Zambales prosecutors ask SC to suspend Judicial Affidavit RuleMay 4, 2015 7:41pm

Tags: supremecourt, judicialaffidavitrule

Provincial prosecutors in Zambales have asked the Supreme Court to abolish or at least suspend the Judicial Affidavit Rule (JAR), a measure meant to speed up the resolution of cases by cutting down in half the period in presenting evidence.

In a letter to the high tribunal, the Office of the Provincial Prosecutor of Zambales said the JAR would be "disadvantageous" to the prosecutors because of the government's lack of resources.

"[T]he Office of the Provincial Prosecutor of Zambales [is] requesting that the Judicial Affidavit Rule be abolished or the modified rule under the Resolution dated January 8, 2013 be made permanent or the modified rule under the resolution dated January 8, 2013 be made permanent, or if both are not possible, that, in the alternative, the suspension of the implementation of the Rule be extended for further study," the group said.

In response to the request, the Supreme Court, sitting en banc, referred the matter to the appropriate SC committee.

"The Court further resolved to refer the aforesaid letter to the subcommittee on the Revision of Rules on Civil Procedure for appropriate action," it ruled.

The SC sub-committee is headed by Associate Justice Diosdado Peralta.

Under the JAR, parties are required to prepare judicial affidavits in place of the traditional and usually lengthy direct testimony in order to expedite the presentation of evidence.

Judicial affidavits are sworn statements containing the witness' testimony in question-and-answer form.

Following the rule's approval in 2012, the National Prosecution Service, which is under the Department of Justice, complained that its prosecutors might not yet be ready to comply with the JAR as it would mean additional work for them on top of their already heavy workload.

In response, the high court on January 8, 2013 issued a modified JAR, in which public prosecutors are allowed to use sworn statements that had been used during preliminary investigation or inquest in place of new judicial affidavits.

The modified version was only supposed to have been in effect until last December 31, 2013, but the high court extended it for the entire 2014.

Private lawyers, however, were not covered by the modified JAR and were still required to prepare judicial affidavits for their clients.

Apart from the NPS, the Prosecutors' League of the Philippine had also sought the deferment of the JAR on December 12, 2012.

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On 4 September 2012, the Supreme Court issued A.M. No. 12-8-8-SC [full text], approving

the JUDICIAL AFFIDAVIT RULE. The Rule, which is intended to expedite court proceedings,

is new and far from complete, necessitating an extensive discussion to thresh out various

issues. Lawyers could keep their observations to themselves and hope that the other party

commits a mistake, most likely gaining an edge by reason of technicality. Still, considering

that the unstated purpose of the Rule is to ferret out the truth in coming out with a decision

based on the merits, and not on mere technicality, it would be helpful to start an open

discussion to pick the brains of the legal-minded crowd.

I prepared a summary and an initial discussion of the Judicial Affidavit Rule, posted here.

Each topic is contained in a separate post for better presentation/organization. Lumping all

topics in a single post would lead to confusion because it would take more effort to correlate

a comment to the particular portion of the whole discussion. A single-topic post would mean

that all comments pertain only to that specific topic. You are most welcome to disagree with

fellow participants in the discussion, but express the disagreement with the requisite degree

of respect that befits a fellow member of the profession.

This is Part 1 of 11 of the discussion on the Judicial Affidavit Rule. Join the discussion of the

following topics:

The Judicial Affidavit Rule requires that direct examination of a witness, which is the

examination-in-chief of a witness by the party presenting him on the facts relevant to the

issue, shall be in the form of judicial affidavits, subject to the usual mode of cross-

examination.

When is the Rule effective?

The Rule took effect on 1 January 2013. However, in criminal cases without private

prosecutors, the Supreme Court allowed public prosecutors in first- and second-level courts

until the end of 2013 to utilize the affidavits of the complainant and his witnesses prepared

and submitted in connection with the investigation and filing of the Information in court.

Public prosecutors are required to fully comply with the Rule by 1 January 2014.

During the one-year period when the concession is in effect, the attending public prosecutor,

upon presenting the witness, shall require the witness to affirm what the sworn statement

contains and may only ask the witness additional direct examination questions that have not

been amply covered by the sworn statement.

The concession does not apply in criminal cases where the private complainant is

represented by a duly empowered private prosecutor, who has the obligation to comply with

the Rule.

The reasons for the issuance of the Rule

Case congestion and delays plague most courts in cities, given the huge volume of cases

filed each year and the slow and cumbersome adversarial system that the judiciary has in

place. About 40% of criminal cases are dismissed annually owing to the fact that

complainants simply give up coming to court after repeated postponements. Few foreign

businessmen make long-term investments in the Philippines because its courts are unable to

provide ample and speedy protection to their investments, keeping its people poor.

In order to reduce the time needed for completing the testimonies of witnesses in cases

under litigation, on 21 February 2012 the Supreme Court approved for piloting by trial courts

in Quezon City the compulsory use of judicial affidavits in place of the direct testimonies of

witnesses. It is reported that such piloting has quickly resulted in reducing by about two-

thirds the time used for presenting the testimonies of witnesses, thus speeding up the

hearing and adjudication of cases. The adoption of the Rule hopes to replicate nationwide

the success of the Quezon City experience in the use of judicial affidavits.

These reasons for the issuance of the Judicial Affidavit Rule are contained in the “whereas”

clauses of A.M. No. 12-8-8-SC.

What is the scope of application of this rule?

The applicability of this rule may refer to: (a) the courts where the rule will apply; (b) the

kinds of cases or proceedings where the rule will apply; (c) the stage of the proceeding.

Type of cases

This Rule shall apply to all actions, proceedings, and incidents requiring the reception of

evidence. However, the Rule shall not apply to small claims cases under A.M. 08-8-7-SC.

The Rule may apply to criminal cases in three situations, as follows: (1) The maximum of the

imposable penalty does not exceed six years; (2) regardless of the penalty involved, with

respect to the civil aspect of the actions, or where the accused agrees to the use of the Rule.

Courts where the Rule are applicable

1. The Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal Trial

Courts, the Municipal Circuit Trial Courts.

2. Shari’a Circuit Courts, Shari’a District Courts and the Shari’a Appellate Courts.

3. Regional Trial Courts.

4. Sandiganbayan.

5. Court of Tax Appeals.

6. Court of Appeals.

7. Investigating officers and bodies authorized by the Supreme Court to receive evidence,

including the Integrated Bar of the Philippine (IBP).

8. Special courts and quasi-judicial bodies, whose rules of procedure are subject to

disapproval of the Supreme Court, insofar as their existing rules of procedure contravene

the provisions of this Rule.

The parties shall serve on the adverse party and file with the court not later than five days

before pre-trial or preliminary conference or the scheduled hearing with respect to motions

and incidents.

This Rule amends the existing minimum period, which is three days, for the service and

filing of the pre-trial brief. Under the new Rule, considering that the judicial affidavit must be

attached to the pre-trial brief, the latter must be served and filed within five days.

Service and filing of the judicial affidavit in criminal cases

This is the only portion of the Rule that provides a separate provision for criminal cases,

veering from the simultaneous filing of judicial affidavits by the parties. The general rule is

reiterated, but this time applicable only to the prosecution, to submit the judicial affidavits of

its witnesses not later than five days before the pre-trial, serving copies of the same upon

the accused. The complainant or public prosecutor shall attach to the affidavits such

documentary or object evidence as he may have, marking them as Exhibits A, B, C and so

on. No further judicial affidavit, documentary, or object evidence shall be admitted at the

trial.

If the accused, on the other hand, desires to be heard on his defense after receipt of the

judicial affidavits of the prosecution, he shall have the option to submit his judicial affidavit

as well as those of his witnesses to the court within ten days from receipt of such affidavits

and serve a copy of each on the public and private prosecutor, including his documentary

and object evidence previously marked as Exhibits 1, 2, 3, and so on. These affidavits shall

serve as direct testimonies of the accused and his witnesses when they appear before the

court to testify.

It is interesting to note that only the paragraph applicable to the prosecution contains the

provision that: “No further judicial affidavit, documentary, or object evidence shall be

admitted at the trial.” Does this mean that the accused is covered by the general rule, which

allows the late filing of the affidavit?

How is the service/filing done?

The Rule specifies only two manners of service or filing of the affidavit: by personal service

or by licensed courier service. It is interesting that there is no express mention of

“registered mail” and it is logical that the term “courier service” does not refer to, and does

not include, registered mail. The purpose of the Rule is to expedite cases and there can be

no reliance on the presumptive receipt by reason of registered mail.

There is no overriding reason why registered mail should be removed as a manner of

service/filing. A party could send the judicial affidavit way in advance by registered mail. It is

the party’s lookout if the other party or court indeed received the judicial affidavit within the

prescribed period.

Another minor issue is when is a courier service considered licensed? The rule is not clear

whether a separate license or accreditation for courier service providers on top of the SEC

registration. It appears that other than the usual government registration, there is no need

for separate Supreme Court accreditation.

These issues can be dispensed with by deleting the portion providing for personal service or

by courier. This is surplusage. The intent of the Rule is to ENSURE receipt of the judicial

affidavit by the court and other party at least five days before the pre-trial or hearing, and

the Rule can simply so provide, just like in pre-trial rules.

Can you submit amended or supplemental affidavits?

There may be instances when it is necessary to execute a supplemental or amended

affidavit, like in the case of newly-discovered evidence. Is this allowed and, if so, how should

it be done?

The judicial affidavit shall contain the following:

1. The name, age, residence or business address, and occupation of the witness;

2. The name and address of the lawyer who conducts or supervises the examination of the

witness and the place where the examination is being held;

3. A statement that the witness is answering the questions asked of him, fully conscious that

he does so under oath, and that he may face criminal liability for false testimony or perjury;

4. Questions asked of the witness and his corresponding answers, consecutively numbered,

that:

(i) Show the circumstances under which the witness acquired the facts upon which he

testifies;

(ii) Elicit from him those facts which are relevant to the issues that the case presents; and

(iii) Identify the attached documentary and object evidence and establish their authenticity

in accordance with the Rules of Court;

5. The signature of the witness over his printed name;

6. A jurat with the signature of the notary public who administers the oath or an officer who

is authorized by law to administer the same.

7. Attestation of the lawyer.

What is a jurat?

A jurat, which is different from an “acknowledgment” as defined under the Rules on Notarial

Practice, refers to an act in which an individual on a single occasion: (a) appears in person

before the notary public and presents an instrument or document; (b) is personally known to

the notary public or identified by the notary public through competent evidence of identity

as defined by these Rules; (c) signs the instrument or document in the presence of the

notary; and (d) takes an oath or affirmation before the notary public as to such instrument

or document. (Rule 2, Sec. 6 of the 2004 Rules on Notarial Practice, A.M. No. 02-8-13-SC)

It is important to note the strict requirement that, in the execution of the jurat, the requisite

competent evidence of identity must include at least one current identification document

issued by an official agency bearing the photograph and signature of the individual.

For purposes of comparison, “acknowledgment” refers to an act in which an individual on a

single occasion: (a) appears in person before the notary public and presents an integrally

complete instrument or document; (b) is attested to be personally known to the notary

public or identified by the notary public through competent evidence of identity as defined

by the notarial rules; and (c) represents to the notary public that the signature on the

instrument or document was voluntarily affixed by him for the purposes stated in the

instrument or document, declares that he has executed the instrument or document as his

free and voluntary act and deed, and, if he acts in a particular representative capacity, that

he has the authority to sign in that capacity.

What is the sworn attestation of the lawyer?

One of the problems with the Rule is the fact that judges only have limited opportunity to

observe the demeanor of the witnesses.

Moreover, even if lawyers briefed the witness, the oral answer given by the witness during

direct examination is almost wholly dependent on the witness. This is no longer true under

this Rule because the lawyer prepares the judicial affidavit which takes the place of the

direct testimony.

Thus, it is now required that the judicial affidavit shall contain a sworn attestation at the

end, executed by the lawyer who conducted or supervised the examination of the witness,

to the effect that:

1. He faithfully recorded or caused to be recorded the questions he asked and the

corresponding answers that the witness gave; and

2. Neither he nor any other person then present or assisting him coached the witness

regarding the latter’s answers.

To put teeth to this prohibition, the Rule provides that a false attestation shall subject the

lawyer mentioned to disciplinary action, including disbarment. There is no requirement that

the lawyer who prepared the judicial affidavit must be the one to present the witness in

court.

What language should be used in the affidavit?

A judicial affidavit shall be prepared in the language known to the witness and, if not in

English or Filipino, accompanied by a translation in English or Filipino.

Under the Rules of Court, as regards the testimony of a witness, the offer must be made at

the time the witness is called to testify (Rule 132, Sec. 34). The Rule, on the other hand,

provides that party presenting the judicial affidavit of his witness in place of direct testimony

shall state the purpose of such testimony at the start of the presentation of the witness. This

provision, in relation to the enumerated required contents of an affidavit, means that the

purpose is NOT required to be indicated in the judicial affidavit. Some judges nevertheless

require that the purpose be stated in the judicial affidavit, a practice unilaterally resorted by

some lawyers for convenience.

How does the opposing party make objections?

Objection to a witness may take the form of: (a) a disqualification from testifying; or (b) to a

specific question raised. Under the Rules of Court, objection to a question propounded in the

course of the oral examination of a witness shall be made as soon as the grounds therefor

shall become reasonably apparent (Rule 132, Sec. 36). The adverse party may move to

disqualify the witness or to strike out his affidavit or any of the answers found in it on ground

of inadmissibility. The court shall promptly rule on the motion and, if granted, shall cause

the marking of any excluded answer by placing it in brackets under the initials of an

authorized court personnel, without prejudice to a tender of excluded evidence under

Section 40 of Rule 132 of the Rules of Court.

How should the party presenting the witness identify and mark documentary evidence?

The parties’ documentary or object evidence, if any, which shall be attached to the judicial

affidavits and marked as Exhibits A, B, C, and so on in the case of the complainant or the

plaintiff, and as Exhibits 1, 2, 3, and so on in the case of the respondent or the defendant.

How can the party or witness keep the original of the documentary or object evidence?

Litigants and witnesses, for good reasons, often prefer to keep the original of the document

that is to be presented in and submitted to the court. The Rule provides for the following

procedure:

1. Attach the document or evidence to the judicial affidavit of the witness/es . This

must be done obviously before the pre-trial conference or the hearing. This is done by

attaching the photocopy of the document, or the reproduction or photograph of the object

evidence.  The Rule provides that should a party or a witness desire to keep the original

document or object evidence in his possession, he may, after the same has been identified,

marked as exhibit, and authenticated, warrant in his judicial affidavit that the copy or

reproduction attached to such affidavit is a faithful copy or reproduction of that original.

2. Bring the original during the pre-trial or preliminary conference. This is required

under pre-trial rules, so the document may be preliminarily marked as evidence and

compared with the original, if needed.  The Rule provides that the party or witness shall

bring the original document or object evidence for comparison during the preliminary

conference with the attached copy, reproduction, or pictures, failing which the latter shall

not be admitted. As provided under pre-trial rules and reiterated in the Rule, evidence not

pre-marked shall not be admissible as evidence. The Rule indicates that the pre-marking is

done by the parties themselves, not the clerk of court as provided in the existing pre-trial

rules. If so, the requirement of preliminary conference under Circular No. A.M. No. 03-1-09-

SC (Guidelines to be Observed by Trial Court Judges and Clerks of Court in the Conduct of

Pre-Trial and use of Deposition-Discovery Measures), which is conducted before the pretrial

conference for the purpose of pre-marking documents before the clerk of court, should be

dispensed with and revised/deleted from the rules of procedure to avoid surplusage.

Nevertheless, there may be an instance when a party would subsequently want to retain an

original previously attached to the judicial affidavit. The Rule does not provide for the

procedure in such case. It is recommended that if the party attached the original to the

judicial affidavit and would want to retain possession of that original document, the party

must, during the presentation of the witness, request that the copy be compared to the

original, request for a stipulation that the copy is a faithful reproduction of the original, and

request that the marking be transferred to the copy.

The adverse party shall have the right to cross-examine the witness on his judicial affidavit

and on the exhibits attached to the same. The party who presents the witness may also

examine him as on re-direct. In every case, the court shall take active part in examining the

witness to determine his credibility as well as the truth of his testimony and to elicit the

answers that it needs for resolving the issues.

There is no need for a judicial affidavit if the witness is called to testify through a subpoena.

If the government employee or official, or the requested witness, unjustifiably declines to

execute a judicial affidavit or refuses without just cause to make the relevant books,

documents, or other things under his control available for copying, authentication, and

eventual production in court, the requesting party may avail himself of the issuance of a

subpoena ad testificandum or duces tecum under Rule 21 of the Rules of Court. The rules

governing the issuance of a subpoena to the witness in this case shall be the same as when

taking his deposition except that the taking of a judicial affidavit shall be understood to be

ex parte.

On the other hand, this provision expressly applies to requested witnesses who are neither

the witness of the adverse party nor a hostile witness. What’s the reason for the exclusion?

What rule should apply?

The formal offer of documentary or object evidence shall be made upon the termination of

the testimony of a party’s last witness. This obviously means that this is done when a party

rests its case, and not every time the testimony of each witness is terminated.

The formal offer is made orally in open court, which shows an obvious intent to do away with

the option of filing a written formal offer of evidence allowed under existing rules. A party

shall immediately make an oral offer of evidence of his documentary or object exhibits,

piece by piece, in their chronological order, stating the purpose or purposes for which he

offers the particular exhibit.

After each piece of exhibit is offered, the adverse party shall state the legal ground for his

objection, if any, to its admission, and the court shall immediately make its ruling respecting

that exhibit.

Since the documentary or object exhibits form part of the judicial affidavits that describe

and authenticate them, it is sufficient that such exhibits are simply cited by their markings

during the offer of evidence, the objections, and the rulings, dispensing with the description

of each exhibit.

There are different consequences in case of: (1) failure to file the judicial affidavit; (1) failure

to comply with the prescribed requirements; or (3) absence during the scheduled trial date.

1. Failure to file judicial affidavit

A party who fails to submit the required judicial affidavits and exhibits on time shall be

deemed to have waived their submission. The Rule allows for an exception, provided the

following requirements are present:

a. It must be with leave of court. The court has the discretion whether to allow it.

b. The delay must be for a valid reason. The Rule does not indicate at what point the late

submission is allowed. The above-quoted provision, which applies to criminal cases, trial

starts with the presentation of the first witness (see Rule 30 of the Rules of Court), which

gives the impression that no additional affidavits or evidence may be allowed upon

presentation of the first witness. If this so, will this also apply to non-criminal cases?

c. It would not unduly prejudice the opposing party. This is quite surprising considering that

any additional evidence naturally favors the presenting party and, therefore, prejudices the

other party.

d. The defaulting party pays a fine of not less than P1,000.00 nor more than P5,000.00, at

the discretion of the court.

e. It is availed only once.

This is the general provision and it is not clear whether the exception also applies to criminal

cases. The specific rule for criminal cases provide that: “No further judicial affidavit,

documentary, or object evidence shall be admitted at the trial.” This gives the impression

that the exception applies only in criminal cases.

2. Failure to comply with required contents

The court shall not admit as evidence judicial affidavits that do not conform to the content

requirements of Section 3 and the attestation requirement of Section 4 above. The court

may, however, allow only once the subsequent submission of the compliant replacement

affidavits before the hearing or trial provided the delay is for a valid reason and would not

unduly prejudice the opposing party and provided further, that public or private counsel

responsible for their preparation and submission pays a fine of not less than Pl,000.00 nor

more than P5,000.00, at the discretion of the court.

3. Absence during the scheduled trial date

The court shall not consider the affidavit of any witness who fails to appear at the scheduled

hearing of the case as required. Counsel who fails to appear without valid cause despite

notice shall be deemed to have waived his client’s right to confront by cross-examination

the witnesses there present.