Rules about affidavit of desistance (PP vs. Salazar G.R. No. 181900)

          As the Court ruled in People v. Montes:

As admitted by appellant, the alleged Affidavit of Desistance of the victim was never identified by her, but submitted in court only after the institution of the rape cases. Such being the case, the Affidavit -- even when construed as a pardon in the erstwhile private crime of rape -- is not a ground for the dismissal of the criminal cases, since the actions have already been instituted. To justify the dismissal of the Complaints, the pardon should have been made prior to the institution of the criminal actions. (Emphasis supplied.)

In People v. Ramirez, Jr., the Court was even more circumspect:

As a rule, a recantation or an affidavit of desistance is viewed with suspicion and reservation. Jurisprudence has invariably regarded such affidavit as exceedingly unreliable, because it can easily be secured from a poor and ignorant witness, usually through intimidation or for monetary consideration. Moreover, there is always the probability that it would later on be repudiated, and criminal prosecution would thus be interminable.

Indeed, the Affidavit of Desistance of private complainant is highly suspect. Apparently, she executed it on the basis of a consideration of P5,000, which was later increased to P100,000. After her testimony had been rendered, however, appellant refused to pay the amount agreed upon, thereby prompting her to recant the Affidavit.

She had stated therein that the accused is indeed innocent of the crimes charge[d] since in truth, he never molested me sexually as charged. Such statement was a mere legal conclusion, bereft of any details or other indicia of credibility, much less truth. More likely, it emanated not from this young girls mouth, but from a trained legal mind. Moreover, while she affirmed her Affidavit on the stand, she also declared, on clarificatory question from the judge, that she was 14 years old when she was molested and raped by appellant. These facts raise doubts as to the reliability of her statements in her Affidavit.

At this point, we reiterate that, by itself, an affidavit of desistance or pardon is not a ground for the dismissal of an action, once it has been instituted in court. In the present case, private complainant lost the right or absolute privilege to decide whether the rape charge should proceed, because the case had already reached and must therefore continue to be heard by the court a quo. 

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What Are the Implications of Backwages?

Excerpts from CAMPOL v. BALAO-AS. (G.R. No. 197634, November 28, 2016)

Old rule:

Ginson and Regis also involved the question of the proper fixing of backwages. Both cases awarded backwages but limited it to a period of five years. Ginson does not provide for an exhaustive explanation for this five­year cap. Regis, on the other hand, cites Cristobal v. Melchor, Balquidra v. CFI of Capiz, Branch II, Laganapan v. Asedillo, Antiporda v. Ticao, and San Luis v. Court of Appeals, in support of its ruling. We note that these cases also do not clearly explain why there must be a cap for the award of backwages, with the exception of Cristobal. In Cristobal, a 1977 case, we held that the award of backwages should be for a fixed period of five years, applying by analogy the then prevailing doctrine in labor law involving employees who suffered unfair labor practice. We highlight that this rule has been rendered obsolete by virtue of Republic Act No. 6175 which amended the Labor Code. Under the Labor Code, employees illegally dismissed are entitled to the payment of backwages from the time his or her compensation was withheld up to the time of his or her actual reinstatement.

New rule:

We note that even in labor law, this is now the prevailing rule. In Bustamante v. National Labor Relations Commission, we reversed the prior doctrine that an employee illegally dismissed is entitled to backwages less the salary he or she received from his or her employment during the pendency of the case. In cases prior to Bustamante, we limited the right of an illegally dismissed employee to backwages less earnings from employment elsewhere on the premise that this doctrine will avoid unjust enrichment on the part of the employee at the expense of the employer. We reversed this, however, in Bustamante and grounded our ruling first, on an employee's right to earn a living and second, on the duty of an employer to pay backwages as a penalty for the illegal dismissal. In the later case Equitable Banking Corporation v. Sadac, we added that in arriving at the doctrine in Bustamante, this Court ceased to consider equity as the determining factor in ascertaining the amount of backwages that should be awarded in cases where the illegally dismissed employee obtains employment during the pendency of his or her case. What is determinative is the employer's obligation to pay full backwages. We said, "[i]t is an obligation of the employer because it is 'the price or penalty the employer has to pay for illegally dismissing his employee.


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Cases subject to Court Annexed Mediation (CAM) or Judicial Dispute Resolution (JDR)

Cases subject to Court Annexed Mediation (CAM) or Judicial Dispute Resolution (JDR) (A.M. No.0I-I0-5-SCPHILJA, dated October 16, 200I. AM. No. 04-2-04-SC, dated July 20, 2004 and effective August 16, 2004).

(a) all civil cases, settlement of estates, and cases covered by the Rule on Summary Procedure, except those which by law may not be compromised;

Not covered: Criminal cases like violation of traffic rules and regulations and violation of municipal ordinances although included in the list of cases under summary procedure should not be mediated because they cannot be compromised and might be a source of corruption if mediation pushes through.

(b) cases cognizable by the Lupong Tagapamayapa under the Katarungang Pambarangay Law;

(c) the civil aspect of BP 22 cases;

(d) the civil aspect of quasi-offenses;

      Examples of quasi offenses:

(i) Cases covered are acts committed by reckless or simple imprudence or negligence resulting for example in slight, less serious or serious physical injuries;

(ii) imprudence resulting in damage to property, and

(iii) reckless or simple imprudence with violation of the motor vehicle law.

(e) The civil aspect of estafa and libel under the proposed circular amending AM No. 04-1-12-SC;

(f) The civil aspect of theft, under Art. 308 of the Revised Penal Code, as part of the cases for referral to mediation.

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Voluntary Appearance

Section 20, Rule 14 of the Rules of Court clearly states:

Sec. 20. Voluntary appearance. – The defendant’s voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person shall not be deemed a voluntary appearance.

In Philippine Commercial International Bank v. Spouses Wilson Dy Hong Pi and Lolita Dy, we held that filing of an answer in a special appearance cannot be construed as voluntary appearance or submission to the court’s jurisdiction:

Preliminarily, jurisdiction over the defendant in a civil case is acquired either by the coercive power of legal processes exerted over his person, or his voluntary appearance in court. As a general proposition, one who seeks an affirmative relief is deemed to have submitted to the jurisdiction of the court. It is by reason of this rule that we have had occasion to declare that the filing of motions to admit answer, for additional time to file answer, for reconsideration of a default judgment, and to lift order of default with motion for reconsideration, is considered voluntary submission to the court’s jurisdiction. This, however, is tempered by the concept of conditional appearance, such that a party who makes a special appearance to challenge, among others, the court’s jurisdiction over his person cannot be considered to have submitted to its authority.

Prescinding from the foregoing, it is thus clear that:

(1) Special appearance operates as an exception to the general rule on voluntary appearance;

(2) Accordingly, objections to the jurisdiction of the court over the person of the defendant must be explicitly made, i.e., set forth in an unequivocal manner; and

(3) Failure to do so constitutes voluntary submission to the jurisdiction of the court, especially in instances where a pleading or motion seeking affirmative relief is filed and submitted to the court for resolution.

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Congratulations to the new Foundation University Lawyers! (Dumaguete City)

Based on the bar exam results released May 3, eight graduates from Foundation University College of Law and Jurisprudence are now part of the country’s roster of lawyers.

Congratulations to our new lawyers:

• Atty. Maricel B. Asonio
• Atty. Chester D. Ceriales
• Atty. Alexylle Rose G. Concepcion
• Atty. Cherry Claire P. Culminas
• Atty. Ronel C. Depalubos
• Atty. Gesta Riva A. Gamo
• Atty. Candice Dale S. Gonzalez
• Atty. Al-zhain I. Sadjail

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Atty. Al-zhain I. Sadjail. A notary public and a lawyer ready to cater your every day legal needs. My office is located beside Red Cross Building. Surban Street, Dumaguete City, Negros Oriental, Philippines. For legal advice and inquiries, you can call the number indicated above or e-mail me at taylorzero@yahoo.com.