Remedial Law 2020 Atty. Esguerra

REMEDIAL LAW (ADDITIONAL RULES IN THE 2020 BAR SYLLABUS)

ATTY. RAMON S. ESGUERRA

TABLE OF CONTENTS 1) Revised Internal Rules of Sandiganbayan, AM No.13-7-05-SB 2) Rules under the Administrative Search and Inspection, Competition Act, AM No.1908-07-SC 3) Katarungang Pambarangay, Admin. Circular No.14-93 4) Rules on Provisional Orders, AM No.02-12-12-SC 5) Special Rules of Court on Alternative Dispute Resolution, AM No.07-11-08-SC 6) Rules in Election Contests of Municipal and Barangay Officials, AM No. 10-4-1-SC 7) Rule on Cybercrime Warrants, AM No.17-11-03-SC 8) Rule on Precautionary HDO, AM No. 18-07-05-SC

2018 Revised Internal Rules of the Sandiganbayan A.M. NO. 13-7-05-SB DATE OF EFFECTIVITY: 16 NOVEMBER 2018

Coverage of the Internal Rules The Internal Rules shall apply to the proceedings and internal operations of the Sandiganbayan. (Rule 1, Section 2)

Applicability of the Rules of Court and Supreme Court Issuances The Rules of Court, resolutions, circular and other issuances promulgated by the Supreme Court, insofar as applicable, shall govern all actions and proceedings before the Sandiganbayan. (Rule 1, Section 3)

Liberal Construction of the Internal Rules These Rules shall be liberally construed to promote a just, expeditious and inexpensive determination of every action and proceedings in the Sandiganbayan. (Rule 1, Section 3)

Rule II: Organizational Set-Up The Sandiganbayan shall be composed of a Presiding Justice and twenty (20) Associate Justices. [Rule 2, Section 1(b)]

Rule on Precedence The Presiding Justice shall enjoy precedence over the other members of the Sandiganbayan in all official functions. The Associate Justices shall enjoy precedence according to the order of their appointments. [Rule 2, Section 1 (b)] The Rule on Precedence shall apply in: the seating arrangement, choice of office space, facilities and equipment, transportation and cottages. [Rule 2, Section 1 (c)]

Rule on Precedence The Rule on Precedence shall not be observed: (a) In social and other non-official functions; and (b) To justify any variation in the assignment of cases, amount of compensation, allowances or other forms of remuneration [Rule 2, Section 1 (d)].

The Sandiganbayan En Banc The Sandiganbayan en banc shall have exclusive control, direction and supervision of all matters pertaining to the conduct of its affairs. (Rule 2, Section 2)

The Sandiganbayan En Banc The Sandiganbayan En Banc for the exercises administrative, ceremonial and non-adjudicatory functions (Rule III, Sections 1 and 2), including: 1. Promulgate rules or orders, amend, revise or repeal existing rules or orders or parts thereof, and formulate and adopt policies relative to administrative matters, such as the distribution of cases and the internal operation and management of the Sandiganbayan. [Rule 3, Section 2 (a)]; 2. Has the control and supervision of the Clerk of Court [Rule 2, Section 6 (a)];

The Sandiganbayan En Banc 3.

4. 5.

Recommends to the Supreme Court, from a list of qualified applicants, appointments to the position of Clerk of Court, the Division Clerks of Court, the Assistant Division Clerks of Court, and all other personnel to the Supreme Court [Rule 3, Section 2 (b)]; Study and recommend to the Supreme Court organizational matters [Rule 3, Section 2 (c)]; Submits to the Supreme Court for appropriate action all resignations, terminations of services and disciplinary actions against officials and employees of the Sandiganbayan. (Rule 2, Section 7)

The Sandiganbayan En Banc 5. Appoints the members of the Sandiganbayan Standing Committees on: (a) Gender-Responsiveness; (b) Personnel; (c) Budget And Finance; (d) Security And Safety; (e) Records Management And Information Service; (f) Justices, Officials And Employees Welfare, Incentives And Benefits; (g) Legal And Research Services; (h) Buildings And Grounds; (i) Acquisition, Procurement, Maintenance And Disposal Of Facilities, Equipment And Supplies; (j) Rules; (k) Raffle Of Cases; (l) Social Affairs And Liaison; (m) Ethics; and (n) Special Concerns (Rule 2, Section 8)

The Sandiganbayan Divisions Composition The Sandiganbayan shall sit in seven (7) Divisions of three (3) Justices each, including the Presiding Justice. The seven (7) Divisions may sit at the same time. The Presiding Justice and each of the six (6) most senior Associate Justices shall be the Chairperson of a Division; each of the seven (7) most senior Associate Justices next in rank shall be the Senior Member of a Division, and each of the last seven (7) Associate Justices shall be the Junior Member of a Division (Rule 2, Section 3).

The Sandiganbayan Division exercises Adjudicatory Powers The Sandiganbayan shall exercise its adjudicatory powers, functions and duties through its seven (7) Divisions. (Rule 3, Section 1) The Sandiganbayan en banc may request or recommend to the Supreme Court the creation of a Special Division to try cases where compelling reasons and the interest of justice so require. (Rule 3, Section 3)

Issuance and Service of Writs and Process  Writs and processes of the Sandiganbayan, such as warrants of arrest or search warrants shall be issued by the Chairperson of the Division where the case was raffled, or in his/her absence, the most senior member present after having determined the existence of probable cause in accordance with the pertinent provisions of the Rules of Court. (Rule 5, Section 1)

Issuance and Service of Writs and Process However, where there is an urgent necessity for the issuance thereof before the case is raffled to a Division, it shall be issued by the Presiding Justice or in his/her absence, by the most senior Associate Justice present. (Rule 5, Section 1) All other writs and processes shall be issued by the Clerk of Court or the Division Clerk of Court, upon order of the Division (Rule 5, Section 2)

Electronic Service of Subpoenas and Notices In addition to the provisions of Rules 13 and 21 of the 1997 Rules of Civil Procedure, the Sandiganbayan may serve subpoenas and notices to parties, their counsels and witnesses in criminal and civil cases through: (a) e-mail; (b) telephone call (landline or mobile phone); or (c) by Short Message Service (SMS). (Rule 5, Section 3). In cases where there are detainees, such service shall be made through the officer having the management of the jail or penal institution where the inmates are detained. (Rule 5, Section 3).

Modes of Service Without prejudice to the provisions of Rules 13 and 21 of the 1997 Rules of Civil Procedure, the subpoenae and notices shall first be electronically served through e-mail or SMS. ◦ If these modes of service are not feasible, then the notices and subpoenas shall, with prior clearance from the justices, be served by telephone calls, either through landline or mobile phone. (Rule 5, Section 7)

Modes of Service Proof of electronic service: a) printouts of sent e-mail and the acknowledgment by the recipient; b) printouts of SMS transmitted through the Sandiganbayan's equipment or device and the acknowledgment by the recipient; or c) report of phone call made by the designated court personnel (Rule 5, Section 7).

Bail Where a case involving a bailable offense has not been raffled to a Division, the amount of bail shall be fixed and approved by the Presiding Justice or, in the latter’s absence, the most senior Justice present. [Rule 6, Section 2(a)] Where a case has been raffled to a Division, the amount of bail shall be fixed and approved by its Chairperson or, in his/her absence, by any Justice of the Division or, in their absence, by any Justice of the Sandiganbayan. [Rule 6, Section 2(b)]

Bail Where the accused is arrested, detained or otherwise placed in custody outside the National Capital Region, Sections 17 and 19, Rule 114 of the Revised Rules of Criminal Procedure shall apply. All bonds approved shall be without prejudice to the final action thereon by the Division handling the case, which may either confirm the bond or require the posting of additional or different bond for the accused. [Rule 6, Section 2(b)]

Prohibited Motions The Sandiganbayan shall DENY outright any of the following prohibited motions: a) Motion for judicial determination of probable cause; b) Motion for preliminary investigation filed beyond the five (5)-day reglementary period in inquest proceedings under Section 6, Rule 112, or when preliminary investigation is required under Section 8, Rule 112, or allowed in inquest proceedings and the accused failed to participate in the preliminary investigation despite due notice;

Prohibited Motions The Sandiganbayan shall DENY outright any of the following prohibited motions : c) Motion for reinvestigation of the prosecutor recommending the filing of information once the information has been filed before the Sandiganbayan [1] if the motion is filed without prior leave of court; [2] when preliminary investigation is not required under Section 8, Rule 112; and [3] when the regular preliminary investigation is required and has been actually conducted, and the grounds relied upon in the motion are not meritorious, such as issues of credibility, admissibility of evidence, innocence of the accused, or lack of due process when the accused was actually notified, among others;

Prohibited Motions The Sandiganbayan shall DENY outright any of the following prohibited motions: d) Motion to quash information when the ground is not one of those stated in Section 3, Rule 117; e) Motion for bill of particulars that does not conform to Section 9, Rule 116; f) Motion to suspend arraignment based on grounds not stated under Section 11, Rule 116; and g) Petition to suspend the criminal action on the ground of prejudicial question, when no civil case has been filed, pursuant to Section 7, Rule 111. (Rule 7, Section 2)

Periods to Comment and Resolve Meritorious Motions  The comment of the adverse party shall be filed within a period of ten (10) calendar

days from notice or receipt of the order of the Sandiganbayan to file the same;

 The Sandiganbayan shall resolve the motion within a period of thirty (30) calendar days from the expiration of the ten (10)-day period, with or without comment;  At its discretion, the Sandiganbayan may set the motion for hearing within a period of ten (10) calendar days from the expiration of the ten (10)- day period to file comment, and shall be resolved within a non-extendible period of ten (10) calendar days thereafter  Reply and memorandum shall not be allowed. (Rule 7, Section 4)

Resolution on Interlocutory or Incidental Motions Rulings on all written motions on interlocutory or incidental matters submitted to any regular Division for resolution shall be reached in consultation among and by the unanimous vote of the three (3) Justices participating in the consideration thereof. Rulings on oral motions or objections made in the course of the trial or hearing shall be made by the Chairperson of the Division: Provided, that oral motions or objections on substantial but interlocutory or incidental matters may be ordered reduced into writing and shall likewise be resolved by the unanimous vote of the three (3) Justices of the Division. (Rule 7, Section 3)

Resolution on Interlocutory or Incidental Motions In case a unanimous vote cannot be obtained, a Special Division of five (5) Justices shall be constituted pursuant to Section 1, Rule IX. A majority vote of such Special Division shall suffice to decide interlocutory or incidental motions. However, for cases arising from offenses committed after the effectivity of R.A. No. 10660, the concurrence of a majority of the members of the Division shall be necessary to resolve such motions. (Rule 7, Section 3)

Arraignment How Arraignment is Done Arraignment shall be conducted in accordance with Rule 116, Section 1 of the Revised Rules of Criminal Procedure. The handling Division may request in writing another Division conducting hearings outside of its principal office, to arraign an accused and resolve all incidents during the arraignment therein, and such arraignment and any order issued relative thereto shall be valid and binding as if done by the handling Division. (Rule 8, Section 1)

Arraignment Upon motion showing good cause therefor, or when the Sandiganbayan deems it appropriate, both the arraignment and pre-trial of an accused may be conducted outside the principal office of the Sandiganbayan by the handling division upon request in writing by the latter, by another division conducting hearing in the locality. (Rule 8, Section 1)

Arraignment The accused may waive the reading of the Information, provided that the Sandiganbayan is satisfied that accused has full understanding of the: (a) nature and cause of the accusation/s contained in the Information/s filed as explained to accused by his/her counsel; and (b) the consequences of the waiver. The waiver shall be reduced in writing and signed by the accused and his counsel, and shall be stated in the minutes/certificate of arraignment and the order of arraignment. (Rule 8, Section 1)

Conditional Arraignment Where an accused seeks to travel outside the Philippines prior to arraignment, the Sandiganbayan, in its discretion, may arraign the accused under the following conditions (Rule 8, Section 2):

Conditional Arraignment 1. That if the Information is not subsequently amended or re-filed, the conditional arraignment shall be considered as a regular arraignment and the case may proceed even in the absence of the accused; 2. That if the Information be subsequently amended or re-filed, the accused shall be deemed to have waived the right against double jeopardy and the accused shall be arraigned under the amended or new information;

Conditional Arraignment 3. That the accused will not lose the right under the rules to question in a motion to quash the amended or new information filed subsequent to the conditional arraignment; and 4. That in case the Information be subsequently quashed or withdrawn, the arraignment shall be considered of no force and effect and/or shall not be used as ground to invoke the right against double jeopardy. (Rule 8, Section 2)

Precautionary Hold Departure Order (PHDO) A precautionary hold departure order (PHDO) under A.M. No. 18-07-05-SC dated 7 August 2018 is an order in writing issued by a court commanding the Bureau of Immigration to prevent any attempt by a person suspected of a crime to depart from the Philippines, which shall be issued ex-parte in cases involving crimes where the minimum of the penalty prescribed by law is at least six (6) years and one (1) day or when the offender is a foreigner regardless of the imposable penalty. [Rule 8, Section 3 (a)] The Division shall furnish the Bureau of Immigration with a duly certified copy of the hold departure order within twenty-four (24) hours from issuance [Rule 8, Section 3 (f)]

Precautionary Hold Departure Order (PHDO) A. The application for a PHDO may be filed by the Office of the Ombudsman with the Sandiganbayan. Upon motion by the complainant in a criminal complaint filed before the Office of the Ombudsman, and upon a preliminary determination of probable cause based on the complaints and attachments, the Office of the Ombudsman may file an application in the name of the People of the Philippines for a PHDO with the Sandiganbayan. The application shall be accompanied by the complaint-affidavit and its attachments, personal details, passport number and a photograph of the respondent, if available. [Rule 8, Section 3 (b) and (c)]

Precautionary Hold Departure Order (PHDO) B. Determination of Probable Cause for the issuance of a PHDO  A PHDO shall not issue except upon determination by a Division of the

Sandiganbayan, where the application is raffled, that probable cause exists, and there is a high probability that respondent will depart from the Philippines to evade arrest and prosecution of crime against him or her. The Division shall personally examine under oath or affirmation, in the form of searching questions and answers in writing, the applicant and the witnesses he/she may produce on facts personally known to them and attaching to the record their sworn statements. [Rule 8, Section 3 (d)]

Precautionary Hold Departure Order (PHDO) B. Determination of Probable Cause for the issuance of a PHDO  If the Division finds that probable cause exists and there is a high probability

that respondent will depart, it shall issue the PHDO and direct the Bureau of Immigration to hold and prevent the departure of the respondent at any Philippine airport or ports. Otherwise, the Division shall order the dismissal of the application. [Rule 8, Section 3 (e)]

Precautionary Hold Departure Order (PHDO) The Division’s finding of probable cause shall be without prejudice to the resolution of the Office of the Ombudsman in the preliminary investigation: ◦ If the Ombudsman dismisses the criminal complaint for lack of probable cause, respondent may use the dismissal as a ground for the lifting of the PHDO with the Sandiganbayan ◦ If the Ombudsman finds probable cause and files the criminal information, the case with the Division that issued the PHDO, on motion of the Office of the Ombudsman, shall be consolidated with the Division where the criminal information is filed. [Rule 8, Section 3 (e)]

Precautionary Hold Departure Order (PHDO) The respondent may file a verified motion before the issuing Division for the temporary lifting of PHDO on meritorious ground; that, based on the complaint-affidavit and the evidence that he/she will present, there is doubt that probable cause exists to issue the PHDO or it is shown that he/she is not a flight risk; Provided, that the respondent posts a bond; Provided, further, that the lifting of the PHDO is without prejudice to the resolution of the preliminary investigation against the respondent. [Rule 8, Section 3 (g)]

Permission to Travel Respondent may ask the issuing Division to allow him or her to leave the country upon posting of a bond in an amount to be determined by the Sandiganbayan subject to the conditions set forth in the Order granting the temporary lifting of the PHDO. [Rule 8, Section 3 (h)]

Suspension Pendente Lite or Preventive Suspension After the arraignment of an accused public officer against whom a valid information charging any of the violations referred to in Section 13 of R.A. No. 3019 is filed, the Sandiganbayan shall motu proprio give the said accused a non-extendible period of ten (10) calendar days from notice within which to explain in writing why he should not be preventively suspended. Thereafter, the Sandiganbayan shall issue an order of preventive suspension of the accused, if found warranted under the aforesaid provision of R.A. No. 3019, as well as applicable decisions of the Supreme Court. (Rule 8, Section 4)

Preliminary Conference and Pre-Trial The preliminary conference and pre-trial conference shall be set at the time of the arraignment. Strict observance of the guidelines on preliminary conference as provided in A.M. No. 03-1-09-SC dated 13 July 2004, as amended by A.M. No. 15-06-10-SC dated 25 April 2017 shall be mandatory. (Rule 8, Section 5)

Form of Testimony of Witnesses The testimony of witnesses shall consist of the duly subscribed written statements given to law enforcement or peace officers or the affidavits or counter affidavits submitted before the Office of the Ombudsman. If such are not available, testimonies shall be in the form of judicial affidavits, in accordance with the Judicial Affidavit Rule. In all other cases where the culpability or the innocence of the accused is based on the testimonies of the alleged eyewitnesses, the testimonies of these witnesses shall be in oral form (Rule 8, Section 6).

Offer of Evidence As a rule, offer of evidence, as well as comments and/or objections thereto, shall be made orally immediately after the party has finished the presentation of its evidence. (Rule 8, Section 7) However, upon oral motion, and immediately after the party has presented its last witness, the Sandiganbayan, in the same proceeding, may authorize the offer and the comments/objections thereto be made in writing when there are voluminous and/or numerous documents involved. (Rule 8, Section 7)

Offer of Evidence The formal offer shall be made within a non-extendible period of ten (10) days from its grant, and the adverse party shall be given a non­ extendible period of ten (10) calendar days from receipt of the said offer to comment/ object thereto. (Rule 8, Section 7) Thereafter, the formal offer and the comment/objection shall be resolved within a non-extendible period of ten (10) calendar days, with or without comment/ objection. (Rule 8, Section 7)

Demurrer to Evidence  The filing of a demurrer to evidence shall be governed by Section 23, Rule 119 of the Revised Rules of Criminal Procedure.  The Division shall resolve the demurrer within forty-five (45) calendar days from its submission.  However, where a case involves several accused, and one or some of the accused did not file such demurrer, the demurrer may be resolved or decided simultaneously or jointly with the main decision after the presentation of evidence for the other accused, for the orderly disposition of the case. (Rule 8, Section 8)

Rendition of Decision Cases arising from acts prior to the effectivity of R.A. No. 10660. The unanimous vote of three (3) Justices in a Division shall be necessary for the rendition of a judgment or final order. ◦ In the event a unanimous vote is not obtained, the Presiding Justice shall designate by raffle, on rotation basis, two (2) Justices from all the other members of the Sandiganbayan to sit temporarily with them, forming a Special Division of five (5) Justices, and the vote of a majority of such Special Division shall be necessary for the rendition of a judgment or final order. (Rule 9, Section 2)

Rendition of Decision Voting Requirement for Cases Arising from Offenses Committed after the Effectivity of R.A. No. 10660. The above notwithstanding, for cases arising from offenses after the effectivity of R.A. No. 10660, the concurrence of a majority of the members of the Division shall be necessary to render judgment or final order. (Rule 9, Section 4)

Motion for New Trial or Reconsideration 

shall be filed within fifteen (15) calendar days from promulgation of the judgment or from notice of the final order or judgment (Rule 10, Section 1)

 the motion shall be decided within thirty (30) calendar days from the date of submission for resolution (Rule 10, Section 1).

Motion for New Trial or Reconsideration Grounds for New Trial in Civil Cases A new trial may be granted in civil cases decided by the Sandiganbayan in the exercise of its original jurisdiction on the grounds provided in Section 1 of Rule 37 of the 1997 Rules of Civil Procedure. In civil cases appealed to or decided by the Sandiganbayan, a new trial may be granted on the ground provided under Section 1 of Rule 53 of the 1997 Rules of Civil Procedure. (Rule 10, Section 3)

Motion for New Trial or Reconsideration Grounds for New Trial in Criminal Cases   A new trial may be granted in criminal cases decided by the Sandiganbayan in the exercise of its original jurisdiction on the grounds provided in Sec. 2 of Rule 121, or on the ground provided in Sec. 14, Rule 124, of the Revised Rules of Criminal Procedure in criminal cases appealed to or decided by the Sandiganbayan. (Rule 10, Section 4)

Motion for New Trial or Reconsideration Effect of Filing an Appeal and Petition for Review on Motion for New Trial and Reconsideration No Motion for Reconsideration or New Trial shall be acted upon if the movant has filed a notice of appeal with the Sandiganbayan, or petition for review on certiorari or a motion for extension of time to file such petition with the Supreme Court. The Motion for Reconsideration or New Trial pending with the Sandiganbayan shall be deemed abandoned upon the filing of a petition or such motion for extension. (Rule 10, Section 8)

Methods of Review to the Supreme Court The appeal to the Supreme Court in criminal cases decided by the Sandiganbayan in the exercise of its original jurisdiction shall be by notice of appeal filed with the Sandiganbayan and by serving a copy thereof upon the adverse party. The appeal to the Supreme Court in criminal cases decided by the Sandiganbayan in the exercise of its appellate jurisdiction, and in civil cases, shall be by petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure. [Rule 11, Section 1 (a)]

Methods of Review to the Supreme Court Automatic appeal Whenever the Sandiganbayan in the exercise of its original jurisdiction imposes the death penalty, the records of the case, together with the transcript of stenographic notes, shall be forwarded within five (5) days after the fifteenth (15th) day following the promulgation of the judgment or notice of denial of a Motion for New Trial or Reconsideration to the Supreme Court for automatic review and judgment. [Rule 11, Section 1 (b)]

  Modes of Appeal to the Sandiganbayan

A. Ordinary Appeal Appeal to the Sandiganbayan from a decision rendered by a Regional Trial Court in the exercise of its original jurisdiction shall be by ordinary appeal under Rules 41 and 44 of the 1997 Rules of Civil Procedure, or Rules 122 and 124 of the Revised Rules of Criminal Procedure, as the case may be (Rule 12, Section 1).

  Modes of Appeal to the Sandiganbayan

B. Petition for Review Appeal to the Sandiganbayan from a decision of the Regional Trial Court in the exercise of its appellate jurisdiction shall be by Petition for Review under Rule 42 of the 1997 Rules of Civil Procedure. (Rule 12, Section 2)

Assignment, Distribution, Consolidation, Transfer and Re-Raffle of Cases Filing of Information and Pleadings Shall be filed in five (5) copies. The Information shall be accompanied by: (a) the duly subscribed written statements given to law enforcement or peace officers, or the affidavits or counter-affidavits submitted before the Office of the Ombudsman; (b) the Resolution of the Ombudsman and its supporting evidence, including a certification that copy of the resolution has been duly served upon the accused or counsel pursuant to the Rules of Court, and that the reglementary period to file a motion for reconsideration in accordance with the rules of the Office of the Ombudsman, has expired, or that the resolution denying the Motion for Reconsideration has been duly served upon the accused or counsel. (Rule 13, Section 1)

Assignment, Distribution, Consolidation, Transfer and Re-Raffle of Cases Filing of Information and Pleadings A pleading or motion shall indicate the filing party’s or counsel’s contact details. Non-compliance with the above requirements may be a ground for the Sandiganbayan to dismiss or not to act on the Information or pleading pending submission of the requirement(s) (Rule 13, Section 1).

Assignment, Distribution, Consolidation, Transfer and Re-Raffle of Cases Distribution of Cases All cases shall be distributed among the seven (7) Divisions by regular raffle at 11:00 a.m. of every Friday, or if that day is a non-working day, on the next succeeding working day, or at any other day and time as may be set by the Sandiganbayan en banc. (Rule 13, Section 2) There shall be electronic raffle of cases where facilities are available. [Rule 14, Section 2 (a)]

Assignment, Distribution, Consolidation, Transfer and Re-Raffle of Cases Distribution of Cases A special raffle of a case may be conducted by the Raffle Committee on any day as soon as possible, upon motion by any party for valid and urgent reasons as determined by the Chairperson of the Raffle Committee. (Rule 13, Section 2) The raffle shall be made public with proper notices/postings in three (3) conspicuous places in the Sandiganbayan at least one (1) day before the raffle date (Rule 13, Section 2) Cases shall remain with the Division notwithstanding changes in its composition (Rule 13, Section 3).

Assignment, Distribution, Consolidation, Transfer and Re-Raffle of Cases Consolidation and Transfer of Cases Cases arising from the same incident or series of incidents, or involving common questions of fact and law, may be consolidated in the Division to which the case bearing the lowest docket number is assigned, in order to promote the speedy disposition of cases, and serve the convenience of the parties and the interest of justice. (Rule 13, Section 4)

Assignment, Distribution, Consolidation, Transfer and Re-Raffle of Cases Unloading of Cases There shall be unloading of cases: (1) when there is/are new Division(s) or a need to balance the caseload of Divisions as may be determined by the Sandiganbayan en banc; and (2) where there is/are member/s of the confidential staff in the Division related to a party or counsel. (Rule 13, Section 5)

Assignment, Distribution, Consolidation, Transfer and Re-Raffle of Cases Grounds for Inhibition of Division Members A Justice may inhibit from a case on the following grounds (Rule 13, Section 8): 1)

When the Justice was the ponente of the appealed decision of the lower court;

Assignment, Distribution, Consolidation, Transfer and Re-Raffle of Cases Grounds for Inhibition of Division Members 2) When the Justice was counsel or member of a law firm which was counsel in a case before the Division, within ten (10) years from joining the Sandiganbayan unless the Justice was no longer a partner or member of the law firm when it was engaged as counsel in the case and the Justice votes against the client of such law firm. In any event, the mandatory inhibition shall cease after the lapse of ten (10) years from the resignation or withdrawal of the Justice from the law firm, unless the Justice personally handled the case when he/she was a partner member of the law firm; or

Assignment, Distribution, Consolidation, Transfer and Re-Raffle of Cases Grounds for Inhibition of Division Members 3) When the Justice, spouse or child, or any member of the family, is pecuniarily interested in said case as heir, legatee, creditor or otherwise; or 4) When the Justice is related to either party in the case within the sixth degree of consanguinity or affinity or to counsel within the fourth degree, computed according to the rules of civil law; or

Assignment, Distribution, Consolidation, Transfer and Re-Raffle of Cases Grounds for Inhibition of Division Members 5) When the Justice has been executor, administrator, guardian or trustee in the case. 6) A Justice may also inhibit for any compelling reason or cause other than those mentioned above or for any other ground provided for under the Rules, subject to the condition that the replacement shall be by raffle.

Assignment, Distribution, Consolidation, Transfer and Re-Raffle of Cases Effect of Inhibition If the Justice inhibits or is disqualified in a case, the case shall remain with the division. The special member shall be the third member in the Special Division, without losing seniority in the Sandiganbayan. The designated Justice shall exercise the authority and prerogatives of a regular member in the Special Division, in addition to the functions as regular member of the other Division. The Special Member, however, shall not be assigned to write decisions or extended resolutions in the case. (Rule 13, Section 9)

Assignment, Distribution, Consolidation, Transfer and Re-Raffle of Cases Effect of Inhibition If the entire Division, on its own initiative or upon motion of any of the parties in a case or cases, decide to inhibit from a case or cases, the case/s shall be re-raffled to another Division. (Rule 13, Section 9)

Publication of Decision The decision of the Sandiganbayan may be published in the Official Gazette in the language in which they have been originally written. (Rule 14, Section 1) The Division Clerks of Court shall furnish the Management Information Systems Division (MISD) with an electronic copy of the decision or extended resolution upon promulgation, for immediate publication in the Sandiganbayan website [Rule 14, Section 2 (b)].

Rule on Administrative Search and Inspection under the Philippine Competition Act A.M. NO. 19-08-06-SC DATE OF EFFECTIVITY: 16 NOVEMBER 2019

Coverage (Section 1) Application, issuance, and enforcement of inspection orders for administrative investigations of alleged violations of Republic Act No. 10667, otherwise known as the “Philippine Competition Act,” its implementing rules and regulations, and other competition laws.

Inspection Order (Section 2) What is it? ◦ An order in writing, issued in the name of the Republic of the Philippines; ◦ Signed by a judge, upon application of the Philippine Competition Commission (PCC), through its duly authorized officer. What does it do? ◦ It authorizes the PCC and any law enforcement agency that may be deputized by the PCC to assist in the execution of the order, to search and inspect business premises and other offices, land and vehicles, for information to be examined, copied, photographed, recorded, or printed, in order to prevent the removal, concealment, tampering with, or destruction of such information.

Inspection Order Application (Section 4) The verified application for an inspection order shall contain a particular description of: 1. the subject of the administrative investigation; 2. the premises, other offices, land or vehicles, as used by the entity, sought to be searched or inspected; and 3. the information sought to be examined, copied, photographed, recorded, or printed, and their relevance and necessity to the investigation.

Inspection Order (Section 2) Information shall include, but shall not be limited to: ◦ books ◦ tax records ◦ documents ◦ papers ◦ accounts ◦ letters ◦ photographs ◦ objects or tangible things

◦ databases and means of accessing information contained in such databases; and ◦ electronically stored information as defined in the rules of procedure of the PCC which relate to any matter relevant to the administrative investigation covered by this Rule.

Where to File Application; and Special Commercial Courts with Authority to Issue Inspection Orders (Section 3) Special Commercial Courts in Quezon City, Manila, Makati, Pasig, Cebu City, Iloilo City, Davao City and Cagayan De Oro City shall have authority to act on applications for the issuance of inspection orders, which shall be enforceable nationwide. Within their respective territorial jurisdictions, the Special Commercial Courts in the judicial regions where the place to be inspected is located shall have concurrent jurisdiction to act on the applications for the issuance of inspection orders.

Where to File Application; and Special Commercial Courts with Authority to Issue Inspection Orders (Section 3) Where inspection of multiple locations is sought relative to the same investigation, an application may be made with any of the Special Commercial Courts, and Special Commercial Courts in the judicial regions of the places to be inspected.

Examination of Applicant; record; confidentiality of proceedings (Section 5) The application shall be acted upon within twenty-four (24) hours from its filing. The examination of the applicant and his witnesses shall be recorded. Their sworn statements and their affidavits shall form part of the record of the case. Court personnel shall maintain confidentiality of the proceedings. The hearing shall be conducted ex parte, and held in the chambers of the judge

Examination of Applicant; record; confidentiality of proceedings (Section 5) The judge must, before issuing the inspection order, examine in the form of searching questions and answers, in writing and under oath or affirmation, the applicant and the witnesses he may produce on facts personally known to them; or on facts based on: 1. the applicant's or witnesses' training and/or experience; 2. authentic records; 3. verifiable data; or 4. economic analysis.

Issuance of Inspection Order (Section 6) The Inspection Order shall be issued if the court finds that there is a reasonable ground to suspect: 1. that the information is kept, found, stored, or accessible at the premises indicated in the application; 2. the information relates to any matter relevant to the investigation; and 3. the issuance of the order is necessary to prevent the removal, concealment, tampering with, or destruction of the books, records, or other documents to be inspected.

When an Inspection Order is Improperly Issued or Implemented (Section 13) Before a return is filed, the person or entity whose premises were inspected may file a written motion with the issuing court to quash the inspection order on the ground that it was improperly issued or implemented. ◦ This shall be resolved in a summary hearing by the issuing court after due notice to the PCC.

Duty to keep distinct and separate logbook (Section 14) The court which issued the Inspection Order shall keep a distinct and separate logbook therefor. The logbook shall be under the custody of the Clerk of Court wherein the filing of applications for inspection orders and other particulars thereof shall be docketed and entered within twenty-four (24) hours after issuance of the inspection order or denial of the application therefor. All the subsequent proceedings concerning the inspection order, including the return on the inspection order, shall be faithfully recorded in the separate logbook.

Effective Period of Inspection Order (Section 7) and When Order Shall Be Served (Section 8) The Inspection Order shall be effective for the length of time as determined by the court, which shall not exceed fourteen (14) days from its issuance. ◦ The court may, upon ex parte motion, extend the effectivity of an inspection order for a period not exceeding fourteen (14) days from the expiration of the original period.

The Order shall be served in the presence of a duly designated officer of the court, during business hours of the premises, or at any time on any day, as may be determined by the court for compelling reasons stated in the application.

Person Whose Presence is Required During Inspection (Section 9) The premises shall be inspected in the presence of the person designated by the entity, either a compliance officer or a legal counsel, who shall be given the opportunity to read the order before its enforcement. Any unreasonable delay, failure, or refusal to designate a representative by the entity shall not prevent the PCC officers, deputies and agents from implementing the inspection order.

Use of Reasonable Force to Effect Order (Section 11) The PCC officers, deputies, and agents, if refused admittance to the premises after giving a notice of their purpose and authority, may use reasonable force to gain entry to the premises, land, vehicle, or any part of the building or anything therein, to enforce the inspection order, or to liberate themselves or any person lawfully aiding them when unlawfully detained therein.

Manner of Inspection (Section 10) 1.

2.

Upon securing an inspection order, the PCC officers, deputies, and agents shall enter, search and inspect the premises indicated in the order, and examine, copy, photograph, record, or print information described in the order. Electronically stored information, databases, and means of accessing information contained in such databases that are kept, found, stored or accessed in the premises indicated in the order may be examined and copied by copying the information, whether through forensic imaging or other means of copying, photographing or recording the electronically stored information, or by printing out its contents.

Manner of Inspection (Section 10) 3. The PCC officers, deputies, and agents may likewise require that such electronically stored information and databases be produced in a form that is visible and legible, and may be copied, photographed, recorded, or printed out. ◦ Such copies, photographs, recordings, or printouts shall be considered and treated as original documents.

Manner of Inspection (Section 10) 4. The PCC officers, deputies, and agents may ask explanations on facts or documents relating to the subject and purpose of the inspection and record the answers. 5. An individual, who may be assisted by counsel, must answer questions, although the answer may tend to establish a claim against him/her. 6. However, such individual has the right not to give an answer which will tend to subject him/her to a criminal penalty for an offense, unless otherwise provided by law.

Manner of Inspection (Section 10) 7. As may be reasonably necessary for the conduct of the inspection, the PCC officers, deputies or agents may secure or seal the area and equipment, gadgets or devices where the information is located or stored, and attach to them a tag or label warning all persons from tampering with them, until the examination, copying, photographing, recording, or printing is completed, but in no case beyond the effectivity of the inspection order. ◦ Act of tampering with, breaking or removing the seal affixed shall subject the offender to contempt of court, which procedures shall be governed by Rule 71 of the ROCP, insofar as they are applicable.

Manner of Inspection (Section 10) 8. The person designated by the entity under Section 9 shall disclose to the PCC officers, deputies, and agents the location where the information subject of the inspection order is stored, and provide them with all reasonable facilities and assistance for the conduct of the inspection. 9. The PCC officer shall prepare a list of the information copied, photographed, recorded, or printed, and give a copy of the same to the person designated by the entity. Such person shall have the opportunity to check the information against those described in the list and shall acknowledge receipt by affixing his/her signature.

Manner of Inspection (Section 10) 10. Such person shall likewise certify that the copies, photographs, recordings, or printouts made by the PCC officers, deputies or agents are faithful reproductions of their respective originals. ◦ Once certified, the copies, photographs, recordings, or printouts shall be admissible as evidence for the purpose of the administrative proceedings. ◦ If the entity delays, fails, or refuses to designate a representative, the copies, photographs, recordings, or printouts shall be certified by the highest ranking officer or employee of the entity present in the premises.

Manner of Inspection (Section 10) ◦ If the PCC officers, deputies, or agents, in the course of implementing the inspection order, inadvertently discover other relevant information in plain view that they believe on reasonable grounds to be evidence of a violation of the Philippine Competition Act, its implementing rules, or other competition laws, then they may examine, copy, photograph, record, or print such information and use the same as evidence of said violation.

Return (Section 12) The authorized officer of the PCC shall make a verified return to the court which issued the order, either within three (3) days from the enforcement of the inspection order, or after the expiration of the period provided under the inspection order, whichever comes first.

Attachments to the Return 1. 2.

Accompanied by a list of information copied, photographed, recorded, or printed; and The affidavit of the authorized officer of the PCC containing: ◦

◦

◦

The date and time of examination and copying of the documents, electronically stored information, databases, or means of accessing information contained in such databases; The particulars of the documents, electronically stored information, databases, or means of accessing information contained in such databases, including its hash value; and The manner by which the documents, electronically stored information, databases, or means of accessing information contained in such databases was copied, including a list of all actions taken to enforce the inspection order.

Return (Section 12) The return on the inspection order shall be filed and kept by the custodian of the logbook on inspection orders who shall enter therein the date of the return, the name of the affiant, and other actions of the judge. Duty of the issuing judge to ascertain if the return has been made, and if none, to summon the duly authorized officer to whom the inspection order was issued and require him to explain why no return was made.

Other Provisions (Section 15-18) Any person or entity who fails or refuses to comply with an inspection order or any provision of this Rule shall be cited for contempt of court. (Section 15) Availing an inspection order under this Rule shall not prevent the PCC from exercising its powers under existing laws and rules, including applying for search warrants under relevant rules. (Section 16) Nothing in this Rule shall be read as suspending the need of a warrant that may be required by Article III, Section 2 and 3(a) of the Constitution and the Rule on Search Warrants, when applicable. (Section 16)

Other Provisions (Section 15-18) The information collected pursuant to the inspection order shall be used only in administrative proceedings for violations under the Philippine Competition Act and other competition laws. (Section 17) This Rule shall take effect on 16 November 2019 following its publication in the Official Gazette or in two (2) newspapers of national circulation. (Section 18)

Katarungang Pambarangay • ADMINISTRATIVE CIRCULAR NO. 14-93, 15 JULY 1993 • SECTION 399 TO 422, REPUBLIC ACT NO. 7160, ALSO KNOWN AS THE ”LOCAL GOVERNMENT CODE OF 1991”

Nature and Purpose

The essence of the Katarungang Pambarangay Law is the amicable settlement of disputes wherein the disputing parties are encouraged to make mutual concessions to obtain a peaceful resolution of the dispute without formal adjudication thereof. The important consideration in amicable settlement is the extent which the parties are willing to compromise their respective claims against each other within the limits imposed by law, morals, good customs, public order and public policy (Department of Justice opinion No. 185, series of 1981).

Subject Matters for Settlement

The Local Government Code of 1991 does not enumerate the disputes that are required to be filed before the barangay. All disputes are subject to Barangay conciliation pursuant to the Revised Katarungang Pambarangay Law (formerly P.D. 1508, repealed and now replaced by Secs. 399-422, Chapter VII, Title I, Book III, and Sec. 515, Title I, Book IV, R.A. 7160, otherwise known as the Local Government Code of 1991), and prior recourse thereto is a pre-condition before filing a complaint in court or any government offices.

Exceptions to the Barangay Conciliation Proceedings

The Local Government Code enumerates those that are excluded from the coverage of the required barangay conciliation proceedings: a. Where one party is the government, or any subdivision or instrumentality thereof; b. Where one party is a public officer or employee, and the dispute relates to the performance of his official functions;

c. Where the dispute involves real properties located in different cities and municipalities, unless the parties thereto agree to submit their difference to amicable settlement by an appropriate Lupon; d. Any complaint by or against corporations, partnership or juridical entities, since only individuals shall be parties to Barangay conciliation proceedings either as complainants or respondents (Sec. 1, Rule VI, Katarungang Pambarangay Rules);

e. Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate Lupon; f. Offenses for which the law prescribes a maximum penalty of imprisonment exceeding one (1) year or a fine over five thousand pesos (P5,000.00); g. Offenses where there is no private offended party;

h. Disputes where urgent legal action is necessary to prevent injustice from being committed or further continued, specifically the following: i.

Criminal cases where accused is under police custody or detention; ii. Petitions for habeas corpus by a person illegally deprived of his rightful custody over another or a person illegally deprived or on acting in his behalf; iii. Actions coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property and support during the pendency of the action; and iv. Actions which may be barred by the Statute of Limitations.

i.

Any class of disputes which the President may determine in the interest of justice or upon the recommendation of the Secretary of Justice; j. Where the dispute arises from the Comprehensive Agrarian Reform Law (CARL); k. Labor disputes or controversies arising from employeremployee relations; l. Actions to annul judgment upon a compromise which may be filed directly in court.

Venue of Barangay Conciliation Proceedings

a. Disputes between persons actually residing in the same barangay shall be brought for amicable settlement before the lupon of said barangay. b. Those involving actual residents of different barangays within the same city or municipality shall be brought in the barangay where the respondent or any of the respondents actually resides, at the election of the complaint.

c. All disputes involving real property or any interest therein shall be brought in the barangay where the real property or the larger portion thereof is situated. d. Those arising at the workplace where the contending parties are employed or at the institution where such parties are enrolled for study, shall be brought in the barangay where such workplace or institution is located.

Objections to venue shall be raised in the mediation proceedings before the punong barangay; otherwise, the same shall be deemed waived. Any legal question which may confront the punong barangay in resolving objections to venue herein referred to may be submitted to the Secretary of Justice, or his duly designated representative, whose ruling thereon shall be binding.

Importance of Barangay Conciliation Proceedings

No complaint, petition, action, or proceeding involving any matter within the authority of the lupon shall be filed or instituted directly in court or any other government office for adjudication, unless there has been a confrontation between the parties before the lupon chairman or the pangkat, and that no conciliation or settlement has been reached as certified by the lupon secretary or pangkat secretary as attested to by the lupon or pangkat chairman or unless the settlement has been repudiated by the parties thereto [Section 412(a), R.A. No. 7160].

A party's failure to comply with this requirement before filing a case in court would render his complaint dismissible on the ground of failure to comply with a condition precedent, pursuant to Section 1 (j), Rule 16 of the Rules of Court, or the court may suspend proceedings upon petition of any party and refer the case motu proprio to the appropriate Barangay authority, applying by analogy Sec. 408 [g], 2nd par., of the Revised Katarungang Pambarangay Law which reads as follows: The court in which non-criminal cases not falling within the authority of the Lupon under this Code are filed may at any time before trial, motu proprio refer case to the Lupon concerned for amicable settlement.

Non-compliance with the Conciliation Proceedings is not jurisdictional

It is also well-settled that the non-referral of a case for barangay conciliation when so required under the law is not jurisdictional in nature and may therefore be deemed waived if not raised seasonably in a motion to dismiss (Spouses Santos v. Spouses Lumbao, G.R. No. 169129, 28 March 2007).

Prior recourse to it (conciliation procedure) does not deprive a court of its jurisdiction, either over the subject matter or over the person of the defendant. Non-compliance with the condition precedent under said law does not prevent a court of competent jurisdiction from exercising its power of adjudication over a case where defendants fail to object to such exercise of jurisdiction. But such objection should be seasonably made before the court first taking cognizance of the complaint, and must be raised in the Answer, or in such other pleading allowed under the Rules of Court (Junson v. Martinez, G. R. No. 141324, 8 July 2003).

Execution of Award or Settlement

The amicable settlement or arbitration award may be enforced by execution by the lupon within six (6) months from the date of the settlement. After the lapse of such time, the settlement may be enforced by action in the appropriate city or municipal court (Section 417, LGC).

Sebastian v. Lagmay-Ng G.R. No. 164594, 22 April 2015 A simple reading of Section 417 of the Local Government Code readily discloses the two-tiered mode of enforcement of an amicable settlement. Under this provision, an amicable settlement or arbitration award that is not repudiated within a period of ten (10) days from the settlement may be enforced by: first, execution by the Lupon within six (6) months from the date of the settlement; or second, by an action in the appropriate city or municipal trial court if more than six (6) months from the date of settlement has already elapsed.

Sebastian v. Lagmay-Ng G.R. No. 164594, 22 April 2015 Under the first mode of enforcement, the execution of an amicable settlement could be done on mere motion of the party entitled thereto before the Punong Barangay. The proceedings in this case are summary in nature and are governed by the Local Government Code and the Katarungang Pambarangay Implementing Rules and Regulations. The second mode of enforcement, on the other hand, is judicial in nature and could only be resorted to through the institution of an action in a regular form before the proper City/Municipal Trial Court. The proceedings shall be governed by the provisions of the Rules of Court.

Sebastian v. Lagmay-Ng G.R. No. 164594, 22 April 2015 Under Section 416 of the Local Government Code, the amicable settlement and arbitration award shall have the force and effect of a final judgment of a court upon the expiration of ten (10) days from the date of its execution, unless the settlement or award has been repudiated or a petition to nullify the award has been filed before the proper city or municipal court.  Moreover, Section 14, Rule VI of the Katarungang Pambarangay Implementing Rules states that the party's failure to repudiate the settlement within the period of ten (10) days shall be deemed a waiver of the right to challenge the settlement on the ground that his/her consent was vitiated by fraud, violence or intimidation.

Sebastian v. Lagmay-Ng G.R. No. 164594, 22 April 2015 The law, as written, unequivocally speaks of the "appropriate city or municipal court" as the forum for the execution of the settlement or arbitration award issued by the Lupon. Notably, in expressly conferring authority over these courts, Section 417 made no distinction with respect to the amount involved or the nature of the issue involved. Thus, there can be no question that the law's intendment was to grant jurisdiction over the enforcement of settlement/arbitration awards to the city or municipal courts regardless of the amount. A basic principle of interpretation is that words must be given their literal meaning and applied without attempted interpretation where the words of a statute are clear, plain and free from ambiguity.

Miguel v. Montanez, G.R. No. 191336, 25 January 2012 oAn amicable settlement reached at the barangay conciliation proceedings is binding between the contracting parties and, upon its perfection, is immediately executory insofar as it is not contrary to law, good morals, good customs, public order and public policy.  This is in accord with the broad precept of Article 2037 of the Civil Code, viz.: A compromise has upon the parties the effect and authority of res judicata; but there shall be no execution except in compliance with a judicial compromise. oBeing a by-product of mutual concessions and good faith of the parties, an amicable settlement has the force and effect of res judicata even if not judicially approved. 

Miguel v. Montanez, G.R. No. 191336, 25 January 2012 It is akin to a judgment that is subject to execution in accordance with the Rules.  It must be emphasized, however, that enforcement by execution of the amicable settlement, either under the first or the second remedy, is only applicable if the contracting parties have not repudiated such settlement within ten (10) days from the date thereof in accordance with Section 416 of the Local Government Code. If the amicable settlement is repudiated by one party, either expressly or impliedly, the other party has two options, namely, to enforce the compromise in accordance with the Local Government Code or Rules of Court as the case may be, or to consider it rescinded and insist upon his original demand.

Other Relevant Jurisprudence

Pang-et v. Dao-as G.R. No. 167261, 2 March 2007 What is compulsory under the Katarungang Pambarangay Law is that there be a confrontation between the parties before the Lupon Chairman or the Pangkat and that a certification be issued that no conciliation or settlement has been reached, as attested to by the Lupon or Pangkat Chairman, before a case falling within the authority of the Lupon may be instituted in court or any other government office for adjudication. In other words, the only necessary pre-condition before any case falling within the authority of the Lupon or the Pangkat may be filed before a court is that there has been personal confrontation between the parties but despite earnest efforts to conciliate, there was a failure to amicably settle the dispute.

Uy v. Estate of Vipa Fernandez, G.R. No. 200612, 5 April 2017   It bears stressing that only individuals may be parties to barangay conciliation proceedings either as complainants or respondents. Complaints by or against corporations, partnerships or other juridical entities may not be filed with, received or acted upon by the barangay for conciliation.

Pascual v. Pascual G.R. No. 157830, 17 November 2005 Petitioner Dante M. Pascual, a permanent resident of the United States of America, appointed Sagario as his attorney-in-fact too file a case for the cancellation of certificate of title issued in the name of respondent Marilou M. Pascual as well as deed of sale of registered land and/or reconveyance at the appropriate court. Pursuant to the SPA, Sagario filed before the Isabela RTC a said complaint. Respondent filed a Motion to Dismiss on two grounds one of which was noncompliance with the requirement under Section 412 of the Local Government Code, contending that there is no showing that the dispute was referred to the barangay court before the case was filed in court.

Pascual v. Pascual G.R. No. 157830, 17 November 2005 Ruling: To construe the express statutory requirement of actual residency as applicable to the attorney-in-fact of the party-plaintiff, as contended by respondent, would abrogate the meaning of a "real party in interest" as defined in Section 2 of Rule 3 of the 1997 Rules of Court vis a vis Section 3 of the same Rule which misread and misunderstood by respondent. In fine, since the plaintiff-herein petitioner, the real party in interest, is not an actual resident of the barangay where the defendant-herein respondent resides, the local lupon has no jurisdiction over their dispute, hence, prior referral to it for conciliation is not a pre-condition to its filing in court.

Vidal v. Escueta G.R. No. 156228, 10 December 2003 The time line in Section 417 should be construed to mean that if the obligation in the settlement to be enforced is due and demandable on the date of the settlement, the six month period should be counted from the date of the settlement; otherwise, if the obligation to be enforced is due and demandable on a date other than the date of the settlement, the six-month period should be counted from the date the obligation becomes due and demandable.

Vidal v. Escueta G.R. No. 156228, 10 December 2003 By express provision of Section 417 of the LGC, an action for the enforcement of the settlement should be instituted in the proper municipal or city court. This is regardless of the nature of the complaint before the Lupon, and the relief prayed for therein. The venue for such actions is governed by Rule 4, Section I of the 1997 Rules of Civil Procedure, as amended. An action for the enforcement of a settlement is not one of those covered by the Rules on Summary Procedure in civil cases; hence, the rules on regular procedure shall apply, as provided for in Section 1, Rule 5 of the Rules of Civil Procedure, as amended.

Rule on Provisional Orders A.M. NO. 02-11-12-SC DATE OF EFFECTIVITY: 15 MARCH 2003

What are the types of Provisional Orders that may be issued by the Court? Spousal support (Sec. 2) Child support (Sec. 3) Child custody (Sec. 4) Visitation rights (Sec. 5) Hold Departure Order (Sec. 6) Order of Protection (Sec. 7) Administration of Common Property (Sec. 8)

When is a Provisional Order issued? A provisional order may be issued upon receipt of a verified petition for declaration of absolute nullity of void marriage or for annulment of voidable marriage, or for legal separation, and at any time during the proceeding. (Section 1)

How is a Provisional Order issued? The court, motu proprio or upon application under oath of any of the parties, guardian or designated custodian, may issue provisional orders and protection orders with or without a hearing. (Section 1)

What is the nature of a Provisional Order? A provisional order orders may be enforced immediately, with or without a bond, and for such period and under such terms" and conditions as the court may deem necessary. (Section 1)

Spousal Support (SECTION 2)

What are the guidelines for the issuance of a provisional order for spousal support? In the absence of adequate provisions in a written agreement between the spouses, the spouses may be supported from the properties of the absolute community or the conjugal partnership. The court may award support to either spouse in such amount and for such period of time as the court may deem just and reasonable based on their standard of living during the marriage. The Family Court may direct the deduction of the provisional support from the salary of the spouse.

What are the guidelines for the issuance of a provisional order for spousal support? The court may likewise consider the following factors: a) whether the spouse seeking support is the custodian of a child whose circumstances make it appropriate for that spouse not to seek outside employment; b) the time necessary to acquire sufficient education and training to enable the spouse seeking support to find appropriate employment, and that spouse's future earning capacity; c) the duration of the marriage; d) the comparative financial resources of the spouses, including their comparative earning abilities in the labor market; e) the needs and obligations of each spouse;

What are the guidelines for the issuance of a provisional order for spousal support? The court may likewise consider the following factors: f) the contribution of each spouse to the marriage, including services rendered in home-making, child care, education, and career building of the other spouse; g) the age and health of the spouses; h) the physical and emotional conditions of the spouses; i) the ability of the supporting spouse to give support, taking into account that spouse's earning capacity, earned and unearned income, assets, and standard of living; and j) any other factor the court may deem just and equitable.

Child Support (SECTION 3)

What are the guidelines for the issuance of a provisional order for child support? The common children of the spouses shall be supported from the properties of the absolute community or the conjugal partnership. Subject to the sound discretion of the court, either parent or both may be ordered to give an amount necessary for the support, maintenance, and education of the child. It shall be in proportion to the resources or means of the giver and to the necessities of the recipient. The Family Court may direct the deduction of the provisional support from the salary of the parent.

What are the guidelines for the issuance of a provisional order for child support? In determining the amount of provisional support, the court may likewise consider the following factors: 1) the financial resources of the custodial and non-custodial parent and those of the child; 2) the physical and emotional health of the child and his or her special needs and aptitudes; 3) the standard of living the child has been accustomed to; 4) the non-monetary contributions that the parents will make toward the care and well-being of the child.

Child Custody (SECTION 4)

What is the paramount consideration of the court in granting the custody of a child? In determining the right party or person to whom the custody of the child of the parties may be awarded pending the petition, the court shall consider the best interests of the child and shall give paramount consideration to the material and moral welfare of the child.

What are the other factors that the court may consider in granting the custody of a child? a) the agreement of the parties; b) the desire and ability of each parent to foster an open and loving relationship between the child and the other parent; c) the child's health, safety, and welfare; d) any history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the child, including anyone courting the parent;

What are the other factors that the court may consider in granting the custody of a child? e) f) g) h) i)

the nature and frequency of contact with both parents; habitual use of alcohol or regulated substances; marital misconduct; the most suitable physical, emotional, spiritual, psychological and educational environment; and the preference of the child, if over seven years of age and of sufficient discernment, unless the parent chosen is unfit.

What is the order of preference in granting provisional custody? 1) to both parents jointly; 2) to either parent taking into account all relevant considerations under the foregoing paragraph, especially the choice of the child over seven years of age, unless the parent chosen is unfit; 3) to the surviving grandparent, or if there are several of them, to the grandparent chosen by the child over seven years of age and of sufficient discernment, unless the grandparent is unfit or disqualified; 4) to the eldest brother or sister over twenty-one years of age, unless he or she is unfit or disqualified; 5) to the child's actual custodian over twenty-one years of age, unless unfit or disqualified; or 6) to any other person deemed by the court suitable to provide proper care and guidance for the child.

Visitation Rights (SECTION 5)

Who is entitled to visitation rights? Appropriate visitation rights shall be provided to the parent who is not awarded provisional custody unless found unfit or disqualified by the court.

Hold Departure Order (SECTION 6)

GENERAL RULE As a general rule, pending resolution of the petition, no child of the parties shall be brought out of the country.

EXCEPTION: if there is prior order from the court.

When is a hold departure order issued under this Rule? The court, motu proprio or upon application under oath, may issue ex-parte a hold departure order, addressed to the Bureau of Immigration and Deportation, directing it not to allow the departure of the child from the Philippines without the permission of the court.

When may hold departure order be recalled? The court may recall the order, motu proprio or upon verified motion of any of the parties after summary hearing, subject to such terms and conditions as may be necessary for the best interests of the child.

Order of Protection (SECTION 7)

What are the circumstances wherein the court may issue an Order of Protection? The court may issue an Order of Protection requiring any person: a)

b) c)

to stay away from the home, school, business, or place of employment of the child, other parent or any other party, and to stay away from any other specific place designated by the court; to refrain from harassing, intimidating, or threatening such child or the other parent or any person to whom custody of the child is awarded; to refrain from acts of commission or omission that create an unreasonable risk to the health, safety, or welfare of the child;

What are the circumstances wherein the court may issue an Order of Protection? The court may issue an Order of Protection requiring any person: d) e)

f)

to permit a parent, or a person entitled to visitation by a court order or a separation agreement, to visit the child at stated periods; to permit a designated party to enter the residence during a specified period of time in order to take persona! belongings not contested in a proceeding pending with the Family Court; to comply with such other orders as are necessary for the protection of the child.

Administration of Property (SECTION 8)

Under what circumstances is a provisional order for administration of common property issued? If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the court may, upon application of the aggrieved party under oath, issue a provisional order appointing the applicant or a third person as receiver or sole administrator of the common property subject to such precautionary conditions it may impose.

What are the limitations on the powers of the receiver or administrator? The receiver or administrator may not dispose of or encumber any common property or specific separate property of either spouse without prior authority of the court.

Special Rules of Court on Alternative Dispute Resolution A.M. NO. 07-11-08-SC DATE OF EFFECTIVITY: 30 OCTOBER 2009

"ADR Laws” and “Arbitration” defined “ADR Laws” refer to the whole body of Alternative Dispute Resolution (ADR) laws in the Philippines. [Rule 1.11(a)] “Arbitration” is an alternative mode of dispute resolution outside of the regular court system. Although adversarial in character, arbitration is technically not litigation. It is a voluntary process in which one or more arbitrators - appointed according to the parties' agreement or according to the applicable rules of the Alternative Dispute Resolution (ADR) Law resolve a dispute by rendering an award [Sec. 3(d), ALTERNATIVE DISPUTE RESOLUTION ACT OF 2004.]

"ADR Laws” and “Arbitration” defined Resort to arbitration is voluntary. It requires consent from both parties in the form of an arbitration clause that pre-existed the dispute or a subsequent submission agreement. This written arbitration agreement is an independent and legally enforceable contract that must be complied with in good faith. [Fruehauf Electronics Philippines Corp. v Technology Electronics Assembly and Management Pacific Corp. 23 November 2016]

The Special Rules of Court on Alternative Dispute Resolution shall apply to and govern the following cases: a. Relief on the issue of Existence, Validity, or Enforceability of the Arbitration Agreement; b. Referral to Alternative Dispute Resolution (ADR); c. Interim Measures of Protection; d. Appointment of Arbitrator; e. Challenge to Appointment of Arbitrator; f. Termination of Mandate of Arbitrator; g. Assistance in Taking Evidence;

The Special Rules of Court on Alternative Dispute Resolution shall apply to and govern the following cases: h. Confirmation, Correction or Vacation of Award in Domestic Arbitration; i. Recognition and Enforcement or Setting Aside of an Award in International Commercial Arbitration; j. Recognition and Enforcement of a Foreign Arbitral Award; k. Confidentiality/Protective Orders; and l. Deposit and Enforcement of Mediated Settlement Agreements. [Rule 1.1, A.M. No. 07-11-08-SC]

Nature of the Proceedings All proceedings under the Special ADR Rules are special proceedings. [Rule 1.2, A.M. No. 07-11-08-SC]

The proceedings in the following instances are summary in nature: a.

Judicial Relief Involving the Issue of Existence, Validity or Enforceability of the Arbitration Agreement; b. Referral to ADR; c. Interim Measures of Protection; d. Appointment of Arbitrator; e. Challenge to Appointment of Arbitrator; f. Termination of Mandate of Arbitrator; g. Assistance in Taking Evidence; h. Confidentiality/Protective Orders; and i. Deposit and Enforcement of Mediated Settlement Agreements. [Rule 1.3, A.M. No. 07-11-08-SC]

Summary proceedings in certain cases Notice

Except for cases involving Referral to ADR and Confidentiality/Protective Orders made through motions, the court shall, if it finds the petition sufficient in form and substance, send notice to the parties directing them to appear at a particular time and date for the hearing thereof which shall be set no later than five (5) days from the lapse of the period for filing the opposition or comment. The notice to the respondent shall contain a statement allowing him to file a comment or opposition to the petition within fifteen (15) days from receipt of the notice.

Summary proceedings in certain cases Summary hearing In all cases, as far as practicable, the summary hearing shall be conducted in one (1) day and only for purposes of clarifying facts. Except in cases involving Referral to ADR or Confidentiality/Protective Orders made through motions, it shall be the court that sets the petition for hearing within five (5) days from the lapse of the period for filing the opposition or comment.

Resolution The court shall resolve the matter within a period of thirty (30) days from the day of the hearing. [Rule 1.3, A.M. No. 07-11-08-SC]

Verification and submissions Any pleading, motion, opposition, comment, defense or claim filed under the Special ADR Rules by the proper party shall be supported by verified statements The annexes to the pleading, motion, opposition, comment, defense or claim filed by the proper party may include a legal brief, duly verified by the lawyer submitting it [Rule 1.4, A.M. No. 07-11-08-SC]

 Legal Brief

is defined as a written legal argument submitted to a court, outlining the facts derived from the factual statements in the witness’s statements of fact and citing the legal authorities relied upon by a party in a case submitted in connection with petitions, counterpetitions, motions, evidentiary issues and other matters that arise during the course of a case. The legal brief shall state the applicable law and the relevant jurisprudence and the legal arguments in support of a party’s position in the case.

Certification Against Forum Shopping A Certification Against Forum Shopping shall be appended to all initiatory pleadings except a Motion to Refer the Dispute to Alternative Dispute Resolution. [Rule 1.5, A.M. No. 07-11-08-SC]

Prohibited submissions The following shall be prohibited: a. b. c. d. e.

Motion to dismiss; Motion for bill of particulars; Motion for new trial or for reopening of trial; Petition for relief from judgment; Motion for extension, except in cases where an ex-parte temporary order of protection has been issued;

Prohibited submissions The following shall be prohibited: f. Rejoinder to reply; g. Motion to declare a party in default; and h. Any other pleading specifically disallowed under any provision of the Special ADR Rules. The court shall motu proprio order a pleading/motion that it has determined to be dilatory in nature be expunged from the records. [Rule 1.6, A.M. No. 07-11-08-SC]

Service and filing of pleadings, motions and other papers in non-summary proceedings The initiatory pleadings shall be filed directly with the court. Filing and service of pleadings by electronic transmission may be allowed by agreement of the parties approved by the court. If the filing or service of a pleading or motion was done by electronic transmission, proof of filing and service shall be made in accordance with the Rules on Electronic Evidence. [Rule 1.8, A.M. No. 07-11-08-SC]

No summons In cases covered by the Special ADR Rules, a court acquires authority to act on the petition or motion upon proof of jurisdictional facts, i.e., that the respondent was furnished a copy of the petition and the notice of hearing. The technical rules on service of summons do not apply to the proceedings under the Special ADR Rules. [Rule 1.9, A.M. No. 07-11-08SC]

Contents of petition/motion The initiatory pleading in the form of a verified petition or motion, in the appropriate case where court proceedings have already commenced, shall include the names of the parties, their addresses, the necessary allegations supporting the petition and the relief(s) sought. [Rule 1.10, A.M. No. 07-11-08-SC]

RULE 2 STATEMENT OF POLICIES

Policy on Arbitration Where the parties have agreed to submit their dispute to arbitration, courts shall refer the parties to arbitration pursuant to Republic Act No. 9285 bearing in mind that such arbitration agreement is the law between the parties and that they are expected to abide by it in good faith. Where court intervention is allowed under ADR Laws or the Special ADR Rules, courts shall not refuse to grant relief, as provided herein, for any of the following reasons: a. b.

Prior to the constitution of the arbitral tribunal, the court finds that the principal action is the subject of an arbitration agreement; or The principal action is already pending before an arbitral tribunal.

Two (2) Principles on Special ADR The Special ADR Rules recognize the principle of competence-competence, which means that the arbitral tribunal may initially rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement or any condition precedent to the filing of a request for arbitration. The Special ADR Rules recognize the principle of separability of the arbitration clause, which means that said clause shall be treated as an agreement independent of the other terms of the contract of which it forms part. A decision that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause. [Rule 2.2]

RULE 3 JUDICIAL RELIEF INVOLVING THE ISSUE OF EXISTENCE, VALIDITY AND ENFORCEABILITY OF THE ARBITRATION AGREEMENT

When judicial relief is available The judicial relief provided under Rule 3, whether resorted to before or after commencement of arbitration, shall apply only when the place of arbitration is in the Philippines. [Rule 3.1. A.M. No. 07-11-08-SC]

Two (2) types of Judicial Relief: 1. Judicial Relief before Commencement of Arbitration - may not be commenced when the existence, validity or enforceability of an arbitration agreement has been raised as one of the issues in a prior action before the same or another court 2. Judicial Relief after Arbitration Commences - the arbitral tribunal is only a nominal party

Rule 3

Judicial Relief after Arbitration Commences Any party to arbitration may petition the appropriate court for judicial relief from the ruling of the arbitral tribunal on a preliminary question upholding or declining its jurisdiction.  

When petition may be filed

At any time prior to the commencement of Within thirty (30) days after having arbitration. received notice of that ruling by the arbitral tribunal. Despite the pendency of the petition   provided herein, arbitral proceedings may nevertheless be commenced and continue to the rendition of an award, while the issue is pending before the court.

Venue

Before the Regional Trial Court of the place where any of the petitioners or respondents has his principal place of business or residence.

Judicial Relief before Commencement of Arbitration Who may Any party to an arbitration agreement may file petition the appropriate court to determine petition any question concerning the existence, validity and enforceability of such arbitration agreement  

 

Before the Regional Trial Court of the place where arbitration is taking place, or where any of the petitioners or respondents has his principal place of business or residence.

Rule 3 Grounds

 

Judicial Relief before Commencement of Judicial Relief after Arbitration Commences Arbitration Only if it is shown that the arbitration When the court finds that the arbitration agreement agreement is, under the applicable law, is invalid, inexistent or unenforceable as a result of invalid, void, unenforceable or inexistent which the arbitral tribunal has no jurisdiction to resolve the dispute  

Contents The verified petition shall state the of petition following:   a. The facts showing that the persons named as petitioner or respondent have legal capacity to sue or be sued; b. The nature and substance of the dispute between the parties; c. The grounds and the circumstances relied upon by the petitioner to establish his position; and d. The relief/s sought. Apart from other submissions, the petitioner must attach to the petition an authentic copy of the arbitration agreement.  

The petition shall state the following: a. The facts showing that the person named as petitioner or respondent has legal capacity to sue or be sued; b. The nature and substance of the dispute between the parties; c. The grounds and the circumstances relied upon by the petitioner; and d. The relief/s sought. In addition to the submissions, the petitioner shall attach to the petition a copy of the request for arbitration and the ruling of the arbitral tribunal. The arbitrators shall be impleaded as nominal parties to the case and shall be notified of the progress of the case.

 

Rule 3

Judicial Relief before Judicial Relief after Arbitration Commences Commencement of Arbitration

Comment/ The comment/opposition of the Opposition respondent must be filed within   fifteen (15) days from service of the petition.   Court action In resolving the petition, the court   must exercise judicial restraint in accordance with the policy set forth in Rule 2.4, deferring to the competence or jurisdiction of the arbitral tribunal to rule on its competence or jurisdiction.  

The comment/opposition must be filed within fifteen (15) days from service of the petition.

  The court shall render judgment on the basis of the pleadings filed and the evidence, if any, submitted by the parties, within thirty (30) days from the time the petition is submitted for resolution. The court shall not enjoin the arbitration proceedings during the pendency of the petition. Judicial recourse to the court shall not prevent the arbitral tribunal from continuing the proceedings and rendering its award. The court shall dismiss the petition if it fails to comply with the contents of the Petition; or if the petition does not appear to be prima facie meritorious.

Rule 3

Judicial Relief before Commencement of Arbitration

Judicial Relief after Arbitration Commences

Relief against court action

A prima facie determination by the court upholding the existence, validity or enforceability of an arbitration agreement shall not be subject to a motion for reconsideration, appeal or certiorari.

The aggrieved party may file a motion for reconsideration of the order of the court. The decision of the court shall, however, not be subject to appeal.

The ruling of the court affirming the Such prima facie determination will not, arbitral tribunal’s jurisdiction shall however, prejudice the right of any not be subject to a petition for party to raise the issue of the existence, certiorari. validity and enforceability of the arbitration agreement before the The ruling of the court that the arbitral tribunal or the court in an arbitral tribunal has no jurisdiction action to vacate or set aside the arbitral may be the subject of a petition for award. certiorari.

RULE 4 REFERRAL TO ADR

Referral to ADR A party to a pending action filed in violation of the arbitration agreement may request the court to refer the parties to arbitration in accordance with such agreement. [Rule 4.1] Where the arbitration agreement exists before the action is filed, the request for referral shall be made not later than the pre-trial conference. If there is no existing arbitration agreement at the time the case is filed but the parties subsequently enter into an arbitration agreement, they may request the court to refer their dispute to arbitration at any time during the proceedings. [Rule 4.2] The request for referral shall be in the form of a motion, which shall state that the dispute is covered by an arbitration agreement. [Rule 4.3]

Referral to ADR Comment/Opposition. The comment/opposition must be filed within fifteen (15) days from service of the petition. The comment/opposition should show that: (a) there is no agreement to refer the dispute to arbitration; and/or (b) the agreement is null and void; and/or (c) the subject-matter of the dispute is not capable of settlement or resolution by arbitration in accordance with Section 6 of the ADR Act. [Rule 4.4]

Referral to ADR Court action. After hearing, the court shall stay the action and, considering the statement of policy embodied in Rule 2.4, above, refer the parties to arbitration if it finds prima facie, based on the pleadings and supporting documents submitted by the parties, that there is an arbitration agreement and that the subject-matter of the dispute is capable of settlement or resolution by arbitration in accordance with Section 6 of the ADR Act. Otherwise, the court shall continue with the judicial proceedings.[Rule 4.5]

Referral to ADR No reconsideration, appeal or certiorari. An order referring the dispute to arbitration shall be immediately executory and shall not be subject to a motion for reconsideration, appeal or petition for certiorari. An order denying the request to refer the dispute to arbitration shall not be subject to an appeal, but may be the subject of a motion for reconsideration and/or a petition for certiorari. [Rule 4.6]

Referral to ADR Arbitration to proceed. Despite the pendency of the action referred to in Rule 4.1, above, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the action is pending before the court. [Rule 4.8]

RULE 5 INTERIM MEASURES OF PROTECTION

Who may ask A party to an arbitration agreement may petition the court for interim measures of for interim protection. [Rule 5.1] measures of protection When petition

Venue

to A petition for an interim measure of protection may be made (a) before arbitration is commenced, (b) after arbitration is commenced, but before the constitution of the arbitral tribunal, or (c) after the constitution of the arbitral tribunal and at any time during arbitral proceedings but, at this stage, only to the extent that the arbitral tribunal has no power to act or is unable to act effectively. [Rule 5.2] A petition for an interim measure of protection may be filed with the Regional Trial Court, which has jurisdiction over any of the following places: a. Where the principal place of business of any of the parties to arbitration is located; b. Where any of the parties who are individuals resides; c. Where any of the acts sought to be enjoined are being performed, threatened to be performed or not being performed; or d. Where the real property subject of arbitration, or a portion thereof is situated. [Rule 5.3]

Grounds

The following grounds, while not limiting the reasons for the court to grant an interim measure of protection, indicate the nature of the reasons that the court shall consider in granting the relief:

a. b. c. d. Type of interim measure of protection that a court may grant

The need to prevent irreparable loss or injury; The need to provide security for the performance of any obligation; The need to produce or preserve evidence; or The need to compel any other appropriate act or omission. [Rule 5.4]

a. Preliminary injunction directed against a party to arbitration; b. Preliminary attachment against property or garnishment of funds in the custody of a bank or a third person; c. Appointment of a receiver; d. Detention, preservation, delivery or inspection of property; or, e. Assistance in the enforcement of an interim measure of protection granted by the arbitral tribunal, which the latter cannot enforce effectively. [Rule 5.6]

Conflict or inconsistency between interim measure of protection issued by the court and by the arbitral tribunal Security

Any question involving a conflict or inconsistency between an interim measure of protection issued by the court and by the arbitral tribunal shall be immediately referred by the court to the arbitral tribunal which shall have the authority to decide such question. [Rule 5.14] The order granting an interim measure of protection may be conditioned upon the provision of security, performance of an act, or omission thereof, specified in the order. [Rule 5.12]

RULE 6 APPOINTMENT OF ARBITRATORS

Appointment of Arbitrators Any party to an arbitration may request the court to act as an Appointing Authority in the instances specified under Rule 6.1. [Rule 6.2] The petition for appointment of arbitrator may be filed, at the option of the petitioner, in the Regional Trial Court (a) where the principal place of business of any of the parties is located, (b) if any of the parties are individuals, where those individuals reside, or (c) in the National Capital Region. [Rule 6.3]

Appointment of Arbitrators Any party to an arbitration may request the court to act as an Appointing Authority in the instances specified under Rule 6.1. [Rule 6.2] The petition for appointment of arbitrator may be filed, at the option of the petitioner, in the Regional Trial Court (a) where the principal place of business of any of the parties is located, (b) if any of the parties are individuals, where those individuals reside, or (c) in the National Capital Region. [Rule 6.3]

Appointment of Arbitrators Forum shopping prohibited When there is a pending petition in another court to declare the arbitration agreement inexistent, invalid, unenforceable, on account of which the respondent failed or refused to participate in the selection and appointment of a sole arbitrator or to appoint a party-nominated arbitrator, the petition filed under this rule shall be dismissed. [Rule 6.8]

RULE 7 CHALLENGE TO APPOINTMENT OF ARBITRATOR

Challenge to Appointment of Arbitrator An arbitrator may be challenged on any of the grounds for challenge provided for in Republic Act No. 9285 and its implementing rules, Republic Act No. 876 or the Model Law. The nationality or professional qualification of an arbitrator is not a ground to challenge an arbitrator unless the parties have specified in their arbitration agreement a nationality and/or professional qualification for appointment as arbitrator. [Rule 7.4] Any order of the court resolving the petition shall be immediately executory and shall not be the subject of a motion for reconsideration, appeal, or certiorari. [Rule 7.8]

Challenge to Appointment of Arbitrator Unless the bad faith of the challenged arbitrator is established with reasonable certainty by concealing or failing to disclose a ground for his disqualification, the challenged arbitrator shall be entitled to reimbursement of all reasonable expenses he may have incurred in attending to the arbitration and to a reasonable compensation for his work on the arbitration. [Rule 7.9]

RULE 8 TERMINATION OF THE MANDATE OF ARBITRATOR

Termination of the Mandate of the Arbitrator Any of the parties to an arbitration may request for the termination of the mandate of an arbitrator where an arbitrator becomes de jure or de facto unable to perform his function or for other reasons fails to act without undue delay and that arbitrator, upon request of any party, fails or refuses to withdraw from his office. [Rule 8.1] Any order of the court resolving the petition shall be immediately executory and shall not be subject of a motion for reconsideration, appeal or petition for certiorari. [Rule 8.7]

Termination of the Mandate of the Arbitrator Where the mandate of an arbitrator is terminated, or he withdraws from office for any other reason, or because of his mandate is revoked by agreement of the parties or is terminated for any other reason, a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced. [Rule 8.8]

RULE 9 ASSISTANCE IN TAKING EVIDENCE

Types of Assistance A party requiring assistance in the taking of evidence may petition the court to direct any person, including a representative of a corporation, association, partnership or other entity (other than a party to the ADR proceedings or its officers) found in the Philippines, for any of the following: a. b.

To comply with a subpoena ad testificandum and/or subpoena duces tecum; To appear as a witness before an officer for the taking of his deposition upon oral examination or by written interrogatories;

Types of Assistance A party requiring assistance in the taking of evidence may petition the court to direct any person, including a representative of a corporation, association, partnership or other entity (other than a party to the ADR proceedings or its officers) found in the Philippines, for any of the following: c.

To allow the physical examination of the condition of persons, or the inspection of things or premises and, when appropriate, to allow the recording and/or documentation of condition of persons, things or premises (i.e., photographs, video and other means of recording/documentation); d. To allow the examination and copying of documents; and e. To perform any similar acts. [Rule 9. 5]

Assistance in Taking Evidence Any party to an arbitration, whether domestic or foreign, may request the court to provide assistance in taking evidence. [Rule 9.1] At any time before arbitration is commenced or before the arbitral tribunal is constituted, any person who desires to perpetuate his testimony or that of another person may do so in accordance with Rule 24 of the Rules of Court. [Rule 9.10] The court may impose the appropriate sanction on any person who disobeys its order to testify when required or perform any act required of him. [Rule 9.11]

RULE 10 CONFIDENTIALITY/PROTECTIVE ORDERS

Confidentiality or Protective Orders A petition for a protective order may be filed with the Regional Trial Court where that order would be implemented. If there is a pending court proceeding in which the information obtained in an ADR proceeding is required to be divulged or is being divulged, the party seeking to enforce the confidentiality of the information may file a motion with the court where the proceedings are pending to enjoin the confidential information from being divulged or to suppress confidential information. [Rule 10. 3]

Confidentiality or Protective Orders A protective order may be granted only if it is shown that the applicant would be materially prejudiced by an unauthorized disclosure of the information obtained, or to be obtained, during an ADR proceeding. [Rule 10.4]

Confidentiality or Protective Orders The order enjoining a person or persons from divulging confidential information shall be immediately executory and may not be enjoined while the order is being questioned with the appellate courts. If the court declines to enjoin a person or persons from divulging confidential information, the petitioner may file a motion for reconsideration or appeal. [Rule 10.9]

RULE 11 CONFIRMATION, CORRECTION, OR VACATION OF AWARD IN DOMESTIC ARBITRATION

Confirmation, Correction, or Vacation of Award in Domestic Arbitration Any party to a domestic arbitration may petition the court to confirm, correct or vacate a domestic arbitral award. [Rule 11.1] The petition for confirmation, correction/modification or vacation of a domestic arbitral award may be filed with Regional Trial Court having jurisdiction over the place in which one of the parties is doing business, where any of the parties reside or where arbitration proceedings were conducted. [Rule 11.3]

Confirmation, Correction, or Vacation of Award in Domestic Arbitration Unless a ground to vacate an arbitral award under Rule 11.5 above is fully established, the court shall confirm the award. An arbitral award shall enjoy the presumption that it was made and released in due course of arbitration and is subject to confirmation by the court In resolving the petition or petition in opposition thereto in accordance with these Special ADR Rules, the court shall either confirm or vacate the arbitral award. The court shall not disturb the arbitral tribunal’s determination of facts and/or interpretation of law. [Rule 11. 9]

Grounds to Vacate an Arbitral Award The arbitral award may be vacated on the following grounds: a. The arbitral award was procured through corruption, fraud or other undue means; b. There was evident partiality or corruption in the arbitral tribunal or any of its members; c. The arbitral tribunal was guilty of misconduct or any form of misbehavior that has materially prejudiced the rights of any party such as refusing to postpone a hearing upon sufficient cause shown or to hear evidence pertinent and material to the controversy; d. One or more of the arbitrators was disqualified to act as such under the law and willfully refrained from disclosing such disqualification; or

Grounds to Vacate an Arbitral Award The arbitral award may be corrected or modified on the following grounds: e. The arbitral tribunal exceeded its powers, or so imperfectly executed them, such that a complete, final and definite award upon the subject matter submitted to them was not made. [Rule 11.4(a)] The award may also be vacated on any or all of the following grounds: a.The arbitration agreement did not exist, or is invalid for any ground for the revocation of a contract or is otherwise unenforceable; or b.A party to arbitration is a minor or a person judicially declared to be incompetent. [Rule 11.4(a)]

Grounds to Correct/Modify an Arbitral Award The Court may correct/modify or order the arbitral tribunal to correct/modify the arbitral award in the following cases: a. Where there was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award; b. Where the arbitrators have awarded upon a matter not submitted to them, not affecting the merits of the decision upon the matter submitted; c. Where the arbitrators have omitted to resolve an issue submitted to them for resolution; or d. Where the award is imperfect in a matter of form not affecting the merits of the controversy, and if it had been a commissioner’s report, the defect could have been amended or disregarded by the Court. [Rule 11.4(b)]

To vacate an arbitral award:

To correct/modify an arbitral award:

The arbitral award may be vacated on the following grounds: a. The arbitral award was procured through corruption, fraud or other undue means; b. There was evident partiality or corruption in the arbitral tribunal or any of its members; c. The arbitral tribunal was guilty of misconduct or any form of misbehavior that has materially prejudiced the rights of any party such as refusing to postpone a hearing upon sufficient cause shown or to hear evidence pertinent and material to the controversy; d. One or more of the arbitrators was disqualified to act as such under the law and willfully refrained from disclosing such disqualification; or e. The arbitral tribunal exceeded its powers, or so imperfectly executed them, such that a complete, final and definite award upon the subject matter submitted to them was not made.

The Court may correct/modify or order the arbitral tribunal to correct/modify the arbitral award in the following cases: a. Where there was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award; b. Where the arbitrators have awarded upon a matter not submitted to them, not affecting the merits of the decision upon the matter submitted; c. Where the arbitrators have omitted to resolve an issue submitted to them for resolution; or d. Where the award is imperfect in a matter of form not affecting the merits of the controversy, and if it had been a commissioner’s report, the defect could have been amended or disregarded by the Court.

The award may also be vacated on any or all of the following grounds: f. The arbitration agreement did not exist, or is invalid for any ground for the revocation of a contract or is otherwise unenforceable; or g. A party to arbitration is a minor or a person judicially declared to be incompetent.

RULE 12 RECOGNITION AND ENFORCEMENT OR SETTING ASIDE OF AN INTERNATIONAL COMMERCIAL ARBITRATION AWARD

When to file petition (A) Petition to recognize and enforce The petition for enforcement and recognition of an arbitral award may be filed anytime from receipt of the award. If, however, a timely petition to set aside an arbitral award is filed, the opposing party must file therein and in opposition thereto the petition for recognition and enforcement of the same award within the period for filing an opposition. [Rule 12. 2]

When to file petition (B) Petition to set aside The petition to set aside an arbitral award may only be filed within three (3) months from the time the petitioner receives a copy thereof. If a timely request is made with the arbitral tribunal for correction, interpretation or additional award, the three (3) month period shall be counted from the time the petitioner receives the resolution by the arbitral tribunal of that request. [Rule 12.2]

When to file petition (B) Petition to set aside A petition to set aside can no longer be filed after the lapse of the three (3) month period. The dismissal of a petition to set aside an arbitral award for being time-barred shall not automatically result in the approval of the petition filed therein and in opposition thereto for recognition and enforcement of the same award. Failure to file a petition to set aside shall preclude a party from raising grounds to resist enforcement of the award. [Rule 12.2]

Grounds to Set Aside or Refuse Enforcement of Arbitral Award (A)  The party making the application furnishes proof that: 1. A party to the arbitration agreement was under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereof, under Philippine law; or 2. The party making the application to set aside or resist enforcement was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

Grounds to Set Aside or Refuse Enforcement of Arbitral Award (A)  The party making the application furnishes proof that: 3. The award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration; provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside or only that part of the award which contains decisions on matters submitted to arbitration may be enforced; or

Grounds to Set Aside or Refuse Enforcement of Arbitral Award (A)  The party making the application furnishes proof that: 4. The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of Philippine law from which the parties cannot derogate, or, failing such agreement, was not in accordance with Philippine law; [Rule 12.4(a)]

Grounds to Set Aside or Refuse Enforcement of Arbitral Award (B)  The Court finds that: 1. The subject-matter of the dispute is not capable of settlement by arbitration under the law of the Philippines; or 2. The recognition or enforcement of the award would be contrary to public policy. [Rule 12.4(b)]

The court may set aside or refuse the enforcement of the arbitral award only if: The party making the application furnishes proof that: 1. A party to the arbitration agreement was under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereof, under Philippine law; or 2. The party making the application to set aside or resist enforcement was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or 3. The award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration; provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside or only that part of the award which contains decisions on matters submitted to arbitration may be enforced; or 4. The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of Philippine law from which the parties cannot derogate, or, failing such agreement, was not in accordance with Philippine law; The court finds that: 1. The subject-matter of the dispute is not capable of settlement by arbitration under the law of the Philippines; or 2. The recognition or enforcement of the award would be contrary to public policy.

Suspension of proceedings to set aside The court when asked to set aside an arbitral award may, where appropriate and upon request by a party, suspend the proceedings for a period of time determined by it to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the arbitral tribunal’s opinion will eliminate the grounds for setting aside. The court, in referring the case back to the arbitral tribunal may not direct it to revise its award in a particular way, or to revise its findings of fact or conclusions of law or otherwise encroach upon the independence of an arbitral tribunal in the making of a final award.

Suspension of proceedings to set aside The court when asked to set aside an arbitral award may also, when the preliminary ruling of an arbitral tribunal affirming its jurisdiction to act on the matter before it had been appealed by the party aggrieved by such preliminary ruling to the court, suspend the proceedings to set aside to await the ruling of the court on such pending appeal or, in the alternative, consolidate the proceedings to set aside with the earlier appeal. [Rule 12.11]

Suspension of proceedings to set aside The court when asked to set aside an arbitral award may also, when the preliminary ruling of an arbitral tribunal affirming its jurisdiction to act on the matter before it had been appealed by the party aggrieved by such preliminary ruling to the court, suspend the proceedings to set aside to await the ruling of the court on such pending appeal or, in the alternative, consolidate the proceedings to set aside with the earlier appeal. [Rule 12.11]

Presumption in favor of confirmation It is presumed that an arbitral award was made and released in due course and is subject to enforcement by the court, unless the adverse party is able to establish a ground for setting aside or not enforcing an arbitral award. [Rule 12.12]

Judgment of the court Unless a ground to set aside an arbitral award under Rule 12.4 above is fully established, the court shall dismiss the petition. If, in the same proceedings, there is a petition to recognize and enforce the arbitral award filed in opposition to the petition to set aside, the court shall recognize and enforce the award. In resolving the petition or petition in opposition thereto in accordance with the Special ADR Rules, the court shall either set aside or enforce the arbitral award. The court shall not disturb the arbitral tribunal’s determination of facts and/or interpretation of law. [Rule 12.13]

RULE 13 RECOGNITION AND ENFORCEMENT OF A F O R E I G N A R B I T R A L AWA R D

Recognition and Enforcement of Foreign Arbitral Award: Venue The petition to recognize and enforce a foreign arbitral award shall be filed, at the option of the petitioner, with the Regional Trial Court: (a) where the assets to be attached or levied upon is located, (b) where the act to be enjoined is being performed, (c) in the principal place of business in the Philippines of any of the parties, (d) if any of the parties is an individual, where any of those individuals resides, or (e) in the National Capital Judicial Region. [Rule 13.3]

Recognition and Enforcement of Foreign Arbitral Award Governing Law The recognition and enforcement of a foreign arbitral award shall be governed by the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "New York Convention") and this Rule . The court may, upon grounds of comity and reciprocity, recognize and enforce a foreign arbitral award made in a country that is not a signatory to the New York Convention as if it were a Convention Award. [Rule 13.4]

Refusal to Recognize and Enforce Foreign Arbitral Award A Philippine court shall not set aside a foreign arbitral award but may refuse it recognition and enforcement on any or all of the following grounds: (A) The party making the application to refuse recognition and enforcement of the award furnishes proof that: i. A party to the arbitration agreement was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereof, under the law of the country where the award was made; or

Refusal to Recognize and Enforce Foreign Arbitral Award (A) The party making the application to refuse recognition and enforcement of the award furnishes proof that: ii.

The party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or iii. The award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration; provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or

Refusal to Recognize and Enforce Foreign Arbitral Award (A) The party making the application to refuse recognition and enforcement of the award furnishes proof that: iv. The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where arbitration took place; or v. The award has not yet become binding on the parties or has been set aside or suspended by a court of the country in which that award was made; or [Rule 13.4]

Refusal to Recognize and Enforce Foreign Arbitral Award (B) The court finds that: i. ii.

The subject-matter of the dispute is not capable of settlement or resolution by arbitration under Philippine law; or he recognition or enforcement of the award would be contrary to public policy.

The court shall disregard any ground for opposing the recognition and enforcement of a foreign arbitral award other than those enumerated above. [Rule 13.4]

Recognition and Enforcement of nonconvention award The court shall, only upon grounds provided by these Special ADR Rules, recognize and enforce a foreign arbitral award made in a country not a signatory to the New York Convention when such country extends comity and reciprocity to awards made in the Philippines. If that country does not extend comity and reciprocity to awards made in the Philippines, the court may nevertheless treat such award as a foreign judgment enforceable as such under Rule 39, Section 48, of the Rules of Court. [Rule 13.12]

RULE 15 DEPOSIT AND ENFORCEMENT OF MEDIATED SETTLEMENT AGREEMENTS

Mediated Settlement Agreements Any party to a mediation that is not court-annexed may deposit with the court the written settlement agreement, which resulted from that mediation. [Rule 15.1] Any of the parties to a mediated settlement agreement, which was deposited with the Clerk of Court of the Regional Trial Court, may, upon breach thereof, file a verified petition with the same court to enforce said agreement. [Rule 15.5]

Mediated Settlement Agreements The adverse party may file an opposition, within fifteen (15) days from receipt of notice or service of the petition, by submitting written proof of compliance with the mediated settlement agreement or such other affirmative or negative defenses it may have. [Rule 15.7] After a summary hearing, if the court finds that the agreement is a valid mediated settlement agreement, that there is no merit in any of the affirmative or negative defenses raised, and the respondent has breached that agreement, in whole or in part, the court shall order the enforcement thereof; otherwise, it shall dismiss the petition. [Rule 15.8]

RULE 19 MOTION FOR RECONSIDERATION, APPEAL AND CERTIORARI

Motion for Reconsideration A motion for reconsideration may be filed with the Regional Trial Court within a non-extendible period of fifteen (15) days from receipt of the questioned ruling or order. [Rule 19.2]

No party shall be allowed a second motion for reconsideration. [Rule 19.6]

Motion for Reconsideration No motion for reconsideration shall be allowed from the following rulings of the Regional Trial Court:  A prima facie determination upholding the existence, validity or enforceability of an arbitration agreement pursuant to Rule 3.1(A);  An order referring the dispute to arbitration;  An order appointing an arbitrator;  Any ruling on the challenge to the appointment of an arbitrator;  Any order resolving the issue of the termination of the mandate of an arbitrator; and  An order granting assistance in taking evidence. [Rule 19.1]

General Provisions on Appeal and Certiorari No appeal or certiorari on the merits of an arbitral award. An agreement to refer a dispute to arbitration shall mean that the arbitral award shall be final and binding. Consequently, a party to an arbitration is precluded from filing an appeal or a petition for certiorari questioning the merits of an arbitral award. [Rule 19.7]

General Provisions on Appeal and Certiorari Subject matter and governing rules. - The remedy of an appeal through a petition for review or the remedy of a special civil action of certiorari from a decision of the Regional Trial Court made under the Special ADR Rules shall be allowed in the instances, and instituted only in the manner, provided under this Rule. [Rule 19.8 ] Prohibited alternative remedies. - Where the remedies of appeal and certiorari are specifically made available to a party under the Special ADR Rules, recourse to one remedy shall preclude recourse to the other. [Rule 19.9]

Appeals to the Court of Appeals An appeal to the Court of Appeals through a petition for review under this Special Rule shall only be allowed from the following final orders of the Regional Trial Court: Granting or denying an interim measure of protection; Denying a petition for appointment of an arbitrator; Denying a petition for assistance in taking evidence; Enjoining or refusing to enjoin a person from divulging confidential information; [Rule 19.12]

Appeals to the Court of Appeals An appeal to the Court of Appeals through a petition for review under this Special Rule shall only be allowed from the following final orders of the Regional Trial Court: Confirming, vacating or correcting/modifying a domestic arbitral award; Setting aside an international commercial arbitration award; Dismissing the petition to set aside an international commercial arbitration award even if the court does not decide to recognize or enforce such award; [Rule 19.12]

Appeals to the Court of Appeals An appeal to the Court of Appeals through a petition for review under this Special Rule shall only be allowed from the following final orders of the Regional Trial Court: Recognizing and/or enforcing an international commercial arbitration award; Dismissing a petition to enforce an international commercial arbitration award; Recognizing and/or enforcing a foreign arbitral award; Refusing recognition and/or enforcement of a foreign arbitral award; [Rule 19.12]

Appeals to the Court of Appeals An appeal to the Court of Appeals through a petition for review under this Special Rule shall only be allowed from the following final orders of the Regional Trial Court: Granting or dismissing a petition to enforce a deposited mediated settlement agreement; and Reversing the ruling of the arbitral tribunal upholding its jurisdiction. The petition for review shall be filed within fifteen (15) days from notice of the decision of the Regional Trial Court or the denial of the petitioner’s motion for reconsideration. [Rule 19.14]

Appeals to the Court of Appeals Party appealing decision of court confirming arbitral award required to post bond. The Court of Appeals shall within fifteen (15) days from receipt of the petition require the party appealing from the decision or a final order of the Regional Trial Court, either confirming or enforcing an arbitral award, or denying a petition to set aside or vacate the arbitral award to post a bond executed in favor of the prevailing party equal to the amount of the award. Failure of the petitioner to post such bond shall be a ground for the Court of Appeals to dismiss the petition. [Rule 19.25]

Certiorari to the Court of Appeals When the Regional Trial Court, in making a ruling under the Special ADR Rules, has acted without or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal or any plain, speedy, and adequate remedy in the ordinary course of law, a party may file a special civil action for certiorari to annul or set aside a ruling of the Regional Trial Court. [Rule 19.26]

Special Civil Action for Certiorari A special civil action for certiorari may be filed against the following orders of the court: Holding that the arbitration agreement is inexistent, invalid or unenforceable; Reversing the arbitral tribunal’s preliminary determination upholding its jurisdiction; Denying the request to refer the dispute to arbitration; Granting or refusing an interim relief; Denying a petition for the appointment of an arbitrator; [Rule 19.26]

Special Civil Action for Certiorari A special civil action for certiorari may be filed against the following orders of the court: Confirming, vacating or correcting a domestic arbitral award; Suspending the proceedings to set aside an international commercial arbitral award and referring the case back to the arbitral tribunal; Allowing a party to enforce an international commercial arbitral award pending appeal; [Rule 19.26]

Special Civil Action for Certiorari A special civil action for certiorari may be filed against the following orders of the court: Adjourning or deferring a ruling on whether to set aside, recognize and or enforce an international commercial arbitral award; Allowing a party to enforce a foreign arbitral award pending appeal; and Denying a petition for assistance in taking evidence. [Rule 19.26]

Special Civil Action for Certiorari The petition must be filed with the Court of Appeals within fifteen (15) days from notice of the judgment, order or resolution sought to be annulled or set aside. No extension of time to file the petition shall be allowed. [Rule 19.28] The Court of Appeals shall not, during the pendency of the proceedings before it, prohibit or enjoin the commencement of arbitration, the constitution of the arbitral tribunal, or the continuation of arbitration. [Rule 19.33]

Appeal by Certiorari to the Supreme Court A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals issued pursuant to these Special ADR Rules may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law, which must be distinctly set forth. Rule 19.37] The petition shall be filed within fifteen (15) days from notice of the judgment or final order or resolution appealed from, or of the denial of the petitioner's motion for new trial or reconsideration filed in due time after notice of the judgment; may for justifiable reasons be extendible for thirty (30) days only within which to file the petition. [Rule 19.38]

Appeal by Certiorari to the Supreme Court Review discretionary. A review by the Supreme Court is not a matter of right, but of sound judicial discretion, which will be granted only for serious and compelling reasons resulting in grave prejudice to the aggrieved party. [Rule 19.36]

Appeal by Certiorari to the Supreme Court The following, while neither controlling nor fully measuring the court's discretion, indicate the serious and compelling, and necessarily, restrictive nature of the grounds that will warrant the exercise of the Supreme Court’s discretionary powers, when the Court of Appeals: a. Failed to apply the applicable standard or test for judicial review prescribed in these Special ADR Rules in arriving at its decision resulting in substantial prejudice to the aggrieved party; b. Erred in upholding a final order or decision despite the lack of jurisdiction of the court that rendered such final order or decision;

Appeal by Certiorari to the Supreme Court c. Failed to apply any provision, principle, policy or rule contained in these Special ADR Rules resulting in substantial prejudice to the aggrieved party; and d. Committed an error so egregious and harmful to a party as to amount to an undeniable excess of jurisdiction. The mere fact that the petitioner disagrees with the Court of Appeals’ determination of questions of fact, of law or both questions of fact and law, shall not warrant the exercise of the Supreme Court’s discretionary power. The error imputed to the Court of Appeals must be grounded upon any of the above prescribed grounds for review or be closely analogous thereto. [Rule 19.36]

2010 Rules of Procedure in Election Contests before the Courts Involving Elective Municipal Officials A.M. NO. 10-4-1-SC

27 APRIL 2010

Coverage These Rules entitled, “The 2010 Rules of Procedure for Municipal Election Contests,” shall apply to election contests under the Automated Election System using the Precinct Count Optical Scan, and shall govern the filing of pleadings, practice and procedure in these contests. (Rule 1, Section 1)

Important Definitions

Automated Election System or AES AES refers to an election system using the technology designated by the Commission on Elections (COMELEC) for voting, counting, consolidating, canvassing, transmission of election results, and the returns; [Rule 1, Section 3(c)]

Precinct Count Optical Scan or PCOS PCOS refers to the machine as well as the technology using an optical ballot scanner, located in every precinct, that scans or reads paper ballots that voters mark by hand and insert into the scanner to be counted; [Rule 1, Section 3(d)]

Electronic Election Return EER refers to the copy of the election return in electronic form, generated by the PCOS machine, that is electronically transmitted to: (1) the Municipal Board of Canvassers for the official canvass; (2) the COMELEC Back-Up Server; (3) the server for the dominant majority party; (4) the server for dominant minority party; (5) server for the citizen’s arm authorized by the COMELEC to conduct a parallel count; and (6) the Kapisanan ng mga Broadcaster sa Pilipinas or KBP. [Rule 1, Section 3(h)]

Statement of Votes by Precinct, Municipality, City, District, Province, or Overseas Absentee Voting (OAV) Station Refers to a document in electronic and in printed form generated by consolidation machines or by computers during the canvass proceedings. This document records the votes obtained by candidates in each precinct, municipality, city, district, province, or OAV Station, as the case may be. [Rule 1, Section 3(m)]

Data Storage Device Data Storage Device refers to the device that stores electronic documents from where data may be obtained when necessary to verify the accuracy and correctness of election data. The data storage device used in a PCOS shall be under the custody and direct responsibility of the election officer after completion of the voting process. A data storage device includes the back-up storage device under COMELEC custody that likewise stores authentic electronic copies of data. [Rule 1, Section 3(p)]

Audit Log Audit Log refers to the electronic document, stored in the PCOS machine’s data storage device, containing the list of all activities the PCOS machine performs from the time that it is powered on until it is turned off. [Rule 1, Section 3(q)]

Electronic Document Electronic Document refers to the record of information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieve or produced electronically. It includes digitally-signed documents and any printout or output, readable by sight or other means, that accurately reflects the electronic document. [Rule 1, Section 3(r)]

Electronic Document For purposes of these Rules, an electronic document refers to either the picture image of the ballots or the electronic copies of the election returns, the statements of votes, the certificates of canvass, the audit log, and other electronic data processed by the PCOS and consolidation machines. [Rule 1, Section 3(r), par. 2]

Election contests Election contests refer to election protests or petitions for quo warranto. [Rule 1, Section 3(t)]

Election protest  Election protest refers to an election contest involving the election and returns of municipal elective officials, grounded on fraud or irregularities committed in the conduct of the elections, i.e., in the casting and the counting of the ballots, in the consolidation of votes and in the canvassing of returns, not otherwise classified as a pre-proclamation controversy cognizable by the COMELEC. The issue is who obtained the plurality of valid votes cast. [Rule 1, Section 3(u)]

Quo Warranto under the Omnibus Election Code It refers to an election contest involving the qualifications for office of an elective municipal official, on the ground of ineligibility or disloyalty to the Republic of the Philippines. The issue is whether the respondent possesses all the qualifications and none of the disqualifications prescribed by law. [Rule 1, Section 3(v)]

Revision of ballots  Revision of ballots refers to the recount of ballots through their physical count; the segregation of ballots for the protestant, the protestee, and other candidates for the same position and the recording of the objections and claims to these ballots. [Rule 1, Section 3(w)]

Inherent Powers of the Court Regional trial court acting on an election contest, shall have all the inherent powers of a court provided under: Rule 135 of the Rules of Court; including the power to issue auxiliary writs, processes, and other means necessary to carry its authority or jurisdiction into effect and to adopt suitable processes not expressly provided by, but conformable with, law, these Rules, or the Rules of Court. [Rule 1, Section 4]

Election Contests The courts shall give preference to election contests over all other cases, except petitions for habeas corpus and for the writs of amparo and habeas data. (Rule 14, Section 13)

Jurisdiction of Regional Trial Courts Regional trial courts shall have exclusive original jurisdiction over all election contests involving municipal officials. [Rule 2, Section 1]

How initiated? By filing of an election protest or a petition for quo warranto against an elective municipal official. An election protest or a petition for quo warranto shall be filed directly with the court in three legible copies plus such number of copies corresponding to the number of protestees or respondents. An election protest shall not include a petition for quo warranto, nor shall a petition for quo warranto include an election protest. [Rule 2, Section 2]

Modes of Service and Filing Service and filing of pleadings, including the initiatory petition and other subsequent papers, shall be done personally. Except for papers emanating from the court, resort to other modes of service must be accompanied by a written explanation why the service or filing was not done personally. A pleading or motion violating this Rule shall be considered not to have been filed. [Rule 2, Section 3]

Election Protest A petition contesting the election or returns for an elective municipal office shall be filed with the proper Regional Trial Court by any candidate who was voted for the same office and who received the second or thirdhighest number of votes or, in a multi-slot position, was among the next four candidates following the last-ranked winner duly proclaimed, as reflected in the official results of the election contained in the Statement of Votes by Precinct. The party filing the protest shall be designated as the protestant; the adverse party shall be known as the protestee. [Rule 2, Section 4]

Election Protest Each contest shall refer exclusively to one office; however, contests for offices of the Sangguniang Bayan may be consolidated in one case. [Rule 2, Section 4, par. 2]

Quo Warranto  A petition for quo warranto against an elective municipal official shall be filed with the proper Regional Trial Court by any registered voter who voted in the municipal election. The party filing the petition shall be designated as the petitioner; the adverse party shall be known as the respondent. [Rule 2, Section 5]

Petition must be verified and accompanied by a certificate of non-forum shopping An election protest or a petition for quo warranto shall be verified by an affidavit stating that the affiant has read the petition and that its allegations are true and correct of the affiant’s own knowledge or based on authentic records. A verification based on "information and belief" or upon "knowledge, information and belief" is not sufficient. (Section 6)

Petition must be verified and accompanied by a certificate of non-forum shopping The protestant or petitioner shall sign personally the certificate of nonforum shopping, which must be annexed to the election protest or petition for quo warranto. An unverified or insufficiently verified petition or one that lacks a certificate of non-forum shopping shall be dismissed outright and shall not suspend the running of the required period for the filing of an election protest or petition for quo warranto. [Rule 2, Section 6]

Period to file protest or petition; non-extendible The election protest or petition for quo warranto shall be filed within a non-extendible period of ten (10) days counted from the date of proclamation. [Rule 2, Section 7]

Pendency of Pre-proclamation Controversy The pendency of a pre-proclamation controversy, involving the validity of the proclamation as defined by law, shall suspend the running of the period for the filing of an election protest or petition for quo warranto. [Rule 2, Section 8]

COMELEC Judgment in Disqualification Case The decision of the COMELEC, either en banc or in division, in a disqualification case shall not be a bar to the filing of a petition for quo warranto based on the same ground, except when the Supreme Court has affirmed the COMELEC decision. [Rule 2, Section 9]

Contents of the Protest or Petition Common Facts in Election Protest or Quo Warranto An election protest or petition for quo warranto shall commonly and specifically state the following facts: (i) the position involved; (ii) the date of proclamation; and (iii) the number of votes credited to the parties per the proclamation. [Rule 2, Section 10(a)]

Contents of the Protest or Petition Facts in Quo Warranto A quo warranto petition shall also state: i. if the petitioner is not a candidate for the same municipal position, the facts giving the petitioner standing to file the petition; ii. the qualifications for the municipal office and the disqualifications prescribed by law; iii. the petitioner’s cited ground for ineligibility or the specific acts of disloyalty to the Republic of the Philippines. [Rule 2, Section 10(b)]

Contents of the Protest or Petition Facts in Election Protest An election protest shall also state: i. that the protestant was a candidate who had duly filed a certificate of candidacy and had been voted for the same office; ii. the total number of precincts in the municipality; iii. the protested precincts and votes of the parties are not specified, an explanation why the votes are not specified; and iv. a detailed specification of the acts or omissions complained of showing the electoral frauds, anomalies or irregularities in the protested precincts. [Rule 2, Section 10(c)]

Summary dismissal of Election Contests (Rule 2, Section 12) The court shall summarily dismiss, motu proporio, an election protest, counterprotest or petition for quo warranto on any of the following grounds: (a) The court has no jurisdiction over the subject matter; (b) The petition is insufficient in form and content as required under Section 10; (c) The petition is filed beyond the period prescribed in these Rules; (d) The filling fee is not paid within the period for filling the election protest or petition for quo warranto; and (e) In a protest case where cash deposit is required, the deposit is not paid within five (5) days from the filling of the protest.

Summons Within twenty-four (24) hours from the filling of a protest or petition, the clerk of court shall issue the corresponding summons to the protestee or to the respondent, together with a copy of the protest or petition, requiring the filling of an answer within a non-extendible period of five days from notice. [Rule 3, Section 1]

Service of Summons GENERAL RULE: The summons shall be served by handing copies of the summons and of the protest or the petition to the protestee or the respondent in person or, in case of the protestee’s or the respondent’s refusal to receive and sign these copies, by tendering them to him or her. [Rule 2, Section 1, par. 1]

Service of Summons EXCEPTION: If, for justifiable causes, the protestee or the respondent cannot be served in person as provided above, service may be effected by leaving copies of the summons and the protest or the petition at: (a) The protestee’s or the respondent’s residence, with a person of suitable age and discretion residing therein, or  (b) The protestee’s or the respondent’s office or regular place of business, with a competent person in charge thereof. [Rule 3, Section 2, par. 2]

Verified Answer and Counter-protest Within five (5) days from receipt of the summons and the copy of the protest or petition, the protestee or the respondent shall file an answer in three (3) legible copies, with proof of service of a copy on the protestant or the petitioner. [Rule 4, Section 1, par. 1] The answer shall be verified and may set forth admissions and denials, special and affirmative defenses, and a compulsory counterclaim. [Rule 4, Section 1, par. 2]

Verified Answer and Counter-protest The protestee may incorporate a counter-protest in the answer. [Rule 4, Section 1, par. 2] The counter-protest shall specify the counter-protested precincts and the parties’ votes per the Statement of Votes by Precinct and, in the proper case, a detailed specification of the acts or omissions complained of as electoral fraud, anomalies or irregularities in the counter-protested precincts; if the votes are not so specified, an explanation should be made for the omission. [Rule 4, Section 1, par. 3]

Answer to Counterclaim or Counter-protest The protestant or petitioner shall answer the counterclaim or counter-protest within a non-extendible period of five (5) days from notice. [Rule 4, Section 2]

Effect of Failure to Plead Defenses and objections not pleaded. – Defenses and objections not pleaded are deemed waived. The court shall dismiss the claim when it appears from the pleadings or the evidence on record that (1) the court has no jurisdiction over the subject matter; or (2) there is another action pending between the same parties for the same cause; or (3) the action is barred by a prior judgement or by the statute of limitations. [Rule 4, Section 4(a)]

Compulsory counterclaim or cross-claim not set up barred. – A compulsory counterclaim or a cross-claim not set up shall be barred. [Rule 4, Section 4(b)]

Effect of Failure to Plead Effect of failure to answer.  If the protestee or the respondent fails to answer within the time allowed in an election protest that does not involve ballot revision or in a petition for quo warranto, the court – upon motion of the Protestant or the petitioner, with notice to the protestee or the respondent, and upon proof of such failure – shall proceed to render judgment granting the relief prayed for on the basis of the allegations of the verified protest or petition, unless the court in its discretion opts to require the protestant or the petitioner to submit evidence ex parte. [Rule 4, Section 4(c)]

Amendments; Limitations After the expiration of the period for the filling of an election protest, counter-protest or petition for quo warranto, substantial amendments that broaden the scope of the action or introduce an additional cause of action may be allowed only upon leave of court. Leave of court may be refused if the motion for leave appears to the court to be intended for delay. [Rule 4, Section 6]

Amendments; Limitations Any amendment in matters of form – such as a defect in the designation of the parties and other clearly clerical or typographical errors – may summarily corrected by the court at any stage of the proceedings, at its initiative or on motion, provided the correction does not prejudice the adverse party. [Rule 4, Section 6]

Motions All motions shall be in writing, except for those made in open court. [Rule 5, Section 1] Proof of service necessary.  The court shall not act on any written motion, except upon submitted proof of service on the adverse party. [Rule 5, Section 2]

Motions No hearings on motions.  No motion shall be set for hearing, and no oral argument shall be allowed in support of any motion, except upon the court’s express. A motion shall be deemed submitted for resolution unless the adverse party files his or her written objections within five (5) days from service. The court shall resolve a motion within (5) days from the time it is deemed submitted for resolution. [Rule 5, Section 3]

Grounds to dismiss set up in Answer All grounds to dismiss an election protest or petition for quo warranto must be set up or pleased as affirmative or special defenses. Defenses not raised are deemed waived. The court may, at its discretion, hold a preliminary hearing on the grounds so pleaded. [Rule 6, Section 2]

Prohibited Pleadings Rule 6, Section 1 The following shall be prohibited: (a) Motion to dismiss the petition, except on the ground of lack of jurisdiction over the subject matter; (b) Motion for a bill of particulars; (c) Demurrer to evidence; (d) Motion for new trial, or for the reconsideration of a judgment, or for reopening of trial; (e) Petition for relief from judgment;

Prohibited Pleadings Rule 6, Section 1 The following shall be prohibited: (f) Motion for extension of time to file pleadings, affidavits or other papers; (g) Memoranda, except as provided under Section 7, Rile 13 of these Rules; (h) Motion to declare the protestee or the respondent in default; (i) Dilatory motion for postponements; (j) Motion for the inhibition of the presiding judge, except on clearly valid grounds; (k) Reply or rejoinder; and (l) Third-party complaint. [Rule 6, Section 1]

Issuance of Precautionary Protection Order Where the allegations in a protest so warrant, the court shall order – simultaneously with the issuance of summons – the municipal treasurer and election officer concerned to take immediate and appropriate measures to safeguard the integrity of all the ballot boxes and the ballots, the lists of voters and voting records, the books of voters and other documents or paraphernalia used in the election, as well as the automated election equipment and records such as the data storage devices containing electronic data evidencing the conduct and results of elections in the contested precincts. [Rule 8, Section 1]

When ballot boxes and election documents are brought before the court Within forty-eight (48) hours from receipt of an answer with counterprotest, when the allegations in an protest or counter-protest so warrant, the court shall order the ballot boxes with their keys, the PCOS and consolidation machines, the electronic data storage devices, the lists of voters and voting records, the books of voters, and other documents or paraphernalia involved in the protest or counter-protest, to be brought before it. [Rule 8, Section 2, par. 1]

When ballot boxes and election documents are brought before the court The court shall notify the parties of the date and time of retrieval and transfer from their respective custodians of the ballot boxes, the PCOS and consolidation machines (if necessary), the electronics data storage devices and all other automated election documents and paraphernalia. The parties may send representatives to witness the retrieval and transfer. The absence, however, of a representative of a party shall not be reason to postpone or delay the retrieval or transfer of the above-mentioned equipment, devices and election documents. [Rule 8, Section 2, par. 2]

When ballot boxes and election documents are brought before the court The court, at its discretion, may seek the assistance of the Philippine National Police (PNP) or the Armed Forces of the Philippines in ensuring the safe delivery of the ballot boxes and the election equipment, devices and documents to its custody. [Rule 8, Section 2, par. 3]

When ballot boxes and election documents are brought before the court Where any of the ballot boxes, ballots, PCOS machines, data storage devices, election returns, election documents or paraphernalia mentioned above are also involved in election contests before other for a (such as the Presidential Electoral Tribunal, the Senate Electoral Tribunal, the House of Representatives Electoral Tribunal or the Commission on Elections) with preferential rights of custody and revision in simultaneous protests under COMELEC Resolution No. 2812 dated 17 October 1995, the court shall coordinate with and make the appropriate request with the higher tribunals for the temporary prior custody of ballot boxes, PCOS machines, electronic data storage devices and other election documents and paraphernalia, or for the synchronization of revision activities. [Rule 8, Section 2, par. 4]

When ballot boxes and election documents are brought before the court The expenses necessary and incidental to the production in court of the ballot boxes and election documents and the production, storage and maintenance of PCOS machines, data storage devices, and automated election paraphernalia and documents shall be shouldered and promptly paid by the protestant and counter-protestant in proportion to the precincts covered by their protects or counter-protests. The expenses necessary and incidental to the return of the materials and documents produced in court to their original custodians or to the proper tribunal after the termination of the case shall likewise be shared proportionately by the protestant and the protestee based on the number of precincts they respectively contest. [Rule 8, Section 2, par. 5]

Preliminary Conference Within three (3) days after the filling of the last responsive pleading allowed by these Rules, or on the expiration of this period without any responsive pleading having been filed, the court shall conduct a mandatory preliminary conference among the parties to consider: (a) The simplification of issue; (b) The necessary or desirability of amendments to the pleadings; (c) The possibility of obtaining stipulations or admission of facts and of documents to avoid unnecessary proof; [Rule 9, Section 1]

Preliminary Conference Within three (3) days after the filling of the last responsive pleading allowed by these Rules, or on the expiration of this period without any responsive pleading having been filed, the court shall conduct a mandatory preliminary conference among the parties to consider: (d) The limitation of the number of witnesses; (e) The nature of the testimonies of the witnesses and whether they relate to evidence that do not involve the ballots, or otherwise; (f) The withdrawal of certain protested or counter-protested precincts, especially those where the ballot boxes or ballots are unavailable or are missing, cannot be located, have been destroyed due to natural disasters or calamities, or where the PCOS and other electronic data are missing;

Preliminary Conference Within three (3) days after the filling of the last responsive pleading allowed by these Rules, or on the expiration of this period without any responsive pleading having been filed, the court shall conduct a mandatory preliminary conference among the parties to consider: (g) The number of revision committees to be constituted; (h) The procedure to be followed in case the election protest or counter-protest seeks, wholly or partially, the examination of ballots, or the verification or re-tabulation of election returns; (i) The procedure in handling the PCOS and the other electronic machines and data; and  (j) Other matters that may contribute to prompt disposition of the case. [Rule 9, Section 1]

Preliminary Conference Brief The parties shall file with the court their respective preliminary conference briefs and serve these on the adverse party in a manner that shall ensure the other party’s receipt of the brief at least one day before the date of the preliminary conference. [Rule 9, Section 4]

Preliminary Conference Brief The briefs shall contain the following: (a) A summary of admitted facts and proposed stipulations; (b) The issues is to be tried and resolved (i.e., for election protests, the alleged frauds or irregularities committed in the conduct of the election; for quo warranto proceedings, the ground for ineligibility or acts of disloyalty); (c) The documents or exhibits to be presented; (d) A manifestation indicating the use of the intent to use discovery procedures or referral to commissioners;

Preliminary Conference Brief The briefs shall contain the following: (e) The number and names of witnesses, their addresses, and the substance of their respective testimonies. The testimonies of witnesses shall be by affidavits, in question and answer form, which shall serve as their direct testimonies, subject to oral cross-examination; (f) A manifestation of withdrawal of certain protested or counter protested precincts, if this is the case; (g) The proposed number of revision committees and the names of proposes revisors and alternated revisors; and (h) The procedure to be followed in case the election protest or counter protest seeks the revision or examination of ballots, or the verification or re-tabulation of election returns. [Rule 9, Section 4]

Failure to File Brief The failure to file the required brief or to provide the brief’s mandatory contests shall have the same effect as the failure to appear at the preliminary conference. [Rule 9, Section 5]

Effect of Failure to Appear The failure of the protestant/petitioner or the duly authorized counsel to appear at the preliminary conference authorizes the court, as its own initiative, to dismiss the protest, or counter-protest or petition. The failure of the protestee/respondent or of the duly authorized counsel to appear at the preliminary conference may likewise have the effect provided under Section 4(c), Rule 4 of these Rules, i.e., the court may allow the protestant/petitioner to present evidence ex parte and render judgment based on the evidence presented. [Rule 9, Section 6]

Revision of Ballots The revision of ballots shall commence on the date specified in the preliminary conference order. [Rule 10, Section 1] Conduct of Revision [Rule 10, Section 6] The revision of the votes on the ballots shall be done manually and visually and through the use of appropriate PCOS machines, according to the procedure below:

Procedure in the Conduct of Revision:

(a) (b) (c)

• On the scheduled day of revision, the following, if needed, should be in the custody of the court: • (i) the ballot boxes containing the ballots in protested and counter protested precincts; • (ii) the data storage devices and the PCOS machines used in the precincts concerned or any other device that can be used to authenticate or assure the genuineness of the ballots;

• The revision committee shall initially note, before anything else, the condition of the ballot box and its locks and locking mechanism, and record this condition in the revision report. Based on this observation, the revision committee must also determine whether the integrity of the ballot box has been preserved.

• The ballot box shall then be opened and the ballots taken out. The "valid" ballots shall first be counted, without regard to the votes obtained by the parties. This will be followed by the counting of the torn, unused stray and rejected ballots, as classified at the polling place.

(d)

(e) (f)

• The votes appearing in the election returns copy for the ballot box shall then be recorded in the minutes.

• Prior to the actual revision, the revision committee must authenticate each and every ballot to make sure that it was the same ballots cast and fed to the PCOS machine during the voting. The authentication shall be through the use of PCOS machines actually used during the elections in the subject precinct, or by another device certified by the Commission to be capable of performing the desired authentication requirement through the use of the bar codes and the ultra-violet ray code detection mechanism.

• The recount shall only proceed after the revision committee, through its chairperson and members, has determined that the integrity of the ballots has been preserved.

(g)

(h)

(i)

• The revision committee shall thereafter proceed to look at the ballots and count the indicated votes for the contested position.

• In looking at the shades or marks used to register votes, the revision committee shall bear in mind that the will of the voters reflected as votes in the ballots shall as much as possible be given effect, setting technicalities aside. Furthermore, the votes are presumed to have been made by the voter and shall be so considered unless reasons exist to justify their rejection. However, marks or shades that are less than 50% of the oval shall not be considered as valid votes. Any issue as to whether a certain mark or shade is within the threshold shall be determined by using the PCOS machine, not by human determination.

• The rules on the appreciation of the ballots under Section 211 of the Omnibus Election Code shall apply suppletorily when appropriate.

(j)

(k) (l)

(m)

• There shall be a tally sheet in at least 5 copies, plus additional copies depending on the number of additional parties, that shall be used to tally the votes as they are counted through the use of taras and sticks.

• After all the ballots from one ballot box have been counted, the revision committee shall secure the contested ballots and complete the recount report for the precinct. Thereafter, it shall proceed to recount the votes from the ballots of the next precinct.

• In case of multiple revision committees, the recount shall be done simultaneously.

• In the event that the revision committee determines that the integrity of the ballots and the ballot box have not been preserved, as when proof of tampering or substitution exists, it shall proceed to instruct the printing of the picture image of the ballots stored in the data storage device for the precinct. The court shall provide a non-partisan technical person who shall conduct the necessary authentication process to ensure that the data or image stored is genuine and not a substitute. Only after this determination can the printed picture image be used for the recount.

Post-Revision Determination of the Merit or Legitimacy of the Protest Prior to Revision of the Counter-Protest Immediately after the revision or examination of ballots, or the verification or retabulation of election returns in all protested precincts, the protestant shall be required to point to a number of precincts, corresponding to twenty percent (20%) of the total of the revised protested precincts, that will best attest to the votes recovered, ore that will best exemplify the fraud or irregularities pleaded in the protest. In the meanwhile, the revision or examination of the ballots, or the verification or re-tabulation of election returns in the counter-protested precincts, shall be suspended for a period not exceeding fifteen days to allow the court to preliminarily determine, through the appreciation of ballots and other submitted election documents, the merit of legitimacy of the protest based in the chosen twenty percent (20%) of the protested precincts. [Rule 10, Section 10, par. 1]

Post-Revision Determination of the Merit or Legitimacy of the Protest Prior to Revision of the Counter-Protest Based on the results of this post-revision preliminary determination, the court may dismiss the protest without further proceedings if the validity of the grounds for the protest is no established by the evidence from the chosen twenty percent (20%) of the protested precincts; or proceed with the revision or examination if the ballots, or the verification or re-tabulation of election returns in the counter-protested precincts. In the latter case, the protestee shall be required to pay the cash deposit within a non-extendible period of three (3) days from notice. [Rule 10, Section 10, par. 2]

Continuation of the Appreciation of Ballots  If the court decides not to dismiss the protest after the preliminary examination of the evidence from the chose twenty percent (20%) of the protested precincts, revision with respect to the remaining precincts shall proceed at the same time that the ballots or election documents from the counter-protested precincts are being revised. After completion of the revision of the protested precincts, the court shall proceed with the appreciation and revision of ballots from the counter-protested precincts. (Rule 10, Section 11)

Presentation and Reception of Evidence; Order of Hearing If at the preliminary conference the parties have agreed on issues that do not involve the examination and appreciation of ballots or other election documents (e.g., vote-buying, fraud, terrorism or violence), the reception of evidence on the issues, including the testimonies of witnesses, shall be done simultaneously with the revision of ballots that may be required. The reception of evidence on all other matters or issues incidental to or involving the ballots and related election documents shall be made upon completion of (a) the revision of ballots or election documents; or (b) the technical examination, if allowed by the court under the provisions of Rule 11 of these Rules. [Rule 13, Section 1]

Reception of evidence Reception of evidence shall be made in accordance with the following order of hearing: a) The protestant or petitioner shall present evidence in support of the protest or petition; b) The protestee or respondent shall then adduce evidence in support of the defense, counterclaim or counter-protest, if any; c) The parties may then respectively offer rebuttal evidence only, unless the court for good reasons and in the furtherance of justice, permits them to offer evidence on their original case; and d) No sur-rebuttal evidence shall be allowed. [Rule 13, Section 1]

Reception of evidence Reception of evidence shall be made in accordance with the following order of hearing: a) The protestant or petitioner shall present evidence in support of the protest or petition; b) The protestee or respondent shall then adduce evidence in support of the defense, counterclaim or counter-protest, if any; c) The parties may then respectively offer rebuttal evidence only, unless the court for good reasons and in the furtherance of justice, permits them to offer evidence on their original case; and d) No sur-rebuttal evidence shall be allowed. [Rule 13, Section 1]

Reception of evidence In offering testimonial evidence, the party shall require the proposed witness to execute an affidavit which shall be considered as the witness’ direct testimony, subject to the right of the adverse party to object to its inadmissible portions and to orally cross-examine the witness. The affidavit shall be based on personal knowledge, shall set forth facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify on the stated matters. The affidavit shall be in question and answer form, and shall be submitted to the court and served on the adverse party at least three (3) days before the hearing. [Rule 13, Section 1]

Reception of evidence Failure to submit the affidavit of witness within the specified time shall constitute a waiver of the party’s right to present testimonial evidence. The one-day-cross-examination-of witness rule – i.e., that a witness has to be fully cross-examined on one day – shall strictly be followed, subject to the court’s discretion to extend the cross-examination for justifiable reasons. The revision reports, as well as the ballots objected to or claimed by the parties and the submitted electronic evidence, shall automatically form part of court records and may be adopted by the other parties as their evidence. [Rule 13, Section 1]

Offer of Evidence The court shall not consider any evidence that has not been formally offered. Offer of evidence shall be done orally on the last day of hearing allowed for each party after the presentation of the party’s last witness. The opposing party shall be required to immediately interpose objections to the offer. The court shall rule on the offer of evidence in open court. However, the court may, at its discretion, allow the party to make an offer of evidence in writing, which shall be submitted within three days from notice of the court’s order. If the court rejects any evidence offered, the party may make a tender of the excluded evidence. [Rule 13, Section 2]

Reception of Evidence Continuous Reception of evidence, once commenced, shall continue from day to day, as far as practicable, until fully completed or terminated at the court’s order. In no case shall the entire period for reception of evidence exceed ten successive days for each party, from the first day reception of evidence starts, unless otherwise authorized by the Supreme Court. Burden of proof is the duty of a party to present evidence of the facts in issue to establish his or her claim or defense. [Rule 13, Section 3]

Decision The court shall decide the election contest within thirty (30) days from the date the case is submitted for decision, in no case beyond six (6) months after its filing, unless the Supreme Court authorizes an extension in writing. Failure to comply with this timeline shall be considered a serious offense and shall be a ground for disciplinary action against the judge. In addition, six (6) months after the submission of the case for decision, the judge shall be relieved of all duties and functions except to decide the election case. [Rule 14, Section 1, par. 1]

Decision An election protest is deemed submitted for decision after completion of the reception of evidence or, if the parties were allowed to submit memoranda, upon submission of their memoranda or the expiration of the period for their filing, whichever is earlier. In an election protest, the winner shall be the candidate who obtained the plurality of the valid votes cast. [Rule 14, Section 1, par. 2]

Appeal An aggrieved party may appeal the decision to the COMELEC within five (5) days after promulgation, by filing a notice of appeal with the court that rendered the decision, with copy served on the adverse counsel or on the adverse party who is not represented by counsel. [Rule 14, Section 8]

Execution Pending Appeal On motion of the prevailing party with notice to the adverse party, the court, at its discretion and while still in possession of the original records, may order the execution of its decision before the expiration of the period to appeal, subject to the following rules: (a) Execution pending appeal shall not issue except upon motion and hearing with prior notice of the motion of at least three (3) days to the adverse party. The motion for execution pending appeal must be supported by good reasons cited and stated by the court in a special order. [Rule 14, Section 11(a)]

Execution Pending Appeal These “good reasons” reasons must: ◦ (i) constitute superior circumstances demanding urgency that would outweigh the injury or damage, should the losing party secure a reversal of the judgment on appeal; and  ◦ (ii) manifest, in the decision sought to be executed, that the defeat of the protestee or the victory of the protestant has been clearly established. [Rule 14, Section 11, par. (a)]

Execution Pending Appeal (b) If the court grants an execution pending appeal, an aggrieved party shall have twenty working days from notice of the special order within which to secure a restraining order or status quo order from the Supreme Court or the COMELEC. The corresponding writ of execution shall issue after twenty (20) days if no restraining order or status quo order is issued. During the twenty (20)-day period, the issuance of a writ of execution pending appeal shall be stayed. [Rule 14, Section 11, par. 2]

Jurisdiction of the Commission on Elections in Certiorari Cases The COMELEC has the authority to issue the extraordinary writs of certiorari, prohibition and mandamus only in aid of its appellate jurisdiction over decisions of the courts in election cases involving elective municipal officials. [Rule 14, Section 12]

Electronic Evidence The Rules on Electronic Evidence shall apply to evidentiary aspects of pleadings, practice and procedure in election contests not otherwise specifically provided for in these Rules. [Rule 17, Section 3]

Original of an Electronic Document or Electronic Data An electronic document or data shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or an output readable by sight or other means and shown to reflect the data accurately. [Rule 16, Section 1]

All matters relating to the admissibility and evidentiary weight of an electronic document may be established by an affidavit stating facts of direct personal knowledge of the affiant or based on authentic records. The affidavit must affirmatively show the competence of the affiant to testify on the matters contained therein. The affiant shall be made to affirm the contents of the affidavit in open session and may be cross-examined as a matter of right by the adverse party. [Rule 16, Section 3]

Burden of Proving Authenticity The person seeking to introduce an electronic document in an election protest has the burden of proving its authenticity in the manner provided in this Rule. [Rule 17, Section 1]

Authentication of Electronic Evidence Manner of authentication (Rule 17, Section 2):  Before any electronic document or data offered as authentic is received in evidence, its authenticity must be proved by any of the following means:

By evidence that it has been digitally signed by(a) the person purported to have signed it. "Digitally signed" refers to an electronic document or electronic data message bearing a digital signature verified by the public key listed in a certificate.

(b)

(b) By evidence that other appropriate security procedures or devices for authentication of electronic documents authorized by the Supreme Court or by law for the authentication of electronic documents were applied to the document; or

(c) By other evidence showing its integrity and reliability to the satisfaction of the judge .

Rule on Cybercrime Warrants A.M. NO. 17-11-03 SC DATE OF EFFECTIVITY: 15 AUGUST 2018

Cybercrime warrants SALIENT PROVISIONS: a. b. c. d. e. f. g. h.

Scope and applicability (Section 1) General provisions (Section 2) Preservation of computer data (Section 3) Disclosure of computer data (Section 4) Interception of computer data (Section 5) Search, seizure, and examination of computer data (Section 6) Custody of computer data (Section 7) Destruction of computer data (Section 8)

Scope and Applicability Section 1.2. This Rule sets forth the procedure for the application and grant of warrants and related orders involving the preservation, disclosure, interception, search, seizure, and/or examination, as well as the custody, and destruction of computer data, as provided under Republic Act (R.A.) No. 10175, otherwise known as the “Cybercrime Prevention Act of 2012.”

Venue of Criminal Actions Section 2.1. The criminal actions for violation of Section 4 (Cybercrime offenses) and/or Section 5 (Other offenses), Chapter II of R.A. No. 10175, shall be filed before the designated cybercrime court of the province or city where the offense or any of its elements is committed, or where any part of the computer system used is situated, or where any of the damage caused to a natural or juridical person took place: Provided, that the court where the criminal action is first filed shall acquire jurisdiction to the exclusion of the other courts.

Venue of Criminal Actions Section 2.1. All other crimes defined and penalized by the Revised Penal Code, as amended, and other special laws, committed by, through, and with the use of ICT, as provided under Section 6, Chapter II of R.A. No. 10175, shall be filed before the regular or other specialized regional trial courts, as the case may be.

Where to file an Application for a Warrant It shall be filed by the law enforcement authorities before any of the designated cybercrime courts of the province or the city where the offense or any of its elements has been committed, is being committed, or is about to be committed, or where any part of the computer system used is situated, or where any of the damage caused to a natural or juridical person took place. Violation of However the cybercrime courts shall have the special authority to act on Section 4 applications and issue warrants which shall be enforceable nationwide and (Cybercrime outside the Philippines. The cybercrime courts with special authority are: offenses) and/or 1. Quezon City, Section 5 (Other 2. Manila, offenses) of Chapter II of R.A. 3. Makati City, 10175 4. Pasig City, 5. 6. 7. 8.

Cebu City, Iloilo City, Davao City and Cagayan De Oro City

Where to file an Application for a Warrant Violation of Section 6, Chapter II of RA 10175 (all crimes defined and penalized by It shall be filed by the law enforcement authorities with the regular or other the RPC, as specialized regional trial courts, as the case may be, within its territorial amended, and jurisdiction in the places above-described. other special laws, if committed by, through, and with the use of ICT)

Incidents Related to the Warrant When a Criminal Action is Instituted Section 2.3. Once a criminal action is instituted, a motion to quash and other incidents that relate to the warrant shall be heard and resolved by the court that subsequently acquired jurisdiction over the criminal action. The prosecution has the duty to move for the transmittal of the records, as well as the transfer of the items' custody to the latter court, which procedure is set forth in Section 7.2 of this Rule.

Judge examines applicant and record before issuing a warrant Section 2.4. Examination of Applicant and Record. Before issuing a warrant, the judge must personally examine in the form of searching questions and answers, in writing and under oath, the applicant and the witnesses he may produce, on facts personally known to them and attach to the record their sworn statements, together with the judicial affidavits submitted.

Effective Period of Warrants Section 2.5. GENERAL RULE: shall only be effective for the length of time as determined by the court, which shall not exceed a period of ten (10) days from its issuance. EXCEPTION: The court issuing the warrant may, upon motion, extend its effectivity based only on justifiable reasons for a period not exceeding ten (10) days from the expiration of the original period.

Contempt Section 2.6. The responsible law enforcement authorities shall be subject to action for contempt in case: 1. Failure to timely file the return for any of the issued warrants under this Rule 2. Failure to duly turn-over to the court’s custody any of the items disclosed intercepted, searched, seized, and/or examined.

Obstruction of Justice for Non-compliance Section 2.7. Pursuant to Section 20, Chapter IV of R.A. No. 10175, failure to comply with the provisions of Chapter IV, specifically the orders from law enforcement authorities, shall be punished as a violation of Presidential Decree No. 1829, entitled “Penalizing Obstruction Of Apprehension And Prosecution Of Criminal Offenders.“ The criminal charge for obstruction of justice shall be filed before the designated cybercrime court that has jurisdiction over the place where the non-compliance was committed

Extraterritorial Service of Warrants and Other Court Processes Section 2.8. For persons or service providers situated outside of the Philippines, service of warrants and/or other court processes shall be coursed through the Department of Justice - Office of Cybercrime, in line with all relevant international instruments and/or agreements on the matter.

Preservation of Computer Data Section 3 GR: shall be kept, Integrity of retained, and preserved traffic data by a service provider and for a minimum period EXCEPTION: subscriber’s of six (6) months from Law enforcement authorities may order information the date of the a one-time extension for another six (6) transaction (Sec.3.1) months: that once computer data that is preserved, transmitted or stored by a service provider is used as evidence in a case, the receipt by the service provider of a copy of the transmittal GR: shall be preserved for six (6) months from document to the Office of the Prosecutor shall be deemed a the date of receipt of Content notification to preserve the computer the order from law data enforcement authorities data until the final termination of the case and/or as ordered by the court, as requiring its the case maybe. (Sec. 3.1, par. 2) preservation (Sec 3.1)

The service provider ordered to preserve computer data shall keep the order and its compliance therewith confidential. (Sec. 3.1, par. 3)

Cybercrime Warrants 1. Warrant to Disclose Computer Data (WDCD

Sec. 4.2

2. Warrant to Intercept Data (WICD)

Sec. 5.2

3. Warrant to Search, Seize and Examine Computer Data (WSSECD)

Sec. 6.1

4. Warrant to Examine Computer Data (WECD)

Sec. 6.9

Disclosure of Computer Data Pursuant to Section 14, Chapter IV of R.A. No. 10175, law enforcement authorities, upon securing a Warrant to Disclose Computer Data (WDCD) under this Rule, shall issue an order requiring any person or service provider to disclose or submit subscriber's information, traffic data or relevant data in his/her or its possession or control within seventy-two (72) hours from receipt of the order in relation to a valid complaint officially docketed and assigned for investigation and the disclosure is necessary and relevant for the purpose of investigation. (Section 4.1)

Warrant to Disclose Computer Data (WDCD) A WDCD is an order in writing issued in the name of the People of the Philippines, signed by a judge, upon application of law enforcement authorities, authorizing the latter to issue an order to disclose and accordingly, require any person or service provider to disclose or submit subscriber's information, traffic data, or relevant data in his/her or its possession or control. (Section 4.2)

Interception of Computer Data Section 5.1. Interception, as defined under Section 3 (m), Chapter I of R.A. No. 10175, may be carried out only by virtue of a court issued warrant, duly applied for by law enforcement authorities.

Warrant to Intercept Computer Data (WICD) A WICD is an order in writing issued in the name of the People of the Philippines, signed by a judge, upon application of law enforcement authorities, authorizing the latter to carry out any or all of the following activities: (a) listening to, (b) recording, (c) monitoring, or (d) surveillance of the content of communications, including procuring of the content of computer data, either directly, through access and use of a computer system or indirectly, through the use of electronic eavesdropping or tapping devices, at the same time that the communication is occurring. (Section 5.2)

Warrant to Search, Seize and Examine Computer Data (WSSECD) Section 6.1. Warrant to Search, Seize and Examine Computer Data (WSSECD). A Warrant to Search, Seize and Examine Computer Data (WSSECD) is an order in writing issued in the name of the People of the Philippines, signed by a judge, upon application of law enforcement authorities, authorizing the latter to search the particular place for items to be seized and/or examined.

Off-site and On-site Principle; Section 6.4, par. 1 General Rule: Law enforcement authorities shall, if the circumstances so allow, endeavor to first make a forensic image of the computer data on-site as well as limit their search to the place specified in the warrant. Exception: Otherwise, an off-site search may be conducted, provided that a forensic image is, nevertheless, made, and that the reasons for the said search are stated in the initial return.

Return of Items Seized Off-site Section 6.4, par. 2 A person whose computer devices or computer system have been searched and seized off-site may, upon motion, seek the return of the said items from the court issuing the WSSECD: Provided, that a forensic image of the computer data subject of the WSSECD has already been made. The court may grant the motion upon its determination that no lawful ground exists to otherwise withhold the return of such items to him.

Allowable Activities During the Implementation of the WSSECD Section 6.5 1. The interception of communications and computer data may be conducted during the implementation of the WSSECD: Provided, a. that the interception activities shall only be limited to communications and computer data that are reasonably related to the subject matter of the WSSECD; and b. that the said activities are fully disclosed, and the foregoing relation duly explained in the initial return.

Allowable Activities During the Implementation of the WSSECD Section 6.5 2. Likewise, law enforcement authorities may order any person, who has knowledge about the functioning of the computer system and the measures to protect and preserve the computer data therein, to provide, as is reasonable, the necessary information to enable the undertaking of the search, seizure and examination.

Warrant to Examine Computer Data (WECD) Section 6.9. Upon acquiring possession of a computer device or computer system via a lawful warrantless arrest, or by any other lawful method, law enforcement authorities shall first apply for a warrant before searching the said computer device or computer system for the purpose of obtaining for forensic examination the computer data contained therein. The warrant therefor shall be denominated as a Warrant to Examine Computer Data (WECD).

Custody of Computer Data Section 7.1. Deposit and Custody of Seized Computer Data. Upon filing of the return for WDCD or WICD, or the final return for a WSSECD or WECD with the issuing court, the following are likewise submitted: 1. All computer data shall be simultaneously deposited in a sealed package with the issuing court; 2. Accompanied by a complete and verified inventory of all the other items seized in relation thereto, and 3. by the affidavit of the duly authorized law enforcement officer.

Affidavit of the duly authorized law enforcement officer must contain: 1. The date and time of the disclosure, interception, search, seizure, and/or examination of the computer data, as the case may be. If the examiner or analyst has recorded his/her examination, the recording shall also be deposited with the court in a sealed package and stated in the affidavit; 2. The particulars of the subject computer data, including its hash value; 3. The manner by which the computer data was obtained; 4. Detailed identification of all items seized in relation to the subject computer data, including the computer device containing such data and/or other parts of the computer system seized, indicating the name, make, brand, serial numbers, or any other mode of identification, if available; (Section 7.1)

Affidavit of the duly authorized law enforcement officer must contain: 5. The names and positions of the law enforcement authorities who had access to the computer data from the time of its seizure until the termination of the examination but prior to depositing it with the court, and the names of officers who will be delivering the seized items to the court; 6. The name of the law enforcement officer who may be allowed access to the deposited data. When the said officer dies, resigns of severs tie with the office, his/her successor may, upon motion, be granted access to the deposit; and 7. A certification that no duplicates or copies of the whole or any part thereof have been made, or if made, all such duplicates or copies are included in the sealed package deposited, except for the copy retained by law enforcement authorities pursuant to paragraph 3 of Section 4.5 of this Rule. (Section 7.1)

Deposit and Custody of Seized Computer Data The return on the warrant shall be filed and kept by the custodian of the logbook on search warrants who shall enter therein the date of the return, the description of the sealed package deposited, the name of the affiant, and other actions of the judge. (Section 7.1)

Duty of the Prosecutor When Criminal Action is Instituted. Section 7.2 Once a criminal action is instituted, it shall be the duty of the prosecutor, or his/her duly authorized representatives, to move for the immediate transmittal of the records as well as the transfer of the intercepted, disclosed, searched, seized and/or examined computer data and items, including the complete and verified inventory thereof, to the court that subsequently acquired jurisdiction over the criminal action. The motion for the purpose shall be filed before the court that issued the warrant and has custody of the computer data within ten (10) days from the time the criminal action is instituted and shall be acted upon by the court within a period of five (5) days.

Access to and Use of Computer Data General Rule: (Section 7.3) The package containing the computer data deposited in the issuing court shall not: 1. be opened, or 2. the recordings replayed, or 3. its contents revealed, or, 4. in any manner as used as evidence. Exception: The court may grant so upon filing a motion for the purpose stating: 1. the relevance of the computer data sought to be opened, replayed, revealed, or used as evidence; and

Access to and Use of Computer Data Exception continued.. 2. the names of the persons who will be allowed to have access thereto, if the motion is granted. 3. The motion must include proof of service of copies sent to the person/s whose computer data is subject of the motion. Within 10 days from receipt of notice thereof, the person must file comment thereon, after which, the court shall rule on the motion, unless a clarificatory hearing is needed. (Section 7.3)

Duty of Service Providers and Law Enforcement Authorities to Destroy Pursuant to Section 17 of R.A. No. 10175, upon expiration of the periods as provided in Sections 13 and 15 of said law, service providers and law enforcement authorities, as the case may be, shall immediately and completely destroy the computer data subject of preservation and examination. (Section 8.1)

Duty of Service Providers and Law Enforcement Authorities to Destroy Section 13: Service providers preserve the data for a minimum of 6 months, unless a one-time extension of another 6 months is ordered by the law enforcement authority, or in the event that that the data was used as evidence, in which case the data is preserved until the final termination of the case. Section 15: After lapse of the time period specified in the warrant, unless the court grants an extension of time to complete examination for no longer than 30 days (from the time of the court’s approval)

Destruction and Return of Computer Data in the Custody of the Court Section 8.2. 1. Upon motion and due hearing, the court may, for justifiable reasons, order the complete or partial destruction, or the return to its lawful owner or possessor, of the computer data or any of the related items turned over to its custody.

Destruction and Return of Computer Data in the Custody of the Court Section 8.2. 2. Likewise, the court may, and upon written notice to all the parties concerned, order the complete or partial destruction, or return to its lawful owner or possessor, of the computer data or any of the related items turned over to its custody if no preliminary investigation or case involving these items has been instituted after thirty-one (31) days from their deposit, or if preliminary investigation has been so instituted within this period, upon finality of the prosecutor's resolution finding lack of probable cause. In its sound discretion, the court may conduct a clarificatory hearing to further determine if there is no reasonable opposition to the items' destruction or return.

Destruction and Return of Computer Data in the Custody of the Court Section 8.2. 3. If the court finds the destruction or return of disclosed computer data or subscriber’s information subject of a WDCD to be justified under this Section, it shall first issue an order directing the law enforcement authorities to turn-over the retained copy thereof as described in paragraph 3 of Section 4.5 of this Rule. Upon its turn-over, the retained copy shall be simultaneously destroyed or returned to its lawful owner or possessor together with the computer data or subscriber's information that was originally turned over to the issuing court.

Destruction of Computer Data Section 8.3. If so allowed under Section 8.2 of this Rule, 1. Shall be made in the presence of the Branch Clerk-of-Court, or in his/her absence, in the presence of any other person duly designated by the court to witness the same. 2. The accused or the person/s from whom such items were seized, or his/her representative or counsel, as well as the law enforcement officer allowed access to such items as indicated in the inventory, or his/her duly authorized representative, may also be allowed to witness the said activity; Provided, that they appear during the scheduled date of destruction upon written notice to them by the Branch Clerk-of-Court at least three (3) days prior to the aforementioned date.

Destruction of Computer Data Section 8.3. If so allowed under Section 8.2 of this Rule, 3. Within twenty-four (24) hours from the destruction of the computer data, the Branch Clerk of-Court or the witness duly designated by the court shall issue a sworn certification as to the fact of destruction and file the said certificate with the same court. 4. The storage device, or other items turned over to the court's custody, shall be destroyed by: a. b. c. d.

shredding, drilling of four holes through the device, prying the platters apart, or other means in accordance with international standards that will sufficiently make it inoperable.

Rule On Precautionary Hold Departure Order A.M. NO. 18-07-05-SC DATE OF EFFECTIVITY: 7 AUGUST 2018

Precautionary Hold Departure Order (“PHDO”) Section 1.

Precautionary Hold Departure Order is an order in writing issued by a court commanding the Bureau of Immigration to prevent any attempt by a person suspected of a crime to depart from the Philippines, which shall be issued ex-parte in cases involving crimes where the minimum of the penalty prescribed by law is at least six (6) years and one (1) day or when the offender is a foreigner regardless of the imposable penalty.

Where filed Section 2.

The application for a precautionary hold departure order may be filed by a prosecutor with any regional trial court within whose territorial jurisdiction the alleged crime was committed: Provided, that for compelling reasons, it can be filed with any regional trial court within the judicial region where the crime was committed if the place of the commission of the crime is known.

Where filed Section 2.

The regional trial courts in: a. the City of Manila, b. Quezon City, c. Cebu City, d. Iloilo City, e. Davao City, and f. Cagayan de Oro City shall also have the authority to act on applications filed by the prosecutor based on complaints instituted by the National Bureau of Investigation, regardless where the alleged crime was committed.

Finding of Probable Cause Section 3.

(1) Upon motion by the complainant in a criminal complaint filed before the office of the city or provincial prosecutor, and (2) upon a preliminary determination of probable cause based on the complaint and attachments, The investigating prosecutor may file an application in the name of the People of the Philippines for a precautionary hold departure order (PHDO) with the proper regional trial court.

Finding of Probable Cause Section 3.

The application shall be accompanied by the complaint-affidavit and its attachments, personal details, passport number and a photograph of the respondent, if available.

Grounds for Issuance Section 4.

A precautionary hold departure order shall not issue except upon determination by the judge, in whose court the application is filed, that probable cause exists, and there is a high probability that respondent will depart from the Philippines to evade arrest and prosecution of crime against him or her.

Grounds for Issuance Section 4.

The judge shall personally examine under oath or affirmation, in the form of searching questions and answers in writing, the applicant and the witnesses he or she may produce on facts personally known to them and attaching to the record their sworn statements.

Grounds for Issuance Section 4.

If the judge finds that probable cause exists and there is a high probability that the respondent will depart, he or she shall issue the PHDO and direct the Bureau of Immigration to hold and prevent the departure of the respondent at any Philippine airport or ports. Otherwise, the judge shall order the dismissal of the application.

Preliminary Finding of Probable Cause Section 5.

Since the finding of probable cause by the judge is solely based on the complaint and is specifically issued for the purpose of issuing the PHDO, the same shall be without prejudice to the resolution of the prosecutor of the criminal complaint considering the complaint-affidavit, counteraffidavit, reply-affidavit, and the evidence presented by both parties during the preliminary investigation.

Preliminary Finding of Probable Cause Section 5.

If the prosecutor after preliminary investigation dismisses the criminal complaint for lack of probable cause then the respondent may use the dismissal as a ground for the lifting of the PHDO with the regional trial court that issued the order.

Preliminary Finding of Probable Cause Section 5.

If the prosecutor finds probable cause and files the criminal information, the case with the court that issued the PHDO, on motion of the prosecutor shall be consolidated with the court where the criminal information is filed.

Lifting of PHDO Section 7.

Requisites for Lifting of PHDO: 1. a verified motion before the issuing court for the temporary lifting of PHDO; 2. there is a meritorious ground that, based on the complaint-affidavit and the evidence that complainant will present, there is doubt that probable cause exists to issue the PHDO or it is shown that he or she is not a flight risk; 3. respondent posts a bond; and 4. the lifting of the PHDO is without prejudice to the resolution of the preliminary investigation against the respondent.

Bond Section 8.

Respondent may ask the issuing court to allow him or her to leave the country upon posting of a bond in an amount to be determined by the court subject to the conditions set forth in the Order granting the temporary lifting of the PHDO.

J. Leonen’s Dissenting Opinion On this Rule on Precautionary Hold Departure Order 1. The Rule is too broad, and therefore, forecloses future court actions where there are factual settings in which our current assumptions may not apply. 2. In Genuino v. De Lima (G.R. No. 197930, 17 April 2018), this Court ruled that the right to travel can only be impaired in two (2) instances. The first instance is when Congress passes a statute specifically restricting the right to travel "in the interest of national security, public safety, or public health." Yet, even before Congress has had the opportunity to discharge its constitutional duties, this Court now promulgates a rule to address the lack of action of the proper constitutional organs. This Court now replaces the executive prerogative of issuing hold departure orders with judicial prerogative through the guise of a procedural rule.

J. Leonen’s Dissenting Opinion On this Rule on Precautionary Hold Departure Order 2. In Genuino v. De Lima, xxx: The second instance where the right to travel can be burdened is upon an order of a court in a pending criminal case. This power proceeds from the grant of judicial power. Although courts have the inherent power to issue hold departure orders, this presupposes that a criminal case has been filed against the accused. 3. The Rule amounts to judicial legislation. It arbitrarily sets a cluster of crimes and construes, through a judicial rule, that these are what constitute threats to "national security, public safety, or public health.”

J. Leonen’s Dissenting Opinion On this Rule on Precautionary Hold Departure Order 4. A preliminary determination of probable cause, though intended to be without prejudice to the investigating prosecutor's resolution of the criminal case, would render the conduct of preliminary investigation moot and academic. 5. As probable cause would be the same standard used in determining whether an application for the issuance of a precautionary hold departure order should be filed, the preliminary determination of probable cause would then amount to a prejudgment of the preliminary investigation proceedings.

J. Leonen’s Dissenting Opinion On this Rule on Precautionary Hold Departure Order 6. A preliminary determination of probable cause is also an impractical procedure. The procedure outlined in Sections 3 and 4 of Rule 112 of the Rules of Court calls for a speedy and prompt determination of probable cause during preliminary investigations. 7. The Rule also limits and unduly hampers the prosecution's discretion during the preliminary investigation proper. 8. The executive determination of probable cause, in the context of a preliminary investigation, would be an idle ceremony rendered moot by the two (2)-tier preliminary determination of probable cause.

J. Leonen’s Dissenting Opinion On this Rule on Precautionary Hold Departure Order 9. There is no necessity of the Rule unless this Court condones the delays in inquest or preliminary investigation. 10. The Rule also does not account for the nuances between preliminary investigation and inquest proceedings. 11. The Rule unduly burdens the rights of a person who has only been suspected of committing a crime.

J. Leonen’s Dissenting Opinion On this Rule on Precautionary Hold Departure Order 9. There is no necessity of the Rule unless this Court condones the delays in inquest or preliminary investigation. 10. The Rule also does not account for the nuances between preliminary investigation and inquest proceedings. 11. The Rule unduly burdens the rights of a person who has only been suspected of committing a crime.

Genuino v. De Lima G.R. Nos. 197930, 199034 & 199046, 17 April 2018 Facts: These consolidated Petitions for Certiorari and Prohibition with Prayer for the Issuance of Temporary Restraining Orders (TRO) and/or Writs of Preliminary Injunction under Rule 65 of the Rules of Court assail the constitutionality of Department of Justice (DOJ) Circular No. 41, series of 2010, otherwise known as the "Consolidated Rules and Regulations Governing Issuance and Implementation of Hold Departure Orders, Watchlist Orders and Allow Departure Orders," on the ground that it infringes on the constitutional right to travel.

Genuino v. De Lima G.R. Nos. 197930, 199034 & 199046, 17 April 2018 Held: DOJ Circular No. 41 is unconstitutional. There is no law particularly providing for the authority of the secretary of justice to curtail the exercise of the right to travel, in the interest of national security, public safety or public health. A painstaking examination of the provisions being relied upon by the former DOJ Secretary will disclose that they do not particularly vest the DOJ the authority to issue DOJ Circular No. 41 which effectively restricts the right to travel through the issuance of WLOs and HDOs.

Genuino v. De Lima G.R. Nos. 197930, 199034 & 199046, 17 April 2018 Held: The DOJ cannot wield police power since the authority pertains to Congress. Even if it claims to be exercising the same as the alter ego of the President, it must first establish the presence of a definite legislative enactment evidencing the delegation of power from its principal. This, the DOJ failed to do. There is likewise no showing that the curtailment of the right to travel imposed by DOJ Circular No. 41 was reasonably necessary in order for it to perform its investigatory duties.

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