Archive for July, 2011


CASE 2011-0162: PHILIPPINE ARMY VS. SPOUSES MAJOR CONSTANCIO PAMITTAN (RET.) AND LEONOR PAMITTAN, SPOUSES ALBERTO TALINIO AND MARIA CHONA P. TALINIO, SPOUSES T/SGT. MELCHOR BACULI AND LAARNI BACULI, SPOUSES S/SGT. JUAN PALASIGUE AND MARILOU PALASIGUE, SPOUSES GRANT PAJARILLO AND FRANCES PAJARILLO, SPOUSES M/SGT. EDGAR ANOG AND ZORAIDA ANOG, AND SPOUSES 2LT. MELITO PAPA AND PINKY PAPA, FOR THEMSELVES AND FOR OTHER OCCUPANTS OF SITIO SAN CARLOS, UPI, GAMU, ISABELA, BY WAY OF CLASS SUIT (G.R. NO. 187326, 15 JUNE 2011, CARPIO, J.) SUBJECTS: MOTION TO DISMISS; INSUFFICIENT CAUSE OF ACTION; STATE AS OWNER CAN USE ITS PROPERTY (BRIEF TITLE: PHILIPPINE ARMY VS. PAMITAN)

Filed under: LATEST SUPREME COURT CASES — Leave a comment
July 25, 2011

CASE 2011-0162: PHILIPPINE ARMY VS. SPOUSES MAJOR CONSTANCIO PAMITTAN (RET.) AND  LEONOR PAMITTAN, SPOUSES ALBERTO TALINIO AND MARIA CHONA P. TALINIO, SPOUSES T/SGT. MELCHOR BACULI AND LAARNI BACULI, SPOUSES S/SGT. JUAN PALASIGUE AND MARILOU PALASIGUE, SPOUSES GRANT PAJARILLO AND FRANCES PAJARILLO, SPOUSES M/SGT. EDGAR ANOG AND ZORAIDA ANOG, AND SPOUSES 2LT. MELITO PAPA AND PINKY PAPA, FOR THEMSELVES AND FOR OTHER OCCUPANTS OF SITIO SAN CARLOS, UPI, GAMU, ISABELA, BY WAY OF CLASS SUIT (G.R. NO. 187326, 15 JUNE 2011,  CARPIO, J.) SUBJECTS: MOTION TO DISMISS; INSUFFICIENT CAUSE OF ACTION; STATE AS OWNER CAN USE ITS PROPERTY (BRIEF TITLE: PHILIPPINE ARMY VS. PAMITAN)

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SUBJECT/DOCTRINE/DIGEST:

 

RESPONDENTS WERE OCCUPYING AN ARMY RESERVATION LAND. PETITIONERS DEMOLISHED THEIR HOUSES. RESPONDENTS SUED THE PHILIPPINE ARMY AND THOSE WHO TOOK PART IN THE DEMOLITION. RTC DISMISSED THE CASE. CA REVERSED AND ORDERED TRIAL.

 

WAS THE DISMISSAL BY RTC IN ORDER?

 

YES. THE STATE, AS OWNER HAS THE RIGHT TO USE THE SUBJECT PROPERTY. THERE IS NO CAUSE OF ACTION FOR LAWFUL ACTS DONE BY THE OWNER ON HIS PROPERTY ALTHOUGH SUCH ACTS MAY CAUSE INCIDENTAL DAMAGE OR LOSS TO ANOTHER.

Thus, the RTC dismissed the complaint for lack of cause of action considering that the State as the owner has the right to use the subject property. Citing Custodio v. Court of Appeals,18 the RTC held that there is no cause of action for lawful acts done by the owner on his property although such acts may cause incidental damage or loss to another.

Besides, the RTC also held that petitioners cannot be held personally accountable for the demolition of the dwellings since such act was done in connection with their official duties in carrying out the AFP program “Oplan Linis.” The RTC noted that the demolition was done only after previous demands to vacate were ignored by respondents. There was no showing that such acts constitute ultra vires acts nor was there a showing of bad faith on the

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WHAT IS GENERALLY THE BASIS OF A MOTION TO DISMISS?

FAILURE TO STATE A CAUSE OF ACTION.

 

WHAT ARE ELEMENTS OF FAILURE TO STATE CAUSE OF ACTION?

 

  1. 1.   IT ADMITS THE TRUTH OF THE ALLEGATIONS IN THE COMPLAINT;

 

  1. 2.   THE INSUFFICIENCY OF THE CAUSE OF ACTION MUST APPEAR ON THE FACE OF THE COMPLAINT.

 

IS THE COURT BOUND TO CONSIDER ONLY THOSE FACTS ADMIITED IN THE COMPLAINT.

 

NO. COURT CANNOT CONSIDER IMPOSSIBLE FACTS, FACTS INADMISSIBLE IN EVIDENCE, UNFOUNDED FACTS. IT CAN CONSIDER THE ANNEXES OF THE PLEADINGS OF THE PARTIES.

 

Generally, a motion to dismiss based on failure to state a cause of action hypothetically admits the truth of the allegations in the complaint and in order to sustain a dismissal based on lack of cause of action, the insufficiency of the cause of action must appear on the face of the complaint.10 However, this rule is not without exception. Thus, a motion to dismiss “does not admit allegations of which the court will take judicial notice are not true, nor does the rule apply to legally impossible facts, nor to facts inadmissible in evidence, nor to facts which appear by record or document included in the pleadings to be unfounded.”11 Indeed, in some cases, the court may also consider, in addition to the complaint, other pleadings submitted by the parties and the annexes or documents appended to it.12

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WERE THE OFFICERS INVOLVED IN THE DEMOLITON LIABLE?

NO. THEY WERE JUST PERFORMING THEIR DUTY. THE DEMOLITION WAS DONE ONLY AFTER DEMANDTO VACATE WAS IGNORED. THERE WAS NO SHOWING OF BAD FAITH.

Besides, the RTC also held that petitioners cannot be held personally accountable for the demolition of the dwellings since such act was done in connection with their official duties in carrying out the AFP program “Oplan Linis.” The RTC noted that the demolition was done only after previous demands to vacate were ignored by respondents. There was no showing that such acts constitute ultra vires acts nor was there a showing of bad faith on the part of petitioners.

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SECOND DIVISION

 

PHILIPPINE ARMY,                                                                                           G.R. No. 187326

5th Infantry Division, through

GEN. ALEXANDER YAPSING,                                                        Present:

LT. COL. NICANOR PENULIAR,

and LT. COL. FERNANDO PASION,                                             CARPIO, J., Chairperson,

Petitioners,                                                                                                                           LEONARDO-DE CASTRO,*

PERALTA,

ABAD, and

– versus –                                                                                                                               MENDOZA, JJ.

 

SPOUSES MAJOR CONSTANCIO

PAMITTAN (Ret.) and

LEONOR PAMITTAN,

SPOUSES ALBERTO TALINIO

and MARIA CHONA P. TALINIO,

SPOUSES T/SGT. MELCHOR BACULI

and LAARNI BACULI,

SPOUSES S/SGT. JUAN PALASIGUE

and MARILOU PALASIGUE,

SPOUSES GRANT PAJARILLO

and FRANCES PAJARILLO,

SPOUSES M/SGT. EDGAR ANOG

and ZORAIDA ANOG, and

SPOUSES 2LT. MELITO PAPA

and PINKY PAPA, for Themselves

and for Other Occupants of Sitio San Carlos,                               Promulgated:

Upi, Gamu, Isabela, by Way of Class Suit,

Respondents.                                                                                                        June 15, 2011

x – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – x

 

D E C I S I O N

 

CARPIO, J.:

The Case

 

This petition for review1 assails the 15 January 2009 Decision2 and the 10 March 2009 Resolution3 of the Court of Appeals in CA-G.R. CV No. 89862. The Court of Appeals set aside the Orders dated 11 April 2007 and 19 June 2007 of the Regional Trial Court (RTC), Branch 18, Ilagan, Isabela in Civil Case No. 1377, and remanded the case to the RTC for further proceedings.

 

The Facts

On 7 July 2006, respondents filed a complaint for Damages, Injunction with Prayer for a Writ of Preliminary Mandatory Injunction, and Temporary Restraining Order against petitioners. Petitioners Gen. Yapsing, Lt. Col. Penuliar and Lt. Col. Pasion were the Commanding General of the 5th Infantry Division, Philippine Army, Task Force Bantay Commander, and Camp Commander of Camp Melchor F. dela Cruz, 5th Infantry Division, PA, Headquarters in Upi, Gamu, Isabela, respectively.

 

Respondents averred that they have been occupying and residing on the land which is part of the Breeding Station of the Department of Agriculture (DA), located in Sitio San Carlos, Barangay Upi in Gamu, Isabela for the past twenty (20) to thirty (30) years. Their occupation of the land was allegedly pursuant to a prior arrangement between the DA and the then higher authorities in Camp Melchor F. dela Cruz, on the condition that the DA retains ownership over the land. Respondents averred that on 3 July 2006, upon orders of petitioners, active elements of the 5th Infantry Division, PA, tore down, demolished, and dismantled their houses. Respondents, through their counsel, demanded in writing that petitioners and their subordinates cease and desist from further demolishing their dwellings; otherwise, they would sue for damages. On 4 July 2006, the demolition crew continued tearing down other houses despite the respondents’ demand letter claiming that the demolition was illegal because of lack of a court order.

 

On 12 July 2006, the RTC issued a temporary restraining order, enjoining and restraining for seventy two (72) hours petitioners and their agents or representatives from further continuing with the demolition.

 

The Office of the Solicitor General (OSG) moved to dismiss the complaint, arguing that: (1) the complaint states no cause of action; (2) the RTC has no jurisdiction to hear the case; and (3) plaintiffs (respondents herein) are not entitled to a writ of preliminary injunction and/or temporary restraining order.4

 

On 7 November 2006, the OSG filed its Memorandum5 alleging that:

 

1.      On 8 June 1990, the Armed Forces of the Philippines (AFP) laid down its policy against squatting and unauthorized construction of residential houses and facilities inside military reservations. Major Service Commanders and Area Commanders of all military reservations were directed to implement the said policy within their respective commands.

 

2.      Sometime in 1994, the Commanding Officer, 5th Infantry Division, Camp Melchor dela Cruz, Upi, Gamu Isabela entered into a Construction Agreement with herein plaintiffs most of whom were in active service of the military. (Annexes “1” to “4”)

 

3.      By virtue of the said agreement, plaintiffs were granted construction permits subject to certain conditions stated therein, one of which is:

 

The applicant shall be mandated to vacate the residential unit upon retirement from the military service;

 

The area subject of this permit shall be returned to the control of theCampCommanderin case the same is needed for military use in line with the base development plan thirty (30) days from notice of theCampCommander.

 

4.      On August 12, 2004, Commanding Officer Lt. Col. Felix F. Calinag, in compliance with the directive of the AFP General Headquarters on squatting, otherwise known to as “Oplan Linis,” ordered all military personnel and civilians unlawfully residing inside Camp dela Cruz to vacate their residences within the soonest possible time;

 

5.      As a result of the aforementioned directive, a large number of military personnel and civilians who had built their houses within the camp, voluntarily demolished the same and left the camp;

 

6.      On April 7, 2006, demands were again made on those parties, including herein plaintiffs, who refused to vacate their premises. These demands were reiterated in June 26, 2006 on all the plaintiffs (Annexes “5” to “11”)

 

7.      On July 3, 2006, or after more than three (3) months from receipt of plaintiff’s notice to vacate, the command effected the demolition of the structures in the subject property. Manifestly, defendants effected the demolition in accord with the terms and conditions agreed upon by plaintiffs and the government under the subject construction permits. Such demolition was effected only after reasonable time was given to all plaintiffs to remove their existing structures.6

 

 

On 11 April 2007, the RTC issued an order7 granting the motion to dismiss. Respondents moved for reconsideration, which the RTC denied in its order8 dated 19 June 2007.

 

Respondents appealed to the Court of Appeals.

 

The Ruling of the Court of Appeals

 

On 15 January 2009, the Court of Appeals promulgated its decision, reversing and setting aside the assailed orders of the RTC. The dispositive portion of the Court of Appeals’ decision reads:

 

WHEREFORE, premises considered, the appealed Orders dated April 11, 2007 and June 19, 2007 of the RTC, Branch 18, Ilagan, Isabela in Civil Case No. 1377 [are] REVERSED and SET ASIDE. This case is REMANDED to the RTC, Branch 18, Ilagan, Isabela for further proceedings. In order to maintain the status quo in this case, let a writ of preliminary injunction be issued enjoining defendants-appellants Ge. Yapsing, Lt. Col. Penuliar and Lt. Col. Pasion and/or their agents and/or representatives from committing further acts of demolition and/or dispossession. A bond is hereby fixed in the amount of P880,000.00 to be executed by plaintiffs-appellants to defendants-appellees to the effect that the former will pay the latter all damages which the latter may sustain by reason of this writ should the court finally decide that the former are not entitled thereto.

 

SO ORDERED.9

 

The Court of Appeals ruled that to determine whether petitioners acted within the scope of their military authority in ordering the demolition of respondents’ houses on the subject property and whether the RTC has jurisdiction over the subject matter of the case requires the resolution of the issue of ownership of the subject property. Furthermore, the Court of Appeals held that the determination of whether the subject property belongs to the DA or the Armed Forces of thePhilippinescould be best resolved in a full blown hearing on the merits before the lower court.

 

Petitioners filed a motion for reconsideration, which the Court of Appeals denied in its Resolution dated 10 March 2009.

 

Hence, this petition.

 

The Issue

 

The sole issue for resolution is whether the Court of Appeals erred in setting aside the orders of the RTC and remanding the case to the RTC for a full-blown trial.

The Ruling of the Court

 

We find the petition meritorious.

 

 

Generally, a motion to dismiss based on failure to state a cause of action hypothetically admits the truth of the allegations in the complaint and in order to sustain a dismissal based on lack of cause of action, the insufficiency of the cause of action must appear on the face of the complaint.10 However, this rule is not without exception. Thus, a motion to dismiss “does not admit allegations of which the court will take judicial notice are not true, nor does the rule apply to legally impossible facts, nor to facts inadmissible in evidence, nor to facts which appear by record or document included in the pleadings to be unfounded.”11 Indeed, in some cases, the court may also consider, in addition to the complaint, other pleadings submitted by the parties and the annexes or documents appended to it.12

 

In this case, the RTC considered other pleadings, aside from the complaint, filed by both parties, including the annexes in determining the sufficiency of the cause of action.13

It is undisputed that respondents neither own nor lease the land on which they constructed their houses. Nevertheless, respondents insist that the demolition of their houses upon orders of petitioners was illegal because their houses stood on property which forms part of the DA Breeding Station and not within the military reservation. However, as found by the RTC, respondents’ contention is belied by the survey report of the Department of Environment and Natural Resources (DENR). In its Order dated 11 April 2007, the RTC found that contrary to respondents’ allegations in their complaint, the land occupied by respondents is within the military reservation based on the survey conducted by the DENR. In the Memorandum14 dated 7 June 2005 of the Assistant Chief of the Surveys Division addressed to the Regional Technical Director for Lands of the DENR, it was stated that on 18 May 2005, the Survey Team proceeded to Upi, Gamu, Isabela to conduct a verification survey of the boundary of the military reservation and the DA Stock Farm to determine the exact location of the 82 household dwellers who were occupying the area subject of the verification survey. The Assistant Chief of the Surveys Division reported that the Survey Team found that the area occupied by the 82 household dwellers with an area of about 27,251 square meters is within the perimeter of the military reservation. The report stated:

 

 

 

 

 

 

Below is our findings:

1.      Facts gathered

a. Research of references in the DENR-LMS Records Unit are the following:

a.1 Certified Blue Print copy of PLS 965 approved February 18, 1916

a.2 Certified Blue print copy of SK-al-02-000361 approved May 23, 2000

a.3 certified Blue print copy of NR 122 approved December 15, 1958

 

b. The team started the survey and recovered four (4) old monuments identified as BBM No. 2 equals to corner 7of Lot 467 and corner 1 of Lot 468 both of PLS 965 and old B1 identified also as corners 11, 12, and 13 of Lot 1 NR 122 equivalent to corners 5, 6, and 7 of Lot 468 of PLS 965 respectively. BBM No. 2 is the most possible corners for us to start running a traverse going to the boundary between Isabela stock farm and the Military reservation. Corners 1 and 2 of Lot 467 PLS 965 to (Lot 1, NR 122) identical to corners 37 and 36 ofLot1, Ir 425 Proclamation No. 100 respectively.

 

After running our traverse we set the boundaries with the presence of DA representatives, Military representatives and also representatives from the household dwellers. As a result of our verification survey, there is a little discrepancy compared to existing boundaries but within allowable error. However, when we set boundaries between Military Reservation and DA Stock Farm, it was found that the area occupied by the 82 household dwellers with an area of 27,251 square meters more or less is within the perimeter of the Military Reservation. Attached herewith is a prepared blue print plan of the area surveyed together with the relative location occupied by dwellers which is attached for ready reference.15 (Emphasis supplied)

 

 

More importantly, respondents cannot deny that in 1994, they signed a “Construction Permit”16 giving them permission “to construct a residential house of semi-strong materials on a portion of the military reservation at Camp Melchor F. Dela Cruz, Upi, Gamu, Isabela” subject to certain conditions such as:

 

That the residential unit shall not be transferred to any other person without the consent of the Camp Commander/CO, HHSBn, 5ID, PA;

 

That the applicant shall be mandated to vacate the residential unit upon retirement from the military service;

 

That the area subject of this permit shall be returned to the control of the Camp Commander in case the same is needed for the military use in line with the base development plan thirty (30) days from notice of the Camp Commander.17 (Emphasis supplied)

Thus, the RTC dismissed the complaint for lack of cause of action considering that the State as the owner has the right to use the subject property. Citing Custodio v. Court of Appeals,18 the RTC held that there is no cause of action for lawful acts done by the owner on his property although such acts may cause incidental damage or loss to another.

Besides, the RTC also held that petitioners cannot be held personally accountable for the demolition of the dwellings since such act was done in connection with their official duties in carrying out the AFP program “Oplan Linis.” The RTC noted that the demolition was done only after previous demands to vacate were ignored by respondents. There was no showing that such acts constitute ultra vires acts nor was there a showing of bad faith on the part of petitioners.

 

Clearly, as found by the RTC, the evidence on record sufficiently defeats respondents’ claim that they are entitled to damages and thus, have no cause of action against petitioners.

 

WHEREFORE, we GRANT the petition. We SET ASIDE the 15 January 2009 Decision and the 10 March 2009 Resolution of the Court of Appeals in CA-G.R. CV No. 89862. We REINSTATE the Orders dated 11 April 2007 and 19 June 2007 of the Regional Trial Court, Branch 18, Ilagan, Isabela in Civil Case No. 1377.

 

SO ORDERED.

 

 

 

 

ANTONIO T. CARPIO

Associate Justice

 

WE CONCUR:

 

 

 

 

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

 

 

 

 

DIOSDADO M. PERALTA ROBERTO A. ABAD

Associate Justice Associate Justice

 

 

 

 

 

JOSE C. MENDOZA

Associate Justice

 

 

 

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

 

 

 

ANTONIO T. CARPIO

Associate Justice

Chairperson

 

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

 

 

 

RENATO C. CORONA

Chief Justice

 

 

 

 

 

 

* Designated additional member per Special Order No. 1006 dated 10 June 2011.

1Under Rule 45 of the 1997 Rules of Civil Procedure.

2Rollo, pp. 9-20. Penned by Associate Justice Remedios A. Salazar-Fernando, with Associate Justices Jose C. Reyes, Jr. and Normandie B. Pizarro, concurring.

3Id. at 22-23.

4Id. at 96-102.

5Id. at 125-132.

6Id. at 126-127.

7Id. at 155-159.

8Id. at 160-161.

9Id. at 19-20.

10East Asia Traders, Inc. v. Republic, G.R. No. 152947, 7 July 2004, 433 SCRA 716.

11Tan v. Director of Forestry, 210 Phil. 244, 255 (1983).

12Jimenez, Jr. v. Jordana, 486 Phil. 452 (2004); City of Cebu v. CA, 327 Phil. 799 (1996); Santiago v. Pioneer Savings & Loan Bank, 241 Phil. 113 (1988).

13Rollo, pp. 160-161; In its Order dated 19 June 2007, denying respondent’s motion for reconsideration, the RTC explained:

 

The rule on a motion to dismiss cited by the plaintiff while correct as a general rule is [not] without exceptions. In Marcopper Mining Corporation vs. Garcia, 143 SCRA 178, the Supreme Court ruled that the trial court can consider all the pleadings filed, including answers, motions and evidence then on record for purposes of resolving a motion to dismiss based on lack of cause of action.

 

In the case at bar, the Court had the opportunity to examine the merits of the complaint, the Motion to Dismiss, the Opposition to the Motion to Dismiss, the Memoranda of both parties and the annexes thereto. It is therefore logical for the Court to consider all the aforesaid pleadings in determining whether or not there was a sufficient cause of action in the plaintiffs’ complaint.

 

In another case, the Supreme Court ruled that where a motion to dismiss was heard with the submission of evidence, the Court cannot be limited by the rule that such motion admits the truth of the allegation in the complaint (Tan vs. Director of Forestry, 125 SCRA 302). It must be noted that in the case at bar, the motion to dismiss was set for hearing wherein answers/opposition were interposed and evidence introduced. In the course of the proceedings, the plaintiffs had the opportunity to present evidence in support of their allegations in their complaint. As a consequence, the plaintiffs are estopped from invoking the rule that to determine the sufficiency of a cause of action, only the facts alleged in the complaint must be considered.

14Id. at 144-145.

15Id.

16Id. at 78-81.

17Id.

18 323 Phil. 575 (1996).

 

Comment

WORLD ECON NOTE 0002: 0ECD – ECONOMIC PROSPECTS FOR 2011

Filed under: GLOBAL ECONOMICS — Leave a comment
July 24, 2011
Angel Gurría, Secretary-General of the OECD

 

What is the state of world economy as we enter 2011? Have we made progress over the past 12 to 18 months in putting an end to the worst economic crisis in our lifetimes and laying the foundations for a stronger, cleaner and fairer world?

The scorecard is mixed. We have made good headway in ending the crisis, thanks to co-ordinated international efforts over the past two years, and a recovery is on the way. This is welcome news, since growth is badly needed to help governments deal with massive fiscal pressures, create jobs and address other major challenges.  But we are not out of the woods yet. The recovery has been slower than we had hoped. Government finances have deteriorated sharply across the advanced economies in the OECD area, with public and private debt stretched to extremes in several countries. The aggregate budget deficit for the OECD was around 7.5% in 2010, while public debt as a share of GDP could be some 30% higher in 2011 than it was in 2007.

Unemployment remains intolerably high, averaging 8.5%, and has reached into double digits in some countries. People are worried about their jobs and their living standards. Ongoing difficulties in banking, the prospect of austerity and still weak housing markets are weighing down on the recovery.

In contrast to advanced economies, emerging markets are forging ahead. China’s output is projected to average just short of 10% in 2011-12, thanks to strong domestic demand. India’s growth should regain its trend of around 8.5% from mid-year, while Brazil, Indonesia and South Africa will also continue strong. In the OECD areas, some emerging economies, such as Mexico, Turkey and Poland, are also contributing with higher rates of growth.

But emerging markets also face policy challenges of their own. For instance, inflationary pressures are appearing in Brazil and China, while India has to tackle its fiscal deficit. There is also a growing need for these countries to focus more spending on social goals, and on advancing the structural reform agenda.

Poorer developing countries face a more difficult time, particularly in Africa where growth rates have slowed sharply, to around 2.5% in 2009, bringing GDP per head to a standstill. Though activity picked up in 2010, the situation does not augur well for meeting the Millennium Development Goals for 2015, with nearly a billion people still at risk of being trapped in poverty in five years time.

Slower growth than envisaged in the international trade arena has not helped, adding to global nervousness in currency markets and threats of protectionism.

Addressing these issues will remain a priority in 2011. Policy approaches required in most developed countries clearly differ from those needed in emerging markets. However, because the economic effects of these policies can be global, they must be co-ordinated through multilateral co-operation. This need has increased the prominence of the G20, which brings major developed and emerging markets around the table with the support of other countries and international organisations, including the OECD.

Meanwhile, we have stepped up our co-operation efforts to address other urgent matters too; at the UN Climate Change Conference in Cancún in December, for instance, all major players reaffirmed their commitment to tackling greenhouse gas emissions and we are addressing issues of mitigation, adaptation, financing and technology transfer.

So, while the overall economic scorecard for 2010 was disappointing, we nonetheless enter 2011 on a positive footing. Everyone realises that this recovery, fragile as it is, must be nurtured and strengthened if we are to build the bright future we all want. In short, we must get it right in 2011.


Promoting a sustainable recovery, fostering new sources of growth

The challenges that different countries face vary, depending on their level of development. However, the structural reform agenda–to enhance the productive capacity of our economies–is a unifying link in current policy discussions. At the G20 summits, I have emphasised this point, given the limited room for manoeuvre on the fiscal and monetary fronts. Structural reforms help by dealing with fiscal and international balancing issues, while fostering new sources of growth, and are part and parcel of the G20’s most innovative initiative: the Framework for Strong, Sustainable and Balanced Growth.

As a guiding light in this structural agenda, innovation is key to solving many economic problems. The OECD Innovation Strategy, launched in 2010, provides a set of policy recommendations to integrate this concept into the growth plans of OECD and partner countries. We see innovation in its broad sense, starting with R&D, but going well beyond it. Innovation calls for intelligent competition policies; investment in human resources, including in higher education and its links with businesses; better regulatory environments for firms; and the fostering of an entrepreneurial spirit.

Not surprisingly, innovation is a key pillar in our Green Growth Strategy, which we will be presenting to our 50th anniversary Ministerial Council Meeting in May 2011. The issue is not just about greening old activities or making them cleaner, but about harnessing knowledge and new technologies to create jobs and wealth in a sustainable manner. It requires overcoming barriers to green growth, including eliminating environmentally harmful subsidies, and reviewing the structure of taxation systems and trade barriers. It also requires implementing regulatory frameworks to foster a shift away from inefficient and polluting consumption and production patterns.

Our message that “green” and “growth” go well together was delivered clearly at the UN Climate Change Conference (COP 16) in Mexico in December 2010, where important breakthroughs on agreements were achieved. This helped re-inject confidence into both the international climate change negotiations and the multilateral process overall. In 2011, the OECD will continue to build on such progress towards the next Climate Change Conference (COP 17), in Durban, South Africa.

In the quest to rebuild the international economy and put it on a sounder basis, we should also address the growing gap between how conventional macro-economic statistics such as GDP are read, and how people perceive their own economic situations. A broader range of indicators must be used alongside standard economic measurements to better capture peoples’ well-being and quality of life. At the OECD we are working to develop such measurements, as well as to distil the policy implications of this broader approach.


Jobs, skills and knowledge: Catalysts for a new economy

High unemployment has been the tragic human face of this crisis, and only when we bring unemployment down will we be able to declare the crisis over. Keeping vulnerable people attached to the job market, including the long-term unemployed, is essential.

A key requirement is to boost skills. This applies particularly to young people, who are more than twice as likely to be unemployed than the average worker. Since the crisis started, 3.5 million young people have joined the ranks of the unemployed in the OECD area, while still more have left the workforce altogether. This is a waste of resources which no country can afford. We must do more to avoid a lost generation and to tap into the potential and creativity that the young generation has to offer.

The post-crisis world will likely evidence the need for new skills. Workers will need to continue upgrading their skills to increase their chances of employability. We already observe an important change in policy focus from “life-long employment” to “life-long employability”. To make this happen, lifelong learning will be one of the most important features in the successful economies and societies of the future. Improving jobs and skills, regardless of gender, age or background, must go hand in hand, and the OECD is developing a skills strategy to show how this can be achieved.


Empowering women

As we look for new sources of growth, we must not forget that in many countries, women’s participation in the labour market lags below potential.
The crisis has made it clear that failing to realise the full potential of women carries huge economic and social costs. Yet enabling women fully to participate in the labour market and contribute to economic development promotes prosperity and stability, reduces child poverty, helps address the pressures of population ageing, and increases productivity. The OECD will be assessing the best policy practices needed to promote gender equality and take fuller advantage of women’s potential.


Advancing global development

Development is a central priority for action in 2011. It has always been at the heart of the OECD’s mission, and indeed was a central motive for creating the organisation in the first place. In half a century of development assistance, there are many success stories to tell, with millions being lifted out of poverty, and the rise of emerging markets being prime examples. The developing world now accounts for over a fifth of total trade and is an integral part of the world economy. This is to be celebrated as it is what the OECD has worked towards since its creation.

In 2011 we must work harder to lift people out of poverty. The OECD is stepping up its co-operation with developing countries, by going beyond aid to assist with institutional and capacity building in areas such as taxation. We are promoting “whole-of-government” approaches that embrace innovation and green growth, which can help reduce food and water scarcity problems, and improve healthcare. The aim is to build resilience. Developing countries must be able to play a fuller role in building a better world, and, as our convention says, it is our duty to help them do so.

The role of emerging markets is critical in this regard, and this gives extra relevance to the G20. We must all work together to solve trade and currency tensions, conclude the Doha round of trade talks and restore balance to the global economy.

Addressing such problems is the bread and butter of our organisation. It can only be done through co-operation. Indeed, if “co-operation” is part of our title, it is largely because our founders were convinced it was vital for the “peaceful and harmonious relations among the peoples of the world”.


Restoring trust in public and private institutions

No fundamental reform will work without taking action in 2011 to strengthen the governance of our economies. For people who had been used to years of continuous growth, the crisis came as a shock, undermining not only the institutions themselves, but the public’s faith in them. The crisis uncovered serious failures in governance and regulation. Livelihoods collapsed, and people are demanding better management of their economies. Failure to restore trust could fuel an even more serious crisis in the future.

The OECD has been leading the charge, with our Anti-Bribery Convention which criminalises bribery of foreign officials for business contracts, with our 2010 guidelines to make lobbying more transparent and ethical, and via our corporate governance principles. Additionally, our Guidelines on Multinational Enterprises are currently being strengthened. Members and partner countries alike have endorsed these powerful instruments, but should do far more to use them in their efforts to restore confidence in 2011.

One area where action is needed is in our financial markets, to deepen reforms which improve bank resilience and reduce the exposure of our economic systems to excessive risk-taking. The international community has spent trillions of dollars rescuing the financial system, but the sector is still not back to full health.

One thing we have learned is that bank bailouts and guarantees are not enough. We must fix a system where losses made by greedy investors during boom times are passed on to ordinary taxpayers during bad times. This is not only an unfair way to share the risks, it is also a market distortion that increases the likelihood of another bank-led crisis in the future.


Shifting wealth, the G20 and the OECD

The crisis also emphasised an emerging trend that the OECD has characterised as “shifting wealth”. This trend means that countries like Chinaand Indiaare increasing their economic power and their say in the global economy. By the first quarter of 2010, developing countries held approximately two-thirds of global currency reserves, up from only a third a decade earlier. By 2030, we estimate that emerging economies will account for nearly 60% of world GDP. In the developing world, this shift in wealth has brought substantial improvements in growth and poverty reduction. The number of people in the world living on less than a dollar a day has fallen by more than a quarter– approximately half a billion–since 1990. About 90% of these people were in China.

But the challenges associated with this rapid change in global economics are significant: how can we ensure global financial stability? How can we deal with climate change? How can we manage natural resources in a sustainable way, while protecting everyone’s right to a decent way of life?

The emergence of the G20 as the premier forum for economic discussions and action is probably the greatest transformation in global governance since 1945. Indeed, the G20 facilitated a quick response to the immediate, short-term challenges posed by the financial crisis. But it is also gradually providing a forum for promoting a multilateral approach to structural issues, ranging from taxation and combating corruption, to the promotion of trade and investment.

How can an organisation like the OECD help foster global governance and promote multilateral co-operation in this rapidly changing world? Here, I must quote former Chilean President Michelle Bachelet, who once described the OECD not as “the club of rich countries”, as many people wrongly characterise us, but as a “club of best practices”.

Since its inception, G20 leaders have called on the OECD for our contributions on a wide range of issues. These include substantive analytical work and policy advice on fossil fuel subsidies, on employment and social policies, on investment and trade, on bribery and corruption, on taxation and on the Framework for Strong, Sustainable and Balanced Growth, particularly the structural aspects. Thanks to several decades of experience on development issues, we are also actively contributing in the creation of the G20’s new Development Action Plan.

Yet, while the scope of the OECD’s work is vast and unique, maximising our effectiveness and relevance means that we must also become more global. In 2010 Chile, Estonia, Israel and Slovenia became members of the OECD and accession talks with Russia are advancing. We are designing innovative arrangements to engage with non-member countries, particularly through our Enhanced Engagement programme with Brazil, China, India, Indonesia and South Africa. Some 100 non-member countries participate regularly as equals in the work of our committees, expert meetings and forums. We also work closely with business, trade unions, foundations and not-for-profit organisations.

Expectations are high, and we look forward to working with the French presidency of the G20 in 2011 to get the job done in these and many other areas.


Using our past to build a better future

Our organisation has played an important role in forging this better world, by setting standards and acting as a pathfinder for better practices. We will continue to work alongside members and partners to help them meet those standards, and to steer a course through current difficulties. As well as providing facts and insights, our advice will assist them in the tricky task of making reform happen.

The world economy has made giant strides in 50 years. But it is a more complex world and the challenges before us are as serious as any we have faced in the past. Yet, the goals our founders set for this organisation remain true today. Indeed, the OECD Convention, which was signed on 14 December 1960, could have been written precisely with today’s challenges in mind, and in particular with our main objective of promoting “better policies for better lives”.

©OECD Yearbook 2011

 

Comment

TIP 0010: SUPPOSE A STENOGRAPHER FAILS TO SUBMIT TSN DESPITE DEMANDS. WHAT IS HIS OR HER LIABILITY? THE CASE OF JUDGE ABSIN VS. MONTALLA (JUNE 2011) IS PERTINENT.

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TIP 0010: SUPPOSE YOUR STENOGRAPHER FAILS TO SUBMIT TSN DESPITE DEMANDS. WHAT IS HIS OR HER LIABILITY? THE CASE OF JUDGE ABSIN VS. MONTALLA (JUNE 2011) IS PERTINENT.

 

SOURCE: JUDGE EDILBERTO G. ABSIN VS. EDGARDO A. MONTALLA (A.M. NO. P-10-2829, 21 JUNE 2011, PER CURIAM) BRIEF TITLE: JUDGE ABSIN VS. MONTALLA.

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SUBJECT/DOCTRINE/ DIGEST

 

STENOGRAPHER MONTALLA FAILED TO SUBMIT TSNs DESPITE SEVERAL DEMANDS. WHAT IS HIS LIABILITY?

FAILURE TO SUBMIT TSN IS GROSS NEGLECT OF DUTY. IT IS A GRAVE OFFENSE. PENALTY IS DISMISSAL.

Montalla should be reminded that it is the duty of the court stenographer who has attended a session of a court to immediately deliver to the clerk of court all the notes he has taken, the same to be attached to the record of the case.1 Precisely, Administrative Circular No. 24-902 was issued in order to minimize delay in the adjudication of cases as a great number of cases could not be decided or resolved promptly because of lack of TSNs. The circular required all stenographers to transcribe all stenographic notes and to attach the TSNs to the record of the case not later than 20 days from the time the notes are taken. The attaching may be done by putting all TSNs in a separate folder or envelope, which will then be joined to the record of the case.3 The circular also provided that the stenographer concerned shall accomplish a verified monthly certification as to compliance with this duty and in the absence of such certification or for failure and/or refusal to submit it, his salary shall be withheld.4

The Court has ruled, in a number of cases,5 that the failure to submit the TSNs within the period prescribed under Administrative Circular No. 24-90 constitutes gross neglect of duty. Gross neglect of duty is classified as a grave offense and punishable by dismissal even if for the first offense pursuant to Section 52(A)(2) of Rule IV of the Uniform Rules on Administrative Cases in the Civil Service.

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EN BANC

 

 

JUDGE EDILBERTO G. ABSIN, A.M. No. P-10-2829
Complainant,  

Present:

 

CORONA, C.J.,

CARPIO,

VELASCO, JR.,

LEONARDO-DE CASTRO,

BRION,

– versus – PERALTA,

BERSAMIN,

DELCASTILLO,

ABAD,

VILLARAMA, JR.,

PEREZ,

MENDOZA, and

SERENO, JJ.

EDGARDO A. MONTALLA,

Stenographer, Regional

Trial Court, Branch 29,

San Miguel, Zamboanga Promulgated:

Del Sur,

Respondent. June 21, 2011

x- – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – x

D E C I S I O N

 

 

PER CURIAM:

 

This administrative matter stemmed from a letter-complaint filed by Judge Edilberto G. Absin (Judge Absin), Presiding Judge of the Regional Trial Court, Branch 29, San Miguel, Zamboanga del Sur (RTC-Branch 29), charging respondent Edgardo A. Montalla (Montalla), stenographer of the same court, with neglect of duty in failing to submit the required transcripts of stenographic notes (TSNs) despite repeated reminders from the court.

 

In his letter-complaint dated 23 November 2009, Judge Absin alleged that in the Resolution dated 23 October 2009 issued by the Court of Appeals (CA) in CA-G.R. No. 01280-MIN (Heirs of Victoriano Magallanes, et al. v. Ernesto Pono and Crispina Pono), the CA noted that Montalla failed to submit signed copies of the TSNs taken on the following dates: (1) 13 October 2004 on the witness Maria Sabuero; (2) 11 January 2005 on the witness Rodolfo Omboy; (3) 26 April 2005 on the witness Rosalinda Magallanes; (4) 12 October 2005 on the witness Ernesto Pono; (5) 7 December 2005 on the witness Crispina Pono; and (6) 25 January 2006 and 2 March 2006 on the witness Rogelio Magallanes. Montalla allegedly asked for time to submit the required TSNs but failed to submit the same. Montalla was repeatedly reminded to comply with the CA’s resolution but he still did not comply.

 

In his Comment dated and mailed on 10 March 2010, Montalla admitted he was the stenographer who took down the stenographic notes on the dates mentioned and both the presiding judge and the clerk of court repeatedly reminded him to transcribe the stenographic notes of the proceedings. Montalla, however, claimed he was prevented from performing his tasks due to poor health as he was diagnosed with pulmonary tuberculosis, peptic ulcer, and diabetes. Montalla now seeks the compassion of the Court as he is allegedly still recovering from his illnesses.

 

In the Resolution dated 2 August 2010, the parties were required to manifest if they were willing to submit the matter for resolution on the basis of the pleadings filed. We noted the letter dated 24 September 2010 of Judge Absin informing the Court that he was submitting the case for resolution on the basis of the pleadings filed without further comment. We dispensed with the manifestation of Montalla who failed to file the same within the period despite receipt of the resolution.

 

The Office of the Court Administrator (OCA) opined that Montalla should have been fully aware that public officers are repositories of public trust and are under obligation to perform the duties of their office honestly, faithfully, and to the best of their ability. For failure to submit the required TSNs, Montalla is guilty of gross neglect of duty classified as a grave offense and punishable by dismissal. However, for humanitarian reasons, the OCA recommended the imposition of the penalty of suspension of six months without pay with a stern warning that a repetition of the same or similar infraction in the future shall be dealt with more severely.

 

 

On 9 February 2011, we issued a Resolution ordering Montalla to manifest whether he has submitted the required TSNs. In effect, this Resolution gave Montalla one more chance to redeem himself. However, Montalla mailed on 4 March 2011 his Comment, which was received by OCA on 2 May 2011, containing the same statements he made in his Comment dated/mailed on 10 March 2010. He admits that the Clerk of Court and Judge Absin had reminded him, repeatedly, to transcribe the stenographic notes. Montalla admits his transgressions but this time his excuse is that his failure to submit the required TSNs was due to poor health (allegedly because of “previous pulmonary tuberculosis, peptic ulcer and diabetes”) that prevented him from performing simple tasks. But one thing is clear. Montalla still has not submitted the required TSNs which were taken sometime in 2004, 2005, and 2006. Verily, Montalla has been remiss in his duty as a court stenographer.

 

Montalla should be reminded that it is the duty of the court stenographer who has attended a session of a court to immediately deliver to the clerk of court all the notes he has taken, the same to be attached to the record of the case.1 Precisely, Administrative Circular No. 24-902 was issued in order to minimize delay in the adjudication of cases as a great number of cases could not be decided or resolved promptly because of lack of TSNs. The circular required all stenographers to transcribe all stenographic notes and to attach the TSNs to the record of the case not later than 20 days from the time the notes are taken. The attaching may be done by putting all TSNs in a separate folder or envelope, which will then be joined to the record of the case.3 The circular also provided that the stenographer concerned shall accomplish a verified monthly certification as to compliance with this duty and in the absence of such certification or for failure and/or refusal to submit it, his salary shall be withheld.4

 

The Court has ruled, in a number of cases,5 that the failure to submit the TSNs within the period prescribed under Administrative Circular No. 24-90 constitutes gross neglect of duty. Gross neglect of duty is classified as a grave offense and punishable by dismissal even if for the first offense pursuant to Section 52(A)(2) of Rule IV of the Uniform Rules on Administrative Cases in the Civil Service.

 

This is not the first time that Montalla was charged with neglect of duty for delay in the submission of the TSNs. He was previously warned of a repetition of the same or similar infraction. In Office of the Court Administrator v. Montalla,6 Montalla incurred a delay of more than three years in transcribing the TSNs despite constant reminders from his superiors to submit the same. In that case, Montalla admitted lapses in the performance of his function which caused a delay in the speedy disposition of cases. He invoked serious marital problems which allegedly greatly affected his work. The Court considered Montalla’s “humble acknowledgment of his transgressions and his offer of sincere apology and promise to be more circumspect in the performance of his duties” and the fact that it was his first infraction. Montalla was found guilty of simple neglect of duty and was fined P2,000 with a stern warning that a repetition of the same or similar offense in the future shall be dealt with more severely.

 

In the present case, Montalla also failed to submit the required TSNs despite the warnings and the chances given to him to submit the same. The TSNs were taken in 2004, 2005, and 2006 and he was required to submit the same in 2009, 2010 and just recently, in February 2011. His utter disregard of the court directives and the reminders from his superiors and his lapses in the performance of his duty as a court stenographer caused delay in the speedy disposition of the case. This is no longer simple neglect of duty. Montalla, in repeatedly failing to submit the required TSNs for several years now, no longer deserves the compassion and understanding of the Court.

As a stenographer, Montalla should realize that the performance of his duty is essential to the prompt and proper administration of justice, and his inaction hampers the administration of justice and erodes public faith in the judiciary. The Court has expressed its dismay over the negligence and indifference of persons involved in the administration of justice. No less than the Constitution mandates that public officers must serve the people with utmost respect and responsibility. Public office is a public trust, and Montalla has without a doubt violated this trust by his failure to fulfill his duty as a court stenographer.7

 

WHEREFORE, we find respondent Edgardo A. Montalla, Stenographer, Regional Trial Court, Branch 29, San Miguel, Zamboanga del Sur, GUILTY of Gross Neglect of Duty. We DISMISS him from the service and FORFEIT his retirement benefits, except accrued leave credits. He is further disqualified from reemployment in the Judiciary. This judgment is immediately executory.

 

To avoid further delay in the disposition of CA-G.R. No. 01280-MIN (Heirs of Victoriano Magallanes, et al. v. Ernesto Pono and Crispina Pono), Montalla is ordered to submit, within a non-extendible period of thirty (30) days from receipt hereof, the transcripts of stenographic notes mentioned above, under pain of contempt.

 

SO ORDERED.

 

 

 

RENATO C. CORONA

Chief Justice

 

 

 

 

 

ANTONIO T. CARPIO

Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

 

 
   
TERESITA J. LEONARDO-DE CASTRO

Associate Justice

 

 

 

 

 ARTURO D. BRION

Associate Justice
DIOSDADO M. PERALTA

Associate Justice

 

 

 

 

LUCAS P. BERSAMIN

Associate Justice

 

 

MARIANO C. DEL CASTILLO

Associate Justice

 

 

 

 

ROBERTO A. ABAD

Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice

 JOSE PORTUGAL PEREZ

Associate Justice

 

 

 

 

JOSE C. MENDOZA

Associate Justice

 

  

 

 

 

MARIA LOURDES P. A. SERENO

Associate Justice
   

 

 

 

 

 

1 Section 17, Rule 136 of the Revised Rules of Court provides:

SEC. 17. Stenographer. – It shall be the duty of the stenographer who has attended a session of a court either in the morning or in the afternoon, to deliver to the clerk of court, immediately at the close of such morning or afternoon session, all the notes he has taken, to be attached to the record of the case; and it shall likewise be the duty of the clerk to demand that the stenographer comply with said duty. The clerk of court shall stamp the date on which such notes are received by him. When such notes are transcribed, the transcript shall be delivered to the clerk, duly initialed on each page thereof, to be attached to the record of the case.

Whenever requested by a party, any statement made by a judge of first instance, or by a commissioner, with reference to a case being tried by him, or to any of the parties thereto, or to any witness or attorney, during the hearing of such case, shall be made of record in the stenographic notes.

2 Revised Rules on Transcription of Stenographic Notes and Their Transmission to Appellate Courts, 12 July 1990.

3 Paragraph 2(a).

4 Paragraph 2(b).

5 Marquez v. Pacariem, A.M. No. P-06-2249, 8 October 2008, 568 SCRA 77, 89; Banzon v. Hechanova, A.M. No. P-04-1765 (Formerly OCA IPI No. 01-1174-P), 8 April 2008, 550 SCRA 554, 559-560; Judge Reyes v. Bautista, 489 Phil. 85, 93 (2005); Judge Santos v. Laranang, 383 Phil. 267, 276-277 (2000).

6 A.M. No. P-06-2269, 20 December 2006, 511 SCRA 328.

7 Banzon v. Hechanova, supra note 5 at 560.

 

Comment