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San Beda College of Law638 Mendiola Street San Miguel, Metro Manila, Philippines

Practice Court I

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

1st Semester, A.Y. 2012-2013

Fast Tracking Justice:


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Understanding the Judicial Affidavit Rule

Law and order exist for the purpose of establishing justice andwhen they fail in this purpose

they become the dangerously structured dams that block theflow of social progress.--Martin Luther King, Jr.--

Democracy in the Philippines is buttressed by the threebranches of government, all existing for the single purpose ofserving the sovereign people. But today, the judiciary is at acrossroad and is facing mounting challenges to its status as thebastion for the defense of the peoples right against the excessesof the executive and the legislative departments. The resolutionof cases brought forth before courts of justice painfully proceedsat snails pace, slowly and grudgingly eroding the publicsconfidence on the capacity and integrity of the judicial system.

The court cannot afford to indefinitely continue to limp on byclinging to old and stale practices.

Recognizing the need for drastic changes, the SupremeCourt in the past years has introduced judicial reforms, all aimedat 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 LevelCourts in the country (Metropolitan Trial Courts, Metropolitan TrialCourts in Cities, Municipal Trial Courts, and Municipal Circuit TrialCourts) totaling 1,164, were mandated to apply this Rule in allclaims exclusively for the collection of a sum of money, theprincipal of which does not exceed P100,000.00.2 In April 2012, apilot program aimed to compress litigation by cutting out certainprocedures was put into effect in the Quezon City Trial Courts thru

A.M. No. 11-6-10-Supreme Court. One aspect of this program isthe mandate to use affidavits in lieu of direct testimony. Growingout of this pilot program, the Supreme Court announced inSeptember 2013 that the use of such affidavit will be adopted by

1 A.M. No. 08-8-7-Supreme Court, October 1, 20082 Supreme Court Press Brief, Current Judicial Reform Projects of the Supreme Court accessesOctober 11, 2012 http://sc.judiciary.gov.ph/pio/news/2012/09/09111201.pdf
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courts throughout the Philippines which will take effect on January1, 2013. This major judicial reform is the first under the leadershipof the newly appointed Supreme Court Chief Justice Maria LourdesSereno. Deputy Court Administrator Raul Villanueva stated that

with the judicial affidavit, it is expected that witnesses will besubjected to cross examination immediately and will cut short by50 % the presentation of witnesses.3 If such holds true, it will be ahuge relief for both the courts and the public who for now are stilltangled 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 providedin Article III, Section 16 of the Constitution that all persons shall

have the right to a speedy disposition of their cases before alljudicial, quasi-judicial or administrative bodies. Hence, any party-litigant to a case may demand expeditious action from all officialswho are tasked with the administration of justice. However, evenif such constitutional guarantee exists, it is not a hard and fastrule for it must be flexible according to the facts andcircumstances of each particular case. This right to speedy trialmay 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 along period of time is allowed to elapse without the party havinghis case tried. The WHEREAS clauses encapsulate the primary

3 http://opinion.inquirer.net/36154/a-new-court-rule4Whereas, case congestion and delays plague most courts in cities, given the huge volumeof cases filed each year and the slow and cumbersome adversarial system that the judiciaryhas in place;Whereas, about 40% of criminal cases are dismissed annually owing to the fact thatcomplainants simply give up coming to court after repeated postponements;Whereas, few foreign businessmen make long-term investments in the Philippines becauseits courts are unable to provide ample and speedy protection to their investments, keepingits people poor;Whereas, in order to reduce the time needed for completing the testimonies of witnesses incases under litigation, on February 21, 2012 the Supreme Court approved for piloting by trialcourts in Quezon City the compulsory use of judicial affidavits in place of the directtestimonies of witnesses;Whereas, 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 thehearing and adjudication of cases.5 Ombudsman v. Jurado, G.R. No. 154155, August 6, 2008


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purpose of the judicial system justice not thwarted withwhimsical excuses such as non-appearance of a party to a case tofurther postpone conducting direct examination, which delays theentire criminal proceedings as a consequence.

The Supreme Court being vested with the power topromulgate rules of procedure has taken into consideration thefollowing guidelines in determining the expediency of executingA.M. No. 12-8-8 for criminal cases which are: (1) the length of thedelay; (2) the reasons for such delay; (3) the assertion or failureto assert such right by the accused; and (4) the prejudice causedby the delay.

In one of the cases decided by the Supreme Court6, they

have emphasized that the main purpose of requiring directexamination or requiring the witness to appear and testify orallyat a trial is to secure for the adverse party the opportunity ofcross-examination. Furthermore, the right to confront witnessesas guaranteed by the Constitution is manifested by providingsuch 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 andincommunicable evidence of a witness deportment whiletestifying. Through such direct examination, the witnesscommunicates the true idea of his countenance, manner,expression and other intricacies which may reveal his credibilityas a witness and enables the judge to make a reasonable

judgment. However, such processes have been repeatedlymocked by some party-litigants and their lawyers by causingunjust postponements by not appearing in such directexamination. Thus, there is indeed a need to dispense with suchprocedural steps by replacing the direct testimony of witnessesby judicial affidavits. The dispensing of direct examination did notentirely do away or abrogate the right of witnesses to cross-examination. With the promulgation of Judicial Affidavits Rule, the

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


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primary aim of direct examination is transfused and/or added tocross-examination. The witnesses manner of testifying is notwholly discredited but still given much weight by still affordinghim the opportunity to be cross-examined on matters stated in

the judicial affidavit.

The judicial affidavit being under oath and containing asworn attestation by the lawyer that the facts stated therein arebased on the actual and true knowledge of the witness and thatthe same are not a product of the counsels coaching and that thesame are faithfully recorded gives strength to the judicial affidavitas a reliable and legally acceptable testimony of a witness. Underpain of disbarment or perjury or such other applicable actions forcommission of falsity in such affidavit, the execution of judicial

affidavit provides a complete and untainted narration of factswhich enables the efficient and effective rendering of services bythe judicial machinery. Allowing such judicial affidavit gives wayto speedy resolution of cases and the wise appropriation of timeby judges to more pressing matters.

Section 1: Scope of the Judicial Affidavit Rule7

This section sets out the scope which will very well affect theentire judicial process as we know it. This new Rule recentlypassed by the Supreme Court encompasses virtually allproceedings and actions, as well as their incidents with regard toall bodies which exercise judicial or quasi-judicial functions. This isof course in conjunction with the Supreme Courts power topromulgate rules regarding the protection and enforcement ofconstitutional rights, pleading, practice, and procedure in all

7 Section 1. Scope. - (a) This Rule shall apply to all actions, proceedings, and incidentsrequiring 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 theShari' a Circuit Courts but shall not apply to small claims cases under A.M. 08-8-7-SupremeCourt; (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) Theinvestigating 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 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. (b) For thepurpose of brevity, the above courts, quasi-judicial bodies, or investigating officers shall beuniformly referred to here as the court.


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courts.8 Additionally, the Constitution also vests the SupremeCourt with the power to disapprove rules of procedurepromulgated by special courts and quasi-judicial bodies9, which iswhy the new Rule repeals all inconsistent rules of procedure not

only those under the Supreme Court but other entities authorizedby the Supreme Court to conduct investigations and receiveevidence. So to expound on the matter, there are mainly twoissues involved in the matter: first, as to the bodies concernedwith 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 Ruleitself, it covers all courts, from MTCs up to the CA, with theexception of small claims courts. This is for the obvious reason

that judicial courts follow the Supreme Courts prescribed rules ofprocedure; they are subject to whatever procedure the SupremeCourt prescribes. The contention however is with regard to otherbodies which are not directly under the control of the SupremeCourt but exercises quasi-judicial functions. Everybody thatconducts investigations, receives evidence, and exercises judicialand 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 bodywhich therefore falls within the purview of Section 1 of the Ruleon Judicial Affidavits. In this regard, the rule should be applied inthe NLRC. However, the NLRC has promulgated its own rules ofprocedure with regard to its exercise of its quasi-judicialfunctions. In case of conflict, will the new rule over take the rulesas evinced in the NLRCs rule of procedure? The new Rule is clearand therefore will take effect instead of the old rule inconsistentwith it. The Supreme Court has been vested by the constitution

with the sole power to with regard to rule-making power with8 The 1986 Philippine Constitution, Article VIII Section 5 [5] - Promulgate rules concerningthe protection and enforcement of constitutional rights, pleading, practice, and procedure inall courts, the admission to the practice of law, the integrated bar, and legal assistance tothe under-privileged. Such rules shall provide a simplified and inexpensive procedure for thespeedy disposition of cases, shall be uniform for all courts of the same grade, and shall notdiminish, increase, or modify substantive rights. Rules of procedure of special courts andquasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.9 Ibid.


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regard to pleadings, practice and procedure in all courts. Beingthat other bodies in the exercise of quasi-judicial functions acts ascourts, it therefore comes within the purview of Supreme Courtsrule making power. As to the case of NLRC, it is worth noting that

there seems to be no incompatibility between the new rule andthat of NLRCs. The latters procedure is non-litigious in nature andtherefore does not require a full blown trial as normally portrayedin the movies, teleseryes and such other media. And although theNLRC promulgated its own procedure, it made the Rules of Courtsuppletory to it in cases not covered under the NLRC rules.

The second issue is of course the scope of what proceedingswill be included in the new rule. The Rule is encompassing in thatregard. It says all proceedings, actions and incidents requiring

presentation of evidence. This means practically everything underthe scope and exercise of judicial and quasi-judicial proceedings.This therefore includes motions. Evidence is the basis upon whichthe existence or nonexistence or veracity of a particular fact isestablished or disproven, as the case may be.10 Withoutpresentation of evidence, a particular allegation of fact is a merehearsay and not cognizable by the courts. Therefore every trialtype proceedings, such as those in courts, even those not trialtype proceedings, as long as the matters require the settlementof actual controversies involving determination of rights legallydemandable, are included.

Section 2: Submission of Judicial Affidavits and Exhibits inLieu of Direct Testimonies 11

10 Section 1, Rule 128, Rules of Court.Evidence defined - Evidence is the means, sanctionedby 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) Theparties shall file with the court and serve on the adverse party, personally or by licensedcourier service, not later than five days before pre-trial or preliminary conference or thescheduled hearing with respect to motions and incidents, the following: (1) The judicialaffidavits of their witnesses, which shall take theplace 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 orthe plaintiff, and as Exhibits 1, 2, 3, and so on in the case of the respondent or thedefendant. (b) Should a party or a witness desire to keep the originaldocument or objectevidence in his possession, he may, after the samehas been identified, marked as exhibit,and authenticated, warrant in hisjudicial affidavit that the copy or reproduction attached tosuch affidavit is a faithful copy or reproduction of that original. In addition, the party orwitness shall bring the original document or object evidence for comparison during thepreliminary conference with the attached copy,reproduction, or pictures, failing which the


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This section refers to the requirement filing and serving ofjudicial affidavits in lieu of testimonies of witnesses. Besides thenovelty and drama that the court room image evokes, moreimportant, is the implication of this replacement of actual

testimonies by testimonial affidavits. This particular provision ofthe rule is the most controversial as this section does away withthe conventional procedure of direct examinations, thereforechanging litigation as popularly portrayed in movies, television,novels and other media. Instead of dramatic sequences in thecourt room, such will be replaced with papers upon papers ofaffidavits serving as testimonies of witnesses. As what wasobserved in our court visits, direct examinations are conventionalpart of a trial. The lawyers ask their witnesses to set the groundand support of the argument of the plaintiff. This will then

disappear, as starting January 1, 2013 direct testimonies will betranscribed into paper.

The use of judicial affidavits will be like the use ofdepositions under Rules 23 of the Rules of Court12. It takes thetestimonies of the witnesses and places them in an affidavit andfiled and served to the court and other party. In this sense, trialsbefore the judicial and quasi-judicial courts partake the nature ofa summary proceeding in that affidavits are submitted in lieu ofdirect testimonies. Affidavit is most useful in cases where thewitness is unavailable or is currently out of reach and will likely beunable to attend the trial. Cases drag on for years due to non-appearance of witnesses. The use of judicial affidavits will, it ishoped, pave the way for relieving the clog of dockets in the courtsby dispensing with the attendance of witnesses. But beingencompassing as it is, what will be the effect of this newrequirement to proceedings that seems to be?

One particular point in its application is its effect to summary

procedure. Under summary procedure in civil cases, affidavitslatter shall not be admitted. This is without prejudice to the introduction of secondaryevidence inplace of the original when allowed by existing rules.

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


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serving as evidence are submitted by the parties 10 days afterthe order by judge after the termination of the preliminaryconference 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 inconsistentwith it, therefore, the rules on summary procedure will then giveway to it. The effect will then be to require the parties to submitearlier their witnesses affidavits. This will facilitate a fastertermination of the role of the parties but more burdensome as itwould require the earlier submission of witnesses affidavits thanpreviously 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 personalservice of the said judicial affidavits, again doing away with theother manner of serving pleadings, motions, and other suchpapers by registered mail. Under the Rules of Court, servicethrough registered mail can be done by the other party. But underthe new rule, it can only be done through personal service orthrough a licensed courier service. This therefore withdraws apreviously available avenue of service from the parties. What willbe the effect of the same? Aside from less revenue for theNational Post Office, it will therefore relieve the parties from filingthe same to the courts on a Saturday. This is in connection withthe time wherein the Post Office is open on Saturdays. Since thepersonal service and filing is required, therefore filing the sameon a weekend is no longer possible as courts are closed onSaturdays.

The requirement of attaching documentary evidence is alsorequired by this rule. This therefore requires the parties to alreadyprocure the evidence already existing and available at the time of

submission of the affidavits. It therefore becomes moreburdensome for the parties as they already need to present andsubmit documentary and object evidence even prior to pretrial.

13 Sec. 9, Part II, Revised Rules on Summary Procedure: Submission of Affidavits and PositionPapers Within 10 days from receipt of the order mentioned in the preceding section, theparties shall submit the affidavits of their witnesses and other evidence on the factual issuesdefined in the order, together with their position papers setting forth the law and the factsrelies upon by them.


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Although this new rule intends to relieve the clogging of docketsand desires for proceedings to terminate as soon as possible, itentails additional burden to parties to a case. It might soundburdensome 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 Affidavit14

Section 3 of the Judicial Affidavit Rule requires that theaffidavit to be executed by the witness should be in the languageknown to him, if the witness preferred to make his affidavit in alanguage other than Filipino or English, such affidavit must beaccompanied by the English or the Filipino translations as thecase may be. This rule is basically to ensure that the affidavit

would speak nothing but the statements which the witness seeksto convey either to bolster the case for whose favor it was givenor to discredit against a particular case. This section as well, likeevery affidavit requires that it be a statement made by a personwho is under oath to tell the truth about the facts and informationcontained in his statements. Additionally, the person signing theaffidavit, called the affiant, must attests to his or her identity.Moreover, under the Rule, the affidavit must be witnessed andsigned 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 isaccurate and true. Effectively, it is the same thing as orallypresenting testimony in court. If a person lies about the

14 Sec. 3. Contents of judicial Affidavit. - A judicial affidavit shall be prepared in the languageknown to the witness and, if not in English or Filipino accompanied by a translation inEnglish or Filipino, and shall contain the following: (a) The name, age, residence or businessaddress, and occupation of the witness; (b) The name and address of the lawyer whoconducts or supervises the examination of the witness and the place where the examinationis being held; (c) A statement that the witness is answering the questions asked of him, fullyconscious that he does so under oath, and that he may face criminal liability for falsetestimony or perjury; (d) Questions asked of the witness and his corresponding answers,consecutively numbered, that: (1) Show the circumstances under which the witnessacquired the facts upon which he testifies; (2) Elicit from him those facts which are relevantto the issues that the case presents; and (3) Identify the attached docun1entary and objectevidence and establish their authenticity in accordance with the Rules of Court; (e) Thesignature of the witness over his printed nan1e; and (f) A jurat with the signature of thenotary public who administers the oath or an officer who is authorized by law to administerthe same.
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information contained in the statement, he or she could beprosecuted for the crime ofperjury or false testimony.

In effect, Section 3 of the Judicial Affidavit Rule is not acomplete departure from the present rules with respect to therequirement for the filing of an affidavit. Section 3 merely seeksto protect the integrity of the statements and evidence whichmay be extracted from the witness. The only notable departurefrom the present rules of procedure in so far as Section 3 isconcerned is that these judicial affidavits will replace directexaminations. Therefore, as soon as the purpose of a witnesstestimony is announced to the court and questions about thetestimonys admissibility in whole or in part resolved, the witnessis immediately readied for cross-examination.

Section 4: Sworn Attestation of the Lawyer15

Section 4 of the Judicial Affidavit Rule requires theattestation of a lawyer who conducted and supervised theexamination of the witness. Like in any other documents, anattestation is made for the purpose of preserving, in permanentform, a record of the facts attending the execution of a document,so that in case of failure of the memory of the subscribingwitnesses, or other casualty, they may still be proved.16 The ruleis very particular as to what the attestation of the lawyerconcerned should contain; this is to make certain that the judicialaffidavit executed by the witness is free from any defect orcollusion.

Verily, Section 4 of the Rule merely set a guideline that alawyer should follow in order to maintain the integrity andcredibility of the witness, having in mind that these affidavits willtake the place of oral testimonies in court. Taking into

15 Sec. 4. Sworn attestation of the lawyer. - (a) The judicial affidavit shall contain a swornattestation at the end, executed by the lawyer who conducted or supervised theexamination of the witness, to the effect that: (1) He faithfully recorded or caused to berecorded 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 witnessregarding the latter's answers. (b) A false attestation shall subject the lawyer mentioned todisciplinary action, including16 Thompson on Wills, 2nd ed., Sec. 132
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consideration the importance of the affidavits, the rule made itsure that the question to be propounded and the answers givenby the witness should be faithfully recorded and it also requiresthe lawyer to attests that none of the parties present during the

execution of the said affidavit coached nor colluded with thewitness in answering the questions addressed to him.

Moreover, Section 4 of the Judicial Affidavit Rule seeks toimpress upon judicial affidavits the notion of truth by providingpunitive and coercive measures against lawyers who violates theprovision of the rule. Lawyers under the provision are under painof administrative sanction should they violate and/or connive withparties-litigants. This is an effective measure to prevent mockeryof justice that may result from false judicial affidavits. We should

not, however, attribute the guideline as indicative of a desire toimpose unreasonable restraint or beyond what reason and justicepermit. It could not have been the intention of the legislature inproviding for the essential safeguards in the execution a judicialaffidavit to shackle the very right of the witness to give histestimony with assistance of a counsel, which the law recognizesand holds with the same importance as when the same would begiven orally before the court.

Section 5: Subpoena17

This section of A.M. No. 12-8-8 provides that in case of thewitness declining or refusing without just cause to execute a

judicial affidavit, the requesting party may avail of the issuance ofthe subpoena as stated under Rule 21 of the Revised Rules ofCourt. The provision of said law entitling the requesting party torequest for the issuance of a subpoena duces tecum or adtestificandum stresses the need to present documents, papers or

17 Sec. 5. Subpoena. - If the government employee or official, or the requested witness, whois neither the witness of the adverse party nor a hostile witness, unjustifiably declines toexecute a judicial affidavit or refuses without just cause to make the relevant books,documents, or other things under his control available for copying, authentication, andeventual production in court, the requesting party may avail himself of the issuance of asubpoena ad testificandum or duces tecum under Rule 21 of the Rules of Court. The rulesgoverning the issuance of a subpoena to the witness in this case shall be the same as whentaking his deposition except that the taking of a judicial affidavit shall be understood tobe ex parte.


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books which are relevant and material to the resolution of theissue/s presented in the case before the courts. Such provides foran adequate remedy in case a witness unscrupulously refuses toproduce the necessary evidence to impede court processes.

Section 6: Offer of and Objections to Testimony in JudicialAffidavit18

This section is perhaps one of the most pivotal and crucialpoints for achieving the goal of avoiding delays in the resolutionof cases and de-clogging the court dockets. Delay, in relation tocourt process and case flow management, is generally classifiedinto: (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 fromthe court's failure to act promptly and adequately, without anyfault on the part of litigants or their counsel, on mattersconcerning the processing of actions filed in court until the sameare finally resolved. Among other things, these shortcomings havereinforced the practice of the great majority of Philippine trialcourts of conducting trials on a piece-meal basis which is an off-shoot of several factors: indiscriminate absence or tardiness atscheduled hearing on the part of either or both judges and

lawyers; leniency of judges in the granting of postponements andlaxity in the enforcement of rules of procedure; abuse by lawyersof rules of procedure, etc. On the other hand, lawyer-caused delayhas been frequently a result of failure on the part of some of themto prepare adequately for trial. Abuse of rules of procedure todelay court proceedings is prevalent among ill-prepared orgenerally inept lawyers, and among those who simply wish toprolong a case in the hope that a client's position may somehowimprove as the case drags on.19 Due to such delays cases at timesare dismissed due to the eventual non-appearance of parties,

18 Sec. 6. Offer of and objections to testimony in judicial affidavit -The party presenting thejudicial affidavit of his witness in place of direct testimony shall state the purpose of suchtestimony at the start of the presentation of the witness. The adverse party may move todisqualify the witness or to strike out his affidavit or any of the answers found in it on groundof inadmissibility. The court shall promptly rule on the motion and, if granted, shall causethe marking of any excluded answer by placing it in brackets under the initials of anauthorized court personnel, without prejudice to a tender of excluded evidence underSection 40 of Rule 132 of the Rules of Court.


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especially witnesses in criminal cases, who get tired of returningto court repeatedly due to postponements and lack of materialtime. The first two forms of delays are squarely addressed bySection 6.

Section 38, Rule 132 of the Rules of Court provides that thecourt must immediately rule on an objection of a party unlessthe court desires to take a reasonable time to inform itself on thequestion presented.This proviso is missing in section of the ruleson judicial affidavit. This is another area where the court willpossibly save time and avoid unexpected delay over a contentionof a party. Since Section 2 requires that a judicial affidavit mustbe filed at least 5 days before the pre-trial or the trial, it can bepresumed that the court already had ample time to study the

content of the affidavit prior to its offer into evidence and thus isalready equipped to immediately rule on any kind of objectionthat a party would possible raise against it.

More importantly is the sections impact on lawyer causeddelay. The incentive to delay the proceedings in order to wear outand frustrate people who are otherwise willing to testify, if it notfor such delay will be minimized if not totally eradicated. With thetestimony of the witness/es already contained in their judicial

affidavit, they need not be present during its formal offer intoevidence and just need to make themselves available for thecross-examination. The witness likewise need not be presentwhen the opposing party moves to disqualify him as a witness ormove to strike out his affidavit or any part thereof. He likewiseneed not be subjected to the tactic of excessively objecting to histestimony. What the opposing counsel has to do instead is note allthe portions of a witness testimony which he objects against andsuch will be marked accordingly by the authorized personnel ofthe 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


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Section 7: Examination of the Witness on His JudicialAffidavit20

The new rule allows courts across the country to jump-start

trials, so to speak, by accepting the affidavits (written accordingto certain safeguards) in lieu of direct testimony. At the sametime, the rule adheres to a hard-earned culture of civil liberties: Itis limited to the civil aspects of a criminal case, to criminal caseswhere the maximum penalty does not exceed six years, and tograver cases only if the defendant agrees.21 The Judicial AffidavitRule did not entirely do away with oral testimony which is but justright. The quest for efficiency in the disposition of cases shouldnever be accomplished at the expense of trampling on theinviolable constitutional right of the accused or the defendant to

meet the witnesses face to face.22 The cross examination ofwitnesses will remain in oral form. In a case decided by theSupreme Court it was held that depositions by writteninterrogatories have inherent limitations and are not suitable tomatters dependent on the credibility of witnessed oral testimonyin open court remains the "most satisfactory method ofinvestigation of facts'" and "'affords the greatest protection to therights and liberties of citizens."23 This pronouncement is perfectlyapplicable to judicial affidavits given its similarities to the

mentioned mode of discovery. In direct examination and evenmore so in cross-examination, the demeanor of the witness, thetone 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 havethe right to cross-examine the witness on his judicial affidavit and on the exhibits attachedto the same. The party who presents the witness may also examine him as on re-direct. Inevery case, the court shall take active part in examining the witness to determine hiscredibility as well as the truth of his testimony and to elicit the answers that it needs forresolving the issues.21 Philippine Daily Inquirer, accessed October 10, 2012 http://opinion.inquirer.net/36154/a-new-court-rule22 par. 2, Sec. 4, Art. III, 1987 Constitution - In all criminal prosecutions, the accused shall bepresumed innocent until the contrary is proved, and shall enjoy the right to be heard byhimself 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 havecompulsory process to secure the attendance of witnesses and the production of evidence inhis behalf. However, after arraignment, trial may proceed notwithstanding the absence ofthe accused: Provided, that he has been duly notified and his failure to appear isunjustifiable.23 Dasmarias Garments, Inc. v. Reyes, G.R. No. 108229, August 24, 1993


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important as what his answer is to a particular question. Cross-examination is the most reliable and effective way known oftesting the credibility and accuracy of testimony.

Under this section, the court is given imprimatur to takeactive part in examining the witness in line with the rationalebehind the practice of examination of witnesses. This proviso isnot novel and must be interpreted based in the long line of casesheld by the Supreme Court regarding the role of the judge duringtrial, particularly during the examination of witnesses. Thefundamental demand for the cold neutrality of an impartial judgemust still be strictly satisfied. This requires that judge to not onlyto be impartial but also to appear impartial before all partiesinvolved. The court is still enjoined from assuming the role of both

magistrate and advocate. However it must be noted that judgeshave as much interest as counsel in the orderly and expeditiouspresentation of evidence, and have the duty to ask questions thatwould elicit the facts on the issues involved, clarify ambiguousremarks by witnesses, and address the points overlooked bycounsel.24 Even before the promulgation of the Judicial AffidavitRule judges were permitted to ask witnesses questions as well asto 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 isexpedient to allow the judge to question a witness so that hisjudgment may rest upon a full and clear understanding of thefacts.25 In terms of performing the active role to which judges arecalled upon by Section 7, the test laid down by the court in thecase of People v. Larraga26 is instructive. It is whether theintervention of the judge tends to prevent the proper presentationof the case or the ascertainment of the truth in the matter wherehe interposes his questions or comments. When the judgeremarked that the testimonies of the two witnesses wereincredible, that another witness was totally confused andappeared to be mentally imbalanced, and the two witnesses wereliars, his comments were just honest observations intended to

24 People v. Herida, G.R. No. 127158, March 5, 200125 People v. Adora, G.R. No. 116528-31, July 14, 199726G.R. Nos. 138874-75, February 3, 2004


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warn he witnesses to be candid to the court. He merely wanted toascertain the veracity of certain statements.

Section 8: Oral Offer of and Objections to Exhibits27

Section 35 of the Rules of Court provides that documentaryand object evidence shall be offered after the presentation of apartys testimonial evidence. The provision does not provide for aspecific time when the parties must make such an offer. Theperiod given by the court usually depend upon its discretionbased on the nature and number of the documents a party seeksto offer. In the case ofCabador v. People28 for example, the RTC,after declaring an end to the prosecutions presentation ofevidence required the prosecution to make a written or formal

offer of its documentary evidence within 15 days from notice. Thesame is true in the case of Rodson Philippines, Inc. v. Court of

Appeals29 where court granted the respondents prayer for time tomake their formal offer of evidence which was granted by giving aperiod of fifteen (15) days to do so. The court then granted thepetitioners a period of ten (10) days from service of the saidformal offer within which to file their comment thereon.In a casebefore the Sandiganbayan however, it was stated that in the lightof the peculiarities of this case where there was nothing left for

the parties to do but to await the forthcoming judgment of theSandiganbayan, save for the submission of the PCGGs written formal offer of documentary evidence whichthe PCGG failed to do within the 20-day period given it.

However, it is expressly provided in the Judicial Affidavit Rulethat 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 testimonyof his last witness, a party shall immediately make an oral offer of evidence of hisdocumentary or object exhibits, piece by piece, in their chronological order, stating thepurpose or purposes for which he offers the particular exhibit. (b) After each piece of exhibitis offered, the adverse party shall state the legal ground for his objection, if any, to itsadmission, and the court shall immediately make its ruling respecting that exhibit.(c) Sincethe documentary or object exhibits form part of the judicial affidavits that describe andauthenticate them, it is sufficient that such exhibits are simply cited by their markingsduring the offers, the objections, and the rulings, dispensing with the description of eachexhibit.28 G.R. No. 186001, October 2, 200929 G.R. No. 141857, June 9, 2004


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immediately after the termination of the testimony. If construedstrictly this would mean the parties must always be ready withthe documents that they intend to offer into evidence thatregardless how voluminous they may be. Will the court still allow

prayers for extension of time in certain cases or will the rule bestrictly applied? Furthermore it appears from the provision of Sec.8 that there is no longer any room for making an offer in writing ifthe rule ofexpressio unius est exclusion alterious will be applied.

This finds support in the fact that under Section 36, Rule 132parties as given three days, unless a different period is allowed,to make an objection to an offer of evidence in writing. This or asimilar provision is absent in the Judicial Affidavit Rule. With thesenew rules, the parties must be vigilant in following them due tothe possible dire consequences of failure to comply, that is,

evidence not formally offered will not be considered by the courtin 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) eitherduring the pre-trial or during its presentation at the trial. It mustalso 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, thismust be done piece by piece in chronological order. The processappears to be tedious and may result in a situation where thetime consumed for making the offer is longer than that spent inhearing the testimony of witnesses. How the judge will managethis stage of the trial will be crucial if this rule will work to thecourts, and ultimately the parties, advantage or if it will turn outto 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 formallyoffered. The purpose for which the evidence is offered must be specified.31Evidence: Basic Principles and Selected Problems, Benipayo, Alfredo L., accessed October11, 2011 http://ustlawreview.com/pdf/vol.XLVIII/Articles/Evidence_Basic_Principles.pdf32 Sec. 9: Application of Rule to Criminal Actions - (a) This rule shall apply to all criminalactions: (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 penaltyinvolved; or (3) With respect to the civil aspect of the actions, whatever the penalties


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As was previously discussed in Section 7, the JudicialAffidavit Rule seeks to balance its desire to settle casesexpeditiously and the protection of constitutionally granted rights.

This can be gleaned from part (a) of this Section whichenumerates the only instances where judicial affidavit may beavailed of in criminal actions.

Several additional points must be focused into. It appearsthat the entire provision of Section 9 is heavily skewed in favor ofthe accused which is most likely a reflection of anotherconstitutional guaranteed right of the accused to be presumedinnocent until the contrary is proved. This Section grants theaccused, in certain instance, an option of resorting to judicial

affidavit or stick with oral testimony. Under clause (c) of thesame, the accused is given a longer time to submit his judicialaffidavit. If generally, and strictly for complainants, affidavits mayshould be filed at least five days before the pre-trial, an accusedis given ten days instead to file judicial affidavits if he wantsdesires to present testimonial evidence to rebut the testimonycontained in the judicial affidavit of the prosecution. This givesthem a longer time to prepare compared to that of theprosecution and to strategize such as whether it will beneficial for

the accused to risk being subjected to cross examination. Due tothe clause which states that no further judicial affidavit,documentary, or object evidence shall be admitted at the trial itcan be gleaned that presentation of certain type of testimonieswill remain in oral form. One of these would be expert testimonywhich according to A.M. No. 11-6-10-Supreme Court33 shall alwaysbe given orally.

involved are. (b) The prosecution shall submit the judicial affidavits of its witnesses not laterthan five days before the pre-trial, serving copies of the same upon the accused. Thecomplainant or public prosecutor shall attach to the affidavits such documentary or objectevidence as he may have, marking them as Exhibits A, B, C, and so on. No further judicialaffidavit, documentary, or object evidence shall be admitted at the trial. (c) If the accuseddesires 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 tothe court within ten days from receipt of such affidavits and serve a copy of each on thepublic and private prosecutor, including his documentary and object evidence previouslymarked as Exhibits 1, 2, 3, and so on. These affidavits shall serve as direct testimonies ofthe accused and his witnesses when they appear before the court to testify.33 Guidelines for Litigation in Quezon City Trial Courts


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Section 10: Effect of Non-Compliance with the JudicialAffidavit Rule34

This Section provides the teeth of the Judicial Affidavit Rulewhich would compel parties to observe the rules herein set forthon 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 isequivalent to waiver of the testimony of a witness is a seriousdisincentive for lawyers who might have a predilection for dilatorytactics. Lawyers are being compelled to be more efficient andobservant of deadlines. If previously, prayer for extension of timefor filing of documents and affidavits may be granted several

times, the court now is restricted to granting such prayer onlyonce and is allowed to impose a fine to delinquent parties.Furthermore counsel risk the possibility of waiving the right tocross-examine a witness if he fails to appear on the courtappointed date. The court likewise is now stricter when it comesto compliance with forms. Judicial affidavits must comply with theprovisions of Sections 3 and 4 or else the judicial affidavit will notbe admitted which is another instance where a testimony wouldbe refused admission and consideration. Here, the court is once

again compelled to be stricter in considering the prayers tocorrect noncompliance with the formal and substantialrequirements of the judicial affidavit due to the provision for a

34Sec. 10. Effect of Non-Compliance with the Judicial Affidavit Rule - (a)A party who fails tosubmit the required judicial affidavits and exhibits on time shall be deemed to have waivedtheir submission. The court may, however, allow only once the late submission of the sameprovided, the delay is for a valid reason, would not unduly prejudice the opposing party, andthe defaulting party pays a fine of not less than Pl,OOO.OO nor more than P5,OOO.OO, atthe discretion of the court. (b) The court shall not consider the affidavit of any witness whofails to appear at the scheduled hearing of the case as required. Counsel who fails to appearwithout valid cause despite notice shall be deemed to have waived his client's right toconfront by cross-examination the witnesses there present. (c) The court shall not admit asevidence judicial affidavits that do not conform to the content requirements of Section 3and the attestation requirement of Section 4 above. The court may, however, allow onlyonce the subsequent submission of the con1pliant replacement affidavits before the hearingor trial provided the delay is for a valid reason and would not unduly prejudice the opposingparty and provided further, that public or private counsel responsible for their preparationand submission pays a fine of not less than Pl,OOO.OO nor more than P5,OOO.OO, at thediscretion of the court.


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one time only chance of submitting a compliant replacementaffidavit.

Section 11: Repeal orModification of Inconsistent Rules35

Manifest in this provision is the intent of the Supreme Courtto ensure that this particular judicial reform be given wide rangeapplication. With the importance of making sure that all therequisite for valid offer of evidence it is appropriate to askwhether offer of evidence will now be required in instances whereformal 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 usedin rendering summary judgments, (4) document or affidavits used

in deciding quasi-judicial or administrative cases, (5) lost objectspreviously marked, identified, described in the record, andtestified to by witnesses who had been subjects of cross-examination in respect to said objects.

Another area that must be looked into is how the new ruleswill affect the existing provision of the Rules of Court regardingmodes 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 judicialaffidavit. Will the former be completely set aside to be completelyreplaced by the latter or the two will simultaneously be utilizedand to what extent?

Rule 132 of the Rules of Court must be reviewed todetermine what provision/s has been rendered nugatory with theintroduction of the Judicial Affidavit Rule. The requirement ofSection 1 regarding testimony of all witnesses be generally givenorally36 will obviously no longer apply in most instances of direct

35 Sec. 11: Repeal orModification of Inconsistent Rules - The provisions of the Rules ofCourt and the rules of procedure governing investigating officers and bodies authorized bythe Supreme Court to receive evidence are repealed or modified insofar as these areinconsistent with the provisions of this Rule. The rules of procedure governing quasi-judicialbodies inconsistent herewith are hereby disapproved.36 Section 1, Rule 132, Rules of Court The examination of witnesses presented in a trial orhearing shall be done in open court, and under oath or affirmation. Unless the witness isincapacitated to speak, or the question calls for a different mode of answer, the answers of


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testimony. Lastly the availability of a written offer of evidencemay have been withdrawn already thus the necessity provision ofthe provision of Section 3637 related to objection to such offermust 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 towithin 3 days after notice of the offer unless a different period is allowed by the court.

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