Criminal misconduct: an indictment of the law enforces and the courts.

Criminal misconduct - INQUIRER.net, Philippine News for Filipinos


Editorial
Criminal misconduct
Philippine Daily Inquirer
First Posted 23:02:00 12/17/2010


WITH THE Supreme Court having made short shrift of the testimony of Jessica Alfaro in the Vizconde massacre case, the onus has shifted from the convicted and now recently released Hubert Webb et al. to the National Bureau of Investigation’s star witness. As early as Tuesday this week, only hours after the promulgation of the Court’s ruling and at the very moment when TV cameras were recording Webb’s last moments inside prison before his eventual release, the news anchors on the ABS-CBN news channel were already breathlessly speculating on the possible criminal accountability of Alfaro for her tainted testimony.

While to much of the polarized public, the jury on the guilt or innocence of Webb and his co-accused may still be out, there is one element of this sordid, sorry saga that has been made crystal-clear by the Court’s re-examination of the case: the culpability of the NBI in bungling the case. It is a culpability of the shocking, brazen, criminal kind, of which the employment of Alfaro as a dubious witness was only the most disturbing part. In this sprawling enterprise of evidence destroyed or gone missing, witnesses threatened and mishandled, multiple arrests that led nowhere—with suspects invariably crying torture, and fanciful stories planted in the public mind to jam the facts into a clumsy theory—one could see a horrifying picture of a law-enforcement agency practically gone off its ethical rocker, unmoored from any sense of professional, legal or moral constraints in prosecuting the case.

Even as public attention has now turned on Alfaro and questions about the extent of her probable perjury, it must also be asked: Who deployed her and coached her to be the star witness for the state? Who concocted the elaborate story that tried to stitch together various elements of the horrific crime into a plausible whole—plausible enough to have convinced Parañaque Regional Trial Court Judge Amelita Tolentino to convict Webb et al. overwhelmingly on its basis—but which the high court has now trashed as essentially ridiculous and unreliable?

And who destroyed or mislaid crucial evidence, such as the semen samples taken from the body of Carmela Vizconde? The NBI says it sent them as evidence to Tolentino’s sala, a claim the court denies. This exasperating back-and-forth alone deserves the gravest censure, or at least a thorough investigation, from both the Department of Justice, which oversees the NBI, and the Supreme Court, which has jurisdiction over the Parañaque court. Losing evidence is no laughing matter; losing evidence in this case, the most high-profile crime in the country in so many years, is nothing short of heinous.

Running after Alfaro should be secondary to bearing down on the shadowy figures among the police and NBI ranks who, by their incompetence, negligence and/or deliberate conspiracy to manipulate the case, perpetrated a most outrageous injustice—both against Lauro Vizconde whose fate it is now to relive the horrors all over again; and against Webb et al. who had to waste 15 years in jail for a crime they might not have been guilty of.
This is not the first time the NBI and the police have dropped the ball on basic criminal procedures. Too many cases have been dismissed because of legal shortcuts taken, or evidence planted or lost, or victims’ human rights violated. Other than clapping handcuffs on suspects, the country’s law enforcers, it is clear, are woefully, dangerously inadequate in their jobs. But the enormity of the Vizconde massacre threatens to make this moment the most spectacular failure in these organizations’ history so far.
Within six months, the statute of limitations on the Vizconde murders will preclude further criminal proceedings. Instead of launching another investigation that could only raise false hopes and pressure authorities to rely on ever-flimsier evidence, Malacañang and the DOJ should instead see this time as an opportunity to strengthen the rule of law within the NBI and the Philippine National Police.
These agencies’ investigative capabilities and, more crucially, grounding in the legal requirements of criminal prosecution should be overhauled and made a primary basis for their accountability to the public they purport to serve. Leave them be as they are now, without punishment for their criminal misconduct in the Vizconde case, and more bungling is bound to happen—if it isn’t happening now.

Vindicated

Vindicated - INQUIRER.net, Philippine News for Filipinos

Get Real
Vindicated
By Solita Collas-Monsod
Philippine Daily Inquirer
First Posted 00:30:00 12/18/2010

FOUR DAYS ago, the decision of the Supreme Court on the so-called Vizconde Massacre was promulgated, writing finis to a story that began 19 years ago with the rape-murder of Carmela Vizconde and the murder of her mother Estrellita and younger sister Jennifer.

The vote to acquit Hubert Webb and his six co-accused was seven against four, with four other justices not participating for various reasons. But the decision has raised certain issues which should be laid to rest, so that everyone involved, particularly the Vizconde Seven (Hubert Webb and his six co-accused), can maybe get on with the rest of their lives after spending 15 years in jail. Let’s discuss them:

Question 1: Is the decision proof that justice is only for the rich? This is the accusation that Lauro Vizconde, husband and father of the victims, hurled.

The “justice only for the rich” contention is common practically worldwide, buttressed by the fact that prison populations do not reflect “true” cross-sections of society. Studies in the United States (arguably echoed everywhere else) show that bias against the poor with respect to arrest rates, convictions and sentencing. In this country, while the poor constitute 33 percent of the population (2006), they constitute close to 90 percent of the prison population. It has been observed that not only have the rich access to better lawyers, but that arresting officers and judges tend to be more lenient with them.

Using that logic, the Vizconde case can be said to reflect the “justice only for the rich” contention, but only in the sense that had the accused had less access to the services of good lawyers, they would still be rotting in jail today. But Vizconde’s contention is not that Webb et al. had excellent lawyers. He contends that they were acquitted because of “bayaran”—payoffs to justices with decisions for sale.

I don’t know whether Vizconde was describing a situation where seven justices succumbed to monetary blandishments while four stuck to their principles, or if the latter were not principled either, but just did not get their asking price and so no sale, or whether there was a mixture of principled and for-sale justices on both sides, or if even the justices who inhibited themselves were “campaigning” on the sly. Vizconde did not say; he just made the blanket accusation. But one hopes that he will be made to explain (as have the UP lawyers) why he should not be held in contempt for making such a statement.

In any event, his contention does not seem to be supported by the case history: If money could indeed buy a favorable decision in this case, how come the accused had to spend 15 years in jail?

Question 2: Does the decision imply that Webb and his co-accused, though declared “Not Guilty,” were not really “vindicated,” since the SC did not rule on their innocence?

Statements to this effect were attributed to SC spokesman Midas Marquez, and one hopes that these attributions were not accurate, because they smack of intellectual dishonesty. True, the SC did not rule on the innocence of the accused. But it is equally true that any court of law, whether in the Philippines or abroad, can only return one of two verdicts: Guilty, or Not Guilty. No court in the world, or at least in countries with legal systems like ours, can or will pronounce a person Innocent. I’ve been around enough lawyers to have absorbed this by osmosis, but the man on the street may not, and attribute to the “Not Guilty” verdict an additional significance it does not have.

And yes, it is also true that a court can indeed pronounce a defendant “Not Guilty,” even if he actually committed the crime—as when a vital piece of evidence that would have proven his guilt is declared inadmissible, leaving the prosecution with no leg to stand on (I cannot resist adding here that the trial court accepted everything the prosecution had to offer and rejected all the evidence coming from the defense).

So the only way to determine the sense of the Court, above and beyond the cut-and-dried, pro-forma “Acquitted … for failure of the prosecution to prove their guilt beyond reasonable doubt” is to read the decisions in their entirety.

The reading will show, beyond the shadow of a doubt, that the majority of the Court were essentially rebuking the lower courts for taking the uncorroborated testimony of Jessica Alfaro (the justices were not buying either the testimonies of the security guards or the laundress, for reasons discussed in the decision) as gospel, and completely disregarding or belittling official documentary and testimonial evidence that would show that Webb could not have committed the crime because he was halfway around the world at the time.

In their view, “Alfaro’s quality as a witness and her inconsistent, if not inherently unbelievable testimony cannot be the positive identification that jurisprudence acknowledges as sufficient to jettison a denial and an alibi” (Abad). And that Webb’s “travel and immigration documents … not to mention the testimonial and documentary evidence … deserve full credit” (Carpio-Morales). Also that “the various violations of the accused’s rights have resulted in his failure to secure a just trial.”

In short, Alfaro was lying, Webb was telling the truth. Does that sound like the Court majority thinks, in any way, that Hubert Webb could have committed the crime he was accused of?

Lawyer disbarred for nonpayment of debts

A.C. No. 8391

MANUEL C. YUHICO vs. ATTY. FRED L. GUTIERREZ, A.C. No. 8391, Nov. 23, 2010

x x x.

In his Position Paper, Yuhico manifested that the Supreme Court, in Huyssen v. Atty. Gutierrez,[6] had already disbarred Gutierrez from the practice of law for gross misconduct, in view of his failure to pay his debts and his issuance of worthless checks.

Subsequently, in a Resolution dated December 11, 2008, the, IBP-CBD found Gutierrez guilty of non-payment of just debts and ordered him to return the amount of Ninety Thousand Pesos (P90,000.00) to Yuhico, with interest until full payment.

 

In view of the previous disbarment of Gutierrez, the IBP-CBD recommended to the Court that, instead of rendering the instant case moot, Gutierrez should be disbarred anew effective upon the expiration of the sanction pursuant to the March 26, 2004 Supreme Court Decision. The IBP-CBD explained that while we do not have jurisprudence on the issue of double or multiple disbarment, the American jurisprudence, however, recognizes double or multiple disbarments as well as the minimum requirement of five (5) years for readmission to the Bar.

 

On December 11, 2008, the IBP Board of Governors, in Resolution No. XVIII-2008-649, resolved to adopt the report and recommendation of the IBP-CBD and approve it with modification as to the payment of the amount of Ninety Thousand Pesos (P90,000.00), this time, without interest.

 

We sustain the findings of the IBP, but with modification as to its recommendations.

 

We have held that deliberate failure to pay just debts constitute gross misconduct, for which a lawyer may be sanctioned with suspension from the practice of law. Lawyers are instruments for the administration of justice and vanguards of our legal system. They are expected to maintain not only legal proficiency, but also a high standard of morality, honesty, integrity and fair dealing so that the people’s faith and confidence in the judicial system is ensured. They must, at all times, faithfully perform their duties to society, to the bar, the courts and to their clients, which include prompt payment of financial obligations. They must conduct themselves in a manner that reflects the values and norms of the legal profession as embodied in the Code of Professional Responsibility.[7]

 

In the instant case, there is no question as to Gutierrez's guilt. His admission of the loan he contracted and his failure to pay the same leaves no room for interpretation. Neither can he justify his act of non-payment of debt by his dire financial condition. Gutierrez should not have contracted loans which are beyond his financial capacity to pay.

 

Likewise, we cannot overlook Gutierrez's propensity of employing deceit and misrepresentations for the purpose of obtaining debts without the intention of paying them. Records show Gutierrez's pattern of habitually making promises of paying his debts, yet repeatedly failing to deliver. The series of text messages he sent to Yuhico promising to pay his loans, while simultaneously giving excuses without actually making good of his promises, is clearly reprehensible. Undoubtedly, his acts demonstrate lack of moral character to satisfy the responsibilities and duties imposed on lawyers as professionals and as officers of the court.

 

We also note that in Huyssen v. Atty. Gutierrez,[8] the Court had already disbarred Gutierrez from the practice of law for gross misconduct due to non-payment of just debts and issuance of bouncing checks.

In view of the foregoing, while we agree with the findings of the IBP, we cannot, however, adopt its recommendation to disbar Gutierrez for the second time, considering that Gutierrez had already been previously disbarred. Indeed, as the IBP pointed out, we do not have double or multiple disbarment in our laws or jurisprudence. Neither do we have a law mandating a minimum 5-year requirement for readmission, as cited by the IBP. Thus, while Gutierrez's infraction calls for the penalty of disbarment, we cannot disbar him anew.

 

WHEREFORE, Resolution No. XVIII-2008-649 dated December 11, 2008, of the IBP, which found FRED L. GUTIERREZ guilty of GROSS MISCONDUCT, is AFFIRMED. He is ORDERED to PAY the amount of Ninety Thousand Pesos (P90,000.00) to the complainant immediately from receipt of this decision with interest.

 

Let a copy of this Decision be furnished and properly recorded in the Office of the Bar Confidant, to be appended to the personal record of Gutierrez; the Integrated Bar of the Philippines; and the Office of the Court Administrator, for circulation to all courts in the country for their information and guidance.

 

This Decision shall be immediately executory.

SO ORDERED.

x x x.

New California Chief Justice leads Fil-Am winners in US polls - INQUIRER.net, Philippine News for Filipinos

New California Chief Justice leads Fil-Am winners in US polls - INQUIRER.net, Philippine News for FilipinosNew California Chief Justice leads Fil-Am winners in US polls


By Nimfa U. Rueda
Philippine Daily Inquirer
First Posted 02:38:00 11/04/2010

LOS ANGELES—Several Filipino-Americans emerged as winners in Tuesday’s elections in California and Hawaii.

Tani Gorre Cantil-Sakauye will begin her tenure as California’s Chief Justice in January. Three others in the state were reelected mayor—Cristopher Cabaldon of West Sacramento, Pete Sanchez of Suisun City in Solano County, and Jose Esteves of Milpitas.

Cantil-Sakauye is the first Asian, first Filipino and the second woman to become Chief Justice in California. Sixty-seven percent voted “yes” to her appointment.

Cabaldon won by 64.2 percent over his opponent, Greg Potnick, with 35.8 percent. Sanchez got 67 percent of the votes, while Esteves led his rivals with 42.3 percent.

Mike Guingona, Rob Bonta and Pat Gacoscos topped the city council elections in Daly City, Alameda City and Union City, respectively. Hydra Mendoza was No. 1 in the race for the San Francisco School Board.

Myrna de Vera won a seat in the Hercules City council, while Joanne del Rosario was reelected to the Colma town council.

New leadership level

These victories demonstrated a new level of political leadership by Filipino-Americans, according to Dexter Ligot-Gordon, chair of Kaya (Filipino Americans for Progress). “They also showed that Fil-Ams, as a constituency, must be recognized and sought after,” he said.

Kaya endorsed many of the Filipino-American Democratic candidates.

In Hawaii, unofficial and partial results showed Kymberly Marcos Pine, a Republican, heading for a landslide victory in her bid to be reelected state House representative in District 43.

As of presstime, Pine enjoyed a wide margin, with 66.3 percent of the votes, over her challenger Jason Bradshaw’s 31.4 percent.

Pine’s grandfather, Nemesio Marcos, came from Ilocos Norte and fought in World War II.

SC gives UP law profs 20-day reprieve - INQUIRER.net, Philippine News for Filipinos

SC gives UP law profs 20-day reprieve - INQUIRER.net, Philippine News for FilipinosSC gives UP law profs 20-day reprieve

But no plan to withdraw show-cause order

By Marlon Ramos
Philippine Daily Inquirer
First Posted 06:36:00 11/04/2010

MANILA, Philippines—The Supreme Court Wednesday gave another 20 days for the 37 University of the Philippines law professors to file their comment on the show-cause order that the tribunal issued against them.

Since the high court was still in recess, only Chief Justice Renato Corona acted on the request of the embattled UP law faculty, Supreme Court administrator and spokesperson Midas Marquez said.

UP College of Law dean Marvic Leonen and 36 other faculty members were initially directed by the magistrates to file their comment 10 days after they issued the show-cause order on Oct. 20.

“Considering that time is of the essence, the Chief Justice, without waiting for the en banc session, has granted all the motions for the 20-day extension filed by the UP (faculty),” Marquez said in a text message last night.

In an earlier news briefing, he said the high court was “considering” the sentiments of groups and legal luminaries, among them constitutionalist and Philippine Daily Inquirer columnist Fr. Joaquin Bernas, who had expressed support for the UP faculty.

“They are being taken consideration by the court. But the court would rather wait for the compliance of the law dean and professors,” he said.

Asked if the tribunal would eventually withdraw the show-cause order, Marquez said: “Well, there is no indication to that effect.”

The high court ordered the law professors to explain why they should not be sanctioned for supposedly violating the lawyer’s code of ethics after they issued a scathing statement against Associate Justice Mariano del Castillo.

Del Castillo was accused by lawyers Harry Roque and Rommel Bagares of plagiarizing his decision on the reparation case filed by World War II “comfort women.”

Bar exam blast probe panel releases recommendations - INQUIRER.net, Philippine News for Filipinos

Bar exam blast probe panel releases recommendations - INQUIRER.net, Philippine News for Filipinos

Bar exam blast probe panel releases recommendations
By Marlon Ramos
Philippine Daily Inquirer
First Posted 06:38:00 11/04/2010

MANILA, Philippines—Starting next year, law schools will oversee the traditional “bar operations” of fraternities, sororities and other groups to prevent a repeat of the violence that marred the Sept. 26 bar examinations.

This was among the recommendations that a special Supreme Court committee formed to investigate the grenade attack submitted to Chief Justice Renato Corona, Supreme Court administrator and spokesman Midas Marquez said Wednesday.

However, only 10 pages of the 50-page report were released to the media.

“This report would be helpful… for the conduct of future bar examinations. It contains the security protocols and guidelines,” Marquez said in a press conference.

The report, prepared by the body headed by Associate Justice Martin Villarama Jr., was made public nearly two weeks after it was submitted to Corona.

Marquez said the tribunal decided not to divulge the findings on the criminal liabilities of certain personalities in deference to the ongoing investigation being conducted by the National Bureau of Investigation (NBI).

“Anyway, those (proposals) about the criminal aspect have already been superseded by the events that transpired after the submission of the report,” he said, referring to the surrender of principal suspect Anthony Nepomuceno and the filing of charges against him.

According to Marquez, the committee report would be presented to the court en banc and Associate Justice Roberto Abad, the chair of the 2011 bar exams.

He said it would be up for Abad which recommendations would be adopted to ensure the safety of those taking the bar exams.

While the report did not identify any persons who could be behind the attack, he said the information given to the committee were “consistent” with the recent developments of the case.

“The initial information that the NBI has been giving the court is consistent with what are coming out in the reports from the justice department,” Marquez said.

Among the committee’s recommendations were:

• For the NBI to continue its investigation and bring the case to its conclusion;

• For the NBI to immediately start the prosecution of the suspects that it had identified;

• For the Manila Police District to pursue its own investigation of the incident;

• Strictly enforce the modified Supreme Court guidelines on the bar exams;

• To consider the “bar operations” as official school activity;
Put up perimeter fences 200 meters away from the venue of the bar exams from 6 a.m. to 7 p.m., and;

• Order school authorities to regulate the traditional “salubong” festivities.

Since most frat and sorority members attending the bar operations are also law students, Marquez said deans of law schools should have jurisdiction and “command responsibility” over them.

“The recommendation is for these activities near the exam venues be considered an extension of their respective schools and (treat it) as an academic activity,” he said.

Corona, he said, would closely monitor the probe of the incident “until there’s final conviction for all those behind this crime.”

Locus standi

Locus standi was the ground cited by the Supreme Court in dismissing the petitions of law NGOs seeking the declaration of unconstitutionality of the Human Security Act fo 2007 -  read the news below.


SC junks bid to declare Human Security Act unconstitutional
By Tetch Torres
INQUIRER.net
First Posted 16:37:00 10/10/2010
see: http://newsinfo.inquirer.net/breakingnews/nation/view/20101010-296988/SC-junks-bid-to-declare-Human-Security-Act-unconstitutional

MANILA, Philippines – The Supreme Court, voting 14-0, dismissed the petitions seeking to declare as unconstitutional Republic Act 9372, otherwise known as the Human Security Act of 2007.

In a 45-page decision, the high court, through Associate Justice Conchita Carpio-Morales ruled that the petitioners which include Southern Hemisphere Engagement Network, Inc. et al; Kilusang Mayor Uno (KMU), et al; Bagong Alyansang Makabayan (Bayan), et al; Karapatan Alliance For the Advancement of People’s Right, et al; The Integrated Bar of the Philippines (IBP), et al; and Bagong Alyansang Makabayan-Souther Tagalog (Bayan-ST) have no legal standing to question the validity of the law because “none of them faces any charge” under the said law.

In their petitions, the groups asserted their legal standing to file the suit on the basis of being suspected “communist fronts” by the government while individual petitioners invoke “transcendental importance” doctrine and their status as citizen citizens and taxpayers.

But the high court said that while the Communist Party of the Philippines, the New People’s Army and the Abu Sayyaf group have been classified by the United States and the European Union as foreign terrorist organizations, no case has been filed yet before any court seeking to declare the CPP and NPA as domestic terrorist groups.

“R.A. 9372 has been in effect for three years now. From July 2007 up to the present, petitioner-organizations have conducted their activities fully and freely without any threat of, much less an actual, prosecution or proscription under R.A. 9372,” the high court said.

The high court added that the petitioners failed to show an “actual, imminent or direct injury as a result of the implementation of R.A. 9372.”

Also, the high court said it cannot nullify a law based on allegations that the petitioners are under surveillance.
“The possibility of abuse in the implementation of R.A. 9372 does not avail to take the present petitions out of the realm of the surreal and merely imagined. Such possibility if not peculiar to R.A. 9372 since the exercise of any power granted by law may be abused,” the SC said.

“Allegations of abuse must be anchored on real events before courts may step in to settle actual controversies involving rights which are legally demandable and enforceable,” it added.

Petitioners said the HSA violates Constitutional provisions on unreasonable searches and seizures.
It likewise violates the provisions which ensure the right of the people to travel and freedom of expression, they said.

The petitioners noted that under RA 9372, a warrant is no longer necessary in arresting a person. As a substitute for the warrant, the law requires a written authority to be issued by the Anti-Terrorism Council.
They added that under Section 18 of RA 9372, an arrest may be based on mere suspicion, as it uses the term “suspected terrorist.”

The petitioners also insisted that R.A. 9372 is void for being vague and regulates speech.
But the high court said that based on its reading of the definition of the crime of terrorism in Section 3, R.A. 9372, “what the law seeks to penalize is conduct, not speech.”

The Court further explained a review of the validity of the said law for being vague is “legally impermissible absent an actual or imminent charge” against the petitioners.

Concurring with the ruling were Chief Justice Renato Corona, Presbitero Velasco, Jr., Antonio Eduardo Nachura, Arturo Brion, Lucas Bersamin, Roberto Abad, Jose Portugal Perez, Teresita Leonardo-De Castro, Diosdado Peralta, Mariano del Castillo, Martin Villarama, Jr., Jose Catral Mendoza and Maria Lourdes Sereno. Justice Antonio Eduardo Nachura is on leave.

Appellate remedies; notes.

APPELLATE PRACTICE

(Based on the MCLE lectures of my friend Court of Appeals Associate Justice Magdangal de Leon, Past Chairman, Las Pinas City Bar Association).

Rules

Rules 40-56 -- civil actions

Rule 122-125 -- criminal actions

See also: Batas Pambansa Blg. 129 (Judiciary Reorganization Act of 1980, effective Aug. 14, 1981); PD 1606 (law creating Sandiganbayan), amended by RA 7975 and RA 8249; Art. VIII, 1987 Constitution; Adm. Code of 1987.

Purpose

   

To review “errors of judgment” committed by a court with jurisdiction over the subject matter and the persons of the parties.

Contradistinguish: Rule 65 (special civil action for CPM) – “errors of jurisdiction”.

         

Possibilities: 

o   modify or reverse the judgment or final order, or

o   remand the case to the court of origin if it finds that

         further proceedings are necessary.  

      

Not Matter of Right

§  Mere statutory privilege to be exercised only in the manner and in accordance with the provisions of the law granting that right.

§  When judgments or final orders of trial courts which can be appealed as a matter of right:

                

v  Judgments or final orders of the MTC, RTC and Family Court in civil cases and special proceedings (Sec. 1, Rule 41; Sec. 1, Rule 109).

                    

v  Judgments of conviction rendered by a trial court, provided accused not placed in double jeopardy (Sec. 1, Rule 122).

§  As a general rule, appeal from a decision rendered by a court in the exercise of its appellate jurisdiction is not a matter of right (appeal via “petition for review” or appeal via “petition for review on certiorari”).

§  Discretionary appeal – one which a reviewing court may or may not allow.  Example: Sec. 6, Rule 45 (“petition for review on certiorari” or “appeal by certiorari”) – review not a matter of right but of sound judicial discretion; will be granted only when there are special and important reasons therefor.                  

* Also, see Sec. 4, Rule 42 and Sec. 8. Rule 43.

Proper Remedy

Ø  Policy now strictly enforced that wrong remedy will be quickly rejected and dismissed (SC Circular No. 2-00 dated March 19, 1990 based on Murillo vs. Consul, Undk. No. 9748, Feb. 27, 1990).

Ø  Election of proper remedy depends on whether or not judgment or final order has become final and unappealable.

         A.   Not Yet Final and Unappealable

     

1.   Ordinary Appeal

¨      notice of appeal within period specified (15 days from receipt of decision or order/resolution denying a motion for reconsideration [Neypes doctrine]).

¨      upon errors or questions of fact and law

¨      applies to judgments or final orders

Þ    of MTC to RTC in civil cases (Rule 40)

Þ    of RTC to CA in civil cases (Rule 41)

Þ    of RTC to SB involving public officers and employees (PD 1606, am. by RA 8249)

Þ    of RTC to CA in criminal cases (Rules 122 & 124, as am. by A.M. No. 00-5-03-SC, Oct. 15, 2004)

                                   

2.   Petition for Review

¨      to CA

¨      from RTC - if judgment to be appealed from is rendered in the exercise of its appellate jurisdiction

                               (Rule 42)     

¨      from quasi-judicial agency (Rule 43)

3.   Petition for Review on Certiorari

  

¨      to SC under Rule 45

¨      upon pure questions of law

¨      from RTC, CA or SB

                  

   B.   Final and Unappealable

1.    Petition for CPM (orig. special civil action under

                            Rule 65)

                           

o   ground: judgment rendered without or in excess of jurisdiction or grave abuse of discretion amounting to lack of jurisdiction

                           

2.   Petition for Relief from Judgment under Rule 38

o   grounds:  fraud, accident, mistake, excusable negligence (FAME)

3.   Petition for Annulment of Judgment under Rule 47

o   grounds:  extrinsic fraud or lack of jurisdiction

Improper Appeal

            An appeal may be dismissed on the ground that it is improper. --

§  Appeal under Rule 41 taken from RTC to CA raising only pure questions of law (Sec. 2, Rule 50).

                 

 (a) Trial court without authority to dismiss an appeal by notice of appeal on the ground that issues involved only questions of law (Kho vs. Camacho, 204 SCRA 150; PNB vs. Judge Romillo, Jr., 130 SCRA 320).    

(b) Appeal by certiorari from RTC to SC raising only questions of fact may be referred by SC to CA for decision or appropriate action (Sec. 6, Rule 56). 

   

§  Appeal from appellate judgment of RTC  taken by notice of

                   appeal to CA – proper mode is petition for review under

                   Rule 42.

            An erroneous appeal does not always result in its dismissal.

o   Interest of substantial justice (People vs. Barrera, 262 SCRA 63).

o   Lapse of “slight nature” and causes no prejudice to any party                (People vs. Omotoy, 267 SCRA 143).    

Subject to Appeal

1.   Order denying motion for new trial or reconsideration

2.   Order denying petition for relief or similar motion seeking relief from judgment.   

3.   Interlocutory order 

4.   Order disallowing or denying an appeal

5.   Order denying motion to set aside judgment by consent, confession or compromise on the ground of fraud, mistake or duress or any other ground vitiating consent.

6.   Order of execution     

7.   Judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross claims, and third party complaints, while the main case is pending, unless the court allows an appeal therefrom.

8.   Order dismissing an action without prejudice.

  ORDINARY APPEAL – Rules 40 and 41

         Rule 40 – MTC to RTC

         Rule 41 –  RTC to CA

        Similarities:

1.   Same period to appeal – 15 days/30 days

2.   How appeal taken -  notice of appeal/notice of appeal plus record on appeal;  appellant has a new period of 15 days after denial of motion for reconsideration or new trial (Neypez ruling).

3.   Same manner of perfection (Sec. 9, Rule 41).

          4.  Residual powers (Sec. 9, Rule 41)

          5.  Power to dismiss appeal (Sec. 13, Rule 41).

          Difference in pleadings to be filed

           Rule 40 – memoranda

           Rule 41 –  briefs 

       What to file in special cases (under Rule 41)  -- In appeals from decisions in certiorari, prohibition, mandamus, quo warranto and habeas corpus " memorandum in lieu of brief (Sec. 10, Rule 44).

  Effect of Non-Appeal

            General rule:  appellate court cannot reverse or modify the trial

      court’s judgment involving a party who did not appeal.

            Exceptions: 

1.    solidarity in obligations (Citytrust Banking Corp. vs. CA (196

SCRA 553; Universal Motors Corp. vs. CA, 205 SCRA 448).

2.    interest of justice (Batingal vs. CA, 351 SCRA 60).

                  PETITION FOR REVIEW – RULES 42 and 43

                  Rule 42 -  petitions for review of decisions of RTC in exercise of

                                  appellate jurisdiction over cases decided by MTC.

                           

                    [ N.B. Decisions of RTC in exercise of its appellate jurisdiction in

                             tax collection cases and criminal cases arising from violations of

                             NIRC, TCC and other laws administered by BIR and BOC

                             appealable to CTA within 30 days from receipt of decision under

                             procedure analogous to that provided under Rule 42 (RA 9282). ]                   

                  Rule 43 -  petitions for review of decisions, final orders, resolutions of

                                 quasi-judicial agencies such as CSC, SEC, OP, LRA, etc.

                           Rule 43 covers:

                                          

§   DAR decisions under RA 6657

§   Voluntary arbitrators (Silver Trading Co. vs. A.V.A. Tomas E. Semana, et al., G.R. No. 152456, Apr. 28, 2004)

§   Ombudsman resolutions or orders in administrative cases

     (Fabian vs. Desierto, 295 SCRA 470)

                    

§   Note - Ombudsman resolutions or orders in criminal cases –

petition for certiorari to SC under Rule 65 (Garcia Rueda vs. Pascasio,  278 SCRA 769 )

               

§   Decisions of the Board of Commissioners of the Bureau of

                     Immigration (Agus Dwikarna vs. Domingo, G.R. No. 153454,

                     July 7, 2004)

    

§   Decisions and final orders of commercial courts under RA

                     8799 (A.M. No. 04-9-07-SC, Oct. 15, 2004)

 

[ N.B.  Decisions or rulings of Central Board of Assessment                                                    Appeals in exercise of its appellate jurisdiction appealable

           to CTA under procedure analogous to that in Rule 43

         (RA 9282). ]

Excluded from Rule 43:

w  Judgments and final orders issued under the Labor Code (Sec. 2).

     

Ø  NLRC decisions (St. Martin Funeral Home vs. NLRC, 295 SCRA 494) – petition for certiorari to CA under Rule 65.   

                     

Ø  Decisions of Secretary of Labor (National Federation of Labor vs. Laguesma, 304 SCRA 407 ) and Director of BLR (Abbot Laboratories Phils. vs. Abbot Laboratories Employees Union,  323 SCRA 392 ) – petition for certiorari to CA under Rule 65.

                     

Ø  CTA decisions – petition for review on certirari under Rule 45 (RA 9282).

                     

Ø  Decisions of the DOJ Secretary in petitions for review

- petition for certiorari to CA under Rule 65 (Public Utilities Dept., Olongapo City vs. Guingona, Jr., 365 SCRA 467).

                Under Rules 42 and 43 –

                

·          How appeal taken and time for filing – only one motion for reconsideration allowed (Sec. 4, Rule 43).

·          Service of copy of petition on lower court and adverse                   

party serves as notice of appeal

·          Perfection of appeal

·          Effect of failure to comply with requirements (Sec. 3,  

Rule 42; Sec. 7, Rule 43)

·          Review discretionary

¨ may be dismised outright  (Sec. 4, Rule 42; Sec. 8, Rule 43)

¨ may not be given due course (Sec. 6, Rule 42; Sec. 10,Rule 43)

·          Pure question of law may be brought to CA (Secs. 2 and 6,

Rule 42; Sec. 3. Rule 43)     

·          Effect of appeal

¨ shall stay judgment or final order (Sec. 8, Rule 42)

¨ shall not stay judgment or final order (Sec. 12, Rule 43)

                   

             PETITION FOR REVIEW ON CERTIORARI – RULE 45

§  How appeal taken and time for filing (Secs. 1 & 2)

§  Only questions of law may be raised (Sec. 1)

§  Proof of service on lower court and adverse party (Sec. 3)

§  Dismissal or denial of petition (Sec. 5)

§  When petition given due course (Sec. 6)

§  Distinguished from certiorari as a special civil action

§  Factual findings of CA binding on SC.  There are 11 Exceptions (Remalante vs. Tibe and related cases)

§  Exception to Rule 45 as a mode of appeal to SC -- notice of         

                        appeal where CA imposes reclusion perpetua, life

imprisonment or a lesser penalty (Sec. 13 (c), Rule 124, as

                        amended by A.M. No. 00-5-03-SC; Mateo doctrine)   

                       PETITION FOR CERTIORARI  - RULE 65

w  How taken and time for filing (Secs. 1 & 4)

w  If involving acts or omissions of a quasi-judicial agency, petition filed in CA (Sec. 4)

w  Ground: grave abuse of discretion, etc.

w  No appeal or any plain, speedy and adequate remedy.

w  Generally, if appeal is available, certiorari cannot be

resorted to. Appeal and certiorari mutually exclusive and

not alternative or successive.  

    

Ø  Certiorari filed instead of appeal during period

          of appeal did not toll period or prevent judgment

          from becoming final (Del Rosario vs Galagot, 166

          SCRA 429).

Ø  If remedy of appeal lost due to petitioner’s neglect or

error in choice of remedies, certiorari not substitute or        tool to shield petitioner from adverse effects  (Professional Regulations Commission vs. CA,

          292 SCRA 155).

    

     Exceptions:

    

v  Where appeal not adequate, or equally beneficial, speedy       and sufficient (PNB vs. Sayoc, 292 SCRA 365).

v  When rigid application will result in manifest failure or          miscarriage of justice (Mejares vs. Reyes, 254 SCRA 425).

v  Where remedies not incompatible, filing of certiorari not abandonment of appeal.  (Appeal is from decision in main    case while certiorari is against order denying motion for           new trial [Lansang, Jr. vs. CA, 184 SCRA 230; St. Peter           Memorial Park vs. Campos, 63 SCRA 180]).

v  In the interest of justice, petition for certiorari considered as petition for review under Rule 45, provided filed within required period (Banco Filipino Savings and Mortgage Bank vs. CA, 334 SCRA 305).

    

Motion for reconsideration required before certiorari can be filed.  Exceptions (Tan, Jr. vs. Sandiganbayan, 292 SCRA 452; Marawi Marantao General Hospital vs. CA, 349 SCRA 321).                        

    

RELIEF FROM JUDGMENT – RULE 38

·          Available only after (a) decision or final order from

which relief is sought has become final and executory, and

      (b) loss of the right to appeal.

·          Not available where (a) a party has another adequate remedy available him (motion for new trial or appeal) and (b) he is not prevented from filing such motion or taking the appeal.

·           Relief will not be granted when a party’s loss of legal remedy is due to his own negligence or mistaken mode of procedure.

·          Requisites: 

(1)        FAME - fraud, accident, mistake or excusable negligence, and

(2)        presence of good and substantial cause of action or defense, as the case may be. 

·          Time for filing petition – within 60 days after learning, and not more than 6 months after judgment or order entered, or proceeding taken.

Exceptions: 

¨      A few days in excess of 60-day requirement not fatal if petition filed within 6 months from entry of order (Papa vs. CA, 303 SCRA 600).

¨      Petition filed beyond required period considered seasonably filed to avoid a miscarriage of justice (Funtilla vs. CA, 93 SCRA 251).

¨      Where counsel’s negligence deprived his client of his day in court, it entitled petitioner to file petition fo relief despite lapse of reglementary period (PHHC vs. Tongco, 12 SCRA 471.

ANNULMENT OF JUDGMENT – RULE 47

               Cannot be availed of –

·          where party had availed of remedy of new trial, appeal, petition for relief or other appropriate remedy and lost therefrom; or

·          where he failed to avail of any such remedy thru his own fault or negligence.

 Grounds and period for filing:

(1) Extrinsic fraud – aggrieved party must show that he failed to avail of new trial, appeal, petition for relief or other appropriate remedy due to extrinsic fraud done against him.

Fraud must be committed by adverse party.

§  Fraud under Rule 38 – precluded petitioner from fully ventilating his case.

§  Fraud under Rule 47 -  prevented him from resorting to any remedy.

Petition must be filed within four (4) years from discovery.

                 

                  (2) Lack of jurisdiction - judgment rendered without      jurisdiction is null and void.

Nullity may be shown not only by what appears on the face of the decision but also by the documentary and testimonial evidence found in the record.

Petition filed before it is barred by laches or estoppel.

Appeal in Criminal Cases

·          Appeal by prosecution from dismissal of criminal complaint or information -- where trial court issued dismissal order before accused was arraigned (Comelec vs. Silva, 285 SCRA 177). No double jeopardy for lack of arraignment.

·          State cannot appeal from judgment of acquittal based on merits of case due to double jeopardy.

¨      But judgment or order of acquittal may be challenged in a          petition for certiorari under Rule 65 for grave abuse of discretion amounting to lack or excess of jurisdiction. Ex. denial of due process.

·          Appeal from MTC to RTC

Where MTC has jurisdiction over offense (imprisonment not more than 6 yrs.)

How appeal taken and time for filing (Secs. 3 & 6, Rule 122)

·          Appeal from RTC to CA

§  Original jurisdiction of RTC (Sec. 3 (a), Rule 122)

   

ú  Where RTC imposed reclusion perpetua, life imprisonment or where lesser penalty imposed for offenses committed on same occasion, etc. – notice of appeal to CA (Sec. 3 (c), Rule 122, as am. by A.M. No. 00-5-03-SC pursuant to People vs. Mateo)

ú  Where RTC imposed death penalty – automatic review by CA (Sec. 3 (d), Rule 122, as am. by A.M. No. 00-5-03-SC, pursuant to People vs. Mateo)

w  Appellate jurisdiction of RTC

                            How appeal taken and time for filing – petition for               review under Rule 42 (Sec. 3 (b), Rule 122).

w  Appeal from CA and SB to SC

        By petition for review under Rule 45

        Exceptions:

w  CA –       where CA imposes reclusion perpetua, life imprisonment or a lesser penalty etc. " notice of appeal to SC (Sec. 13 (c), Rule 124, per A.M. No. 00-5-03-SC)      

N.B.      (1) Where CA finds that death penalty should be imposed,  will render judgment but refrain from making entry of judgment and certify case and elevate entire record to SC for review (Sec. 13 (a), Ibid.) 

            (2) Where judgment also imposes lesser penalty for offenses committed on same occasion or arose out of same occurrence that gave rise to more severe offense for which death penalty is imposed, and accused appeals, appeal shall be included in case certified for review to SC (Sec. 13 (b), Ibid.)

w  SB – where SB imposes death, reclusion perpetua or                         

     life imprisonment

          

§  Original jurisdiction

·         death " automatic review by SC

·         reclusion perpetua or life imprisonment or lesser      penalty imposed etc. " notice of appeal to SC

§  Appellate jurisdiction

Where SB finds that death penalty, reclusion perpetua or life imprisonment should be imposed, will render judgment but refrain from making entry of judgment  and certify case and elevate entire record to SC for review (Section 7, PD 1606, as amended, and Rule X, Revised Internal Rules of Sandiganbayan, as reiterated in SC Resolution dated October 12, 2004).

v  Fugitive from justice  waives his right to appeal -

·         Accused escaped from detention and was tried in absentia (Moslares vs. CA, 291 SCRA 340).

·         Accused escaped during pendency of appeal

  (People vs. Codilla, 224 SCRA 104).

Exception – where death penalty is imposed, which is automatically appealed (to CA, per Mateo ruling).

v  Appeal in election cases – action of public prosecutor authorized to investigate election cases appealable to  Comelec within 10 days from notice (Sec. 34, Comelec Rules of Procedure). Comelec decision or order reviewable by SC via petition for certiorari within 30 days from promulgation (Rule 37, Ibid.; Rule 64, Rules of Court).

Acknowledgment:

A major part of the foregoing lecture is based on previous MCLE lectures of CA Assoc. Justice M. de Leon, a founding member and a past chairman of the Las Pinas City Bar Assn Inc. and a law professor of Ateneo de Manila Univ. Law School.