Whenever I review this 1997 investigative article of Sheila Coronel on the issue of judicial corruption, I try to persuade myself that, notwithstanding the evidence which tend to prove the veracity thereof, I still feel that the Philippine justice system is not a hopeless situation, so long as we have idealist, young and moral Filipino lawyers in out midst.
Justice to the Highest Bidder
by Sheila S. Coronel
Is Justice for Sale?
Abraham Sarmiento did not think so. But in 1991, when he was still a justice of the Supreme Court, an attorney on his staff was invited to lunch by a former law school classmate, Danilo Gutierrez, whose father Hugo was then a member of the high tribunal.
The lunch took place at a well-known seafood restaurant, and in the course of the meal, Sarmiento's assistant was asked whether P3 million was enough to sway her boss, who had been assigned to write the decision on the Banco Filipino case. The insolvent bank had been closed by the Central Bank (CB) in 1985, and it was contesting the closure in the high court, accusing then CB Governor Jose Fernandez of wanting to take over the bank himself.
The assistant was told she would not want for anything if she helped out, but Gutierrez never made clear in whose behalf he was making the offer. Sarmiento reported the incident to the court en banc. "The Court asked Hugo to find out from his son what had really transpired," he recounted. "The son said, 'Don't believe her, she's schizophrenic.' So this was relayed to the Court."
Sarmiento inhibited himself from the case because apart from that incident, he was also a neighbor of a member of the family that owned the bank. The Court, he said, never acted on his report as his assistant refused to execute an affidavit against a former classmate.
Banco Filipino won. Among those who voted in its favor was Gutierrez who, despite the incident involving his son, did not abstain from the discussions.
In the legal community, the Banco Filipino case is considered a landmark. The stakes in this case were exceptionally high, running up to billions of pesos. It was also among the first few instances when rumors of pay-offs to Supreme Court justices began circulating in both the bar and the bench.
Although most of the discussions took place during the term of Chief Justice Marcelo Fernan, the ruling on the Banco Filipino case was released just three days after Andres Narvasa was named the country's chief magistrate.
Five-and-a-half years later, Narvasa presides over a court whose reputation has sunk to its lowest in a decade. In January, the Makati Business Club asked the country's top executives to rate the performance of government agencies. They gave the Supreme Court a rating of minus 29.8 percent, just a few notches higher than transport and worse than telephone service. Ten years ago, in the euphoria that followed Edsa, the Supreme Court topped the same survey.
The high court's fall from grace is a story of how the influence of kin and cronies, the weakness of check-and-balance mechanisms, and the fallibility of officials can erode the credibility of institutions. It reveals the porousness of the structures and procedures that govern the Court, thereby allowing approaches to justices that have undermined the confidence of the legal and business communities in the judiciary.
In the last six months, dozens of lawyers, litigants, former Supreme Court justices and insiders in the current court interviewed for this article expressed profound frustration with the country's highest tribunal. It is, they like to joke, the "best supreme court that money can buy."
They paint the picture of a powerful institution prey to equally powerful temptations: As the economy grows and the stakes involved in legal disputes are higher than ever before, litigants are willing to pay a steep price for favorable decisions.
Narvasa strongly disagrees with this perception. "We know of no instance of what might be described as a 'venal or corrupt approach' to any member of the Court," he said in a recent letter in response to journalists' queries.
True, corruption charges are difficult to prove. The approaches to justices are said to be discreet and indirect, made largely through trusted relatives and intermediaries. Moreover, the rumor mill is constantly fed by stories from litigants and an executive branch engaged in a battle of wills with the Supreme Court, which has ruled against Malacaññang in landmark cases.
"I have no personal knowledge of anyone actually having been bought in the Supreme Court," said former Justice Florentino Feliciano, who retired in 1995. "When lawyers lose a case, the immediate reaction is that the judge has been bought."
But in interviews, litigants and lawyers described to us how, once high-stake cases are elevated to the Supreme Court, the parties involved maneuver behind the scenes to get access to the justices assigned in order to plead their case. While many of the justices, they said, cannot be approached or corrupted, some of them have allegedly accepted significant sums for favorable decisions.
Intermediaries -- former justices, relatives of current justices, well-positioned lawyers -- allegedly play a key role in these maneuvers by acting as channels for otherwise unapproachable magistrates. Our interviews have revealed the emergence of a network of brokers composed of well-connected individuals who offer to fix cases for a price.
"Some former justices and sons of justices can be retained to pursue cases," said Eduardo de los Angeles, former Philippine Stock Exchange president and senior partner in one of the country's biggest law firms, who balks at the practice. "You can tell your client or you can approach them directly yourself. Litigants continue with their lawyers and as an added facility, get some of these former justices to work incognito."
This informal network of fixers who can be approached by litigants means that while lawyers slug it out in court in big-league cases, an even more bruising battle is going on behind the scenes, as brokers try to influence justices on behalf of opposing parties. Lawyers say that the role of intermediaries is so important that often, it is a race between the parties on who gets to the most influential fixers ahead of his rival.
When former Quezon Rep. Bienvenido Marquez, for example, thought he would lose his case in the Supreme Court, he was advised by a friend, a Malacaññang official whom he declined to name, to seek the help of Gregorio "Ogie" Narvasa II, a lawyer who is also the chief justice's son.
The Malacaññang official claimed to be in the know about the Court, the former congressman recalled recently. "So I talked to Ogie," he recounted. "I said, whatever the terms, just tell me."
Ogie seemed interested, but two days later, said Marquez, he sent word through a common friend that he had to decline as his partner had already been hired by the congressman's rival, Quezon Governor Eduardo Rodriguez.
Asked why he decided to hire Narvasa's son, Marquez replied: "They're not good lawyers. They're just ordinary lawyers. But because his father is the chief justice, everybody approaches him."
Rodriguez apparently thought the same thing. Sources close to him say that the governor, through an intermediary, offered money so Ogie would intercede for him.
Ogie Narvasa admitted both parties approached him, but denied helping or receiving a fee from either one. It was not the first time, he said, that litigants had come to him. "All of them obviously want to win their case," he said. "They ask me what I can do. They present the problem to me. I tell them immediately, I can't do anything. I can't influence my father and I certainly cannot talk to the other justices."
"What has happened here is people have the perception that our courts can be paid," he added, "so what they do, to even the playing field, they come to see me first so that the other party cannot talk to me."
Lawyers say that the higher the stakes, the more determined the approaches to justices. When former Justice Jose C. Campos Jr. was assigned to pen the decision on the "Beer na Beer" case, he was hounded by several friends he had not seen in decades, all of them interceding on behalf of tycoon Lucio Tan.
In 1988, San Miguel Corp. sued Tan's Asia Brewery Inc. for copying the size, shape and color of its famous beer bottle. In 1990, the case went to the Court of Appeals. It was raffled to Campos, who was asked to rule on whether Tan's firm was guilty of unfair competition and of infringing on San Miguel's trademark.
"What puzzled me was this," Campos recalled recently. "I have very few Chinese friends and they do not know Lucio Tan. Suddenly, one of them called me and he said Lucio Tan was in his house." The tycoon, his friend was told, wanted to meet with the justice.
Well known for his independence and outspokenness, Campos refused. Later, Tan sent word through the justice's friend that he had already spoken to the two other justices who made up the division and they had agreed to decide in the tycoon's favor.
"I was the only one who had not been talked to, and he was willing to give me double of what he gave the other two," said Campos. The two justices had been offered the equivalent of their retirement pay or roughly P2.5 million each, he said.
Antonio Ocampo, in-house counsel for Asia Brewery, denied knowledge of this incident. "If there was such an offer, either real or imagined, it didn't come from us, it was not authorized, not solicited," he said.
Eduardo Ceniza, who lawyered for Asia Brewery in the case, added, "Everybody knows Justice Campos cannot be bought. Everyone on our side knew that, so why even make an attempt?"
Campos decided against Asia Brewery and two other justices of the five-member division he headed voted with him. Months later, he was promoted to the Supreme Court, which eventually reversed his decision. Narvasa denies there was ever pressure on high court justices. But, said Campos: "They waited until I retired." The decision was dated July 5, 1993. Campos had retired three months earlier, on April 13.
"If Asia Brewery lost this case, this would have been the end for them," said Lorna Patajo-Kapunan, San Miguel's lawyer. "They would have to close their whole production line, destroy all the bottles, the molds and all their advertising materials and start from scratch."
Even at the trial court, she said, a bidding war was already taking place. She recalled being approached by a person who claimed to have been sent by the judge assigned to the case. The judge would decide in San Miguel's favor if the company gave him P3 million, the emissary said. San Miguel refused to pay, and it lost the case.
But many times, the approaches to justices do not involve money, lawyers whom we have interviewed said. As justices have heavy caseloads, litigants approach them merely to plead that their motions or briefs be read.
Not all justices, however, can be approached. When they were in the Supreme Court, former Justices Florentino Feliciano and Isagani Cruz recalled, there were always lawyers or litigants trying to see them. "A great deal depends on the individual justice involved," said Feliciano. "I do not allow lawyers to discuss cases. The only people allowed in our chambers are members of the Court or my own lawyers."
In the Quezon election case, both Marquez and his arch-rival, Rodriguez, were actively lobbying with the Court. They also accuse each other of paying off justices.
When Rodriguez was seeking a third term as Quezon governor in 1995, Marquez tried to unseat him by charging that he was a fugitive from justice and therefore banned by the Local Government Code from public office. In April 1995, the Supreme Court defined what a fugitive was and asked the Commission on Elections to determine whether Rodriguez was one.
At this point, Rodriguez said, he was confident of winning. Although he was accused of faking the deaths of his wife and mother-in-law and then collecting on their insurance, the Court limited the definition to those who flee after being charged or convicted. The governor left the US before he was charged, so did not fall under that definition.
The Rodriguez camp believes it was Marquez who approached some of the justices first. But when it seemed that the Court could reconsider its position, the Rodriguez side began to lobby with individual justices.
"In the beginning, we were not concerned with the maneuvers because we thought we would win," said someone close to Rodriguez. "But when Rodriguez thought the other side was maneuvering, he wanted to move also."
Sometime in 1995, the governor, these sources said, was approached by Evener Villasanta, a lawyer who is the chief justice's godson and golf crony. When Marquez found out, he phoned Villasanta, who was a distant relative. "I told him not to interfere in my case because I heard that he was being approached and that Rodriguez was seen in a hotel talking to him by some of my friends."
Villasanta said he was consulted by both parties on the legal issues of the case, but didn't intercede for them. Marquez, he said, approached him first. "He was the one who pleaded with me," said the lawyer. "Sabi niya,' Primo, ako ang tulungan mo, ako ang kamag-anak mo (He said, 'Cousin, help me, I'm the one who's related to you)'."
On June 5, 1996, while the case was still pending, Marquez ran into Narvasa and Villasanta waiting for their flight to Hong Kong in the Philippine Airlines first-class lounge at the Manila airport.
Immigration records show that both the chief justice and the lawyer were on the same flight to and from Hong Kong. Rodriguez said he had arranged for Hopewell, a Hong Kong company with big investments in Quezon, to pick up the tab for rounds of golf which the two men played in the Crown Colony.
Behind the scenes, the battle heated up. In one instance, a Rodriguez aide was
talking to one justice when lobbyists for Marquez were shown into the room. The aide had to hide behind the curtains, said sources close to Rodriguez.
In July 1996, the Supreme Court ruled that the governor was not a fugitive from justice. Rodriguez won by one vote. "If we didn't maneuver, we would have lost," said someone close to the governor. "Marquez was outbidded."
But despite the golf games and the approaches through his son and close friend, Narvasa voted against Rodriguez, a fact which the governor resents, those close to him say. Marquez is bitter as well. Although the chief justice voted in his favor, Marquez claimed that Narvasa actually supported his opponent by delaying the release of the decision until there was a majority vote for the governor.
"To them, it's a continuation of politics," said Saguisag, who appeared briefly for Rodriguez in the Supreme Court. "It's gamesmanship. That is their culture. Nobody loses sleep over it. Each side was committed to do what has to be done. This is a good case of how justice is administered in this country."
THE phone rang at an office in Makati and the senior partner of a big law firm took the call.
At the other end of the line was the head of one of the Philippines' biggest business houses. He was worried about how the Supreme Court was going to decide on the fate of one of his companies, where a big bloc of shares had been sequestered by the government and was now being contested by a determined rival.
The phone call came while this journalist was interviewing the lawyer.
"I thought we had talked with those justices already," the businessman said.
His lawyer replied: "But the other side is talking to them as well. What can we do?"
What was at stake was the future of a company that was worth several hundred million pesos. The controversy had dragged on for years, with the Court reversing itself, depending, the parties suspected, on who was paying some of the justices.
By now, the lawyer was blaséé about the whole thing. "If the stakes are high and you think the other party is maneuvering, you have to even the playing field for your client," he said. "You have to pay the price."
This lawyer is not alone. All around Makati these days, lawyers and businessmen talk about the steep price of justice in the Supreme Court.
But corruption is not the only issue. Lawyers cite the Court's heavy workload, its seeming incompetence and lack of brilliant legal minds. All these, they say, combine to make a Court where laws and procedures are applied helter-skelter. They accuse Andres Narvasa, who has been chief justice since 1991, of failing to lead the tribunal toward any discernible direction or coherent philosophy.
"It's almost whimsical," said lawyer Ricardo Romulo, chairman of the Makati Business Club and head of one of the country's biggest and most respected law firms. "They seem to go every which way and I put the blame on what I discern is a lack of a consistent philosophy underlying their decisions."
Precedents, on which the entire system of law is based, are overturned with enough frequency to confound the legal profession, some of the country's top lawyers say.
"The legal system is no longer predictable and stable," said law professor and practitioner Haydee Yorac, who once served as election commissioner. "Corruption aside, there has been no effort to establish a systematic order. I have nothing against the Supreme Court overturning established decisions, nothing against reversing precedents perceived to be wrong or against the Constitution. But in most instances, they don't even cite any basis for doing so."
Narvasa brushes aside these criticisms. It is not a question of philosophy, he said in an interview, merely a matter of applying the law. In the Philippines, unlike in the United States, where "there is greater latitude in the exercise of judicial function," he explained, "what is expected of a justice is to determine what the facts are in a particular case and to apply the law to those facts... regardless of your personal feeling or your own personal philosophy."
But some lawyers charge that decisions are sometimes tailor-made for well-connected litigants - even if they are contrary to well-established precedents and wreak havoc on the conduct of law and business, both of which rely on the predictability of rules.
"The problem for us lawyers is that the Supreme Court has now become unpredictable," said Eduardo de los Angeles, senior partner in a major Makati law firm. "Our practice was to give advice on the basis of precedent, but here we now have a situation where you can't rely on precedents. There are times the Court cites precedents only to find reasons why these are not applicable."
Such unpredictability comes at a time of economic liberalization and growth and the stakes involved in business disputes are gargantuan. In recent years, the Court has been asked to resolve disputes on land, taxes, sequestered companies, patents and intellectual property, where the amounts involved reach billions.
But the Court has failed to rule with coherence and clarity on these disputes. In December 1995, for example, it decided against the US manufacturer of Lee jeans which sued a local garments firm using the Lee trademark. Emerald Garments, the local firm, had been sewing an almost exact replica of the Lee logo on its jeans, except that it added the words "Mr. Stylistic" in small print.
By deciding in favor of Emerald Garments, the Supreme Court overturned some two dozen precedents on the infringement of trademarks. It also went against the Philippines' international commitments to honor intellectual property rights.
"That was a crazy decision," said lawyer and former Senator Rene A. V. Saguisag. "I saw the logos and there really is a confusion in the public mind. It set a very bad precedent from the standpoint of law, public opinion and our international standing."
In another case involving the sale of a large tract of land in Pasig to National Bookstore, the Supreme Court's Third Division chaired by now retired Justice Florentino Feliciano unanimously ruled in favor of Lim Ket Kai, the original buyer of the property.
Two weeks after that decision was made, the Third Division was reorganized, with Narvasa as the new chairman and two other justices as new members. A month after the reorganization, the new division cited the Lim Ket Kai case as a precedent in a decision on the First Philippine International Bank case.
But two months afterward, in March 1996, the division reversed itself. It set aside the first Lim Ket Kai decision and ruled in favor of National Bookstore.
There are similar flip-flops in sequestration cases. In January 1995, Narvasa penned an omnibus decision involving dozens of sequestered companies, which said that the government's failure to file cases against each of the sequestered firms within the six-month deadline set by the Constitution does not nullify their sequestration.
But in March 1996, the Third Division chaired by Narvasa lifted the sequestration on two companies owned by Lucio Tan - Sipalay Trading Corp. and Allied Bank - on the grounds that the government had failed to file charges against them within the timetable prescribed by the Constitution.
Saying that there was a "hairline, but critical distinction" in this case, the division argued that, unlike in other sequestered companies, the government had no evidence with which to file charges against the two Tan firms.
"Frankly, I'm confused," said Katz Tierra, who has been practicing law for 30 years and is a partner in an Ortigas Center law firm. "It's rather scary. You would think, all right, this is the doctrine now, and then you read another decision and it seeks to distinguish and you can't quite grasp the distinction. So you get scared. It gets to be there are so many distinctions, it's no longer clear."
These charges come at a time when the Supreme Court has never been as powerful, a consequence in part of a provision in the 1987 Constitution which expanded the high tribunal's power to review cases.
This provision was put into the Constitution by jurists like former Supreme Court chief justice Roberto Concepcion who saw how Marcos controlled the court during martial law and so envisioned a powerful tribunal that could check the excesses of an abusive executive.
The Supreme Court has the leeway to set its own procedural rules which, some lawyers say, makes it easier for some justices to revise the procedures to suit favored litigants.
At the same time, the high tribunal's own power remains virtually unchecked: Lawyers are wary about reporting ethical lapses for fear of repercussions against their clients. The only check is the impeachment by Congress of individual justices, a long and tedious process which legal experts say is almost impossible to see through.
The 1987 Constitution also gave the Supreme Court the choice of sitting in divisions of three, five or seven members each. The Court is at presently divided into three divisions, each composed of five justices. A division can issue a decision with a majority of three justices voting in favor. This can be a formula for confusion.
"Sometimes, the divisions don't talk to each other," said Father Joaquin Bernas, former Ateneo president and member of the 1987 constitutional commission. "One principle may be asserted with one division and the opposite by another division."
In November 1993, for example, the Third Division ruled in the case of Philippine Duplicators, Inc. that commissions form part of the salaries of salesmen and should therefore be used in computing their 13th month pay. But one month later, the Second Division ruled the exact opposite in the cases of Boie-Takeda Chemicals and Philippine Fuji Xerox Corp: Commissions are not part of the basic salary and should be excluded from 13th month pay computations.
Apart from addling the public, lawyers and litigants say the division system makes the Court easier to manipulate. Most times, an enterprising litigant has only to approach three justices to ensure his victory.
But the process is a complex one. It first of all involves obtaining information on the Court -- to which division a case will be assigned and the identity of the ponente or writer of the decision. Cases are raffled to any of the divisions, which then assign the ponente, also by raffle. Some cases, especially those which involve the modification or reversal of precedents, are elevated to the court en banc, which means that all 15 justices have to vote on it.
The assignment of divisions is a matter of public record, but the identity of the ponente is kept confidential. "A few lawyers try to find out who's the ponente," said Tierra. Once they obtain that information, their "first question is 'Can I talk to this guy?' If it is guys like (Justice Teodoro) Padilla, (Hilario) Davide, or (Florenz) Regalado, then that 's it. It ends there."
The ponente is crucial. Most times, individual justices make up their minds based on the presentation of the writer of the decision. Given the load of each justice (over 300 cases each) and of each division (some 1,500 for all five justices), the members of a division cannot be expected to study carefully all the cases they are asked to decide.
"You study the 300 cases assigned to you," said former Justice Feliciano "and then hope that each one does the same thing for their cases." Sometimes, he added, unless they are assigned to be the ponente, justices cannot read all the motions and pleadings in each case.
In many cases, the majority of justices go with the ponente's arguments for or against a case. The first step, then, is to get the ponente's identity. Although this is secret, lawyers say some Supreme Court personnel sell the information for something like P2, 000. Once the ponente is known, the approaches begin.
This is why many big law offices have a two-track practice: one track to line up the legal arguments in the case and the other to lobby with members of the Court. "The key is to get the ponente," said Saguisag. "Some law offices would look for a connection - a former law school classmate, a kumpadre, a former justice, or a former associate in the law firm where the justice used to work... The game is to look for the katapat, the one whom the justice cannot refuse. In a transactional society, the katapat has some ascendancy."
One medium-sized company, for example, put a retired justice on its retainer so he could arrange access to Supreme Court justices. "The company gives him an initial fee of P50, 000 and after he contacts the ponente justice, our petition which is initially denied and practically a dead horse, at first impossible to revive, is suddenly given due course," the company lawyer confided in a 1995 letter to Saguisag. A separate payment was arranged for the justice, but the lawyer was not privy to the amount.
One businessman we interviewed believes he lost his case involving property worth hundreds of millions because he did not approach any of the justices. By the time he realized that his opponent was lobbying with the members of the Court, the decision had already been written.
The businessman tried to make his own approaches while his motion for reconsideration was pending before the Court. But he was told by several intermediaries, including the sons of a senior Supreme Court justice, that it was too late to change the justices' minds about the case as they were already committed to his opponent. The businessman got as far as talking to the ponente. Later, through an intermediary, he offered several millions for a favorable decision. The ponente appeared interested, the businessman said, especially as the offer was doubled and tripled in the course of the transaction. But in the end, the justice
turned it down.
"We've learned our lesson," said the businessman. "It's a bidding war. It's a business. It's a question of how much the property is worth to you, how much you're willing to pay... We were caught off guard. We should have bribed in the beginning. Unahan na lang."
But while businessmen can charge pay-offs as part of the cost of doing business, many lawyers are aghast. "We're very frustrated, we're helpless," said a senior lawyer in a Makati law firm. "We don't know what more to do. You can't rest if you have a case because your opponent may be maneuvering. Our ethical and moral dilemma is, you can't sit back while your client tells you, 'You must do something.' But what can you do that's ethical and moral? Our cop-out is, we tell the client, 'Do what you think you have to do.'"
WHEN Andres Narvasa was named chief justice of the Supreme Court in late 1991, a banquet was held in his honor at the ritzy Greenhills residence of a well-known businessman and restaurateur to whom he was related by marriage.
Hundreds of guests were invited. On one side of the sprawling lawn were the judges, justices and lawyers. On the other side, set apart by the swimming pool, were prominent businessmen and their wives, many of them Chinese-Filipino. The party, said one of the guests, former Supreme Court justice Jose Campos, "was an omen of things to come."
A practicing attorney for over 30 years before his appointment to the Court, Narvasa, those who know him say, is a sociable man who is seen enjoying himself at parties, playing golf with a retinue of lawyers and judges, and on occasion, dining with some of Manila's most controversial personages.
Just a generation ago, Supreme Court justices were never seen in parties, hotel lobbies or restaurants where they may run into litigants or lawyers with pending cases. The idea, enshrined in the Code of Judicial Conduct, is that magistrates should "avoid impropriety and the appearance of impropriety in all activities."
The chief, however, seems to love the company of lawyers and his big, sociable clan. In recent years, his social activities have raised eyebrows in legal circles. But what has caused greater unease is his association with relatives and friends who are believed to be lobbying with the Court.
Narvasa's brother-in-law, lawyer Joaquin "Bobby" Yuseco, has been accused in a complaint filed in the Supreme Court of approaching justices on behalf of litigants. The chief's son, Gregorio II or Ogie, who has set up a law practice that senior lawyers say is far more profitable than could be explained by his otherwise average abilities, is also alleged to be approaching judges and justices on behalf of clients.
In addition, the chief's friendship with Evener Villasanta, a lawyer with Agcaoili & Associates who plays golf and travels regularly with Narvasa, is talked about in legal circles. In Manila's lawyering community, which is incestuous and tightly knit, Villasanta has gained a reputation as a conduit to the chief.
Although he is employed by a major law firm and is known as a competent lawyer, Villasanta is said to do business on his own, most times at the Manila Peninsula Hotel in Makati where he hangs out regularly. A former president of the Philippine Bar Association, he was named by the Supreme Court bar examiner for legal and judicial ethics in 1995, to the chagrin of Makati lawyers.
Villasanta was not shy about admitting his closeness to Narvasa. "He was my ninong, everybody knows that," he said. "There are few people whom he trusts ... I'm like a member of the family." Theirs, he said, is a decade-old friendship, which began when, as head of the Judiciary Sports Club, he was organizing tournaments for justices and asked Narvasa, an avid tennis player and golfer, to join them.
But the lawyer denied interceding for litigants in the Court. "I play tennis and golf with other justices like (Jose) Melo and Art (Panganiban)," he said. "Some of them are my kumpadre... But it doesn't mean that because you're a personal friend of a justice you can influence his judgment in the Supreme Court."
Narvasa seems to show little discomfort in this state of affairs. "Relatives, friends, some politicians do occasionally presume to talk to us about pending cases," he said, "but the invariable response is a noncommittal, 'We'll see or we'll look into it,' or some such vague remark, where they are not bluntly rebuffed."
But, he assured, "all cases are decided objectively, without any extraneous consideration whatsoever, whether it be family relation, past personal, business, professional, or other association, or otherwise."
Narvasa's behavior has disappointed those who remember the chief justice in the heady days after the Aquino assassination when he had acquired a gilt-edged reputation as the uncompromising general counsel of the fact-finding board assigned to investigate the killing. In that role, he set out the strategy for the inquiry and pieced together an account of the murder on which the board's majority report was based.
President Corazon Aquino named Narvasa to the Supreme Court in April 1986. Taking the counsel of her advisers, mainly human rights lawyers who fought the dictatorship, she tried to restore the respectability of the Court by weeding out Marcos flunkies and naming new justices.
Today, Narvasa heads a tarnished tribunal. In March, Eduardo R. Ceniza, senior partner and head of litigation in the country's biggest law firm, Sycip, Salazar, Hernandez and Gatmaytan, wrote a letter to the chief justice. "In my 37 years of practice I have never seen the image of the Supreme Court and the court system sink to such levels in the eyes of the business community," he said.
A lawyer for a major law firm points the finger at the chief. "The problem is that this Court, more than any other court, has no leadership. The chief justice has been unable to lead the Court," he said. "He wields the power of the purse, he gives the justices all their allowances, their per diems, etc. There can be no perks to the justices if he doesn't agree. The office of the judicial administrator is also under his control, so in the assignment of assistants, researchers, etc., he also has a say. But with all these, why can't the chief justice lead? He has no moral authority because his colleagues suspect him of doing all sorts of things. And vice-versa, he suspects his colleagues of all sorts of things."
The dominant view in the legal community is that corruption began with martial law, when the judiciary, particularly the Supreme Court, was forced by Marcos into subservience. With Marcos gone, many thought that the legal system would be reformed. But they were disappointed.
Today the interference comes from business interests which stand to lose billions in disputes being brought before the Court. In addition, Malacaññang has also tried to pressure the Court in economic and political cases in which the Ramos administration has high stakes.
Ideally the Supreme Court should be able to insulate itself from business and political interests. But, said Senator Juan Ponce Enrile, who heads a Makati law firm: "The impression is still that decisions could be bought either because of material things or because of friendship or because of power...The Supreme Court has lost the element of being an independent arbiter of rights."
Critics put the blame partly on the appointment process. The Judicial and Bar Council picks out the candidates for justices, and the President makes the appointments based on its list. Malacaññang's choices, however, have been less than inspired, with the premium placed on the potential malleability of appointees rather than on their integrity or brilliance, many in the legal profession say.
"The present composition does not make for an intellectual court," said respected lawyer and law professor Haydee Yorac.
But even the Palace has become frustrated with the Court, which has decided against the government in cases like the tax evasion suit filed against Lucio Tan, the sale of the Manila Hotel to a Malaysian company and the signature campaign to amend the Constitution.
In 1993, the Palace ordered the National Bureau of Investigation (NBI) to conduct a secret probe on the Court. "Prominent lawyers admitted to me that they actually paid off," said the senior NBI official assigned to the case. But apart from what the lawyers reported, he found no solid evidence of corruption.
The Palace, said a senior Malacaññang official, conducted another probe in 1995, when Narvasa was accused of delaying the release of a decision banning the resumption of jai-alai to favor his eldest son, Andres Jr., who ran the jai-alai restaurant. The chief justice was also seen dining with controversial businessman Sy Pio Lato, the jai-alai franchise holder, while the Court was deliberating on the case.
In an interview, Narvasa said the meeting took place at the retirement party of his cousin. "There were hundreds of people there," said the chief, but he was put in the same table as Sy, who was also a guest.
When the Court ruled on the case, Narvasa inhibited himself but he did not release the decision immediately. He cited a constitutional provision saying that all decisions taken by the court en banc should be signed by every member who took part in the deliberations. One of the justices was then ill and could not sign.
Later, however, lawyers in an impeachment case filed against Narvasa were able to dig up 72 decisions made by the Court which were not signed by all the justices.
While the whiff of scandal wafted over the Court, Malacaññang offered Narvasa a graceful exit: resign from the tribunal and take up any position in government he chooses. But, said a Palace official, the chief justice refused.
"I think there is a campaign to persuade the chief to leave the Court," said retired Justice Isagani Cruz, to whom Narvasa had confided the offer. "It was an attempt to ease him out and put somebody else."
But Narvasa is digging in, displaying the same defiance of Malacaññang that won him so much praise during the Marcos era. In some cases, such defiance was lauded and seen as a valiant effort to stop Ramos supporters from monkeying around with the Constitution.
Unfortunately, the charges of corruption make the Court vulnerable to pressure. Narvasa's seeming imperviousness to the damage that has been done on the Court's image has also frustrated the legal community,
Neither has Narvasa done enough to clean up the lower courts, over which the Supreme Court has administrative supervision, lawyers say. "As far as we have seen," said Eduardo de los Angeles, a prominent Makati lawyer, "the chief justice has not taken any concrete steps to reform the judiciary."
In 1993, responding to widespread accusations, including those from Vice-President Joseph Estrada, about "hoodlums in robes," the Supreme Court created a committee composed of Narvasa and two retired justices to look into the allegations.
"We won't spare anyone, no matter who gets hurt," the chief justice vowed then. "We won't hesitate to let the hammer fall." The committee worked for two months, spoke to over 70 witnesses and came out with a report that was widely criticized in the press as a whitewash. It recommended the investigation and filing of complaints against a few judges in Makati but refused to entertain complaints against Supreme Court justices because they were "nothing but gossip."
Narvasa chaired the committee, even if, among the complaints it investigated, was an anonymous paper which accused him and his kin and cronies of corruption.
The committee also exonerated Justice Hugo Gutierrez who had been accused of passing off as his own a decision supposedly written by the lawyer of the Philippine Long Distance Telephone Co., a party to the lawsuit he was deciding. Even before the investigation, Narvasa had already cleared Gutierrez of any culpability. In an interview, he admitted that he even tried to dissuade the justice from resigning.
Responding to the public dissatisfaction with the report, 11 lawyers representing the country's top law associations wrote to Narvasa, asking the Supreme Court to create an independent commission to investigate cases against incompetent and corrupt jurists. The suggestion was ignored.
Four years later, most of the Makati judges probed by the Narvasa committee are back in trial courts, though not in Makati. One judge who was investigated was even promoted.
Meanwhile, the one and only formal complaint filed against a justice directly to the Supreme Court has been consigned to oblivion. In 1993, lawyers Ricardo Romulo and Eduardo de los Angeles filed a letter-complaint against Supreme Court Justice Rodolfo Nocon, Court of Appeals Justice Manuel Herrera and lawyer Bobby Yuseco, Narvasa's brother-in-law.
The lawyers presented documents showing that, as presiding justice of the Court of Appeals, Nocon, upon Yuseco's request, agreed to forego the raffle of a case involving a multi-million-peso real estate transaction and assign it to Herrera. The assignment of cases other than by raffle is highly irregular and violates the internal rules of the Court of Appeals.
The complaint was treated by the Supreme Court as an administrative charge, which to this day has not been heard. In November 1996, a decision was issued on the real estate case, with the majority of the justices ruling against the company whose lawyers dared challenge a Supreme Court justice.
The high court's decision was based largely on the controversial ruling made by the Court of Appeals. Among the key pieces of evidence cited in both rulings was a letter from one of the parties. The two decisions omitted from the letter a crucial paragraph that would have cast doubt on the soundness of the rulings.
Seventeen years after the case was first filed at the Manila trial court, the value of the disputed property has gone up to over P400 million. But both the appellate and high courts had ruled that it be sold to the winning party for P11.3 million, the price of the property in 1978.
In the meantime, Nocon had retired. Among the last few rulings he penned was on a land dispute in which he decided against the family of one of the lawyers who filed the administrative complaint.
The lawyer filed a motion for reconsideration and tried to get Nocon to inhibit himself from the case, which had been languishing in the Court for years when it was finally decided. But the Second Division headed by Narvasa did not act on the motion to inhibit Nocon, saying that the papers pertaining to the inhibition had been misplaced. By the time the papers were found, the Division had already turned down the motion for reconsideration.
(First published in Manila Times, BusinessWorld, Sun Star Daily, May 21-23, 1997; Manila Chronicle, May 21, 1997)
See: http://www.tag.org.ph/investigativereports/archive7/default.htm
I am not a pro bono lawyer. See the PAO or IBP chapter near you for free legal aid.
Saturday, October 25, 2008
Judging the judges
On 11 September 2001, the Supreme Court promulgated A. M. No. 01-8-10-SC amending Rule 140 of the Rules of Court on the discipline of justices and judges.
Proceedings for the discipline of judges of regular and special courts and Justices of the Court of Appeals and the Sandiganbayan may be instituted motu propio by the Supreme Court or upon a verified complaint, supported by affidavits of person who have personal knowledge of the facts alleged therein or by documents which may substantiate said allegations, or upon an anonymous complaint, supported by public records of indubitable integrity.
Upon the filing of the respondent’s comment, or upon the expiration of the time for filing the same and unless other pleadings or documents are required, the Court shall refer the matter to the Office of the Court Administrator for evaluation, report, and recommendation or assign the case for investigation, report, and recommendation to a retired member of the Supreme Court, if the respondent is a Justice of the Court of Appeals and the Sandiganbayan, or to a Justice of the Court of Appeals, if the respondent is a Judge of a Regional Trial Court or of a special court of equivalent rank, or to a Judge of the Regional Trial Court if the respondent is a Judge of an inferior court.
The Investigating Justice or Judge shall terminate the investigation within ninety (90) days from the date of its commencement or within such extension as the Supreme Court may grant.
Within thirty (30) days from the termination of the investigation, the investigating Justice or Judge shall submit to the Supreme Court a report containing findings of fact and recommendation. The report shall be accompanied by the record containing the evidence and the pleadings filed by the parties. The report shall be confidential and shall be for the exclusive use of the Court.
Administrative charges are classified as serious, less serious, or light. Serious charges include:
1. Bribery, direct or indirect;
2. Dishonesty and violations of the Anti-Graft and Corrupt Practices Law (R.A. No. 3019);
3. Gross misconduct constituting violations of the Code of Judicial Conduct;
4. Knowingly rendering an unjust judgment or order as determined by a competent court in an appropriate proceeding;
5. Conviction of a crime involving moral turpitude;
6. Willful failure to pay a just debt;
7. Borrowing money or property from lawyers and litigants in a case pending before the court;
8. Immorality;
9. Gross ignorance of the law or procedure;
10. Partisan political activities; and
11. Alcoholism and/or vicious habits.
Less serious charges include:
1. Undue delay in rendering a decision or order, or in transmitting the records of a case;
2. Frequently and unjustified absences without leave or habitual tardiness;
3. Unauthorized practice of law;
4. Violation of Supreme Court rules, directives, and circulars;
5. Receiving additional or double compensation unless specifically authorized by law;
6. Untruthful statements in the certificate of service; and
7. Simple Misconduct.
Light charges include:
1. Vulgar and unbecoming conduct;
2. Gambling in public;
3. Fraternizing with lawyers and litigants with pending case/cases in his court; and
4. Undue delay in the submission of monthly reports.
If the respondent is guilty of a serious charge, any of the following sanctions may be imposed:
1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government-owned or controlled corporations. Provided, however, that the forfeiture of benefits shall in no case include accrued leave credits;
2. Suspension from office without salary and other benefits for more than three (3) but not exceeding six (6) months; or
3. A fine of more than P20, 000.00 but not exceeding P40, 000.00
If the respondent is guilty of a less serious charge, any of the following sanctions shall be imposed:
1. Suspension from office without salary and other benefits for not less than one (1) nor more than three (3) months; or
2. A fine of more than P10, 000.00 but not exceeding P20, 000.00.
If the respondent is guilty of a light charge, any of the following sanctions shall be imposed:
1. A fine of not less than P1, 000.00 but not exceeding P10, 000.00 and/or
2. Censure;
3. Reprimand;
4. Admonition with warning.
Proceedings against Judges of regular and special courts and Justices of the Court of Appeals and the Sandiganbayan shall be private and confidential.
Proceedings for the discipline of judges of regular and special courts and Justices of the Court of Appeals and the Sandiganbayan may be instituted motu propio by the Supreme Court or upon a verified complaint, supported by affidavits of person who have personal knowledge of the facts alleged therein or by documents which may substantiate said allegations, or upon an anonymous complaint, supported by public records of indubitable integrity.
Upon the filing of the respondent’s comment, or upon the expiration of the time for filing the same and unless other pleadings or documents are required, the Court shall refer the matter to the Office of the Court Administrator for evaluation, report, and recommendation or assign the case for investigation, report, and recommendation to a retired member of the Supreme Court, if the respondent is a Justice of the Court of Appeals and the Sandiganbayan, or to a Justice of the Court of Appeals, if the respondent is a Judge of a Regional Trial Court or of a special court of equivalent rank, or to a Judge of the Regional Trial Court if the respondent is a Judge of an inferior court.
The Investigating Justice or Judge shall terminate the investigation within ninety (90) days from the date of its commencement or within such extension as the Supreme Court may grant.
Within thirty (30) days from the termination of the investigation, the investigating Justice or Judge shall submit to the Supreme Court a report containing findings of fact and recommendation. The report shall be accompanied by the record containing the evidence and the pleadings filed by the parties. The report shall be confidential and shall be for the exclusive use of the Court.
Administrative charges are classified as serious, less serious, or light. Serious charges include:
1. Bribery, direct or indirect;
2. Dishonesty and violations of the Anti-Graft and Corrupt Practices Law (R.A. No. 3019);
3. Gross misconduct constituting violations of the Code of Judicial Conduct;
4. Knowingly rendering an unjust judgment or order as determined by a competent court in an appropriate proceeding;
5. Conviction of a crime involving moral turpitude;
6. Willful failure to pay a just debt;
7. Borrowing money or property from lawyers and litigants in a case pending before the court;
8. Immorality;
9. Gross ignorance of the law or procedure;
10. Partisan political activities; and
11. Alcoholism and/or vicious habits.
Less serious charges include:
1. Undue delay in rendering a decision or order, or in transmitting the records of a case;
2. Frequently and unjustified absences without leave or habitual tardiness;
3. Unauthorized practice of law;
4. Violation of Supreme Court rules, directives, and circulars;
5. Receiving additional or double compensation unless specifically authorized by law;
6. Untruthful statements in the certificate of service; and
7. Simple Misconduct.
Light charges include:
1. Vulgar and unbecoming conduct;
2. Gambling in public;
3. Fraternizing with lawyers and litigants with pending case/cases in his court; and
4. Undue delay in the submission of monthly reports.
If the respondent is guilty of a serious charge, any of the following sanctions may be imposed:
1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government-owned or controlled corporations. Provided, however, that the forfeiture of benefits shall in no case include accrued leave credits;
2. Suspension from office without salary and other benefits for more than three (3) but not exceeding six (6) months; or
3. A fine of more than P20, 000.00 but not exceeding P40, 000.00
If the respondent is guilty of a less serious charge, any of the following sanctions shall be imposed:
1. Suspension from office without salary and other benefits for not less than one (1) nor more than three (3) months; or
2. A fine of more than P10, 000.00 but not exceeding P20, 000.00.
If the respondent is guilty of a light charge, any of the following sanctions shall be imposed:
1. A fine of not less than P1, 000.00 but not exceeding P10, 000.00 and/or
2. Censure;
3. Reprimand;
4. Admonition with warning.
Proceedings against Judges of regular and special courts and Justices of the Court of Appeals and the Sandiganbayan shall be private and confidential.
Aloof and mystical
A previous study by consultants hired by the Philippine Supreme Court on the mass communication inadequacies of the Philippine judiciary stated what every poor Filipino already knew since time immemorial. Let me summarize them.
The image of the courts is usually described as “aloof” “unapproachable”, “mystical”, “elitist”, “isolated”, “insulated”, “low key”, “intimidating”, and “alienated.” These adjectives describe a closed communication system.
It is the duty of lawyers and judges to remove the “mystic” of lawyers and judges.
My estimate is that 2 out of 3 Filipinos feel that judges, justices and court personnel tend to react to, rather than anticipate, issues that need to be communicated to the public.
We need to overcome the Bench and the Bar’s “traditional isolation”. They should be proactive sensitive to the cause of sustainable human development.
Because of poverty and ignorance, the basic sectors have often been deprived of access to justice. We need more street law and simplified justice.
We need to open up communication with the basic sectors to improve understanding of the law and justice. Ignorance, poverty, illiteracy, and cultural bias are stumbling blocks in accessing justice.
Also, many of our laws are archaic, alien in origin, and loaded with values alien to Filipinos.
It is good that the Supreme Court has taken steps these past years to communicate with society on a proactive basis and to use the Web to do so.
The courts should speak the language of the people. Proceedings should be in Filipino and the vernacular. We must destroy the built-in bias against those who do not understand and speak English. The law should apply equally to all. But how can we do that when the laws, court procedures, manuals, and decisions are written in legal parlance which reinforces the “mystique” image of the judiciary. As a result, litigants have no recourse but to trust what their lawyers say in court even if the latter are unable to adequately explain what is happening. There can be no accountability and openness in the courts unless we use the popular language or dialect in the judiciary.
The image of the courts is usually described as “aloof” “unapproachable”, “mystical”, “elitist”, “isolated”, “insulated”, “low key”, “intimidating”, and “alienated.” These adjectives describe a closed communication system.
It is the duty of lawyers and judges to remove the “mystic” of lawyers and judges.
My estimate is that 2 out of 3 Filipinos feel that judges, justices and court personnel tend to react to, rather than anticipate, issues that need to be communicated to the public.
We need to overcome the Bench and the Bar’s “traditional isolation”. They should be proactive sensitive to the cause of sustainable human development.
Because of poverty and ignorance, the basic sectors have often been deprived of access to justice. We need more street law and simplified justice.
We need to open up communication with the basic sectors to improve understanding of the law and justice. Ignorance, poverty, illiteracy, and cultural bias are stumbling blocks in accessing justice.
Also, many of our laws are archaic, alien in origin, and loaded with values alien to Filipinos.
It is good that the Supreme Court has taken steps these past years to communicate with society on a proactive basis and to use the Web to do so.
The courts should speak the language of the people. Proceedings should be in Filipino and the vernacular. We must destroy the built-in bias against those who do not understand and speak English. The law should apply equally to all. But how can we do that when the laws, court procedures, manuals, and decisions are written in legal parlance which reinforces the “mystique” image of the judiciary. As a result, litigants have no recourse but to trust what their lawyers say in court even if the latter are unable to adequately explain what is happening. There can be no accountability and openness in the courts unless we use the popular language or dialect in the judiciary.
Guardians
Every time I recollect the following words of former Chief Justice Hilario Davide Jr. on the special status lawyers occupy in society, I feel more grounded in my roots as a legal professional. Thus:
“The need to excel, though, should be tempered with our covenant to assume and practice our profession with dignity and integrity. The Bench and the Bar must possess unassailable, unblemished, and unimpeachable integrity. The lawyer must hold his profession and office with quiet dignity, without pompous pretense of moral or intellectual ascendancy. For we are but the guardians of justice and not its master.
As repeatedly enunciated in many cases, the law is a profession, not a trade or craft. Those enrolled in its ranks are called upon to aid in achieving one of the most fundamental purposes of the State, and that is the administration of justice without fear or favor. The practice of law is not a vested right but a privilege; a privilege, moreover, clothed with public interest because a lawyer owes substantial duties not only to his client, but also to his brethren in the profession, to the courts and to the nation.”
CJ H. Davide Jr., “The Tie That Binds”, Court Systems Journal, March 2001 issue)
“The need to excel, though, should be tempered with our covenant to assume and practice our profession with dignity and integrity. The Bench and the Bar must possess unassailable, unblemished, and unimpeachable integrity. The lawyer must hold his profession and office with quiet dignity, without pompous pretense of moral or intellectual ascendancy. For we are but the guardians of justice and not its master.
As repeatedly enunciated in many cases, the law is a profession, not a trade or craft. Those enrolled in its ranks are called upon to aid in achieving one of the most fundamental purposes of the State, and that is the administration of justice without fear or favor. The practice of law is not a vested right but a privilege; a privilege, moreover, clothed with public interest because a lawyer owes substantial duties not only to his client, but also to his brethren in the profession, to the courts and to the nation.”
CJ H. Davide Jr., “The Tie That Binds”, Court Systems Journal, March 2001 issue)
Doubtful exemptions
There are questionable and unwise exemptions stated in the Mandatory Continuing Legal Education (MCLE) rules of the Philippine Supreme Court (B.M. 850), which I wish to summarize here to trigger a debate on the issue and to improve the said rules.
Continuing legal education is required of members of the Integrated Bar of the Philippines (IBP) “to ensure that throughout their career, they keep abreast with law and jurisprudence, maintain the ethics of the profession and enhance the standards of the practice of law”.
Every three (3) years, lawyers shall complete at least thirty-six (36) hours of continuing legal education activities approved by the MCLE Committee.
The following members of the Bar are exempt from the MCLE requirement (see my comments after each item):
(a) The President and the Vice President of the Philippines, and the Secretaries and Undersecretaries of Executive Departments;
* I have no question about the President, the Vice President, and the Cabinet Secretaries. They are busy and they occupy top level pubic offices. But why exempt ordinary undersecretaries? They are the workhorses of the Cabinet and the first officials who must have a perfect knowledge of the legal aspects of their respective departmental work.
(b) Senators and Members of the House of Representatives;
* Why exempt legislators from the rules when the nature of their work requires them to be masters of the law, a state which they cannot achieve unless they study the law and the jurisprudence on an updated basis instead of just playing politics in the halls of Congress and delivering trite and motherhood privilege speeches?
(c) The Chief Justice and Associate Justices of the Supreme Court, incumbent and retired members of the judiciary, incumbent members of the Judicial and Bar Council and incumbent court lawyers covered by the Philippine Judicial Academy program of continuing judicial education;
* The PHILJA is doing a great job training the judicial officers and personnel of our country. However, it must be strict in enforcing the rule that no appointments shall be made and no promotions issued without first requiring the applicants to undergo the mandatory pre-judicature programs and other annual enrichment programs for the purpose.
(d) The Chief State Counsel, Chief State Prosecutor and Assistant Secretaries of the Department of Justice;
* These persons, just like undersecretaries, should not be exempt from the rules.
Their work precisely requires them to be masters of the law. We cannot just assume that they are masters of the law on the basis solely of their paper appointments, unless their Department holds its own regular MCLE programs.
(e) The Solicitor General and the Assistant Solicitors General;
* All public officials, with the rank of undersecretary and below, including Assistant Solicitors General and all senior solicitors of the Office of the Solicitor General, must be compelled to comply with the rules, because of the legal expertise required of them as lawyers of the Government.
(f) The Government Corporate Counsel, Deputy and Assistant Government Corporate Counsel;
* What is so special about deputy and assistant corporate counsel of the government? Their work requires legal expertise. They must be compelled to comply with the rules. The problem with the Supreme Court is that it assumes too much in favor of expertise when there are no empirical evidence to prove such assumption.
(g) The Chairmen and Members of the Constitutional Commissions;
* No comment.
(h) The Ombudsman, the Overall Deputy Ombudsman, the Deputy Ombudsman and the Special Prosecutor of the Office of the Ombudsman;
* My opinion here is 50-50.
(i) Heads of government agencies exercising quasi-judicial functions;
* This level of officialdom should be compelled to comply with the rules. They are not extraordinary gods who should be exempted from continuing legal education.
Imagine placing the fate of our administrative cases in the hands of quasi-judicial decision-makers who do not update their knowledge of the law!
(j) Incumbent deans, bar reviewers and professors of law who have teaching experience for at least ten (10) years in accredited law schools;
* No comment.
(k) The Chancellor, Vice-Chancellor and members of the Corps of Professors and Professorial Lecturers of the Philippine Judicial Academy; and
* No comment.
(l) Governors and Mayors.
* Here, I take a strong position, What is so special about governors and mayors that should exempt them from the rules. They are the first-level enforcers of the law. Why not compel them to update their legal knowledge regularly? Knowing the ignorance of many lawyer-mayors and governors, it will serve our country better if we compel them to comply with the rules.
Continuing legal education is required of members of the Integrated Bar of the Philippines (IBP) “to ensure that throughout their career, they keep abreast with law and jurisprudence, maintain the ethics of the profession and enhance the standards of the practice of law”.
Every three (3) years, lawyers shall complete at least thirty-six (36) hours of continuing legal education activities approved by the MCLE Committee.
The following members of the Bar are exempt from the MCLE requirement (see my comments after each item):
(a) The President and the Vice President of the Philippines, and the Secretaries and Undersecretaries of Executive Departments;
* I have no question about the President, the Vice President, and the Cabinet Secretaries. They are busy and they occupy top level pubic offices. But why exempt ordinary undersecretaries? They are the workhorses of the Cabinet and the first officials who must have a perfect knowledge of the legal aspects of their respective departmental work.
(b) Senators and Members of the House of Representatives;
* Why exempt legislators from the rules when the nature of their work requires them to be masters of the law, a state which they cannot achieve unless they study the law and the jurisprudence on an updated basis instead of just playing politics in the halls of Congress and delivering trite and motherhood privilege speeches?
(c) The Chief Justice and Associate Justices of the Supreme Court, incumbent and retired members of the judiciary, incumbent members of the Judicial and Bar Council and incumbent court lawyers covered by the Philippine Judicial Academy program of continuing judicial education;
* The PHILJA is doing a great job training the judicial officers and personnel of our country. However, it must be strict in enforcing the rule that no appointments shall be made and no promotions issued without first requiring the applicants to undergo the mandatory pre-judicature programs and other annual enrichment programs for the purpose.
(d) The Chief State Counsel, Chief State Prosecutor and Assistant Secretaries of the Department of Justice;
* These persons, just like undersecretaries, should not be exempt from the rules.
Their work precisely requires them to be masters of the law. We cannot just assume that they are masters of the law on the basis solely of their paper appointments, unless their Department holds its own regular MCLE programs.
(e) The Solicitor General and the Assistant Solicitors General;
* All public officials, with the rank of undersecretary and below, including Assistant Solicitors General and all senior solicitors of the Office of the Solicitor General, must be compelled to comply with the rules, because of the legal expertise required of them as lawyers of the Government.
(f) The Government Corporate Counsel, Deputy and Assistant Government Corporate Counsel;
* What is so special about deputy and assistant corporate counsel of the government? Their work requires legal expertise. They must be compelled to comply with the rules. The problem with the Supreme Court is that it assumes too much in favor of expertise when there are no empirical evidence to prove such assumption.
(g) The Chairmen and Members of the Constitutional Commissions;
* No comment.
(h) The Ombudsman, the Overall Deputy Ombudsman, the Deputy Ombudsman and the Special Prosecutor of the Office of the Ombudsman;
* My opinion here is 50-50.
(i) Heads of government agencies exercising quasi-judicial functions;
* This level of officialdom should be compelled to comply with the rules. They are not extraordinary gods who should be exempted from continuing legal education.
Imagine placing the fate of our administrative cases in the hands of quasi-judicial decision-makers who do not update their knowledge of the law!
(j) Incumbent deans, bar reviewers and professors of law who have teaching experience for at least ten (10) years in accredited law schools;
* No comment.
(k) The Chancellor, Vice-Chancellor and members of the Corps of Professors and Professorial Lecturers of the Philippine Judicial Academy; and
* No comment.
(l) Governors and Mayors.
* Here, I take a strong position, What is so special about governors and mayors that should exempt them from the rules. They are the first-level enforcers of the law. Why not compel them to update their legal knowledge regularly? Knowing the ignorance of many lawyer-mayors and governors, it will serve our country better if we compel them to comply with the rules.
Delay
A few years ago, the Philippine Supreme Court created a team to study the issue of judicial delay. I wish to summarize the salient parts of its report, for legal research purposes of the visitors of this blog, who might be interested to know the Philippine justice system better.
The team classified the causes of delay as follows:
(a) court system delay, which is the court’s failure to act promptly and adequately without any fault on the part of the litigants or their counsel, on matters concerning the processing of actions filed in court until the same are finally resolved. These may be attributed both to the judge as well as to the court personnel;
(b) lawyer caused delay, since, as counsel for litigants who participate directly in the judicial process, lawyers substantially and unavoidably influence the conduct of court proceedings, and thus constitute a “rich” source of delay;
(c) delay caused by court-related agencies, such as poor coordination between the courts and the law enforcement agencies;
(d) the complexity of the legal system, which refers to the convoluted and redundant rules; and
(e) structural problems inherent in the judicial system, such as budgetary constraints.
Much of the delay may also be attributed to an attitudinal problem. The litigious nature of Filipinos, the tendency to appeal the most trifle cases all the way to the Supreme Court, and the adamant refusal to explore alternative forms of dispute resolution, are among the more common manifestations.
As to the role of the police agencies in the problem of delay, there are certain inherent problems within the police system which are inescapably intertwined with the administration of justice, some of which are the following:
a. Delay in the transmittal of cases from police to the prosecutor;
b. Inadequacy of training investigation and in the handling of evidence;
c. Non-appearance of police officers during trial due to conflicting schedules;
d. Lack of coordination among the police officers; and
e. Failure of police officers to effect arrest.
The prosecution system has its own share of flaws and problems. Former Justice Secretary, now Senator, Franklin M. Drilon points out a few of such predicaments, to wit: absence of prescribed guidelines and sufficient information on the organization, functions, systems and procedures of the National Prosecution Service; incompetence of prosecutors due to lack of continuing legal education; and undue delay due to certain procedural la
The Supreme Court team’s recommendations with direct budgetary implications were:
1 the filling up of vacant judicial posts and the increase in the salary of judges;
2 the appointment of more prosecutors and the increase of their salaries;
3 the appointment of more public attorneys and the increase of their salaries;
4 the creation of regular posts for court personnel and a stop to the practice of hiring “casuals”;
5 the giving of incentives to those who are deserving;
6 the improvement of court facilities and the procurement of modern equipment;
7 the training of judges, court personnel, prosecutors, public attorneys and lawyers; and,
8 the setting up of law libraries in the Halls of Justice.
Recommendations that required legislation or the promulgation of rules of procedure were:
1 the reapportionment of court branches to achieve a more proportionate distribution of caseloads;
2 the decriminalization of status offenses, such as vagrancy, and the amendment of the Bouncing Cheeks Law;
3 the increase in the threshold amounts in crimes against property under the Revised Penal Code;
4 the creation of Small Claims Courts, the expansion of the coverage of the Arbitration Law, and the mandatory resort to alternative dispute resolution (ADR) mechanisms;
5 the imposition of penalties on police officers who fail to appear in court;
6 the simplified service of summons through the Philippine Postal Corporation or a private entity and the service of pleadings though fax machines and electronic mail;
7 the creation of the Marshals Office to serve warrants of arrest; and
8 allowing paralegals and underbars to appear before municipal courts.
The team also made the following recommendations relating to the management, of courts and administrative matters:
1 intensified monitoring of caseloads and case disposition;
2 avoidance of accumulation of cases by appointing assisting judges, by deloading over-burdened salas, and by requiring disposition of all cases as a condition for promotion or optional retirement;
3 the issuance of a memorandum circular emphasizing a judge’s responsibility for what happens in his courtroom
4 the formulation of an evaluation system for court personnel;
5 the strict enforcement of the Speedy Trial Act and the effective utilization of pre- trial:
6 the institutionalization of the practice of requiring submission of draft resolutions, orders and decisions:
7 the publication of a handbooks of pleadings for prosecutors. public attorneys and lawyers, and of resolutions, orders and decisions for judges, and a manual of procedures in the Department of Justice.
Other recommendations of the team included:
1 giving the Integrated Bar of the Philippines more powers to discipIine its members;
2 strengthening the system of legal education;
3 implementing a continuing legal education program;
4 disseminating legal information and materials to lawyers;
5 production of more legal reference materials; and
6 devising an effective system of appointing counsels de oficio.
The team classified the causes of delay as follows:
(a) court system delay, which is the court’s failure to act promptly and adequately without any fault on the part of the litigants or their counsel, on matters concerning the processing of actions filed in court until the same are finally resolved. These may be attributed both to the judge as well as to the court personnel;
(b) lawyer caused delay, since, as counsel for litigants who participate directly in the judicial process, lawyers substantially and unavoidably influence the conduct of court proceedings, and thus constitute a “rich” source of delay;
(c) delay caused by court-related agencies, such as poor coordination between the courts and the law enforcement agencies;
(d) the complexity of the legal system, which refers to the convoluted and redundant rules; and
(e) structural problems inherent in the judicial system, such as budgetary constraints.
Much of the delay may also be attributed to an attitudinal problem. The litigious nature of Filipinos, the tendency to appeal the most trifle cases all the way to the Supreme Court, and the adamant refusal to explore alternative forms of dispute resolution, are among the more common manifestations.
As to the role of the police agencies in the problem of delay, there are certain inherent problems within the police system which are inescapably intertwined with the administration of justice, some of which are the following:
a. Delay in the transmittal of cases from police to the prosecutor;
b. Inadequacy of training investigation and in the handling of evidence;
c. Non-appearance of police officers during trial due to conflicting schedules;
d. Lack of coordination among the police officers; and
e. Failure of police officers to effect arrest.
The prosecution system has its own share of flaws and problems. Former Justice Secretary, now Senator, Franklin M. Drilon points out a few of such predicaments, to wit: absence of prescribed guidelines and sufficient information on the organization, functions, systems and procedures of the National Prosecution Service; incompetence of prosecutors due to lack of continuing legal education; and undue delay due to certain procedural la
The Supreme Court team’s recommendations with direct budgetary implications were:
1 the filling up of vacant judicial posts and the increase in the salary of judges;
2 the appointment of more prosecutors and the increase of their salaries;
3 the appointment of more public attorneys and the increase of their salaries;
4 the creation of regular posts for court personnel and a stop to the practice of hiring “casuals”;
5 the giving of incentives to those who are deserving;
6 the improvement of court facilities and the procurement of modern equipment;
7 the training of judges, court personnel, prosecutors, public attorneys and lawyers; and,
8 the setting up of law libraries in the Halls of Justice.
Recommendations that required legislation or the promulgation of rules of procedure were:
1 the reapportionment of court branches to achieve a more proportionate distribution of caseloads;
2 the decriminalization of status offenses, such as vagrancy, and the amendment of the Bouncing Cheeks Law;
3 the increase in the threshold amounts in crimes against property under the Revised Penal Code;
4 the creation of Small Claims Courts, the expansion of the coverage of the Arbitration Law, and the mandatory resort to alternative dispute resolution (ADR) mechanisms;
5 the imposition of penalties on police officers who fail to appear in court;
6 the simplified service of summons through the Philippine Postal Corporation or a private entity and the service of pleadings though fax machines and electronic mail;
7 the creation of the Marshals Office to serve warrants of arrest; and
8 allowing paralegals and underbars to appear before municipal courts.
The team also made the following recommendations relating to the management, of courts and administrative matters:
1 intensified monitoring of caseloads and case disposition;
2 avoidance of accumulation of cases by appointing assisting judges, by deloading over-burdened salas, and by requiring disposition of all cases as a condition for promotion or optional retirement;
3 the issuance of a memorandum circular emphasizing a judge’s responsibility for what happens in his courtroom
4 the formulation of an evaluation system for court personnel;
5 the strict enforcement of the Speedy Trial Act and the effective utilization of pre- trial:
6 the institutionalization of the practice of requiring submission of draft resolutions, orders and decisions:
7 the publication of a handbooks of pleadings for prosecutors. public attorneys and lawyers, and of resolutions, orders and decisions for judges, and a manual of procedures in the Department of Justice.
Other recommendations of the team included:
1 giving the Integrated Bar of the Philippines more powers to discipIine its members;
2 strengthening the system of legal education;
3 implementing a continuing legal education program;
4 disseminating legal information and materials to lawyers;
5 production of more legal reference materials; and
6 devising an effective system of appointing counsels de oficio.
Legal assistants
Guidelines have been adopted by the American Bar Association, the National Association of Legal Assistants (NALA), and the National Federation of Paralegal Associations (NFPA) on the role and conduct of legal assistants or paralegals, the salient parts of which I wish to summarize below, together with other additional notes on the subject matter, for legal research purposes of the visitors of this blog.
A lawyer is “responsible for all of the professional actions of a legal assistant performing legal assistant services at the lawyer's direction”. He should take reasonable measures to ensure that the legal assistant's conduct is “consistent with the lawyer's obligations under the Model Rules of Professional Conduct”.
Provided the lawyer maintains responsibility for the work product, a lawyer may delegate to a legal assistant “any task normally performed by the lawyer except those tasks proscribed to one not licensed as a lawyer”.
It should be noted that a lawyer may not delegate to a legal assistant: (a) responsibility for establishing an attorney-client relationship; (b) responsibility for establishing the amount of a fee to be charged for a legal service; (c) responsibility for a legal opinion rendered to a client.
It is the lawyer's responsibility to take reasonable measures to ensure that clients, courts, and other lawyers are aware that a legal assistant, whose services are utilized by the lawyer in performing legal services, is not licensed to practice law.
It is the responsibility of a lawyer to take “reasonable measures to ensure that all client confidences are preserved by a legal assistant”.
A lawyer should take “reasonable measures to prevent conflicts of interest” resulting from a legal assistant's other employment or interests insofar as such other employment or interests would present a conflict of interest if it were that of the lawyer.
A lawyer may include a charge for the work performed by a legal assistant in setting a charge for legal services.
A lawyer may not “split legal fees” with a legal assistant nor pay a legal assistant for the “referral of legal business”. A lawyer may compensate a legal assistant based on the quantity and quality of the legal assistant's work and the value of that work to a law practice, but the legal assistant's compensation “may not be contingent, by advance agreement, upon the profitability of the lawyer's practice”.
A lawyer who employs a legal assistant should facilitate the legal assistant's participation in appropriate “continuing education and pro bono publico activities”.
There seems to be a move in the USA to allow nonlawyers to provide “some legal services directly to the public”, although there is strong opposition thereto. For example, the Washington State Bar Association (WSBA) has adopted a proposed rule that would establish a "Practice of Law Board" with authority to recommend to the Washington Supreme Court the opening of “limited areas of practice to nonlawyers” as a means to provide “greater access to affordable legal services”.
In addition to private law firms, other organizations in the private sector currently employing legal assistants include “corporate legal departments, insurance companies, estate and trust departments of large banks, hospitals and health care organizations, real estate and title insurance companies, and professional trade associations”. Job opportunities in the public sector are available in “community legal services programs, consumer organizations, offices of public defenders, prosecutors and attorneys general, city attorneys, a wide array of state and federal government agencies and the judicial system”.
Responsibilities most often assigned to legal assistants are “maintaining client files, drafting correspondence, performing factual research, monitoring deadlines, drafting and investigation and analyzing documents, and acting as liaison with clients and others”.
Paralegals must be certified, a process by which a “non-governmental agency or association grants recognition” to an individual who has met certain predetermined qualifications specified by that agency or association. It usually involves “passing an examination drawn up by the sponsoring organization and meeting specified educational and/or experiential requirements”.
Presently, there is no mandatory certification examination for legal assistants anywhere in the United States. However, the certification issue has been a subject of considerable interest and debate for the past several years among legal assistant associations, bar associations and some legislatures.
The National Association of Legal Assistants, Inc., (NALA) headquartered in Tulsa, Oklahoma, sponsors a certification examination (Certified Legal Assistant). NALA also offers advanced specialty exams. Educational programs for paralegals in the USA are offered by two-year community and junior colleges, four-year colleges and universities, and business and proprietary schools devoted solely to providing this type of training.
Many legal assistant education programs include an internship as a part of the curriculum. The internship enables a student to utilize skills acquired in the program and to gain practical on-the-job experience. Internships are available in a variety of settings, including private law firms, offices of a public defender or attorney general, banks, corporate legal departments, legal aid organizations, and many government agencies.
Paralegals in small and medium-sized law firms usually perform a variety of duties that require a general knowledge of the law. For example, they may research judicial decisions on improper police arrests or help prepare a mortgage contract. Paralegals employed by large law firms, government agencies, and corporations, however, are more likely to specialize in one aspect of the law. Computer use and technical knowledge has become essential to paralegal work.. Computer software packages and the Internet are increasingly used to search legal literature stored in computer databases and on CD-ROM. In litigation involving many supporting documents, paralegals may use computer databases to retrieve, organize, and index various materials. Imaging software allows paralegals to scan documents directly into a database, while billing programs help them to track hours billed to clients. Computer software packages also may be used to perform tax computations and explore the consequences of possible tax strategies for clients.
Paralegals and legal assistants held about 188,000 jobs in 2000. Private law firms employed the vast majority; most of the remainder worked for corporate legal departments and various levels of government. Within the Federal Government, the U.S. Department of Justice is the largest employer, followed by the U.S. Departments of Treasury and Defense, and the Federal Deposit Insurance Corporation. Other employers include State and local governments, publicly funded legal-service centers, banks, real estate development companies, and insurance companies. A small number of paralegals own their own businesses and work as freelance legal assistants, contracting their services to attorneys or corporate legal departments.
Earnings of paralegals and legal assistants vary greatly. Salaries depend on education, training, experience, type and size of employer, and geographic location of the job. In general, paralegals who work for large law firms or in large metropolitan areas earn more than those who work for smaller firms or in less populated regions. In 2000, full-time, wage and salary paralegals and legal assistants had median annual earnings of $35,360. The middle 50 percent earned between $28,700 and $45,010. The top 10 percent earned more than $56,060, while the bottom 10 percent earned less than $23,350. According to the National Association of Legal Assistants, paralegals had an average salary of $38,000 in 2000. In addition to a salary, many paralegals received a bonus, which averaged about $2,400. According to the National Federation of Paralegal Associations, starting salaries of paralegals with 1 year or less experience averaged $38,100 in 1999.
A lawyer is “responsible for all of the professional actions of a legal assistant performing legal assistant services at the lawyer's direction”. He should take reasonable measures to ensure that the legal assistant's conduct is “consistent with the lawyer's obligations under the Model Rules of Professional Conduct”.
Provided the lawyer maintains responsibility for the work product, a lawyer may delegate to a legal assistant “any task normally performed by the lawyer except those tasks proscribed to one not licensed as a lawyer”.
It should be noted that a lawyer may not delegate to a legal assistant: (a) responsibility for establishing an attorney-client relationship; (b) responsibility for establishing the amount of a fee to be charged for a legal service; (c) responsibility for a legal opinion rendered to a client.
It is the lawyer's responsibility to take reasonable measures to ensure that clients, courts, and other lawyers are aware that a legal assistant, whose services are utilized by the lawyer in performing legal services, is not licensed to practice law.
It is the responsibility of a lawyer to take “reasonable measures to ensure that all client confidences are preserved by a legal assistant”.
A lawyer should take “reasonable measures to prevent conflicts of interest” resulting from a legal assistant's other employment or interests insofar as such other employment or interests would present a conflict of interest if it were that of the lawyer.
A lawyer may include a charge for the work performed by a legal assistant in setting a charge for legal services.
A lawyer may not “split legal fees” with a legal assistant nor pay a legal assistant for the “referral of legal business”. A lawyer may compensate a legal assistant based on the quantity and quality of the legal assistant's work and the value of that work to a law practice, but the legal assistant's compensation “may not be contingent, by advance agreement, upon the profitability of the lawyer's practice”.
A lawyer who employs a legal assistant should facilitate the legal assistant's participation in appropriate “continuing education and pro bono publico activities”.
There seems to be a move in the USA to allow nonlawyers to provide “some legal services directly to the public”, although there is strong opposition thereto. For example, the Washington State Bar Association (WSBA) has adopted a proposed rule that would establish a "Practice of Law Board" with authority to recommend to the Washington Supreme Court the opening of “limited areas of practice to nonlawyers” as a means to provide “greater access to affordable legal services”.
In addition to private law firms, other organizations in the private sector currently employing legal assistants include “corporate legal departments, insurance companies, estate and trust departments of large banks, hospitals and health care organizations, real estate and title insurance companies, and professional trade associations”. Job opportunities in the public sector are available in “community legal services programs, consumer organizations, offices of public defenders, prosecutors and attorneys general, city attorneys, a wide array of state and federal government agencies and the judicial system”.
Responsibilities most often assigned to legal assistants are “maintaining client files, drafting correspondence, performing factual research, monitoring deadlines, drafting and investigation and analyzing documents, and acting as liaison with clients and others”.
Paralegals must be certified, a process by which a “non-governmental agency or association grants recognition” to an individual who has met certain predetermined qualifications specified by that agency or association. It usually involves “passing an examination drawn up by the sponsoring organization and meeting specified educational and/or experiential requirements”.
Presently, there is no mandatory certification examination for legal assistants anywhere in the United States. However, the certification issue has been a subject of considerable interest and debate for the past several years among legal assistant associations, bar associations and some legislatures.
The National Association of Legal Assistants, Inc., (NALA) headquartered in Tulsa, Oklahoma, sponsors a certification examination (Certified Legal Assistant). NALA also offers advanced specialty exams. Educational programs for paralegals in the USA are offered by two-year community and junior colleges, four-year colleges and universities, and business and proprietary schools devoted solely to providing this type of training.
Many legal assistant education programs include an internship as a part of the curriculum. The internship enables a student to utilize skills acquired in the program and to gain practical on-the-job experience. Internships are available in a variety of settings, including private law firms, offices of a public defender or attorney general, banks, corporate legal departments, legal aid organizations, and many government agencies.
Paralegals in small and medium-sized law firms usually perform a variety of duties that require a general knowledge of the law. For example, they may research judicial decisions on improper police arrests or help prepare a mortgage contract. Paralegals employed by large law firms, government agencies, and corporations, however, are more likely to specialize in one aspect of the law. Computer use and technical knowledge has become essential to paralegal work.. Computer software packages and the Internet are increasingly used to search legal literature stored in computer databases and on CD-ROM. In litigation involving many supporting documents, paralegals may use computer databases to retrieve, organize, and index various materials. Imaging software allows paralegals to scan documents directly into a database, while billing programs help them to track hours billed to clients. Computer software packages also may be used to perform tax computations and explore the consequences of possible tax strategies for clients.
Paralegals and legal assistants held about 188,000 jobs in 2000. Private law firms employed the vast majority; most of the remainder worked for corporate legal departments and various levels of government. Within the Federal Government, the U.S. Department of Justice is the largest employer, followed by the U.S. Departments of Treasury and Defense, and the Federal Deposit Insurance Corporation. Other employers include State and local governments, publicly funded legal-service centers, banks, real estate development companies, and insurance companies. A small number of paralegals own their own businesses and work as freelance legal assistants, contracting their services to attorneys or corporate legal departments.
Earnings of paralegals and legal assistants vary greatly. Salaries depend on education, training, experience, type and size of employer, and geographic location of the job. In general, paralegals who work for large law firms or in large metropolitan areas earn more than those who work for smaller firms or in less populated regions. In 2000, full-time, wage and salary paralegals and legal assistants had median annual earnings of $35,360. The middle 50 percent earned between $28,700 and $45,010. The top 10 percent earned more than $56,060, while the bottom 10 percent earned less than $23,350. According to the National Association of Legal Assistants, paralegals had an average salary of $38,000 in 2000. In addition to a salary, many paralegals received a bonus, which averaged about $2,400. According to the National Federation of Paralegal Associations, starting salaries of paralegals with 1 year or less experience averaged $38,100 in 1999.
Friday, October 24, 2008
Reforms
I wish to summarize below the salient points of an informative report on the judicial reforms initiated by the Philippine Supreme Court as of 2000, for purposes of legal research of the visitors of this blog, especially foreign researchers who wish to familiarize themselves with the general features of our justice system.
Supreme Court Circular No. 13, issued July 1, 1987 prescribed “Guidelines on the Administration of Justice” to avoid delay and to repudiate dilatory, tactics. This was followed by a Comprehensive Administrative Circular to implement section 12 of Article XIII of the 1987 Constitution. This circular was later amended by Administrative Circular No. 1-A dated July 5, 1988 and Administrative Circular No. 2 to include the semestral inventory of cases and the requirement of strict compliance on the Rules 45 and 65 of the Rules of Court before petitions can be entertained by the Supreme Court.
During his tenure, Chief Justice Marcelo B. Feman initiated the following structural reforms:
a. A framework for continuous trial with the setting up of 84 pilot courts preparatory
to a nationwide implementation of the system;
b. Continuing judicial education under Administrative Order No. 6 including the
holding of orientation seminars for new judges and of career enhancement training
programs for incumbent judges;
c. Adequate monitoring and feedback mechanism in judicial performance with the
creation of the judiciary planning and implementation panel;
d. Revitalization of the Institute of Judicial Administration;
e. Ethical norms of the justice system with the drafting of a new Code of Judicial
Conduct;
f. Reforms in court procedure with the amendments of the Rules on Criminal
Procedure, Summary Procedure and Evidence;
g. Upgrading the internal processes of the Supreme Court;
h. A citizenry information campaign with the public pronouncements on the workings
of the justice system and;
The reforms instituted by Chief Justice Narvasa during his tenure were the following:
1. The establishment of the Philippine Judicial Academy (March 12, 1996) which was later created by law, Republic Act No. 8557 on January 28, 1998.
2. The promulgation of the 1997 Rules of Civil Procedure and the issuance of special Rules for Temporary Restraining Orders and Preliminary Injunctions, as well as the Guidelines in the Archiving of Cases.
3. Designation of special courts for kidnapping, robbery, carnapping, dangerous drugs cases and other heinous crimes, Intellectual Property Rights Violations, as well as on Environmental Law and violations of the Forestry Code cases.
4. The publication of The Court Systems Journal in 1996 and the Handbook on the Court and the Criminal Justice System published in English, Tagalog, Cebuano and Ilongo versions for information dissemination in the administration of justice.
5. The creation of the Judicial Reforms Committee.
6. Creation and operation of the Supreme Court Health and Welfare Plan.
7. Institution of the Case Administration System (CAS) in the Supreme Court.
Under the leadership of Chief Justice Hilario Davide Jr., the Supreme Court has adopted a Blueprint of Action for the Judiciary. The Blueprint has primarily focused on four major areas:
(1) actions to ensure the independence, integrity and accountability of the Judiciary; (2) enhancing knowledge-based adjudication of members of the Judiciary; (3) fairness and efficiency of judicial actions; and (4) enhancing the accessibility of the justice system by all sectors.
Judicial reform has three major objectives: an independent judiciary, a moral judiciary and an efficient judiciary. In plain terms, the goal is to establish a judicial system free from political interference, subject only to the rule of law and the ends of justice; manned and served by morally upright judges and lawyers, through an efficient court system.5
Article VIII of the 1987 Constitution provides that no law can be passed reorganizing the Judiciary when it undermines the security of tenure of its members. The Supreme Court is given administrative supervision over all courts and the personnel thereof. The Judiciary now enjoys fiscal autonomy. Judicial power has been defined to include the duty of courts of justice to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government, thereby enlarging the jurisdiction of the Supreme Court in deciding cases and minimizing the use of political question doctrine in cases brought before the Supreme Court.
To preserve judicial independence, there is a constitutional prohibition against the designation of judges to “any agency performing quasi-judicial or administrative functions.” This provision is supplemented by a Supreme Court resolution prohibiting judges from occupying positions in agencies that would make them subordinate to executive or legislative officials, for instance, as a member of a committee performing administrative functions under the supervision of the Secretary of Justice. The Supreme Court has also issued various circulars and pronouncements designed to promote and enhance the independence of trial judges. Thus, Circular No. 6-87 dated April 1987 prohibits judges from accepting positions in any cooperative and Circular No. 43-91 dated November 11. 1991 limits live televisions and radio coverage of court proceedings.
The budget of the judiciary leaves much to be desired. The appropriation for the judiciary in the year 2000 constituted only 1.07 percent of the total appropriation act.
By means of the Judicial and Bar Council (JBC), the Judiciary now has a stronger voice in judicial appointments. Political patronage has been considerably diminished in the process of identifying and screening prospective nominees for judicial office. The JBC was duly constituted in December 10, 1987 by Chief Justice Claudio Teehankee. The JBC maintains a master list of applicants and recommendees to judicial positions. The list is updated regularly and stored in a database for easy access by the Council Members. The evaluation of each applicant is based on the information provided by the applicant himself and from investigations conducted by the investigation division of the JBC Secretariat. Likewise, there is a separate computerized updated list of all vacancies in the regions, provinces or municipalities. For purposes of transparency, the list of applicants for certain posts are published in the newspapers.
Section 10 of Republic Act No. 8557 (1998), creating the Philippine Judicial Academy (PHILJA) ‘now requires that ‘as soon as PHILJA has been fully organized with the composition of its Corps of Professorial Lecturers and other personnel, only participants who have completed the programs prescribed by the Academy and have satisfactorily complied with all the requirements incident thereto may be appointed or promoted to any position or vacancy in the Judiciary.” The PHILJA regularly offers Pre-Judicature courses which started in 2000.
The JBC submits at least three (3) nominees to the President for every vacancy. For lower courts, the Constitution requires the President to issue the appointment within ninety (90) days from the submission of the list and to fill the vacancy in the Supreme Court within ninety (90) days from its occurrence. All appointments to the judiciary do not need confirmation by the Commission on Appointments. IN 2000, there were 2,221 authorized judicial positions, thus: Supreme Court, 15; Court of Appeals, 51; Sandiganbayan, 15; Court of Tax Appeals, 3; Regional Trial Courts, 950; Metropolitan Trial Courts (MeTC), 82 Municipal Trial Courts in Cities (MTCC), 126, Municipal Trial Courts, 436, Municipal Circuit Trial Courts (MCTC), 480; Shari’a District Court, 5; Shari'a Circuit Court, 5 1.
In 2000 there are 699 vacancies in the different courts. One of the problems of the JBC was the lack of applicants to judicial positions particularly in the municipal level. This was the case especially if the vacancy to the judicial post was in an outlying or distant municipality or in an area where the peace and order was unstable or unsatisfactory. According to the Constitution, the members of the judiciary are appointed from a list of three nominees prepared by the JBC for every vacancy. The list obviously cannot be made if there are not enough qualified applicants to the position. Where the number of recommendees or applicants for a vacancy are less than three or where there is no applicant at all, the JBC is constrained to defer further consideration of the particular vacancy until it is able to obtain the requisite number of at least three applicants for screening and nomination.
The low level of compensation for judicial positions also accounts for the lack of applicants. Even in progressive provinces like Cebu, where there are a number of active practitioners, the problem of filling up vacancies persists because the compensation provided for these positions are not substantial enough to be attractive.
In 1975, Presidential Decree No. 842 created the Office of the Court Administrator which became the instrumentality through which the Supreme Court performed its supervisory functions over the courts. Under the Decree, the Court Administrator, has the rank, salary and privileges of the Presiding Justice of the Court of Appeals and he is assisted by the three Deputy Court Administrators (DCAs) who are assigned to administer certain judicial regions of the Philippines. The DCAs have the salary, rank and privileges of an Associate Justice of the Court of Appeals. The OCA has four priorities:
a. The promotion of procedural and administrative improvements of the courts;
b. Undertaking a continuous and systematic study of the structure, operations and manpower requirements of the courts with the end in view of identifying, in particular, the factors which cause docket congestion and case disposition delay and addressing such problems:
c. Legal education and court management programs for trial judges and court personnel: and
d. Function as a national clearing house with respect to reforms and innovations in judicial administration.
In 1988, the Court created a committee headed by Justice Irene R. Cortes, former Dean of the U.P. College of Law, to formulate a new Code of Judicial Conduct. The Committee submitted a proposed Code which incorporates measures to guarantee judicial discipline to maintain judicial integrity. The Supreme Court promulgated the Code of Judiciary Conduct on 5 September 1989 which took effect on 20 October 1989.
Prior to 1975 the training of judges in the Philippines was conducted on an ad hoc basis, by existing judges’ organizations. Aside from seminars conducted during conferences of judges, the trial judges participated in continuing legal education programs of the U.P. Law Center. In 1975, during the tenure of Chief Justice Querube Makalintal, the Supreme Court formally organized seminars for executive trial judges in four classes conductcd by the Development Academy of the Philippines. The provision of judicial training to judges in the University of the Philippines Law Center ended when the Supreme Court established a formal structure in the training of judges with the organization of the Institute of Judicial Administration (IJA) on 1 September 1983.
The orientation program for a newly appointed judge essentially consists of familiarizing the judge with all Supreme Court administrative circulars, principles of judicial ethics, including court rules and decisions, the judges’ relationship with the Bar, work attitudes and work ethics, courtroom semantics, communication techniques and decision writing. After the orientation course and before the judge begins to hear cases, he goes through an immersion program at his station. During his immersion the neophyte judge (1) observes court trials by sitting with a senior judge in the conduct of judicial proceedings; (2) observes the activities in the Office of the Clerk of Court, meets the court personnel, and studies their functions and duties: (3) inventories all pending cases in the branch to which he is assigned: (4) tours the territory within the jurisdiction of his court; and (5) familiarizes himself with the various local governments and government agencies operating within the territorial jurisdiction of his court.
The immersion program is supervised by the executive judge of the station, who submits to the Supreme Court a certification of completion of the immersion program. Only after completing the immersion program will the judge formally assume his judicial office.
The judicial career enrichment and judicial executive program is held once a year. It has the following salient features: (a) review of recent Supreme Court decisions and legislation; (b) monitoring and assessment of the performance of participating judges’ (c) judicial clinic to discuss court problems: and other relevant aspects of judicial training as may be prescribed by the Chief Justice.
The thrust of the judicial career development program for trial judges is to train them both as adjudicators and court managers. Today’s judges bear the highly complex responsibility not only of preparing just decisions, but also of managing effectively the human and physical resources of his court to ensure efficient and speedy delivery of justice services. Many judges see themselves only as judges and not as managers of a system of administering a justice system, but the reality is that the judge plays the dual role of both judge and manager. Hence, there is need for training them in the principles of effective court management, which would integrate their roles as adjudicators and managers in the administration of justice.
Under the chairmanship of Justice Ameurfina A. Herrera, a Committee of the Court submitted a draft of an Administrative Order creating the Philippine Judicial Academy (PHILJA). Among the salient features are:
a. The Academy shall be a unit with the same organizational status as the Judiciary Development Planning and Implementation Office;
b. It shall he supervised by a Governing Board with the Chief Justice as Chairman;
c. The executive officials shall be headed by a Chancellor; and
d. Its teaching force shall be composed of an appointive corps of professors.
Since the Academy was envisioned as an institutionalization and refinement of the current programs for orientation and career development of judges, the Committee recommended that the programs being undertaken through the Office of the Court Administrator be assigned to the PHILJA. Coordination with the Institute of Judicial Administration of the University of the Philippines would still continue in appropriate areas of common concern under existing agreements whenever necessary.
In 1995, President Fidel V. Ramos authorized the transfer of the majority shareholdings of the Government in the Ridge Resort and Convention (RRCC) at Tagaytay City to the Supreme Court. On August 29, 1995, the Supreme Court in an en banc Resolution, authorized the Chief Justice to appoint interim directors and officers to run and manage the RRCC preparatory to the full operation of the Academy.
The Supreme Court formally established the Philippine Judicial Academy under Administrative Order 35-96, dated March 12, 1996. The appointments of retired Justices Ameurfina Melencio-Herrera and Irene Cortes as Chancellor and Vice-Chancellor, respectively, followed.
.
In coordination with the U.P. Institute of Judicial Administration (IJA), PHILJA had conducted various Seminars/Workshops and Conventions-Seminars. In 1996, it made certain innovations in its previous programs, to wit:
1. Total Quality Management (TQM) for courts. This is a new management strategy which stresses the responsibility of the Judge, as head, and all Court personnel working as a team, to ensure the effective administration and management of the court. PHILJA introduced this strategy for the first time in a Seminar-Workshop for Executive Judges of the MeTCs and MTCCs on October 23. 1996. This new concept emphasizes that Judges alone do not make the courts. After the Seminar, participants were enjoined to apply the concepts they had learned and to report to PHILJA every quarter during the ensuing year.
2. Dynamics of Leadership and Management Strategies. The Seminar-Workshop for Executive Judges of the RTCs held on September 24-27, 1996, focused on “Building a Judicial Management Team: Team Management.” The inputs provided by a faculty member of the Asian Institute of Management were intended to assist Executive Judges, and through them the Judges in their respective stations, in their leadership and management responsibilities.
3. Immersion Program for New Judges. PHILJA also revived the Immersion Program for new Judges under the supervision of Executive Judges in their respective stations. New judges undergo this Program before they assume their judicial duties. The activities include, among others, actual observation of court trials by sitting in with an experienced Judge in the conduct of proceedings: the observation of the activities in the Office of the Clerk of Court: and an inventory of all pending cases. The Executive Judge submits to the Supreme Court a Certificate of Completion of the Immersion Program. The Former program previously prescribed one (1) week for this subject. The increase in the prescribed period was necessitated by the growing complexities in the administration and delivery of justice.
4. English Grammar for Judges. This was introduced during the second Orientation Seminar for newly appointed Judges on November 11-15, 1996. Coincidentally, the “Observations on the Press” by the Philippine Judges Association and RTC Judges Association, Q.C. published on October 13, 1996 in the Manila Bulletin, was criticized by the Philippine Daily Inquirer in its issue of November 1, 1996 for "grammar and tormented English."
5. 5. Public Perceptions on Judges . A survey of the public perception on Judges was presented by the Social Weather Stations, Inc. in two seminars. Reactors from the Bench, the Bar, and mass media were invited to give comments. Judges’ reactions to the negative public perceptions ranged from incredulity to displeasure. They even challenged the methodology used in the survey. It was noted, however, that some surveys included Judges themselves as respondents.
6. Courts and Child Abuse. With the enactment of Republic Act No. 7691, topics on “Domestic Violence and Child Abuse” and “The Courts and Child Abuse” were included in two Seminars not only for informative purposes but also to make Courts more child-friendly and more effective in coping with the peculiar nature of those cases, which are proliferating worldwide.
7. Judicial Ethics and Discipline: Pitfalls in the Exercise of Judicial Power. This is to emphasize that judges must conform to the Code of Judicial Conduct and to understand the responsibility of a judge in the exercise of judicial power.
8. Values Formation. Adhering to the moral standards of old apparently has been forgotten. People have become desensitized to so much of corruption and degeneracy of those who hold the public trust. This course injects standards and values leading to a moral rebirth.
9. Computerization program A hands-on computer training program has been started for use in courtroom activities.28
On February 26. 1998, President Ramos signed into law, Republic Act No. 8557 otherwise known as the PHILJA Charter. The Charter makes the Academy a unit of the Supreme Court, governed by a Board of Trustees with a Chief Justice as ex-officio Chairman, and administered by Executive Officials headed by the Chancellor.
On July 14, 1997, the Supreme Court directcd PHILJA to undertake an in-depth examination of the present legal and judicial system for the purpose of “upgrading, improving and reforming it to meet the changes and challenges of a new millenium upon the suggestion of Associate Justice Artemio V. Panganiban. This directive led to the creation of a Judicial Reforms Committee in the latter part of 1997. Among the recommendations of the Committee to the Supreme Court were:
1. Elimination of the review of labor cases from the original jurisdiction of the Supreme Court;
2. Reforms for Case Flow Management in the Supreme Court;
3. Constitutional reforms in the composition of the Senate and House of Representatives Electoral Tribunals;
4. Reforms in Philippine Juvenile Justice System;
5. Provision of “PHILJA Updates” in electronic format:
6. Amendments to some constitutional provisions on the Judicial and Bar Council (JBC);
7. Placing under the Office of the Chief Justice, the Publication and Information Office created in the Office of the Court Administrator;
8. Amendments to Certain Sections of Rule 14 of the Revised Rules of Civil Procedure Prescribing a Period for Service of Summons,
9. Expansion of the Coverage and Increase of the Penalty for Violation of Article 243 of the Revised Penal Code, as Amended;
10. Adoption of Uniform and Simplified Orders for Trial Courts:
11. Briefing on Orientation Session for Newly Appointed Justices of the Court of Appeals with Suggestions to the Court of Appeals on (a) their Internal Rules, and (b) Decongesting its Docket and Improving Case Flow:
12. Amendment of Rule 15 of the 1997 Rules on Civil Procedure by Prescribing a Period for the Resolution of Motions (No. R-5, Feb. 10, 1999);
13. Proposal to Clarify the Applicability of Administrative Order No. 3, dated October 19, 1984 to Notarial Foreclosures of Mortgage;
14. Proposal to Amend Administrative Order No. 3, dated 19 October 1984, so as to Establish a Uniform Procedure for all kinds of Extra-Judicial Foreclosures of Real Estate Mortgage.
Article Ill, section 16 of the 1987 Constitution provides that: “all persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.” However. the bane of the judicial system is court congestion and delay. Congestion of court dockets continues to be one of the most serious problems of the Philippine judicial system. Cases pending in all levels of the judicial system keep piling up at an alarming rate. The general average of judicial disposal of cases annually is only at 85.83%.
Congestion in court dockets has resulted in a miscarriage of justice. Because of congestion, it literally takes a generation before some cases are resolved and the remedies prayed for are no longer efficacious because of the passage of time and of changed circumstances. Another consequence of cases pending for an extended period is that court files can disappear and witnesses are likely to lose interest or withdraw their cooperation. In these situations courts would be unable to resolve the dispute according to the true circumstances of the case. Court delays also encourage and facilitate unethical tactics: lawyers and clients are provided greater opportunity to intimidate witnesses, dispose of vital evidence, employ strategies for bribery and influence-peddling, or even win cases as the result of sheer exhaustion on the part of judges or opponents. Court docket congestion likewise deprives judges the time to study thoroughly and reflect on pending cases thus adversely affecting the quality of justice. Judges may succumb to the temptation of uncritically accepting any argument of a party that sounds convincing at face value.
Several causes have been identified for backlog and case delay. Former Chief Justice Andres R. Narvasa gives five of them:
a. the increase in number of cases filed over the years due to the heightened awareness of the people of their rights and privileges, the enactment of new laws and rules, as well as increased government actions affecting private individuals:
b. the lack of courts, and the slowness or difficulty in filling up vacancies;
c. the small budget allocated to the judiciary;
d. the complexity of the rules of procedures;
e. the inadequacy or failure of cooperation of court-related agencies and officers.50
Other authors attribute the causes of delay to:
a. The resistance of lawyers to reforms for efficiency in the court processes because this would mean a loss of their multiple appearance fees;
b. The lack of court control of the docket and poor court management skills on the part of the judge;
c. The use of the courts as a collection agency for B.P. 22 cases where criminal actions arc filed against makers of post-dated checks even when no fraud is involved; and
d. The lack of lawyers in far-flung areas.
An important problem confronting trial courts especially in Metro Manila is the big number of "inherited" cases. These are cases left undecided by judges who had either died, retired, resigned or had been dismissed. A great number of these cases had accumulated over the years and cannot be decided immediately by judges appointed to replace their predecessors.
The Judiciary Planning Development and Implementation Office (JPDIO) was established in June 15, 1989, to address this concern. It had the function of formulating plans, projects and programs to improve the administration of justice. For this purpose. it was tasked with monitoring the programs and performance of judges and the courts. It had coordinated not only with the Office of the Court Administrator but also with other related agencies such as the Department of Justice. To assist RTCs (mainly in the NCJR) in deciding or resolving "inherited cases” the JPDIO had assigned these cases to assisting judges who held office at the JPDIO office in the Supreme Court, for disposition. The Judicial Planning Development and implementation Office also established a monitoring system, initially regionalized, to provide the Supreme Court with solid information on the performance of individual judges and their courts.
The maximum use of pre-trial processes in the settlement of disputes outside the arena of in-court litigation is now mandatory under the 1997 Rules of Civil Procedure. Alternative dispute resolution systems such as arbitration, mediation and conciliation are also being institutionalized to become part of the court system. The creation of small claims court, or specialized courts of specific classes of offenses or claims which can speedily settle localized controversies is seriously being considered. Pre-trial serves to narrow the issues and to provide the court with information to aid the court. It has been demonstrated that a well-conducted pre-trial results in a more orderly presentation of evidence at the trial. To the extent that pre-trial reduces trial time because of admissions or stipulations which dispenses with formal proof of such matters at trial, also solves congestion and delay in the disposition of cases.
A unique feature in the justice system in the Philippines is the settlement of disputes at the barangay or village level. The Katarungang Pambarangay, is a mediation and conciliation system designed to speed up the settlement of minor civil and criminal cases and to minimize the referral of such disputes to the court. In these cases, courts will not entertain complaints unless there is a certification from the Lupon that the dispute could not be settled by the parties. With this innovation, minor cases are resolved at the village level without the need of court action.
In its first two years of operation, the Lupon’s conciliatory panels settled 156,527 or 87.2% of the 179,358 disputes submittcd to them for conciliation. The settlements resulted in an estimated savings of P155,900,000 worth of judicial man-hours. Republic Act No. 7160 (1992), otherwise known as the Local Government Code of 1991, provided for a Revised Katarungang Pambarangay Law and introduced substantial changes not only in the authority granted to the Lupon Tagapamayapa but also in the procedure to be observed in the settlement of disputes within the authority of the Lupon. To prevent the conciliation process from being undermined by indiscriminate, improper or premature issuances of certificates to file actions in court by the Lupon or Pangkat Secretaries, the Supreme Court had issued guidelines to trial court judges in cases brought before them from the Barangays.
Under the sponsorship of Senator (former Chief Justice) Marcelo B. Fernan, Republic Act No. 8493, otherwise known as the Speedy Trial Act, was passed on February 12, 1998. It imposed mandatory pre-trial in all criminal cases cognizable by the Municipal Trial Court. Municipal Circuit Trial Court, Metropolitan Trial Court, Regional Trial Court and the Sandiganbayan to consider plea bargaining, stipulation of facts, marking for identification of evfdence of parties, waiver of objections to admissibility of evidence, and such other matters as will promote a fair and expeditious trial. The following are the time limits imposed by the Act:
Sanctions are also imposed on the counsel for the accused, the public prosecutor or public attorney for 1) knowingly allowing the case to be set for trial without disclosing the fact that a necessary witness would be unavailable for trial; 2) filing a motion solely for the purpose of delay which is totally frivolous and without merit; 3) making a false statement for the purpose of obtaining a continuance; or 4) otherwise willfully failing to proceed to trial without prejudice to any appropriate criminal and/ or administrative charges to be instituted by the proper party, the court may impose a fine not exceeding fifty percent of the compensation to which the private counsel is entitled in connection with the defense of the accused or a fine not exceeding ten thousand pesos on any appointed counsel de officio, or public prosecutor and by denying the defense counsel and prosecution the right to practice for a period not exceeding thirty days.
To implement the provisions of the Act, the Supreme Court issued Circular No. 38-96. dated August 11, 1998. It required that the court, after consultation with the public prosecutor and the counsel for the accused, should set the case for continuous trial on a weekly or other short-term trial calendar at the earliest possible time to ensure speedy trial but in no case should the entire trial period exceed 180 days. It also provided that no provision of Republic Act No. 8493 shall be interpreted as a bar to any charge of denial of speedy trial as provided for in the Constitution.
Supreme Court Circular No. 13 dated July 1, 1987 contained the “Guidelines on the Administration of Justice.” The Circular points out that “delay is a recurring complaint of every litigant. The main objective of every judge particularly of trial judges should be to avoid delay or if it cannot be totally avoided, to hold them to the minimum and to repudiate manifestly dilatory tactics enforced by the Supreme Court to prevent or minimize delay in the administration of Justice.
a. punctuality and strict observance of office hours;
b. maximize use of pre-trial and discovery procedures;
c. active management of trials, minimum postponements;
d. annual conferences on pending cases;
e. inventory of cases every month;
f. preparation of concise and brief decisions;
g. visits by the Supreme Court personnel to make audits of case dispositions.76
Visit, for more materials: www.supremecourt.gov.ph
Atty. Manuel J. Laserna Jr.
lcmlaw@gmail.com
Supreme Court Circular No. 13, issued July 1, 1987 prescribed “Guidelines on the Administration of Justice” to avoid delay and to repudiate dilatory, tactics. This was followed by a Comprehensive Administrative Circular to implement section 12 of Article XIII of the 1987 Constitution. This circular was later amended by Administrative Circular No. 1-A dated July 5, 1988 and Administrative Circular No. 2 to include the semestral inventory of cases and the requirement of strict compliance on the Rules 45 and 65 of the Rules of Court before petitions can be entertained by the Supreme Court.
During his tenure, Chief Justice Marcelo B. Feman initiated the following structural reforms:
a. A framework for continuous trial with the setting up of 84 pilot courts preparatory
to a nationwide implementation of the system;
b. Continuing judicial education under Administrative Order No. 6 including the
holding of orientation seminars for new judges and of career enhancement training
programs for incumbent judges;
c. Adequate monitoring and feedback mechanism in judicial performance with the
creation of the judiciary planning and implementation panel;
d. Revitalization of the Institute of Judicial Administration;
e. Ethical norms of the justice system with the drafting of a new Code of Judicial
Conduct;
f. Reforms in court procedure with the amendments of the Rules on Criminal
Procedure, Summary Procedure and Evidence;
g. Upgrading the internal processes of the Supreme Court;
h. A citizenry information campaign with the public pronouncements on the workings
of the justice system and;
The reforms instituted by Chief Justice Narvasa during his tenure were the following:
1. The establishment of the Philippine Judicial Academy (March 12, 1996) which was later created by law, Republic Act No. 8557 on January 28, 1998.
2. The promulgation of the 1997 Rules of Civil Procedure and the issuance of special Rules for Temporary Restraining Orders and Preliminary Injunctions, as well as the Guidelines in the Archiving of Cases.
3. Designation of special courts for kidnapping, robbery, carnapping, dangerous drugs cases and other heinous crimes, Intellectual Property Rights Violations, as well as on Environmental Law and violations of the Forestry Code cases.
4. The publication of The Court Systems Journal in 1996 and the Handbook on the Court and the Criminal Justice System published in English, Tagalog, Cebuano and Ilongo versions for information dissemination in the administration of justice.
5. The creation of the Judicial Reforms Committee.
6. Creation and operation of the Supreme Court Health and Welfare Plan.
7. Institution of the Case Administration System (CAS) in the Supreme Court.
Under the leadership of Chief Justice Hilario Davide Jr., the Supreme Court has adopted a Blueprint of Action for the Judiciary. The Blueprint has primarily focused on four major areas:
(1) actions to ensure the independence, integrity and accountability of the Judiciary; (2) enhancing knowledge-based adjudication of members of the Judiciary; (3) fairness and efficiency of judicial actions; and (4) enhancing the accessibility of the justice system by all sectors.
Judicial reform has three major objectives: an independent judiciary, a moral judiciary and an efficient judiciary. In plain terms, the goal is to establish a judicial system free from political interference, subject only to the rule of law and the ends of justice; manned and served by morally upright judges and lawyers, through an efficient court system.5
Article VIII of the 1987 Constitution provides that no law can be passed reorganizing the Judiciary when it undermines the security of tenure of its members. The Supreme Court is given administrative supervision over all courts and the personnel thereof. The Judiciary now enjoys fiscal autonomy. Judicial power has been defined to include the duty of courts of justice to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government, thereby enlarging the jurisdiction of the Supreme Court in deciding cases and minimizing the use of political question doctrine in cases brought before the Supreme Court.
To preserve judicial independence, there is a constitutional prohibition against the designation of judges to “any agency performing quasi-judicial or administrative functions.” This provision is supplemented by a Supreme Court resolution prohibiting judges from occupying positions in agencies that would make them subordinate to executive or legislative officials, for instance, as a member of a committee performing administrative functions under the supervision of the Secretary of Justice. The Supreme Court has also issued various circulars and pronouncements designed to promote and enhance the independence of trial judges. Thus, Circular No. 6-87 dated April 1987 prohibits judges from accepting positions in any cooperative and Circular No. 43-91 dated November 11. 1991 limits live televisions and radio coverage of court proceedings.
The budget of the judiciary leaves much to be desired. The appropriation for the judiciary in the year 2000 constituted only 1.07 percent of the total appropriation act.
By means of the Judicial and Bar Council (JBC), the Judiciary now has a stronger voice in judicial appointments. Political patronage has been considerably diminished in the process of identifying and screening prospective nominees for judicial office. The JBC was duly constituted in December 10, 1987 by Chief Justice Claudio Teehankee. The JBC maintains a master list of applicants and recommendees to judicial positions. The list is updated regularly and stored in a database for easy access by the Council Members. The evaluation of each applicant is based on the information provided by the applicant himself and from investigations conducted by the investigation division of the JBC Secretariat. Likewise, there is a separate computerized updated list of all vacancies in the regions, provinces or municipalities. For purposes of transparency, the list of applicants for certain posts are published in the newspapers.
Section 10 of Republic Act No. 8557 (1998), creating the Philippine Judicial Academy (PHILJA) ‘now requires that ‘as soon as PHILJA has been fully organized with the composition of its Corps of Professorial Lecturers and other personnel, only participants who have completed the programs prescribed by the Academy and have satisfactorily complied with all the requirements incident thereto may be appointed or promoted to any position or vacancy in the Judiciary.” The PHILJA regularly offers Pre-Judicature courses which started in 2000.
The JBC submits at least three (3) nominees to the President for every vacancy. For lower courts, the Constitution requires the President to issue the appointment within ninety (90) days from the submission of the list and to fill the vacancy in the Supreme Court within ninety (90) days from its occurrence. All appointments to the judiciary do not need confirmation by the Commission on Appointments. IN 2000, there were 2,221 authorized judicial positions, thus: Supreme Court, 15; Court of Appeals, 51; Sandiganbayan, 15; Court of Tax Appeals, 3; Regional Trial Courts, 950; Metropolitan Trial Courts (MeTC), 82 Municipal Trial Courts in Cities (MTCC), 126, Municipal Trial Courts, 436, Municipal Circuit Trial Courts (MCTC), 480; Shari’a District Court, 5; Shari'a Circuit Court, 5 1.
In 2000 there are 699 vacancies in the different courts. One of the problems of the JBC was the lack of applicants to judicial positions particularly in the municipal level. This was the case especially if the vacancy to the judicial post was in an outlying or distant municipality or in an area where the peace and order was unstable or unsatisfactory. According to the Constitution, the members of the judiciary are appointed from a list of three nominees prepared by the JBC for every vacancy. The list obviously cannot be made if there are not enough qualified applicants to the position. Where the number of recommendees or applicants for a vacancy are less than three or where there is no applicant at all, the JBC is constrained to defer further consideration of the particular vacancy until it is able to obtain the requisite number of at least three applicants for screening and nomination.
The low level of compensation for judicial positions also accounts for the lack of applicants. Even in progressive provinces like Cebu, where there are a number of active practitioners, the problem of filling up vacancies persists because the compensation provided for these positions are not substantial enough to be attractive.
In 1975, Presidential Decree No. 842 created the Office of the Court Administrator which became the instrumentality through which the Supreme Court performed its supervisory functions over the courts. Under the Decree, the Court Administrator, has the rank, salary and privileges of the Presiding Justice of the Court of Appeals and he is assisted by the three Deputy Court Administrators (DCAs) who are assigned to administer certain judicial regions of the Philippines. The DCAs have the salary, rank and privileges of an Associate Justice of the Court of Appeals. The OCA has four priorities:
a. The promotion of procedural and administrative improvements of the courts;
b. Undertaking a continuous and systematic study of the structure, operations and manpower requirements of the courts with the end in view of identifying, in particular, the factors which cause docket congestion and case disposition delay and addressing such problems:
c. Legal education and court management programs for trial judges and court personnel: and
d. Function as a national clearing house with respect to reforms and innovations in judicial administration.
In 1988, the Court created a committee headed by Justice Irene R. Cortes, former Dean of the U.P. College of Law, to formulate a new Code of Judicial Conduct. The Committee submitted a proposed Code which incorporates measures to guarantee judicial discipline to maintain judicial integrity. The Supreme Court promulgated the Code of Judiciary Conduct on 5 September 1989 which took effect on 20 October 1989.
Prior to 1975 the training of judges in the Philippines was conducted on an ad hoc basis, by existing judges’ organizations. Aside from seminars conducted during conferences of judges, the trial judges participated in continuing legal education programs of the U.P. Law Center. In 1975, during the tenure of Chief Justice Querube Makalintal, the Supreme Court formally organized seminars for executive trial judges in four classes conductcd by the Development Academy of the Philippines. The provision of judicial training to judges in the University of the Philippines Law Center ended when the Supreme Court established a formal structure in the training of judges with the organization of the Institute of Judicial Administration (IJA) on 1 September 1983.
The orientation program for a newly appointed judge essentially consists of familiarizing the judge with all Supreme Court administrative circulars, principles of judicial ethics, including court rules and decisions, the judges’ relationship with the Bar, work attitudes and work ethics, courtroom semantics, communication techniques and decision writing. After the orientation course and before the judge begins to hear cases, he goes through an immersion program at his station. During his immersion the neophyte judge (1) observes court trials by sitting with a senior judge in the conduct of judicial proceedings; (2) observes the activities in the Office of the Clerk of Court, meets the court personnel, and studies their functions and duties: (3) inventories all pending cases in the branch to which he is assigned: (4) tours the territory within the jurisdiction of his court; and (5) familiarizes himself with the various local governments and government agencies operating within the territorial jurisdiction of his court.
The immersion program is supervised by the executive judge of the station, who submits to the Supreme Court a certification of completion of the immersion program. Only after completing the immersion program will the judge formally assume his judicial office.
The judicial career enrichment and judicial executive program is held once a year. It has the following salient features: (a) review of recent Supreme Court decisions and legislation; (b) monitoring and assessment of the performance of participating judges’ (c) judicial clinic to discuss court problems: and other relevant aspects of judicial training as may be prescribed by the Chief Justice.
The thrust of the judicial career development program for trial judges is to train them both as adjudicators and court managers. Today’s judges bear the highly complex responsibility not only of preparing just decisions, but also of managing effectively the human and physical resources of his court to ensure efficient and speedy delivery of justice services. Many judges see themselves only as judges and not as managers of a system of administering a justice system, but the reality is that the judge plays the dual role of both judge and manager. Hence, there is need for training them in the principles of effective court management, which would integrate their roles as adjudicators and managers in the administration of justice.
Under the chairmanship of Justice Ameurfina A. Herrera, a Committee of the Court submitted a draft of an Administrative Order creating the Philippine Judicial Academy (PHILJA). Among the salient features are:
a. The Academy shall be a unit with the same organizational status as the Judiciary Development Planning and Implementation Office;
b. It shall he supervised by a Governing Board with the Chief Justice as Chairman;
c. The executive officials shall be headed by a Chancellor; and
d. Its teaching force shall be composed of an appointive corps of professors.
Since the Academy was envisioned as an institutionalization and refinement of the current programs for orientation and career development of judges, the Committee recommended that the programs being undertaken through the Office of the Court Administrator be assigned to the PHILJA. Coordination with the Institute of Judicial Administration of the University of the Philippines would still continue in appropriate areas of common concern under existing agreements whenever necessary.
In 1995, President Fidel V. Ramos authorized the transfer of the majority shareholdings of the Government in the Ridge Resort and Convention (RRCC) at Tagaytay City to the Supreme Court. On August 29, 1995, the Supreme Court in an en banc Resolution, authorized the Chief Justice to appoint interim directors and officers to run and manage the RRCC preparatory to the full operation of the Academy.
The Supreme Court formally established the Philippine Judicial Academy under Administrative Order 35-96, dated March 12, 1996. The appointments of retired Justices Ameurfina Melencio-Herrera and Irene Cortes as Chancellor and Vice-Chancellor, respectively, followed.
.
In coordination with the U.P. Institute of Judicial Administration (IJA), PHILJA had conducted various Seminars/Workshops and Conventions-Seminars. In 1996, it made certain innovations in its previous programs, to wit:
1. Total Quality Management (TQM) for courts. This is a new management strategy which stresses the responsibility of the Judge, as head, and all Court personnel working as a team, to ensure the effective administration and management of the court. PHILJA introduced this strategy for the first time in a Seminar-Workshop for Executive Judges of the MeTCs and MTCCs on October 23. 1996. This new concept emphasizes that Judges alone do not make the courts. After the Seminar, participants were enjoined to apply the concepts they had learned and to report to PHILJA every quarter during the ensuing year.
2. Dynamics of Leadership and Management Strategies. The Seminar-Workshop for Executive Judges of the RTCs held on September 24-27, 1996, focused on “Building a Judicial Management Team: Team Management.” The inputs provided by a faculty member of the Asian Institute of Management were intended to assist Executive Judges, and through them the Judges in their respective stations, in their leadership and management responsibilities.
3. Immersion Program for New Judges. PHILJA also revived the Immersion Program for new Judges under the supervision of Executive Judges in their respective stations. New judges undergo this Program before they assume their judicial duties. The activities include, among others, actual observation of court trials by sitting in with an experienced Judge in the conduct of proceedings: the observation of the activities in the Office of the Clerk of Court: and an inventory of all pending cases. The Executive Judge submits to the Supreme Court a Certificate of Completion of the Immersion Program. The Former program previously prescribed one (1) week for this subject. The increase in the prescribed period was necessitated by the growing complexities in the administration and delivery of justice.
4. English Grammar for Judges. This was introduced during the second Orientation Seminar for newly appointed Judges on November 11-15, 1996. Coincidentally, the “Observations on the Press” by the Philippine Judges Association and RTC Judges Association, Q.C. published on October 13, 1996 in the Manila Bulletin, was criticized by the Philippine Daily Inquirer in its issue of November 1, 1996 for "grammar and tormented English."
5. 5. Public Perceptions on Judges . A survey of the public perception on Judges was presented by the Social Weather Stations, Inc. in two seminars. Reactors from the Bench, the Bar, and mass media were invited to give comments. Judges’ reactions to the negative public perceptions ranged from incredulity to displeasure. They even challenged the methodology used in the survey. It was noted, however, that some surveys included Judges themselves as respondents.
6. Courts and Child Abuse. With the enactment of Republic Act No. 7691, topics on “Domestic Violence and Child Abuse” and “The Courts and Child Abuse” were included in two Seminars not only for informative purposes but also to make Courts more child-friendly and more effective in coping with the peculiar nature of those cases, which are proliferating worldwide.
7. Judicial Ethics and Discipline: Pitfalls in the Exercise of Judicial Power. This is to emphasize that judges must conform to the Code of Judicial Conduct and to understand the responsibility of a judge in the exercise of judicial power.
8. Values Formation. Adhering to the moral standards of old apparently has been forgotten. People have become desensitized to so much of corruption and degeneracy of those who hold the public trust. This course injects standards and values leading to a moral rebirth.
9. Computerization program A hands-on computer training program has been started for use in courtroom activities.28
On February 26. 1998, President Ramos signed into law, Republic Act No. 8557 otherwise known as the PHILJA Charter. The Charter makes the Academy a unit of the Supreme Court, governed by a Board of Trustees with a Chief Justice as ex-officio Chairman, and administered by Executive Officials headed by the Chancellor.
On July 14, 1997, the Supreme Court directcd PHILJA to undertake an in-depth examination of the present legal and judicial system for the purpose of “upgrading, improving and reforming it to meet the changes and challenges of a new millenium upon the suggestion of Associate Justice Artemio V. Panganiban. This directive led to the creation of a Judicial Reforms Committee in the latter part of 1997. Among the recommendations of the Committee to the Supreme Court were:
1. Elimination of the review of labor cases from the original jurisdiction of the Supreme Court;
2. Reforms for Case Flow Management in the Supreme Court;
3. Constitutional reforms in the composition of the Senate and House of Representatives Electoral Tribunals;
4. Reforms in Philippine Juvenile Justice System;
5. Provision of “PHILJA Updates” in electronic format:
6. Amendments to some constitutional provisions on the Judicial and Bar Council (JBC);
7. Placing under the Office of the Chief Justice, the Publication and Information Office created in the Office of the Court Administrator;
8. Amendments to Certain Sections of Rule 14 of the Revised Rules of Civil Procedure Prescribing a Period for Service of Summons,
9. Expansion of the Coverage and Increase of the Penalty for Violation of Article 243 of the Revised Penal Code, as Amended;
10. Adoption of Uniform and Simplified Orders for Trial Courts:
11. Briefing on Orientation Session for Newly Appointed Justices of the Court of Appeals with Suggestions to the Court of Appeals on (a) their Internal Rules, and (b) Decongesting its Docket and Improving Case Flow:
12. Amendment of Rule 15 of the 1997 Rules on Civil Procedure by Prescribing a Period for the Resolution of Motions (No. R-5, Feb. 10, 1999);
13. Proposal to Clarify the Applicability of Administrative Order No. 3, dated October 19, 1984 to Notarial Foreclosures of Mortgage;
14. Proposal to Amend Administrative Order No. 3, dated 19 October 1984, so as to Establish a Uniform Procedure for all kinds of Extra-Judicial Foreclosures of Real Estate Mortgage.
Article Ill, section 16 of the 1987 Constitution provides that: “all persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.” However. the bane of the judicial system is court congestion and delay. Congestion of court dockets continues to be one of the most serious problems of the Philippine judicial system. Cases pending in all levels of the judicial system keep piling up at an alarming rate. The general average of judicial disposal of cases annually is only at 85.83%.
Congestion in court dockets has resulted in a miscarriage of justice. Because of congestion, it literally takes a generation before some cases are resolved and the remedies prayed for are no longer efficacious because of the passage of time and of changed circumstances. Another consequence of cases pending for an extended period is that court files can disappear and witnesses are likely to lose interest or withdraw their cooperation. In these situations courts would be unable to resolve the dispute according to the true circumstances of the case. Court delays also encourage and facilitate unethical tactics: lawyers and clients are provided greater opportunity to intimidate witnesses, dispose of vital evidence, employ strategies for bribery and influence-peddling, or even win cases as the result of sheer exhaustion on the part of judges or opponents. Court docket congestion likewise deprives judges the time to study thoroughly and reflect on pending cases thus adversely affecting the quality of justice. Judges may succumb to the temptation of uncritically accepting any argument of a party that sounds convincing at face value.
Several causes have been identified for backlog and case delay. Former Chief Justice Andres R. Narvasa gives five of them:
a. the increase in number of cases filed over the years due to the heightened awareness of the people of their rights and privileges, the enactment of new laws and rules, as well as increased government actions affecting private individuals:
b. the lack of courts, and the slowness or difficulty in filling up vacancies;
c. the small budget allocated to the judiciary;
d. the complexity of the rules of procedures;
e. the inadequacy or failure of cooperation of court-related agencies and officers.50
Other authors attribute the causes of delay to:
a. The resistance of lawyers to reforms for efficiency in the court processes because this would mean a loss of their multiple appearance fees;
b. The lack of court control of the docket and poor court management skills on the part of the judge;
c. The use of the courts as a collection agency for B.P. 22 cases where criminal actions arc filed against makers of post-dated checks even when no fraud is involved; and
d. The lack of lawyers in far-flung areas.
An important problem confronting trial courts especially in Metro Manila is the big number of "inherited" cases. These are cases left undecided by judges who had either died, retired, resigned or had been dismissed. A great number of these cases had accumulated over the years and cannot be decided immediately by judges appointed to replace their predecessors.
The Judiciary Planning Development and Implementation Office (JPDIO) was established in June 15, 1989, to address this concern. It had the function of formulating plans, projects and programs to improve the administration of justice. For this purpose. it was tasked with monitoring the programs and performance of judges and the courts. It had coordinated not only with the Office of the Court Administrator but also with other related agencies such as the Department of Justice. To assist RTCs (mainly in the NCJR) in deciding or resolving "inherited cases” the JPDIO had assigned these cases to assisting judges who held office at the JPDIO office in the Supreme Court, for disposition. The Judicial Planning Development and implementation Office also established a monitoring system, initially regionalized, to provide the Supreme Court with solid information on the performance of individual judges and their courts.
The maximum use of pre-trial processes in the settlement of disputes outside the arena of in-court litigation is now mandatory under the 1997 Rules of Civil Procedure. Alternative dispute resolution systems such as arbitration, mediation and conciliation are also being institutionalized to become part of the court system. The creation of small claims court, or specialized courts of specific classes of offenses or claims which can speedily settle localized controversies is seriously being considered. Pre-trial serves to narrow the issues and to provide the court with information to aid the court. It has been demonstrated that a well-conducted pre-trial results in a more orderly presentation of evidence at the trial. To the extent that pre-trial reduces trial time because of admissions or stipulations which dispenses with formal proof of such matters at trial, also solves congestion and delay in the disposition of cases.
A unique feature in the justice system in the Philippines is the settlement of disputes at the barangay or village level. The Katarungang Pambarangay, is a mediation and conciliation system designed to speed up the settlement of minor civil and criminal cases and to minimize the referral of such disputes to the court. In these cases, courts will not entertain complaints unless there is a certification from the Lupon that the dispute could not be settled by the parties. With this innovation, minor cases are resolved at the village level without the need of court action.
In its first two years of operation, the Lupon’s conciliatory panels settled 156,527 or 87.2% of the 179,358 disputes submittcd to them for conciliation. The settlements resulted in an estimated savings of P155,900,000 worth of judicial man-hours. Republic Act No. 7160 (1992), otherwise known as the Local Government Code of 1991, provided for a Revised Katarungang Pambarangay Law and introduced substantial changes not only in the authority granted to the Lupon Tagapamayapa but also in the procedure to be observed in the settlement of disputes within the authority of the Lupon. To prevent the conciliation process from being undermined by indiscriminate, improper or premature issuances of certificates to file actions in court by the Lupon or Pangkat Secretaries, the Supreme Court had issued guidelines to trial court judges in cases brought before them from the Barangays.
Under the sponsorship of Senator (former Chief Justice) Marcelo B. Fernan, Republic Act No. 8493, otherwise known as the Speedy Trial Act, was passed on February 12, 1998. It imposed mandatory pre-trial in all criminal cases cognizable by the Municipal Trial Court. Municipal Circuit Trial Court, Metropolitan Trial Court, Regional Trial Court and the Sandiganbayan to consider plea bargaining, stipulation of facts, marking for identification of evfdence of parties, waiver of objections to admissibility of evidence, and such other matters as will promote a fair and expeditious trial. The following are the time limits imposed by the Act:
Sanctions are also imposed on the counsel for the accused, the public prosecutor or public attorney for 1) knowingly allowing the case to be set for trial without disclosing the fact that a necessary witness would be unavailable for trial; 2) filing a motion solely for the purpose of delay which is totally frivolous and without merit; 3) making a false statement for the purpose of obtaining a continuance; or 4) otherwise willfully failing to proceed to trial without prejudice to any appropriate criminal and/ or administrative charges to be instituted by the proper party, the court may impose a fine not exceeding fifty percent of the compensation to which the private counsel is entitled in connection with the defense of the accused or a fine not exceeding ten thousand pesos on any appointed counsel de officio, or public prosecutor and by denying the defense counsel and prosecution the right to practice for a period not exceeding thirty days.
To implement the provisions of the Act, the Supreme Court issued Circular No. 38-96. dated August 11, 1998. It required that the court, after consultation with the public prosecutor and the counsel for the accused, should set the case for continuous trial on a weekly or other short-term trial calendar at the earliest possible time to ensure speedy trial but in no case should the entire trial period exceed 180 days. It also provided that no provision of Republic Act No. 8493 shall be interpreted as a bar to any charge of denial of speedy trial as provided for in the Constitution.
Supreme Court Circular No. 13 dated July 1, 1987 contained the “Guidelines on the Administration of Justice.” The Circular points out that “delay is a recurring complaint of every litigant. The main objective of every judge particularly of trial judges should be to avoid delay or if it cannot be totally avoided, to hold them to the minimum and to repudiate manifestly dilatory tactics enforced by the Supreme Court to prevent or minimize delay in the administration of Justice.
a. punctuality and strict observance of office hours;
b. maximize use of pre-trial and discovery procedures;
c. active management of trials, minimum postponements;
d. annual conferences on pending cases;
e. inventory of cases every month;
f. preparation of concise and brief decisions;
g. visits by the Supreme Court personnel to make audits of case dispositions.76
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Atty. Manuel J. Laserna Jr.
lcmlaw@gmail.com