer, as it appears that he has no interest in the outcome of the case.
Whatever your reason may be, Rule 9, Section 3(b) states that if you are declared in default, you may, at any time after notice and before judgment, file a motion to set aside the order of default. You must show to the court that your failure to answer was due to fraud, accident, mistake, or excusable negligence and that you have a meritorious defense.
We hope that we were able to enlighten you on the matter.
Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times' Column of Atty. Persida Acosta
A case was filed against me for collection of sum of money before a court in Metro Manila. Out of disbelief that this person filed a case against me, I did not appear in the hearings scheduled in the letter sent to me by the court. I then received notice that I was being held in default, and that I cannot participate in the proceedings. I think this is unfair. What does being in default mean? What should I do? Thank you!
Ton-ton
Dear Ton-ton,
Rule 9, Section 3 of our Rules of Court states that when a court declares you in default, it means that you failed to answer the complaint within the time allowed by the court.
The other party filed a motion with notice to you to declare you in default. When the court finds that you are in fact in default, it will proceed to render judgment granting the reliefs it is seeking from the court or renders judgment after the claimant submits evidence.
An order of default will subject the other party held in default to notice of subsequent proceedings, but he cannot take part in the trial.
It may seem unfair at first, but the law assumes that the notice which the respondent receives from the court, called a summons, is sufficient notification for the respondent to be aware that a case has been filed against him. The notice from the court requiring the respondent to answer the complaint within a certain period of time is enough for him to be prudent in preparing his own response to the complaint. If no answer is submitted, despite these notices, the respondent loses his opportunity to answer, as it appears that he has no interest in the outcome of the case.
Whatever your reason may be, Rule 9, Section 3(b) states that if you are declared in default, you may, at any time after notice and before judgment, file a motion to set aside the order of default. You must show to the court that your failure to answer was due to fraud, accident, mistake, or excusable negligence and that you have a meritorious defense.
We hope that we were able to enlighten you on the matter.
Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times' Column of Atty. Persida Acosta
Tuesday, April 23, 2013
Why arbitration?
CHOOSING ARBITRATION over court litigation
has become increasingly popular. This has been the trend in other
countries and the Philippines is keeping up with the pace to
institutionalize arbitration. For construction disputes, parties may
choose the Construction Industry Arbitration Commission (CIAC) and for
other commercial disputes, they may choose the Philippine Dispute
Resolution Center, Inc. (PDRCI).
To choose arbitration as a dispute resolution mechanism is deliberate because both or all parties must agree to submit to arbitration. Their contract typically includes an arbitration clause. Thus, in negotiating the commercial terms of a contract, parties also negotiate whether a dispute will be submitted to an arbitral tribunal or a court.
Why do parties choose arbitration over court litigation?
SPECIALIZED METHOD OF RESOLVING DISPUTES. In this era of globalization, commercial transactions cover a wide variety of dealings such as mergers and acquisitions, project finance, and distributorship. By virtue of the complexity of contracts involved, parties have found the need for their disputes to be resolved by individuals who are experts or well versed in their respective industries. For example, in appreciating the claims raised in a construction dispute, it is necessary that the arbitrators are knowledgeable of the technical aspects of construction. Thus, in disputes where the subject matter is highly technical, parties in arbitration proceedings are able to appoint arbitrators who will possess the appropriate degree of expertise to resolve their dispute.
EFFICIENCY. This is also the hallmark of arbitration proceedings. Arbitrators have the authority to limit the number of witnesses to be presented, taking into consideration the nature of the testimony to be given and the time it would take to hear the testimony (even depositions may be limited at the arbitrator’s own discretion). Moreover, unlike in litigation where parties are usually just given a short amount of time to be heard in a given hearing date (usually multiple cases are heard in a day), in arbitration, the arbitrator may decide to conduct hearings for that lone case for the entire day. While a judge has to consider all the cases he has on his docket in a given day, an arbitrator can spend time and focus on just one proceeding. Furthermore, arbitration proceedings can be scheduled around the needs, availabilities and mutual convenience of the parties and their witnesses. This may be particularly important to parties who want minimal business disruptions brought about by any dispute proceedings.
FINALITY. It is common that arbitration agreements include a clause prohibiting appeals to an award. This gives parties a sense of finality not easily given by regular court proceedings where multiple appeals are available.
SECRECY. Arbitration proceedings are highly confidential. This means that the proceedings, all the pleadings filed, and the arbitral award are taken away from the public eye. Confidentiality of the proceedings is vital especially when parties, such as multinational corporations, try to avoid adverse public relations brought about by any litigation, or when critical and important information such as trade secrets are involved, parties can be assured that any information relayed is not for public consumption. Such confidentiality is not always present in judicial proceedings where courtrooms are open to the public and the media.
LESS ADVERSARIAL. Arbitration proceedings are generally less adversarial in contrast to traditional litigation. Unlike in litigation where proceedings are held in a courtroom, an arbitration conference is usually held in a boardroom where parties sit around a conference table and the atmosphere, in general, is less rigid and formal. In fact, the absence of formalities and hostility usually attributed to litigation brings about a more cordial atmosphere conducive to settlement talks. Parties are encouraged to participate and work together towards a swift and equitable resolution of their differences. This may be particularly important to parties such as multinational corporations which seek to maintain good business relationships and not to “burn bridges”, so to speak, in the course of resolving disputes.
While arbitration is by no means a flawless system in resolving a dispute, there are factors worth every contracting party’s consideration. Indeed, there are several benefits and advantages of drafting and including an arbitration clause in future contracts and agreements.
(Paul Rodulfo B. Imperial is an associate of the Angara Abello Concepcion Regala & Cruz Law Offices. He obtained his LL.M. from Columbia University and J.D. from the Ateneo de Manila University. He can be contacted through e-mail at pbimperial@accralaw.com or tel. no. 830.8000.)
source: Businessworld Column of Amicus Curiae
To choose arbitration as a dispute resolution mechanism is deliberate because both or all parties must agree to submit to arbitration. Their contract typically includes an arbitration clause. Thus, in negotiating the commercial terms of a contract, parties also negotiate whether a dispute will be submitted to an arbitral tribunal or a court.
Why do parties choose arbitration over court litigation?
SPECIALIZED METHOD OF RESOLVING DISPUTES. In this era of globalization, commercial transactions cover a wide variety of dealings such as mergers and acquisitions, project finance, and distributorship. By virtue of the complexity of contracts involved, parties have found the need for their disputes to be resolved by individuals who are experts or well versed in their respective industries. For example, in appreciating the claims raised in a construction dispute, it is necessary that the arbitrators are knowledgeable of the technical aspects of construction. Thus, in disputes where the subject matter is highly technical, parties in arbitration proceedings are able to appoint arbitrators who will possess the appropriate degree of expertise to resolve their dispute.
EFFICIENCY. This is also the hallmark of arbitration proceedings. Arbitrators have the authority to limit the number of witnesses to be presented, taking into consideration the nature of the testimony to be given and the time it would take to hear the testimony (even depositions may be limited at the arbitrator’s own discretion). Moreover, unlike in litigation where parties are usually just given a short amount of time to be heard in a given hearing date (usually multiple cases are heard in a day), in arbitration, the arbitrator may decide to conduct hearings for that lone case for the entire day. While a judge has to consider all the cases he has on his docket in a given day, an arbitrator can spend time and focus on just one proceeding. Furthermore, arbitration proceedings can be scheduled around the needs, availabilities and mutual convenience of the parties and their witnesses. This may be particularly important to parties who want minimal business disruptions brought about by any dispute proceedings.
FINALITY. It is common that arbitration agreements include a clause prohibiting appeals to an award. This gives parties a sense of finality not easily given by regular court proceedings where multiple appeals are available.
SECRECY. Arbitration proceedings are highly confidential. This means that the proceedings, all the pleadings filed, and the arbitral award are taken away from the public eye. Confidentiality of the proceedings is vital especially when parties, such as multinational corporations, try to avoid adverse public relations brought about by any litigation, or when critical and important information such as trade secrets are involved, parties can be assured that any information relayed is not for public consumption. Such confidentiality is not always present in judicial proceedings where courtrooms are open to the public and the media.
LESS ADVERSARIAL. Arbitration proceedings are generally less adversarial in contrast to traditional litigation. Unlike in litigation where proceedings are held in a courtroom, an arbitration conference is usually held in a boardroom where parties sit around a conference table and the atmosphere, in general, is less rigid and formal. In fact, the absence of formalities and hostility usually attributed to litigation brings about a more cordial atmosphere conducive to settlement talks. Parties are encouraged to participate and work together towards a swift and equitable resolution of their differences. This may be particularly important to parties such as multinational corporations which seek to maintain good business relationships and not to “burn bridges”, so to speak, in the course of resolving disputes.
While arbitration is by no means a flawless system in resolving a dispute, there are factors worth every contracting party’s consideration. Indeed, there are several benefits and advantages of drafting and including an arbitration clause in future contracts and agreements.
(Paul Rodulfo B. Imperial is an associate of the Angara Abello Concepcion Regala & Cruz Law Offices. He obtained his LL.M. from Columbia University and J.D. from the Ateneo de Manila University. He can be contacted through e-mail at pbimperial@accralaw.com or tel. no. 830.8000.)
source: Businessworld Column of Amicus Curiae
Wednesday, March 27, 2013
The affidavit rule: Speeding up litigation
Businessworld - OUR JUDICIAL system is predominantly
adversarial. This is why the resolution of disputes through litigation
is inevitably a long, tedious, painstaking and expensive process. Even
then, while various and relatively less expensive alternative modes of
dispute resolution (ADR) are readily available to them, the aggrieved
appear to prefer to litigate and "have their day in court."
American lawyer and ADR professional Charles B. Parselle explains this seeming "allure" of litigation, thus:
"A court trial fulfils, or is thought to be capable of fulfilling, five needs that are usually absent in a mediated settlement: a sense of vindication, a sense of empowerment, a desire to be heard publicly, a desire for the particular dispute to receive the stamp of legitimacy, and the desire not only that justice be done but that it "be manifestly seen to be done."
Aggrieved litigants seek vindication, and further, they seek public vindication. That is to say they want their "day in court," no matter what it costs. Perhaps they will not really achieve vindication, but there is always the chance that they might, and they see a trial as the best chance they have of achieving it. People do not necessarily approach their conflicts in purely rational terms; they have strong emotional interests to satisfy, and a deep human desire to be proven right. They want to win, and they want someone else to lose. They want forever after to be able to tell themselves, their family and friends, that they won their case. They want bragging rights. People will pay a high price for this, and will bear not only the cost of the litigation, but also the risk of losing, in order to attempt it.
People want to feel empowered; they want to feel that they can create an impact. When they walk into court for trial beside their hired champion, the attorney, and sit in the world of the courtroom looking up at the judge, they feel that the full authority of the state, that embodies the society in which they live, has interested itself in their particular conflict. And, in fact, it has, even though the particular judge may not quite see it that way.
In the last few years, we have seen judicial reforms aimed at speeding up the disposition of litigated cases. One recent measure promulgated by the Supreme Court is the Judicial Affidavit Rule which took effect January of this year. This new procedural rule mandates the use of judicial affidavits, instead of the direct oral testimony of witnesses. It aims to expedite the process of presenting evidence, which should ultimately result in the earlier resolution of pending cases, by:
1. Doing away with the often lengthy and time-consuming direct examination of witnesses. The "judicial affidavit" is in Question and Answer format and records in written form the testimony on direct examination that the witness has given under oath. The affidavit must be submitted at least five days prior to a preliminary conference in a case or the hearing of motions. Object and documentary evidence should also be marked and attached to the affidavits at the time of their filing and must be authenticated by a declaration therein that they are faithful copies. The failure to submit the affidavits on time results in a waiver although the court may give a one-time reprieve to the party at fault if he gives a valid reason for the omission and pays a fine ranging from ₱1,000 to ₱5,000. As soon as the purpose of a witness’s testimony is declared in open court and objections to the testimony’s admissibility are resolved, the witness is immediately readied for cross-examination. The party who presented the witness may conduct a re-direct examination, if necessary.
2. Having the rule apply to all actions, proceedings and incidents requiring the reception of evidence in cases cognizable by the first and second level courts including the Shari’a circuit and district courts, the Sandiganbayan, the Court of Tax Appeals, the Court of Appeals, the Shari’a Appellate Courts, the investigating officers and bodies authorized by the Supreme Court to receive evidence including the Integrated Bar of the Philippines and the special courts and quasi-judicial bodies whose rules of procedure are subject to disapproval by the Supreme Court.
3. Requiring the oral offer of documentary exhibits immediately upon the termination of the testimony of a party’s last witness. After each piece of exhibit is offered, the adverse party shall state the legal ground for his objection, if any, to its admission, and the court shall immediately make its ruling respecting that exhibit. Since the documentary or object exhibits form part of the judicial affidavits that describe and authenticate them, it is sufficient that such exhibits are simply cited by their markings during the offers, the objections, and the rulings, dispensing with the description of each exhibit.
The rule also applies to criminal actions: (1) Where the maximum of the imposable penalty does not exceed six years; (2) Where the accused agrees to the use of judicial affidavits, irrespective of the penalty involved; or (3) With respect to the civil aspect of the actions, whatever the penalties involved are.
However, while the judicial affidavit rule may cut trial time considerably, it does have at least one major drawback. Because the direct testimony of a witness is reduced to affidavit form, it may be more difficult for the judge to assess the witness’s credibility. In many cases, the credibility of a witness is weighed on the basis of his demeanor in the rendition of his direct oral testimony. Unavoidably, during trial, the judge is naturally attuned not only to what is said, but also to how it is said. In fact, a witness’s credibility is often assessed even by what is unsaid: the facial expression, the tone and volume of one’s voice, and all the other nonverbal cues that by ordinary human experience, are given meaning as either confirming or contradicting what the witness utters in open court.
Even then, the judicial affidavit rule is one novel measure among many others which, when implemented properly, will substantially reduce delays in the litigation process. It is one significant and ground-breaking step towards the more speedy administration of justice.
As to eliminating delays altogether, however, suffice it to say that, as former California Attorney General Evelle J. Younger mischievously put it: "An incompetent lawyer can delay a lawsuit for years. A competent lawyer can delay one even longer."
Glenn C. Aquino is a partner of the Angara Abello Concepcion Regala & Cruz Law Offices. He obtained his LLB from the University of the Philippines College of Law. He is resident partner and monitor of ACCRALAW’s Davao Branch. He can be contacted through e-mail at gcaquino@accralaw.com or tel. no. (082)224.0996.
American lawyer and ADR professional Charles B. Parselle explains this seeming "allure" of litigation, thus:
"A court trial fulfils, or is thought to be capable of fulfilling, five needs that are usually absent in a mediated settlement: a sense of vindication, a sense of empowerment, a desire to be heard publicly, a desire for the particular dispute to receive the stamp of legitimacy, and the desire not only that justice be done but that it "be manifestly seen to be done."
Aggrieved litigants seek vindication, and further, they seek public vindication. That is to say they want their "day in court," no matter what it costs. Perhaps they will not really achieve vindication, but there is always the chance that they might, and they see a trial as the best chance they have of achieving it. People do not necessarily approach their conflicts in purely rational terms; they have strong emotional interests to satisfy, and a deep human desire to be proven right. They want to win, and they want someone else to lose. They want forever after to be able to tell themselves, their family and friends, that they won their case. They want bragging rights. People will pay a high price for this, and will bear not only the cost of the litigation, but also the risk of losing, in order to attempt it.
People want to feel empowered; they want to feel that they can create an impact. When they walk into court for trial beside their hired champion, the attorney, and sit in the world of the courtroom looking up at the judge, they feel that the full authority of the state, that embodies the society in which they live, has interested itself in their particular conflict. And, in fact, it has, even though the particular judge may not quite see it that way.
In the last few years, we have seen judicial reforms aimed at speeding up the disposition of litigated cases. One recent measure promulgated by the Supreme Court is the Judicial Affidavit Rule which took effect January of this year. This new procedural rule mandates the use of judicial affidavits, instead of the direct oral testimony of witnesses. It aims to expedite the process of presenting evidence, which should ultimately result in the earlier resolution of pending cases, by:
1. Doing away with the often lengthy and time-consuming direct examination of witnesses. The "judicial affidavit" is in Question and Answer format and records in written form the testimony on direct examination that the witness has given under oath. The affidavit must be submitted at least five days prior to a preliminary conference in a case or the hearing of motions. Object and documentary evidence should also be marked and attached to the affidavits at the time of their filing and must be authenticated by a declaration therein that they are faithful copies. The failure to submit the affidavits on time results in a waiver although the court may give a one-time reprieve to the party at fault if he gives a valid reason for the omission and pays a fine ranging from ₱1,000 to ₱5,000. As soon as the purpose of a witness’s testimony is declared in open court and objections to the testimony’s admissibility are resolved, the witness is immediately readied for cross-examination. The party who presented the witness may conduct a re-direct examination, if necessary.
2. Having the rule apply to all actions, proceedings and incidents requiring the reception of evidence in cases cognizable by the first and second level courts including the Shari’a circuit and district courts, the Sandiganbayan, the Court of Tax Appeals, the Court of Appeals, the Shari’a Appellate Courts, the investigating officers and bodies authorized by the Supreme Court to receive evidence including the Integrated Bar of the Philippines and the special courts and quasi-judicial bodies whose rules of procedure are subject to disapproval by the Supreme Court.
3. Requiring the oral offer of documentary exhibits immediately upon the termination of the testimony of a party’s last witness. After each piece of exhibit is offered, the adverse party shall state the legal ground for his objection, if any, to its admission, and the court shall immediately make its ruling respecting that exhibit. Since the documentary or object exhibits form part of the judicial affidavits that describe and authenticate them, it is sufficient that such exhibits are simply cited by their markings during the offers, the objections, and the rulings, dispensing with the description of each exhibit.
The rule also applies to criminal actions: (1) Where the maximum of the imposable penalty does not exceed six years; (2) Where the accused agrees to the use of judicial affidavits, irrespective of the penalty involved; or (3) With respect to the civil aspect of the actions, whatever the penalties involved are.
However, while the judicial affidavit rule may cut trial time considerably, it does have at least one major drawback. Because the direct testimony of a witness is reduced to affidavit form, it may be more difficult for the judge to assess the witness’s credibility. In many cases, the credibility of a witness is weighed on the basis of his demeanor in the rendition of his direct oral testimony. Unavoidably, during trial, the judge is naturally attuned not only to what is said, but also to how it is said. In fact, a witness’s credibility is often assessed even by what is unsaid: the facial expression, the tone and volume of one’s voice, and all the other nonverbal cues that by ordinary human experience, are given meaning as either confirming or contradicting what the witness utters in open court.
Even then, the judicial affidavit rule is one novel measure among many others which, when implemented properly, will substantially reduce delays in the litigation process. It is one significant and ground-breaking step towards the more speedy administration of justice.
As to eliminating delays altogether, however, suffice it to say that, as former California Attorney General Evelle J. Younger mischievously put it: "An incompetent lawyer can delay a lawsuit for years. A competent lawyer can delay one even longer."
Glenn C. Aquino is a partner of the Angara Abello Concepcion Regala & Cruz Law Offices. He obtained his LLB from the University of the Philippines College of Law. He is resident partner and monitor of ACCRALAW’s Davao Branch. He can be contacted through e-mail at gcaquino@accralaw.com or tel. no. (082)224.0996.
Wednesday, January 23, 2013
Towards a paperless judicial system
Businessworld - IN HER first speech as Chief Magistrate,
Chief Justice Maria Lourdes P. A. Sereno emphasized the need of the
Judiciary to cope with the developments in technology to hasten the
delivery of justice. Consistent with her proposed reforms for the
Judiciary, the Supreme Court issued A. M. No. 11-9-4-SC, otherwise known
as the Efficient Use of Paper Rule (the “Rule”), on Nov. 13, 2012,
which applies to all courts and quasi-judicial bodies under the
administrative supervision of the Supreme Court. The Rule took effect on
Jan. 1. 2013.
Lawyers and members of the Judiciary, therefore, had to adjust to the Rule upon the start of the year. The Rule specified a required format, style and margin that must be followed in all pleadings, motions and similar papers to be filed before the courts, as well as in the decisions, resolutions, and orders to be issued by the courts and quasi-judicial bodies. The Rule likewise reduced the number of copies to be filed before the courts.
From a technological aspect, what is most ground breaking about the Rule is the provision allowing parties to file their pleadings with the Supreme Court by the submission of soft copies, including its annexes in Portable Document Format (PDF), either by email or by compact disc (CD), in preparation for the eventual establishment of an “e-filing paperless system” in the Judiciary (e-filing). As such, parties could now file their pleadings before the Supreme Court by emailing their documents to efile@sc.judiciary.gov.ph.
This new method of filing may be done on a voluntary basis for the first six months following the effectivity of the Rule. After this six-month period, E-Filing (or the submission of pleadings by email or in a CD) with the Supreme Court will be compulsory, unless otherwise extended.
It is no secret in the legal profession that the printing of pleadings, compilation of knee-high annexes, and the reproduction of each set to meet the required number of copies to be filed, is a time-consuming and expensive exercise. In the process, several reams of bond paper are consumed for the initial printing and the photocopying of the documents. The subsequent hauling of these documents to the courts for filing, or the filing of these documents personally or even by registered mail translates to higher costs which are shouldered by the parties. The courts receiving these piles of documents then have to physically file these papers in their depleting storage rooms and cabinets. In that sense, the court dockets are literally congested.
By reason of technology, it is commonplace to send documents by the click of a button, and the recipient could store the electronic copy in their computer or any compatible device. As such, e-filing in the Philippines has its advantages. For example, a lawyer who holds office outside Manila could instantly file a pleading with the Supreme Court in Manila, just by emailing it to the designated email address. Costs of mailing the pleading and additional delay due to this traditional mode of filing are avoided.
In reality, the Philippines is lagging behind other countries in terms of the application of technology in the judicial system. E-filing is already the common practice in select jurisdictions in the United States, and in some countries in Europe. In Asia, Singapore applied its e-filing system as early as 1997, which was implemented in phases and became fully operational by 2006.
Is the Philippines ready for e-filing? There are still several aspects of e-filing that have to be addressed. At the onset, it cannot be emphasized enough that the legal profession is very traditional. In the Philippines, lawyers still have a tendency to strongly question the authenticity of electronic documents, despite the passage of the Rules on Electronic Evidence allowing for its admission.
It is likewise a question of whether the Supreme Court has the information technology (IT) infrastructure and security to handle large amounts of data that it will be receiving from litigants once e-filing is made compulsory. Valuable files could be lost and could no longer be retrieved by reason of a crash in the Supreme Court database. Worse, files could even be corrupted or stolen by an experienced hacker who may not even be physically located in the Philippines.
Although it is expected that traditional lawyers would resist the change in the method of filing their documents, it is known that Filipinos are slowly embracing, and realizing the benefits of, technology. In fact, it is a normal sight in courtrooms nowadays for lawyers to make use of their electronic devices in preparing and reading their notes, doing a quick research on relevant jurisprudence, and organizing their schedules.
The issuance of the Rule and the eventual establishment of an e-filing system are indeed commendable. However, there lies the need to ensure that our Supreme Court has the infrastructure and corresponding security measures and that our lawyers have the technological know-how. Thus, it is also essential to orient all practitioners in the country on the technical aspects of this system to ensure its successful implementation. Once successfully implemented, the e-filing system may then be applied in the lower appellate courts and first level courts, thereby allowing lawyers all over the Philippines to file and serve their court-bound documents electronically. The success of this system may pave the way to other IT innovations in the judicial system, such as a unified online case management system/database accessible to lawyers, the electronic sending of court orders and notices via e-mail, and the holding of a virtual courtroom attended by parties through video conferencing, among others.
What must be realized is that technology could serve as a useful tool to enhance and improve the delivery of justice. On this regard, the strong will of our Chief Justice could be indicative of the eventual successful implementation of these IT innovations in the judiciary. Perhaps, the achievement of a paperless judiciary is possible, after all.
(Darren M. De Jesus is an associate of Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW). He can be contacted at Tel. No. 830-8000 or email address: dmdejesus@accralaw.com)
Lawyers and members of the Judiciary, therefore, had to adjust to the Rule upon the start of the year. The Rule specified a required format, style and margin that must be followed in all pleadings, motions and similar papers to be filed before the courts, as well as in the decisions, resolutions, and orders to be issued by the courts and quasi-judicial bodies. The Rule likewise reduced the number of copies to be filed before the courts.
From a technological aspect, what is most ground breaking about the Rule is the provision allowing parties to file their pleadings with the Supreme Court by the submission of soft copies, including its annexes in Portable Document Format (PDF), either by email or by compact disc (CD), in preparation for the eventual establishment of an “e-filing paperless system” in the Judiciary (e-filing). As such, parties could now file their pleadings before the Supreme Court by emailing their documents to efile@sc.judiciary.gov.ph.
This new method of filing may be done on a voluntary basis for the first six months following the effectivity of the Rule. After this six-month period, E-Filing (or the submission of pleadings by email or in a CD) with the Supreme Court will be compulsory, unless otherwise extended.
It is no secret in the legal profession that the printing of pleadings, compilation of knee-high annexes, and the reproduction of each set to meet the required number of copies to be filed, is a time-consuming and expensive exercise. In the process, several reams of bond paper are consumed for the initial printing and the photocopying of the documents. The subsequent hauling of these documents to the courts for filing, or the filing of these documents personally or even by registered mail translates to higher costs which are shouldered by the parties. The courts receiving these piles of documents then have to physically file these papers in their depleting storage rooms and cabinets. In that sense, the court dockets are literally congested.
By reason of technology, it is commonplace to send documents by the click of a button, and the recipient could store the electronic copy in their computer or any compatible device. As such, e-filing in the Philippines has its advantages. For example, a lawyer who holds office outside Manila could instantly file a pleading with the Supreme Court in Manila, just by emailing it to the designated email address. Costs of mailing the pleading and additional delay due to this traditional mode of filing are avoided.
In reality, the Philippines is lagging behind other countries in terms of the application of technology in the judicial system. E-filing is already the common practice in select jurisdictions in the United States, and in some countries in Europe. In Asia, Singapore applied its e-filing system as early as 1997, which was implemented in phases and became fully operational by 2006.
Is the Philippines ready for e-filing? There are still several aspects of e-filing that have to be addressed. At the onset, it cannot be emphasized enough that the legal profession is very traditional. In the Philippines, lawyers still have a tendency to strongly question the authenticity of electronic documents, despite the passage of the Rules on Electronic Evidence allowing for its admission.
It is likewise a question of whether the Supreme Court has the information technology (IT) infrastructure and security to handle large amounts of data that it will be receiving from litigants once e-filing is made compulsory. Valuable files could be lost and could no longer be retrieved by reason of a crash in the Supreme Court database. Worse, files could even be corrupted or stolen by an experienced hacker who may not even be physically located in the Philippines.
Although it is expected that traditional lawyers would resist the change in the method of filing their documents, it is known that Filipinos are slowly embracing, and realizing the benefits of, technology. In fact, it is a normal sight in courtrooms nowadays for lawyers to make use of their electronic devices in preparing and reading their notes, doing a quick research on relevant jurisprudence, and organizing their schedules.
The issuance of the Rule and the eventual establishment of an e-filing system are indeed commendable. However, there lies the need to ensure that our Supreme Court has the infrastructure and corresponding security measures and that our lawyers have the technological know-how. Thus, it is also essential to orient all practitioners in the country on the technical aspects of this system to ensure its successful implementation. Once successfully implemented, the e-filing system may then be applied in the lower appellate courts and first level courts, thereby allowing lawyers all over the Philippines to file and serve their court-bound documents electronically. The success of this system may pave the way to other IT innovations in the judicial system, such as a unified online case management system/database accessible to lawyers, the electronic sending of court orders and notices via e-mail, and the holding of a virtual courtroom attended by parties through video conferencing, among others.
What must be realized is that technology could serve as a useful tool to enhance and improve the delivery of justice. On this regard, the strong will of our Chief Justice could be indicative of the eventual successful implementation of these IT innovations in the judiciary. Perhaps, the achievement of a paperless judiciary is possible, after all.
(Darren M. De Jesus is an associate of Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW). He can be contacted at Tel. No. 830-8000 or email address: dmdejesus@accralaw.com)
Monday, January 14, 2013
SC: Failure to Explain Service By Registered Mail Not Automatically Subject to Sanction
The Rules of Civil Procedure do not provide for
automatic sanction should a party fail to submit the required
explanation for resorting to service by registered mail rather than
personal service.
In a six-page decision penned by Justice Roberto A. Abad,
the Court's Third Division unanimously held that both the Regional
Trial Court (RTC) of Lingayen, Pangasinan (Branch 37) and the Court of
Appeals did not gravely abuse their discretion when both courts ruled
against the striking out of the motion for judgment by default filed by
private respondent Roberto and Arabela Arcinue (Arcinues) against
petitioner Natividad Lim (Lim) for failure of the Arcinues to submit
the aforesaid required explanation.
The Court pointed out Rule 13, Section 11 of the 1997 Rules of Civil Procedure
“does not provide for automatic sanction should a party fail to submit
the required explanation. It merely provides for that possibility
considering its use of the term ‘may.’” Moreover, the same “does not
altogether prohibit service by registered mail when such service, when
adopted, ensures as in this case receipt by the adverse party.” It
noted that Lim’s counsel in fact even admitted to receiving a copy of
the Arcinues’ motion 10 days before the scheduled hearing on the said
motion. The Court thus directed the RTC to proceed with the hearing and
adjudication of the case.
National Power Corporation (NPC) filed an expropriation suit
against petitioner Lim for its Coal-Fired Thermal Power Project.
Private respondents Arcinue spouses filed a motion for leave to admit
their complaint-in-intervention, alleging that they owned and were in
possession of one of the lots subject of the expropriation. The RTC
granted the Arcinues’ motion and required both NPC and Lim to answer the
complaint-in-intervention within 10 days from receipt of its order.
Because NPC and Lim failed to file their respective answers, the
Arcinues filed a motion for judgment by default. Lim then sought to
expunge the motion for lack of the requisite explanation why the
Arcinues resorted to service by registered mail rather than personal
service. Both the RTC and the CA ruled against this, prompting her to
file a petition with the Court. (GR No. 178789, Lim v. NPC, November 14, 2012)
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