San Beda College of Law

638 Mendiola Street San Miguel, Metro Manila, Philippines

Practice Court I
Fast Tracking Justice: Understanding the Judicial Affidavit Rule
Submitted to: Judge Selma Alaras

Submitted by: Rahabansa Dagalangit Steven Michael Gala Golda Julia Gapuz Armida Geronimo Redmond John Zulueta 4-B October 12, 2012 1 Semester, A.Y. 2012-2013
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Fast Tracking Justice:

Understanding the Judicial Affidavit Rule

Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress. --Martin Luther King, Jr.-Democracy in the Philippines is buttressed by the three branches of government, all existing for the single purpose of serving the sovereign people. But today, the judiciary is at a crossroad and is facing mounting challenges to its status as the bastion for the defense of the peoples right against the excesses of the executive and the legislative departments. The resolution of cases brought forth before courts of justice painfully proceeds at snails pace, slowly and grudgingly eroding the publics confidence on the capacity and integrity of the judicial system. The court cannot afford to indefinitely continue to limp on by clinging to old and stale practices. Recognizing the need for drastic changes, the Supreme Court in the past years has introduced judicial reforms, all aimed at revitalizing the judiciary. First was the introduction of the Rule of Procedure for Small Claims Cases1 took effect in 2008. Envisioned to approximate the poor man's court, all 1st Level Courts in the country (Metropolitan Trial Courts, Metropolitan Trial Courts in Cities, Municipal Trial Courts, and Municipal Circuit Trial Courts) totaling 1,164, were mandated to apply this Rule in all claims exclusively for the collection of a sum of money, the principal of which does not exceed P100,000.00.2 In April 2012, a pilot program aimed to compress litigation by cutting out certain procedures was put into effect in the Quezon City Trial Courts thru A.M. No. 11-6-10-Supreme Court. One aspect of this program is the mandate to use affidavits in lieu of direct testimony. Growing out of this pilot program, the Supreme Court announced in September 2013 that the use of such affidavit will be adopted by
1 2

A.M. No. 08-8-7-Supreme Court, October 1, 2008 Supreme Court Press Brief, Current Judicial Reform Projects of the Supreme Court accesses October 11, 2012 http://sc.judiciary.gov.ph/pio/news/2012/09/09111201.pdf

courts throughout the Philippines which will take effect on January 1, 2013. This major judicial reform is the first under the leadership of the newly appointed Supreme Court Chief Justice Maria Lourdes Sereno. Deputy Court Administrator Raul Villanueva stated that with the judicial affidavit, it is expected that witnesses will be subjected to cross examination immediately and will cut short by 50 % the presentation of witnesses.3 If such holds true, it will be a huge relief for both the courts and the public who for now are still tangled in a protracted search for true justice. Contextualizing the Rule The WHEREAS clauses4 provided by Administrative Order No. 12-8-8 is a manifestation of the pursuit of the objective provided in Article III, Section 16 of the Constitution that all persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial or administrative bodies. Hence, any partylitigant to a case may demand expeditious action from all officials who are tasked with the administration of justice. However, even if such constitutional guarantee exists, it is not a hard and fast rule for it must be flexible according to the facts and circumstances of each particular case. This right to speedy trial may be considered violated when attended by vexatious, capricious and oppressive delays5 or when unjustified postponements of the trial are asked for and secured or when a long period of time is allowed to elapse without the party having his case tried. The WHEREAS clauses encapsulate the primary
3 4

http://opinion.inquirer.net/36154/a-new-court-rule Whereas, 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; Whereas, about 40% of criminal cases are dismissed annually owing to the fact that complainants simply give up coming to court after repeated postponements; Whereas, 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; Whereas, in order to reduce the time needed for completing the testimonies of witnesses in cases under litigation, on February 21, 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; Whereas, it is reported that such piloting has quickly resulted in reducing by about twothirds the time used for presenting the testimonies of witnesses, thus speeding up the hearing and adjudication of cases. 5 Ombudsman v. Jurado, G.R. No. 154155, August 6, 2008

purpose of the judicial system justice not thwarted with whimsical excuses such as non-appearance of a party to a case to further postpone conducting direct examination, which delays the entire criminal proceedings as a consequence. The Supreme Court being vested with the power to promulgate rules of procedure has taken into consideration the following guidelines in determining the expediency of executing A.M. No. 12-8-8 for criminal cases which are: (1) the length of the delay; (2) the reasons for such delay; (3) the assertion or failure to assert such right by the accused; and (4) the prejudice caused by the delay. In one of the cases decided by the Supreme Court6, they have emphasized that the main purpose of requiring direct examination or requiring the witness to appear and testify orally at a trial is to secure for the adverse party the opportunity of cross-examination. Furthermore, the right to confront witnesses as guaranteed by the Constitution is manifested by providing such process so as not to deprive any person of right to life, liberty or property without due process of law. They also stressed that such direct examination enables the judge as the trier of facts to obtain the elusive and incommunicable evidence of a witness deportment while testifying. Through such direct examination, the witness communicates the true idea of his countenance, manner, expression and other intricacies which may reveal his credibility as a witness and enables the judge to make a reasonable judgment. However, such processes have been repeatedly mocked by some party-litigants and their lawyers by causing unjust postponements by not appearing in such direct examination. Thus, there is indeed a need to dispense with such procedural steps by replacing the direct testimony of witnesses by judicial affidavits. The dispensing of direct examination did not entirely do away or abrogate the right of witnesses to crossexamination. With the promulgation of Judicial Affidavits Rule, the
6

People v. Estenzo, G.R. No. L-41166, August 25, 1976

primary aim of direct examination is transfused and/or added to cross-examination. The witnesses manner of testifying is not wholly discredited but still given much weight by still affording him the opportunity to be cross-examined on matters stated in the judicial affidavit. The judicial affidavit being under oath and containing a sworn attestation by the lawyer that the facts stated therein are based on the actual and true knowledge of the witness and that the same are not a product of the counsels coaching and that the same are faithfully recorded gives strength to the judicial affidavit as a reliable and legally acceptable testimony of a witness. Under pain of disbarment or perjury or such other applicable actions for commission of falsity in such affidavit, the execution of judicial affidavit provides a complete and untainted narration of facts which enables the efficient and effective rendering of services by the judicial machinery. Allowing such judicial affidavit gives way to speedy resolution of cases and the wise appropriation of time by judges to more pressing matters. Section 1: Scope of the Judicial Affidavit Rule7 This section sets out the scope which will very well affect the entire judicial process as we know it. This new Rule recently passed by the Supreme Court encompasses virtually all proceedings and actions, as well as their incidents with regard to all bodies which exercise judicial or quasi-judicial functions. This is of course in conjunction with the Supreme Courts power to promulgate rules regarding the protection and enforcement of constitutional rights, pleading, practice, and procedure in all
7

Section 1. Scope. - (a) This Rule shall apply to all actions, proceedings, and incidents requiring the reception of evidence before: (1) The Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal Trial Courts, the Municipal Circuit Trial Courts, and the Shari' a Circuit Courts but shall not apply to small claims cases under A.M. 08-8-7-Supreme Court; (2) The Regional Trial Courts and the Shari' a District Courts; (3) The Sandiganbayan, the Court of Tax Appeals, the Court of Appeals, and the Shari' a Appellate Courts; (4) The investigating officers and bodies authorized by the Supreme Court to receive evidence, including the Integrated Bar of the Philippine (IBP); and (5) The special courts and quasijudicial 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. (b) For the purpose of brevity, the above courts, quasi-judicial bodies, or investigating officers shall be uniformly referred to here as the court.

courts.8 Additionally, the Constitution also vests the Supreme Court with the power to disapprove rules of procedure promulgated by special courts and quasi-judicial bodies9, which is why the new Rule repeals all inconsistent rules of procedure not only those under the Supreme Court but other entities authorized by the Supreme Court to conduct investigations and receive evidence. So to expound on the matter, there are mainly two issues involved in the matter: first, as to the bodies concerned with the Rules application and second, the term all proceedings, actions and incidents requiring presentation of evidence. In the first instance, of course, as stated in the new Rule itself, it covers all courts, from MTCs up to the CA, with the exception of small claims courts. This is for the obvious reason that judicial courts follow the Supreme Courts prescribed rules of procedure; they are subject to whatever procedure the Supreme Court prescribes. The contention however is with regard to other bodies which are not directly under the control of the Supreme Court but exercises quasi-judicial functions. Everybody that conducts investigations, receives evidence, and exercises judicial and quasi-judicial functions is affected by this rule. For example, the National Labor Relations Commission (NLRC) is an adjudicatory body which is attached to the Department of Labor and Employment. It is a quasi-judicial body which therefore falls within the purview of Section 1 of the Rule on Judicial Affidavits. In this regard, the rule should be applied in the NLRC. However, the NLRC has promulgated its own rules of procedure with regard to its exercise of its quasi-judicial functions. In case of conflict, will the new rule over take the rules as evinced in the NLRCs rule of procedure? The new Rule is clear and therefore will take effect instead of the old rule inconsistent with it. The Supreme Court has been vested by the constitution with the sole power to with regard to rule-making power with
8

The 1986 Philippine Constitution, Article VIII Section 5 [5] - Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. 9 Ibid.

regard to pleadings, practice and procedure in all courts. Being that other bodies in the exercise of quasi-judicial functions acts as courts, it therefore comes within the purview of Supreme Courts rule making power. As to the case of NLRC, it is worth noting that there seems to be no incompatibility between the new rule and that of NLRCs. The latters procedure is non-litigious in nature and therefore does not require a full blown trial as normally portrayed in the movies, teleseryes and such other media. And although the NLRC promulgated its own procedure, it made the Rules of Court suppletory to it in cases not covered under the NLRC rules. The second issue is of course the scope of what proceedings will be included in the new rule. The Rule is encompassing in that regard. It says all proceedings, actions and incidents requiring presentation of evidence. This means practically everything under the scope and exercise of judicial and quasi-judicial proceedings. This therefore includes motions. Evidence is the basis upon which the existence or nonexistence or veracity of a particular fact is established or disproven, as the case may be.10 Without presentation of evidence, a particular allegation of fact is a mere hearsay and not cognizable by the courts. Therefore every trial type proceedings, such as those in courts, even those not trial type proceedings, as long as the matters require the settlement of actual controversies involving determination of rights legally demandable, are included. Section 2: Submission of Judicial Affidavits and Exhibits in Lieu of Direct Testimonies 11
10

Section 1, Rule 128, Rules of Court. Evidence defined - Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact. 11 Sec. 2. Submission of Judicial Affidavits and Exhibits in Lieu of Direct Testimonies. - (a) The parties shall file with the court and serve on the adverse party, personally or by licensed courier service, not later than five days before pre-trial or preliminary conference or the scheduled hearing with respect to motions and incidents, the following: (1) The judicial affidavits of their witnesses, which shall take the place of such witnesses' direct testimonies; and (2) The parties' docun1entary 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. (b) 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. In addition, 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

This section refers to the requirement filing and serving of judicial affidavits in lieu of testimonies of witnesses. Besides the novelty and drama that the court room image evokes, more important, is the implication of this replacement of actual testimonies by testimonial affidavits. This particular provision of the rule is the most controversial as this section does away with the conventional procedure of direct examinations, therefore changing litigation as popularly portrayed in movies, television, novels and other media. Instead of dramatic sequences in the court room, such will be replaced with papers upon papers of affidavits serving as testimonies of witnesses. As what was observed in our court visits, direct examinations are conventional part of a trial. The lawyers ask their witnesses to set the ground and support of the argument of the plaintiff. This will then disappear, as starting January 1, 2013 direct testimonies will be transcribed into paper. The use of judicial affidavits will be like the use of depositions under Rules 23 of the Rules of Court12. It takes the testimonies of the witnesses and places them in an affidavit and filed and served to the court and other party. In this sense, trials before the judicial and quasi-judicial courts partake the nature of a summary proceeding in that affidavits are submitted in lieu of direct testimonies. Affidavit is most useful in cases where the witness is unavailable or is currently out of reach and will likely be unable to attend the trial. Cases drag on for years due to nonappearance of witnesses. The use of judicial affidavits will, it is hoped, pave the way for relieving the clog of dockets in the courts by dispensing with the attendance of witnesses. But being encompassing as it is, what will be the effect of this new requirement to proceedings that seems to be? One particular point in its application is its effect to summary procedure. Under summary procedure in civil cases, affidavits
latter shall not be admitted. This is without prejudice to the introduction of secondary evidence in place of the original when allowed by existing rules.
12

Section 1, Rule 23, Rules of Court - .By leave of court after jurisdiction has been obtained over any defendant or over property which is the subject of the action, or without such leave after an answer has been served, the testimony of any person, whether a party or not, may be taken, at the instance of any party, by deposition upon oral examination or written interrogatories.

serving as evidence are submitted by the parties 10 days after the order by judge after the termination of the preliminary conference is issued13. But under the rule on Judicial Affidavits, the said affidavits must be served and filed with the court and the other party/parties before the preliminary conference or pre trial. Since the Judicial Affidavit Rule repeals all those rules inconsistent with it, therefore, the rules on summary procedure will then give way to it. The effect will then be to require the parties to submit earlier their witnesses affidavits. This will facilitate a faster termination of the role of the parties but more burdensome as it would require the earlier submission of witnesses affidavits than previously mandated. Whether this will better serve the ends of justice or not will be determined by experience. Another point to ponder on is the requirement of personal service of the said judicial affidavits, again doing away with the other manner of serving pleadings, motions, and other such papers by registered mail. Under the Rules of Court, service through registered mail can be done by the other party. But under the new rule, it can only be done through personal service or through a licensed courier service. This therefore withdraws a previously available avenue of service from the parties. What will be the effect of the same? Aside from less revenue for the National Post Office, it will therefore relieve the parties from filing the same to the courts on a Saturday. This is in connection with the time wherein the Post Office is open on Saturdays. Since the personal service and filing is required, therefore filing the same on a weekend is no longer possible as courts are closed on Saturdays. The requirement of attaching documentary evidence is also required by this rule. This therefore requires the parties to already procure the evidence already existing and available at the time of submission of the affidavits. It therefore becomes more burdensome for the parties as they already need to present and submit documentary and object evidence even prior to pretrial.
13

Sec. 9, Part II, Revised Rules on Summary Procedure: Submission of Affidavits and Position Papers Within 10 days from receipt of the order mentioned in the preceding section, the parties shall submit the affidavits of their witnesses and other evidence on the factual issues defined in the order, together with their position papers setting forth the law and the facts relies upon by them.

Although this new rule intends to relieve the clogging of dockets and desires for proceedings to terminate as soon as possible, it entails additional burden to parties to a case. It might sound burdensome at the outset but given the chance, the possibility of the new rule working to achieve its purposes is plausible. Section 3: Contents of judicial Affidavit
14

Section 3 of the Judicial Affidavit Rule requires that the affidavit to be executed by the witness should be in the language known to him, if the witness preferred to make his affidavit in a language other than Filipino or English, such affidavit must be accompanied by the English or the Filipino translations as the case may be. This rule is basically to ensure that the affidavit would speak nothing but the statements which the witness seeks to convey either to bolster the case for whose favor it was given or to discredit against a particular case. This section as well, like every affidavit requires that it be a statement made by a person who is under oath to tell the truth about the facts and information contained in his statements. Additionally, the person signing the affidavit, called the affiant, must attests to his or her identity. Moreover, under the Rule, the affidavit must be witnessed and signed by a person who is legally authorized to administer oaths, such as a notary public. When a person signs a sworn affidavit, he or she is promising that everything contained in the statement is accurate and true. Effectively, it is the same thing as orally presenting testimony in court. If a person lies about the
14

Sec. 3. Contents of judicial 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, and shall contain the following: (a) The name, age, residence or business address, and occupation of the witness; (b) 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; (c) 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; (d) Questions asked of the witness and his corresponding answers, consecutively numbered, that: (1) Show the circumstances under which the witness acquired the facts upon which he testifies; (2) Elicit from him those facts which are relevant to the issues that the case presents; and (3) Identify the attached docun1entary and object evidence and establish their authenticity in accordance with the Rules of Court; (e) The signature of the witness over his printed nan1e; and (f) 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.

information contained in the statement, he or she could be prosecuted for the crime of perjury or false testimony. In effect, Section 3 of the Judicial Affidavit Rule is not a complete departure from the present rules with respect to the requirement for the filing of an affidavit. Section 3 merely seeks to protect the integrity of the statements and evidence which may be extracted from the witness. The only notable departure from the present rules of procedure in so far as Section 3 is concerned is that these judicial affidavits will replace direct examinations. Therefore, as soon as the purpose of a witness testimony is announced to the court and questions about the testimonys admissibility in whole or in part resolved, the witness is immediately readied for cross-examination. Section 4: Sworn Attestation of the Lawyer 15 Section 4 of the Judicial Affidavit Rule requires the attestation of a lawyer who conducted and supervised the examination of the witness. Like in any other documents, an attestation is made for the purpose of preserving, in permanent form, a record of the facts attending the execution of a document, so that in case of failure of the memory of the subscribing witnesses, or other casualty, they may still be proved.16 The rule is very particular as to what the attestation of the lawyer concerned should contain; this is to make certain that the judicial affidavit executed by the witness is free from any defect or collusion. Verily, Section 4 of the Rule merely set a guideline that a lawyer should follow in order to maintain the integrity and credibility of the witness, having in mind that these affidavits will take the place of oral testimonies in court. Taking into
15

Sec. 4. Sworn attestation of the lawyer. - (a) 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. (b) A false attestation shall subject the lawyer mentioned to disciplinary action, including 16 Thompson on Wills, 2nd ed., Sec. 132

consideration the importance of the affidavits, the rule made it sure that the question to be propounded and the answers given by the witness should be faithfully recorded and it also requires the lawyer to attests that none of the parties present during the execution of the said affidavit coached nor colluded with the witness in answering the questions addressed to him. Moreover, Section 4 of the Judicial Affidavit Rule seeks to impress upon judicial affidavits the notion of truth by providing punitive and coercive measures against lawyers who violates the provision of the rule. Lawyers under the provision are under pain of administrative sanction should they violate and/or connive with parties-litigants. This is an effective measure to prevent mockery of justice that may result from false judicial affidavits. We should not, however, attribute the guideline as indicative of a desire to impose unreasonable restraint or beyond what reason and justice permit. It could not have been the intention of the legislature in providing for the essential safeguards in the execution a judicial affidavit to shackle the very right of the witness to give his testimony with assistance of a counsel, which the law recognizes and holds with the same importance as when the same would be given orally before the court. Section 5: Subpoena17 This section of A.M. No. 12-8-8 provides that in case of the witness declining or refusing without just cause to execute a judicial affidavit, the requesting party may avail of the issuance of the subpoena as stated under Rule 21 of the Revised Rules of Court. The provision of said law entitling the requesting party to request for the issuance of a subpoena duces tecum or ad testificandum stresses the need to present documents, papers or
17

Sec. 5. Subpoena. - If the government employee or official, or the requested witness, who is neither the witness of the adverse party nor a hostile 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.

books which are relevant and material to the resolution of the issue/s presented in the case before the courts. Such provides for an adequate remedy in case a witness unscrupulously refuses to produce the necessary evidence to impede court processes. Section 6: Offer of and Objections to Testimony in Judicial Affidavit18 This section is perhaps one of the most pivotal and crucial points for achieving the goal of avoiding delays in the resolution of cases and de-clogging the court dockets. Delay, in relation to court process and case flow management, is generally classified into: (1) court system delay; (2) lawyer-caused delay; and (3) delay caused by agencies independent of, but which interact with, the court system. Delay caused by the court system results from the court's failure to act promptly and adequately, without any fault on the part of litigants or their counsel, on matters concerning the processing of actions filed in court until the same are finally resolved. Among other things, these shortcomings have reinforced the practice of the great majority of Philippine trial courts of conducting trials on a piece-meal basis which is an offshoot of several factors: indiscriminate absence or tardiness at scheduled hearing on the part of either or both judges and lawyers; leniency of judges in the granting of postponements and laxity in the enforcement of rules of procedure; abuse by lawyers of rules of procedure, etc. On the other hand, lawyer-caused delay has been frequently a result of failure on the part of some of them to prepare adequately for trial. Abuse of rules of procedure to delay court proceedings is prevalent among ill-prepared or generally inept lawyers, and among those who simply wish to prolong a case in the hope that a client's position may somehow improve as the case drags on.19 Due to such delays cases at times are dismissed due to the eventual non-appearance of parties,
18

Sec. 6. Offer of and objections to testimony in judicial affidavit - The 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. 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.

especially witnesses in criminal cases, who get tired of returning to court repeatedly due to postponements and lack of material time. The first two forms of delays are squarely addressed by Section 6. Section 38, Rule 132 of the Rules of Court provides that the court must immediately rule on an objection of a party unless the court desires to take a reasonable time to inform itself on the question presented. This proviso is missing in section of the rule son judicial affidavit. This is another area where the court will possibly save time and avoid unexpected delay over a contention of a party. Since Section 2 requires that a judicial affidavit must be filed at least 5 days before the pre-trial or the trial, it can be presumed that the court already had ample time to study the content of the affidavit prior to its offer into evidence and thus is already equipped to immediately rule on any kind of objection that a party would possible raise against it. More importantly is the sections impact on lawyer caused delay. The incentive to delay the proceedings in order to wear out and frustrate people who are otherwise willing to testify, if it not for such delay will be minimized if not totally eradicated. With the testimony of the witness/es already contained in their judicial affidavit, they need not be present during its formal offer into evidence and just need to make themselves available for the cross-examination. The witness likewise need not be present when the opposing party moves to disqualify him as a witness or move to strike out his affidavit or any part thereof. He likewise need not be subjected to the tactic of excessively objecting to his testimony. What the opposing counsel has to do instead is note all the portions of a witness testimony which he objects against and such will be marked accordingly by the authorized personnel of the court.
19

Philippine Law Journal, The Problem of Delay in the Philippine Court System, accessed October 10, 2012 http://law.upd.edu.ph/plj/images/files/PLJ%20volume%2062/PLJ %20volume%2062%20second%20quarter%2005 %20Emmanuel%20L.%20Caparas, %20Florentino%20P.%20Feliciano%20 %20The%20Problem%20of%20Delay%20in%20the %20Philippine%20Court%20System.pdf

Section 7: Examination of the Witness on His Judicial Affidavit20 The new rule allows courts across the country to jump-start trials, so to speak, by accepting the affidavits (written according to certain safeguards) in lieu of direct testimony. At the same time, the rule adheres to a hard-earned culture of civil liberties: It is limited to the civil aspects of a criminal case, to criminal cases where the maximum penalty does not exceed six years, and to graver cases only if the defendant agrees.21 The Judicial Affidavit Rule did not entirely do away with oral testimony which is but just right. The quest for efficiency in the disposition of cases should never be accomplished at the expense of trampling on the inviolable constitutional right of the accused or the defendant to meet the witnesses face to face.22 The cross examination of witnesses will remain in oral form. In a case decided by the Supreme Court it was held that depositions by written interrogatories have inherent limitations and are not suitable to matters dependent on the credibility of witnessed oral testimony in open court remains the "most satisfactory method of investigation of facts'" and "'affords the greatest protection to the rights and liberties of citizens."23 This pronouncement is perfectly applicable to judicial affidavits given its similarities to the mentioned mode of discovery. In direct examination and even more so in cross-examination, the demeanor of the witness, the tone of his voice and the nuances of his actions are just as
20

Sec. 7. Examination of the Witness on his Judicial Affidavit- 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. 21 Philippine Daily Inquirer, accessed October 10, 2012 http://opinion.inquirer.net/36154/anew-court-rule 22 par. 2, Sec. 4, Art. III, 1987 Constitution - In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused: Provided, that he has been duly notified and his failure to appear is unjustifiable. 23 Dasmarias Garments, Inc. v. Reyes, G.R. No. 108229, August 24, 1993

important as what his answer is to a particular question. Crossexamination is the most reliable and effective way known of testing the credibility and accuracy of testimony. Under this section, the court is given imprimatur to take active part in examining the witness in line with the rationale behind the practice of examination of witnesses. This proviso is not novel and must be interpreted based in the long line of cases held by the Supreme Court regarding the role of the judge during trial, particularly during the examination of witnesses. The fundamental demand for the cold neutrality of an impartial judge must still be strictly satisfied. This requires that judge to not only to be impartial but also to appear impartial before all parties involved. The court is still enjoined from assuming the role of both magistrate and advocate. However it must be noted that judges have as much interest as counsel in the orderly and expeditious presentation of evidence, and have the duty to ask questions that would elicit the facts on the issues involved, clarify ambiguous remarks by witnesses, and address the points overlooked by counsel.24 Even before the promulgation of the Judicial Affidavit Rule judges were permitted to ask witnesses questions as well as to make comments if this will ferret out the truth. In another case, it was held that the judge should be given leeway in directing questions to witnesses in order to elicit relevant facts; it is expedient to allow the judge to question a witness so that his judgment may rest upon a full and clear understanding of the facts.25 In terms of performing the active role to which judges are called upon by Section 7, the test laid down by the court in the case of People v. Larraga26 is instructive. It is whether the intervention of the judge tends to prevent the proper presentation of the case or the ascertainment of the truth in the matter where he interposes his questions or comments. When the judge remarked that the testimonies of the two witnesses were incredible, that another witness was totally confused and appeared to be mentally imbalanced, and the two witnesses were liars, his comments were just honest observations intended to
24 25 26

People v. Herida, G.R. No. 127158, March 5, 2001 People v. Adora, G.R. No. 116528-31, July 14, 1997 G.R. Nos. 138874-75, February 3, 2004

warn he witnesses to be candid to the court. He merely wanted to ascertain the veracity of certain statements. Section 8: Oral Offer of and Objections to Exhibits27 Section 35 of the Rules of Court provides that documentary and object evidence shall be offered after the presentation of a partys testimonial evidence. The provision does not provide for a specific time when the parties must make such an offer. The period given by the court usually depend upon its discretion based on the nature and number of the documents a party seeks to offer. In the case of Cabador v. People28 for example, the RTC, after declaring an end to the prosecutions presentation of evidence required the prosecution to make a written or formal offer of its documentary evidence within 15 days from notice. The same is true in the case of Rodson Philippines, Inc. v. Court of Appeals29 where court granted the respondents prayer for time to make their formal offer of evidence which was granted by giving a period of fifteen (15) days to do so. The court then granted the petitioners a period of ten (10) days from service of the said formal offer within which to file their comment thereon. In a case before the Sandiganbayan however, it was stated that in the light of the peculiarities of this case where there was nothing left for the parties to do but to await the forthcoming judgment of the Sandiganbayan, save for the submission of the PCGGs written formal offer of documentary evidence which the PCGG failed to do within the 20-day period given it. However, it is expressly provided in the Judicial Affidavit Rule that the offer of documentary or object exhibits should be done
27

Sec. 8. Oral Offer of and Objections to Exhibits - (a) Upon the termination of the testimony of his last witness, 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. (b) 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.(c) 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 offers, the objections, and the rulings, dispensing with the description of each exhibit. 28 G.R. No. 186001, October 2, 2009 29 G.R. No. 141857, June 9, 2004

immediately after the termination of the testimony. If construed strictly this would mean the parties must always be ready with the documents that they intend to offer into evidence that regardless how voluminous they may be. Will the court still allow prayers for extension of time in certain cases or will the rule be strictly applied? Furthermore it appears from the provision of Sec. 8 that there is no longer any room for making an offer in writing if the rule of expressio unius est exclusion alterious will be applied. This finds support in the fact that under Section 36, Rule 132 parties as given three days, unless a different period is allowed, to make an objection to an offer of evidence in writing. This or a similar provision is absent in the Judicial Affidavit Rule. With these new rules, the parties must be vigilant in following them due to the possible dire consequences of failure to comply, that is, evidence not formally offered will not be considered by the court in rendering its decision.30 Object evidence must generally be marked (Exhibit A, B, etc. for the plaintiff; Exhibit I, 2, 3, etc. for the defendant) either during the pre-trial or during its presentation at the trial. It must also be identified as the object evidence it is claimed to be.31 Express provision now exists on how to offer this evidence. Previously, parties are granted leeway to offer their evidence based on the importance of the documents they have. Now, this must be done piece by piece in chronological order. The process appears to be tedious and may result in a situation where the time consumed for making the offer is longer than that spent in hearing the testimony of witnesses. How the judge will manage this stage of the trial will be crucial if this rule will work to the courts, and ultimately the parties, advantage or if it will turn out to be counter-productive. Section 9: Application of Rule to Criminal Actions32
30

Section 34, Rule 132: The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. 31 Evidence: Basic Principles and Selected Problems, Benipayo, Alfredo L., accessed October 11, 2011 http://ustlawreview.com/pdf/vol.XLVIII/Articles/Evidence_Basic_Principles.pdf 32 Sec. 9: Application of Rule to Criminal Actions - (a) This rule shall apply to all criminal actions: (1) Where the maximum of the imposable penalty does not exceed six years; (2) Where the accused agrees to the use of judicial affidavits, irrespective of the penalty involved; or (3) With respect to the civil aspect of the actions, whatever the penalties

As was previously discussed in Section 7, the Judicial Affidavit Rule seeks to balance its desire to settle cases expeditiously and the protection of constitutionally granted rights. This can be gleaned from part (a) of this Section which enumerates the only instances where judicial affidavit may be availed of in criminal actions. Several additional points must be focused into. It appears that the entire provision of Section 9 is heavily skewed in favor of the accused which is most likely a reflection of another constitutional guaranteed right of the accused to be presumed innocent until the contrary is proved. This Section grants the accused, in certain instance, an option of resorting to judicial affidavit or stick with oral testimony. Under clause (c) of the same, the accused is given a longer time to submit his judicial affidavit. If generally, and strictly for complainants, affidavits may should be filed at least five days before the pre-trial, an accused is given ten days instead to file judicial affidavits if he wants desires to present testimonial evidence to rebut the testimony contained in the judicial affidavit of the prosecution. This gives them a longer time to prepare compared to that of the prosecution and to strategize such as whether it will beneficial for the accused to risk being subjected to cross examination. Due to the clause which states that no further judicial affidavit, documentary, or object evidence shall be admitted at the trial it can be gleaned that presentation of certain type of testimonies will remain in oral form. One of these would be expert testimony which according to A.M. No. 11-6-10-Supreme Court33 shall always be given orally.
involved are. (b) The prosecution shall 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. (c) If the accused 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. 33 Guidelines for Litigation in Quezon City Trial Courts

Section 10: Effect of Non-Compliance with the Judicial Affidavit Rule34 This Section provides the teeth of the Judicial Affidavit Rule which would compel parties to observe the rules herein set forth on pain of suffering serious repercussions for non-compliance. Clause (a) of this section has the most far reaching consequence. The rule that failure to submit on time the judicial affidavit is equivalent to waiver of the testimony of a witness is a serious disincentive for lawyers who might have a predilection for dilatory tactics. Lawyers are being compelled to be more efficient and observant of deadlines. If previously, prayer for extension of time for filing of documents and affidavits may be granted several times, the court now is restricted to granting such prayer only once and is allowed to impose a fine to delinquent parties. Furthermore counsel risk the possibility of waiving the right to cross-examine a witness if he fails to appear on the court appointed date. The court likewise is now stricter when it comes to compliance with forms. Judicial affidavits must comply with the provisions of Sections 3 and 4 or else the judicial affidavit will not be admitted which is another instance where a testimony would be refused admission and consideration. Here, the court is once again compelled to be stricter in considering the prayers to correct noncompliance with the formal and substantial requirements of the judicial affidavit due to the provision for a
34

Sec. 10. Effect of Non-Compliance with the Judicial Affidavit Rule - (a)A party who fails to submit the required judicial affidavits and exhibits on time shall be deemed to have waived their submission. The court may, however, allow only once the late submission of the same provided, the delay is for a valid reason, would not unduly prejudice the opposing party, and the defaulting party pays a fine of not less than Pl,OOO.OO nor more than P5,OOO.OO, at the discretion of the court. (b) 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. (c) 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 con1pliant 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,OOO.OO nor more than P5,OOO.OO, at the discretion of the court.

one time only chance of submitting a compliant replacement affidavit. Section 11: Repeal or Modification of Inconsistent Rules35 Manifest in this provision is the intent of the Supreme Court to ensure that this particular judicial reform be given wide range application. With the importance of making sure that all the requisite for valid offer of evidence it is appropriate to ask whether offer of evidence will now be required in instances where formal offer of evidence was previously not required such as (1) summary proceedings, (2) documents judicially admitted or taken judicial notice of, (3) documents, affidavits, and depositions used in rendering summary judgments, (4) document or affidavits used in deciding quasi-judicial or administrative cases, (5) lost objects previously marked, identified, described in the record, and testified to by witnesses who had been subjects of crossexamination in respect to said objects. Another area that must be looked into is how the new rules will affect the existing provision of the Rules of Court regarding modes of discovery particularly depositions, letters rogatory, interrogatories to parties and admission by adverse party. A lot of the elements are shared by these modes of discovery and judicial affidavit. Will the former be completely set aside to be completely replaced by the latter or the two will simultaneously be utilized and to what extent? Rule 132 of the Rules of Court must be reviewed to determine what provision/s has been rendered nugatory with the introduction of the Judicial Affidavit Rule. The requirement of Section 1 regarding testimony of all witnesses be generally given orally36 will obviously no longer apply in most instances of direct
35

Sec. 11: Repeal or Modification of Inconsistent Rules - The provisions of the Rules of Court and the rules of procedure governing investigating officers and bodies authorized by the Supreme Court to receive evidence are repealed or modified insofar as these are inconsistent with the provisions of this Rule. The rules of procedure governing quasi-judicial bodies inconsistent herewith are hereby disapproved. 36 Section 1, Rule 132, Rules of 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 question calls for a different mode of answer, the answers of

testimony. Lastly the availability of a written offer of evidence may have been withdrawn already thus the necessity provision of the provision of Section 3637 related to objection to such offer must likewise be looked into as well.

the witness shall be given orally. 37 Section 36, Rule 132, Rules of Court An offer of evidence in writing shall be objected to within 3 days after notice of the offer unless a different period is allowed by the court.