The resolution of the Philippine Supreme Court in EN BANC A.M. No. 05-2-01-SC, February 15, 2005, “RE: SC PROJECT: ACCESS TO JUSTICE FOR THE POOR PROJECT”, is worth discussing because of its implications to the administration of justice and the over-all directions of the justice system reform programs in the Philippines and for legal research purposes of the readers.
Parenthetically, I am also digesting this particular resolution of the Court for another reason -- to prove my position that the controversial participation of the Chief Justice in the newly formed Judicial, Executive and Legislative Advisory and Consultative Council (JELAC) runs counter to the Constitution and existing jurisprudence.
In early 2001, the Supreme Court and the European Commission (EC) delegation to the Philippines initially discussed the possibility of an EC grant to fund activities in line with the Action Program for Judicial Reform (APJR).
By the end of 2002, the EC commissioned a team of experts as a Scoping Mission to look at the feasibility of an EC funded project for the Supreme Court that would cover the APJR components "Access to Justice for the Poor" and "Reforms Support System."
By the end of the second quarter of 2003, the Scoping Mission, after consultations with various national agencies, local governments and nongovernmental institutions (NGOs) proposed the creation of a network of information and dissemination systems interconnecting the "pillars of justice" in order to enhance accessibility of the justice system for the poor and disadvantaged (especially women and children).
In 2003, the SC Project: Access to Justice for the Poor Project (the Project) was approved by the EC and the Government of the Philippines with the Financing Agreement being signed on August 10, 2004. The Project was scheduled to commence in 2005 and was to be implemented over a 4-year period ending in 2009.
The Technical and Administrative Provisions (the TAPs) of the Project's Financing Agreement designate the Supreme Court as the Executing Authority and the Implementing Agency for the Project.
The purpose of the Project was: To enable the poor in general and poor women and children in particular in selected project areas (approximately 100 municipalities and 3000 barangays) to pursue justice through their increased knowledge about basic rights and the judicial system and to create an enabling, supportive environment to this effect within the judiciary and the institution[s] of law enforcement as well as an overall legal framework amended to ensure the rights of poor women and children in particular.
The project will expand the Information, Education and Communication infrastructure of the Court system by delegating one Clerk of Court as Municipal Court Information Officer (MCIO) at each of the approximately 100 Municipal Courts (out of 1124 in total) to be covered by the project. In approximately 3000 barangays under their jurisdiction, legal information desks will be established in co-operation with the Barangay Council and Captain and capacity building will take place for those involved in the Barangay Justice System, paralegals, women and children. An effort will be made to enhance the sensitivity of particularly those working in law enforcement and the judiciary to the problems of the poor.
On January 7, 2005, as directed by the Supreme Court Committee on Public Information chaired by Justice Artemio V. Panganiban, the Project Management Office (PMO) submitted a draft Memorandum of Agreement (MOA) among the Supreme Court, the Department of Justice (DOJ), the Department of the Interior and Local Government (DILG), the Department of Social Welfare and Development (DSWD), and the Commission on Human Rights (CHR).
The draft MOA was then referred to the Office of the Chief Attorney (OCAt) for review. In its Memorandum dated January 19, 2005, the OCAt recommended the withdrawal of the Court from participation as Executing Agency of the Project for the following reasons:
(1) the participation of the Court in the Project was of doubtful constitutionality, as the component activities to be undertaken were within the competence and authority of the executive branch of government to undertake, and
(2) the Project activities were either functions of the executive departments or were already being undertaken in the Court through other Projects managed by the PMO.
The issues for resolution by the Supreme Court were the following:
Whether the program to inform, educate and communicate with the public in order to promote access to justice by the poor is within the constitutional mandate of the Supreme Court.
Whether the Court's participation in the Project as defined in the MOA violates the separation of powers.
A PROGRAM TO INFORM, EDUCATE AND
COMMUNICATE WITH THE PUBLIC IN
ORDER TO PROMOTE ACCESS TO JUSTICE
BY THE POOR DOES NOT PER SE GO
BEYOND THE CONSTITUTIONAL
MANDATE OF THE SUPREME COURT
In its Memorandum, the OCAt opined that the judicial power as defined in Section 1, Article VIII of the Constitution "is clear enough to exclude dissemination of ‘legal information’”. While acknowledging that the term "legal information" is not defined in the MOA or the TAPs, the OCAt speculates that "because the Project is about access to justice by the poor, the implication is that the poor would be informed and educated on how to file a case or to seek recourse before the courts." To this, the OCAt adds the warning that '"legal information' may in fact include advisory opinion on legal matters such as the proper procedure to avail of by the person seeking such information."
Moreover, the OCAt theorized that "legal information" was synonymous to "legal education" in the APJR, which it defined as referring to education and training in college for the purpose of obtaining a law degree in preparation to admission to the Bar. Thus, the OCAt concluded that '"[l]egal education' may not encompass educating the people, especially the disadvantaged, on how to have access to the justice system." And further that "[p]roviding 'legal information' to the masses, which is the principal activity under the Project, is within the competence of the executive department of government, not the Judiciary, to undertake.
The Court heldtaht it was undisputed that under the fifth paragraph of Section 5, Article VIII of the Constitution, the Court was vested with rule-making power, to wit:
Sec. 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.
Concomitant to the power to promulgate rules is the duty to publish the same. As discussed at length in the landmark case of Tanada v. Tuvera, publication is an essential element of due process:
X x x.
Publication is indispensable in every case . . .
It is not correct to say that . . . publication may be dispensed with altogether. The reason is that such omission would offend due process insofar as it would deny the public knowledge of the laws that are supposed to govern it. Surely, if the legislature could validly provide that a law shall become effective immediately upon its approval notwithstanding the lack of publication (or after an unreasonably short period after publication), it is not unlikely that persons not aware of it would be prejudiced as a result; and they would be so not because of a failure to comply with it but simply because they did not know of its existence. Significantly, this is not true only of penal laws as is commonly supposed. One can think of many non-penal measures, like a law on prescription, which must also be communicated to the persons they may affect before they can begin to operate.
We note at this point the conclusive presumption that every person knows the law, which of course presupposes that the law has been published if the presumption is to have any legal justification at all. It is no less important to remember that Section 6 of the Bill of Rights recognizes "the right of the people to information on matters of public concern," and this certainly applies to, among others, and indeed especially, the legislative enactments of the government.
The term "laws" should refer to all laws and not only to those of general application, for strictly speaking all laws relate to the people in general albeit there are some that do not apply to them directly. ...
We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature.
Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the legislature or, at present, directly conferred by the Constitution. Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation.
xxx
Accordingly, even the charter of a city must be published notwithstanding that it applies to only a portion of the national territory and directly affects only the inhabitants of that place. All presidential decrees must be published, including even, say, those naming a public place after a favored individual or exempting him from certain prohibitions or requirements. The circulars issued by the Monetary Board must be published if they are meant not merely to interpret but to "fill in the details" of the Central Bank Act which that body is supposed to enforce.
xxx
We agree that the publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the laws. As correctly pointed out by the petitioners, the mere mention of the number of the presidential decree, the title of such decree, its whereabouts (e.g., "with Secretary Tuvera"), the supposed date of effectivity, and in a mere supplement of the Official Gazette cannot satisfy the publication requirement. This is not even substantial compliance. This was the manner, incidentally, in which the General Appropriations Act for FY 1975, a presidential decree undeniably of general applicability and interest, was "published" by the Marcos administration. The evident purpose was to withhold rather than disclose information on this vital law.
xxx
Laws must come out in the open in the clear light of the sun instead of skulking in the shadows with their dark, deep secrets. Mysterious pronouncements and rumored rules cannot be recognized as binding unless their existence and contents are confirmed by a valid publication intended to make full disclosure and give proper notice to the people. The furtive law is like a scabbarded saber that cannot feint, parry or cut unless the naked blade is drawn.
X x x.
The Tañada case specifies publication in the Official Gazette or in newspapers of general circulation as the absolute minimum compliance with the requirement of due process. However, there is nothing in the Constitution or in existing jurisprudence which prohibits the Court from undertaking further efforts to ensure that judicial rules and procedures are understood by the general public - including the poor and uneducated - for whose benefit they were promulgated.
In fact, as pointed out by the PIO, the Court has already undertaken additional efforts to further explain court procedures to the public at large, including the publication of various information materials such as brochures, flyers and the Benchmark, as well as the broadcast of the radio program Usapang Korte Suprema. Thus, the 2002 Revised Manual for Clerks of Court expressly includes among the non-adjudicative functions of a first-level clerk of court the responsibility to "[p]rovide information services to the public and private agencies including bar associations." Furthermore, Section 12 of the Rule on Violence against Women and Children which took effect November 15, 2004 enumerates specific pieces of information which, in the proper cases, a clerk of court is required to communicate to the offended party, to wit:
X x x.
Sec. 12. Duties of the clerk of court. - The clerk of court shall assist the petitioner or the offended party by:
(a) Communicating in a language understood by the petitioner;
(b) Providing the petitioner with a standard petition form written in English with translation into the major local dialects, including the instructions for its accomplishment;
(c) Ensuring the privacy of the offended party to the extent practicable while the form is being accomplished;
(d) Advising the petitioner on the availability of legal assistance from the Public Attorney's Office of the Department of justice or any public legal assistance office;
(e) Advising of the petitioner on entitlement of support services from the DSWD and LGUs;
(f) Advising the petitioner on the availability of an affidavit of indigency in lieu of payment of the filing fee;
(g) Providing the offended party with a certified copy of the protection order as well as giving the necessary information regarding the process for its service and enforcement;
(h) Making available informative materials on violence against women and their children including their rights as victims; and
(i) Informing the offended party that compensation is available from the Department of Justice Board of Claims in accordance with the provisions of R.A. No. 7309 (1992), otherwise known as "An Act Creating a Board of Claims Under the Department of Justice for Victims of Unjust Imprisonment or Detention and Victims of Violent Crime and For Other Purposes.
X x x.
Thus, the Court concluded that clearly, there was no constitutional prohibition against this Court "educating the people, especially the disadvantaged, on how to have access to the justice system."
"LEGAL INFORMATION" PROVIDED BY THE
COURT OR ITS OFFICERS SHOULD NOT
AMOUNT TO THE RENDERING OF
ADVISORY OPINIONS, LEGAL ADVICE OR
LEGAL ADVOCACY
According to the Court, as correctly pointed out by the OCAt, the confusion regarding the proposed
decentralization of the Information, Education and Communication (IEC) function to the municipal clerks of court stems from the failure of the MOA or the TAPs to adequately define the "legal information" which is supposed to be communicated.
In particular, the OCAt's concern that such "legal information" may amount to advisory opinions or the rendition of legal advice on the merits of a prospective litigant's case is well taken. In undertaking to provide "legal information" a clerk of court walks a fine line between the communication of basic court procedures and legal advocacy, which, if overstepped, opens the judiciary to accusations of bias and impropriety and threatens its impartiality and independence.
In Alfonso v. Juanson,[6] where a judge was charged with immorality and violation of the Code of Judicial Ethics, the Court speaking through Justice (now Chief Justice) Hilario G. Davide, Jr., held:
X x x.
. . . However, considering their prior special relationship, the respondent and Sol's meetings could reasonably incite suspicion of either its continuance or revival and the concomitant intimacies expressive of such relationship. In short, the respondent suddenly became indiscreet; he encumbered to the sweet memories of the past and he was unable to disappoint Sol who asked for his legal advice on a matter which involved her employment. Such indiscretions indubitably cast upon his conduct an appearance of impropriety. He thus violated Canon 3 of the Canons of Judicial Ethics which mandates that "[a] judge should avoid impropriety and the appearance of impropriety in all activities." It has been said that a magistrate of the law must comport himself at all times in such manner that his conduct, official or otherwise, can bear the most searching scrutiny of the public that looks up to him as the epitome of integrity and justice. (Dia-Añonuevo vs. Bercacio, 68 SCRA 81 [1975]). The ethical principles and sense of propriety of a judge are essential to the preservation of the faith of the people in the judiciary. (Candia vs. Tagabucba, 79 SCRA 51 [1977]).
X x x.
As it stands, while the MOA and TAPs speak of decentralizing the Information Education and Communication function of the judiciary, they provide neither clear guidelines on the nature of the "legal information" to be communicated to the public nor a procedure or process for the formulation of such guidelines.
As pointed out by the PIO, it is necessary that the Court provide specific standards of conduct with regard to the disclosure and publication of "legal information" in order to avoid even the appearance of impropriety and maintain the integrity of the judicial branch. Verily, the conduct required of court personnel must be beyond reproach and must always be free from suspicion that may taint the judiciary.
THE ROLE OF THE COURT AS THE
PROJECT’S EXECUTING AUTHORITY
AND IMPLEMENTING AGENCY, IN SO FAR
AS IT VESTS IT WITH ADMINISTRATIVE
SUPERVISION OVER OTHER
ADMINISTRATIVE OR QUASI-JUDICIAL
AGENCIES, VIOLATES SECTION 12, ARTICLE
VIII OF THE CONSTITUTION
However, per the Court, even if the "legal information" to be provided by the municipal clerks of court were adequately defined, the Project still suffered from a fatal constitutional defect insofar as the Court was designated as the Executing Authority and Implementing Agency for the Project.
It is readily apparent from the Project description and the end results envisioned that the Project did not merely involve the decentralization of the IEC function of the judiciary, but also involved several concurrent undertakings on the part of the DOJ the DILG the DSWD, and the CHR. Consequently, the problem arose whether the Court's participation violated the constitutional principle of separation of powers.
The PMO had apparently become aware of this problem, because in its Memorandum dated February 25, 2005 it proffered the clarification that the implementation of the Project would adhere to the constitutional parameters, respecting domains of the Executive and Legislative branch of the government, nonetheless, without compromising the integrity and independence of the Judiciary.
Unfortunately, per the Court, the provisions of the MOA and the TAPs belie the "clarification" of the PMO.
Under No. 3, Article II of the MOA, while the Partner Agencies (PAs) have "control over the production of outputs," the Court, as Executing Agency (EA) has the authority to withhold or order the suspension of payments to the PAs or "undertake proper and immediate steps to aptly resolve the subject matter" if it is not satisfied with the quality and progress of their work:
Further, Article III of the MOA provided that the Court as the EA shall have supervision and oversight over the PAs, and shall be accountable for the overall success of the Project to the EC.
Moreover, the TAPs contained other provisions imposing administrative duties on the Court.
The foregoing unquestionably vests the Court with administrative supervision, even control, over the other government agencies with respect to their undertakings under the Project. As such, they run afoul of Section 12, Article VIII of the Constitution:
X x x.
Sec. 12. The members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions.
In Manila Electric Co. v. Pasay Transportation Co., where the constitutionality of a statute requiring the members of the Supreme Court to sit as a board of arbitrators was assailed, this Court held:
X x x.
The Supreme Court of the Philippine Islands represents one of the three divisions of power in our government. It is judicial power and judicial power only which is exercised by the Supreme Court. Just as the Supreme Court, as the guardian of constitutional rights, should not sanction usurpations by any other department of the government, so should it as strictly confine its own sphere of influence to the powers expressly or by implication conferred on it by the Organic Act. The Supreme Court and its members should not and cannot be required to exercise any power or to perform any trust or to assume any duty not pertaining to or connected with the administering of judicial functions.
X x x.
In the last judicial paper from the pen of Chief Justice Taney, it was said:
"The power conferred on this court is exclusively judicial, and it cannot be required or authorized to exercise any other. ... Its jurisdiction and powers and duties being defined in the organic law of the government, and being all strictly judicial, Congress cannot require or authorize the court to exercise any other jurisdiction or power, or perform any other duty. . . . The award of execution is a part, and an essential part of every judgment passed by a court exercising judicial power. It is no judgment, in the legal sense of the term, without it. Without such an award the judgment would be inoperative and nugatory, leaving the aggrieved party without a remedy. It would be merely an opinion, which would remain a dead letter, and without any operation upon the rights of the parties, unless Congress should at some future time sanction it, and pass a law authorizing the court to carry its opinion into effect. Such is not the judicial power confided to this court, in the exercise of its appellate jurisdiction; yet it is the whole power that the court is allowed to exercise under this act of Congress. . . . And while it executes firmly all the judicial powers entrusted to it, the court will carefully abstain from exercising any power that is not strictly judicial in its character, and which is not clearly confided to it by the Constitution. . . ." (Gordon vs. United States [1864], 2 Wall., 561; 117 U.S., 697, Appendix.).
X x x.
Similarly, in In Re: Rodolfo U. Manzano, the Court held:
X x x.
Under the Constitution, the members of the Supreme Court and other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions (Section 12, Article VIII, Constitution).
Considering that membership of Judge Manzano in the Ilocos Norte Provincial Committee on Justice, which discharges administrative functions, will be in violation of the Constitution, the Court is constrained to deny his request.
X x x.
Former Chief Justice Enrique M. Fernando in his concurring opinion in the case of Garcia vs. Macaraig (39 SCRA 106 [1971]) ably sets forth:
X x x.
"2. While the doctrine of separation of powers is a relative theory not to be enforced with pedantic rigor, the practical demands of government precluding its doctrinaire application, it cannot justify a member of the judiciary being required to assume a position or perform a duty non-judicial in character. That is implicit in the principle. Otherwise there is a plain departure from its command. The essence of the trust reposed in him is to decide. Only a higher court, as was emphasized by Justice Barredo, can pass on his actuation. He is not a subordinate of an executive or legislative official, however eminent. It is indispensable that there be no exception to the rigidity of such a norm if he is, as expected, to be confined to the task of adjudication. Fidelity to his sworn responsibility no less than the maintenance of respect for the judiciary can be satisfied with nothing less."
X x x.
In like manner, per the Court, the Project, as structured, did not pass the test of constitutionality.
PROVISION OF ADDITIONAL SALARY
COMPLEMENT TO THE MCIOs FOR THE
DURATION OF THE PROJECT VIOLATES
SECTION 8, ARTICLE IX OF THE
CONSTITUTION
The total cost of the Project is estimated at 3,472,324 euro, of which the European Commission had committed to contribute 2,731,920 euro while the Philippine Government obligated itself to contribute 740,404 euro (364,900 euro in cash and 375,504 euro in kind).
An examination of the Project budget revealed that 103,500 euro (31,050 euro to come from the European Commission and 72,450 euro to come from the Philippine Government) had been allotted for the salaries of the municipal court information officers who are all Municipal Trial Court clerks of court. Hence, aside fromtheir regular salaries which they were receiving as clerks of court, those chosen to become information officers of the Project were also entitled to receive an additional salary. Furthermore, part of their additional compensation is funded by a foreign entity. This arrangement was clearly in violation of Section 8 of Article IX-B of the 1987 Constitution which provides:
X x x.
Sec. 8. No elective or appointive public officer or employee shall receive additional, double or indirect compensation, unless specifically authorized by law, nor accept without the consent of the Congress, any present, emolument, office, or title of any kind from any foreign government.
Pensions or gratuities shall be considered as additional, double or indirect compensation.
Moreover, as observed by the PIO, clerks of court are already duty-bound to "provide information services to the public and private agencies including bar associations" as part of their non-adjudicative functions.
Thus, effectively, the Government of the Philippines will be wasting precious resources, paying additionalfor services which are already compensation included as part of the duties of the municipal trial court clerks of court.
TRAINING AND EMPLOYMENT OF
PARALEGALS IN VARIOUS ASPECTS
OF THE PROJECT VIOLATES EXISTING
JURISPRUDENCE
According to the Court, the implementation of the Project relied heavily on paralegals as an essential component of the Project. Necessarily, these paralegals would engage in the practice of law which this Court in Cayetano v. Monsod, defined as "any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience." But the use of paralegals may be improper since under Philippine law, a person who has not been admitted as an attorney cannot practice law for the proper administration of justice cannot be hindered by the unwarranted intrusion of an unauthorized and unskilled person into the practice of law. As the OCAt astutely points out:
X x x.
The TAPS mentions the training of paralegals that shall be fielded in the implementation of the Project. Paralegals are not a common breed in this country. Although the Court has supported approval by the Commission on Higher Education of the proposal of the Manuel L. Quezon University to offer the course of Bachelor of Science in Paralegals, such support is circumscribed by the requirement that the course shall be a pre-law course. Authorizing the practice of paralegals in the country is still being studied by the Committee on Legal Education and Bar Matters because of the need to regulate their practice in much the same way that the practice of the members of the Integrated Bar of the Philippines is subject to the Court's rule-making authority.Parenthetically, if the Project were to be properly implemented, the participation of the IBP is necessary.
X x x.
In fine, the Court resolved to request the Department of Foreign Affairs to renegotiate the Financing Agreement signed between the European Commission and the Republic of the Philippines on "Improving the Governance to Reduce Poverty: Access to Justice for the Poor," particularly the "Technical and Administrative Provisions" or TAPS thereof, to limit the Supreme Court's participation in the Project, keep the same within the bounds of the Constitution and take into consideration existing laws, jurisprudence and issuances of the Court, including the New Code of Judicial Conduct for the Philippine Judiciary, the Code of Conduct for Personnel and the 2002 Revised Manual for Clerks of Court, specifically:
1. To relieve the Supreme Court of its responsibility as Executive or Implementing Agency for the entire Project,particularly of the provisions in the TAPs vesting the Court with administrative control or supervision over other government agencies with respect to the latter's undertakings under the Project; the functions and responsibilities of the Supreme Court being limited only to that which directly involve the Judicial Department of the government and its personnel.
2. To define the parameters and limitations of the "legal information" that may be disseminated by the municipal court information officers.
3. To delete provisions of the TAPs allotting or granting additional salary or compensation to the municipal court information officers.
4. To define the functions of the paralegals to prevent them from performing any activity which “requires the application law, of legal procedure, knowledge, training and experience” and which only attorneys-at-law may do.”
Digested By:
Atty. Manuel J. Laserna Jr.
Laserna Cueva Mercader Law Offices
Las Pinas City, Philippines
May 28, 2008
