Tuesday, July 18, 2017

The judiciary in a federal Philippines

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The judiciary in a federal Philippines
posted July 17, 2017 at 12:01 am by Fr. Ranhilio Aquino

Where you have two parallel political entities—the nation (or the Federal Republic) and the region (or the state)—then, as you have parallel legislatures and parallel executives, albeit subject to the supremacy rubric that must be inscribed into the Constitution, then it seems to follow as matter of necessity that there should also be parallel courts: regional courts and federal courts. But when we are reminded that there are many courts now over which no judges preside because the Bench is not too attractive to lawyers with high-paying and highly placed clients, then that does not seem like a very practicable proposal. The judiciary presently receives less than one percent, perhaps a little more, of the national budget. Many court houses are decrepit, and the salas of many courts do not inspire regard for the majesty of the law at all. It would be an ill-advised move to create another set of courts to compound the already existing problem.

But the question of state or regional courts is not only a matter of deciding cases and resolving disputes. It also has to do with checking state power and making available the necessary counter-weight within the state that the principle of checks and balances requires. 

The small claims courts must be separate courts—going by very simple rules that allow litigants to deal with their own cases pro se, by themselves. In this respect the simplified rules proposed by retired Justice Roberto Abad but apparently abandoned since his departure from the court should be helpful. The threshold of jurisdiction in civil cases should be increased so that these courts make a difference in the resolution of disputes that are not disposed of by mediation—whether court-annexed or voluntary. Our present first-level trial courts can very well be the courts of general jurisdiction for the region. In civil cases, they will take cognizance over all claims arising out of transactions, acts and relations within the region. In criminal cases, their jurisdiction is determined by the locus criminis… so that they pass judgment on the accused in crimes committed within the region. Even when resolving cases involving a common civil code, or a common penal code, or common corporation code (unless the region passes its own codes and is allowed to by the revised Constitution), there should be no need for another layer of courts to take cognizance over these “federal cases,” since the incorporation clause written into the charter of each region automatically makes the national codes also regional codes.

Our present Regional Trial Courts will have dual complexion, and this is not by any means unique. They are appellate courts in respect to judgments of what are now the First-Level Trial Courts that will be the region’s courts of general jurisdiction. But the present RTCs will also be federal courts when they try federal cases: contracts, transactions, deeds that cut across regions, or crimes the elements of which are committed in different regions, or that the national Congress defines as federal offenses.

To rid the Supreme Court of the multifarious cases that swamp and cripple it—particularly appeals from lower courts and quasi-judicial bodies, the Court of Appeals must be thoroughly regionalized, with such a court in every region. Once more, it will have a dual character: on the one hand, it will be the regional supreme court in relation to judgments rendered by the region’s courts of general jurisdiction, and already passed upon by the present RTCs sitting as appellate courts. But it will also be the court of appeals from the present RTCs sitting as federal courts of first instance. The regional court of appeals—siting as the region’s supreme court—has to be a collegiate court so that the benefits of collective deliberation and consensus are not missed. Only cases that raise a truly constitutional issue will be allowed, by certiorari to reach the Philippine Supreme Court, and it will be for the regional court of appeals to determine whether or not such a question does indeed arise, for lawyers are extremely clever at clothing neighborhood disputes over fallen fruit or pestilential dogs with the guise of constitutional issues bearing transcendental gravity!

Challenges to state action—such as allegations of invalidity or grave abuse of discretion—will be passed upon by the regional court of appeals sitting in exercise of federal jurisdiction, with review by the Philippine Supreme Court available only on very limited grounds. But challenges of intrusion into state prerogatives, or usurpation of national powers shall fall within the exclusive cognizance of the Philippine Supreme Court.

The matter of the Bar will be interesting—and challenging. In an earlier piece, I suggested that some regions might be empowered to enact their own codes, in an asymmetrical federation. This will mean that a special Bar will be accredited for such regions, very much like the present Sharia’h Bar, and that admission to practice in one region is now guarantee of admission to practice in others. But the problem of providing for interstate practice should not be unsurmountable. 

I return to one proposal I have consistently made. There should be a distinct article in the Constitution creating a Constitutional Court—distinct from the Philippine Supreme Court—whose sole jurisdiction is over disputes involving the three branches of government, such as the present stand-off between the Lower House and the Court of Appeals, on which a good mix of lawyers, jurists, political scientists and politicians­—including former presidents (as in the case of the French Constitutional Council) should sit, with absolutely no jurisdiction over civil and criminal matters. Truly a “political” court—in the sense that it resolves disputes having to do with the very structure of the body-politic but renders judgments in accordance with the Constitution and sound political theory!

This is a sketch of how things can be—and it may very well be the case that how things eventually turn out will be far distant from these preliminary musings. But in doing groundbreaking work like establishing a Federal Republic, I think that the travaux preparatoires should be sufficiently capacious to admit of all well-meant, well-intentioned, well-thought of proposals.


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