Fiscal needs to review complaint before respondent can be sued

Dear PAO,
I filed a case for attempted homicide before the Office of the Prosecutor. I submitted my salaysay (affidavit), which I made to our police station, along with a medical certificate. The respondent in the case never showed up during scheduled hearings and did not submit a counter-affidavit. The fiscal said he has to review first the complaint before deciding. Is there a need for the review even if the respondent has not submitted anything? Is there a possibility that the case will be dismissed?
Antonio

Dear Antonio,
It is still necessary for the investigating prosecutor to review your complaint for attempted homicide before arriving at a resolution even if, as you have stated, the respondent did not show up during the scheduled hearings and did not submit his counter-affidavit.

After the filing of the complaint, the investigating prosecutor shall either dismiss it if he finds no ground to continue with the investigation or issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents (Section 3, Rule 112, Rules of Court). His failure to attend the hearings and submit his counter-affidavit may be considered as a waiver of his right thereto.

The investigating prosecutor shall then determine whether there is sufficient ground to hold the respondent for trial. If he finds cause to do so, he shall prepare the resolution and information. He shall then certify under oath in the information that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; that there is reasonable ground to believe that a crime has been committed and the accused is probably guilty thereof, that the accused was informed of the complaint and of the evidence submitted against him; and that he was given an opportunity to submit controverting evidence. If the prosecution finds otherwise, he shall recommend the dismissal of the complaint (Sections 3 and 4, Rule 112, Rules of Court).

Based on the foregoing, the investigating prosecutor who is in charge of your complaint needs to review, first, your salaysay and the evidence that you have submitted in support thereof to determine if there is sufficient ground to hold the respondent for trial. In the course of the review, there is a possibility that the investigating prosecutor will dismiss the complaint if he finds no sufficient ground to form a well-founded belief that attempted homicide was committed against you by the respondent and that the latter should be held for trial.

We hope that we have answered your query. Our legal opinion may vary if other facts are stated or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

Rules for small banks’ forex transactions set

RULES expanding the scope of operations of small banks in the country were released yesterday by the Bangko Sentral ng Pilipinas (BSP) as part of its mandate of providing greater financial inclusion.

Under BSP Circular 864 that was signed by BSP Governor Amando M. Tetangco, Jr. last Dec. 22, thrift banks qualified to issue foreign letters of credit and engage in import and export transactions may apply to “operate as a dealer of deliverable FX (foreign exchange) forwards in order to service the trade-related hedging requirements of its clients.”

However, the BSP required that the tenor of the FX forwards dealt should match the term of the underlying trade transaction and that thrift banks interested in acting as dealers of FX forwards be covered by all regulations prescribing capital for market risk.

The applicant thrift bank should also comply with sales and marketing guidelines prescribed by the BSP, according to the circular.

Meanwhile, under BSP Circular 865, thrift, rural, and cooperative banks can now buy and sell foreign currencies to enable them to play a more active role in the remittance business.

The BSP, in a statement last November when it announced that its policy-setting Monetary Board had approved the two circulars, said that small banks are expected to manage any risks arising from the buying and selling of foreign currencies.

The central bank noted, however, that ample safety nets are in place that will “adequately capture... the extent of thrift, rural, and cooperative banks’ compliance and assessment of risk management…”

BSP Circulars 864 and 865 -- which amended parts of the Manual of Regulations for Banks -- will take effect 15 calendar days after their publication either in the Official Gazette or in a newspaper of general circulation.

Chamber of Thrift Banks President and BPI Family Savings Bank President Jose Teodoro K. Limcaoco earlier said that allowing thrift banks to deal in deliverable FX forwards would provide their clients the ability to hedge their foreign exchange exposures.

“More and more the SME (small and medium enterprise) sector is getting involved with international customers or suppliers. The ability to manage FX exposure will make our clients more competitive,” he said last November.

Meanwhile, BSP Deputy Governor Nestor A. Espenilla, Jr. had said that the two new regulations will “make the economy more competitive and inclusive”, especially in an increasingly integrated Southeast Asian economy. -- Daryll Edisonn D. Saclag

source:  Businessworld

Tight SC voting seen on Jinggoy's freedom

With the high stakes involved, Court insiders say 'intense lobbying' has commenced

MANILA, Philippines – The possibility of Senator Jinggoy Estrada spending Christmas outside the Philippine National Police detention cell could rest on the vote of one Supreme Court justice.

After weeks of postponement, the 15-man High Tribunal on Tuesday, November 11, could vote on the violation of due process case filed by Estrada against the Ombudsman. This is in connection with the filing of plunder and graft charges against Estrada over the pork barrel scam. (READ: Jinggoy Estrada asks SC to stop pork barrel scam probe)

Initial information gathered by Rappler showed the voting could be a close call, with the justices still split down the middle as of last week.

In May 2014, Estrada filed a petition assailing the Ombudsman's March 2014 ruling that denied his request to be furnished copies of counter-affidavits of other respondents, new witnesses, and other filings. He argued that by denying his request the Ombudsman violated his constitutional right to due process.

The SC en banc vote will have far-reaching consequences for the other accused in the pork barrel controversy, particularly Senators Ramon Revilla Jr and Juan Ponce Enrile. Revilla and Enrile are also contesting before the SC the Ombudsman’s process of filing plunder and graft charges before the Sandiganbayan. (READ: SC en banc to take up Revilla plea to suspend PDAF probe)

The cases against the 3 senators and their co-accused stem from the Philippines' biggest corruption scandal in recent history, which exposed its alleged mastermind, Janet Lim Napoles, and prompted the SC to declare the lawmakers' Priority Development Assistance Fund (PDAF) as unconstitutional.

Estrada was jailed at the Camp Crame detention center on June 23, 2014, three days after his friend Senator Revilla was also brought to the same camp. Enrile, on the other hand, is under hospital arrest in the same camp.

Evenly divided

With the high stakes involved, Supreme Court insiders say there’s “intense lobbying” for a ruling that will be favorable to Estrada.

One of the justices, former Solicitor General Francis Jardeleza, has reportedly inhibited from the voting because of his previous post. The Office of the Solicitor General is representing the Office of the Ombudsman in the pork barrel-related cases filed against the graft agency before the SC.

In separate interviews, two sources privy to the deliberations said the justices’ sentiments are evenly divided at 7-7.

In case of such stalemate, Section 7, Rule 56 of the Rules of Court states that “where the court is equally divided in opinion, or the necessary majority cannot be had, the case shall again be deliberated on…” Simply put, a deadlock means the Court has not reached any decision.

However, if the deadlock persists after the second deliberation, court rules state that the petition is deemed dismissed without any jurisprudential value.

To secure an outright court victory, Estrada will need to secure 8 votes at the very least.

Due process

The senator has asked the SC to nullify the Ombudsman's preliminary investigation which became basis for the filing of the plunder and graft charges against him before the anti-graft court.

Estrada argued that his right to due process was violated when the Ombudsman failed to provide him copies of the affidavits of the other accused in the pork barrel case. He pointed out that the Ombudsman violated its own Rule of Procedure which states that the respondent “shall have access to the evidence on record.”

The Ombudsman also disregarded the Rules of Court which mandates that the complaint shall “be accompanied by the affidavits of the complainants and his witnesses, as well as other supporting documents to establish probable cause,” Estrada said.

Specifically, Estrada was referring to the affidavit of Ruby Tuason, which implicates Estrada in the pork barrel scam. Tuason, former appointments secretary of ex-president Joseph Estrada, said she delivered Estrada’s share of the loot in the lawmaker’s PDAF. Napoles, the alleged brains behind the scam, is also a friend of the Estradas.

Estrada also filed a separate petition before the SC, citing the equal protection clause under the Constitution. (READ: Jinggoy to SC: selective prosecution against the law)

The Ombudsman maintained that the rules do not require that the respondents be provided with the counter-affidavits of the other respondents. The anti-graft agency also countered that Estrada’s petition was rendered moot and academic when Estrada was eventually furnished copies of the counter-affidavits.

Court insiders say Justice Presbitero Velasco Jr, who was initially the ponente (writer) for the case, argued for the voiding of the information charge against Estrada. However, his position proved to be unpopular even for other justices who are inclined to side with Estrada.

One major problem behind Velasco’s position is its far-reaching implication on the conduct of preliminary investigations in court cases. “If his argument was followed, it would impact on all other criminal cases pending before the courts. This will wreak havoc in the judicial process,” one of the sources said.

Former Chief Justice Artemio Panganiban, in his column in the Philippine Daily Inquirer, concurred with the observation. A ruling following Velasco’s line “would cascade to many other pending criminal cases, because the conduct of the PI (preliminary investigation) would be modified radically,” he said.

Brion's middle ground

Velasco’s argument however could be Estrada’s express road to freedom.

One of the sources warned that the voiding of the information filed against Estrada would lead to his complete exoneration from the pork barrel anomaly. “If the Ombudman’s preliminary investigation is voided, you can no longer charge Estrada with plunder and graft charges since they’ve been arraigned already for such charges. The rule on double jeopardy will now apply to him,” the source familiar with the case said.

Double jeopardy refers to a constitutional right of the accused against being tried for the same offense from the same facts.

With the justices queasy about rocking the boat, Velasco’s position reportedly lost steam. However, a middle ground is said to have surfaced, courtesy of Justice Arturo Brion.

Instead of outright voiding the Ombudsman’s preliminary investigation, Brion is reportedly pushing to remand the case against Estrada back to the Ombudsman to conduct a reinvestigation. Since the preliminary investigation is not voided, the rule on double jeopardy does not apply. It will also mean Estrada stays in jail.

At best, it will only allow Estrada temporary freedom pending the Ombudsman’s reinvestigation. “The Ombudsman can just sustain its initial finding,” one of the sources explained. “However, this will embarrass the Ombudsman.” The current Ombudsman, Conchita Carpio-Morales, is a former member of the SC and an appointee of President Benigno Aquino III.

Swing vote

Based on initial feedback, Estrada has the solid backing of 7 justices who are all appointees of former president Gloria Macapagal Arroyo.

On the other hand, 4 appointees of President Aquino, including Chief Justice Maria Lourdes Sereno, and 2 other justices, are supposedly voting in favor of the Ombudsman.

For the tie, a 7th justice has reportedly committed to vote in favor of the Ombudsman “but could change at the last minute.”

The sources said there has been “intense lobbying” and the outcome of the voting will reflect that. – Rappler.com

Shifting to issue-based court trials

IT IS WELL-KNOWN that Philippine court dockets are heavily congested. The National Statistical Coordination Board has reported that lower courts have to handle more than one million cases in a year or an average of around 4,221 cases per working day. While the total inflow of cases in the lower courts has declined, the total outflow of cases has likewise been on a downtrend. The Supreme Court’s records revealed that 21% of cases take two to five years to end and 13% were only resolved after five years. This delay has resulted in the general distrust and lack of confidence in our court system.

To unclog the court dockets, the Supreme Court announced the piloting of a new system for speedy court trials, the product of the National Conference for the Revision of the Rules of Civil Procedure headed by retired Justice Roberto A. Abad.

The Supreme Court has directed the pilot testing of Rules 22 and 24 of the draft Revised Rules of Civil Procedure (Revised Rules) in select lower courts in Quezon City, Makati City, Angeles City, Iloilo City, Davao City and Cebu City beginning Feb. 23, 2015.

More than cosmetic changes, the Revised Rules introduce a major shift in procedural philosophy -- from the adversarial system to an inquisitorial system where trial court judges have a more active role in the investigation and prosecution of cases.

Instead of the pre-trial brief required to be filed under the 1997 Revised Rules of Procedure, drafts of the Terms of Reference (TOR) are required under the Revised Rules. The TOR, which control the scope of trial, contain a summary of admitted and established facts; a statement of the factual issues that the conflicting evidence of the parties present; a list of witnesses from either side who are competent to testify on each of the factual issues in the case; and a statement of the legal issues that the case presents. Only relevant and significant issues, which will help decide the case on its merits, will be tried.

The court will set the preliminary conference only after the court’s preparation of the TOR, during which the court, in consultation with the parties and their counsels, whose presence are required, will determine if there is a need to make changes in the contents or wordings of the TOR. If so, the court will enter the changes on the document.

An Order of Trial will be issued toward the end of the preliminary conference fixing the order in which the issues are to be tried; identifying the witnesses who need to be present to testify on each of the issues; setting the specific dates for reception of evidence; determining whether the circumstances warrant an alternate or face-to-face trial and, in the latter case, whether it shall be simple or regular and who among the witnesses are exempt from face-to-face examination; and determining the need to refer certain issues to trial by commissioners.

Departing from the traditional mode of trial where the complainant first adduces evidence in support of his complaint before allowing the defendant to adduce evidence in his defense, Rule 24 on Trial of Issues allows the judge to hear all the evidence from both sides on a disputed issue, or two or more closely related issues, before moving on to the next issue.

During the Trial of Issues, the court may try issues in the TOR either by alternate or face-to-face trial. The parties may also agree to have an alternate trial instead of face-to-face trial.

In an alternate trial, the parties take turns in presenting their witnesses with respect to each factual issue as stated in the Order of Trial. In a face-to-face trial, witnesses from the contending sides appear together before the court, sit face-to-face around a table in a non-adversarial environment, and answer questions first from the court and thereafter from the parties’ counsels with respect to the factual issue under consideration. Where the issues are complex or numerous and the evidence from both sides consists of testimonies of several witnesses or involve numerous pieces of evidence, the court will hold a regular face-to-face trial with hearings spread over a period. Where the issues are simple and few, however, the court will conduct a simple one-time face-to-face trial with an oral argument rendered at the end of such trial.

Finally, in order to ensure that the new issue-based approach will not be punctuated with delays, the Revised Rules provide that the dates set for trials shall not be transferable except on the ground of a fortuitous event or serious illness of a counsel or witness.

With all the foregoing, the objective of empowering the judge to take a direct role in examining the witnesses during the trial and to maximize the court’s time and shorten the trial, without sacrificing the quality of hearing and adjudication, will hopefully be achieved.

Dyan Danika G. Lim is a senior associate of the Litigation and Dispute Resolution Department of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW).

dglim@accralaw.com

source:  Businessworld

Rules of Court: 3 Modes of Appeal

Petitioners availed of the wrong mode of appeal

          Section 2, Rule 41 of the Rules of Court provides the three modes of appeal, which are as follows:

Section 2.  Modes of appeal. —

(a)     Ordinary appeal. — The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and serving a copy thereof upon the adverse party.  No record on appeal shall be required except in special proceedings and other cases of multiple or separate appeals where the law or these Rules so require.  In such cases, the record on appeal shall be filed and served in like manner.

(b)     Petition for review. — The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction shall be by petition for review in accordance with Rule 42.

(c)     Appeal by certiorari. — In all cases where only questions of law are raised or involved, the appeal shall be to the Supreme Court by petition for review on certiorari in accordance with Rule 45.

The first mode of appeal, the ordinary appeal under Rule 41 of the Rules of Court, is brought to the CA from the RTC, in the exercise of its original jurisdiction, and resolves questions of fact or mixed questions of fact and law. 

The second mode of appeal, the petition for review under Rule 42 of the Rules of Court, is brought to the CA from the RTC, acting in the exercise of its appellate jurisdiction, and resolves questions of fact or mixed questions of fact and law. 

The third mode of appeal, the appeal by certiorari under Rule 45 of the Rules of Court, is brought to the Supreme Court and resolves only questions of law.

Where a litigant files an appeal that raises only questions of law with the CA, Section 2, Rule 50 of the Rules of Court expressly mandates that the CA should dismiss the appeal outright as the appeal is not reviewable by that court.

There is a question of law when the issue does not call for an examination of the probative value of the evidence presented, the truth or falsehood of facts being admitted, and the doubt concerns the correct application of law and jurisprudence on the matter.[13] On the other hand, there is a question of fact when the doubt or controversy arises as to the truth or falsity of the alleged facts.

source: G.R. No. 175291 (July 27, 2011)

SC orders Pasig RTC to proceed with trial of Lee’s Globe Asiatique, Filmal Realty Corp.

The Supreme Court (SC) has ordered the Pasig City Regional Trial Court (RTC) to continue with the proceedings against Delfin Lee’s Globe Asiatique Realty Holdings Corporation and Filmal Realty Corporation in connection with a loan worth more than Php 1 billion with the Philippine National Bank (PNB).

In a decision written by Associate Justice Martin Villarama, the SC granted the petition filed by Aida Padilla as it ordered the Pasig City RTC to proceed with the presentation of evidence in support of the compulsory counterclaim of the petitioner.

“The Orders dated November 12, 2012 and May 8, 2013 of the Regional Trial Court of Pasig City, Branch 155 in [the Civil Case] are hereby reversed and set aside…” the SC ruling said.

Concurring with the ruling were Chief Justice Maria Lourdes P. Aranal Sereno and Associate Justices Lucas Bersamin, Bienvenido Reyes and Jose Catral Mendoza.

Records of the case showed that from 2005 to 2008, the PNB entered into several Contracts to Sell (CTS) Facility Agreements with respondents Globe Asiatique and Filmal represented by Delfin S. Lee and Dexter L. Lee, president and vice president, respectively, of the two corporations.

The PNB agreed to make available to Globe Asiatique and Filmal CTS Facility in the amount not exceeding Php 200 million to finance the purchase of certain Accounts Receivables or the in-house installment receivables of the respondents stemming from the sale of subdivision houses in their real estate/housing projects as evidenced by contracts to sell.

These availments were later increased to a total amount of Php 1.2 billion.

Pursuant to and as a condition for the CTS Facility availments, the respondents executed in favor of PNB several Deeds of Assignment covering accounts receivables in the aggregate amount of Php 1,195,926,390.72.

In the instruments, the respondents acknowledged the total amount of Php 1,395,665,564.69 released to them by the PNB in consideration of the accounts receivables.

In the first quarter of 2010, the respondents defaulted in the payment of their outstanding balance and delivery to the PNB of transfer certificates of title corresponding to the assigned accounts receivables, for which the PNB declared them in default under the CTS Facility Agreements.

Subsequently, the respondents made partial payments and made proposals for paying in full its obligation to the PNB as shown in the exchange of correspondence between the respondents and the PNB.

On Aug. 5, 2010, the PNB made a formal and final demand upon the respondents to pay the total amount of Php 974,377,159.10 representing their outstanding obligation.

In the course of credit monitoring and verification, the PNB claimed it discovered 231 out of 240 Contracts to Sell to have either inexistent addresses of buyers or the names of the buyers are non-existent or both.

The case eventually reached the RTC.

In their complaint against Judge Pedro De Leon Gutierrez and Padilla, the respondents claimed that Globe Asiatique and Filmal are well-known and successful real estate developers whose projects were “being continuously supported by various banks and other financial institutions prior to the malicious and devastating unfounded civil action” filed by Padilla which wrought havoc to their businesses and lives.

The respondents alleged that these were already novated by the parties who agreed upon a term loan starting May 31, 2010 and to expire on April 30, 2012.

Despite her knowledge of such novation and that the obligation was not yet due and demandable, Padilla with malice and evident bad faith still executed a “perjured” affidavit in support of the application for writ of preliminary attachment before the Pasay City RTC.

This prompted Padilla to file her counterclaims, saying that her answer before the Pasig City RTC is compulsory, alleging suffering and injury caused to her as a consequence of the unwarranted filing of the baseless complaint by the respondents.

The RTC dismissed her counterclaim upon the same ground of lack of jurisdiction as its resolution supposedly would entail passing upon the validity of orders and processes still pending before the Pasay City RTC.

Padilla elevated the case to the SC.

She argued that the SC has jurisdictional competence and authority to resolve her counterclaims notwithstanding the dismissal of the complaint dated Aug. 10, 2011 for violation of the principle of judicial stability.

The SC said “the RTC of Pasig City should have allowed petitioner’s counterclaim to proceed notwithstanding the dismissal of respondents’ complaint, the same being compulsory in nature and with its cause not eliminated by such dismissal.”

“It bears stressing that petitioner was hailed to a separate court (Pasig City RTC) even while the dispute between PNB and respondents was still being litigated, and she already incurred expenses defending herself, having been sued by respondents in her personal capacity,” the SC said.

“The accusations hurled against her were serious (perjury and misrepresentation in executing the affidavit in support of the application for writ of attachment before the Pasay City RTC)—with hints at possible criminal prosecution apart from that criminal complaint already lodged in the Pasig City Prosecutor’s Office,” it added.

“The Pasig City RTC clearly erred in refusing to hear the counterclaims upon the same ground for dismissal of the complaint, i.e., lack of jurisdiction in strict observance of the policy against interference with the proceedings of a co-equal court,” the SC said.

“Ironically, while it is the respondents who erroneously and maliciously asked the Pasig City RTC to pass upon these issues still pending in a co-equal court, for which reason the said court dismissed their complaint, petitioner was not allowed to prove her counterclaim by reason of the unfounded suit in the same case as purportedly it will entail verifying respondents’ claim that they were prejudiced by the orders and processes in the Pasay City RTC. This situation exemplifies the rationale in Perkin Elmer Singapore Pte Ltd. on requiring the petitioner to make the counterclaim in the present action, under threat of losing such right to claim the same ever again any other court, yet make such right of the petitioner totally dependent on the fate of the respondents’ complaint,” it added. PNA

source:  Manila Times

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SC eyes continuous trial system to speed up cases

THE SUPREME COURT (SC) is eyeing to implement a “continuous trial system” for commercial courts this year, Chief Justice Ma. Lourdes P.A. Sereno said, in a move to speed up investor-related disputes in the country.

The system, Ms. Sereno said, aims to set a new norm for commercial cases whereby litigation time for commercial cases will be reduced to two years.

“Hopefully, if the lawyers will cooperate with the discipline that the judges are going to impose on the progress of the trial, two to three years completion time will be the new norm for commercial court cases,” Ms. Sereno said in her remarks before participants of the World Economic Forum on East Asia last week.

“There are several other measures, specific to commercial courts, that we are currently studying, and at the appropriate time, we will be announcing,” she added.

Commercial courts are special tribunals appointed by the SC to handle intellectual property disputes and corporate cases formerly handled by the Securities and Exchange Commission (SEC).

Ms. Sereno also cited existing “reform measures” to address judicial delays for investor-related contracts: the use of judicial affidavit and new rules on financial rehabilitation.

Judicial affidavits, set in place in December 2012, replaced the direct examination of witnesses and is currently enforced in civil cases, but suspended in criminal cases upon the request of government prosecutors.

“This means that witnesses, including the investors can just execute affidavits and will then just have to be present when it is time for them to be cross-examined,” Ms. Sereno said.

The rules on financial rehabilitation, on the other hand, “are intended to expedite the decision on whether an enterprise is to be rehabilitated or liquidated, and giving time-bound allowances for the enterprise’s second life,” Ms. Sereno said.

The Chief Justice said other reform measures for commercial courts will be announced later on.

“Sustained reforms on the general aspects of court litigation is expected to lead to an increase in trust in our courts,” Ms. Sereno said.

“If this upward trend continues, we hope to see significant strides in rule of law indicators in country competitiveness studies,” she added. -- Mikhail Franz E. Flores
 
source:  Businessworld