- Amending the Revised Rules of Procedure in the Adjudication of Administrative Cases Filed Before the PCSD Adjudication Board (PAB)
- PCSD Resolution No. 396-10
January 23, 2010
PCSD RESOLUTION NO. 396-10
RESOLUTION FURTHER AMENDING THE REVISED
WHEREAS, Section 2 thereof declares the policy of the State to protect, develop and conserve its natural resources towards which, it shall assist and support the implementation of plans, programs and projects formulated to preserve and enhance the environment, and at the same time pursue the socioeconomic development goals of the country; that it shall support and promote the sustainable development goals for the provinces through proper conservation, utilization and development of natural resources to provide optimum yields on a continuing basis;
WHEREAS, this same law provides that the SEP shall have, as its general philosophy, the sustainable development of Palawan, which is the improvement in the quality of life of its people in the present and future generations through the use of complementary activities of development and conservation that protect life-support ecosystems and rehabilitate exploited areas to allow upcoming generations to sustain development growth;
WHEREAS, Section 7 of the same provides that the SEP shall establish, as its main strategy, a graded system of protection and development control over the whole of Palawan, including its tribal lands, forests, mines, agricultural areas, settlement areas, small islands, mangroves, coral reefs, seagrass beds and the surrounding sea, known as the Environmentally Critical Areas Network (ECAN), and which shall ensure the following: forest conservation and protection; protection of watersheds; preservation of biological diversity; protection of tribal people and the preservation of their culture; maintenance of maximum sustainable yield; protection of the rare and endangered species and their habitat; provision of areas for environmental and ecological research, education and training; and provision of areas for tourist and recreation; CacTSI
WHEREAS, Section 16 thereof provides that the governance, implementation and policy direction of the SEP shall be exercised by the Palawan Council for Sustainable Development (PCSD);
WHEREAS, Section 19 of this act provides that the PCSD shall (8) adopt, amend and rescind such rules and regulations and impose penalties for the effective implementation of the
WHEREAS, the Council is vested with the power to promulgate the rules and regulations governing the exploration, development, conservation extraction, disposition, use of natural resources and such other commercial activities related thereto in the province of Palawan;
WHEREAS, on July 3, 2001,
WHEREAS, to provide for a system that will ensure the sustainability of live reef food fish industry by setting up a quota mechanism, to eliminate use of cyanide and other noxious substances and their derivatives/forms in the live reef food fish industry and to regulate resource extraction to a sustainable level, the PCSD promulgated PCSD Administrative Order No. 05;
WHEREAS, to ensure the attainment of the ends of ECAN, the PCSD, on February 25, 2000, promulgated Administrative Order No. 06, otherwise known as the "Revised Guidelines in the Implementation of SEP Clearance System, as amended", through which all projects of the proponents are evaluated based on ECAN Zoning of Palawan, as above-mentioned, as well as based on their ecological sustainability, social acceptability and economic viability, which Administrative Order was amended in 2002 and further revised on February 29, 2008;
WHEREAS, on November 7, 2002, PCSD ;
WHEREAS, on April 8, 2001, PCSD Administrative Order No. 08; DTcACa
WHEREAS, pursuant to PCSD Resolution No. 98-118-A through which the PCSD adopted per se" in the province of Palawan and PCSD Resolution No. 05-251, authorizing the Executive Director of PCSDS to take immediate action to dismantle/remove any structure which obstructs the natural flow of tide in mangrove forests and to ensure the conservation and protection of mangroves, the PCSD promulgated Administrative Order No. 11, otherwise known as the "Rules and Regulations Governing the Conservation and Protection of Mangrove Areas";
WHEREAS, the Council, through Resolution No. 03-207, reconstituted the PCSD Legal Committee and delegated thereto the quasi-judicial power to adjudicate violations of the above-mentioned PCSD Administrative Orders;
WHEREAS, to further the ends of and to provide for a more expeditious, fair and orderly administration of administrative justice, there is a need to provide for a revised
WHEREFORE, for and in consideration of the above premises, upon motion, duly seconded, be it RESOLVED, as it is hereby RESOLVED, TO ADOPT, as it is hereby adopted, THE FOLLOWING REVISIONS TO PAB
Title and Preliminary Matters
SECTION 1. Title. These Rules shall be known as the Revised PAB
SECTION 2. Composition of the PCSD Adjudication Board. The PCSD Adjudication Board (PAB) shall be composed of the following:
a. Chairperson: The most senior lawyer-member of the PCSD;
b. Vice-Chairperson: Any member of the PCSD, preferably a lawyer;
i. The PCSDS Executive Director;
ii. The Provincial Prosecutor; and
iii. The NGO Representative in the PCSD.
In the absence of any lawyer-member in the PCSD, the Council shall designate any member of good standing and reputation as Chairman of the Adjudication Board. In the same manner, in the event that the membership of the other Board members in the Council expires, vacated or otherwise incapacitated, the Board Chairman is hereby authorized to designate any member of good standing and reputation as members of the Adjudication Board, until such time that their successors are duly admitted as Council members.
SECTION 3. Quorum. The majority of members shall constitute a quorum for the Board to do business.
SECTION 4. Coverage. These Rules shall apply to administrative cases or proceedings for violations of Administrative Orders duly adopted by the PCSD, such as, but not limited to, the following:
SECTION 5. Construction. These rules shall be liberally construed to carry out the objectives of PCSD Administrative Orders. In implementing these rules, the PAB shall observe proper flexibility and avoid undue technicality with the end in view of bringing forth the truth and meting out justice as fairly and expeditiously as possible. cACHSE
SECTION 6. Suppletory Application of the Rules of Court. The Rules of Court shall apply in a suppletory character to these rules in the interest of justice and whenever practicable and convenient.
SECTION 7. Prohibited Motions. No motion to dismiss or motion to quash, motion for bill of particulars, motion for new trial or reopening of trial and such other dilatory motions shall be allowed in the cases covered by these rules.
Procedure Before the PCSD Adjudication Board
Appearances and Filing of the Complaint
SECTION 8. Appearances. In all proceedings before the PAB, it is preferred that the parties be represented by a counsel who is a member of the Bar. Provided however, that a party may appear without the assistance of a counsel if he so desires. Provided further, that any confession or admission of guilt of a party made without the presence and assistance of counsel may not be used against such party in any criminal action.
SECTION 9. Complaint. A complaint shall not be given due course unless it is in writing and subscribed and sworn to by the complainant. No anonymous complaint shall be entertained.
SECTION 10. Contents of the Complaint. The complaint shall contain the ultimate facts of the case and shall include:
a. full name and address of the complainant;
b. full name and address of the person complained of;
c. specification of the charges;
d. statement of the material facts;
e. certification or statement of non-forum shopping.
In the absence of any one of the aforementioned requirements, the complaint shall be dismissed. However, if the respondent cannot be identified by his name, an assumed name may be used together with the practical description respondent's physical appearance such as but not limited to gender, approximate age, weight, height, color of hair, and other distinguishing physical appearance. A respondent identified by an assumed name shall be required to provide his true name in order for him to participate in the proceedings and the complaint shall be considered as amended accordingly.
The complaint shall include copies of documents and affidavits of witnesses, if any, in support of the complaint.
SECTION 11. Who may File. Any person who has personal knowledge of facts and circumstances constituting violation(s) of any administrative orders of the PCSD may file a complaint against any person(s) involved in such violation(s).
SECTION 12. Where to File. The complaint shall be filed through the PCSDS EC AN Zones Management and Enforcement Division or EZMED (Legal Division).
SECTION 13. Number of Copies. The complaints and their supporting documents must be filed in seven (7) copies. Additional copies equivalent to the number of respondents shall be required when the number of respondents, as indicated in the complaint, is more than one.
SECTION 14. Docketing of Complaints. All complaints filed through the EZMED shall be assigned a docket number for reference purposes.
Preliminary Evaluation and Preliminary Investigation
SECTION 15. Conduct of Preliminary Evaluation. Upon receipt by the EZMED of the complaint, it shall evaluate the same and cause it to proceed with the conduct of the administrative adjudication in accordance with the subsequent rules, such as issuance of summons, if the complaint presents substantial evidence to warrant a prima facie case against the respondent(s); Provided, that the complaint is sufficient in form and substance; Provided, further, that if the complaint is not under oath, the EZMED shall first require the complainant to subscribe it under oath. ISAaTH
Otherwise, the EZMED shall submit, on the immediately upcoming PAB meeting, an evaluation report, which shall contain, among others, the following:
1. A statement as to the form and substance of the complaint;
2. A recommendation to dismiss the complaint outright for lack of a prima facie case against the respondent(s), that is, that the complaint, on its face, presents no substantial evidence.
SECTION 16. Action on the Evaluation Report. If the PAB agrees and approves the recommendation for outright dismissal for lack of a prima facie case, it (PAB) shall issue the corresponding Decision.
SECTION 17. Summons. The PCSDS EZMED shall issue the corresponding summons to the respondent(s), attaching therewith copy of the complaint and other supporting documents, if there are any. The summons shall serve as notice of violation and shall therefore state the names of the parties to the action, the specific alleged violation(s)/the specific provision of the rules/order allegedly violated, including the applicable penalty and a direction that the respondent(s) must answer within the time fixed by these rules and that failure to answer would constitute a waiver of the right to refute the allegations in the complaint and the preliminary investigation shall proceed based only on the documents submitted by the complainant.
The summons may be served by the sheriff, his deputy, or other proper court officer, or for justifiable reasons by any suitable person authorized by the court issuing the summons. When the service has been completed, the server shall, within five (5) days therefrom, return the summons to the PCSDS EZMED accompanied by proof of service.
If, for justifiable causes, the defendant cannot be served within a reasonable time in person, service may be effected (a) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof (substituted service).
In any action where the respondent is designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation.
SECTION 18. Proof of Service of Summons. The proof of service of a summons shall be made in writing by the server and shall set forth the manner, place, and date of service; shall specify any papers which have been served with the process and the name of the person who received the same; and shall be sworn to when made by a person other than a sheriff or his deputy.
If the service has been made by publication, service may be proved by the affidavit of the printer, his foreman or principal clerk, or of the editor, business or advertising manager, to which affidavit a copy of the publication shall be attached and by an affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address.
SECTION 19. Voluntary Appearance. The defendant's voluntary appearance in the action shall be equivalent to service of summons.
SECTION 20. Answer. The respondent shall file an answer within fifteen (15) days from receipt of the summons. The answer must be in writing and must contain all material facts and applicable laws, including legible copies documentary evidence and sworn statements of witnesses. Defenses not contained in the answer are deemed waived. The answer of the respondent and sworn statements of his witness shall be considered as his direct testimony.
The respondent shall furnish the complainant a copy of his answer, together with the supporting documents. Service of such copy to the complainant shall be a prerequisite prior to or simultaneous with the filing of said answer to the EZMED. Said copy shall be served through registered mail if personal service cannot be affected. TDCAIS
SECTION 21. Failure to File Answer; Waiver. In the event that the respondent, despite due notice, fails to submit an answer within the prescribed period, he shall be deemed to have waived his right to present evidence or refute the allegations in the complaint for purposes of preliminary investigation and the case shall immediately be indorsed for preliminary conference pursuant to Section __ of these rules.
SECTION 22. Reply and Rejoinder. The complainant may opt to file his Reply within ten (15) days from receipt of the answer in order to rebut the matters raised in the Answer. A Rejoinder on matters alleged in the Reply may be submitted by the respondent within ten (15) days from receipt of the Reply. The Reply and Rejoinder shall likewise contain the affidavits of witnesses, documentary and other evidence in support thereof, if any.
SECTION 23. Preliminary Investigation. On the basis of the pleadings, documents and evidence submitted by the parties, except as provided for under Section 18 hereof, the duly designated Hearing Officer of PAB may call the parties to a preliminary investigation for purposes of weighing the sufficiency of the parties' pieces of evidence. If the pleadings, documents and evidence submitted already suffice the determination of the weight of the parties' proof, no preliminary investigation is necessary.
In both cases, if the designated Hearing Officer finds sufficient cause to warrant further proceedings, as when the proof/evidences submitted by the respondent cannot be given more credence than that of the complainant, he shall cause the case to proceed in accordance with the subsequent rules, such as conduct of preliminary conference.
If he finds no sufficient cause to warrant further proceedings, as when the proof/evidences submitted by the respondent is given more credence than that of the complainant, he shall submit a recommendation to the PAB to the effect that the complaint should be dismissed. If the PAB approves, then it shall issue the corresponding Decision. If not, the case shall be set for PAB's conduct of preliminary conference.
Preliminary Conference and Hearings Before the PAB
SECTION 24. Preliminary Conference. Upon receipt of the answer of respondent, the Hearing Officer shall set the case for preliminary conference before the PAB for the following considerations:
a) For the parties to consider and agree on the admission or stipulation of facts and of documents, simplification of issues, the necessity or desirability of amendment to the pleadings, identification and marking of evidence and such other matters as may aid in the prompt and just resolution of the case;
b) Whether the parties are amenable to submitting the case for resolution on the basis of the complaint, answer, evidence on record and such other evidence, pleadings, position paper or memorandum as may be submitted during or after the preliminary conference;
c) Whether there is a need for clarificatory hearings or dispensing with the cross-examination of the complainant, respondent, or their witnesses;
d) Hearing dates; and
e) Whether the parties are amendable to submit the case for Alternative Dispute Resolution System of the PCSDS. This is without prejudice to any agreement of the parties to submit the case for Alternative Dispute Resolution at any stage of the proceeding from the filing of the administrative complaint until before the case is submitted for decision. For this purpose, the procedure for Alternative Dispute Resolution shall be subject to a separate procedural guidelines that may hereinafter be promulgated by the PCSD.
Any evidence not presented and identified during the preliminary conference shall not be admitted in subsequent proceedings. The conduct of the preliminary conference may be assigned by the PAB to the same or another Hearing Officer as may be determined by the Board.
SECTION 25. Preliminary Conference Order and Submission of Position Papers. After the preliminary conference, the PAB shall issue an order stating therein the matters taken up, admissions made by the parties and issues for resolution. The order shall also direct the parties to simultaneously submit, within ten (15) days from the receipt of said order, their respective position papers, which shall be limited to a discussion of the issues as defined in the order. cEDIAa
SECTION 26. Hearing Before the PAB. After the submission by the parties of their position papers, the PAB, pursuant to the considerations under Section 21 hereof, shall determine whether or not there is a need for a hearing for the purpose of cross-examination of the affiant(s). If the PAB finds no necessity for conducting a hearing, it shall issue an order to that effect and shall state basis thereof. Then the case shall automatically be deemed submitted for decision.
In cases where the PAB deems it necessary to allow the parties to conduct cross-examination, the case shall be set for hearing. The affidavits of the parties and their witnesses shall take the place of their direct testimony.
In case hearings are held, only those witnesses who have submitted their affidavits on or before the preliminary conference or specified date shall be allowed to testify. The affidavit of any witness shall constitute his direct testimony, subject to cross-examination by the other party. In the cross-examination of witnesses, only relevant, pertinent and material questions necessary to enlighten the PAB shall be allowed.
The hearings shall be conducted without necessarily adhering strictly to the technical
SECTION 27. Role of the Duly Designated/Appointed Hearing Officer. The duly appointed Hearing Officer shall personally conduct the conference and/or hearings. He shall determine the order of presentation of evidence by the parties, subject to the requirements of due process. He shall take full control of the proceedings, examine the parties and their witnesses to satisfy himself with respect to the matters at issue, ask questions only for the purpose of clarifying points of law or fact involved in the case. He shall limit the presentation of evidence to matters relevant to the issue before it/him and necessary for a just and speedy disposition of the case. cCaIET
Decision and Remedies
SECTION 28. Contents and Period for Submission of Report. In cases where a Hearing Officer is designated to conduct the hearings, within fifteen (15) days after the PAB designated hearing officer has issued an order declaring that the case is submitted for resolution, a report shall be submitted to the PAB. The report of the hearing officer shall contain clearly and distinctly the findings of facts and conclusions of law on which it is based.
SECTION 29. Decision. Not later than thirty (30) days upon the matter being submitted for resolution, the PAB shall render its decision. All decisions rendered under this Rules shall be approved and signed by the Chairman and all the members of the PAB. A decision shall be based on substantial evidence or that amount of relevant evidence that a reasonable mind might accept as adequate to justify a conclusion.
Any member of the Hearing Committee or the Board, as the case may be, may submit a dissenting opinion stating the reasons thereof, which shall be attached to the majority decision.
SECTION 30. Notice of Resolution. The PAB shall cause true copies of its resolution to be served upon the parties.
SECTION 31. Motion for Reconsideration. A motion for reconsideration may only be entertained if filed within fifteen (15) days from receipt of the resolution by the parties on any of the following grounds:
1) New evidence has been discovered which materially affects the decision; or
2) Errors of facts and/or of law or irregularities have been committed prejudicial to the interest of the movant.
Only one motion for reconsideration shall be allowed. Upon receipt of the said motion, the EZMED shall forward the same to the PAB which shall accordingly resolve the matter.
The filing of the motion for reconsideration shall suspend or stop the running of the period for appeal, and the remainder of such period shall begin to run from the date of receipt by the movant of the denial of the motion for reconsideration.
SECTION 32. Appeal. An appeal from the Resolution of the PAB should be taken directly to the PCSD en banc. Any pleading denominated as "appeal" but with "PCSD Adjudication Board" in its caption shall be treated as second motion for reconsideration (in case a first one was filed) and shall therefore be denied outright.
SECTION 33. Finality. The decision of the PAB shall become final and executory fifteen (15) days after the official receipt of a copy thereof by the party adversely affected or his counsel, unless within that period a motion for reconsideration is filed or an appeal is perfected.
Execution of Decision
SECTION 34. Execution Upon Finality of Decision. Execution shall issue after the decision of the PAB has become final and executory; provided, however, that execution pending appeal may be allowed in the sound discretion of the PAB, such as when the appeal is patently dilatory. Execution pending appeal may be stayed upon filing of bond by the losing party in such reasonable amount as may fixed by the PAB. The appeal shall not stay the resolution sought to be reviewed unless the Court of Appeals shall direct otherwise upon such terms as it may deem just.
SECTION 35. Enforcement of Decision. The decision shall be enforced through writ of execution which may be directed to any law enforcement agency by the PAB.
Filing and Service of Pleadings, Judgments and Other Papers
SECTION 36. Papers Required to be Filed and Served. Every judgment, resolution, order, pleading subsequent to the complaint, written motion, notice, appearance, demand, offer of judgment or similar papers shall be filed with the court, and served upon the parties affected.
SECTION 37. Modes of Service. Service of pleadings, motions, notices, orders, judgments and other papers shall be made either personally or by mail.
SECTION 38. Personal Service. Service of the papers may be made by delivering personally a copy to the party or his counsel, or by leaving it in his office with his clerk or with a person having charge thereof if no person is found in his office, or his office is not known, or he has no office, then by leaving the copy, between the hours of eight in the morning and six in the evening, at the party's or counsel's residence, if known, with a person of sufficient age and discretion then residing therein.
SECTION 39. Service by Mail. Service by registered mail shall be made by depositing the copy in the post office in a sealed envelope, plainly addressed to the party or his counsel at his office, if known, otherwise at his residence, if known, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if undelivered. If no registry service is available in the locality of either the senders or the addressee, service may be done by ordinary mail.
SECTION 40. Substituted Service. If service of pleadings, motions, notices, resolutions, orders and other papers cannot be made under the two preceding sections, the office and place of residence of the party or his counsel being unknown, service may be made by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail. The service is complete at the time of such delivery.
SECTION 41. Service of Judgments, Final Orders, or Resolutions. Judgments, final orders or resolutions shall be served either personally or by registered mail. When a party summoned by publication has failed to appear in the action, judgments, final orders or resolutions against him shall be served upon him also by publication at the expense of the prevailing party.
SECTION 42. Completeness of Service. Personal service is complete upon actual delivery. Service by ordinary mail is complete upon the expiration of ten (10) days after mailing, unless the court otherwise provides. Service by registered mail is complete upon actual receipt by the addressee, or after five (5) days from the date he received the first notice of the postmaster, whichever date is earlier. ISTHED
SECTION 43. Priorities in Modes of Service and Filing. Whenever practicable, the service and filing of pleadings and other papers shall be done personally. Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally. A violation of this Rule may be cause to consider the paper as not filed.
SECTION 44. Proof of Filing. The filing of a pleading or paper shall be proved by its existence in the record of the case. If it is not in the record, but is claimed to have been filed personally, the filing shall be proved by the written or stamped acknowledgment of its filing by the clerk of court on a copy of the same; if filed by registered mail, by the registry receipt and by the affidavit of the person who did the mailing, containing a full statement of the date and place of depositing the mail in the post office in a sealed envelope addressed to the court, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if not delivered.
SECTION 45. Proof of Service. Proof of personal service shall consist of a written admission of the party served, or the official return of the server, or the affidavit of the party serving, containing a full statement of the date, place and manner of service. If the service is by ordinary mail, proof thereof shall consist of an affidavit of the person mailing of facts showing compliance with section 7 of this Rule. If service is made by registered mail, proof shall be made by such affidavit and the registry receipt issued by the mailing office. The registry return card shall be filed immediately upon its receipt by the sender, or in lieu thereof the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee.
SECTION 46. Repealing Clause. All existing rules, regulations, orders or circulars or any part thereof inconsistent with these rules are hereby repealed, amended or modified accordingly.
SECTION 47. Separability Clause. If any part of these rules is declared unconstitutional or illegal, the other parts or provisions shall remain valid.
SECTION 48. Effectivity. The provisions of this Resolution shall take effect fifteen (15) days following its publication in a newspaper of general circulation and upon filing thereof with the Office of the National Administrative Register at the UP Law Center, Quezon City, Philippines.
I hereby certify that the above-quoted Resolution has been duly approved and adopted by the PCSD on 23rd day of January 2010 at Puerto Princesa City. AEHTIC
APPROVED FOR THE COUNCIL:
JOSEPHINE S. MATULAC
HON. MARIO JOEL T. REYES