2019 PROPOSED AMENDMENTS TO THE REVISED RULES ON EVIDENCE [A.M. No. 19-08-15-SC]

Author’s note: I made this post so it would be easier for anyone to copy-paste the provisions of the new Rules. (Yes, these Rules have already been approved.) Copying and pasting from the scanned PDF is difficult and requires reformatting.

All italics and underlines are copied from the original: http://sc.judiciary.gov.ph/9282/. Provisions are verbatim. I make no guarantees as to the correctness of this post. Always check the original.

Again, as usual, this post was prepared by a non-lawyer. Always verify and consult with a duly-licensed lawyer.


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The 2019 Proposed Amendments to the Revised Rules on Evidence shall take effect on May 1, 2020, following its publication in the Official Gazette or in two newspapers of national circulation.

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RULE 128

GENERAL PROVISIONS

 

Section 1. Evidence defined. – Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact. (1)

Sec. 2. Scope. – The rules of evidence shall be the same in all courts and in all trials and hearings, except as otherwise provided by law or these rules. (2)

Sec. 3. Admissibility of evidence. – Evidence is admissible when it is relevant to the issue and is not excluded by the Constitution, the law or these rules. (3a)

Sec. 4. Relevancy; collateral matters. – Evidence must have such a relation to the fact in issue as to induce belief in its existence or non-existence. Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish the probability or improbability of the fact in issue. (4)

 

 

RULE 129

WHAT NEED NOT BE PROVED

 

Section 1. Judicial notice, when mandatory. – A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, official acts of the legislative, executive and judicial departments of the National Government of the Philippines, the laws of nature, the measure of time, and the geographical divisions. (1a)

Sec. 2. Judicial notice, when discretionary. – A court may take judicial notice of matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions. (2)

Sec. 3. Judicial notice, when hearing necessary. – During the pre-trial and the trial, the court, motu proprio or upon motion, shall hear the parties on the propriety of taking judicial notice of any matter.

Before judgment or on appeal, the court, motu proprio or upon motion, may take judicial notice of any matter and shall hear the parties thereon if such matter is decisive of a material issue in the case. (3a)

Sec. 4. Judicial admissions. – An admission, oral or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that the imputed admission was not, in fact, made. (4a)

 

RULE 130

RULES OF ADMISSIBILITY

 

A. OBJECT (REAL) EVIDENCE

 

Section 1. Object as evidence. – Objects as evidence are those addressed to the senses of the court. When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. (1)

 

B. DOCUMENTARY EVIDENCE

 

Sec. 2. Documentary evidence. – Documents as evidence consist of writings, recordings, photographs or any material containing letters, words, sounds, numbers, figures, symbols or their equivalent, or other modes of written expression offered as proof of their contents. Photographs include still pictures, drawings, stored images, x-ray films, motion pictures or videos. (n)

 

1. Original Document Rule

 

Sec. 3. Original document must be produced; exceptions. – When the subject of inquiry is the contents of a document, writing, recording, photograph or other record, no evidence is other than the original document itself, except in the following cases:

(a) When the original is lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror;

(b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice, or the original cannot be obtained by local judicial processes or procedures;

(c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole;

(d) When the original is a public record in the custody of a public officer or is recorded in a public office; and

(e) When the original is not closely-related to a controlling issue. (3a)

Sec. 4. Original of document. –

(a) An “original” of a document is the document itself or any counterpart intended to have the same effect by a person executing or issuing it. An “original” of a photograph includes the negative or any print therefrom. If data is stored in a computer or similar device, any printout or other output readable by sight or other means, shown to reflect the data accurately, is an “original”.

(b) A “duplicate” is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduce the original.

(c) A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original, or (2) in the circumstances, it is unjust or inequitable to admit the duplicate in lieu of the original. (4a)

 

2. Secondary Evidence

 

Sec. 5. When original document is unavailable. – When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his or her part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated. (5a)

Sec. 6. When original document is in adverse party’s custody or control. – If the document is in the custody of under the control of the adverse party, he or she must have reasonable notice to produce it. If after such notice and after satisfactory proof of its existence, he or she fails to produce the document, secondary evidence may be presented as in the case of its loss. (6a)

Sec. 7. Summaries. – When the contents of documents, records, photographs, or numerous accounts are voluminous and cannot be examined in court without great loss of time, and the fact sought to be established is only the general result of the whole, the contents of such evidence may be presented in the form of a chart, summary, or calculation.

The originals shall be available for examination or copying, or both, by the adverse party at a reasonable time and place. The court may order that they be produced in court. (n)

Sec. 8. Evidence admissible when original document is a public record. – When the original of a document is in the custody of a public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof. (7)

Sec. 9. Party who calls for document not bound to offer it. – A party who calls for the production of a document and inspects the same is not obliged to offer it as evidence. (8)

 

3. Parol Evidence Rule

 

Sec. 10. Evidence of written agreements. – When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, as between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement.

However, a party may present evidence to modify, explain or add to the terms of the written agreement if he or she puts in issue in a verified pleading:

(a) An intrinsic ambiguity, mistake or imperfection in the written agreement;

(b) The failure of the written agreement to express the true intent and agreement of the parties thereto;

(c) The validity of the written agreement; or

(d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement.

The term “agreement” includes wills. (9a)

 

4. Interpretation of Documents

 

Sec. 11. Interpretation of a writing according to its legal meaning. – The language of a writing is to be interpreted according to the legal meaning it bears in the place of its execution, unless the parties intended otherwise. (10)

Sec. 12. Instrument construed so as to give effect to all provisions. – In the construction of an instrument where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all. (11)

Sec. 13. Interpretation according to intention; general and particular provisions. – In the construction of an instrument, the intention of the parties is to be pursued; and when a general and a particular provision are inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is inconsistent with it. (12)

Sec. 14. Interpretation according to circumstances. – For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject thereof and of the parties to it, may be shown, so that the judge may be placed in the position of those whose language he or she is to interpret. (13)

Sec. 15. Peculiar signification of terms. – The terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is admissible to show that they have a local, technical, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement must be construed accordingly. (14)

Sec. 16. Written words control printed. – When an instrument consists partly of written words and partly of a printed form, and the two are inconsistent, the former controls the latter. (15)

Sec. 17. Experts and interpreters to be used in explaining certain writings. – When the characters in which an instrument is written are difficult to be deciphered, or the language is not understood by the court, the evidence of persons skilled in deciphering the characters, or who understand the language, is admissible to declare the characters or the meaning of the language. (16)

Sec. 18. Of two constructions, which preferred. – When the terms of an agreement have been intended in a different sense by the different parties to it, that sense is to prevail against either partly in which he or she supposed the other understood it, and when different constructions of a provision are otherwise equally proper, that is to be taken which is the most favorable to the party in whose favor the provision was made. (17)

Sec. 19. Construction in favor of natural right. – When an instrument is equally susceptible of two interpretations, one in favor of natural right and the other against it, the former is to be adopted. (18)

Sec. 20. Interpretation according to usage. – An instrument may be construed according to usage, in order to determine its true character. (19)

 

C. TESTIMONIAL EVIDENCE

 

1. Qualification of Witnesses

 

Sec. 21. Witnesses; their qualifications. — All persons who can perceive, and perceiving, can make known their perception to others, may be witnesses. (20a)

Religious or political belief, interest in the outcome of the case, or conviction of a crime, unless otherwise provided by law, shall not be a ground for disqualification. (18a)

[Section 21. Disqualification by reason of mental incapacity or immaturity. — (Deleted)]

Sec. 22. Testimony confined to personal knowledge. — A witness can testify only to those facts which he or she knows of his or her personal knowledge; that is, which are derived from his or her own perception. (36a)

Sec. 23. Disqualification by reason of marriage. — During their marriage, the husband or the wife cannot testify against the other without the consent of the affected spouse, except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants. (22a)

Sec. 24. Disqualification by reason of privileged communication. — The following persons cannot testify as to matters learned in confidence in the following cases:

(a) The husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants.

(b) An attorney or person reasonably believed by the client to be licensed to engage in the practice of law cannot, without the consent of the client, be examined as to any communication made by the client to him or her, or his or her advice given thereon in the course of, or with a view to, professional employment, nor can an attorney’s secretary, stenographer, or clerk, or other persons assisting the attorney be examined without the consent of the client and his or her employer, concerning any fact the knowledge of which has been acquired in such capacity, except in the following cases:

(i) Furtherance of crime or fraud. If the services or advice of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;

(ii) Claimants through same deceased client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate or by inter vivos transaction;

(iii) Breach of duty by lawyer or client. As to a communication relevant to an issue of breach of duty by the lawyer to his or her client, or by the client to his or her lawyer;

(iv) Document attested by the lawyer. As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; or

(v) Joint clients. As to a communication relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients, unless they have expressly agreed otherwise.

(c) A physician, psychotherapist or person reasonably believed by the patient to be authorized to practice medicine or psychotherapy cannot in a civil case, without the consent of the patient, be examined as to any confidential communication made for the purpose of diagnosis or treatment of the patient’s physical, mental or emotional condition, including alcohol or drug addiction, between the patient and his or her physician or psychotherapist. This privilege also applies to persons, including members of the patient’s family, who have participated in the diagnosis or treatment of the patient under the direction of the physician or psychotherapist.

A “psychotherapist” is:

(a) A person licensed to practice medicine engaged in the diagnosis or treatment of a mental or emotional condition, or

(b) A person licensed as a psychologist by the government while similarly engaged.

(d) A minister, priest or person reasonably believed to be so cannot, without the consent of the affected person, be examined as to any communication or confession made to or any advice given by him or her, in his or her professional character in the course of discipline enjoined by the church to which the minister or priest belongs.

(e) A public officer cannot be examined during or after his or her tenure as to communications made to him or her in official confidence, when the court finds that the public interest would suffer by the disclosure. (21a)

The communication shall remain privileged, even in the hands of a third person who may have obtained the information, provided that the original parties to the communication took reasonable precaution to protect its confidentiality. (24a)

 

2. Testimonial Privilege

 

Sec. 25. Parental and filial privilege. — No person shall be compelled to testify against his or her parents, other direct ascendants, children or other direct descendants, except when such testimony is indispensable in a crime against that person or by one parent against the other. (25a)

Sec. 26. Privilege relating to trade secrets. — A person cannot be compelled to testify about any trade secret, unless the non-disclosure will conceal fraud or otherwise work injustice. When disclosure is directed, the court shall take such protective measure as the interest of the owner of the trade secret and of the parties and the furtherance of justice may require. (n)

 

3. Admissions and Confessions

 

Sec. 27. Admission of a party. — The act, declaration or omission of a party as to a relevant fact may be given in evidence against him or her. (26a)

Sec. 28. Offer of compromise not admissible. — In civil cases, an offer of compromise is not an admission of any liability, and is not admissible in evidence against the offeror. Neither is evidence of conduct nor statements made in compromise negotiations admissible, except evidence otherwise discoverable or offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to be compromised, an offer of compromised by the accused may be received in evidence as an implied admission of guilt.

A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to lesser offense, is not admissible in evidence against the accused who made the plea or offer. Neither is any statement made in the course of plea bargaining with the prosecution, which does not result in a plea of guilty or which results in a plea of guilty later withdrawn, admissible.

An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is not admissible in evidence as proof of civil or criminal liability for the injury. (27a)

Sec. 29. Admission by third party. — The rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided. (28)

Sec. 30. Admission by co-partner or agent. — The act or declaration of a partner or agent authorized by the party to make a statement concerning the subject, or within the scope of his or her authority, and during the existence of the partnership or agency, may be given in evidence against such party after the partnership or agency is shown by evidence other than such act or declaration. The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party. (29a)

Sec. 31. Admission by conspirator. — The act or declaration of a conspirator in furtherance of the conspiracy and during its existence may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act of declaration. (30a)

Sec. 32. Admission by privies. — Where one derives title to property from another, the latter’s act, declaration, or omission in relation to the property, is evidence against the former if done while the latter was holding the title. (31a)

Sec. 33. Admission by silence. — An act or declaration made in the presence and within the hearing or observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him or her to do so, may be given in evidence against him or her. (32a)

Sec. 34. Confession. — The declaration of an accused acknowledging his or her guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him or her. (33a)

 

4. Previous Conduct as Evidence

 

Sec. 35. Similar acts as evidence. — Evidence that one did or did not do a certain thing at one time is not admissible to prove that he or she did or did not do the same or similar thing at another time; but it may be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or usage, and the like. (34a)

Section 36. Unaccepted offer. — An offer in writing to pay a particular sum of money or to deliver a written instrument or specific personal property is, if rejected without valid cause, equivalent to the actual production and tender of the money, instrument, or property. (35)

[Sec. 36. Testimony generally confined to personal knowledge; hearsay excluded. (Transposed to Sec. 22. Testimony confined to personal knowledge.)]

 

5. Hearsay

Sec. 37. Hearsay. Hearsay is a statement other than one made by the declarant while testifying at a trial or hearing, offered to prove the truth of the facts asserted therein. A statement is (1) an oral or written assertion or (2) a non-verbal conduct of a person, if it is intended by him or her as an assertion. Hearsay evidence is inadmissible except as otherwise provided in these Rules.

A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (a) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition; (b) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive; or (c) one of identification of a person made after perceiving him or her. (n)

 

6. Exceptions To The Hearsay Rule

 

Sec. 38. Dying declaration. — The declaration of a dying person, made under the consciousness of an impending death, may be received in any case wherein his or her death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death. (37a)

Sec. 39. Statement of decedent or person of unsound mind. In an action against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such deceased person or against such person of unsound mind, where a party or assignor of a party or a person in whose behalf a case is prosecuted testifies on a matter of fact occurring before the death of the deceased person or before the person became of unsound mind, any statement of the deceased or the person of unsound mind, may be received in evidence if the statement was made upon the personal knowledge of the deceased or the person of unsound mind at a time when the matter had been recently perceived by him or her and while his or her recollection was clear. Such statement, however, is inadmissible if made under circumstances indicating its lack of trustworthiness. (23a)

Sec. 40. Declaration against interest. — The declaration made by a person deceased or unable to testify against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to the declarant’s own interest that a reasonable person in his or her position would not have made the declaration unless he or she believed it to be true, may be received in evidence against himself or herself or his or her successors in interest and against third persons. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. (38a)

Sec. 41. Act or declaration about pedigree. — The act or declaration of a person deceased or unable to testify, in respect to the pedigree of another person related to him or her by birth, adoption, or marriage or, in the absence thereof, with whose family he or she was so intimately associated as to be likely to have accurate information concerning his or her pedigree, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word “pedigree” includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these fast occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. (39a)

Sec. 42. Family reputation or tradition regarding pedigree. — The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity, affinity, or adoption. Entries in family bibles or other family books or charts, engravings on rings, family portraits and the like, may be received as evidence of pedigree. (40a)

Sec. 43. Common reputation. — Common reputation existing previous to the controversy, as to boundaries of or customs affecting lands in the community and reputation as to events of general history important to the community, or respecting marriage or moral character, may be given in evidence. Monuments and inscriptions in public places may be received as evidence of common reputation. (41a)

Sec. 44. Part of the res gestae. — Statements made by a person while a starting occurrence is taking place or immediately prior or subsequent thereto, under the stress of excitement caused by the occurrence with respect to the circumstances thereof, may be given in evidence as part of res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae. (42a)

Sec. 45. Records of regularly conducted business activity. — A memorandum, report, record or data compilation of acts, events, conditions, opinions, or diagnoses, made by writing, typing, electronic, optical or other similar means at or near the time of or from transmission or supply of information by a person with knowledge thereof, and kept in the regular course or conduct of a business activity, and such was the regular practice to make the memorandum, report, record, or data compilation by electronic, optical or similar means, all of which are shown by the testimony of the custodian or other qualified witnesses, is excepted from the rule on hearsay evidence. (43a)

Sec. 46. Entries in official records. — Entries in official records made in the performance of his or her duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated. (44a)

Sec. 47. Commercial lists and the like. — Evidence of statements of matters of interest to persons engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible as tending to prove the truth of any relevant matter so stated if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein. (45)

Sec. 48. Learned treatises. — A published treatise, periodical or pamphlet on a subject of history, law, science, or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized in his or her profession or calling as expert in the subject. (46a)

Sec. 49. Testimony or deposition at a former proceeding. — The testimony or deposition of a witness deceased or out of the Philippines or who cannot, with due diligence, be found therein, or is unavailable or otherwise unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him or her. (47a)

Sec. 50. Residual exception. – A statement not specifically covered by any of the foregoing exceptions, having equivalent circumstantial guarantees of trustworthiness, is admissible if the court determines that (a) the statement is offered as evidence of a material fact; (b) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (c) the general purposes of these rules and the interests of justice will be best served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent makes known to the adverse party, sufficient in advance of the hearing, or by the pre-trial stage in the case of a trial of the main case, to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant. (n)

 

7. Opinion Rule

 

Sec. 51. General rule. — The opinion of witness is not admissible, except as indicated in the following sections. (48)

Sec. 52. Opinion of expert witness. — The opinion of a witness on a matter requiring special knowledge, skill, experience, training or education, which he or she shown to possess, may be received in evidence. (49a)

Sec. 53. Opinion of ordinary witnesses. — The opinion of a witness for which proper basis is given, may be received in evidence regarding —

(a) The identity of a person about whom he or she has adequate knowledge;

(b) A handwriting with which he or she has sufficient familiarity; and

(c) The mental sanity of a person with whom he or she is sufficiently acquainted.

The witness may also testify on his or her impressions of the emotion, behavior, condition or appearance of a person. (50a)

 

8. Character Evidence

 

Sec. 54. Character evidence not generally admissible; exceptions. — Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(a) In Criminal Cases:

(1) The character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged.

(2) The accused may prove his or her good moral character, pertinent to the moral trait involved in the offense charged. However, the prosecution may not prove his or her bad moral character unless on rebuttal.

(b) In Civil Cases:

Evidence of the moral character of a party in civil case is admissible only when pertinent to the issue of character involved in the case.

(c) In Criminal and Civil Cases:

Evidence of the good character of a witness is not admissible until such character has been impeached.

In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

In cases in which character or a trait of character of a person is an essential element of a charge, claim or defense, proof may also be made of specific instances of that person’s conduct. (51a; 14, Rule 132)

 

RULE 131

BURDEN OF PROOF, BURDEN OF EVIDENCE AND PRESUMPTIONS

 

Section 1. Burden of proof and burden of evidence. — Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his or her claim or defense by the amount of evidence required by law. Burden of proof never shifts.

Burden of evidence is the duty of a party to present evidence sufficient to establish or rebut a fact in issue to establish a prima facie case. Burden of evidence may shift from one party to the other in the course of the proceedings, depending on the exigencies of the case. (1a)

Section 2. Conclusive presumptions. — The following are instances of conclusive presumptions:

(a) Whenever a party has, by his or her own declaration, act, or omission, intentionally and deliberately led to another to believe a particular thing true, and to act upon such belief, he or she cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it; and

(b) The tenant is not permitted to deny the title of his or her landlord at the time of commencement of the relation of landlord and tenant between them. (2a)

Section 3. Disputable presumptions. — The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence:

(a) That a person is innocent of crime or wrong;

(b) That an unlawful act was done with an unlawful intent;

(c) That a person intends the ordinary consequences of his or her voluntary act;

(d) That a person takes ordinary care of his or her concerns;

(e) That evidence willfully suppressed would be adverse if produced;

(f) That money paid by one to another was due to the latter;

(g) That a thing delivered by one to another belonged to the latter;

(h) That an obligation delivered up to the debtor has been paid;

(i) That prior rents or installments had been paid when a receipt for the later one is produced;

(j) That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act; otherwise, that things which a person possess, or exercises acts of ownership over, are owned by him or her;

(k) That a person in possession of an order on himself or herself for the payment of the money, or the delivery of anything, has paid the money or delivered the thing accordingly;

(l) That a person acting in a public office was regularly appointed or elected to it;

(m) That official duty has been regularly performed;

(n) That a court, or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise of jurisdiction;

(o) That all the matters within an issue raised in a case were laid before the court and passed upon by it; and in like manner that all matters within an issue raised in a dispute submitted for arbitration were laid before the arbitrators and passed upon by them;

(p) That private transactions have been fair and regular;

(q) That the ordinary course of business has been followed;

(r) That there was a sufficient consideration for a contract;

(s) That a negotiable instrument was given or indorsed for a sufficient consideration;

(t) That an endorsement of negotiable instrument was made before the instrument was overdue and at the place where the instrument is dated;

(u) That a writing is truly dated;

(v) That a letter duly directed and mailed was received in the regular course of the mail;

(w) That after an absence of seven years, it being unknown whether or not the absentee still lives, he or she is considered dead for all purposes, except for those of succession.

The absentee shall not be considered dead for the purpose of opening his or her succession until after an absence of ten years. If he or she disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his or her succession may be opened.

The following shall be considered dead for all purposes including the division of the estate among the heirs:

(1) A person on board a vessel lost during a sea voyage, or an aircraft with is missing, who has not been heard of for four years since the loss of the vessel or aircraft;

(2) A member of the armed forces who has taken part in armed hostilities, and has been missing for four years;

(3) A person who has been in danger of death under other circumstances and whose existence has not been known for four years; and

(4) If a married person has been absent for four consecutive years, the spouse present may contract a subsequent marriage if he or she has a well-founded belief that the absent spouse is already death. In case of disappearance, where there is a danger of death, the circumstances hereinabove provided, an absence of only two years shall be sufficient for the purpose of contracting a subsequent marriage. However, in any case, before marrying again, the spouse present must institute a summary proceedings as provided in the Family Code and in the rules for declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse;

(x) That acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or fact;

(y) That things have happened according to the ordinary course of nature and ordinary nature habits of life;

(z) That persons acting as copartners have entered into a contract of co-partneship;

(aa) That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage;

(bb) That property acquired by a man and a woman who are capacitated to marry each other and who live exclusively with each other as husband and wife without the benefit of marriage or under void marriage, has been obtained by their joint efforts, work or industry.

(cc) That in cases of cohabitation by a man and a woman who are not capacitated to marry each other and who have acquire properly through their actual joint contribution of money, property or industry, such contributions and their corresponding shares including joint deposits of money and evidences of credit are equal.

(dd) That if the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary:

(1) A child born before one hundred eighty (180) days after the solemnization of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage; and

(2) A child born after one hundred eighty (180) days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage.

(ee) That a thing once proved to exist continues as long as is usual with things of the nature;

(ff) That the law has been obeyed;

(gg) That a printed or published book, purporting to be printed or published by public authority, was so printed or published;

(hh) That a printed or published book, purporting contain reports of cases adjudged in tribunals of the country where the book is published, contains correct reports of such cases;

(ii) That a trustee or other person whose duty it was to convey real property to a particular person has actually conveyed it to him or her when such presumption is necessary to perfect the title of such person or his or her successor in interest;

(jj) That except for purposes of succession, when two persons perish in the same calamity, such as wreck, battle, or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is determined from the probabilities resulting from the strength and the age of the sexes, according to the following rules:

1. If both were under the age of fifteen years, the older is deemed to have survived;

2. If both were above the age sixty, the younger is deemed to have survived;

3. If one is under fifteen and the other above sixty, the former is deemed to have survived;

4. If both be over fifteen and under sixty, and the sex be different, the male is deemed to have survived, if the sex be the same, the older; and

5. If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have survived.

(kk) That if there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, they shall be considered to have died at the same time. (3a)

Sec. 4. No presumption of legitimacy or illegitimacy. — There is no presumption of legitimacy of a child born after three hundred days following the dissolution of the marriage or the separation of the spouses. Whoever alleges the legitimacy or illegitimacy of such child must prove his or her allegation. (4a)

Sec. 5. Presumptions in civil actions and proceedings. – In all civil actions and proceedings not otherwise provided for by the law or those Rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption.

If presumptions are inconsistent, the presumption that is founded upon weightier considerations of policy shall apply. If considerations of policy are of equal weight, neither presumption applies. (n)

Sec. 6. Presumption against an accused in criminal cases. – If a presumed fact that establishes guilt, is an element of the offense charged, or negates a defense, the existence of the basic fact must be proved beyond reasonable doubt and the presumed fact follows form the basic fact beyond reasonable doubt. (n)

 

RULE 132

PRESENTATION OF EVIDENCE

 

A. EXAMINATION OF WITNESSES

 

Section 1. Examination to be done in open court. — The examination of witnesses presented in a trial or hearing shall be done in open court, and under oath or affirmation. Unless the witness is incapacitated to speak, or the questions calls for a different mode of answer, the answers of the witness shall be given orally. (1)

Sec. 2. Proceedings to be recorded. — The entire proceedings of a trial or hearing, including the questions propounded to a witness and his or her answers thereto, and the statements made by the judge or any of the parties, counsel, or witnesses with reference to the case, shall be recorded by means of shorthand or stenotype or by other means of recording found suitable by the court.

A transcript of the record of the proceedings made by the official stenographer, stenotypist or recorder and certified as correct by him or her shall be deemed prima facie a correct statement of such proceedings. (2a)

Sec. 3. Rights and obligations of a witness. — A witness must answer questions, although his or her answer may tend to establish a claim against him or her. However, it is the right of a witness:

(1) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor;

(2) Not to be detained longer than the interests of justice require;

(3) Not to be examined except only as to matters pertinent to the issue;

(4) Not to give an answer which will tend to subject him or her to a penalty for an offense unless otherwise provided by law; or

(5) Not to give an answer which will tend to degrade his or her reputation, unless it to be the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his or her previous final conviction for an offense. (3a)

Sec. 4. Order in the examination of an individual witness. — The order in which the individual witness may be examined is as follows:

(a) Direct examination by the proponent;

(b) Cross-examination by the opponent;

(c) Re-direct examination by the proponent;

(d) Re-cross-examination by the opponent. (4)

Sec. 5. Direct examination. — Direct examination is the examination-in-chief of a witness by the party presenting him or her on the facts relevant to the issue. (5a)

Sec. 6. Cross-examination; its purpose and extent. — Upon the termination of the direct examination, the witness may be cross-examined by the adverse party on any relevant matter, with sufficient fullness and freedom to test his or her accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue. (6a)

Sec. 7. Re-direct examination; its purpose and extent. — After the cross-examination of the witness has been concluded, he or she may be re-examined by the party calling him or her to explain or supplement his or her answers given during the cross-examination. On re-direct-examination, questions on matters not dealt with during the cross-examination, may be allowed by the court in its discretion. (7a)

Sec. 8. Re-cross-examination. — Upon the conclusion of the re-direct examination, the adverse party may re-cross-examine the witness on matters stated in his or her re-direct examination, and also on such other matters as may be allowed by the court in its discretion. (8a)

Sec. 9. Recalling witness. — After the examination of a witness by both sides has been concluded, the witness cannot be recalled without leave of the court. The court will grant or withhold leave in its discretion, as the interests of justice may require. (9)

Section 10. Leading and misleading questions. — A question which suggests to the witness the answer which the examining party desires is a leading question. It is not allowed, except:

(a) On cross-examination;

(b) On preliminary matters;

(c) When there is a difficulty is getting direct and intelligible answers from a witness who is ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute;

(d) Of an unwilling or hostile witness; or

(e) Of a witness who is an adverse party or an officer, director, or managing agent of a public or private corporation, or of a partnership or association which is an adverse party.

A misleading question is one which assumes as true a fact not yet testified to by the witness, or contrary to that which he or she has previously stated. It is not allowed. (10a)

Sec. 11. Impeachment of adverse party’s witness. — A witness may be impeached by the party against whom he or she was called, by contradictory evidence, by evidence that his general reputation for truth, honestly, or integrity is bad, or by evidence that he has made at other times statements inconsistent with his or her present testimony, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he or she has been convicted of an offense. (11a)

Sec. 12. Impeachment by evidence of conviction of crime. – For the purpose of impeaching a witness, evidence that he or she has been convicted by final judgment of a crime shall be admitted if (a) the crime was punishable by a penalty in excess of one year; or (b) the crime involved moral turpitude, regardless of the penalty.

However, evidence of a conviction is not admissible if the conviction has been the subject of an amnesty or annulment of the conviction. (n)

Sec. 13. Party may not impeach his or her own witness. — Except with respect to witnesses referred to in paragraphs (d) and (e) of Section 10 of this Rule, the party presenting the witness is not allowed to impeach his or her credibility.

A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing of his or her adverse interest, unjustified reluctance to testify, or his or her having misled the party into calling him or her to the witness stand.

The unwilling or hostile witness so declared, or the witness who is an adverse party, may be impeached by the party presenting him or her in all respects as if he or she had been called by the adverse party, except by evidence of his or her bad character. He or she may also be impeached and cross-examined by the adverse party, but such cross-examination must only be on the subject matter of his examination-in-chief. (12a)

Sec. 14. How witness impeached by evidence of inconsistent statements. — Before a witness can be impeached by evidence that he or she has made at other times statements inconsistent with his or her present testimony, the statements must be related to him or her, with the circumstances of the times and places and the persons present, and he or she must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing, they must be shown to the witness before any question is put to him or her concerning them. (13a)

[Sec. 14. Evidence of good character of witness. — (Incorporated in Section 54, Rule 130)]

Sec. 15. Exclusion and separation of witnesses. — The court, motu proprio or upon motion, shall order witnesses excluded so that they cannot hear the testimony of other witnesses. This rule does not authorize exclusion of (a) a party who is a natural person, (b) a duly designated representative of a juridical entity which is a party to the case, (c) a person whose presence is essential to the presentation of the party’s cause, or (d) a person authorized by a statute to be present.

The court may also cause witnesses to be kept separate and to be prevented from conversing with one another, directly or through intermediaries, until all shall have been examined. (15a)

Sec. 16. When witness may refer to memorandum. — A witness may be allowed to refresh his or her memory respecting a fact by anything written or recorded by himself or herself, or under his or her direction, at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his or her memory and he or she knew that the same was correctly written or recorded; but in such case, the writing or record must be produced and may be inspected by the adverse party, who may, if he or she chooses, cross-examine the witness upon it, and may read it in evidence. A witness may also testify from such a writing or record, though he or she retains no recollection of the particular facts, if he or she is able to swear that the writing or record correctly stated the transaction when made; but such evidence must be received with caution. (16a)

Sec. 17. When part of transaction, writing or record given in evidence, the remainder, the remainder admissible. — When part of an act, declaration, conversation, writing or record is given in evidence by one party, the whole of the same subject may be inquired into by the other, and when a detached act, declaration, conversation, writing or record is given in evidence, any other act, declaration, conversation, writing or record necessary to its understanding may also be given in evidence. (17)

Section 18. Right to inspect writing shown to witness. — Whenever a writing is shown to a witness, it may be inspected by the adverse party. (18)

 

B. AUTHENTICATION AND PROOF OF DOCUMENTS

 

Sec. 19. Classes of documents. — For the purpose of their presentation evidence, documents are either public or private.

Public documents are:

(a) The written official acts, or records of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country;

(b) Documents acknowledge before a notary public except last wills and testaments;

(c) Documents that are considered public documents under treaties and conventions which are in force between the Philippines and the country of source; and

(d) Public records, kept in the Philippines, of private documents required by law to the entered therein.

All other writings are private. (19a)

Sec. 20. Proof of private documents. — Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved by any of the following means</u?:

(a) By anyone who saw the document executed or written; or

(b) By evidence of the genuineness of the signature or handwriting of the maker; or

(c) By other evidence showing its due execution and authenticity.

Any other private document need only be identified as that which it is claimed to be. (20)

Sec. 21. When evidence of authenticity of private document not necessary. — Where a private document is more than thirty years old, is produced from the custody in which it would naturally be found if genuine, and is unblemished by any alterations or circumstances of suspicion, no other evidence of its authenticity need be given. (21)

Sec. 22. How genuineness of handwriting proved. — The handwriting of a person may be proved by any witness who believes it to be the handwriting of such person because he or she has seen the person write, or has seen writing purporting to be his or hers upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also be given by a comparison, made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. (22)

Sec. 23. Public documents as evidence. — Documents consisting of entries in public records made in the performance of a duty by a public officer are prima facie evidence of the facts therein stated. All other public documents are evidence, even against a third person, of the fact which gave rise to their execution and of the date of the latter. (23)

Sec. 24. Proof of official record. — The record of public documents referred to in paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his or her deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody.

If the office in which the record is kept is in foreign country, which is a contracting party to a treaty or convention to which the Philippines is also a party, or considered a public document under such treaty or convention pursuant to paragraph (c) of Section 19 hereof, the certificate or its equivalent shall be in the form prescribed by such treaty or convention or subject to reciprocity granted to public documents originating from the Philippines.

For documents originating from a foreign country which is not a contracting party to a treaty or convention referred to in the next preceding sentence, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office.

A document that is accompanied by a certificate or its equivalent may be presented in evidence without further proof, the certificate or its equivalent being prima facie evidence of the due execution and genuineness of the document involved. The certificate shall not be required when a treaty or convention between a foreign country and the Philippines has abolished the requirement, or has exempted the document itself from this formality. (24a)

Sec. 25. What attestation of copy must state. — Whenever a copy of a document or record is attested for the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he or she be the clerk of a court having a seal, under the seal of such court. (25a)

Sec. 26. Irremovability of public record. — Any public record, an official copy of which is admissible in evidence, must not be removed from the office in which it is kept, except upon order of a court where the inspection of the record is essential to the just determination of a pending case. (26)

Sec. 27. Public record of a private document. — An authorized public record of a private document may be proved by the original record, or by a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody. (27)

Sec. 28. Proof of lack of record. — A written statement signed by an officer having the custody of an official record or by his or her deputy that, after diligent search, no record or entry of a specified tenor is found to exist in the records of his or her office, accompanied by a certificate as above provided, is admissible as evidence that the records of his or her office contain no such record or entry. (28a)

Sec. 29. How judicial record impeached. — Any judicial record may be impeached by evidence of:

(a) want of jurisdiction in the court or judicial officer;
(b) collusion between the parties; or
(c) fraud in the party offering the record, in respect to the proceedings. (29)

Sec. 30. Proof of notarial documents. — Every instrument duly acknowledged or proved and certified as provided by law, may be presented in evidence without further proof, the certificate of acknowledgment being prima facie evidence of the execution of the instrument or document involved. (30)

Sec. 31. Alteration in document, how to explain. — The party producing a document as genuine which has been altered and appears to have been altered after its execution, in a part material to the question in dispute, must account for the alteration. He or she may show that the alteration was made by another, without his or her concurrence, or was made with the consent of the parties affected by it, or was otherwise properly or innocent made, or that the alteration did not change the meaning or language of the instrument. If he or she fails to do that, the document shall not be admissible in evidence. (31a)

Sec. 32. Seal. — There shall be no difference between sealed and unsealed private documents insofar as their admissibility as evidence is concerned. (32)

Sec. 33. Documentary evidence in an unofficial language. — Documents written in an unofficial language shall not be admitted as evidence, unless accompanied with a translation into English or Filipino. To avoid interruption of proceedings, parties or their attorneys are directed to have such translation prepared before trial. (33)

 

C. OFFER AND OBJECTION

 

Sec. 34. Offer of evidence. — The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. (34)

Sec. 35. When to make offer. — All evidence must be offered orally.

The offer of the testimony of a witness in evidence must be made at the time the witness is called to testify.

The offer of documentary and object evidence shall be made after the presentation of a party’s testimonial evidence. (35a)

Sec. 36. Objection. — Objection to offer of evidence must be made orally immediately after the offer is made.

Objection to the testimony of a witness for lack of a formal offer must be made as soon as the witness begins to testify, Objection to a question propounded in the course of the oral examination of a witness must be made as soon as the grounds therefor shall become reasonably apparent.

The grounds for the objections must be specified. (36a)

Sec. 37. When repetition of objection unnecessary. — When it becomes reasonably apparent in the course of the examination of a witness that the question being propounded are of the same class as those to which objection has been made, whether such objection was sustained or overruled, it shall not be necessary to repeat the objection, it being sufficient for the adverse party to record his or her continuing objection to such class of questions. (37a)

Sec. 38. Ruling. — The ruling of the court must be given immediately after the objection is made, unless the court desires to take a reasonable time to inform itself on the question presented; but the ruling shall always be made during the trial and at such time as will give the party against whom it is made an opportunity to meet the situation presented by the ruling.

The reason for sustaining or overruling an objection need not be stated. However, if the objection is based on two or more grounds, a ruling sustaining the objection on one or some of them must specify the ground or grounds relied upon. (38)

Sec. 39. Striking out answer. — Should a witness answer the question before the adverse party had the opportunity to voice fully its objection to the same, or where a question is not objectionable, but the answer is not responsive, or where a witness testifies without a question being posed or testifies beyond limits set by the court, or when the witness does a narration instead of answering the question, and such objection is found to be meritorious, the court shall sustain the objection and order the answer given to be stricken off the record.

On proper motion, the court may also order the striking out of answers which are incompetent, irrelevant, or otherwise improper. (39a)

Sec. 40. Tender of excluded evidence. — If documents or things offered in evidence are excluded by the court, the offeror may have the same attached to or made part of the record. If the evidence excluded is oral, the offeror may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony. (40)

 

RULE 133

WEIGHT AND SUFFICIENCY OF EVIDENCE

 

Sec. 1. Preponderance of evidence, how determined. — In civil cases, the party having the burden of proof must establish his or her case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider all the facts and circumstances of the case, the witnesses’ manner of testifying, their intelligence, their means and opportunity of knowing the facts to which there are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number. (1a)

Sec. 2. Proof beyond reasonable doubt. — In a criminal case, the accused is entitled to an acquittal, unless his or her guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof, excluding possibility of error, produces absolute certainly. Moral certainly only is required, or that degree of proof which produces conviction in an unprejudiced mind. (2a)

Sec. 3. Extrajudicial confession, not sufficient ground for conviction. — An extrajudicial confession made by an accused, shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti. (3)

Section 4. Circumstantial evidence, when sufficient. — Circumstantial evidence is sufficient for conviction if:

(a) There is more than one circumstance;

(b) The facts from which the inferences are derived are proven; and

(c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.

Inferences cannot be based on other inferences. (4a)

Sec. 5. Weight to be given opinion of expert witness, how determined. – In any case where the opinion of an expert witness is received in evidence, the court has a wide latitude of discretion in determining the weight to be given to such opinion, and for that purpose may consider the following:

(a) Whether the opinion is based upon sufficient facts or data;

(b) Whether it is the product of reliable principles and methods;

(c) Whether the witness has applied the principles and methods reliably to the facts of the case; and

(d) Such other factors as the court may deem helpful to make such determination. (n)

Sec. 6. Substantial evidence. — In cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. (5n)

Sec. 7. Power of the court to stop further evidence. — The court may stop the introduction of further testimony upon any particular point when the evidence upon it is already so full that more witnesses to the same point cannot be reasonably expected to be additionally persuasive. This power shall be exercised with caution. (6a)

Sec. 8. Evidence on motion. — When a motion is based on facts not appearing of record, the court may hear the matter on affidavits or depositions presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions. (7)

2019 PROPOSED AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE [A.M. No. 19-10-20-SC]

Author’s note: I made this post so it would be easier for anyone to copy-paste the provisions of the new Rules. (Yes, these Rules have already been approved.) Copying and pasting from the scanned PDF is difficult and requires reformatting.

All italics and underlines are copied from the original: http://sc.judiciary.gov.ph/9284/. Provisions are verbatim. I make no guarantees as to the correctness of this post. Always check the original.

Again, as usual, this post was prepared by a non-lawyer. Always verify and consult with a duly-licensed lawyer.


RULE 6
KINDS OF PLEADINGS

 

Section 1. Pleadings defined. – Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment. (1)

 

Section 2. Pleadings allowed. – The claims of a party are asserted in a complaint, counterclaim, cross-claim, third (fourth, etc.)-party complaint, or complaint-in-intervention.

 

The defenses of a party are alleged in the answer to the pleading asserting a claim against him or her.

 

An answer may be responded to by a reply only if the defending party attaches an actionable document to the answer. (2a)

 

Section 3. Complaint. – The complaint is the pleading alleging the plaintiff’s or claiming party’s cause or causes of action. The names and residences of the plaintiff and defendant must be stated in the complaint. (3a)

 

Section 4. Answer. – An answer is a pleading in which a defending party sets forth his or her defenses. (4a)

 

Section 5. Defenses. — Defenses may either be negative or affirmative.

 

(a) A negative defense is the specific denial of the material fact or facts alleged in the pleading of the claimant essential to his or her cause or causes of action.

 

(b) An affirmative defense is an allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him or her. The affirmative defenses include fraud, statute of limitations, release, payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of confession and avoidance.

 

Affirmative defenses may also include grounds for the dismissal of a complaint, specifically, that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment. (5a)

 

Section 6. Counterclaim. — A counterclaim is any claim which a defending party may have against an opposing party. (6)

 

Section 7. Compulsory counterclaim. — A compulsory counterclaim is one which, being cognizable by the regular courts of justice, arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Such a counterclaim must be within the jurisdiction of the court both as to the amount and the nature thereof, except that in an original action before the Regional Trial Court, the counterclaim may be considered compulsory regardless of the amount. A compulsory counterclaim not raised in the same action is barred, unless otherwise allowed by these Rules. (7a)

 

Section 8. Cross-claim. – A cross-claim is any claim by one party against a co-partyarising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein. Such cross-claim may cover all or part of the original claim. (8a)

 

Section 9. Counter-counterclaims and counter-cross-claims. — A counterclaim may be asserted against an original counter-claimant.

 

A cross-claim may also be filed against an original cross-claimant. (9)

 

Section 10. Reply. — All new matters alleged in the answer are deemed controverted. If the plaintiff wishes to interpose any claims arising out of the new matters so alleged, such claims shall be set forth in an amended or supplemental complaint. However, the plaintiff may file a reply only if the defending party attaches an actionable document to his or her answer.

 

A reply is a pleading, the office or function of which is to deny, or allege facts in denial or avoidance of new matters alleged in, or relating to, said actionable document.

 

In the event of an actionable document attached to the reply, the defendant may file a rejoinder if the same is based solely on an actionable document. (10a)

 

Section 11. Third, (fourth, etc.)-party complaint. — A third (fourth, etc.)-party complaint is a claim that a defending party may, with leave of court, file against a person not a party to the action, called the third (fourth, etc.)-party defendant for contribution, indemnity, subrogation or any other relief, in respect of his or her opponent’s claim.

 

The third (fourth, etc.)-party complaint shall be denied admission, and the court shall require the defendant to institute a separate action, where: (a) the third (fourth, etc.)-party defendant cannot be located within thirty (30) calendar days from the grant of such leave; (b) matters extraneous to the issue in the principal case are raised; or (c) the effect would be to introduce a new and separate controversy into the action. (11a)

 

Section 12. Bringing new parties. — When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants, if jurisdiction over them can be obtained. (12)

 

Section 13. Answer to third (fourth, etc.)-party complaint. — A third (fourth, etc.)-party defendant may allege in his or her answer his or her defenses, counterclaims or cross-claims, including such defenses that the third (fourth, etc.)-party plaintiff may have against the original plaintiff’s claim. In proper cases, he or she may also assert a counterclaim against the original plaintiff in respect of the latter’s claim against the third-party plaintiff. (13a)

 

RULE 7
PARTS AND CONTENTS OF A PLEADING

 

Section 1. Caption. — The caption sets forth the name of the court, the title of the action, and the docket number if assigned.

 

The title of the action indicates the names of the parties. They shall all be named in the original complaint or petition; but in subsequent pleadings, it shall be sufficient if the name of the first party on each side be stated with an appropriate indication when there are other parties.

 

Their respective participation in the case shall be indicated. (1)

 

Section 2. The body. — The body of the pleading sets forth its designation, the allegations of the party’s claims or defenses, the relief prayed for, and the date of the pleading.

 

(a) Paragraphs. — The allegations in the body of a pleading shall be divided into paragraphs so numbered to be readily identified, each of which shall contain a statement of a single set of circumstances so far as that can be done with convenience. A paragraph may be referred to by its number in all succeeding pleadings.

 

(b) Headings. — When two or more causes of action are joined, the statement of the first shall be prefaced by the words “first cause of action,” of the second by “second cause of action”, and so on for the others. When one or more paragraphs in the answer are addressed to one of several causes of action in the complaint, they shall be prefaced by the words “answer to the first cause of action” or “answer to the second cause of action” and so on; and when one or more paragraphs of the answer are addressed to several causes of action, they shall be prefaced by words to that effect.

 

(c) Relief. — The pleading shall specify the relief sought, but it may add a general prayer for such further or other relief as may be deemed just or equitable.

 

(d) Date. — Every pleading shall be dated. (4)

 

Section 3. Signature and address. — (a) Every pleading and other written submissions to the court must be signed by the party or counsel representing him or her.

 

(b) The signature of counsel constitutes a certificate by him or her that he or she has read the pleading and document; that to the best of his or her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

 

(1) It is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) The claims, defenses, and other legal contentions are warranted by existing law or jurisprudence, or by a non-frivolous argument for extending, modifying, or reversing existing jurisprudence;
(3) The factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after availment of the modes of discovery under these rules; and
(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

 

(c) If the court determines, on motion or motu proprio and after notice and hearing, that this rule has been violated, it may impose an appropriate sanction or refer such violation to the proper office for disciplinary action, on any attorney, law firm, or party that violated the rule, or is responsible for the violation. Absent exceptional circumstances, a law firm shall be held jointly and severally liable for a violation committed by its partner, associate, or employee. The sanction may include, but shall not be limited to, non-monetary directive or sanction; an order to pay a penalty in court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation, including attorney’s fees for the filing of the motion for sanction. The lawyer or law firm cannot pass on the monetary penalty to the client. (3a)

 

Section 4. Verification. — Except when otherwise specifically required by law or rule, pleadings need not be under oath or verified.

 

A pleading is verified by an affidavit of an affiant duly authorized to sign said verification. The authorization of the affiant to act on behalf of a party, whether in the form of a secretary’s certificate or a special power of attorney, should be attached to the pleading, and shall allege the following attestations:

 

(a) The allegations in the pleading are true and correct based on his or her personal knowledge, or based on authentic documents;
(b) The pleading is not filed to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and
(c) The factual allegations therein have evidentiary support or, if specifically so identified, will likewise have evidentiary support after a reasonable opportunity for discovery.

 

The signature of the affiant shall further serve as a certification of the truthfulness of the allegations in the pleading.

 

A pleading required to be verified that contains a verification based on “information and belief,” or upon “knowledge, information and belief,” or lacks a proper verification, shall be treated as an unsigned pleading. (4a)

 

Section 5. Certification against forum shopping. — The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he or she has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his or her knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he or she should thereafter learn that the same or similar action or claim has been filed or is pending, he or she shall report that fact within five (5) calendar days therefrom to the court wherein his or her aforesaid complaint or initiatory pleading has been filed.

 

The authorization of the affiant to act on behalf of a party, whether in the form of a secretary’s certificate or a special power of attorney, should be attached to the pleading.

 

Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his or her counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions. (5a)

 

Section 6. Contents. — Every pleading stating a party’s claims or defenses shall, in addition to those mandated by Section 2, Rule 7, state the following:

 

(a) Names of witnesses who will be presented to prove a party’s claim or defense;

 

(b) Summary of the witnesses’ intended testimonies, provided that the judicial affidavits of said witnesses shall be attached to the pleading and form an integral part thereof. Only witnesses whose judicial affidavits are attached to the pleading shall be presented by the parties during trial. Except if a party presents meritorious reasons as basis for the admission of additional witnesses, no other witness or affidavit shall be heard or admitted by the court; and

 

(c) Documentary and object evidence in support of the allegations contained in the pleading. (n)

 

RULE 8
MANNER OF MAKING ALLEGATIONS IN PLEADINGS

 

Section 1. In general. — Every pleading shall contain in a methodical and logical form, a plain, concise and direct statement of the ultimate facts, including the evidence on which the party pleading relies for his or her claim or defense, as the case may be.

 

If a cause of action or defense relied on is based on law, the pertinent provisions thereof and their applicability to him or her shall be clearly and concisely stated. (1a)
Section 2. Alternative causes of action or defenses. — A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one cause of action or defense or in separate causes of action or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. (2)

 

Section 3. Conditions precedent. — In any pleading, a general averment of the performance or occurrence of all conditions precedent shall be sufficient. (3)

 

Section 4. Capacity. — Facts showing the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party, must be averred. A party desiring to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued in a representative capacity, shall do so by specific denial, which shall include such supporting particulars as are peculiarly within the pleader’s knowledge. (4)

 

Section 5. Fraud, mistake, condition of the mind. — In all averments of fraud or mistake, the circumstances constituting fraud or mistake must be stated with particularity. Malice, intent, knowledge, or other condition of the mind of a person may be averred generally. (5)

 

Section 6. Judgment. — In pleading a judgment or decision of a domestic or foreigncourt, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it. An authenticated copy of the judgment or decision shall be attached to the pleading. (6a)

 

Section 7. Action or defense based on document. – Whenever an action or defense is based upon a written instrument or document, the substance of such instrument or document shall be set forth in the pleading, and the original or a copy thereof shall be attached to the pleading as an exhibit, which shall be deemed to be a part of the pleading. (7a)

 

Section 8. How to contest such documents. – When an action or defense is founded upon a written instrument, or attached to the corresponding pleading as provided in the preceding section, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath specifically denies them, and sets forth what he or she claims to be the facts; but the requirement of an oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused. (8a)

 

Section 9. Official document or act.- In pleading an official document or official act, it is sufficient to aver that the document was issued or the act was done in compliance with law. (9)

 

Section 10. Specific denial. — A defendant must specify each material allegation of fact the truth of which he or she does not admit and, whenever practicable, shall set forth the substance of the matters upon which he or she relies to support his or her denial. Where a defendant desires to deny only a part of an averment, he or she shall specify so much of it as is true and material and shall deny only the remainder. Where a defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment made to the complaint, he or she shall so state, and this shall have the effect of a denial. (10a)

 

Section 11. Allegations not specifically denied deemed admitted. — Material averments in a pleading asserting a claim or claims, other than those as to the amount of unliquidated damages, shall be deemed admitted when not specifically denied. (11a)

 

Section 12. Affirmative defenses. — (a) A defendant shall raise his or her affirmative defenses in his or her answer, which shall be limited to the reasons set forth under Section 5(b), Rule 6, and the following grounds:

 

1. That the court has no jurisdiction over the person of the defending party;
2. That venue is improperly laid;
3. That the plaintiff has no legal capacity to sue;
4. That the pleading asserting the claim states no cause of action; and
5. That a condition precedent for filing the claim has not been complied with.
(b) Failure to raise the affirmative defenses at the earliest opportunity shall constitute a waiver thereof.

 

(c) The court shall motu proprio resolve the above affirmative defenses within thirty (30) calendar days from the filing of the answer.

 

(d) As to the other affirmative defenses under the first paragraph of Section 5(b), Rule 6, the court may conduct a summary hearing within fifteen (15) calendar days from the filing of the answer. Such affirmative defenses shall be resolved by the court within thirty (30) calendar days from the termination of the summary hearing.

 

(e) Affirmative defenses, if denied, shall not be the subject of a motion for reconsideration or petition for certiorari, prohibition or mandamus, but may be among the matters to be raised on appeal after a judgment on the merits.(n)

 

Section 13. Striking out of pleading or matter contained therein. — Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these Rules, upon motion made by a party within twenty (20) calendar days after the service of the pleading upon him or her, or upon the court’s own initiative at any time, the court may order any pleading to be stricken out or that any sham or false, redundant, immaterial, impertinent, or scandalous matter be stricken out therefrom. (12a)

 

RULE 9
EFFECT OF FAILURE TO PLEAD

 

Section 1. Defenses and objections not pleaded. — Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim. (1)

 

Section 2.Compulsory counterclaim, or cross-claim, not set up barred. — A compulsory counterclaim, or a cross-claim, not set up shall be barred. (2)

 

Section 3. Default; Declaration of. — If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default. Thereupon, the court shall proceed to render judgment granting the claimant such relief as his or her pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court.

 

(a) Effect of order of default. — A party in default shall be entitled to notices of subsequent proceedings but shall not take part in the trial.

 

(b) Relief from order of default. — A party declared in default may at any time after notice thereof and before judgment, file a motion under oath to set aside the order of default upon proper showing that his or her failure to answer was due to fraud, accident, mistake or excusable negligence and that he or she has a meritorious defense. In such case, the order of default may be set aside on such terms and conditions as the judge may impose in the interest of justice.

 

(c) Effect of partial default. — When a pleading asserting a claim states a common cause of action against several defending parties, some of whom answer and the others fail to do so, the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented.

 

(d) Extent of relief to be awarded. — A judgment rendered against a party in default shall neither exceed the amount or be different in kind from that prayed for nor award unliquidated damages.

 

(e) Where no defaults allowed. — If the defending party in an action for annulment or declaration of nullity of marriage or for legal separation fails to answer, the court shall order the Solicitor General or his or her deputized public prosecutor, to investigate whether or not a collusion between the parties exists, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated. (3a)

 

RULE 10
AMENDED AND SUPPLEMENTAL PLEADINGS

 

Section 1. Amendments in general. — Pleadings may be amended by adding or striking out an allegation or the name of any party, or by correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other respect, so that the actual merits of the controversy may speedily be determined, without regard to technicalities, in the most expeditious and inexpensive manner. (1a)

 

Section 2. Amendments as a matter of right. — A party may amend his pleading once as a matter of right at any time before a responsive pleading is served or, in the case of a reply, at any time within ten (10) calendar days after it is served. (2a)

 

Section 3. Amendments by leave of court. — Except as provided in the next preceding Section, substantial amendments may be made only upon leave of court. But such leave shall be refused if it appears to the court that the motion was made with intent to delay or confer jurisdiction on the court, or the pleading stated no cause of action from the beginning which could be amended. Orders of the court upon the matters provided in this Section shall be made upon motion filed in court, and after notice to the adverse party, and an opportunity to be heard. (3a)

 

Section 4. Formal amendments. — A defect in the designation of the parties and other clearly clerical or typographical errors may be summarily corrected by the court at any stage of the action, at its initiative or on motion, provided no prejudice is caused thereby to the adverse party. (4)

 

Section 5. No amendment necessary to conform to or authorize presentation of evidence. — When issues not raised by the pleadings are tried with the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. No amendment of such pleadings deemed amended is necessary to cause them to conform to the evidence. (5a)

 

Section 6. Supplemental pleadings. — Upon motion of a party, the court may, upon reasonable notice and upon such terms as are just, permit him or her to serve a supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. The adverse party may plead thereto within ten (10) calendar days from notice of the order admitting the supplemental pleading. (6a)

 

Section 7. Filing of amended pleadings. — When any pleading is amended, a new copy of the entire pleading, incorporating the amendments, which shall be indicated by appropriate marks, shall be filed. (7)

 

Section 8. Effect of amended pleadings. — An amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be offered in evidence against the pleader, and claims or defenses alleged therein not incorporated in the amended pleading shall be deemed waived. (8a)

 

RULE 11
WHEN TO FILE RESPONSIVE PLEADINGS

 

Section 1. Answer to the complaint. — The defendant shall file his or her answer to the complaint within thirty (30) calendar days after service of summons, unless a different period is fixed by the court. (1a)

 

Section 2. Answer of a defendant foreign private juridical entity. — Where the defendant is a foreign private juridical entity and service of summons is made on the government official designated by law to receive the same, the answer shall be filed within sixty (60) calendar days after receipt of summons by such entity. (2a)

 

Section 3. Answer to amended complaint. — When the plaintiff files an amended complaint as a matter of right, the defendant shall answer the same within thirty (30) calendar days after being served with a copy thereof. Where its filing is not a matter of right, the defendant shall answer the amended complaint within fifteen (15) calendar days from notice of the order admitting the same.

 

An answer earlier filed may serve as the answer to the amended complaint if no new answer is filed. This Rule shall apply to the answer to an amended counterclaim, amended cross-claim, amended third (fourth, etc.)-party complaint, and amended complaint-in-intervention. (3a)

 

Section 4. Answer to counterclaim or cross-claim. — A counterclaim or cross-claim must be answered within twenty (20) calendar days from service. (4a)

 

Section 5. Answer to third (fourth, etc.)-party complaint. — The time to answer a third (fourth, etc.)-party complaint shall be governed by the same rule as the answer to the complaint. (5)

 

Section 6. Reply. — A reply, if allowed under Section 10, Rule 6 hereof, may be filed within fifteen (15) calendar days from service of the pleading responded to. (6a)

 

Section 7. Answer to supplemental complaint. — A supplemental complaint may be answered within twenty (20) calendar days from notice of the order admitting the same, unless a different period is fixed by the court. The answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is filed. (7a)

 

Section 8. Existing counterclaim or cross-claim. — A compulsory counterclaim or a cross-claim that a defending party has at the time he or she files his or her answer shall be contained therein. (8a)

 

Section 9. Counterclaim or cross-claim arising after answer. — A counterclaim or a cross-claim which either matured or was acquired by a party after serving his or her pleading may, with the permission of the court, be presented as a counterclaim or a cross-claim by supplemental pleading before judgment. (9a)

 

Section 10. Omitted counterclaim or cross-claim. — When a pleader fails to set up a counterclaim or a cross-claim through oversight, inadvertence, or excusable neglect, or when justice requires, he or she may, by leave of court, set up the counterclaim or cross-claim by amendment before judgment. (10a)

 

Section 11. Extension of time to file an answer. — A defendant may, for meritorious reasons, be granted an additional period of not more than thirty (30) calendar days to file an answer. A defendant is only allowed to file one (1) motion for extension of time to file an answer.

 

A motion for extension to file any pleading, other than an answer, is prohibited and considered a mere scrap of paper. The court, however, may allow any other pleading to be filed after the time fixed by these Rules. (11a)

 

RULE 12
BILL OF PARTICULARS

 

Section 1. When applied for; purpose. — Before responding to a pleading, a party may move for a definite statement or for a bill of particulars of any matter, which is not averred with sufficient definiteness or particularity, to enable him or her properly to prepare his or her responsive pleading. If the pleading is a reply, the motion must be filed within ten (10) calendar days from service thereof. Such motion shall point out the defects complained of, the paragraphs wherein they are contained, and the details desired. (1a)

 

Section 2. Action by the court. — Upon the filing of the motion, the clerk of court must immediately bring it to the attention of the court, which may either deny or grant it outright, or allow the parties the opportunity to be heard. (2)

 

Section 3. Compliance with order. — If the motion is granted, either in whole or in part, the compliance therewith must be effected within ten (10) calendar days from notice of the order, unless a different period is fixed by the court. The bill of particulars or a more definite statement ordered by the court may be filed either in a separate or in an amended pleading, serving a copy thereof on the adverse party. (3a)

 

Section 4. Effect of non-compliance. — If the order is not obeyed, or in case of insufficient compliance therewith, the court may order the striking out of the pleading or the portions thereof to which the order was directed, or make such other order as it deems just. (4)

 

Section 5. Stay of period to file responsive pleading. — After service of the bill of particulars or of a more definite pleading, or after notice of denial of his or her motion, the moving party may file his or her responsive pleading within the period to which he or she was entitled at the time of filing his or her motion, which shall not be less than five (5) calendar days in any event. (5a)

 

Section 6. Bill a part of pleading. — A bill of particulars becomes part of the pleading for which it is intended. (6)

 

RULE 13
FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS

 

Section 1. Coverage. — This Rule shall govern the filing of all pleadings, motions, and other court submissions, as well as their service, except those for which a different mode of service is prescribed. (1a)

 

Section 2. Filing and Service, defined. — Filing is the act of submitting the pleading or other paper to the court.

 

Service is the act of providing a party with a copy of the pleading or any other court submission. If a party has appeared by counsel, service upon such party shall be made upon his or her counsel, unless service upon the party and the party’s counsel is ordered by the court. Where one counsel appears for several parties, such counsel shall only be entitled to one copy of any paper served by the opposite side.

 

Where several counsels appear for one party, such party shall be entitled to only one copy of any pleading or paper to be served upon the lead counsel if one is designated, or upon any one of them if there is no designation of a lead counsel. (2a)

 

Section. 3. Manner of filing. — The filing of pleadings and other court submissions shall be made by:

 

(a) Submitting personally the original thereof, plainly indicated as such, to the court;
(b) Sending them by registered mail;
(c) Sending them by accredited courier; or
(d) Transmitting them by electronic mail or other electronic means as may be authorized by the Court in places where the court is electronically equipped.

 

In the first case, the clerk of court shall endorse on the pleading the date and hour of filing. In the second and third cases, the date of the mailing of motions, pleadings, and other court submissions, and payments or deposits, as shown by the post office stamp on the envelope or the registry receipt, shall be considered as the date of their filing, payment, or deposit in court. The envelope shall be attached to the record of the case. In the fourth case, the date of electronic transmission shall be considered as the date of filing. (3a)

 

Section 4. Papers required to be filed and served. – Every judgment, resolution, order, pleading subsequent to the complaint, written motion, notice, appearance, demand, offer of judgment or similar papers shall be filed with the court, and served upon the parties affected. (4)

 

Section 5. Modes of Service. — Pleadings, motions, notices, orders, judgments, and other court submissions shall be served personally or by registered mail, accredited courier, electronic mail, facsimile transmission, other electronic means as may be authorized by the Court, or as provided for in international conventions to which the Philippines is a party. (5a)

 

Section 6. Personal Service. — Court submissions may be served by personal delivery of a copy to the party or to the party’s counsel, or to their authorized representative named in the appropriate pleading or motion, or by leaving it in his or her office with his or her clerk, or with a person having charge thereof. If no person is found in his or her office, or his or her office is not known, or he or she has no office, then by leaving the copy, between the hours of eight in the morning and six in the evening, at the party’s or counsel’s residence, if known, with a person of sufficient age and discretion residing therein. (6a)

 

Section 7. Service by mail. — Service by registered mail shall be made by depositing the copy in the post office, in a sealed envelope, plainly addressed to the party or to the party’s counsel at his or her office, if known, otherwise at his or her residence, if known, with postage fully pre-paid, and with instructions to the postmaster to return the mail to the sender after ten (10) calendar days if undelivered. If no registry service is available in the locality of either the sender or the addressee, service may be done by ordinary mail. (7a)

 

Section 8. Substituted service. – If service of pleadings, motions, notices, resolutions, orders and other papers cannot be made under the two preceding sections, the office and place of residence of the party or his or her counsel being unknown, service may be made by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail. The service is complete at the time of such delivery. (8a)

 

Section 9. Service by electronic means and facsimile. — Service by electronic means and facsimile shall be made if the party concerned consents to such modes of service. Service by electronic means shall be made by sending an e-mail to the party’s or counsel’s electronic mail address, or through other electronic means of transmission as the parties may agree on, or upon direction of the court. Service by facsimile shall be made by sending a facsimile copy to the party’s or counsel’s given facsimile number. (n)

 

Section 10. Presumptive service. — There shall be presumptive notice to a party of a court setting if such notice appears on the records to have been mailed at least twenty (20) calendar days prior to the scheduled date of hearing and if the addressee is from within the same judicial region of the court where the case is pending, or at least thirty (30) calendar days if the addressee is from outside the judicial region. (n)

 

Section 11. Change of electronic mail address or facsimile number. — A party who changes his or her electronic mail address or facsimile number while the action is pending must promptly file, within five (5) calendar days from such change, a notice of change of e-mail address or facsimile number with the court and serve the notice on all other parties. Service through the electronic mail address or facsimile number of a party shall be presumed valid unless such party notifies the court of any change, as aforementioned. (n)

 

Section 12. Electronic mail and facsimile subject and title of pleadings and other documents. — The subject of the electronic mail and facsimile must follow the prescribed format: case number, case title and the pleading, order or document title. The title of each electronically-filed or served pleading or other document, and each submission served by facsimile shall contain sufficient information to enable the court to ascertain from the title: (a) the party or parties filing or serving the paper, (b) nature of the paper, (c) the party or parties against whom relief, if any, is sought, and (d) the nature of the relief sought. (n)

 

Section 13. Service of Judgments, Final Orders or Resolutions. — Judgments, final orders, or resolutions shall be served either personally or by registered mail. Upon ex parte motion of any party in the case, a copy of the judgment, final order, or resolution may be delivered by accredited courier at the expense of such party. When a party summoned by publication has failed to appear in the action, judgments, final orders or resolutions against him or her shall be served upon him or her also by means of publication at the expense of the prevailing party. (9a)

 

Section 14. Conventional service or filing of orders, pleadings and other documents. – Notwithstanding the foregoing, the following orders, pleadings, and other documents must be served or filed personally or by registered mail when allowed, and shall not be served or filed electronically, unless express permission is granted by the Court:

 

(a) Initiatory pleadings and initial responsive pleadings, such as an answer;
(b) Subpoenae, protection orders, and writs;
(c) Appendices and exhibits to motions, or other documents that are not readily amenable to electronic scanning may, at the option of the party filing such, be filed and served conventionally; and
(d) Sealed and confidential documents or records. (n)

 

Section 15. Completeness of service. — Personal service is complete upon actual delivery. Service by ordinary mail is complete upon the expiration of ten (10) calendar days after mailing, unless the court otherwise provides. Service by registered mail is complete upon actual receipt by the addressee, or after five (5) calendar days from the date he or she received the first notice of the postmaster, whichever date is earlier. Service by accredited courier is complete upon actual receipt by the addressee, or after at least two (2) attempts to deliver by the courier service, or upon the expiration of five (5) calendar days after the first attempt to deliver, whichever is earlier.

 

Electronic service is complete at the time of the electronic transmission of the document, or when available, at the time that the electronic notification of service of the document is sent. Electronic service is not effective or complete if the party serving the document learns that it did not reach the addressee or person to be served.

 

Service by facsimile transmission is complete upon receipt by the other party, as indicated in the facsimile transmission printout. (10a)

 

Section 16. Proof of filing. — The filing of a pleading or any other court submission shall be proved by its existence in the record of the case.

 

(a) If the pleading or any other court submission is not in the record, but is claimed to have been filed personally, the filing shall be proven by the written or stamped acknowledgment of its filing by the clerk of court on a copy of the pleading or court submission;

 

(b) If the pleading or any other court submission was filed by registered mail, the filing shall be proven by the registry receipt and by the affidavit of the person who mailed it, containing a full statement of the date and place of deposit of the mail in the post office in a sealed envelope addressed to the court, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10) calendar days if not delivered.

 

(c) If the pleading or any other court submission was filed through an accredited courier service, the filing shall be proven by an affidavit of service of the person who brought the pleading or other document to the service provider, together with the courier’s official receipt and document tracking number.

 

(d) If the pleading or any other court submission was filed by electronic mail, the same shall be proven by an affidavit of electronic filing of the filing party accompanied by a paper copy of the pleading or other document transmitted or a written or stamped acknowledgment of its filing by the clerk of court. If the paper copy sent by electronic mail was filed by registered mail, paragraph (b) of this Section applies.

 

(e) If the pleading or any other court submission was filed through other authorized electronic means, the same shall be proven by an affidavit of electronic filing of the filing party accompanied by a copy of the electronic acknowledgment of its filing by the court. (12a)

 

Section 17. Proof of service. –— Proof of personal service shall consist of a written admission of the party served, or the official return of the server, or the affidavit of the party serving, containing a statement of the date, place, and manner of service. If the service is made by:

 

(a) Ordinary mail. – Proof shall consist of an affidavit of the person mailing stating the facts showing compliance with Section 7 of this Rule.

 

(b) Registered mail. – Proof shall be made by the affidavit mentioned above and the registry receipt issued by the mailing office. The registry return card shall be filed immediately upon its receipt by the sender, or in lieu thereof, the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee.

 

(c) Accredited courier service. – Proof shall be made by an affidavit of service executed by the person who brought the pleading or paper to the service provider, together with the courier’s official receipt or document tracking number.

 

(d) Electronic mail, facsimile, or other authorized electronic means of transmission. – Proof shall be made by an affidavit of service executed by the person who sent the e-mail, facsimile, or other electronic transmission, together with a printed proof of transmittal. (13a)

 

Section 18. Court-issued orders and other documents. — The court may electronically serve orders and other documents to all the parties in the case which shall have the same effect and validity as provided herein. A paper copy of the order or other document electronically served shall be retained and attached to the record of the case. (n)

 

Section 19. Notice of lis pendens. –— In an action affecting the title or the right of possession of real property, the plaintiff and the defendant, when affirmative relief is claimed in his or her answer, may record in the office of the registry of deeds of the province in which the property is situated a notice of the pendency of the action. Said notice shall contain the names of the parties and the object of the action or defense, and a description of the property in that province affected thereby. Only from the time of filing such notice for record shall a purchaser, or encumbrancer of the property affected thereby, be deemed to have constructive notice of the pendency of the action, and only of its pendency against the parties designated by their real names.

 

The notice of lis pendens hereinabove mentioned may be cancelled only upon order of the court, after proper showing that the notice is for the purpose of molesting the adverse party, or that it is not necessary to protect the rights of the party who caused it to be recorded. (14a)

 

RULE 14
SUMMONS
Section 1. Clerk to issue summons. — Unless the complaint is on its face dismissible under Section 1, Rule 9, the court shall, within five (5) calendar days from receipt of the initiatory pleading and proof of payment of the requisite legal fees, direct the clerk of court to issue the corresponding summons to the defendants. (1a)

 

Section 2. Contents. — The summons shall be directed to the defendant, signed by the clerk of court under seal, and contain:

 

(a) The name of the court and the names of the parties to the action;

 

(b) When authorized by the court upon ex parte motion, an authorization for the plaintiff to serve summons to the defendant;

 

(c) A direction that the defendant answer within the time fixed by these Rules; and

 

(d) A notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief applied for.

 

A copy of the complaint and order for appointment of guardian ad litem, if any, shall be attached to the original and each copy of the summons. (2a)

 

Section 3. By whom served. — The summons may be served by the sheriff, his or her deputy, or other proper court officer, and in case of failure of service of summons by them, the court may authorize the plaintiff – to serve the summons – together with the sheriff.

 

In cases where summons is to be served outside the judicial region of the court where the case is pending, the plaintiff shall be authorized to cause the service of summons.

 

If the plaintiff is a juridical entity, it shall notify the court, in writing, and name its authorized representative therein, attaching a board resolution or secretary’s certificate thereto, as the case may be, stating that such representative is duly authorized to serve the summons on behalf of the plaintiff.

 

If the plaintiff misrepresents that the defendant was served summons, and it is later proved that no summons was served, the case shall be dismissed with prejudice, the proceedings shall be nullified, and the plaintiff shall be meted appropriate sanctions.

 

If summons is returned without being served on any or all the defendants, the court shall order the plaintiff to cause the service of summons by other means available under the Rules.

 

Failure to comply with the order shall cause the dismissal of the initiatory pleading without prejudice. (3a)

 

Section 4. Validity of summons and issuance of alias summonsSummons shall remain valid until duly served, unless it is recalled by the court. In case of loss or destruction of summons, the court may, upon motion, issue an alias summons.

 

There is failure of service after unsuccessful attempts to personally serve the summons on the defendant in his or her address indicated in the complaint. Substituted service should be in the manner provided under Section 6 of this Rule. (5a)

 

Section 5. Service in person on defendant. — Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in person and informing the defendant that he or she is being served, or, if he or she refuses to receive and sign for it, by leaving the summons within the view and in the presence of the defendant. (6a)

 

Section 6. Substituted service. — If, for justifiable causes, the defendant cannot be served personally after at least three (3) attempts on two (2) different dates, service may be effected:

 

(a) By leaving copies of the summons at the defendant’s residence to a person at least eighteen (18) years of age and of sufficient discretion residing therein;

 

(b) By leaving copies of the summons at the defendant’s office or regular place of business with some competent person in charge thereof. A competent person includes, but is not limited to, one who customarily receives correspondences for the defendant;

 

(c) By leaving copies of the summons, if refused entry upon making his or her authority and purpose known, with any of the officers of the homeowners’ association or condominium corporation, or its chief security officer in charge of the community or the building where the defendant may be found; and

 

(d) By sending an electronic mail to the defendant’s electronic mail address, if allowed by the court. (7a)

 

Section 7. Service upon entity without juridical personality. — When persons associated in an entity without juridical personality are sued under the name by which they are generally or commonly known, service may be effected upon all the defendants by serving upon any one of them, or upon the person in charge of the office or place of business maintained in such name. But such service shall not bind individually any person whose connection with the entity has, upon due notice, been severed before the action was filed. (8a)

 

Section 8. Service upon prisoners. — When the defendant is a prisoner confined in a jail or institution, service shall be effected upon him or her by the officer having the management of such jail or institution who is deemed as a special sheriff for said purpose. The jail warden shall file a return within five (5) calendar days from service of summons to the defendant. (9a)

 

Section 9. Service consistent with international conventions. — Service may be made through methods which are consistent with established international conventions to which the Philippines is a party. (n)

 

Section 10. Service upon minors and incompetents. — When the defendant is a minor, insane or otherwise an incompetent person, service of summons shall be made upon him or her personally and on his or her legal guardian if he or she has one, or if none, upon his or her guardian ad litem whose appointment shall be applied for by the plaintiff. In the case of a minor, service shall be made on his or her parent or guardian. (10a)

 

Section 11. Service upon spouses. — When spouses are sued jointly, service of summons should be made to each spouse individually. (n)

 

Section 12. Service upon domestic private juridical entity. — When the defendant is a corporation, partnership or association organized under the laws of the Philippines with a juridical personality, service may be made on the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel of the corporation wherever they may be found, or in their absence or unavailability, on their secretaries.

 

If such service cannot be made upon any of the foregoing persons, it shall be made upon the person who customarily receives the correspondence for the defendant at its principal office.
In case the domestic juridical entity is under receivership or liquidation, service of summons shall be made on the receiver or liquidator, as the case may be.
Should there be a refusal on the part of the persons above-mentioned to receive summons despite at least three (3) attempts on two (2) different dates, service may be made electronically, if allowed by the court, as provided under Section 6 of this Rule. (11a)

 

Section 13. Duty of counsel of record. — Where the summons is improperly served and a lawyer makes a special appearance on behalf of the defendant to, among others, question the validity of service of summons, the counsel shall be deputized by the court to serve summons on his or her client. (n)

 

Section 14. Service upon foreign private juridical entities. — When the defendant is a foreign private juridical entity which has transacted or is doing business in the Philippines, as defined by law, service may be made on its resident agent designated in accordance with law for that purpose, or, if there be no such agent, on the government official designated by law to that effect, or on any of its officers, agents, directors or trustees within the Philippines.

 

If the foreign private juridical entity is not registered in the Philippines, or has no resident agent but has transacted or is doing business in it, as defined by law, such service may, with leave of court, be effected outside of the Philippines through any of the following means:

 

(a) By personal service coursed through the appropriate court in the foreign country with the assistance of the department of foreign affairs;
(b) By publication once in a newspaper of general circulation in the country where the defendant may be found and by serving a copy of the summons and the court order by registered mail at the last known address of the defendant;
(c) By facsimile;
(d) By electronic means with the prescribed proof of service; or
(e) By such other means as the court, in its discretion, may direct. (12a)

 

Section 15. Service upon public corporations. — When the defendant is the Republic of the Philippines, service may be effected on the Solicitor General; in case of a province, city or municipality, or like public corporations, service may be effected on its executive head, or on such other officer or officers as the law or the court may direct. (13a)

 

Section 16. Service upon defendant whose identity or whereabouts are unknown. — In any action where the defendant is designated as an unknown owner, or the like, or whenever his or her whereabouts are unknown and cannot be ascertained by diligent inquiry, within ninety (90) calendar days from the commencement of the action, service may, by leave of court, be effected upon him or her by publication in a newspaper of general circulation and in such places and for such time as the court may order.

 

Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) calendar days after notice, within which the defendant must answer. (14a)

 

Section 17. Extraterritorial service. — When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under Section 6; or as provided for in international conventions to which the Philippines is a party; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) calendar days after notice, within which the defendant must answer. (15a)

 

Section 18. Residents temporarily out of the Philippines. — When any action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be also effected out of the Philippines, as under the preceding Section. (16a)

 

Section 19. Leave of court. — Any application to the court under this Rule for leave to effect service in any manner for which leave of court is necessary shall be made by motion in writing, supported by affidavit of the plaintiff or some person on his behalf, setting forth the grounds for the application. (17a)

 

Section 20. Return. — Within thirty (30) calendar days from issuance of summons by the clerk of court and receipt thereof, the sheriff or process server, or person authorized by the court, shall complete its service. Within five (5) calendar days from service of summons, the server shall file with the court and serve a copy of the return to the plaintiff’s counsel, personally, by registered mail, or by electronic means authorized by the Rules.

 

Should substituted service have been effected, the return shall state the following:

 

(1) The impossibility of prompt personal service within a period of thirty (30) calendar days from issue and receipt of summons;

 

(2) The date and time of the three (3) attempts on at least (2) two different dates to cause personal service and the details of the inquiries made to locate the defendant residing thereat; and

 

(3) The name of the person at least eighteen (18) years of age and of sufficient discretion residing thereat, name of competent person in charge of the defendant’s office or regular place of business, or name of the officer of the homeowners’ association or condominium corporation or its chief security officer in charge of the community or building where the defendant may be found. (4a)

 

Section 21. Proof of service. — The proof of service of a summons shall be made in writing by the server and shall set forth the manner, place, and date of service; shall specify any papers which have been served with the process and the name of the person who received the same; and shall be sworn to when made by a person other than a sheriff or his or her deputy.

 

If summons was served by electronic mail, a printout of said e-mail, with a copy of the summons as served, and the affidavit of the person mailing, shall constitute as proof of service. (18a)

 

Section 22. Proof of service by publication. — If the service has been made by publication, service may be proved by the affidavit of the publisher, editor, business or advertising manager, to which affidavit a copy of the publication shall be attached and by an affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his or her last known address. (19a)

 

Section 23. Voluntary appearance. — The defendant’s voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall be deemed a voluntary appearance. (20a)

 

RULE 15
MOTIONS

 

Section 1. Motion defined. – A motion is an application for relief other than by a pleading. (1)

 

Section 2. Motions must be in writing.—All motions shall be in writing except those made in open court or in the course of a hearing or trial.

 

A motion made in open court or in the course of a hearing or trial should immediately be resolved in open court, after the adverse party is given the opportunity to argue his or her opposition thereto.

 

When a motion is based on facts not appearing on record, the court may hear the matter on affidavits or depositions presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions. (2a)

 

Section 3. Contents. – A motion shall state the relief sought to be obtained and the grounds upon which it is based, and if required by these Rules or necessary to prove facts alleged therein, shall be accompanied by supporting affidavits and other papers. (3)

 

[Section 4. Hearing of motion. — Deleted]

 

Section 4. Non-litigious motions. — Motions which the court may act upon without prejudicing the rights of adverse parties are non-litigious motions. These motions include:

 

a) Motion for the issuance of an alias summons;
b) Motion for extension to file answer;
c) Motion for postponement;
d) Motion for the issuance of a writ of execution;
e) Motion for the issuance of an alias writ of execution;
f) Motion for the issuance of a writ of possession;
g) Motion for the issuance of an order directing the sheriff to execute the final certificate of sale; and
h) Other similar motions.

 

These motions shall not be set for hearing and shall be resolved by the court within five (5) calendar days from receipt thereof. (n)

 

Section 5. Litigious motions. — (a) Litigious motions include:

 

1) Motion for bill of particulars;
2) Motion to dismiss;
3) Motion for new trial;
4) Motion for reconsideration;
5) Motion for execution pending appeal;
6) Motion to amend after a responsive pleading has been filed;
7) Motion to cancel statutory lien;
8) Motion for an order to break in or for a writ of demolition;
9) Motion for intervention;
10) Motion for judgment on the pleadings;
11) Motion for summary judgment;
12) Demurrer to evidence;
13) Motion to declare defendant in default; and
14) Other similar motions.

 

(b) All motions shall be served by personal service, accredited private courier or registered mail, or electronic means so as to ensure their receipt by the other party. 
(c) The opposing party shall file his or her opposition to a litigious motion within five (5) calendar days from receipt thereof. No other submissions shall be considered by the court in the resolution of the motion.

 

The motion shall be resolved by the court within fifteen (15) calendar days from its receipt of the opposition thereto, or upon expiration of the period to file such opposition. (n)

 

Section. 6. Notice of hearing on litigious motions; discretionary. — The court may, in the exercise of its discretion, and if deemed necessary for its resolution, call a hearing on the motion. The notice of hearing shall be addressed to all parties concerned, and shall specify the time and date of the hearing. (5a)

 

Section 7. Proof of service necessary. — No written motion shall be acted upon by the court without proof of service thereof, pursuant to Section 5(b) hereof. (6a)

 

Section 8. Motion day. — Except for motions requiring immediate action, where the court decides to conduct hearing on a litigious motion, the same shall be set on a Friday. (7a)

 

Section 9. Omnibus motion. — Subject to the provisions of Section 1 of Rule 9, a motion attacking a pleading, order, judgment, or proceeding shall include all objections then available, and all objections not so included shall be deemed waived. (8a)

 

Section 10. Motion for leave. — A motion for leave to file a pleading or motion shall be accompanied by the pleading or motion sought to be admitted. (9)

 

Section 11. Form. — The Rules applicable to pleadings shall apply to written motions so far as concerns caption, designation, signature, and other matters of form. (10)

 

Section 12. Prohibited motions. — The following motions shall not be allowed:

 

(a) Motion to dismiss except on the following grounds:

 

1) That the court has no jurisdiction over the subject matter of the claim;

 

2) That there is another action pending between the same parties for the same cause; and

 

3) That the cause of action is barred by a prior judgment or by the statute of limitations;

 

(b) Motion to hear affirmative defenses;

 

(c) Motion for reconsideration of the court’s action on the affirmative defenses;

 

(d) Motion to suspend proceedings without a temporary restraining order or injunction issued by a higher court;

 

(e) Motion for extension of time to file pleadings, affidavits or any other papers, except a motion for extension to file an answer as provided by Section 11, Rule 11; and

 

(f) Motion for postponement intended for delay, except if it is based on acts of God, force majeure or physical inability of the witness to appear and testify. If the motion is granted based on such exceptions, the moving party shall be warned that the presentation of its evidence must still be terminated on the dates previously agreed upon.

 

A motion for postponement, whether written or oral, shall, at all times, be accompanied by the original official receipt from the office of the clerk of court evidencing payment of the postponement fee under Section 21(b), Rule 141, to be submitted either at the time of the filing of said motion or not later than the next hearing date. The clerk of court shall not accept the motion unless accompanied by the original receipt. (n)

 

Section. 13. Dismissal with prejudice. — Subject to the right of appeal, an order granting a motion to dismiss or an affirmative defense that the cause of action is barred by a prior judgment or by the statute of limitations; that the claim or demand set forth in the plaintiff’s pleading has been paid, waived, abandoned or otherwise extinguished; or that the claim on which the action is founded is unenforceable under the provisions of the statute of frauds, shall bar the refiling of the same action or claim. (5, R16)

 

RULE 16
MOTION TO DISMISS
[Provisions either deleted or transposed]

 

RULE 17
DISMISSAL OF ACTIONS

 

Section 1. Dismissal upon notice by plaintiff. — A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment. Upon such notice being filed, the court shall issue an order confirming the dismissal. Unless otherwise stated in the notice, the dismissal is without prejudice, except that a notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim. (1)

 

Section 2. Dismissal upon motion of plaintiff. — Except as provided in the preceding section, a complaint shall not be dismissed at the plaintiff’s instance save upon approval of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him or her of the plaintiff’s motion for dismissal, the dismissal shall be limited to the complaint. The dismissal shall be without prejudice to the right of the defendant to prosecute his or her counterclaim in a separate action unless within fifteen (15) calendar days from notice of the motion he or she manifests his or her preference to have his or her counterclaim resolved in the same action. Unless otherwise specified in the order, a dismissal under this paragraph shall be without prejudice. A class suit shall not be dismissed or compromised without the approval of the court. (2a)

 

Section 3. Dismissal due to fault of plaintiff. — If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his or her evidence in chief on the complaint, or to prosecute his or her action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion of the defendant or upon the court’s own motion, without prejudice to the right of the defendant to prosecute his or her counterclaim in the same or in a separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court. (3a)

 

Section 4. Dismissal of counterclaim, cross-claim, or third-party complaint. — The provisions of this Rule shall apply to the dismissal of any counterclaim, cross-claim, or third-party complaint. A voluntary dismissal by the claimant by notice as in Section 1 of this Rule, shall be made before a responsive pleading or a motion for summary judgment is served or, if there is none, before the introduction of evidence at the trial or hearing. (4)

 

RULE 18
PRE-TRIAL

 

Section 1. When conducted. — After the last responsive pleading has been served and filed, the branch clerk of court shall issue, within five (5) calendar days from filing, a notice of pre-trial which shall be set not later than sixty (60) calendar days from the filing of the last responsive pleading. (1a)

 

Section 2. Nature and Purpose. — The pre-trial is mandatory and should be terminated promptly. The court shall consider:

 

(a) The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution;
(b) The simplification of the issues;
(c) The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof;
(d) The limitation of the number and identification of witnesses and the setting of trial dates;
(e) The advisability of a preliminary reference of issues to a commissioner;
(f) The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist;
(g) The requirement for the parties to:

 

1. Mark their respective evidence if not yet marked in the judicial affidavits of their witnesses;

 

2. Examine and make comparisons of the adverse parties’ evidence vis-a-vis the copies to be marked;

 

3. Manifest for the record stipulations regarding the faithfulness of the reproductions and the genuineness and due execution of the adverse parties’ evidence;

 

4. Reserve evidence not available at the pre-trial, but only in the following manner:

 

i. For testimonial evidence, by giving the name or position and the nature of the testimony of the proposed witness;

 

ii. For documentary evidence and other object evidence, by giving a particular description of the evidence. No reservation shall be allowed if not made in the manner described above.

 

(h) Such other matters as may aid in the prompt disposition of the action.

 

The failure without just cause of a party and counsel to appear during pre-trial, despite notice, shall result in a waiver of any objections to the faithfulness of the reproductions marked, or their genuineness and due execution.

 

The failure without just cause of a party and/or counsel to bring the evidence required shall be deemed a waiver of the presentation of such evidence.

 

The branch clerk of court shall prepare the minutes of the pre-trial, which shall have the following format: (See prescribed form) (2a)

 

Section. 3. Notice of pre-trial. — The notice of pre-trial shall include the dates respectively set for:

 

(a) Pre-trial;
(b) Court-Annexed Mediation; and
(c) Judicial Dispute Resolution, if necessary.

 

The notice of pre-trial shall be served on counsel, or on the party if he or she has no counsel. The counsel served with such notice is charged with the duty of notifying the party represented by him or her.

 

Non-appearance at any of the foregoing settings shall be deemed as non-appearance at the pre-trial and shall merit the same sanctions under Section 5 hereof. (3a)

 

Section 4. Appearance of Parties. — It shall be the duty of the parties and their counsel to appear at the pre-trial, court-annexed mediation, and judicial dispute resolution, if necessary. The non-appearance of a party and counsel may be excused only for acts of God, force majeure, or duly substantiated physical inability.

 

A representative may appear on behalf of a party, but must be fully authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and documents.

 

Section. 5. Effect of failure to appear. — When duly notified, the failure of the plaintiff and counsel to appear without valid cause when so required, pursuant to the next preceding Section, shall cause the dismissal of the action. The dismissal shall be with prejudice, unless otherwise ordered by the court. A similar failure on the part of the defendant and counsel shall be cause to allow the plaintiff to present his or her evidence ex-parte within ten (10) calendar days from termination of the pre-trial, and the court to render judgment on the basis of the evidence offered. (5a)

 

Section 6. Pre-trial brief. — The parties shall file with the court and serve on the adverse party, in such manner as shall ensure their receipt thereof at least three (3) calendar days before the date of the pre-trial, their respective pre-trial briefs which shall contain, among others:

 

(a) A concise statement of the case and the reliefs prayed for;

 

(b) A summary of admitted facts and proposed stipulation of facts;

 

(c) The main factual and legal issues to be tried or resolved;

 

(d) The propriety of referral of factual issues to commissioners;

 

(e) The documents or other object evidence to be marked, stating the purpose thereof;

 

(f) The names of the witnesses, and the summary of their respective testimonies; and

 

(g) A brief statement of points of law and citation of authorities.

 

Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial. (8)

 

Section 7. Pre-Trial Order. — Upon termination of the pre-trial, the court shall issue an order within ten (10) calendar days which shall recite in detail the matters taken up. The order shall include:

 

(a) An enumeration of the admitted facts;

 

(b) The minutes of the pre-trial conference;

 

(c) The legal and factual issue/s to be tried;

 

(d) The applicable law, rules, and jurisprudence;

 

(e) The evidence marked;

 

(f) The specific trial dates for continuous trial, which shall be within the period provided by the Rules;

 

(g) The case flowchart to be determined by the court, which shall contain the different stages of the proceedings up to the promulgation of the decision and the use of time frames for each stage in setting the trial dates;

 

(h) A statement that the one-day examination of witness rule and most important witness rule under A.M. No. 03-1-09-SC (Guidelines for Pre-Trial) shall be strictly followed; and

 

(i) A statement that the court shall render judgment on the pleadings or summary judgment, as the case may be.

 

The direct testimony of witnesses for the plaintiff shall be in the form of judicial affidavits. After the identification of such affidavits, cross-examination shall proceed immediately.

 

Postponement of presentation of the parties’ witnesses at a scheduled date is prohibited, except if it is based on acts of God, force majeure or duly substantiated physical inability of the witness to appear and testify. The party who caused the postponement is warned that the presentation of its evidence must still be terminated within the remaining dates previously agreed upon.

 

Should the opposing party fail to appear without valid cause stated in the next preceding paragraph, the presentation of the scheduled witness will proceed with the absent party being deemed to have waived the right to interpose objection and conduct cross-examination. The contents of the pre-trial order shall control the subsequent proceedings, unless modified before trial to prevent manifest injustice. (7a)

 

Section 8. Court-Annexed Mediation. — After pre-trial and, after issues are joined, the court shall refer the parties for mandatory court-annexed mediation. The period for court-annexed mediation shall not exceed thirty (30) calendar days without further extension. (n)
Section 9. Judicial Dispute Resolution. — Only if the judge of the court to which the case was originally raffled is convinced that settlement is still possible, the case may be referred to another court for judicial dispute resolution. The judicial dispute resolution shall be conducted within a non-extendible period of fifteen (15) calendar days from notice of failure of the court-annexed mediation.

 

If judicial dispute resolution fails, trial before the original court shall proceed on the dates agreed upon.

 

All proceedings during the court-annexed mediation and the judicial dispute resolution shall be confidential. (n)

 

Section. 10. Judgment after pre-trial. — Should there be no more controverted facts, or no more genuine issue as to any material fact, or an absence of any issue, or should the answer fail to tender an issue, the court shall, without prejudice to a party moving for judgment on the pleadings under Rule 34 or summary judgment under Rule 35, motu proprio include in the pre-trial order that the case be submitted for summary judgment or judgment on the pleadings, without need of position papers or memoranda. In such cases, judgment shall be rendered within ninety (90) calendar days from termination of the pre-trial.

 

The order of the court to submit the case for judgment pursuant to this Rule shall not be the subject to appeal or certiorari. (n)

 

RULE 19
INTERVENTION

 

Section 1. Who may intervene. — A person who has a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenor’s rights may be fully protected in a separate proceeding. (1)

 

Section 2. Time to intervene. — The motion to intervene may be filed at any time before rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties. (2)

 

Section 3. Pleadings-in-intervention. — The intervenor shall file a complaint-in-intervention if he or she asserts a claim against either or all of the original parties, or an answer-in-intervention if he or she unites with the defending party in resisting a claim against the latter. (3a)

 

Section 4. Answer to complaint-in-intervention. — The answer to the complaint-in-intervention shall be filed within fifteen (15) calendar days from notice of the order admitting the same, unless a different period is fixed by the court. (4a)

 

RULE 20
CALENDAR OF CASES

 

Section 1. Calendar of cases. — The clerk of court, under the direct supervision of the judge, shall keep a calendar of cases for pre-trial, for trial, those whose trials were adjourned or postponed, and those with motions to set for hearing. Preference shall be given to habeas corpus cases, election, cases, special civil actions, and those so required by law. (1)

 

Section 2. Assignment of cases. — The assignment of cases to the different branches of a court shall be done exclusively by raffle. The assignment shall be done in open session of which adequate notice shall be given so as to afford interested parties the opportunity to be present. (2)

 

RULE 21
SUBPOENA

 

Section 1. Subpoena and subpoena duces tecum. — Subpoena is a process directed to a person requiring him or her to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his or her deposition. It may also require him or her to bring with him or her any books, documents, or other things under his or her control, in which case it is called a subpoena duces tecum. (1a)

 

Section 2. By whom issued. — The subpoena may be issued by –

 

(a) The court before whom the witness is required to attend;
(b) The court of the place where the deposition is to be taken;
(c) The officer or body authorized by law to do so in connection with investigations conducted by said officer or body; or
(d) Any Justice of the Supreme Court or the Court of Appeals in any case or investigation pending within the Philippines.

 

When an application for a subpoena to a prisoner is made, the judge or officer shall examine and study carefully such application to determine whether the same is made for a valid purpose.

 

No prisoner sentenced to death, reclusion perpetua or life imprisonment and who is confined in any penal institution shall be brought outside the penal institution for appearance or attendance in any court unless authorized by the Supreme Court. (2a)
Section 3. Form and contents. — A subpoena shall state the name of the court and the title of the action or investigation, shall be directed to the person whose attendance is required, and in the case of a subpoena duces tecum, it shall also contain a reasonable description of the books, documents or things demanded which must appear to the court prima facie relevant. (3)

 

Section 4. Quashing a subpoena. — The court may quash a subpoena duces tecum upon motion promptly made and, in any event, at or before the time specified therein if it is unreasonable and oppressive, or the relevancy of the books, documents or things does not appear, or if the person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof.

 

The court may quash a subpoena ad testificandum on the ground that the witness is not bound thereby. In either case, the subpoena may be quashed on the ground that the witness fees and kilometrage allowed by these Rules were not tendered when the subpoena was served. (4)

 

Section 5. Subpoena for depositions. — Proof of service of a notice to take a deposition, as provided in Sections 15 and 25 of Rule 23, shall constitute sufficient authorization for the issuance of subpoenas for the persons named in said notice by the clerk of the court of the place in which the deposition is to be taken. The clerk shall not, however, issue a subpoena duces tecum to any such person without an order of the court. (5)

 

Section 6. Service. —Service of a subpoena shall be made in the same manner as personal or substituted service of summons. The original shall be exhibited and a copy thereof delivered to the person on whom it is served. The service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance.

 

Costs for court attendance and the production of documents and other materials subject of the subpoena shall be tendered or charged accordingly. (6a)

 

Section 7. Personal appearance in court. — A person present in court before a judicial officer may be required to testify as if he or she were in attendance upon a subpoena issued by such court or officer. (7a)

 

Section 8. Compelling attendance. — In case of failure of a witness to attend, the court or judge issuing the subpoena, upon proof of the service thereof and of the failure of the witness, may issue a warrant to the sheriff of the province, or his or her deputy, to arrest the witness and bring him or her before the court or officer where his or her attendance is required, and the cost of such warrant and seizure of such witness shall be paid by the witness if the court issuing it shall determine that his or her failure to answer the subpoena was willful and without just excuse. (8a)

 

Section 9. Contempt. — Failure by any person without adequate cause to obey a subpoena served upon him or her shall be deemed a contempt of the court from which the subpoena is issued. If the subpoena was not issued by a court, the disobedience thereto shall be punished in accordance with the applicable law or Rule. (9a)

 

Section 10. Exceptions. — The provisions of Sections 8 and 9 of this Rule shall not apply to a witness who resides more than one hundred (100) kilometers from his or her residence to the place where he or she is to testify by the ordinary course of travel, or to a detention prisoner if no permission of the court in which his or her case is pending was obtained. (10a)

 

RULE 22
COMPUTATION OF TIME
Section 1. How to compute time. — In computing any period of time prescribed or allowed by these Rules, or by order of the court, or by any applicable statute, the day of the act or event from which the designated period of time begins to run is to be excluded and the date of performance included. If the last day of the period, as thus computed, falls on a Saturday, a Sunday, or a legal holiday in the place where the court sits, the time shall not run until the next working day. (1)

 

Section 2. Effect of Interruption. — Should an act be done which effectively interrupts the running of the period, the allowable period after such interruption shall start to run on the day after notice of the cessation of the cause thereof.

 

The day of the act that caused the interruption shall be excluded in the computation of the period. (2)

 

RULE 23
DEPOSITIONS PENDING ACTIONS

 

Section 1. Depositions pending action, when may be taken. — Upon ex parte motion of a party, the testimony of any person, whether a party or not, may be taken by deposition upon oral examination or written interrogatories. The attendance of witnesses may be compelled by the use of a subpoena as provided in Rule 21. Depositions shall be taken only in accordance with these Rules. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. (1a)

 

Section 2. Scope of examination. — Unless otherwise ordered by the court as provided by Section 16 or 18 of this Rule, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject of the pending action, whether relating to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. (2)
Section 3. Examination and cross-examination. —Examination and cross- examination of deponents may proceed as permitted at the trial under Sections 3 to 18 of Rule 132. (3)

 

Section 4. Use of depositions. — At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions:

 

(a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness;
(b) The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose;
(c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (1) that the witness is dead; or (2) that the witness resides at a distance more than one hundred (100) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his or her absence was procured by the party offering the deposition; or (3) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (4) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (5) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; and
(d) If only part of a deposition is offered in evidence by a party, the adverse party may require him or her to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts. (4a)

 

Section 5. Effect of substitution of parties. — Substitution of parties does not affect the right to use depositions previously taken; and, when an action has been dismissed and another action involving the same subject is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor. (5)

 

Section 6. Objections to admissibility. — Subject to the provisions of Section 29 of this Rule, objections may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying. (6)

 

Section 7. Effect of taking depositions. — A party shall not be deemed to make a person his or her own witness for any purpose by taking his or her deposition. (7a)

 

Section 8. Effect of using depositions. — The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, but this shall not apply to the use by an adverse party of a deposition as described in paragraph (b) of Section 4 of this Rule. (8)

 

Section 9. Rebutting deposition. — At the trial or hearing, any party may rebut any relevant evidence contained in a deposition whether introduced by him or her or by any other party. (9a)

 

Section 10. Persons before whom depositions may be taken within the Philippines. — Within the Philippines, depositions may be taken before any judge, notary public, or the person referred to in Section 14 hereof. (10)

 

Section 11. Persons before whom depositions may be taken in foreign countries. —In a foreign state or country, depositions may be taken (a) on notice before a secretary of embassy or legation, consul general, consul, vice-consul, or consular agent of the Republic of the Philippines; (b) before such person or officer as may be appointed by commission or under letters rogatory; or (c) the person referred to in Section 14 hereof. (11)

 

Section 12. Commission or letters rogatory. — A commission or letters rogatory shall be issued only when necessary or convenient, on application and notice, and on such terms and with such direction as are just and appropriate. Officers may be designated in notices or commissions either by name or descriptive title and letters rogatory may be addressed to the appropriate judicial authority in the foreign country. (12)

 

Section 13. Disqualification by interest. — No deposition shall be taken before a person who is a relative within the sixth degree of consanguinity or affinity, or employee or counsel of any of the parties; or who is a relative within the same degree, or employee of such counsel; or who is financially interested in the action. (13)

 

Section 14. Stipulations regarding taking of depositions. — If the parties so stipulate in writing, depositions may be taken before any person authorized to administer oaths, at any time or place, in accordance with these Rules, and when so taken may be used like other depositions. (14)

 

Section 15. Deposition upon oral examination; notice; time and place. — A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and if the name is not known, a general description sufficient to identify him or her or the particular class or group to which he or she belongs. On motion of any party upon whom the notice is served, the court may for cause shown enlarge or shorten the time. (15a)
Section 16. Orders for the protection of parties and deponents. — After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and for good cause shown, the court in which the action is pending may make the following orders:

 

(a) That the deposition shall not be taken;
(b) That the deposition may be taken only at some designated place other than that stated in the notice;
(c) That the deposition may be taken only on written interrogatories;
(d) That certain matters shall not be inquired into;
(e) That the scope of the examination shall be held with no one present except the parties to the action and their officers or counsel;
(f) That after being sealed the deposition shall be opened only by order of the court;
(g) That secret processes, developments, or research need not be disclosed; or
(h) That the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.

 

The court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression. (16a)

 

Section 17. Record of examination; oath; objections. — The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by some one acting under his or her direction and in his or her presence, record the testimony of the witness. The testimony shall be taken stenographically unless the parties agree otherwise. All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties served with notice of taking a deposition may transmit written interrogatories to the officers, who shall propound them to the witness and record the answers verbatim. (17a)

 

Section 18. Motion to terminate or limit examination. — At any time during the taking of the deposition, on motion or petition of any party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the Regional Trial Court of the place where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition, as provided in Section 16 of this Rule. If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a notice for an order. In granting or refusing such order, the court may impose upon either party or upon the witness the requirement to pay such costs or expenses as the court may deem reasonable. (18)

 

Section 19. Submission to witness; changes; signing. — When the testimony is fully transcribed, the deposition shall be submitted to the witness for examination and shall be read to or by him or her, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with the reason given therefor, if any, and the deposition may then be used as fully as though signed, unless on a motion to suppress under Section 29(f) of this Rule, the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part. (19a)

 

Section 20. Certification and filing by officer. — The officer shall certify on the deposition that the witness was duly sworn to by him or her and that the deposition is a true record of the testimony given by the witness. He or she shall then securely seal the deposition in an envelope indorsed with the title of the action and marked “Deposition of (here insert the name of witness)” and shall promptly file it with the court in which the action is pending or send it by registered mail to the clerk thereof for filing. (20a)

 

Section 21. Notice of filing. — The officer taking the deposition shall give prompt notice of its filing to all the parties. (21)

 

Section 22. Furnishing copies. — Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent. (22)

 

Section 23. Failure to attend of party giving notice. — If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another attends in person or by counsel pursuant to the notice, the court may order the party giving the notice to pay such other party the amount of the reasonable expenses incurred by him or her and his or her counsel in so attending, including reasonable attorney’s fees. (23a)

 

Section 24. Failure of party giving notice to serve subpoena. — If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon him or her and the witness because of such failure does not attend, and if another party attends in person or by counsel because he or she expects the deposition of that witness to be taken, the court may order the party giving the notice to pay such other party the amount of the reasonable expenses incurred by him or her and his or her counsel in so attending, including reasonable attorney’s fees. (24a)

 

Section 25. Deposition upon written interrogatories; service of notice and of interrogatories. — A party desiring to take the deposition of any person upon written interrogatories shall serve them upon every other party with a notice stating the name and address of the person who is to answer them and the name or descriptive title and address of the officer before whom the deposition is to be taken. Within ten (10) calendar days thereafter, a party so served may serve cross-interrogatories upon the party proposing to take the deposition. Within five (5) calendar days thereafter the latter may serve re-direct interrogatories upon a party who has served cross-interrogatories. Within three (3) calendar days after being served with re-direct interrogatories, a party may serve recross-interrogatories upon the party proposing to take the deposition. (25a)

 

Section 26. Officers to take responses and prepare record. — A copy of the notice and copies of all interrogatories served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, in the manner provided by Sections 17, 19 and 20 of this Rule, to take the testimony of the witness in response to the interrogatories and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the interrogatories received by him or her. (26a)

 

Section 27. Notice of filing and furnishing copies. —When a deposition upon interrogatories is filed, the officer taking it shall promptly give notice thereof to all the parties and may furnish copies to them or to the deponent upon payment of reasonable charges therefor. (27)

 

Section 28. Orders for the protection of parties and deponents. — After the service of the interrogatories and prior to the taking of the testimony of the deponent, the court in which the action is pending, on motion promptly made by a party or a deponent, and for good cause shown, may make any order specified in Sections 15, 16 and 18 of this Rule which is appropriate and just or an order that the deposition shall not be taken before the officer designated in the notice or that it shall not be taken except upon oral examination. (28)

 

Section 29. Effect of errors and irregularities in depositions. —

 

(a) As to notice. — All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice.
(b) As to disqualification of officer. — Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.
(c) As to competency or relevancy of evidence. — Objections to the competency of a witness or the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.
(d) As to oral examination and other particulars. — Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of the parties and errors of any kind which might be obviated, removed, or cured if promptly prosecuted, are waived unless reasonable objection thereto is made at the taking of the deposition.

 

(e) As to form of written interrogatories. — Objections to the form of written interrogatories submitted under Sections 25 and 26 of this Rule are waived unless served in writing upon the party propounding them within the time allowed for serving succeeding cross or other interrogatories and within three (3) calendar days after service of the last interrogatories authorized.

 

(f) As to manner of preparation. — Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under Sections 17, 19, 20 and 26 of this Rules are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained. (29a)

 

RULE 24
DEPOSITIONS BEFORE ACTION OR PENDING APPEAL

 

Section 1. Depositions before action; petition. — A person who desires to perpetuate his or her own testimony or that of another person regarding any matter that may be cognizable in any court of the Philippines, may file a verified petition in the court of the place of the residence of any expected adverse party. (1a)

 

Section 2. Contents of petition. — The petition shall be entitled in the name of the petitioner and shall show: (a) that the petitioner expects to be a party to an action in a court of the Philippines but is presently unable to bring it or cause it to be brought; (b) the subject matter of the expected action and his or her interest therein; (c) the facts which he or she desires to establish by the proposed testimony and his or her reasons for desiring to perpetuate it; (d) the names or a description of the persons he or she expects will be adverse parties and their addresses so far as known; and (e) the names and addresses of the persons to be examined and the substance of the testimony which he or she expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition for the purpose of perpetuating their testimony. (2a)

 

Section 3. Notice and service. — The petitioner shall serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least twenty (20) calendar days before the date of the hearing, the court shall cause notice thereof to be served on the parties and prospective deponents in the manner provided for service of summons. (3a)
Section 4. Order and examination. — If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose deposition may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories. The depositions may then be taken in accordance with Rule 23 before the hearing. (4)

 

Section 5. Reference to court. — For the purpose of applying Rule 23 to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed. (5)

 

Section 6. Use of deposition. — If a deposition to perpetuate testimony is taken under this Rule, or if, although not so taken, it would be admissible in evidence, it may be used in any action involving the same subject matter subsequently brought in accordance with the provisions of Sections 4 and 5 of Rule 23. (6)

 

Section 7. Depositions pending appeal. — If an appeal has been taken from a judgment of a court, including the Court of Appeals in proper cases, or before the taking of an appeal if the time therefor has not expired, the court in which the judgment was rendered may allow the taking of depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the said court. In such case the party who desires to perpetuate the testimony may make a motion in the said court for leave to take the depositions, upon the same notice and service thereof as if the action was pending therein. The motion shall state (a) the names and addresses of the persons to be examined and the substance of the testimony which he or she expects to elicit from each; and (b) the reason for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these Rules for depositions taken in pending actions. (7a)

 

RULE 25
INTERROGATORIES TO PARTIES

 

Section 1. Interrogatories to parties; service thereof. — Upon ex parte motion, any party desiring to elicit material and relevant facts from any adverse parties shall file and serve upon the latter written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association, by any officer thereof competent to testify in its behalf. (1a)

 

Section 2. Answer to interrogatories. — The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making them. The party upon whom the interrogatories have been served shall file and serve a copy of the answers on the party submitting the interrogatories within fifteen (15) calendar days after service thereof, unless the court, on motion and for good cause shown, extends or shortens the time. (2a)

 

Section 3. Objections to interrogatories. — Objections to any interrogatories may be presented to the court within ten (10) calendar days after service thereof, with notice as in case of a motion; and answers shall be deferred until the objections are resolved, which shall be at as early a time as is practicable. (3a)

 

Section 4. Number of interrogatories. — No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party. (4)

 

Section 5. Scope and use of interrogatories. — Interrogatories may relate to any matters that can be inquired into under Section 2 of Rule 23, and the answers may be used for the same purposes provided in Section 4 of the same Rule. (5)

 

Section 6. Effect of failure to serve written interrogatories. — Unless thereafter allowed by the court for good cause shown and to prevent a failure of justice, a party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal. (6)

 

RULE 26
ADMISSION BY ADVERSE PARTY

 

Section 1. Request for admission. — At any time after issues have been joined, a party may file and serve upon any other party a written request for the admission by the latter of the genuineness of any material and relevant document described in and exhibited with the request or of the truth of any material and relevant matter of fact set forth in the request. Copies of the documents shall be delivered with the request unless copies have already been furnished. (1)

 

Section 2. Implied admission. — Each of the matters of which an admission is requested shall be deemed admitted unless, within a period designated in the request, which shall not be less than fifteen (15) calendar days after service thereof, or within such further time as the court may allow on motion, the party to whom the request is directed files and serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he or she cannot truthfully either admit or deny those matters.

 

Objections to any request for admission shall be submitted to the court by the party requested within the period for and prior to the filing of his or her sworn statement as contemplated in the preceding paragraph and his or her compliance therewith shall be deferred until such objections are resolved, which resolution shall be made as early as practicable. (2a)
Section 3. Effect of admission. — Any admission made by a party pursuant to such request is for the purpose of the pending action only and shall not constitute an admission by him or her for any other purpose nor may the same be used against him or her in any other proceeding. (3a)

 

Section 4. Withdrawal. — The court may allow the party making an admission under this Rule, whether express or implied, to withdraw or amend it upon such terms as may be just. (4)

 

Section 5. Effect of failure to file and serve request for admission. — Unless otherwise allowed by the court for good cause shown and to prevent a failure of justice, a party who fails to file and serve a request for admission on the adverse party of material and relevant facts at issue which are, or ought to be, within the personal knowledge of the latter, shall not be permitted to present evidence on such facts. (5)

 

RULE 27
PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS

 

Section 1. Motion for production or inspection; order. — Upon motion of any party showing good cause therefor, the court in which an action is pending may (a) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his or her possession, custody or control; or (b) order any party to permit entry upon designated land or other property in his or her possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon. The order shall specify the time, place and manner of making the inspection and taking copies and photographs, and may prescribe such terms and conditions as are just. (1a)

 

RULE 28
PHYSICAL AND MENTAL EXAMINATION OF PERSONS

 

Section 1. When examination may be ordered. — In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending may in its discretion order him or her to submit to a physical or mental examination by a physician. (1a)

 

Section 2. Order for examination. — The order for examination may be made only on motion for good cause shown and upon notice to the party to be examined and to all other parties, and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made. (2)

 

Section 3. Report of findings. — If requested by the party examined, the party causing the examination to be made shall deliver to him or her a copy of a detailed written report of the examining physician setting out his or her findings and conclusions. After such request and delivery, the party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination, previously or thereafter made, of the same mental or physical condition. If the party examined refuses to deliver such report, the court on motion and notice may make an order requiring delivery on such terms as are just, and if a physician fails or refuses to make such a report, the court may exclude his or her testimony if offered at the trial. (3a)

 

Section 4. Waiver of privilege. — By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he or she may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him or her in respect of the same mental or physical examination. (4a)

 

RULE 29
REFUSAL TO COMPLY WITH MODES OF DISCOVERY

 

Section 1. Refusal to answer. — If a party or other deponent refuses to answer any question upon oral examination, the examination may be completed on other matters or adjourned as the proponent of the question may prefer. The proponent may thereafter apply to the proper court of the place where the deposition is being taken, for an order to compel an answer. The same procedure may be availed of when a party or a witness refuses to answer any interrogatory submitted under Rules 23 or 25.

 

If the application is granted, the court shall require the refusing party or deponent to answer the question or interrogatory and if it also finds that the refusal to answer was without substantial justification, it may require the refusing party or deponent or the counsel advising the refusal, or both of them, to pay the proponent the amount of the reasonable expenses incurred in obtaining the order, including attorney’s fees.

 

If the application is denied and the court finds that it was filed without substantial justification, the court may require the proponent or the counsel advising the filing of the application, or both of them, to pay to the refusing party or deponent the amount of the reasonable expenses incurred in opposing the application, including attorney’s fees. (1)

 

Section 2. Contempt of court. — If a party or other witness refuses to be sworn or refuses to answer any question after being directed to do so by the court of the place in which the deposition is being taken, the refusal may be considered a contempt of that court (2).

 

Section 3. Other consequences. — If any party or an officer or managing agent of a party refuses to obey an order made under Section 1 of this Rule requiring him or her to answer designated questions, or an order under Rule 27 to produce any document or other thing for inspection, copying, or photographing or to permit it to be done, or to permit entry upon land or other property, or an order made under Rule 28 requiring him or her to submit to a physical or mental examination, the court may make such orders in regard to the refusal as are just, and among others the following:

 

(a)(a) An order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of the paper, or the physical or mental condition of the party, or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(b) An order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting him or her from introducing in evidence designated documents or things or items of testimony, or from introducing evidence of physical or mental condition;
(c) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgement by default against the disobedient party; and
(d) In lieu of any of the foregoing orders or in addition thereto, an order directing the arrest of any party or agent of a party for disobeying any of such orders except an order to submit to a physical or mental examination. (3a)

 

Section 4. Expenses on refusal to admit. — If a party after being served with a request under Rule 26 to admit the genuineness of any document or the truth of any matter of fact, serves a sworn denial thereof and if the party requesting the admissions thereafter proves the genuineness of such document or the truth of any such matter of fact, he or she may apply to the court for an order requiring the other party to pay him or her the reasonable expenses incurred in making such proof, including reasonable attorney’s fees. Unless the court finds that there were good reasons for the denial or that admissions sought were of no substantial importance, such order shall be issued. (4a)

 

SECTION 5. Failure of party to attend or serve answers. — If a party or an officer or managing agent of a party wilfully fails to appear before the officer who is to take his or her deposition, after being served with a proper notice, or fails to serve answers to interrogatories submitted under Rule 25 after proper service of such interrogatories, the court on motion and notice, may strike out all or any part of any pleading of that party, or dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party, and in its discretion, order him or her to pay reasonable expenses incurred by the other, including attorney’s fees. (5a)

 

Section 6. Expenses against the Republic of the Philippines. — Expenses and attorney’s fees are not to be imposed upon the Republic of the Philippines under this Rule. (6)

 

RULE 30
TRIAL

 

Section 1. Schedule of trial. — The parties shall strictly observe the scheduled hearings as agreed upon and set forth in the pre-trial order.
(a) The schedule of the trial dates, for both plaintiff and defendant, shall be continuous and within the following periods:

 

i. The initial presentation of plaintiff’s evidence shall be set not later than thirty (30) calendar days after the termination of the pre-trial conference. Plaintiff shall be allowed to present its evidence within a period of three (3) months or ninety (90) calendar days which shall include the date of the judicial dispute resolution, if necessary;

 

ii. The initial presentation of defendant’s evidence shall be set not later than thirty (30) calendar days after the court’s ruling on plaintiff’s formal offer of evidence. The defendant shall be allowed to present its evidence within a period of three (3) months or ninety (90) calendar days;

 

iii. The period for the presentation of evidence on the third (fourth, etc.) -party claim, counterclaim or cross-claim shall be determined by the court, the total of which shall in no case exceed ninety (90) calendar days; and

 

iv. If deemed necessary, the court shall set the presentation of the parties’ respective rebuttal evidence, which shall be completed within a period of thirty (30) calendar days.

 

(b) The trial dates may be shortened depending on the number of witnesses to be presented, provided that the presentation of evidence of all parties shall be terminated within a period of ten (10) months or three hundred (300) calendar days. If there are no third (fourth, etc.)-party claim, counterclaim or cross-claim, the presentation of evidence shall be terminated within a period of six (6) months or one hundred eighty (180) calendar days.

 

(c) The court shall decide and serve copies of its decision to the parties within a period not exceeding ninety (90) calendar days from the submission of the case for resolution, with or without memoranda. (n)

 

Section 2. Adjournments and postponements. — A court may adjourn a trial from day to day, and to any stated time, as the expeditious and convenient transaction of business may require, but shall have no power to adjourn a trial for a longer period than one month for each adjournment, nor more than three months in all, except when authorized in writing by the Court Administrator, Supreme Court.

 

The party who caused the postponement is warned that the presentation of its evidence must still be terminated on the remaining dates previously agreed upon. (2a)

 

[Section 3. Requisites of motion to postpone trial for absence of evidence. — Deleted]

 

Section 3. Requisites of motion to postpone trial for illness of party or counsel.—A motion to postpone a trial on the ground of illness of a party or counsel may be granted if it appears upon affidavit or sworn certification that the presence of such party or counsel at the trial is indispensable and that the character of his or her illness is such as to render his or her non-attendance excusable. (4a)

 

Section 4. Hearing days and calendar call. — Trial shall be held from Monday to Thursday, and courts shall call the cases at exactly 8:30 a.m. and 2:00 p.m., pursuant to Administrative Circular No. 3-99. Hearing on motions shall be held on Fridays, pursuant to Section 8, Rule 15.

 

All courts shall ensure the posting of their court calendars outside their courtrooms at least one (1) day before the scheduled hearings, pursuant to OCA Circular No. 250-2015. (n)

 

Section 5. Order of trial. —Subject to the provisions of Section 2 of Rule 31, and unless the court for special reasons otherwise directs, the trial shall be limited to the issues stated in the pre-trial order and shall proceed as follows:

 

(a) The plaintiff shall adduce evidence in support of his or her complaint;

 

(b) The defendant shall then adduce evidence in support of his or her defense, counterclaim, cross-claim and third-party complaint;

 

(c) The third-party defendant, if any, shall adduce evidence of his or her defense, counterclaim, cross-claim and fourth-party complaint;

 

(d) The fourth-party, and so forth, if any, shall adduce evidence of the material facts pleaded by them;

 

(e) The parties against whom any counterclaim or cross-claim has been pleaded, shall adduce evidence in support of their defense, in the order to be prescribed by the court;

 

(f) The parties may then respectively adduce rebutting evidence only, unless the court, for good reasons and in the furtherance of justice, permits them to adduce evidence upon their original case; and

 

(g) Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs the parties to argue or to submit their respective memoranda or any further pleadings.
If several defendants or third-party defendants, and so forth, having separate defenses appear by different counsel, the court shall determine the relative order of presentation of their evidence. (5a)

 

Section 6. Oral offer of exhibits. — The offer of evidence, the comment or objection thereto, and the court ruling shall be made orally in accordance with Sections 34 to 40 of Rule 132. (n)

 

Section 7. Agreed statement of facts. —The parties to any action may agree, in writing, upon the facts involved in the litigation, and submit the case for judgment on the facts agreed upon, without the introduction of evidence.If the parties agree only on some of the facts in issue, the trial shall be held as to the disputed facts in such order as the court shall prescribe. (6)

 

[Section 7. Statement of judge. — Deleted]

 

Section 8. Suspension of actions. — The suspension of actions shall be governed by the provisions of the Civil Code and other laws. (8a)

 

Section9. Judge to receive evidence; delegation to clerk of court. —The judge of the court where the case is pending shall personally receive the evidence to be adduced by the parties. However, in default or ex parte hearings, and in any case where the parties agree in writing, the court may delegate the reception of evidence to its clerk of court who is a member of the bar. The clerk of court shall have no power to rule on objections to any question or to the admission of exhibits, which objections shall be resolved by the court upon submission of his or her report and the transcripts within ten (10) calendar days from termination of the hearing. (9a)

 

RULE 31
CONSOLIDATION OR SEVERANCE

 

Section 1. Consolidation. — When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. (1)

 

Section 2. Separate trials. — The court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim, cross-claim, counterclaim, or third-party complaint, or of any separate issue or of any number of claims, crossclaims, counterclaims, third-party complaints or issues. (2)

 

RULE 32
TRIAL BY COMMISSIONER

 

Section 1. Reference by consent. — By written consent of both parties, the court may order any or all of the issues in a case to be referred to a commissioner to be agreed upon by the parties or to be appointed by the court. As used in these Rules, the word “commissioner” includes a referee, an auditor and an examiner. (1)

 

Section 2. Reference ordered on motion. — When the parties do not consent, the court may, upon the application of either or of its own motion, direct a reference to a commissioner in the following cases:

 

(a) When the trial of an issue of fact requires the examination of a long account on either side, in which case the commissioner may be directed to hear and report upon the whole issue or any specific question involved therein;
(b) When the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment or order into effect;
(c) When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of a case, or for carrying a judgment or order into effect. (2)

 

Section 3. Order of reference; powers of the commissioner. — When a reference is made, the clerk shall forthwith furnish the commissioner with a copy of the order of reference. The order may specify or limit the powers of the commissioner, and may direct him or her to report only upon particular issues, or to do or perform particular acts, or to receive and report evidence only, and may fix the date for beginning and closing the hearings and for the filing of his or her report. Subject to the specifications and limitations stated in the order, the commissioner has and shall exercise the power to regulate the proceedings in every hearing before him or her and to do all acts and take all measures necessary or proper for the efficient performance of his or her duties under the order. He or she may issue subpoenas and subpoenas duces tecum, swear witnesses, and unless otherwise provided in the order of reference, he or she may rule upon the admissibility of evidence. The trial or hearing before him or her shall proceed in all respects as it would if held before the court. (3a)

 

Section 4. Oath of commissioner. — Before entering upon his or her duties the commissioner shall be sworn to a faithful and honest performance thereof. (4a)

 

Section 5. Proceedings before commissioner. — Upon receipt of the order of reference unless otherwise provided therein, the commissioner shall forthwith set a time and place for the first meeting of the parties or their counsel to be held within ten (10) calendar days after the date of the order of reference and shall notify the parties or their counsel. (5a)

 

Section 6. Failure of parties to appear before commissioner. — If a party fails to appear at the time and place appointed, the commissioner may proceed ex parte or, in his or her discretion, adjourn the proceedings to a future day, giving notice to the absent party or his or her counsel of the adjournment. (6a)

 

Section 7. Refusal of witness. — The refusal of a witness to obey a subpoena issued by the commissioner or to give evidence before him or her, shall be deemed a contempt of the court which appointed the commissioner. (7a)

 

Section 8. Commissioner shall avoid delays. — It is the duty of the commissioner to proceed with all reasonable diligence. Either party, on notice to the parties and commissioner, may apply to the court for an order requiring the commissioner to expedite the proceedings and to make his or her report. (8a)

 

Section 9. Report of commissioner. — Upon the completion of the trial or hearing or proceeding before the commissioner, he or she shall file with the court his or her report in writing upon the matters submitted to him or her by the order of reference. When his or her powers are not specified or limited, he or she shall set forth his or her findings of fact and conclusions of law in his or her report. He or she shall attach thereto all exhibits, affidavits, depositions, papers and the transcript, if any, of the testimonial evidence presented before him or her. (9a)

 

Section 10. Notice to parties of the filing of report. — Upon the filing of the report, the parties shall be notified by the clerk, and they shall be allowed ten (10) calendar days within which to signify grounds of objections to the findings of the report, if they so desire. Objections to the report based upon grounds which were available to the parties during the proceedings before the commissioner, other than objections to the findings and conclusions therein set forth, shall not be considered by the court unless they were made before the commissioner. (10a)

 

Section 11. Hearing upon report. — Upon the expiration of the period of ten (10) calendar days referred to in the preceding section, the report shall be set for hearing, after which the court shall issue an order adopting, modifying, or rejecting the report in whole or in part, or recommitting it with instructions, or requiring the parties to present further evidence before the commissioner or the court. (11a)

 

Section 12. Stipulations as to findings. — When the parties stipulate that a commissioner’s findings of fact shall be final, only questions of law shall thereafter be considered. (12)

 

Section 13. Compensation of commissioner. — The court shall allow the commissioner such reasonable compensation as the circumstances of the case warrant, to be taxed as costs against the defeated party, or apportioned, as justice requires. (13)

 

RULE 33
DEMURRER TO EVIDENCE

 

Section 1. Demurrer to evidence. — After the plaintiff has completed the presentation of his or her evidence, the defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. If his or her motion is denied, he or she shall have the right to present evidence. If the motion is granted but on appeal the order of dismissal is reversed, he or she shall be deemed to have waived the right to present evidence. (1a)

 

Section 2. Action on demurrer to evidence. — A demurrer to evidence shall be subject to the provisions of Rule 15.

 

The order denying the demurrer to evidence shall not be subject of an appeal or petition for certiorari, prohibition or mandamus before judgment. (n)

 

RULE 34
JUDGMENT ON THE PLEADINGS

 

Section 1. Judgment on the pleadings. – Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party’s pleading, the court may, on motion of that party, direct judgment on such pleading. However, in actions for declaration of nullity or annulment of marriage or for legal separation, the material facts alleged in the complaint shall always be proved. (1)

 

Section 2. Action on motion for judgment on the pleadings. — The court may motu proprio or on motion render judgment on the pleadings if it is apparent that the answer fails to tender an issue, or otherwise admits the material allegations of the adverse party’s pleadings. Otherwise, the motion shall be subject to the provisions of Rule 15 of these Rules.

 

Any action of the court on a motion for judgment on the pleadings shall not be subject of an appeal or petition for certiorari, prohibition or mandamus. (n)

 

RULE 35
SUMMARY JUDGMENTS

 

Section 1. Summary judgment for claimant. — A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory relief may, at any time after the pleading in answer thereto has been served, move with supporting affidavits, depositions or admissions for a summary judgment in his or her favor upon all or any part thereof. (1a)

 

Section 2. Summary judgment for defending party. — A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief is sought may, at any time, move with supporting affidavits, depositions or admissions for a summary judgment in his or her favor as to all or any part thereof. (2a)

 

Section 3. Motion and proceedings thereon. — The motion shall cite the supporting affidavits, depositions or admissions, and the specific law relied upon. The adverse party may file a comment and serve opposing affidavits, depositions, or admissions within a non-extendible period of five (5) calendar days from receipt of the motion. Unless the court orders the conduct of a hearing, judgment sought shall be rendered forthwith if the pleadings, supporting affidavits, depositions and admissions on file, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

 

Any action of the court on a motion for summary judgment shall not be subject of an appeal or petition for certiorari, prohibition or mandamus. (3a)

 

Section 4. Case not fully adjudicated on motion. — If on motion under this Rule, judgment is not rendered upon the whole case or for all the reliefs sought and a trial is necessary, the court may, by examining the pleadings and the evidence before it and by interrogating counsel, ascertain what material facts exist without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and direct such further proceedings in the action as are just. The facts so ascertained shall be deemed established, and the trial shall be conducted on the controverted facts accordingly. (4a)

 

Section 5. Form of affidavits and supporting papers. — Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Certified true copies of all papers or parts thereof referred to in the affidavit shall be attached thereto or served therewith. (5)

 

Section 6. Affidavits in bad faith. — Should it appear to its satisfaction at any time that any of the affidavits presented pursuant to this Rule are presented in bad faith, or solely for the purpose of delay, the court shall forthwith order the offending party or counsel to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him or her to incur, including attorney’s fees, it may, after hearing further adjudge the offending party or counsel guilty of contempt. (6a)

 

x x x      x x x     x x x

 

RULE 144
EFFECTIVENESS

 

These rules shall take effect on January 1, 1964. They shall govern all cases brought after they take effect, and also all further proceedings in cases then pending, except to the extent that in the opinion of the court, their application would not be feasible or would work injustice, in which even the former procedure shall apply.

 

The application and adherence to the said amendments shall be subject to periodic monitoring by the Sub-Committee, through the Office of the Court Administrator (OCA). For this purpose, all courts covered by the said amendments shall accomplish and submit a periodic report of data in a form to be generated and distributed by the OCA. (n)

 

All rules, resolutions, regulations or circulars of the Supreme Court or parts thereof that are inconsistent with any provision of the said amendments are hereby deemed repealed or modified accordingly. (n)

 

&nsbp;

See prescribed forms at pages 57-61 of the original PDF: http://sc.judiciary.gov.ph/9284/

Case Digest: Philippines vs. China (South China Sea Arbitration) – quick digest

May fix this digest after the bar. Made this as short as possible by focusing on legal and not factual issues.

I. to IV. skip

V. THE ‘NINE-DASH LINE’ AND CHINA’S CLAIM TO HISTORIC RIGHTS IN THE MARITIME AREAS OF THE SOUTH CHINA SEA (SUBMISSIONS NO. 1 AND 2)

ISSUE: WoN China is entitled only to those rights provided for by the Convention (UNCLOS)

HeldYES, the Convention defines the scope of maritime entitlements in the South China Sea, which may not extend beyond the limits imposed therein (paragraph 277).

Ratio: (Paragraph 243) As a matter of the text alone, the Tribunal considers that the Convention is clear in according sovereign rights to the living and non-living resources of the exclusive economic zone to the coastal State alone. The notion of sovereign rights over living and non-living resources is generally incompatible with another State having historic rights to the same resources, in particular if such historic rights are considered exclusive, as China’s claim to historic rights appears to be. Furthermore, the Tribunal considers that, as a matter of ordinary interpretation, the (a) express inclusion of an article setting out the rights of other States and (b) attention given to the rights of other States in the allocation of any excess catch preclude the possibility that the Convention intended for other States to have rights in the exclusive economic zone in excess of those specified.

(Paragraph 245) Moving from the text to the context of exclusive economic zone rights, the Tribunal recalls its earlier observation (see paragraph 231) that the system of maritime zones created by the Convention was intended to be comprehensive and to cover any area of sea or seabed. The same intention for the Convention to provide a complete basis for the rights and duties of the States Parties is apparent in the Preamble, which notes the intention to settle “all issues relating to the law of the sea” and emphasises the desirability of establishing “a legal order for the seas.” The same objective of limiting exceptions to the Convention to the greatest extent possible is also evident in Article 309, which provides that “[n]o reservations or exceptions may be made to this Convention unless expressly permitted by other articles of this Convention.”

(Paragraph 246) Insofar as China’s relevant rights comprise a claim to historic rights to living and non-living resources within the ‘nine-dash line’, partially in areas that would otherwise comprise the exclusive economic zone or continental shelf of the Philippines, the Tribunal cannot agree with this position. The Convention does not include any express provisions preserving or protecting historic rights that are at variance with the Convention. On the contrary, the Convention supersedes earlier rights and agreements to the extent of any incompatibility. The Convention is comprehensive in setting out the nature of the exclusive economic zone and continental shelf and the rights of other States within those zones. China’s claim to historic rights is not compatible with these provision.

(Paragraph 247) The Tribunal considers the text and context of the Convention to be clear in superseding any historic rights that a State may once have had in the areas that now form part of the exclusive economic zone and continental shelf of another State. There is no ambiguity here that would call for the Tribunal to have recourse to the supplementary means of interpretation set out in Article 32 of the Vienna Convention. Nevertheless, in light of the sensitivity of the matters at issue in these proceedings, the Tribunal considers it warranted to recall the origin of and purpose behind the Convention’s provisions on the exclusive economic zone and continental shelf. (see item ii. “The Negotiation of the Convention and the Creation of the Exclusive Economic Zone”, paragraphs 248-54)

(Paragraph 255) The present dispute is not the first instance in which a State has claimed rights in or to the exclusive economic zone of a neighbouring State. The Tribunal considers it useful, for the purpose of confirming its own reasoning, to briefly canvas the other decisions to have addressed claims involving rights in the exclusive economic zone of another State. (See paragraphs 256-260)

(Paragraph 261) For all of the reasons discussed above, the Tribunal concludes that China’s claim to historic rights to the living and non-living resources within the ‘nine-dash line’ is incompatible with the Convention to the extent that it exceeds the limits of China’s maritime zones as provided for by the Convention. This is apparent in the text of the Convention which comprehensively addresses the rights of other States within the areas of the exclusive economic zone and continental shelf and leaves no space for an assertion of historic rights. It is also reinforced by the negotiating record of the Convention where the importance of adopting a comprehensive instrument was manifest and where the cause of securing the rights of developing States over their exclusive economic zone and continental shelf was championed, in particular, by China

(Paragraph 262) Accordingly, upon China’s accession to the Convention and its entry into force, any historic rights that China may have had to the living and non-living resources within the ‘nine-dash line’ were superseded, as a matter of law and as between the Philippines and China, by the limits of the maritime zones provided for by the Convention. This should not be considered exceptional or unexpected. The Convention was a package that did not, and could not, fully reflect any State’s prior understanding of its maritime rights. Accession to the Convention reflects a commitment to bring incompatible claims into alignment with its provisions, and its continued operation necessarily calls for compromise by those States with prior claims in excess of the Convention’s limits.

ISSUE: WoN the rights provided for by the Convention are supplemented or modified by any historic rights, including within the area marked by the ‘nine-dash line’ on Chinese maps

Held: NO, the Convention superseded any historic rights or other sovereign rights or jurisdiction in excess of the limits imposed therein. (paragraph 278).

Ratio: (Paragraph 268) On this issue, the Tribunal notes that historic rights are, in most instances, exceptional rights. They accord a right that a State would not otherwise hold, were it not for the operation of the historical process giving rise to the right and the acquiescence of other States in the process. It follows from this, however, that the exercise of freedoms permitted under international law cannot give rise to a historic right; it involves nothing that would call for the acquiescence of other States and can only represent the use of what international law already freely permits.

(Paragraph 270) Historical navigation and fishing, beyond the territorial sea, cannot therefore form the basis for the emergence of a historic right. As the Chamber in Gulf of Maine recognised with respect to historic U.S. fishing on the Georges Bank, such activity was merely the exercise of freedoms already permitted by international law. Evidence that merely points to even very intensive Chinese navigation and fishing in the South China Sea would be insufficient. Instead, in order to establish historic rights in the waters of the South China Sea, it would be necessary to show that China had engaged in activities that deviated from what was permitted under the freedom of the high seas and that other States acquiesced in such a right. In practice, to establish the exclusive historic right to living and non-living resources within the ‘nine-dash line’, which China now appears to claim, it would be necessary to show that China had historically sought to prohibit or restrict the exploitation of such resources by the nationals of other States and that those States had acquiesced in such restrictions. In the Tribunal’s view, such a claim cannot be supported. The Tribunal is unable to identify any evidence that would suggest that China historically regulated or controlled fishing in the South China Sea, beyond the limits of the territorial sea. With respect to the non-living resources of the seabed, the Tribunal does not even see how this would be theoretically possible. Seabed mining was a glimmer of an idea when the Seabed Committee began the negotiations that led to the Convention. Offshore oil extraction was in its infancy and only recently became possible in deep water areas. Indeed, the China National Offshore Oil Corporation itself was only founded in 1982, the same year that China signed the Convention. With respect to the seabed, the Tribunal does not see any historical activity that could have been restricted or controlled, and correspondingly no basis for a historic right.

(Paragraph 271) Accordingly, in the Tribunal’s view, China’s ratification of the Convention in June 1996 did not extinguish historic rights in the waters of the South China Sea. Rather, China relinquished the freedoms of the high seas that it had previously utilised with respect to the living and non-living resources of certain sea areas which the international community had collectively determined to place within the ambit of the exclusive economic zone of other States. At the same time, China gained a greater degree of control over the maritime zones adjacent to and projecting from its coasts and islands. China’s freedom to navigate the South China Sea remains unaffected.

(Paragraph 272) Finally, because the Tribunal considers the question of historic rights with respect to maritime areas to be entirely distinct from that of historic rights to land, the Tribunal considers it opportune to note that certain claims remain unaffected by this decision. In particular, the Tribunal emphasises that nothing in this Award should be understood to comment in any way on China’s historic claim to the islands of the South China Sea. Nor does the Tribunal’s decision that a claim of historic rights to living and non-living resources is not compatible with the Convention limit China’s ability to claim maritime zones in accordance with the Convention, on the basis of such islands. The Tribunal will address the question of the entitlements that can be generated by different features in the South China Sea in the following Chapter.

(Paragraph 271) As a final matter, and for the sake of completeness, the Tribunal considers it appropriate to briefly address whether China has acquired rights or jurisdiction at variance with the Convention in the years since the Convention entered into force in 1996.

(Paragraph 273) The Tribunal does not consider it necessary here to address in general whether and under which conditions the Convention may be modified by State practice. It is sufficient to say that a unilateral act alone is not sufficient. Such a claim would require the same elements discussed above with respect to historic rights: the assertion by a State of a right at variance with the Convention, acquiescence therein by the other States Parties, and the passage of sufficient time to establish beyond doubt the existence of both the right and a general acquiescence. Here, however, there is no basis for such a claim. Since the adoption of the Convention, historic rights were mentioned in China’s Exclusive Economic Zone and Continental Shelf Act, but without anything that would enable another State to know the nature or extent of the rights claimed. The extent of the rights asserted within the ‘nine-dash line’ only became clear with China’s Notes Verbales of May 2009. Since that date, China’s claims have been clearly objected to by other States.

VI. THE STATUS OF FEATURES IN THE SOUTH CHINA SEA (SUBMISSIONS NO. 3 TO 7)

(Paragraph 280, note terms) In the terminology of the Convention, a feature that is exposed at low tide but covered with water at high tide is referred to as a ‘low-tide elevation’. Features that are above water at high tide are referred to generically as ‘islands’. However, the entitlements that an island can generate to maritime zones will depend upon the application of Article 121(3) of the Convention and whether the island has the capacity to “sustain human habitation or economic life of [its] own.” Throughout this Chapter, the Tribunal will refer to the generic category of features that meet the definition of an island in Article 121(1) as ‘high-tide features’. The Tribunal will use the term ‘rocks’ for high-tide features that “cannot sustain human habitation or economic life of their own” and which therefore, pursuant to Article 121(3), are disqualified from generating an exclusive economic zone or continental shelf. For high-tide features which are not rocks, and which pursuant to Article 121(2) enjoy the same entitlements as other land territory under the Convention, the Tribunal will use the term ‘fully entitled islands’. ‘Rocks’ and ‘fully entitled islands’ are thus both sub-sets of the broader category of ‘high-tide features’. Finally, the Tribunal will refer to features that are fully submerged, even at low tide, as ‘submerged features’.

Issue: What features are high-tide and low-tide elevations?

Held: (Paragraph 382) The following features include, or in their natural condition did include, rocks or sand cays that remain above water at high tide and are, accordingly, high-tide features: (a) Scarborough Shoal, (b) Cuarteron Reef, (c) Fiery Cross Reef, (d) Johnson Reef, (e) McKennan Reef, and (f) Gaven Reef (North).

(Paragraph 383) The following features are, or in their natural condition were, exposed at low tide and submerged at high tide and are, accordingly low-tide elevations: (a) Hughes Reef, (b) Gaven Reef (South), (c) Subi Reef, (d) Mischief Reef, (e) Second Thomas Shoal. 384. The Tribunal additionally records that Hughes Reef lies within 12 nautical miles of the high-tide features on McKennan Reef and Sin Cowe Island, Gaven Reef (South) lies within 12 nautical miles of the high-tide features at Gaven Reef (North) and Namyit Island, and that Subi Reef lies within 12 nautical miles of the high-tide feature of Sandy Cay on the reefs to the west of Thitu.

Ratio: (Paragraph 303) The definition and properties of low-tide elevations are set out in Article 13 of the Convention, which provides as follows:

Article 13

Low-tide elevations

1. A low-tide elevation is a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide. Where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island, the low-water line on that elevation may be used as the baseline for measuring the breadth of the territorial sea.

2. Where a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea from the mainland or an island, it has no territorial sea of its own.

(Paragraph 304) This definition operates in parallel with that of an island in Article 121(1) of the Convention, which provides that “[a]n island is a naturally formed area of land, surrounded by water, which is above water at high tide.”

(Paragraph 305) With respect to low-tide elevations, several points necessarily follow from this pair of definitions. First, the inclusion of the term “naturally formed” in the definition of both a low-tide elevation and an island indicates that the status of a feature is to be evaluated on the basis of its natural condition. As a matter of law, human modification cannot change the seabed into a low-tide elevation or a low-tide elevation into an island. A low-tide elevation will remain a low-tide elevation under the Convention, regardless of the scale of the island or installation built atop it.

(Paragraph 308) Article 13(2) states that, except where a low-tide elevation falls within the breadth of a territorial sea generated from a high-tide feature or mainland, it generates no territorial sea of its own. Article 13(2) does not expressly state that a low-tide elevation is not entitled to an exclusive economic zone or continental shelf. Nevertheless the Tribunal considers that this restriction is necessarily implied in the Convention. It follows automatically from the operation of Articles 57 and 76, which measure the breadth of the exclusive economic zone and continental shelf from the baseline for the territorial sea. Ipso facto, if a low-tide elevation is not entitled to a territorial sea, it is not entitled to an exclusive economic zone or continental shelf. The same restriction follows implicitly from Article 121(3), which provides that even certain high-tide features are deemed to be rocks that are ineligible to generate an exclusive economic zone or continental shelf.

(Paragraph 309) With respect to the status of low-tide elevations, the Tribunal considers that notwithstanding the use of the term “land” in the physical description of a low-tide elevation, such low-tide elevations do not form part of the land territory of a State in the legal sense. Rather they form part of the submerged landmass of the State and fall within the legal regimes for the territorial sea or continental shelf, as the case may be. Accordingly, and as distinct from land territory, the Tribunal subscribes to the view that “low-tide elevations cannot be appropriated, although ‘a coastal State has sovereignty over low-tide elevations which are situated within its territorial sea, since it has sovereignty over the territorial sea itself’.”

(Paragraph 311) The Tribunal sees nothing in the Convention, and no rule of customary international law, that would mandate that the status of low-tide elevations and high-tide features/islands be determined against any particular high-water datum. Accordingly, the Tribunal considers that States are free under the Convention to claim a high-tide feature or island on the basis of any high-water datum that reasonably corresponds to the ordinary meaning of the term “high tide” in Articles 13 and 121. Ordinarily, this would also be the height datum for nautical charts published by that State, above which rocks would be depicted as not covering at high tide.

(Paragraph 312) In the present case, the situation is complicated by the fact that the features in question are claimed by multiple States and may or may not lie within one or another State’s exclusive economic zone and continental shelf.

(Paragraph 313) The Tribunal considers that either Mean Higher High Water or Mean High Water Springs would be an appropriate approximation of “high tide” if determined on the basis of Chinese nautical charts….Ultimately, however, the tidal range in the South China Sea is comparatively small and the selection of a vertical datum will, in most instances, make no difference regarding the status of a feature.

Skipped application for each feature

Issue: WoN Scarborough Shoal and the high-tide features in the Spratly Islands generate entitlements to exclusive economic zones or continental shelfs

HeldNO.

Ratio: (Paragraph 386) Article 121 establishes a regime of islands as follows:

Article 121

Regime of islands

1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide.

2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.

3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.

(Paragraph 540) First, for the reasons set out, the use of the word “rock” does not limit the provision to features composed of solid rock. The geological and geomorphological characteristics of a high-tide feature are not relevant to its classification pursuant to Article 121(3).

(Paragraph 541) Second, the status of a feature is to be determined on the basis of its natural capacity, without external additions or modifications intended to increase its capacity to sustain human habitation or an economic life of its own.

(Paragraph 542) Third, with respect to “human habitation”, the critical factor is the non-transient character of the inhabitation, such that the inhabitants can fairly be said to constitute the natural population of the feature, for whose benefit the resources of the exclusive economic zone were seen to merit protection. The term “human habitation” should be understood to involve the inhabitation of the feature by a stable community of people for whom the feature constitutes a home and on which they can remain. Such a community need not necessarily be large, and in remote atolls a few individuals or family groups could well suffice. Periodic or habitual residence on a feature by a nomadic people could also constitute habitation, and the records of the Third UN Conference record a great deal of sensitivity to the livelihoods of the populations of small island nations. An indigenous population would obviously suffice, but also non-indigenous inhabitation could meet this criterion if the intent of the population was truly to reside in and make their lives on the islands in question.

(Paragraph 543) Fourth, the term “economic life of their own” is linked to the requirement of human habitation, and the two will in most instances go hand in hand. Article 121(3) does not refer to a feature having economic value, but to sustaining “economic life”. The Tribunal considers that the “economic life” in question will ordinarily be the life and livelihoods of the human population inhabiting and making its home on a maritime feature or group of features. Additionally, Article 121(3) makes clear that the economic life in question must pertain to the feature as “of its own”. Economic life, therefore, must be oriented around the feature itself and not focused solely on the waters or seabed of the surrounding territorial sea. Economic activity that is entirely dependent on external resources or devoted to using a feature as an object for extractive activities without the involvement of a local population would also fall inherently short with respect to this necessary link to the feature itself. Extractive economic activity to harvest the natural resources of a feature for the benefit of a population elsewhere certainly constitutes the exploitation of resources for economic gain, but it cannot reasonably be considered to constitute the economic life of an island as its own.

(Paragraph 544) Fifth, the text of Article 121(3) is disjunctive, such that the ability to sustain either human habitation or an economic life of its own would suffice to entitle a high-tide feature to an exclusive economic zone and continental shelf. However, as a practical matter, the Tribunal considers that a maritime feature will ordinarily only possess an economic life of its own if it is also inhabited by a stable human community. One exception to that view should be noted for the case of populations sustaining themselves through a network of related maritime features. The Tribunal does not believe that maritime features can or should be considered in an atomised fashion. A population that is able to inhabit an area only by making use of multiple maritime features does not fail to inhabit the feature on the grounds that its habitation is not sustained by a single feature individually. Likewise, a population whose livelihood and economic life extends across a constellation of maritime features is not disabled from recognising that such features possess an economic life of their own merely because not all of the features are directly inhabited.

(Paragraph 545) Sixth, Article 121(3) is concerned with the capacity of a maritime feature to sustain human habitation or an economic life of its own, not with whether the feature is presently, or has been, inhabited or home to economic life. The capacity of a feature is necessarily an objective criterion. It has no relation to the question of sovereignty over the feature. For this reason, the determination of the objective capacity of a feature is not dependent on any prior decision on sovereignty, and the Tribunal is not prevented from assessing the status of features by the fact that it has not and will not decide the matter of sovereignty over them.

(Paragraph 546) Seventh, the capacity of a feature to sustain human habitation or an economic life of its own must be assessed on a case-by-case basis. The drafters of the Convention considered proposals with any number of specific tests and rejected them in favour of the general formula set out in Article 121(3). The Tribunal considers that the principal factors that contribute to the natural capacity of a feature can be identified. These would include the presence of water, food, and shelter in sufficient quantities to enable a group of persons to live on the feature for an indeterminate period of time. Such factors would also include considerations that would bear on the conditions for inhabiting and developing an economic life on a feature, including the prevailing climate, the proximity of the feature to other inhabited areas and populations, and the potential for livelihoods on and around the feature. The relative contribution and importance of these factors to the capacity to sustain human habitation and economic life, however, will vary from one feature to another. While minute, barren features may be obviously uninhabitable (and large, heavily populated features obviously capable of sustaining habitation), the Tribunal does not consider that an abstract test of the objective requirements to sustain human habitation or economic life can or should be formulated. This is particularly the case in light of the Tribunal’s conclusion that human habitation entails more than the mere survival of humans on a feature and that economic life entails more than the presence of resources. The absence of an abstract test, however, has particular consequences (that will be discussed below) for the Tribunal’s approach to evidence of conditions on, and the capacity of, the features in question.

(Paragraph 547) Eighth, the Tribunal considers that the capacity of a feature should be assessed with due regard to the potential for a group of small island features to collectively sustain human habitation and economic life. On the one hand, the requirement in Article 121(3) that the feature itself sustain human habitation or economic life clearly excludes a dependence on external supply. A feature that is only capable of sustaining habitation through the continued delivery of supplies from outside does not meet the requirements of Article 121(3). Nor does economic activity that remains entirely dependent on external resources or that is devoted to using a feature as an object for extractive activities, without the involvement of a local population, constitute a feature’s “own” economic life. At the same time, the Tribunal is conscious that remote island populations often make use of a number of islands, sometimes spread over significant distances, for sustenance and livelihoods. An interpretation of Article 121(3) that sought to evaluate each feature individually would be in keeping neither with the realities of life on remote islands nor with the sensitivity to the lifestyles of small island peoples that was apparent at the Third UN Conference. Accordingly, provided that such islands collectively form part of a network that sustains human habitation in keeping with the traditional lifestyle of the peoples in question, the Tribunal would not equate the role of multiple islands in this manner with external supply. Nor would the local use of nearby resources as part of the livelihood of the community equate to the arrival of distant economic interests aimed at extracting natural resources.

(Paragraph 548) Ninth, in light of the Tribunal’s conclusions on the interpretation of Article 121(3), evidence of the objective, physical conditions on a particular feature can only take the Tribunal so far in its task. In the Tribunal’s view, evidence of physical conditions will ordinarily suffice only to classify features that clearly fall within one category or the other. If a feature is entirely barren of vegetation and lacks drinkable water and the foodstuffs necessary even for basic survival, it will be apparent that it also lacks the capacity to sustain human habitation. The opposite conclusion could likewise be reached where the physical characteristics of a large feature make it definitively habitable. The Tribunal considers, however, that evidence of physical conditions is insufficient for features that fall close to the line. It will be difficult, if not impossible, to determine from the physical characteristics of a feature alone where the capacity merely to keep people alive ends and the capacity to sustain settled habitation by a human community begins. This will particularly be the case as the relevant threshold may differ from one feature to another.

(Paragraph 549) In such circumstances, the Tribunal considers that the most reliable evidence of the capacity of a feature will usually be the historical use to which it has been put. Humans have shown no shortage of ingenuity in establishing communities in the far reaches of the world, often in extremely difficult conditions. If the historical record of a feature indicates that nothing resembling a stable community has ever developed there, the most reasonable conclusion would be that the natural conditions are simply too difficult for such a community to form and that the feature is not capable of sustaining such habitation. In such circumstances, the Tribunal should consider whether there is evidence that human habitation has been prevented or ended by forces that are separate from the intrinsic capacity of the feature. War, pollution, and environmental harm could all lead to the depopulation, for a prolonged period, of a feature that, in its natural state, was capable of sustaining human habitation. In the absence of such intervening forces, however, the Tribunal can reasonably conclude that a feature that has never historically sustained a human community lacks the capacity to sustain human habitation.

(Paragraph 550) Conversely, if a feature is presently inhabited or has historically been inhabited, the Tribunal should consider whether there is evidence to indicate that habitation was only possible through outside support. Trade and links with the outside world do not disqualify a feature to the extent that they go to improving the quality of life of its inhabitants. Where outside support is so significant that it constitutes a necessary condition for the inhabitation of a feature, however, it is no longer the feature itself that sustains human habitation. In this respect, the Tribunal notes that a purely official or military population, serviced from the outside, does not constitute evidence that a feature is capable of sustaining human habitation. Bearing in mind that the purpose of Article 121(3) is to place limits on excessive and unfair claims by States, that purpose would be undermined if a population were installed on a feature that, as such, would not be capable of sustaining human habitation, precisely to stake a claim to the territory and the maritime zones generated by it. The Tribunal notes that, as a result, evidence of human habitation that predates the creation of exclusive economic zones may be more significant than contemporary evidence, if the latter is clouded by an apparent attempt to assert a maritime claim.

(Paragraph 551) The same mode of analysis would apply equally to the past or current existence of economic life. The Tribunal would first consider evidence of the use to which the feature has historically been put before considering whether there is evidence to suggest that that historical record does not fully reflect the economic life the feature could have sustained in its natural condition.

(Paragraph 615) On the basis of the evidence in the record, it appears to the Tribunal that the principal high-tide features in the Spratly islands are capable of enabling the survival of small groups of people. There is historical evidence of potable water, although of varying quality, that could be combined with rainwater collection and storage. There is also naturally occurring vegetation capable of providing shelter and the possibility of at least limited agriculture to supplement the food resources of the surrounding waters. The record indicates that small numbers of fishermen, mainly from Hainan, have historically been present on Itu Aba and the other more significant features and appear to have survived principally on the basis of the resources at hand (notwithstanding the references to annual deliveries of rice and other sundries).

As applied to the facts

(Paragraph 617) The first question for the Tribunal is whether any of this activity constitutes “human habitation” or an “economic life of its own” for the purposes of Article 121(3). The second is whether there is evidence to suggest that the historical record of human activity on the Spratly Islands is not proof of the natural capacity of the features.

(Paragraph 620) Finally, the Tribunal does not consider that the military or other governmental personnel presently stationed on the features in the Spratly Islands by one or another of the littoral States suffice to constitute “human habitation” for the purposes of Article 121(3). These groups are heavily dependent on outside supply, and it is difficult to see how their presence on any of the South China Sea features can fairly be said to be sustained by the feature itself, rather than by a continuous lifeline of supply and communication from the mainland. Military or other governmental personnel are deployed to the Spratly Islands in an effort to support the various claims to sovereignty that have been advanced. There is no evidence that they choose to inhabit there of their own volition, nor can it be expected that any would remain if the official need their presence were to dissipate. Even where the current human presence in the Spratly Islands includes civilians, as is the case on at least Thitu and (very recently) Itu Aba, the Tribunal considers that their presence there is motivated by official considerations and would not have occurred, but for the disputed claims to sovereignty over these features.

(Paragraph 621) The Tribunal sees no indication that anything fairly resembling a stable human community has ever formed on the Spratly Islands. Rather, the islands have been a temporary refuge and base of operations for fishermen and a transient residence for labourers engaged in mining and fishing. The introduction of the exclusive economic zone was not intended to grant extensive maritime entitlements to small features whose historical contribution to human settlement is as slight as that. Nor was the exclusive economic zone intended to encourage States to establish artificial populations in the hope of making expansive claims, precisely what has now occurred in the South China Sea. On the contrary, Article 121(3) was intended to prevent such developments and to forestall a provocative and counterproductive effort to manufacture entitlements.

(Paragraph 622) The Tribunal sees no evidence that would suggest that the historical absence of human habitation on the Spratly Islands is the product of intervening forces or otherwise does not reflect the limited capacity of the features themselves. Accordingly, the Tribunal concludes that Itu Aba, Thitu, West York, Spratly Island, South-West Cay, and North-East Cay are not capable of sustaining human habitation within the meaning of Article 121(3). The Tribunal has also considered, and reaches the same conclusion with respect to, the other, less significant high-tide features in the Spratly Islands, which are even less capable of sustaining human habitation, but does not consider it necessary to list them individually.

(Paragraph 623) As set out at paragraph 543, the Tribunal considers that, to constitute the economic life of the feature, economic activity must be oriented around the feature itself and not be focused solely on the surrounding territorial sea or entirely dependent on external resources. The Tribunal also considers that extractive economic activity, without the presence of a stable local community, necessarily falls short of constituting the economic life of the feature.

(Paragraph 625) The Tribunal concludes that Itu Aba, Thitu, West York, Spratly Island, South-West Cay, and North-East Cay are not capable of sustaining an economic life of their own within the meaning of Article 121(3). The Tribunal has also considered, and reaches the same conclusion with respect to, the other, less significant high-tide features in the Spratly Islands, which are even less capable of sustaining economic life, but does not consider it necessary to list them individually.

Issue: WoN the Tribunal has jurisdiction to declare that “Mischief Reef and Second Thomas Shoal are part of the exclusive economic zone and continental shelf of the Philippines.”

HeldYES, because no delimitation is required—or, indeed, even possible— there is no possible basis for the application of the exception to jurisdiction (paragraph 633)

Ratio: (Paragraph 631) The Tribunal has already held (see paragraphs 277 to 278) that there is no legal basis for any Chinese historic rights, or sovereign rights and jurisdiction beyond those provided for in the Convention, in the waters of the South China Sea encompassed by the ‘nine-dash line’. The Tribunal sees no evidence that, prior to the Convention, China ever established a historic right to the exclusive use of the living and non-living resources of the waters of the South China Sea, whatever use it may historically have made of the Spratly Islands themselves. In any event, any such right would have been superseded by the adoption of the Convention and the legal creation of the exclusive economic zone. The ‘nine-dash line’ thus cannot provide a basis for any entitlement by China to maritime zones in the area of Mischief Reef or Second Thomas Shoal that would overlap the entitlement of the Philippines to an exclusive economic zone and continental shelf generated from baselines on the island of Palawan.

(Paragraph 632) The Tribunal has now held (see paragraphs 378 and 381) that Mischief Reef and Second Thomas Shoal are low-tide elevations and, as such, generate no entitlement to maritime zones of their own. The Tribunal has also now held (see paragraph 626) that neither Itu Aba, nor any other high-tide feature in the Spratly Islands, is a fully entitled island for the purposes of Article 121 of the Convention. As such, pursuant to the operation of Article 121(3) of the Convention, these features are legally considered to be “rocks” and to generate no exclusive economic zone or continental shelf. The Tribunal also notes that there is no maritime feature that is above water at high tide in its natural condition and that is located within 12 nautical miles of either Mischief Reef or Second Thomas Shoal.

(Paragraph 633) From these conclusions, it follows that there exists no legal basis for any entitlement by China to maritime zones in the area of Mischief Reef or Second Thomas Shoal. Accordingly, there is no situation of overlapping entitlements that would call for the application of Articles 15, 74, or 83 to delimit the overlap. Because no delimitation is required—or, indeed, even possible— there is no possible basis for the application of the exception to jurisdiction in Article 298(1)(a)(i).

VII. CHINESE ACTIVITIES IN THE SOUTH CHINA SEA (SUBMISSIONS NO. 8 TO 13)

Issue: WoN China has unlawfully interfered with the enjoyment and exercise of the sovereign rights of the Philippines with respect to the living and non-living resources of its exclusive economic zone and continental shelf

Held: YES.

Ratio: (Paragraph 695) Because the areas of the South China Sea at issue for Submission No. 8 can only constitute the exclusive economic zone of the Philippines, the Tribunal also considers that Article 297(3)(a) and the law enforcement exception in Article 298(1)(b) of the Convention pose no obstacle to its jurisdiction. These provisions serve to limit compulsory dispute settlement where a claim is brought against a State’s exercise of its sovereign rights in respect of living resources in its own exclusive economic zone. These provisions do not apply where a State is alleged to have violated the Convention in respect of the exclusive economic zone of another State. The Tribunal therefore concludes that it has jurisdiction with respect to the Philippines’ Submission No. 8.

(Paragraph 698) The Convention is clear on the allocation of rights within the exclusive economic zone and continental shelf. With respect to non-living resources, Article 77 of the Convention provides that the “coastal State”—which in this case is necessarily the Philippines—“exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.” The Convention goes on to make clear that “[t]he rights referred to . . . are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State.” These provisions are unequivocal and require no further interpretation. Within its continental shelf, only the Philippines, or another State acting with its permission, may exploit the resources of the sea-bed.

(Paragraph 699) The rights of other States in the waters above the continental shelf and with respect to submarine cables and pipelines are expressly detailed in Articles 78 and 79 of the Convention. Nothing in these Articles permits any State to prevent another State from exercising sovereign rights over its own continental shelf.

(Praragraph 700) The same clarity is evident with respect to living resources and the provisions of the exclusive economic zone. Article 56 is clear in allocating to the coastal State—which again is necessarily the Philippines in the areas in question—“sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone . . . .” The rights of other States in the exclusive economic zone are detailed in Article 58 and are limited to “navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms.” The rights of other States do not include restricting a coastal State from exploiting the living resources of its own exclusive economic zone. Indeed, the very notion is incompatible with the concept of sovereign rights and the exclusive jurisdiction over fisheries that was the central objective motivating the introduction of the exclusive economic zone concept (see paragraphs 248 to 254).

(Paragraph 716) The Tribunal finds that China has, through the operation of its marine surveillance vessels with respect to M/V Veritas Voyager on 1 to 2 March 2011 breached Article 77 of the Convention with respect to the Philippines’ sovereign rights over the non-living resources of its continental shelf in the area of Reed Bank. The Tribunal further finds that China has, by promulgating its 2012 moratorium on fishing in the South China Sea, without exception for areas of the South China Sea falling within the exclusive economic zone of the Philippines and without limiting the moratorium to Chinese flagged vessels, breached Article 56 of the Convention with respect to the Philippines’ sovereign rights over the living resources of its exclusive economic zone.

Issue: WoN China has unlawfully failed to prevent its nationals and vessels from exploiting the living resources in the exclusive economic zone of the Philippines

HeldYES.

Ratio: (Paragraph 736) In this respect, Article 61(1) of the Convention provides that “[t]he coastal State shall determine the allowable catch of the living resources in its exclusive economic zone.” The remainder of Article 61 concerns the process through which the coastal State will determine the allowable catch.

(Paragraph 737) Article 62 of the Convention then outlines the circumstances in which vessels of other States will have access to the fisheries of a State’s exclusive economic zone. Article 62(2) provides that “[w]here the coastal State does not have the capacity to harvest the entire allowable catch, it shall, through agreements or other arrangements and pursuant to the terms, conditions, laws and regulations referred to in paragraph 4, give other States access to the surplus of the allowable catch . . . .” Article 62(3) then provides guidance on the factors to be considered in according access to other States.

(Paragraph 738) These provisions make clear that it is the Philippines that controls the process of granting and regulating access to the fisheries of its exclusive economic zone, subject to the provisions of the Convention in doing so. It is thus for the Philippines to determine the allowable catch for fisheries within its exclusive economic zone. If after determining the allowable catch, the Philippines also determines that it lacks the capacity to fully harvest the allowable catch, it must allow other States access to the fishery.

(Paragraph 739) Article 62(4) then imposes an obligation on nationals of other States fishing in the exclusive economic zone to comply with the laws and regulations of the coastal State and sets out an illustrative list of the areas that may be regulated.

(Paragraph 740) Article 62(4) thus expressly requires Chinese nationals to comply with the licensing and other access procedures of the Philippines within any area forming part of the exclusive economic zone of the Philippines. The Convention imposes an obligation directly on private parties engaged in fishing that would apply to Chinese nationals and vessels engaged in fishing at Mischief Reef and Second Thomas Shoal and require them to comply with the terms and conditions of the laws and regulations of the Philippines.

(Paragraph 741) The Convention also imposes obligations on States Parties with respect to activities in the exclusive economic zone of other States. Article 58(3) of the Convention provides as follows:

In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part.

(Paragraph 744) Given the importance of fisheries to the entire concept of the exclusive economic zone, the degree to which the Convention subordinates fishing within the exclusive economic zone to the control of the coastal State, and the obligations expressly placed on the nationals of other States by Article 62(4) of the Convention, the Tribunal considers that anything less than due diligence by a State in preventing its nationals from unlawfully fishing in the exclusive economic zone of another would fall short of the regard due pursuant to Article 58(3) of the Convention.

(Paragraph 756) The obligation to have due regard to the rights of the Philippines is unequivocally breached when vessels under Chinese Government control act to escort and protect Chinese fishing vessels engaged in fishing unlawfully in the Philippines’ exclusive economic zone.

(Paragraph 757) the Tribunal finds that China has, through the operation of its marine surveillance vessels in tolerating and failing to exercise due diligence to prevent fishing by Chinese flagged vessels at Mischief Reef and Second Thomas Shoal in May 2013, failed to exhibit due regard for the Philippines’ sovereign rights with respect to fisheries in its exclusive economic zone. Accordingly, China has breached its obligations under Article 58(3) of the Convention.

Issue: WoN China has unlawfully prevented Philippine fishermen from pursuing their livelihoods by interfering with traditional fishing activities at Scarborough Shoal

Held: YES.

Ratio: (Paragraph 804) Under the Convention, therefore, traditional fishing rights are accorded differing treatment across maritime zones:

(a) In archipelagic waters, traditional fishing rights are expressly protected, and Article 51(1) of the Convention provides that “an archipelagic State shall respect existing agreements with other States and shall recognize traditional fishing rights and other legitimate activities of the immediately adjacent neighbouring States in certain areas falling within archipelagic waters.”

(b) In the exclusive economic zone, in contrast, traditional fishing rights are extinguished, except insofar as Article 62(3) specifies that “the need to minimize economic dislocation in States whose nationals have habitually fished in the zone” shall constitute one of the factors to be taken into account by the costal State in giving access to any surplus in the allowable catch. The Tribunal considers that the inclusion of this provision—which would be entirely unnecessary if traditional fishing rights were preserved in the exclusive economic zone—confirms that the drafters of the Convention did not intend to preserve such rights. The Convention does not, of course, preclude that States may continue to recognise traditional fishing rights in the exclusive economic zone in their legislation, in bilateral fisheries access agreements, or through regional fisheries management organisations. Such recognition would, in most instances, be commendable, but it is not required by the Convention, except to the extent specified in Article 62(3).

(c) Finally, in the territorial sea, the Convention continued the existing legal regime largely without change. The innovation in the Convention was the adoption of an agreed limit of 12 nautical miles on the breadth of the territorial sea, not the development of its legal content. The Tribunal sees nothing that would suggest that the adoption of the Convention was intended to alter acquired rights in the territorial sea and concludes that within that zone—in contrast to the exclusive economic zone—established traditional fishing rights remain protected by international law. The Tribunal also notes that the vast majority of traditional fishing takes place in close proximity to the coast.

(Paragraph 812) In the Tribunal’s view, it is not necessary to explore the limits on the protection due in customary international law to the acquired rights of individuals and communities engaged in traditional fishing. The Tribunal is satisfied that the complete prevention by China of fishing by Filipinos at Scarborough Shoal over significant periods of time after May 2012 is not compatible with the respect due under international law to the traditional fishing rights of Filipino fishermen. This is particularly the case given that China appears to have acted to prevent fishing by Filipinos, specifically, while permitting its own nationals to continue. The Tribunal is cognisant that April and May 2012 represented a period of heightened tensions between the Philippines and China at Scarborough Shoal. China’s dispute with the Philippines over sovereignty and law enforcement at Scarborough Shoal, however, was with the Philippine Government. The Tribunal does not see corresponding circumstances that would have justified taking action against Filipino fishermen engaged in their traditional livelihood or that would have warranted continuing to exclude Filipino fishermen from Scarborough Shoal for months after the Philippines had withdrawn its official vessels. The Tribunal notes, however, that it would have reached exactly the same conclusion had the Philippines established control over Scarborough Shoal and acted in a discriminatory manner to exclude Chinese fishermen engaged in traditional fishing.

(Paragraph 813) With respect to the Philippines’ claim that China’s actions at Scarborough Shoal represented a specific failure to fulfil its duties pursuant to Article 2(3) of the UN Charter and Article 279 of the Convention to settle disputes by peaceful means, the Tribunal notes that both Parties found fault with the other in their handling of the standoff and that both found cause to allege breaches of the UN Charter. 864 The Tribunal does not find the record before it sufficient to support such a claim in respect of either Party.

Issue: WoN China has violated its obligations under the Convention to protect and preserve the marine environment at Scarborough Shoal, Second Thomas Shoal, Cuarteron Reef, Fiery Cross Reef, Gaven Reef, Johnson Reef, Hughes Reef and Subi Reef

Held: YES.

Ratio: (Paragraph 938) The Tribunal will not deem activities to be military in nature when China itself has consistently and officially resisted such classifications and affirmed the opposite at the highest levels. Accordingly, the Tribunal accepts China’s repeatedly affirmed position that civilian use [comprises] the primary (if not the only) motivation underlying the extensive construction activities on the seven reefs in the Spratly Islands. As civilian activity, the Tribunal notes that China’s conduct falls outside the scope of Article 298(1)(b) and concludes that it has jurisdiction to consider the Philippines’ Submissions No. 11 and 12(b).

(Paragraph 939) The protection and preservation of the marine environment form a prominent component of the legal regime of the Convention, the importance of which is recognised in the Preamble in the following terms:

Recognizing the desirability of establishing through this Convention, with due regard for the sovereignty of all States, a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment . . .

(Paragraph 940) The substantive provisions relevant to the marine environment comprise their own Part XII of the Convention. At the outset, the Tribunal notes that the obligations in Part XII apply to all States with respect to the marine environment in all maritime areas, both inside the national jurisdiction of States and beyond it. Accordingly, questions of sovereignty are irrelevant to the application of Part XII of the Convention. The Tribunal’s findings in this Chapter have no bearing upon, and are not in any way dependent upon, which State is sovereign over features in the South China Sea.

(Paragraph 941) Article 192 of the Convention provides that “States have the obligation to protect and preserve the marine environment.” Although phrased in general terms, the Tribunal considers it well established that Article 192 does impose a duty on States Parties, the content of which is informed by the other provisions of Part XII and other applicable rules of international law. This “general obligation” extends both to “protection” of the marine environment from future damage and “preservation” in the sense of maintaining or improving its present condition. Article 192 thus entails the positive obligation to take active measures to protect and preserve the marine environment, and by logical implication, entails the negative obligation not to degrade the marine environment. The corpus of international law relating to the environment, which informs the content of the general obligation in Article 192, requires that States “ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control.” Thus States have a positive “‘duty to prevent, or at least mitigate’ significant harm to the environment when pursuing large-scale construction activities.” The Tribunal considers this duty informs the scope of the general obligation in Article 192.

(Paragraph 942) The content of the general obligation in Article 192 is further detailed in the subsequent provisions of Part XII, including Article 194, as well as by reference to specific obligations set out in other international agreements, as envisaged in Article 237 of the Convention.

(Paragraph 943) Article 194 concerns “pollution of the marine environment,” a term which is defined in Article 1 of the Convention to mean “the introduction by man, directly or indirectly, of substances . . . into the marine environment . . . which results or is likely to result in such deleterious effects as harm to living resources and marine life . . . [and] hindrance to . . . legitimate uses of the sea . . . .” The “measures to prevent, reduce and control pollution of the marine environment” are set out in Article 194.

(Paragraph 944) Articles 192 and 194 set forth obligations not only in relation to activities directly taken by States and their organs, but also in relation to ensuring activities within their jurisdiction and control do not harm the marine environment.

(Paragraph 945) The fifth paragraph of Article 194 covers all measures under Part XII of the Convention (whether taken by States or those acting under their jurisdiction and control) that are necessary to protect and preserve “rare or fragile ecosystems” as well as the habitats of endangered species. As observed by the tribunal in Chagos Marine Protected Area, the phrasing of Article 194(5) confirms that Part XII is “not limited to measures aimed strictly at controlling marine pollution,” which while “certainly an important aspect of environmental protection . . . is by no means the only one.” An ‘ecosystem’ is not defined in the Convention, but internationally accepted definitions include that in Article 2 of the CBD, which defines ecosystem to mean “a dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit.” The Tribunal has no doubt from the scientific evidence before it that the marine environments where the allegedly harmful activities took place in the present dispute constitute “rare or fragile ecosystems.” They are also the habitats of “depleted, threatened or endangered species,” including the giant clam, the hawksbill turtle and certain species of coral and fish.

(Paragraph 946) Part XII of the Convention also includes Article 197 on cooperation, which requires States to cooperate on a global or regional basis, “directly or through competent international organizations, in formulating and elaborating international rules, standards and recommended practices and procedures consistent with this Convention, for the protection and preservation of the marine environment, taking into account characteristic regional features.” In its provisional measures order in MOX Plant, the International Tribunal for the Law of the Sea emphasised that “the duty to cooperate is a fundamental principle in the prevention of pollution of the marine environment under Part XII of the Convention and general international law.” Related to regional cooperation is the provision in Article 123 of the Convention, which covers semienclosed seas, such as the South China Sea.

(Paragraph 947) The final provisions of Part XII relevant to the Philippines’ Submissions concern monitoring and environmental assessment. Article 204 requires States to endeavour as far as practicable to “observe, measure, evaluate and analyse . . . the risks or effects of pollution on the marine environment” and to keep under surveillance the effects of any activities which they “permit or in which they engage” in order to determine whether they are likely to pollute the marine environment. Article 205 requires State to publish reports of the results from such monitoring to the competent international organisations, which should make them available to all States. Finally, Article 206 relates to environmental impact assessments.

(Paragraph 948) Article 206 ensures that planned activities with potentially damaging effects may be effectively controlled and that other States are kept informed of their potential risks. In respect of Article 206, the International Tribunal for the Law of the Sea emphasised that “the obligation to conduct an environmental impact assessment is a direct obligation under the Convention and a general obligation under customary international law.”  As such, Article 206 has been described as an “essential part of a comprehensive environmental management system” and as a “particular application of the obligation on states, enunciated in Article 194(2).” While the terms “reasonable” and “as far as practicable” contain an element of discretion for the State concerned, the obligation to communicate reports of the results of the assessments is absolute.

(Paragraph 992) Based on the considerations outlined above, the Tribunal finds that China has, through its toleration and protection of, and failure to prevent Chinese fishing vessels engaging in harmful harvesting activities of endangered species at Scarborough Shoal, Second Thomas Shoal and other features in the Spratly Islands, breached Articles 192 and 194(5) of the Convention.

(Paragraph 993) The Tribunal further finds that China has, through its island-building activities at Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North), Johnson Reef, Hughes Reef, Subi Reef and Mischief Reef, breached Articles 192, 194(1), 194(5), 197, 123, and 206 of the Convention.

Issue: WoN China’s occupation of and construction activities on Mischief Reef (a) violate the provisions of the Convention concerning artificial islands, installations and structures; . . . (c) constitute unlawful acts of attempted appropriation in violation of the Convention

HeldYES for both.

Ratio: (Paragraph 1035) These provisions speak for themselves. In combination, they endow the coastal State—which in this case is necessarily the Philippines—with exclusive decision-making and regulatory power over the construction and operation of artificial islands, and of installations and structures covered by Article 60(1), on Mischief Reef. Within its exclusive economic zone and continental shelf, only the Philippines, or another authorised State, may construct or operate such artificial islands, installations, or structures.

(Paragraph 1036) The Tribunal considers that China’s initial structures on Mischief Reef from 1995 onwards constituted installations or structures for the purposes of Article 60(1). The Tribunal takes China at its word that the original purpose of the structures was to provide shelter for fishermen and concludes that this is an economic purpose. The Tribunal also notes that the original structures, which China declined to permit fishermen from the Philippines to use, also had the potential to interfere with the exercise by the Philippines of its rights in the exclusive economic zone. Accordingly, pursuant to Article 60 of the Convention, only the Philippines could construct or authorise such structures.

(Paragraph 1037) China’s activities at Mischief Reef have since evolved into the creation of an artificial island. China has elevated what was originally a reef platform that submerged at high tide into an island that is permanently exposed. Such an island is undoubtedly “artificial” for the purposes of Article 60. It is equally clear that China has proceeded without receiving, or even seeking, the permission of the Philippines. Indeed, China’s conduct has taken place in the face of the Philippines’ protests. Article 60 is unequivocal in permitting only the coastal State to construct or authorise such artificial islands.

(Paragraph 1040) The Tribunal recalls, first, that Mischief Reef is incapable of appropriation. As the Tribunal has already concluded at paragraphs 307 to 309, low-tide elevations “do not form part of the land territory of a State in the legal sense.” Rather, such features form part of the submerged landmass of a State and, in the case of Mischief Reef, fall within the legal regime for the continental shelf. In consequence, low-tide elevations, as distinct from land territory, cannot be appropriated. As the Tribunal has now found, Mischief Reef is a low-tide elevation; it follows from this that it is incapable of appropriation, by occupation or otherwise.

(Paragraph 1041) As a low-tide elevation within the Philippines’ exclusive economic zone and continental shelf, the legal relevance of Mischief Reef is that it lies within an area in which sovereign rights are vested exclusively in the Philippines and where only the Philippines may construct or authorise artificial islands. The Tribunal has already held in relation to the Philippines’ Submissions No. 8 and 9 that China’s actions at Mischief Reef have unlawfully interfered with the Philippines’ enjoyment of its sovereign rights. 1042. Having established that Mischief Reef is not capable of appropriation and addressed the effect of China’s actions on the Philippines’ sovereign rights, the Tribunal sees no need to address Submission No. 12(c).

Issue: WoN China has breached its obligations under the Convention by operating its law enforcement vessels in a dangerous manner causing serious risk of collision to Philippine vessels navigating in the vicinity of Scarborough Shoal

Held: YES.

Ratio: (Paragraph 1082) Although the Philippines did not become a party to the COLREGS until 2013, in assessing the Philippines’ Submission No. 13 the Tribunal considers the COLREGS to bind both Parties relating to the conduct of their respective vessels by virtue of Article 94 of the Convention. Article 94(1) of the Convention requires flag States to effectively exercise their “jurisdiction and control” in administrative, technical, and social matters over ships flying their flag. Subsection 3 of that article clarifies the scope of flag States’ duties, requiring them to “take such measures . . . as are necessary to ensure safety at sea,” including measures concerning, inter alia, “the use of signals, the maintenance of communications and the prevention of collisions.” The precise scope of those obligations is clarified in Article 94(5)

(Paragraph 1083) In the Tribunal’s view, Article 94 incorporates the COLREGS into the Convention, and they are consequently binding on China. It follows that a violation of the COLREGS, as “generally accepted international regulations” concerning measures necessary to ensure maritime safety, constitutes a violation of the Convention itself. With this in mind, the Tribunal turns to the independent expert opinion and factual record regarding the two incidents and to an evaluation of China’s conduct in light of the applicable regulations.

(Paragraph 1109) The Tribunal finds that China has, by virtue of the conduct of Chinese law enforcement vessels in the vicinity of Scarborough Shoal, created serious risk of collision and danger to Philippine vessels and personnel. The Tribunal finds China to have violated Rules 2, 6, 7, 8, 15, and 16 of the COLREGS and, as a consequence, to be in breach of Article 94 of the Convention.

VIII. AGGRAVATION OR EXTENSION OF THE DISPUTE BETWEEN THE PARTIES (SUBMISSION NO. 14)

Issue: Since the commencement of this arbitration in January 2013, China has unlawfully aggravated and extended the dispute by, among other things: (a) interfering with the Philippines’ rights of navigation in the waters at, and adjacent to, Second Thomas Shoal; (b) preventing the rotation and resupply of Philippine personnel stationed at Second Thomas Shoal; (c) endangering the health and well-being of Philippine personnel stationed at Second Thomas Shoal; and (d) conducting dredging, artificial island-building and construction activities at Mischief Reef, Cuarteron Reef, Fiery Cross Reef, Gaven Reef, Johnson Reef, Hughes Reef and Subi Reef; and

Held: YES, as to (d). NO, as to the rest.

Ratio: (Paragraph 1161) The Tribunal finds that the essential facts at Second Thomas Shoal concern the deployment of a detachment of the Philippines’ armed forces that is engaged in a stand-off with a combination of ships from China’s Navy and from China’s Coast Guard and other government agencies. In connection with this stand-off, Chinese Government vessels have attempted to prevent the resupply and rotation of the Philippine troops on at least two occasions. Although, as far as the Tribunal is aware, these vessels were not military vessels, China’s military vessels have been reported to have been in the vicinity. In the Tribunal’s view, this represents a quintessentially military situation, involving the military forces of one side and a combination of military and paramilitary forces on the other, arrayed in opposition to one another. As these facts fall well within the exception, the Tribunal does not consider it necessary to explore the outer bounds of what would or would not constitute military activities for the purposes of Article 298(1)(b).

(Paragraph 1162) Accordingly, the Tribunal finds that it lacks jurisdiction to consider the Philippines’ Submissions No. 14(a) to (c).

(Paragraph 1164) For the reasons already set out, the Tribunal will not find activities to be military in nature when China itself has consistently resisted such classification and affirmed the opposite at the highest level. Accordingly, the Tribunal accepts China’s repeatedly affirmed position that civilian use comprises the primary (if not the only) motivation underlying its works on the aforementioned features. As civilian activity, the Tribunal notes that China’s conduct falls outside the scope of Article 298(1)(b) in any event. Accordingly, for the purposes of its jurisdictional analysis, the Tribunal need not engage with the question of whether the Philippines’ Submission No 14(d) constitutes a distinct dispute from those the Philippines alleges to have been aggravated or extended.

(Paragraph 1165) The Tribunal concludes that it has jurisdiction with respect to the matters raised in the Philippines’ Submission No. 14(d). The Tribunal now turns to the activities underpinning this portion of the Philippines’ claim.

(Paragraph 1169) In the Tribunal’s view, the proper understanding of this extensive jurisprudence on provisional measures is that there exists a duty on parties engaged in a dispute settlement procedure to refrain from aggravating or extending the dispute or disputes at issue during the pendency of the settlement process. This duty exists independently of any order from a court or tribunal to refrain from aggravating or extending the dispute and stems from the purpose of dispute settlement and the status of the States in question as parties in such a proceeding. Indeed, when a court or tribunal issues provisional measures directing a party to refrain from actions that would aggravate or extend the dispute, it is not imposing a new obligation on the parties, but rather recalling to the parties an obligation that already exists by virtue of their involvement in the proceedings.

(Paragraph 1172) Within the Convention, the same principles find expression in Article 279, which provides that:

States Parties shall settle any dispute between them concerning the interpretation or application of this Convention by peaceful means in accordance with Article 2, paragraph 3, of the Charter of the United Nations and, to this end, shall seek a solution by the means indicated in Article 33, paragraph 1, of the Charter.

In carrying out the dispute settlement procedures of the Convention, the Parties are also under an obligation, pursuant to Article 300, to “fulfil in good faith the obligations assumed under this Convention and . . . exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right.” Finally, the Tribunal considers that the final and binding nature of the Award has an impact on the permissible conduct of the parties in the course of proceedings. Article 296 of the Convention provides that “[a]ny decision rendered by a court or tribunal having jurisdiction under this section shall be final and shall be complied with by all the parties to the dispute”; Article 11 of Annex VII to the Convention provides that “[t]he award shall be final and without appeal, unless the parties to the dispute have agreed in advance to an appellate procedure. It shall be complied with by the parties to the dispute.” The Tribunal concludes that actions by either Party to aggravate or extend the dispute would be incompatible with the recognition and performance in good faith of these obligations.

(Paragraph 1177) The Tribunal considers that China’s intensified construction of artificial islands on seven features in the Spratly Islands during the course of these proceedings has unequivocally aggravated the disputes between the Parties identified above. First, China has effectively created a fait accompli at Mischief Reef by constructing a large artificial island on a low-tide elevation located within the Philippines’ exclusive economic zone and continental shelf, an area in which only the Philippines has sovereign rights with respect to living and non-living resources and where only the Philippines may construct or authorise artificial islands. In practical terms, the implementation of the Tribunal’s decision will be significantly more difficult for the Parties, and Mischief Reef cannot be returned to its original state, before China’s construction work was begun.

(Paragraph 1178) Second, China has aggravated the Parties’ dispute with respect to the protection and preservation of the marine environment by causing irreparable harm to the coral reef habitat at Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North), Johnson Reef, Hughes Reef, Subi Reef, and Mischief Reef. The Tribunal has already found that China has seriously violated its obligation to preserve and protect the marine environment in the South China Sea (see paragraphs 950 to 993). Whatever other States have done within the South China Sea, it pales in comparison to China’s recent construction. In practical terms, neither this decision nor any action that either Party may take in response can undo the permanent damage that has been done to the coral reef habitats of the South China Sea. In this respect, the Tribunal is conscious that the marine environment at Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North), Johnson Reef, Hughes Reef, and Subi Reef did not form part of the Philippines’ claims in these proceedings prior to the close of the November 2015 hearing. In the Tribunal’s view, China’s actions have aggravated the dispute between the Parties with respect to the marine environment at Mischief Reef and extended that dispute to encompass additional features that became the sites of large-scale construction work while this arbitration was ongoing.

(Paragraph 1179) Finally, China has undermined the integrity of these proceedings and rendered the task before the Tribunal more difficult. At the same time that the Tribunal was called upon to determine the status of features in the Spratly Islands and the entitlements that such features were capable of generating, China has permanently destroyed evidence of the natural status of those same features (see paragraphs 305 to 306, 321, 511, 541, and 578). The small rocks and sand cays that determine whether a feature constitutes a low-tide elevation or a high-tide feature capable of generating an entitlement to a territorial sea are now literally buried under millions of tons of sand and concrete. Despite this, the Tribunal has reached a decision on the status of features in the South China Sea using the best evidence available to it and drawing heavily on historical sources. The Tribunal is satisfied that its decisions regarding the status of features are well founded in fact, but records that they were rendered significantly more difficult by China’s works at the features in question.

(Paragraph 1811) Based on the considerations outlined above, the Tribunal finds that China has in the course of these proceedings aggravated and extended the disputes between the Parties through its dredging, artificial island-building, and construction activities. In particular, while these proceedings were ongoing:

(a) China has aggravated the Parties’ dispute concerning their respective rights and entitlements in the area of Mischief Reef by building a large artificial island on a low-tide elevation located in the exclusive economic zone of the Philippines.

(b) China has aggravated the Parties’ dispute concerning the protection and preservation of the marine environment at Mischief Reef by inflicting permanent, irreparable harm to the coral reef habitat of that feature.

(c) China has extended the Parties’ dispute concerning the protection and preservation of the marine environment by commencing large-scale island-building and construction works at Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North), Johnson Reef, Hughes Reef, and Subi Reef.

(d) China has aggravated the Parties’ dispute concerning the status of maritime features in the Spratly Islands and their capacity to generate entitlements to maritime zones by permanently destroying evidence of the natural condition of Mischief Reef, Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North), Johnson Reef, Hughes Reef, and Subi Reef.

My version of a Philippine Assisted Reproductive Technologies Act

Last year, for my Medical Jurisprudence class under Prof. James Dennis Gumpal, LLB, MD, I submitted my version of a bill/proposed law that will regulate the use of assisted reproductive technologies (ARTs), such as in vitro fertilization and suurogacy, in the Philippines. The provisions were drafted to protect the child conceived through such technologies. The bill settles issues of parental authority, legitimacy, support, and succession by binding the parents into their contract to use identified ARTs and preventing them from rescinding the contract and disowning the child conceived and born through said technologies.

The law also regulates the donation and use of gametes (reproductive cells) of the participants and penalizes unauthorized use of said cells. The donor of such cells and the surrogate are not considered under this bill as the parents of children conceived and born through ARTs. Finally, this bill prohibits human cloning for reproductive purposes.

The explanatory note and the proposed law itself are below:

 

Wishlist of features on a Philippine legal resource website

You don’t need to photocopy the SCRA version to read the originals or full text of a case. A lot of websites already provide the decisions of the Philippine Supreme Court, some from 1901, from paid sites like eSCRA, CD Asia, MyLegalWhiz to free sites like ChanRobles, Lawphil, Supra Source, Batas.org, Lawyerly, The Corpus Juris, Digest, and the Supreme Court site itself and its eLibrary.

I use all sites, considering their disadvantages and making full use of their advantages. But there are just some features which I think a Philippine legal resource site, free or not, should have. The most important ones, to my opinion, go first in this list.

1. Shepardize

Merriam-Webster defines “shepardize” as:

to look up (a case citation) in Shepard’s Citations especially in order to check the status of the case, parallel citations, or the use of the case in other jurisdictions

In short, shepardizing means determining whether a case is still “good law”, or if it has been supplanted by more recent laws or cases.

Perhaps a color coding could be used: red if overruled (then indicate if by law or by a case), yellow if inconsistent with another case (ex. if a decision on a case by the First Division is inconsistent with a decision by the Second Division on another case with similar facts), and green if still good law.

Perhaps important paragraphs could also be highlighted using the color scheme I just proposed. Upon clicking or tapping the paragraphs concerned, a box stating the law or case that overruled a certain paragraph would appear.

2. Allowing readers to recommend corrections

Nobody’s perfect. Typing a case from print or copy-pasting from the scanned copy to a text editor will always lead to typos, duplicate paragraphs, misplaced words. The reader can help point out these errors by clicking “Report an error”.

3. Auto-click footnotes

Don’t you hate it if you have to scroll down to look at a footnote, and then scroll up to go back where you paused? You can always use Ctrl + F. But a more elegant solution would be simply to click on the footnote number in the main text to get to the footnote text, and to click the footnote number beside the footnote text to return to the main text.

4. Links to other cases in the text itself

Instead of copying the title of one case cited in another, and then pasting it on a Google search box, it would be easier if the case titles themselves link to those cases. For example if X vs. Y cites A vs. B, clicking “A vs. B” would lead to the full text of A vs. B.

5. Cases cited in and cited by

eSCRA has this feature. The left side of the screen shows the list of cases cited in one case, and the list of cases citing that case in return.

6. Allowing searches by case title, case number and/or SCRA citation at the same time, with suggestions if none found

Most legal sites allow only searching by case title. eSCRA allows searching by case number, SCRA citation, or case title, but not all at the same time. Worse, there are no suggestions if no search results are displayed.

7. Laws as amended with feature to look at how law evolved

Supra Source contains this feature but I can no longer use it because I can’t use my Facebook account to log in to that site. Clicking the letter “H” shows previous versions of a provision or law. For example, I can see how Article 302 of the Labor Code on retirement pay evolved from RA 7641 up to RA 10757.

8. Philippine legal dictionary

This can work either as a list from A to Z like this site or through links in the text of a case. For example, clicking the term “Ubi lex non distinguit, nec nos distinguere debemus” would display a box stating the definition “When the law does not distinguish, we must not distinguish.”

9. Auto-generate case citations

Clicking a box generates “A vs. B, G.R. No. 123456, January 1, 2019″.

10. Summary of new laws

This can probably go at the home page of the site. Self-explanatory

11. List of topics with list of cases

The topics can be arranged by subjects. Then clicking a topic leads to a list of at least important cases. For example: Remedial Law > Civil Procedure > Service of summons > Manotoc vs. CA, Robinson vs. Miralles

12. CA and CTA decisions

Both the Court of Tax Appeals and Court of Appeals have made their decisions available online. But they are not easily accessible. You’ll need to use their search engine. Perhaps they could be arranged by date decided, just like Supreme Court cases.

13. Fun facts

To spice things up while reading an otherwise boring case, perhaps a box can appear on the right side of a case containing trivia. For example, did you know that the building involved in Manila Lodge No. 761 v. Court of Appeals [G.R. No. L-41001, September 30, 1976] is now the Museo Pambata?

14. Reference to page of SCRA version

Take a look at Brown vs. Board of Education at Justia. Ever wondered what “[489]” means? That’s the page number of the hard copy where the paragraphs above it appeared.

What features do you want to appear on a legal resource website? Which of the ones listed here are more important to you? Which of these features would appear next on a legal resource site? Let me know and I’ll edit my post accordingly.

Because of TRAIN, Has the Commissioner of Internal Revenue Lost the Power to Inquire into Bank Deposit Accounts and Other Related Information Held by Financial Institutions, Accredit and Register Tax Agents, and Prescribe Additional Procedural or Documentary Requirements?

Section 4 of RA 10963 (TRAIN Law) reads:

Section 4. Section 6 of the NIRC, as amended, is hereby further amended to read as follows:

Sec. 6. Power of the Commissioner to Make Assessments and Prescribe Additional Requirements for Tax Administration and Enforcement.—

“(A) Examination of Returns and Determination of Tax Due.— After a return has been filed as required under the provisions of this Code, the Commissioner or his duly authorized representative may authorize the examination of any taxpayer and the assessment of the correct amount of tax, notwithstanding any law requiring the prior authorization of any government agency or instrumentality: Providedhowever, That failure to file a return shall not prevent the Commissioner from authorizing the examination of any taxpayer.

“x x x

“x x x

“(B) x x x

“(C) x x x

“(D) x x x

“(E) Authority of the Commissioner to Prescribe Real Property Values.— The Commissioner is hereby -authorized to divide the Philippines into different zones or areas and shall, upon mandatory consultation with competent appraisers both from the private and public sectors, and with prior notice to affected taxpayers, determine the fair market value af real properties located in each zone or area, subject to automatic adjustment once every three (3) years through rules and regulations issued by the Secretary of Finance based on the current Philippine valuation standards: Provided, That no adjustment in zonal valuation shall be valid unless published in a newspaper of general circulation in the province, city or municipality concerned, or in the absence thereof, shall be posted in the provincial capitol, city or municipal hall and in two (2) other conspicuous public places therein: Providedfurther, That the basis of any valuation, including the records of consultations done, shall be public records open to the inquiry of any taxpayer. For purposes of computing any internal revenue tax, the value of the property shall be, whichever is the higher of:

“(1) the fair market value as determined by the Commissioner; or

“(2) the fair market value as shown in the schedule of values of the Provincial and City Assessors.”

There is no indication that there are other portions of Section 6 after item (E). Thus, does this mean that the following portions of Section 6 after item (E) have been deleted?

(F) (As amended by RA 10021) Authority of the Commissioner to Inquire into Bank Deposit Accounts and Other Related information held by Financial Institutions. – Notwithstanding any contrary provision of Republic Act No. 1405, Republic Act No. 6426, otherwise known as the Foreign Currency Deposit Act of the Philippines, and other general or special laws, the Commissioner is hereby authorized to inquire into the bank deposits and other related information held by financial institutions of:

(1) A decedent to determine his gross estate; and

(2) Any taxpayer who has filed an application for compromise of his tax liability under Section 204(A)(2) of this Code by reason of financial incapacity to pay his tax liability.

In case a taxpayer files an application to compromise the payment of his tax liabilities on his claim that his financial position demonstrates a clear inability to pay the tax assessed, his application shall not be considered unless and until he waives in writing his privilege under Republic Act No. 1405, Republic Act No. 6426, otherwise known as the Foreign Currency Deposit Act of the Philippines, or under other general or special laws, and such waiver shall constitute the authority of the Commissioner to inquire into the bank deposits of the taxpayer.

(3) A specific taxpayer or taxpayers subject of a request for the supply of tax information from a foreign tax authority pursuant to an international convention or agreement on tax matters to which the Philippines is a signatory or a party of: Provided, That the information obtained from the banks and other financial institutions may be used by the Bureau of Internal Revenue for tax assessment, verification, audit and enforcement purposes.

In case of a request from a foreign tax authority for tax information held by banks and financial institutions, the exchange of information shall be done in a secure manner to ensure confidentiality thereof under such rules and regulations as may be promulgated by the Secretary of Finance, upon recommendation of the Commissioner.

The Commissioner shall provide the tax information obtained from banks and financial institutions pursuant to a convention or agreement upon request of the foreign tax authority when such requesting foreign tax authority has provided the following information to demonstrate the foreseeable relevance of the information to the request:

(a) The identity of the person under examination or investigation;

(b) A statement of the information being sought, including its nature and the form in which the said foreign tax authority prefers to receive the information from the Commissioner;

(c) The tax purpose for which the information is being sought;

(d) Grounds for believing that the information requested is held in the Philippines or is in the possession or control of a person within the jurisdiction of the Philippines;

(e) To the extent known, the name and address of any person believed to be in possession of the requested information;

(f) A statement that the request is in conformity with the law and administrative practices of the said foreign tax authority, such that if the requested information was within the jurisdiction of the said foreign tax authority then it would be able to obtain the information under its laws or in the normal course of administrative practice and that it is in conformity with a convention or international agreement; and

(g) A statement that the requesting foreign tax authority has exhausted all means available in its own territory to obtain the information, except those that would give rise to disproportionate difficulties.

The Commissioner shall forward the information as promptly as possible to the requesting foreign tax authority. To ensure a prompt response, the Commissioner shall confirm receipt of a request in writing to the requesting tax authority and shall notify the latter of deficiencies in the request, if any, within sixty (60) days from receipt of the request.

If the Commissioner is unable to obtain and provide the information within ninety (90) days from receipt of the request, due to obstacles encountered in furnishing the information or when the bank or financial institution refuses to furnish the information, he shall immediately inform the requesting tax authority of the same, explaining the nature of the obstacles encountered or the reasons for refusal.

The term “foreign tax authority,” as used herein, shall refer to the tax authority or tax administration of the requesting State under the tax treaty or convention to which the Philippines is a signatory or a party of.

(G) Authority to Accredit and Register Tax Agents. – The Commissioner shall accredit and register, based on their professional competence, integrity and moral fitness, individuals and general professional partnerships and their representatives who prepare and file tax returns, statements, reports, protests, and other papers with or who appear before, the Bureau for taxpayers. Within one hundred twenty (120) days from January 1, 1998, the Commissioner shall create national and regional accreditation boards, the members of which shall serve for three (3) years, and shall designate from among the senior officials of the Bureau, one (1) chairman and two (2) members for each board, subject to such rules and regulations as the Secretary of Finance shall promulgate upon the recommendation of the Commissioner.

Individuals and general professional partnerships and their representatives who are denied accreditation by the Commissioner and/or the national and regional accreditation boards may appeal such denial to the Secretary of Finance, who shall rule on the appeal within sixty (60) days from receipt of such appeal. Failure of the Secretary of Finance to rule on the Appeal within the prescribed period shall be deemed as approval of the application for accreditation of the appellant.

(H) Authority of the Commissioner to Prescribe Additional Procedural or Documentary Requirements. – The Commissioner may prescribe the manner of compliance with any documentary or procedural requirement in connection with the submission or preparation of financial statements accompanying the tax returns.

The general coverage of the Retirement Pay Law (RA 7941) is broad enough to encompass all private sector employees

In De La Salle Araneta University vs. Bernardo [G.R. No. 190809, February 13, 2017], the Supreme Court ruled:

Republic Act No. 7641 states that “any employee may be retired upon reaching the retirement age x x x;” and “[i]n case of retirement, the employee shall be entitled to receive such retirement benefits as he may have earned under existing laws and any collective bargaining agreement and other agreements.” The Implementing Rules provide that Republic Act No. 7641 applies to “all employees in the private sector, regardless of their position, designation or status and irrespective of the method by which their wages are paid, except to those specifically exempted x x x.” And Secretary Quisumbing’s Labor Advisory further clarifies that the employees covered by Republic Act No. 7641 shall “include part-time employees, employees of service and other job contractors and domestic helpers or persons in the personal service of another.”

The only exemptions specifically identified by Republic Act No. 7641 and its Implementing Rules are: (1) employees of the National Government and its political subdivisions, including government-owned and/or controlled corporations, if they are covered by the Civil Service Law and its regulations; and (2) employees of retail, service and agricultural establishments or operations regularly employing not more than 10 employees.

Based on Republic Act No. 7641, its Implementing Rules, and Secretary Quisumbing’s Labor Advisory, Bernardo, as a part-time employee of DLS-AU, is entitled to retirement benefits. The general coverage of Republic Act No. 7641 is broad enough to encompass all private sector employees, and part-time employees are not among those specifically exempted from the law. The provisions of Republic Act No. 7641 and its Implementing Rules are plain, direct, unambiguous, and need no further elucidation. Any doubt is dispelled by the unequivocal statement in Secretary Quisumbing’s Labor Advisory that Republic Act No. 7641 applies to even part-time employees.

Under the rule of statutory construction of expressio unius est exclusio alterius, Bernardo’s claim for retirement benefits cannot be denied on the ground that he was a part-time employee as part-time employees are not among those specifically exempted under Republic Act No. 7641 or its Implementing Rules.