Chapter 1 Draft.docx

Evading Pitfalls: Granting the Philippine Mediation Center Powers of Contempt and Subpoena to Expedite Dispensation of Justice

A Thesis Proposal Submitted to the Faculty of the College of Law University of Cebu-Banilad Ccbu City, Philippines

In Partial Fulfillment of the Requirements for the Degree of Juris Doctor

By:

MASSABIELLE SHERLAINE L. NEBRIDA

October 2018

TABLE OF CONTENTS

CHAPTER 1 INTRODUCTION Rationale……………………………….……………...……..1 Background of the Study………………...……..……...…….4 THE PROBLEM Objectives of the Study…………………..…………………..9 Thesis Statement……………………..……………………....10 Significance of the Study……………….….………………..10 Scope and Limitations………………...…………….………12 RESEARCH METHODOLOGY Research Design……………………….……………….….….14 Research Informants………………...…………………...……15 Research Instruments……………...…………………………..16 Research Procedure..……………...………....………………..16 FRAMEWORKS OF THE STUDY

Theoretical framework………………...……………………..22 Conceptual Framework……………………...………….….…28 DEFINITION OF TERMS…………………...………………..…..30

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CHAPTER 2 REVIEW OF RELATED LITERATURE…………….……...……….32

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CHAPTER 1

INTRODUCTION

Rationale of the Study It is cliche to say that the justice system in our country moves so exceedingly slow. The need for speedy administration of justice cannot be ignored. Excessive delay in the disposition of cases renders the rights of the people guaranteed by various legislations inutile 1 . The doctrine “justice delayed is justice denied” has proven to be true in the Philippine judicial system where court dockets are clogged and cases sometimes result to a different legal issue that need extra time to be heard and decided upon. Because of the indiscriminate filing of cases and the delayed processing of cases in the courts, court dockets have been continuously heavy and congested. Thousands of cases remain pending for resolution or court action and continues to pile up in courts at an alarming rate.

1

Leticia G. Matias vs. Judge Sergio A. Plan. 293 SCRA 532.

3

In order to address this problem, Alternative Dispute Resolution 2 such as the Court-Annexed Mediation and Judicial Dispute Resolution was enacted as neutral arenas within the purview of the Court, with the resolution having the enforceability of a judicial decree. It increases access to justice and allows a convenient means to settle disputes, aside from de-clogging the Court dockets.3 Court-Annexed Mediation (CAM), intended to promote alternative dispute resolution mechanisms to unclog court dockets and increase access to justice, is a voluntary process conducted under the auspices of the court by referring the parties to the Philippine Mediation Center (PMC) Unit for the settlement of dispute, assisted by the Mediator accredited by the Supreme Court.4 CAM Statistical Report as of June 2017 shows that success rate of mediation dropped from 84% in 2002 to 59% in 2017.5 No mediation transpired for the following reasons: Non-appearance of party/parties;

2 3

Republic Act No. 9285 Consolidated And Revised Guidelines To Implement The Expanded Coverage Of Court- Annexed Mediation (CAM) And Judicial Dispute Resolution (JDR) retrieved from https://bit.ly/2FMwAOA on April 2, 2018.

4

Philippines Judicial Academy retrieved from https://bit.ly/2wiBeVm on April 7, 2018. 5

The Judiciary Annual Report 2016-June 2018

4

refusal of party/parties; lack of authority of parties’ representatives to enter into compromise agreement; referred case not mediatable; and, non-payment of mediation fee.6 This study is very timely because over the years, mediation which is one of the ways resorted to by the Supreme Court to expedite dispensation of justice has shown a declining success rate7. On March 1, 2018 the President signed into law RA 10973, providing that the Philippine National Police (PNP) “shall have the power to administer oath, issue subpoena and subpoena duces tecum (documents) in relation to its investigation.”8 While reading the law, the researcher noted that the police are given these subpoena powers because it is found out to be a more effective way to hasten investigation of cases. Given that the PNP was granted the power to issue subpoena for a more effective and efficient police investigation, it is also rational that the 6 7 8

Ibid. 4 Ibid. 6 Sec. 1 (2) Republic Act No. 10973 “An Act Granting The Chief Of The Philippine National Police (PNP) And The Director And The Deputy Director For Administration Of The Criminal Investigation And Detection Group (CIDG) The Authority To Administer Oath And To Issue Subpoena And Subpoena Duces Tecum, Amending For The Purpose Republic Act No. 6975, As Amended, Otherwise Known As The “Department Of The Interior And Local Government Act Of 1990”.

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PMC be given coercive powers for a more effective and efficient alternative dispute resolution. Because despite the alternative dispute mechanisms, the problem of clogged dockets and backlogs continued, and the failure of the parties or party to attend mediation, which is the primary reason for unsuccessful mediation, would render useless the purpose of the law and the creation of PMC. Thus, it is imperative to grant mediators coercive powers to compel uncooperative parties to attend mandatory mediation by sanction in order to attain the the goal of the courts of declogging court dockets, to achieve justice, peace and equity. The mediators are given thousands of cases to settle and the researcher is eager to determine whether the granting of coercive powers to PMC would be a more effective way of resolving cases and to expedite dispensation of justice.

Background of the Study It cannot be denied that over the years the courts are overflowing with numerous cases that await to be decided which contribute to the clogging of court dockets. The Supreme Court has addressed the problem of delay

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through Court-Annexed Mediation which operates by allowing out-of-court settlement of madiatable cases:9 “xxx (1) All civil cases and the civil liability of criminal cases covered by the Rule on Summary Procedure, including th civil liability for violation of B.P. 22, except those which by law may not be compromised; 2) Special proceedings for the settlement of estates; (3) All civil and criminal cases filed with a certificate to file action issued by the Punong Barangay or the Pangkat ng Tagapagkasundo under the Revised Katarungang Pambarangay Law; (4) The civil aspect of Quasi-Offenses under Title 14 of the Revised Penal Code; (5) The civil aspect of less grave felonies punishable by correctional penalties not exceeding 6 years imprisonment, where the offended party is a private person; (6) The civil aspect of estafa, theft and libel; (7) All civil cases and probate proceedings, testate and intestate, brought on appeal from the exclusive and original jurisdiction granted to the first level courts under Section 33, par. (1) of the Judiciary Reorganization Act of 1980; 8) All cases of forcible entry and unlawful detainer brought on appeal from the exclusive and original jurisdiction granted to the

first

level

courts

under

Section

33,

par.

(2)

of

the Judiciary Reorganization Act of 1980; 9) All civil cases involving title to or possession of real property or an interest therein brought on appeal from the exclusive and original jurisdiction granted to the first level courts under Section 33, par.(3) of the Judiciary Reorganization Act of 1980; and 10) All habeas corpus cases decided by the first level courts in the absence of the Regional Trial Court judge, that are brought up on appeal from the special jurisdiction granted to the first level courts under Section 35 of the Judiciary Reorganization Act of 1980.” 9

AM No. 11-1-6-SC-Philippine Judicial Academy. 2011.

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The program was created not only to decongest court dockets and to speed up dispensation of justice but also to achieve peace and equity. In 2001, the Supreme Court designated PHILJA as its component unit for court-referred, court related mediation cases, and other forms of Alternative Dispute Resolution mechanisms, and established the PMC in accordance with the guidelines set forth, in keeping with the policy in Section 1 of RA 8557 “to ensure an efficient and credible Judiciary” in relation to Section 3 of the same law mandating PHILJA “to perform such other functions and duties as may be necessary in carrying out its mandate,” consistent with one of the objectives of the Action Program for Judicial Access Reform, particularly and decongestion of court dockets, and the enhancement of access to justice; and towards the effective implementation of Section 2(a), Rule 18 of the 1997 Rules of Civil Procedure10. It was only after ADR Law in 2004 that most forms of present ADR methods, including mediation, whether voluntary or court-annexed, were

10

Melencio-Herrera,Ameurfina (2005) CAM, Making It Work: The Philippine Experience retrieved from https://bit.ly/2HUxVcc accessed on April 7, 2018.

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recognized and statutorily defined. The also issued Administrative Order No. 33-200811 which provides for: “Section 3. Powers and functions.- The PMC shall exercise the following powers and functions in order to accomplish its mandate under AM-10-5-SC-PHILJA: A. Develop and promulgate rules and regulations that it may deem necessary subject to the approval of the Supreme Court, upon recommendation of the Executive Committee and PHILJA Board of Trustees; B. To implement in accordance with the Office of the Court Administrator, rules and policies of the Supreme Court on ADR mechanisms, namely, Court-Annexed Mediation (CAM), Appellate Court Mediation (ACM), Judicial Dispute Resolution (JDR), Mobile Court-Annexed Mediation (MCAM), and eventually Court-Annexed Arbitration (CAA) and other Alternative Dispute Mechanisms; C. Establish such PMC units as may be necessary; D. Provide a system for the recruitment, screening, training and accreditation of Mediators; E. Monitor, evaluate the performance of mediators, upgrade their mediation skills and oversee their further development. Such evaluation shall be the basis for the renewal of their accreditation as mediators; F. Provide a grievance mechanism and procedure for addressing complaints against mediators and PMC Office Unit staff; G. Promote and sustain the programs and activities of Court-Annexed Mediation(CAM), Appellate Court Mediation (ACM), Judicial Dispute Resolution (JDR), Mobile Court-Annexed Mediation (MCAM), and eventually Court-Annexed Arbitration (CAA) and other Alternative Dispute Mechanisms; H. Call on any government agency, office instrumentality, commission or council to render such assistance as may be necessary for the efficient performance of its functions; and I. Exercise such other functions necessary in furtherance of its mandate.”

11

Administrative Order No. 33-2008 “Defining The Organization, Powers And Functions Of The PMC Office And Mediation Center Units”.

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However, nowhere in the provisions of the ADR Law and in the Administrative Order did it indicate that mediators shall have coercive powers of contempt and subpoena to compel attendance of parties in a court referred mediation. Under the Article VIII of the 1987 Philippine Constitution, Section 5. The Supreme Court shall have the following powers: “xxx

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. xxx”12 So???? insert ratio. Connect the dots.

The determination of the current situation of the mediators with respect to cases referred to them for mediation is crucial to the determination of whether or not the PMC should be granted coercive 12

Philippine Constitution Art. VIII, Section 5

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powers of contempt and subpoena in order to aid the judiciary in the speedy disposition of cases and dispensation of justice which is the primary purpose for the creation of the PMC.

THE PROBLEM

Objective of the Study The main objective of this to explore the challenges experienced by mediators during mediation process in relation to cases referred to them for mediation. Further, this study will determine whether or not the grant of powers of contempt and subpoena to the PMC is consistent with the Judicial Powers of the Supreme Court. The results of this study will be

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used as basis in formulating an amendment to the current legislative enactments governing the powers and functions of mediators. Specifically, the study seeks to address the following issues: 1. To identify the current situation and problems experienced by mediators on the following matters; i.

The procedures in conducting court annexed mediation

ii.

The difficulties encountered

iii. The factors affecting the success of mediation 2. To determine the policy gaps in the current legislative enactments with respect to court annexed mediation. 3. To determine, based on the results, what amendments may be proposed to the existing legislative enactments governing the powers and functions of mediators and recommendation to the Supreme Court to promulgate rules and regulations in relation to the grant of coercive powers to the PMC.

Thesis Statement This study contends that the PMC should be granted coercive powers of contempt and subpoena to compel the attendance of a party or parties in a court referred mediation in order to aid the judiciary in

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disposing cases and to expedite dispensation of justice. This study further argues that considering that the success rate of mediation has declined and one of the primary reasons is the non-attendance of parties, in order to avoid pitfalls, PMC should be granted coercive powers to compel their attendance.

Significance of the Study The increasing number of cases filed in courts everyday and the perennial problem of clogged court dockets cause delay in the dispensation of justice, thus it necessitated the Supreme Court to address the problem of delay through Court-Annexed Mediation. The Supreme Court’s efforts to expedite dispensation of justice through CAM has proven effective. However, over the years, mediation has shown to have a decreasing success rate and one of the primary reasons is the failure of the party or parties, whether intentional or not, to attend mandatory mediation. With this, it becomes necessary to grant the PMC coercive powers such as the subpoena and contempt powers in order to have a more effective way of dispensation of justice. In view of the proactive stance of the Supreme Court to expedite dispensation of justice, granting the PMC these coercive powers would be

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a development in the judicial system, facilitate speedy disposition of cases and administration of justice more effectively. This study will aid future researchers who will dwell with similar topic but focusing on other research setting and locale or those who would dwell to study on a national scale of the situation of mediators. This study, together with all other studies to explore the current situation will also aid the courts for future jurisprudential determination of whether the PMC may be granted coercive powers that will aid the courts in attaining the primary purpose of the creation of PMC, to declog court dockets. This will also contribute to the speedy disposition of cases and dispensation of justice. Scope and Limitations This study will necessarily discuss the law, specifically the 1987 Constitution, that vests the Supreme Court the power to promulgate rules and procedure in all courts, which rules shall provide a simplified and inexpensive procedure for speedy disposition of cases. The primary focus of this study is to identify the basis of granting the PMC coercive powers such as contempt and subpoena to compel a party or parties to attend mandatory Court-Annexed Mediation in order to better expedite administration of justice. This study aims to determine whether

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or not there is constitutional viability of granting the PMC powers of contempt and subpoena, and is not intended to provide exhaustive statement of reasons why a party or parties fail to attend mediation. The limitless criteria for evaluation, as well as resources and time constraints, necessitated the proponent to determine the scope and limitations of his research. This thesis shall be limited to examining the current situation of the PMC Unit of Cebu City in relation to the cases referred for mediation. The scope of the study PMC Unit in Cebu City vis-a-vis the cases referred to them by by the first and second level courts in Cebu City. The subjects of the thesis are the duly accredited mediators in the PMC Unit in Cebu City, legal experts on ADR, and legal practitioners in Cebu City.

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RESEARCH METHODOLOGY

Research Design The method that was employed in the study was the descriptive-qualitative method of research. This is a case study and the researcher used the qualitative approach as a form of social inquiry that focuses on the way people interpret and make sense of their experience. The researcher focused on the participants’ experiences and perspective on the decreasing success rate of Court-Annexed Mediation.

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The rationale for using qualitative approach in this study was to explore and capture the opinion of the selected respondents as to how they see the need to grant the PMC coercive powers. Figure 1 below shows the research flow of the study.

INPUT • 1. To identify the current situation and problems experienced by mediators during the mediation process. • 2. The determine the policy gaps in the current legislative enactments with respect to court annexed mediation. • 3. To determine, based on the results, what amendments may be proposed to the existing legislative enactments governing the powers and functions of mediators.

PROCESS • The study will be utilizing DescriptiveQualitative method of study. it will be a case study on the current situation of the Philippine Mediation Center in relation to cases referred to them for mediation. the study will employ content analysis as its primary analytical tool and will also utilize key informant interview as a research instrument.

Figure 1. Research Flow of the Study

Research Informants

OUTPUT • Explored the current situation of mediators in reation to cases referred to them. • Proposed amendments to ADR Law of 2004 as to the powers and functions of mediators. • Recommended to the Supreme Court to promulgate rules and regulations concerning the powers and functions of the mediators. • utilize key informant interview as a research instrument.

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Respondents are duly accredited mediators at the PMC Unit, Legal Experts on ADR and legal practitioners of Cebu City, Cebu. Scheduled Key Informant interviews will be conducted in the most convenient places of the informants. The key-informants of this study will be composed of Cebu City Mediators, Legal Experts on ADR and legal practitioners in Cebu City. Research Instruments The study utilizes content and document analysis as its primary analytical tool by reviewing existing and available legal sources such as books, journals, and statutes concerning the constitutionality of granting the powers of contempt and subpoena to mediators in order to compel parties to attend mediation. It shall also conduct key informant interviews to develop the structure and arguments forwarded in this thesis.

Research Procedure The data will be acquired through first-hand interviews with mediators, legal experts on ADR, and legal practitioners in the PMC Unit, Law Schools in Cebu City and legal practitioners in Cebu City. The researcher handpicked only those duly accredited mediators of Cebu City and legal practitioners who are familiar with mediation and have

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attended a mediation. Similar questions are being propounded to both groups of informants. The key informant interview will be utilized as an analytical tool in exploring the current situation of mediators in relation to cases referred to them by the courts. The perception of the informants will be analyzed correlatively with existing laws and other available legal sources such as books, journals, comparable jurisprudence and statutes concerning current situation of mediators in relation to cases referred to them by the courts, such sources will also be utilized to determine whether the PMC should be granted coercive powers in aid of the judiciary. The data that will be obtained out from the key informant interviews and the analysis of relevant legal documents will also be used as basis in recommending and proposing changes and/ amendments to our current laws and statutes to grant the PMC coercive powers of contempt and subpoena in order to aid the judiciary to de-clog court dockets and to expedite dispensation of justice.

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THEORETICAL FRAMEWORK

The study employs the following set of principles in determining whether or not PMC mediators may be granted coercive powers, contempt and subpoena, in order to compel a party or parties to attend mediation and further, to aid in the dispensation of justice and declog court dockets. 1. Rawls’ Theory of Justice Rawls puts forward the following Two Principles as the principles of justice that would be chosen in the Original Position: [First Principle] Each person is to have an equal right to the most extensive total system of basic liberties compatible with a similar system of liberty for all.6 [Second Principle] Social and economic inequalities are to be arranged

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so that they are both (a) to the greatest benefit of the least advantaged and (b) attached to offices and positions open to all under conditions of fair equality of opportunity. The choice of the constraints which define the Original Position is guided initially by the idea of the role that justice is to play in a well-ordered society and by strategic considerations designed to insure that some agreement is reached. But these constraints are also trimmed and shaped to insure that the Original Position will yield results which conform with our considered judgments of what is just and unjust in particular cases. What is sought is not a proof of the Two Principles but a setting out of their relations, on the one hand, to our considered judgments of justice and, on the other, to certain general ideas of social cooperation. Each of the elements in such a total picture, and the way in which all of them fit together, elucidates and provides support for the others. Such a method of reasoning is not viciously circular since it is not assumed, nor is it by any means obvious from the outset, that our considered judgments of justice and our most general notions about social cooperation can be fitted together in a systematic and cohesive way.

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There are a lot of theories on social justice but John Rawls’ concept of social justice is the most influential. Rawls emphasized on what is called "co- operation on a footing of just”where there would be situations in which cooperation on certain common tasks is not merely mutually advantageous but essential for survival or for the amelioration of intolerable conditions. If deep disagreements were to exist which made the basis of this cooperation fragile, and if close and uninterrupted cooperation were required to avoid consequences that would be disastrous for all, then perhaps it would be rational not only to accept rigid regulation on the time, place and manner of expression to prevent interference with essential work, but also to grant to the government the power to ban the expression of views likely to give rise to dangerous controversy13. 2. Realism Theory of Machiavelli Look for another theory!!!!!asap. Not applicable 3. Locke’s Theory of Social Contract

13

Scanlon, Thomas M. (1973) Rawls’ Theory of Justice. University of Pennsylvania Law Review retrieved from http://www.jstor.org/stable/3311280 on May 06,2018

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The social contract is generally supposed to provide justice and security to citizens within its boundaries. The state of nature is a place envisioned by a philosopher, prior to the existence of the social contract. The social contract is preceded after a philosopher has given his view of the state of nature. The state of nature does not have any moral or physical structures in place. It has to be envisioned. In the state of nature, there are no laws in place and no civilization. Man is either described as one who lives in harmony with his fellow men or fights for his survival. Idealist philosophers such as Immanuel Kant and Jean Jacques Rousseau argue that, since man is rational, in his state of nature there would be co-operation in existence and therefore his social contract must embody laws that are rational. The survivors of such a place would be only the strong or swift ones, therefore his social contract should allow irrational decisions to be taken by the head of state for the greater good of the people. The social contract simply implies that the people give up some rights to a government and/or other authority in order to accept or jointly preserve social order. John Locke pioneered the need for the respect of human rights. Locke begins his theory by visualizing a state of nature that human beings live in before agreeing to the social contract. In Locke's state of

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nature, there is freedom, but not entirely because he claims that the law of nature governing this estate is from God. Rights and liberties are respected because he views human beings as rational. In the event where human beings react irrationally to negative human behavior, Locke suggests the need for a social contract, an agreement between the people of the state of nature to have an authority that would ensure justice and equality. One may react irrationally when meting out a punishment to an offender; another person may also intervene and punish the offender. To prevent a biased form of justice being carried out, Locke suggests an agreement among the people to form a government that would make laws that would ensure equal justice for all and protection of rights found in the state of nature. In the state of nature there is no political authority in existence, however, moral values do exist. "The Law of Nature, which is on Locke's view the basis of all morality, and given to us by God, commands that we not harm others with regards to their "life, health, liberty, or possessions" (par. 6)." [i] Life, health and liberty are some of the fundamental rights that are found in the state of nature. The social contract which Locke suggests, must respect these basic human rights which are found in the state of nature. (insert footnotes)

TOTALITY OF CIRCUMSTANCES DOCTRINE

24 Constitutionality of the Grant Of Coercive Powers to PMC (Legal)

Challenges Encountered By Mediators with Respect to Cases Referred for Mediation

PERCEPTIONS OF KEY INFORMANTS (Stakeholders)

Realism Theory Rawls’ Theory of Justice

ANALYSIS AND INTERPRETATION

Locke’s Social Contract Theory

Grant Of Coercive Powers to PMC

Tests of Constitutionality

Constitutional Viability

POLICY RECOMMENDATION

Figure 1. A framework on the interaction of Theories used in the study

Figure 2 Conceptual Framework on the Study

Locke’s Social Contract Theory

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Conceptual Framework The Framework of the study as indicated in the figure above employs a filtration method in exploring the current status of mediators, challenges they encounter during CAM, and in determining whether the PMC should be granted coercive powers. It will be determined through two perspectives, one being the compliance of the three tests of constitutionality as set forth by the law, and the other being the perceptions of key informants. The marriage of two perspectives is made possible through the Totality of Circumstances Doctrine. The analysis will then be further filtered through the employment of the backbone theories used in this study. The analysis and the interpretation will then lead to the determination on whether the PMC should be granted coercive powers of contempt and subpoena. Thereafter, the researcher will be able to determine the constitutional viability of such grant. Based on such findings, the researcher will be able to propose changes and/ amendments to our current laws and statutes, and recommendation to the Supreme Court to promulgate rules that would grant the PMC coercive powers which is essential to the speedy disposition of cases and dispensation of justice.

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DEFINITION OF TERMS

Challenges- For purposes of this study shall refer, but not limited, to non-appearance of party/parties; refusal of party/parties; lack of authority of parties’ representatives to enter into compromise agreement; referred case not mediatable; and, non-payment of mediation fee.

Contempt- For purposes of this study shall refer only to indirect contempt as defined under Sec. 3 Rule 71 of the Rules of Court.

Court-Annexed Mediator- A voluntary process conducted under the auspices of the court by referring the parties to the Philippine Mediation Center (PMC) Unit for the settlement of dispute, assisted by the Mediator accredited by the Supreme Court.

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Mediation- Refers to a form of alternative dispute resolution (ADR) in which the parties to a lawsuit meet with a neutral third-party in an effort to settle the case. The third-party is called a mediator.

Mediator- Shall refer to duly-accredited mediators who undergone recruitment, training and education, monitoring and performance evaluation who are assigned to different PMC units.

Philippine Mediation Center/ Unit- Pursuant to its mandate under A.M. No. 01-10-5-SC-PHILJA, the PMC established, in coordination with the Office of the Court Administrator (OCA), PMC Units in courthouses, and in such other places, as may be necessary. Each unit, manned by Mediators and Supervisors rendered mediation services to parties in court-referred, court-related mediation cases.

Subpoena- Subpoena is a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition. It may also require him to bring with him any books, documents, or other things under his control, in which case it is called a subpoena duces tecum.

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CHAPTER 2

REVIEW OF RELATED LITERATURE

History of Mediation in the Philippines Long before the Philippines was colonized by Spain on the 16th century, dispute resolution mechanism as mode of settling disputes between indigenous tribes and communities was already practiced based on practices and local legal systems, mainly done by the elder who confers with the council of the elders. After the colonisation by Spain onwards reduced these indigenous dispute resolution to mere customs and traditions, and as such they were replaced by Western legal concepts,

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particularly Spanish civil law and later Anglo-American common law14. Over a period of time, the Philippine legal system has continued to develop and legal disputes, through the adversarial system of litigation, are settled in courts. This was the root to the ceaseless problem of clogged court dockets, which causes delays in the resolution of cases and further contributes to cases pending for further action or resolution and piling up at an alarming rate.

The Civil Code of the Philippines also has provisions on compromises although it does not refer to compromises entered into after mediation. In 1953, congress passed The Arbitration Law or RA 876 which provides for domestic arbitration as an ADR method but it does not provide for other ADR methods such as mediation. Later on Presidential Decree No. 1508 was enacted in 1978 which provides a system of amicably settling disputes at the barangay level also known as the Katarungang Pambarangay mainly through mediation, conciliation or arbitration before the Punong Barangay or conciliation panels.

14

The Katarungang

Ongkiko, R., et.al (2015). Mediation in 20 Jurisdictions: Getting the Deal Through Mediation 2015 retrieved from http://bit.ly/2FodQhy on April 2, 2018.

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Pambarangay Law was also recognized under subsequent Local Government Code of 1983 and 1991.15 In 1996, The Philippine Judicial Academy (PHILJA) was created by the Supreme Court on through the issuance of Administrative Order No. 35-96 and by 1998 congress enacted Republic Act No. 8557 or An Act Establishing the Philippine Judicial Academy, Defining its Powers and Functions, Appropriating Funds Therefor, and for other Purposes.”16.

The Arbitration Law (R. A. 876) On 19 June 1953, four years after enacting the Civil Code, and undoubtedly frustrated by the inaction on the matter by the Supreme Court, Congress enacted Republic Act No. 876, entitled An Act To Authorize The Making Of Arbitration And Submission Agreements, To Provide For The Appointment Of Arbitrators And The Procedure For Arbitration In Civil Controversies, And Other Purposes. This Congressional effort to divert pending cases in court to an alternative mode

of dispute resolution, however, was to no avail.

Arbitration was infrequently availed of by judges or used by practicing 15

Ibid.

16

Ibid.

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lawyers who were perhaps unaware of the existence of this law due in large part to the failure of the Supreme Court to incorporate it in the Rules of Court. The necessity of undergoing the cumbersome process of having the award judicially confirmed before it could be effectively enforced against a recalcitrant party, understandably leads to the conclusion of inutility of the process. As a matter of fact, parties who submit to the jurisdiction of the Construction Industry Arbitration Commission routinely waive the provisions of the Arbitration Law and expressly agree to be bound by the rules of procedure governing construction arbitration.17

Arbitration and the ADR Act of 2004 With the ASEAN Integration, the Philippines can expect an influx of international transactions, with concomitant obligations and contracts, and potential disputes and litigations. With our already clogged judicial dockets, and the expectations of foreign parties who might be used to different, perhaps even non-adversarial methods of settling disputes, this

17

Penetrante, Ariel (2010): Court-Annexed Mediation in the PhilippinesCommunity Involvement in the Judicial System.

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will present a profound challenge to parties and counsels, to which we must all rise. Recognizing that dispute resolution is not confined to the judiciary, Congress passed Republic Act No. 9285 or the Alternative Dispute Resolution Act of 2004, pursuant to the “declared policy of the State to actively promote party autonomy in the resolution of disputes or the freedom of the party to make their own arrangements to resolve their disputes.”18 The law creates, among others, an alternative avenue for settling disputes, particularly those of an international character. The ADR Act of 2004 aims to provide a more speedy and efficient resolution of disputes, and it bolsters and supports older laws on alternative dispute resolution (ADR) which needed updating and reinforcement. Among the recognized ADR methods is arbitration, which is a voluntary dispute resolution process in which one or more arbitrators, appointed in accordance with the agreement of the parties, or rules...resolve a dispute by rendering an award. In this sense, by availing themselves of arbitration, parties actually agree to have their dispute

18

Republic Act No. 9285 Sec. 2

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resolved by a tribunal other than the regular courts.19 Arbitration is generally based on consent of the parties which may be given prior to a dispute or even after the dispute has arisen. Where consent to submit to arbitration is made part of a contract, the same may be invoked by a party to compel the other to arbitrate. Further, it has been ruled that “an arbitration agreement which forms part of the main contract shall not be regarded as invalid or non-existent just because the main contract is invalid or did not come into existence, since the arbitration agreement shall be treated as a separate agreement independent of the main contract.”20 Otherwise, it would be very easy to avoid arbitration by repudiating the main contract. The 1997 Rules of Civil Procedure For the first time since the Rules of Court were first promulgated in 1940, an alternative mode of dispute resolution has now been made finally available by the 1997 Rules of Civil Procedure. It must be noted, however, that diversion may be initiated by the trial judge only during

19

Republic Act No. 9285 Sec. 3 (d)

20

Cargill Philippines Inc. vs. San Fernando Regala Trading, Inc. G.R. No. 175404 January 31, 2011.

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the early pre-trial stage of the proceedings.21 There is nothing in the Rules that would indicate judicial empowerment to avail of this mode for cases that have reached a later stage of the proceedings. This could be perceived as excluding the much more numerous cases in the backlog which have already reached trial stage. This is unfortunate. It must further be noted that aside from requiring the trial court to “consider the possibility of an amicable settlement or of a submission to alternative modes of dispute resolution”, the Rules of Civil Procedure give absolutely no guidelines to follow in making a decision on the matter. The nature of the dispute that may be diverted, the relationship between the parties to the dispute, the particular mode to which it may be referred, e.g., conciliation/mediation, arbitration, early neutral evaluation (ENE), or some other method are essential and important matters that have been completely omitted from the Rules.

Court-Annexed Mediation The reliance of the society on courts to resolve differences has led the justice system to develop an array of innovative programs and

21

Ibid.

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partnerships. Courts around the world have embraced mediation as an alternative to adjudication for many cases. The institutionalization of mediation has been well-received and well critiqued, and the proponents holds the process to be a fitting complement to other judicial processes. Further, it meets a number of interests of court administrators: Courts promote mediation in the belief that, over all, settlement saves time and money and produces better results than trial. Courts value mediation as a method of screening out cases that do not need much judicial attention so that they can focus their limited resources on cases that need more. Indeed, courts generally see settlement as an absolute necessity to process all their cases, and judges often look to mediation as a way to relieve case load pressures.22

Court-Annexed Mediation (CAM), intended to promote alternative dispute resolution mechanisms to unclog court dockets and increase access to justice, is a voluntary process conducted under the auspices of the court by referring the parties to the Philippine Mediation Center

22

Hedeen, Timothy (2005) Coercion and Self-determination in Court-Connected Mediation: All Mediations Are Voluntary, But Some Are More Voluntary than Others. Taylor & Francis, Ltd. Retrieved from https://bit.ly/2KFbci9 on May 04, 2018.

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(PMC) Unit for the settlement of dispute, assisted by the Mediator accredited by the Supreme Court.23 CAM Statistical Report as of June 2017 shows that success rate of mediation dropped from 84% in 2002 to 59% in 2017. 24 No mediation transpired for the following reasons: Non-appearance of party/parties; refusal of party/parties; lack of authority of parties’ representatives to enter into compromise agreement; referred case not mediatable; and, non-payment of mediation fee.25

Courts Contempt Power A court’s contempt power permits it to impose sanctions upon a person whose behavior interferes with the disposition of the court’s business.26 The interfering behavior giving rise to imposition of a contempt sanction may be failure to obey court order, disruption of proceedings in

23

Philippines Judicial Academy retrieved from https://bit.ly/2wiBeVm on April 7, 2018

24

The Judiciary Annual Report 2016-June 2018

25

Ibid. 4

26

Dobbs, Dan B., (1971) Contempt of Court: A Survey. Cornell Law Review retrieved from http://bit.ly/2HXZRlf on May 04, 2018.

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court, obstruction of judicial process, or acts of disrespect towards a judge or other court officer.27 In the Philippines, Contempt of court has been defined as a willful disregard or disobedience of a public authority. In its broad sense, contempt is a disregard of, or disobedience to, the rules or orders of a legislative or judicial body or an interruption of its proceedings by disorderly behavior or insolent language in its presence or so near thereto as to disturb its proceedings or to impair the respect due to such a body. In its restricted and more usual sense, contempt comprehends a despising of the authority, justice, or dignity of a court.

The phrase contempt of

court is generic, embracing within its legal signification a variety of different acts.

The power to punish for contempt is inherent in all courts, and need not be specifically granted by statute. It lies at the core of the administration of a judicial system.Indeed, there ought to be no question that courts have the power by virtue of their very creation to impose silence, respect, and decorum in their presence, submission to their lawful mandates, and to preserve themselves and their officers from the 27

Berman, Douglas C. (1979) Coercive Contempt and the Federal Grand Jury. Columbia Law Review Association Inc. Retrieved fromhttps://bit.ly/2JVmSfo.

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approach and insults of pollution. The power to punish for contempt essentially exists for the preservation of order in judicial proceedings and for the enforcement of judgments, orders, and mandates of the courts, and, consequently, for the due administration of justice.The reason behind the power to punish for contempt is that respect of the courts guarantees the stability of their institution; without such guarantee, the institution of the courts would be resting on a very shaky foundation.

Contempt of court is of two kinds, namely: direct contempt, which is committed in the presence of or so near the judge as to obstruct him in the administration of justice; and constructive or indirect contempt, which consists of willful disobedience of the lawful process or order of the court.

“Sec. 3. Indirect contempt to be punished after charge and hearing.-After a charge in writing has been filed, and an opportunity given to the respondent to comment thereon within such period as may be fixed by the court and to be heard by himself or counsel, a person guilty of any of the following acts may be punished for indirect contempt:

xxx

(f) Failure to obey a subpoena duly served;”

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As far as the proceedings for indirect contempt is concerned, the case of Baculi v. Judge Belen28 is instructive: “x x x Under the Rules of Court, there are two ways of initiating indirect contempt proceedings: (1) motu proprio by the court; or (2) by a verified petition.”

In the Matter of the Contempt Orders against Lt. Gen. Jose M. Calimlim and Atty. Domingo A. Doctor, Jr.29 clarified the procedure prescribed for indirect contempt proceedings. We held in that case: In contempt proceedings, the prescribed procedure must be followed. Sections 3 and 4, Rule 71 of the Rules of Court provide the procedure to be followed in case of indirect contempt. First, there must be an order requiring the respondent to show cause why he should not be cited for contempt. Second, the respondent must be given the opportunity to comment on the charge against him. Third, there must be a hearing and the court must investigate the charge and consider respondent’s answer. Finally, only if found guilty will respondent be punished accordingly.

28

Jorge D. Baculi v. Medel Arnaldo B. Belen, A.M. No. RTJ-09-2176

29

Jose M. Calimlim v. Domingo A. Doctor, G.R. No. 141668

40

As to the second mode of initiating indirect contempt proceedings, that is, through a verified petition, the rule is already settled in Regalado v. Go30: In cases where the court did not initiate the contempt charge, the Rules prescribe that a verified petition which has complied with the requirements of initiatory pleadings as outlined in the heretofore quoted provision of second paragraph, Section 4, Rule 71 of the Rules of Court, must be filed. The Rules itself is explicit on this point: In all other cases, charges for indirect contempt shall be commenced by a verified petition with supporting particulars and certified true copies of documents or papers involved therein, and upon full compliance with the requirements for filing initiatory pleadings for civil actions in the court concerned. If the contempt charges arose out of or are related to a principal action pending in the court, the petition for contempt shall allege that fact but said petition shall be docketed, heard and decided separately, unless the court in its discretion orders the consolidation of

30

Ma. Concepcion L. Regalado v. Antonio S. Go, GR No. 167988

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the contempt charge and the principal action for joint hearing and decision. Thus, where there is a verified petition to cite someone in contempt of court, courts have the duty to ensure that all the requirements for filing initiatory pleadings have been complied with. It behooves them too to docket the petition, and to hear and decide it separately from the main case, unless the presiding judge orders the consolidation of the contempt proceedings and the main action.31 But in indirect contempt proceedings initiated motu proprio by the court, the above rules, as clarified in Regalado, do not necessarily apply. First, since the court itself motu proprio initiates the proceedings, there can be no verified petition to speak of. Instead, the court has the duty to inform the respondent in writing, in accordance with his or her right to due process. This formal charge is done by the court in the form of an Order requiring the respondent to explain why he or she should not be cited in contempt of court.32

31

Capitol Hills Golf & Country Club, Inc. And Pablo B. Roman, Jr. v. Manuel O. Sanchez, GR No. 182738.

32

Ibid.

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Subpoena Power of the Courts In United States v. R. Enterprises33 the United States Supreme Court held that a subpoena duces tecum issued by a grand jury is presumed to be reasonable and that the recipient bears the burden of proving unreasonableness. The Court stressed the importance of grand jury independence while making it more difficult for a recipient to quash a subpoena.34 In the Philippines, Subpoena, as defined and governed by the Rules of Civil Procedure, is a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition. It may also require him to bring with him any books, documents, or other things under his control in which case it is called a subpoena duces tecum. The power to subpoena is generally lodged to the judiciary. Recently, President Rodrigo Duterte signed into law RA 10973 which provides that the PNP shall have subpoena power but such power rest exclusively with the Philippine National Police (PNP) chief 33

United States v. R. Enterprises (1991), 498 U.S. 292

34

Chefitz, Daniel E. (1992) The Presumption of Reasonableness of a Subpoena Duces Tecum Issued by a Grand Jury. Northwestern University School of Law retrieved from http://bit.ly/2HTb2WB on May 06, 2018.

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and the director and the deputy director for administration of the PNP's Criminal Investigation and Detection Group.