Laserna Cueva-Mercader Law Offices : December 2013

Sunday, December 29, 2013

Freedom of information | Inquirer Opinion

SEE - Freedom of information | Inquirer Opinion

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Charter provisions. In its “Declaration of Principles and State Policies,” the Constitution provides: “Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.”

More clearly, the Charter, in its Bill of Rights, states: “The right of the people to information on matters of public concern shall be recognized.

Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to limitations as may be provided by law.”

While the earlier provision is a general state policy that cannot be implemented without an enabling law, the latter provision—being a part of the Bill of Rights—is self-executory and needs no enabling law to be enforced by courts.

In fact, even prior to the 1987 Constitution, the Supreme Court recognized the people’s right to public information. Said the Court in Baldoza vs Dimaano (May 1, 1976): “There can be no realistic perception by the public of the nation’s problems, nor a meaningful democratic decision-making, if they are denied information of general interest.”

Later, in Chavez vs PCGG (July 15, 2003), the Court directed the government to inform the public of the negotiations on the alleged ill-gotten wealth of the Marcoses. However, it recognized certain restrictions on the right, among them national security matters, intelligence information, trade secrets, banking transactions (although under the Anti-Money Laundering Laws, these are no longer sacred), criminal matters and other confidential information.

More recently, in Senate vs Ermita (April 20, 2006), the Court again used the right to public information to strike down a presidential order barring members of the Cabinet from testifying in legislative investigations, holding that citizens must have “access to information which they can use for formulating their own opinion on matters pending before Congress.”

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Supreme Court in a social media age | Inquirer Opinion

see - Supreme Court in a social media age | Inquirer Opinion

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The Supreme Court entered popular consciousness in 2013. One recalls how the oral arguments on the Reproductive Health Act saw vocal justices such as Roberto Abad turned into Internet memes, graphics with their quotes bouncing around Facebook. In traditional media, headlines quoted Senior Associate Justice Antonio Carpio as saying lawmakers’ pork barrel “on its face is unconstitutional” and “riddled with unconstitutionality.” For all the dignified silence, opening proceedings to the Internet means the Court now speaks to the people beyond the anthologies.

The justice now has a pulpit. It is telling that the media try to cite justices’ statements during arguments far more than they do our legislators’. The Court is the least dangerous branch as it holds neither purse nor sword, but must appeal to public morality. That the politically insulated branch now broadcasts these appeals real time grants it undreamed-of institutional strength.

Greater access reminds us that there are distinct personalities behind the bench. Carpio has unintentionally become the social media justice’s mold. He distills a complex philosophical debate into a single, purely legal issue on which a case turns. On RH, he stymied Ma. Concepcion Noche by showing that the law prohibits drugs that interfere with a fetus’ implantation, rendering her debate on whether life begins at fertilization or implantation irrelevant. On pork, he argued that because the president has a line item veto power, the budget must necessarily be written as line items, prohibiting discretionary lump sums. This sparked a side debate in the written decision, with Chief Justice Ma. Lourdes Sereno defending lump sums. Carpio’s stern, businesslike and eminently quotable manner has made him the reporter’s darling and a petitioner’s worst nightmare.

Perhaps the justice with the most questions is Marvic Leonen. The opposite of Carpio, he circles an issue like a predator toying with prey or a law professor mentally eviscerating a hapless freshman, asking numerous questions on smaller details. For example, when Solicitor General Francis Jardeleza argued that the Aquino administration has used the Malampaya Fund strictly for energy-related purposes as intended by law, Leonen raised that an Arroyo executive order stated it may be used as the president sees fit. Also the opposite of Carpio, Leonen will then remind a petitioner that a justice’s questions do not necessarily reflect how he intends to rule. Such persistent probing of both sides has allowed prepared petitioners to shine, such as cyberlaw professor JJ Disini and former defense undersecretary Rodel Cruz, who argued both technology issues and constitutional jargon perfectly in the Cybercrime Act arguments.

Sereno is likewise less direct, raising the broader policy issues of a legal decision. On RH, for example, she confronted Luisito Liban on claims regarding alleged coercion, health risks and a decadent Western culture of contraception where 12-year-olds have multiple sex partners. Known as a woman of faith who was quoted that her appointment as chief justice was God’s will, she proved quite effective in that exchange.

There are 15 justices and more are likely content to hold their cards closer to their chests unless they are the designated author of a decision, which was why Justice Estela Perlas-Bernabe was active and meticulous during the pork barrel arguments. Nevertheless, we have seen that Diosdado Peralta and Lucas Bersamin take a more casual, folksy approach, a welcome balance to how Carpio always sounds like ice water runs through his veins. Bersamin, for example, lightened the tense RH debate by noting that the anti-RH lawyer was named Concepcion. Presbitero Velasco and Mariano del Castillo seem to be the pragmatists and mediators. Finally, one may fairly include Jardeleza as a 16th justice, and increased access to arguments has only highlighted his office’s contribution to raising the bar of constitutional litigation.

One hopes the increased transparency sharpens the “vital national seminar.” In the cybercrime arguments, for example, Rep. Neri Colmenares responded: “I’m not very good at the Internet.” In the pork arguments, Manuelito Luna claimed that alleged presidential pork is unconstitutional because unequal allocations to senators violated equal protection—the year’s most bizarre human rights argument. In the RH arguments, countless nonlegal arguments aside, Noche quipped, “I don’t think there’s a need to further consult the people on the meaning of the Constitution,” while former senator Francisco Tatad seemed to cite the Pope as legal basis. Further, some justices were criticized for asking the same questions during each hearing, leading the Court to move questions after all initial statements are made. One hopes that transparency will likewise improve Judicial and Bar Council interviews. The interviews for the selection of the chief justice were criticized for having almost no questions on judicial philosophy and deciding cases, and a persistent question on how a candidate would wish to be remembered if appointed chief justice.

Ultimately, one hopes the transparency will stimulate a broader consciousness of rights and institutions. The decision striking down lawmakers’ pork, for example, affirmed popular sentiment, but one hopes the citizenry appreciates the underlying reasoning on the separation of powers. One likewise hopes the RH arguments caused people to consider what informed right a woman should have over her body independent of one’s RH views. A litmus test might be whether people appreciate the difference between the Court declining jurisdiction and its actual rulings. For example, can people reconcile how different contexts might mean telling anti-RH petitioners that their arguments should be taken to Congress while rejecting the same argument for antipork petitioners?

The media and the academe remain crucial to fully appreciate the Court. The cybercrime arguments, for example, received clumsy media treatment, such that teenagers were convinced that the Cybercrime Act created online libel—ongoing prosecutions are under a 1930 law—and coverage of the arguments latched onto sound bites that were peripheral to the legal issues.

The Court had a wonderful entry into social media. This reinforces that great contradiction that it is a countermajoritarian institution of unelected justices yet is the venue for many of our democracy’s greatest moments. Technology highlights that our justices are statespersons, too.

Oscar Franklin Tan (@oscarfbtan, facebook.com/OscarFranklinTan) cochairs the Philippine Bar Association Committee on Constitutional Law and teaches at the University of the East.

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Catholic school wins Round 1 vs BIR’s Henares

see - Catholic school wins Round 1 vs BIR’s Henares

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MANILA, Philippines - Private educational institutions have won a reprieve from the Bureau of Internal Revenue’s taxing powers.

A Makati Regional Trial Court issued a temporary restraining order on Friday, December 27, on a memo requiring schools to apply for tax exemption.

Revenue Memorandum Circular 20-2013, issued by BIR Commissioner Kim Henares, was challenged by St Paul College of Makati. The school argued that it is unconstitutional and an exercise of abusive powers of the BIR. It is a case that crosses religious lines – Catholic, Protestants, Iglesia ni Cristo, Muslims – and even the non-sectarian schools, as it could impact on their tax-exempt status.

Enhance monitoring

Issued on July 22, 2013, the BIR memo prescribes “policies and guidelines in the issuance of tax exemption rulings to qualified non-stock, non-profit corporations and associations.”

The move aims “to enhance monitoring” of corporations granted tax-exempt status to ensure that they comply with the conditions for the tax exemption, determine other taxable incomes not covered by the exemption, and plug tax leakages.

The memo states that corporations listed under Sec. 30 of the National Internal Revenue Code (NIRC) should file applications for tax exemption/revalidation from the Revenue District Office where they are registered.

Sec. 30 of the NIRC enumerates the tax-exempt corporations and associations, ranging from labor and agricultural associations to cemetery companies, non-stock and non-profit private and government education institutions and corporations or associations organized and operated exclusively for religious, charitable, scientific, athletic or cultural purposes.

However, Sec. 30 also says that any income from activities that are unrelated to their primary purpose is subject to tax.

The memo states that tax exemption certificates issued by the BIR before June 30, 2012 will expire on Dec 30, 2013. On the other hand, certificates issued after June 30, 2012 will be valid for 3 years.

It requires schools to make a reporting of their annual revenues and assets and how these were utilized. Expectedly, the memo did not sit well with private schools, which have been long spared from filing the tax exemption certificates.

Constitutional immunity

The case resurrects the issue of whether or not non-profit private educational institutions should be taxed, given the high tuition fees it collects from pupils and students.

Escalating costs of matriculation have become an annual woe for parents wanting to enroll their children in private schools. In this school year alone, higher educational institutions in Metro Manila upped their tuition fees by an average of P64 per unit. Primary schools on the other hand, were allowed to increase fees by 6% to 10%.

The Constitution, however, has cloaked schools – at least those registered as non-stock and non-profit – with tax immunity.

Article 14, Sec. 4(3) says, “all revenues, assets on non-stock, non-profit educational institutions used actually, directly and exclusively for educational purposes shall be exempt from taxes and duties.” The exemption is in recognition of the “complementary roles of public and private institutions in the educational system.”

But the Henares memo threatens to lift this constitutional tax immunity, St Paul College counsel Sabino Padilla IV explained.

Padilla also explained the memo runs counter to two previous Supreme Court jurisprudence recognizing the continuing tax immunity of non-profit or non-stock schools.

Letter to Henares

Following the issuance of the memo, a source familiar with the case said some members of the 1,219- strong Catholic Educational Association of the Philippines, wrote to Henares, asking her to reconsider her order. “They wanted her to study more the move, at the very least,” the source said.

But Henares held her ground.

Some schools, fearing reprisal, have actually filed applications for tax exemption with the BIR’s legal division. So far, around 50 schools have been issued tax exemption certificates, the source said.

What does this mean?

Without a tax exemption certificate, thousands of private schools are automatically no longer tax-exempt by Jan 1, 2014. Apart from national taxes, they will also be covered by local taxes like real-estate tax.

When it became clear that Henares was not going to reconsider, the CEAP-member schools that wrote Henares withdrew their letter but refrained from bringing her to court.

It was only St Paul College-Makati that took the challenge, in behalf of other schools.

Motion for reconsideration

The Makati RTC initially junked a motion to set aside the contested memo but reversed its earlier ruling upon a motion for reconsideration filed by St Paul College.

In its motion, the school argued that Henares, “had adjudicated for herself, and has delegated to her officials, and personnel of the BIR, the power to grant, bestow, cancel, revoke or deny the tax exemption granted by the Constitution.”

In setting the deadline and expiry for tax exemption certificates and subjecting these to review, Henares effectively usurped legislative powers and set aside the Constitution. The memo means that “only the Commissioner of Internal Revenue, not even the courts of law, will have the power to grant, bestow, cancel, revoke or deny the tax exemption granted by law,” the motion for reconsideration said.

The school asked the court to reconsider the TRO, to avoid “an illegal, stressful, abusive and harassing scenario” from happening. It claimed “irreparable injury” if the BIR memo is not set aside, since it would be tantamount to losing its tax-exempt status.

The BIR, in its counter-reply, argued that St Paul College is not exposed to irreparable injury since the school “could just comply by submitting the necessary documents required.” The school too “could appeal for any deficiency taxes or penalties” that may be imposed if it fails to comply. In the instant case, it is the government, on the contrary, that is exposed to irreparable injury if the TRO is issued, the BIR said.

Status quo

In his resolution, Makati RTC Branch 42 Judge Maximo De Leon sided with St Paul College. “Accordingly, issuance of a TRO is justified to preserve the status quo,” the resolution said.

The judge directed the BIR to appear in court on January 8 “to show cause why no preliminary injunction should be issued.”

A TRO is valid for only 15 days. After the lapse of 15 days, St Paul College will have to secure a preliminary injunction to preserve the status quo while the case is pending. If it wins the case, the court will issue a permanent injunction on the memo. - Rappler.com.

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Guide to Appellate Pleadings

Guide to Appellate Pleadings

By:

Atty. Manuel J. Laserna Jr.

Rule 40. – Appeal from MTC to RTC.

Via Notice of Appeal – 15 days.

1. Parties

2. Judgment or final order or part thereof appealed from,

3. Material dates showing the timeliness of the appeal.

4. Grounds.

Appellant’s Memorandum – 15 days. Non-filing is ground to dismiss the appeal.

Appellee’s Memorandum – 15 days from receipt of Appellant’s Memorandum.

Record on appeal – 30 days:

1. Notice of appeal (see above) and

2. Record on appeal.

RULE 41 - APPEAL FROM THE REGIONAL TRIAL COURTS TO THE COURT OF APPEALS.

Subject of appeal.—An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable.

No appeal may be taken from:

(a) An order denying a motion for new trial or reconsideration;

(b) An order denying a petition for relief or any similar motion seeking relief from judgment;

(d) An order disallowing or dismissing an appeal;

(e) An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent.

(f) An order of execution;

(g) A 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; and

(h) An order dismissing an action without prejudice.

In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65. (n)

Modes of appeal.—

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

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

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

Rule 41, Appeal from RTC to CA.-

Notice of appeal.— 15 days. Pay appeal fees to RTC OCC.

1. Parties to the appeal,

2. Judgment or final order or part thereof appealed from,

3. The court to which the appeal is being taken, and

4. Material dates showing the timeliness of the appeal.

Record on appeal; form and contents thereof—

1. Full names of all the parties to the proceedings shall be stated in the caption of the record on appeal.

2. Judgment or final order from which the appeal is taken and,

3. In chronological order, copies of only such pleadings, petitions, motions and all interlocutory orders as are related to the appealed judgment or final order for the proper understanding of the issue involved, together with such data as will show that the appeal was perfected on time.

4. If an issue of fact is to be raised on appeal, the record on appeal shall include by reference all the evidence, testimonial and documentary, taken upon the issue involved.

5. The reference shall specify the documentary evidence by the exhibit numbers or letters by which it was identified when admitted or offered at the hearing, and the testimonial evidence by the names of the corresponding witnesses.

6. If the whole testimonial and documentary evidence in the case is to be included, a statement to that effect will be sufficient without mentioning the names of the witnesses or the numbers or letters of exhibits.

7. Every record on appeal exceeding twenty (20) pages must contain a subject index. (6a)

Approval of record on appeal —

1. Upon the filing of the record on appeal for approval and if no objection is filed by the appellee within five (5) days from receipt of a copy thereof, the trial court may approve it as presented or upon its own motion or at the instance of the appellee, may direct its amendment by the inclusion of any omitted matters which are deemed essential to the determination of the issue of law or fact involved in the appeal.

2. If the trial court orders the amendment of the record, the appellant, within the time limited in the order, or such extension thereof as may be granted, or if no time is fixed by the order within ten (10) days from receipt thereof, shall redraft the record by including therein, in their proper chronological sequence, such additional matters as the court may have directed him to incorporate, and shall thereupon submit the redrafted record for approval, upon notice to the appellee, in like manner as the original draft. (7a)

Joint record on appeal.—Where both parties are appellants, they may file a joint record on appeal within the time fixed by section 3 of this Rule, or that fixed by the court.

Perfection of appeal; effect thereof—

1. A party’s appeal by notice of appeal is deemed perfected as to him upon the filing of the notice of appeal in due time.

2. A party’s appeal by record on appeal is deemed perfected as to him with respect to the subject matter thereof upon the approval of the record on appeal filed in due time.

3. In appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties.

4. In appeals by record on appeal, the court loses jurisdiction only over the subject matter thereof upon the approval of the records on appeal filed in due time and the expiration of the time to appeal of the other parties.

5. In either case, prior to the transmittal of the original record or the record on appeal, the court

5.1. may issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal,

5.2. approve compromises,

5.3. permit appeals of indigent litigants,

5.4. order execution pending appeal in accordance with section 2 of Rule 39, and

5.5. allow withdrawal of the appeal.

RULE 42 - PETITION FOR REVIEW FROM THE REGIONAL TRIAL COURTS TO THE COURT OF APPEALS

How appeal taken; time for filing.—

1. Verified petition for review with the Court of Appeals – 15 days,

2. Paying at the same time to the CA clerk of court the corresponding docket and other lawful fees and costs, and

3. Furnishing the Regional Trial Court and the adverse party with a copy of the petition.

4. Upon proper motion and the payment of the full amount of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days only within which to file the petition for review.

5. No further extension shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days. (n)

Form and contents of Petition For Review.—

1. Verified petition seven (7) legible copies,

2. With the original copy intended for the court being indicated as such by the petitioner,

3. Full names of the parties to the case, without impleading the lower courts or judges thereof either as petitioners or respondents;

4. Specific material dates showing that it was filed on time;

5. Statement of the maters involved,

6. Issues raised,

7. Specification of errors of fact or law, or both, allegedly committed by the Regional Trial Court, and

8. Reasons or arguments relied upon for the allowance of the appeal;

9. Accompanied by clearly legible duplicate originals or true copies of the judgments or final orders of both lower courts, certified correct by the clerk of court of the Regional Trial Court, the requisite number of plain copies thereof and of the pleadings and other material portions of the record as would support the allegations of the petition.

10. Verification and Anti-Forum Shopping Certification under oath

11. Affidavit of Service – Adverse parties. Lower Court.

12. CD of pleadings and annexes (PDF format)

13. Explanation

Action on the petition.—The Court of Appeals may require the respondent to file a comment on the petition, not a motion to dismiss, within ten (10) days from notice, or dismiss the petition if it finds the same to be patently without merit, prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration. (n)

Contents of comment.— seven (7) legible copies,

1. Accompanied by certified true copies of such material portions of the record referred to therein together with other supporting papers and

2. State whether or not he accepts the statement of matters involved in the petition;

3. Point out such insufficiencies or inaccuracies as he believes exist in petitioner’s statement of matters involved but without repetition; and

4. State the reasons why the petition should not be given due course.

5. A copy thereof shall be served on the petitioner.

6. Affidavit of Service.

7. CD of pleading and annexes (PDF format).

8. Explanation.

9. Verification and AFS Certif optional/not mandatory.

Due course.—If the Court of Appeals finds prima facie that the lower court has committed an error of fact or law that will warrant a reversal or modification of the appealed decision, it may accordingly give due course to the petition.

Elevation of record.—Whenever the Court of Appeals deems it necessary, it may order the clerk of court of the Regional Trial Court to elevate the original record of the case including the oral and documentary evidence within fifteen (15) days from notice.(n)

Perfection of appeal; effect thereof —

(a) Upon the timely filing of a petition for review and the payment of the corresponding docket and other lawful fees, the appeal is deemed perfected as to the petitioner.

The Regional Trial Court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties.

However, before the Court of Appeals gives due course to the petition, the Regional Trial Court may issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve corn-promises, permit appeals of indigent litigants, order execution pending appeal in accordance with section 2 of Rule 39, and allow withdrawal of the appeal.

(b) Except in civil cases decided under the Rule on Summary Procedure, the appeal shall stay the judgment or final order unless the Court of Appeals, the law, or these Rules shall provide otherwise.

Submission for decision.—

If the petition is given due course, the Court of Appeals may set the case

1. For oral argument

2. Or require the parties to submit memoranda within a period of fifteen (15) days from notice.

RULE 43 - APPEALS FROM THE COURT OF TAX APPEALS AND QUASI-JUDICIAL AGENCIES TO THE COURT OF APPEALS

Scope.— Rule 43 applies to appeals from judgments or final orders of the:

1. Court of Tax Appeals and

2. Any quasi-judicial agency in the exercise of its quasi-judicial functions.

2.1. Civil Service Commission,

2.2. Central Board of Assessment Appeals,

2.3. Securities and Exchange Commission,

2.4. Office of the President,

2.5. Land Registration Authority,

2.6. Social Security Commission,

2.7. Civil Aeronautics Board,

2.8. Bureau of Patents, Trademarks and Technology Transfer,

2.9. National Electrification Administration,

2.10. Energy Regulatory Board,

2.11. National Telecommunications Commission,

2.12. Department of Agrarian Reform under Republic Act No. 6657,

2.13. Government Service Insurance System,

2.14. Employees Compensation Commission,

2.15. Agricultural Inventions Board,

2.16. Insurance Commission,

2.17. Philippine Atomic Energy Commission,

2.18. Board of Investments,

2.19. Construction Industry Arbitration Commission, and

2.20. Voluntary arbitrators authorized by law.

Cases not covered.— Rule 43 does not apply to judgments or final orders issued under the Labor Code of the Philippines – i.e., Labor Arbiter, NLRC En Banc/Division.

Period of appeal.— Fifteen (15) days.

1. Only one (1) motion for reconsideration shall be allowed.

2. Pay the appeal docket fee with the CA.

3. Court of Appeals may grant an additional period of fifteen (15) days only within which to file the petition for review.

4. No further extension shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days.

How appeal taken..— Verified petition for review

1. Seven (7) legible copies with the Court of Appeals,

2. Proof of service of a copy thereof on the adverse party and on the court or agency a quo.

3. The original copy of the petition intended for the Court of Appeals shall be indicated as such by the petitioner.

4. Upon the filing of the petition, the petitioner shall pay to the CA clerk of court the docketing and other lawful fees and deposit for costs.

5. Exemption from payment of docketing and other lawful fees and the deposit for costs may be granted by the Court of Appeals upon a verified motion setting forth valid grounds therefor. If denied, must pay the docket fees/deposit w/in 15 days.

Contents of the Petition.—

1. Full names of the parties to the case, without impleading the court or agencies either as petitioners or respondents;

2. Specific material dates showing that it was filed within the period fixed herein.

3. Concise statement of the facts

4. Issues involved

5. Grounds relied upon for the review;

6. Accompanied by a clearly legible duplicate original or a certified true copy of the award, judgment, final order or resolution appealed from,

7. Certified true copies of such material portions of the record referred to therein and other supporting papers;

8. Verification and AFS Certif.

9. Explanation

10. CD of pleading and annexes (PDF format) – not yet applied as of Dec. 27, 2013.

Action on the petition.—The Court of Appeals may

1. Require the respondent to file a comment on the petition, not a motion to dismiss, within ten (10) days from notice,

2. Or dismiss the petition if it finds the same

2.1. to be patently without merit,

2.2. prosecuted manifestly for delay,

2.3. or that the questions raised therein are too unsubstantial to require consideration.

Contents of Comment.— Seven (7) legible copies

1. Accompanied by clearly legible certified true copies of such material portions of the record referred to therein together with other supporting papers.

2. Point out insufficiencies or inaccuracies in petitioner’s statement of facts and issues;

3. State the reasons why the petition should be denied or dismissed.

4. A copy thereof shall be served on the petitioner,

5. Affidavit of service

6. Explanation

7. CD of pleading/annexes – not yet mandatory as of Dec. 27, 2013.

Due course.—If the Court of Appeals finds prima facie that the court or agency concerned has committed errors of fact or law that would warrant reversal or modification of the award, judgment, final order or resolution sought to be reviewed, it may give due course to the petition; otherwise, it shall dismiss the same.

Factual Findings. - The findings of fact of the court or agency concerned, when supported by substantial evidence, shall be binding on the Court of Appeals.

Effect of appeal—The appeal shall not stay the award, judgment, final order of resolution sought to be reviewed unless the Court of Appeals shall direct otherwise upon such terms as it may deem just.

Remedy – Integrate a motion for TRO in the petition for review.

Submission for decision.—If the petition is given due course, the Court of Appeals may set the case for oral argument or require the parties to submit memoranda within a period of fifteen (15) days from notice.

PROCEDURE IN THE COURT OF APPEALS

RULE 44 - ORDINARY APPEALED CASES

Appellant’s brief.— Forty-five (45) days to file from receipt of notice from CA. Seven (7) copies. With proof of service of two (2) copies thereof upon the appellee.

Appellee’s brief—Forty-five (45) days from receipt of the appellant’s brief. Seven (7) copies. With proof of service of two (2) copies thereof upon the appellant.

Appellant’s reply brief.—Twenty (20) days from receipt of the appellee’s brief. Answer points in the appellee’s brief not covered in his main brief of appellant.

Time of filing memoranda in special cases.—In certiorari, prohibition, mandamus, quo warranto and habeas corpus cases, the parties shall file, in lieu of briefs, their respective memoranda within a non-extendible period of thirty (30) days from receipt of the notice issued by the clerk that all the evidence, oral and documentary, is already attached to the record.

Failure of the appellant to file his memorandum within the period therefor may be a ground for dismissal of the appeal.

Extension of time for filing briefs.—Extension of time for the filing of briefs will not be allowed, except for good and sufficient cause, and only if the motion for extension is filed before the expiration of the time sought to be extended.

Contents of appellant’s brief.— In the order herein indicated:

(a) A subject index of the matter in the brief

>with a digest of the arguments and page references, and

>table of cases alphabetically arranged, textbooks and statutes cited with references to the pages where they are cited;

(b) Assignment of errors numbered consecutively;

>nature of the action,

>summary of the proceedings,

> appealed rulings and orders of the court,

>nature of the judgment and

>any other matters necessary to an understanding of the nature of the controversy,

>with page references to the record;

(d) “Statement of Facts” –

>Facts admitted by both parties

> Facts in controversy,

> With the substance of the proof relating thereto

> With page references to the record;

(e) Statement of the issues of fact or law

(f) “Argument” –

>Appellant’s arguments on each assignment of error

> With page references to the record.

> The authorities relied upon shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found:

(g) “Relief” - a specification of the order or judgment which the appellant seeks; and

(h) Appellant’s brief shall contain, as an appendix, a copy of the judgment or final order appealed from.

Contents of appellee’s brief.— In the order herein indicated, the following:

(a) Subject Index

(b) “Statement of Facts” - Appellee shall state that he accepts the statement of facts in the appellant’s brief, or under the heading “Counter-Statement of Facts,” he shall point out such insufficiencies or inaccuracies as he believes exist in the appellant’s statement of facts with references to the pages of the record in support thereof, but without repetition of matters in the appellant’s statement of facts; and

(c) “Argument” - the appellee shall set forth his arguments in the case on each assignment of error with page references to the record.

> The authorities relied on shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found.

Questions that may be raised on appeal.- Appellant may include in his assignment of errors any question of law or fact that has been raised in the court below and which is within the issues framed by the parties.

Ø Note - He cannot raise a new issue for the first time on appeal.

RULE 45 - APPEAL BY CERTIORARI TO THE SUPREME COURT

Verified petition with Supreme Court.— Appeal by certiorari from a judgment or final order or resolution of

1. Court of Appeals,

2. the Sandiganbayan,

3. Regional Trial Court

4. or other courts whenever authorized by law

>Verified – jurat must cite govt-issued ID

> AFS Certif. – jurat must cite govt-issued ID

> Raise only questions of law

> Explanation

> Affid. of Service – jurat must cite govt-issued ID

> CD of pleading and annexes (PDF format). May be emailed to SC.

> IBP #, MCLE #, PTR #/date, IBP Chapter, Attys. Roll No.

Time for filing; extension.—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.

On motion duly filed and served, with full payment of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the Supreme Court may for justifiable reasons grant an extension of thirty (30) days only within which to file the petition.

Contents of petition—Eighteen (18) copies. Original copy intended for the court being indicated as such by the petitioner.

1. Full name of the appealing party as the petitioner and the adverse party as respondent, without impleading the lower courts or judges thereof either as petitioners or respondents;

2. Material dates showing when notice of the judgment or final order or resolution subject thereof was received, when a motion for new trial or reconsideration, if any, was filed and when notice of the denial thereof was received;

3. Statement of the matters involved,

4. Reasons or Arguments relied on for the allowance of the petition;

5. Accompanied by:

>a clearly legible duplicate original, or a certified true copy of the judgment or final order or resolution certified by the clerk of court of the court a quo and the requisite number of plain copies thereof,

> and such material portions of the record as would support the petition;

6. Verification and AFS certification

Dismissal or denial of petition by MINUTE RESOLUTION.—

1. failure of the petitioner to comply with any of the requirements regarding

> payment of the docket and other lawful fees, deposit for costs,

> proof of service of the petition,

> the contents of petition

> the documents which should accompany the petition

> The Supreme Court may on its own initiative deny the petition on the ground that

· the appeal is without merit,

· is prosecuted manifestly for delay,

· that the questions raised therein are too unsubstantial to require consideration.

Review discretionary under Rule 45.—A review is not a matter of right, but of sound judicial discretion, and will be granted only when there are special and important reasons therefor. When allowed:

(a) When the court a quo has decided a question of substance, not theretofore determined by the Supreme Court, or has decided it in a way probably not in accord with law or with the applicable decisions of the Supreme Court; or

(b) When the court a quo has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lower court, as to call for an exercise of the power of supervision.

Pleadings and documents that may be required; sanctions.—

1. Supreme Court may require or allow the filing of such pleadings, briefs, memoranda or documents as it may deem necessary within such periods and under such conditions as it may consider appropriate.

2. It may impose the corresponding sanctions in case of non-filing or unauthorized filing of such pleadings and documents or noncompliance with the conditions thereof.

Due course; elevation of records.—If the petition is given due course, the Supreme Court may require the elevation of the complete record of the case or specified parts thereof within fifteen (15) days from notice.

RULE 46 - ORIGINAL CASES (Court of Appeals)

To what actions applicable.—This Rule shall apply to original actions for certiorari, prohibition, mandamus and quo warranto.

>Actions for annulment of judgment shall be governed by Rule 47,

>Certiorari, prohibition and mandamus by Rule 65,

>Quo warranto by Rule 66.

Contents and filing of petition; effect of non-compliance with requirements.—The petition shall contain

1. Full names and actual addresses of all the petitioners and respondents,

2. Concise statement of the matters involved,

3. Factual background of the case,

4. Grounds relied upon for the relief prayed for.

5. In actions filed under Rule 65:

>material dates showing when notice of the judgment or final order or resolution subject thereof was received, when a motion for new trial or reconsideration, if any, was filed and when notice of the denial thereof was received.

6. Seven (7) clearly legible copies

7. Affid. of service

8. Original copy intended for the court indicated as such by the petitioner

9. Accompanied by:

> a clearly legible duplicate original or certified true copy of the judgment, order, resolution, or ruling subject thereof,

>such material portions of the record as are referred to therein,

>and other documents relevant or pertinent thereto.

10. Verification

11. AFS Certif.

12. Pay the corresponding docket and other lawful fees to the clerk of court and deposit the amount of P500.00 for costs at the time of the filing of the petition.

Dismissal by minute resolution. - The failure of the petitioner to comply with any of the foregoing requirements shall be sufficient ground for the dismissal of the petition.

Effect of failure to file comment.—When no comment is filed by any of the respondents, the case may be decided on the basis of the record, without prejudice to any disciplinary action which the court may take against the disobedient party.

RULE 50 - DISMISSAL OF APPEAL (Court of Appeals)

Grounds for dismissal of appeal—An appeal may be dismissed by the Court of Appeals, on its own motion or on that of the appellee, on the following grounds:

(a) Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by these Rules;

(b) Failure to file the notice of appeal or the record on appeal within the period prescribed by these Rules;

(d) Unauthorized alterations, omissions or additions in the approved record on appeal as provided in section 4 of Rule 44;

(e) Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by these Rules;

(f) Absence of specific assignment of errors in the appellant’s brief, or of page references to the record as required in section 13, paragraphs (a), (c), (d) and (f) of Rule 44;

(g) Failure of the appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order;

(h) Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply with orders, circulars, or directives of the court without justifiable cause; and

(i) The fact that order or judgment appealed from is not appealable.

Dismissal of improper appeal to the Court of Appeals

1. An appeal under Rule 41 taken from the Regional Trial Court to the Court of Appeals raising only questions of law shall be dismissed, issues purely of law not being reviewable by said court.

Ø Use Rule 45 – petition for review on certiorari directly to the SC. – pure questions of law.

2. An appeal by notice of appeal instead of by petition for review from the appellate judgment of a Regional Trial Court shall be dismissed.

3. An appeal erroneously taken to the Court of Appeals shall not be transferred to the appropriate court but shall be dismissed outright.

PROCEDURE IN THE SUPREME COURT

RULE 56 - ORIGINAL AND APPEALED CASES

A. Original Cases

Original cases cognizable.—

1. Certiorari, prohibition, mandamus,

2. quo warranto,

3. habeas corpus,

4. disciplinary proceedings against members of the judiciary and attorneys,

5. and cases affecting ambassadors, other public ministers and consuls may be filed originally in the Supreme Court.

B. Appealed Cases

Mode of appeal—An appeal to the Supreme Court may be taken only by a petition for review on certiorari,

>except in criminal cases where the penalty imposed is

1. death – automatic review,

2. reclusion perpetua or life imprisonment – notice of appeal to the CA (not SC, PP v. Mateo).

Grounds for dismissal of appeal.—The appeal may be dismissed motu proprio or on motion of the respondent:

(a) Failure to take the appeal within the reglementary period;

(b) Lack of merit in the petition;

(d) Failure to comply with the requirements regarding proof of service and contents of and the documents which should accompany the petition;

(e) Failure to comply with any circular, directive or order of the Supreme Court without justifiable cause;

(f) Error in the choice or mode of appeal; and

(g) The fact that the case is not appealable to the Supreme Court.

Disposition of improper appeal.—

1. Except as provided in section 3, Rule 122 regarding appeals in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment, an appeal taken to the Supreme Court by notice of appeal shall be dismissed.

2. An appeal by certiorari taken to the Supreme Court from the Regional Trial Court submitting issues of fact may be referred to the Court of Appeals for decision or appropriate action. The determination of the Supreme Court on whether or not issues of fact are involved shall be final.

Procedure if opinion is equally divided.—Where the court en banc is equally divided in opinion, or the necessary majority cannot be had:

1. the original action commenced in the court shall be dismissed;

2. in appealed cases, the judgment or order appealed from shall stand affirmed;

3. and on all incidental matters, the petition or motion shall be denied.

Note - Majority vote of SC Division/En Banc needed to reverse decisions and rulings of lower courts.