Full disclosure

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RA 9406 (PAO)

Republic Act No. 9406, which was approved on March 23, 2007, reorganized and strengthened the Public Attorneys Office (PAO).
It is long overdue. Like Public Prosecutors of the National Prosecution Service (NPS) and Solicitors of the Office of the Solicitor General (OSG), the PAO lawyers are overworked advocates of law and justice.
I am happy that they have been given the appropriate recognition and support that are due them and deserved by them. All of them are attached to the Department of Justice (DOJ).
The PAO is an “an independent and autonomous office” attached to the DOJ for the purposes of “policy and program coordination”.
It is “the principal law office of the government in extending free legal assistance to indigent persons in criminal, civil, labor, administrative and other quasi-judicial cases."
It shall “independently discharge its mandate to render, free of charge, legal representation, assistance, and counseling to indigent persons”.
The PA0 is composed of the following constituent units:

1. Office of the Chief Public Attorney
2. A Deputy Chief Public Attorney for Administration
3. A Deputy Chief Public Attorney for Operations
4. A Deputy Chief Public Attorney for Luzon
5. A Deputy Chief Public Attorney for Visayas and Mindanao
6. Six line divisions in the Central Office: Administrative, Financial Planning and Management, Special and Appealed Cases, Legal Research
and Statistics, Field Services and Statistics, and Executive Division
7. Regional, Provincial, City, and Municipal District Offices.

The Chief Public Attorney shall have the same qualifications for appointment, rank, salaries, allowances, and retirement privileges as those of the “Chief State Prosecutor of the National Prosecution Service”.
The Deputy Chief Public Attorneys shall have the same qualifications for appointment, rank, salaries, allowances, and retirement privileges as those of the “Assistant Chief State Prosecutor of the National Prosecution Service”.
The Regional Public Attorney and the Assistant Regional Public Attorney shall have the same qualifications for appointment, rank, salaries, allowances, and retirement privileges as those of a “Regional State Prosecutor and the Assistant Regional State Prosecutor of the National Prosecution Service”
respectively.
The Provincial Public Attorney, City Public Attorney and the Municipal District Public Attorney shall have the same qualifications for appointment, rank, salaries, allowances and retirement privileges as those of a “Provincial Prosecutor and City Prosecutor”, as the case may be, of the National Prosecution Service, respectively.
The Chief Public Attorney and the Deputy Chief Public Attorneys shall be appointed by the President. The Deputy Chief Public Attorneys and Regional Public Attorneys shall be appointed by the President upon the recommendation of the Chief Public Attorney.
The Chief Public Attorney, Deputy Chief Public Attorneys and Regional Public Attorneys shall not be removed or suspended, except for cause provided by law.
The clients of the PAO shall be “exempt from payment of docket and other fees incidental to instituting an action in court and other quasi-judicial bodies, as an original proceeding or on appeal.”
The costs of the suit, attorney's fees and contingent fees imposed upon the adversary of the PAO clients after a successful litigation shall be deposited in the National Treasury as trust fund and shall be “disbursed for special allowances of authorized officials and lawyers of the PAO."
Local government units, subject to their capabilities, are “authorized to extend financial and other support in the form of honoraria, free office space, equipment, furniture, stationery, and manpower to the PAO."
The PAO may transmit through ordinary mail and/or registered mail with return card, “free of charge”, all official communications and papers directly connected with the conduct of its duties, function and/or its exercise of administrative supervision over its personnel.
There shall be a corresponding number of public attorney's positions at the ratio of “one public attorney to an organized sala” and the corresponding administrative and support staff thereto.
PAO lawyers may “administer oaths in connection with the performance of duty.” They shall “charge no fee, unless specifically authorized by law."
The Chief Public Attorney, the Deputy Chief Public Attorneys, the Regional Public Attorneys, the Provincial, City and Municipal District Public Attorneys, other PAO lawyers and officials who have direct supervision over PAO lawyers shall be granted “special allowances” in the amounts to be determined by the Secretary of the Department of Budget and Management (DBM) and the Chief Public Attorney, in no case to exceed “one hundred percent (100%) of the basic salary of the PAO officials and lawyers.”

ASEAN

For purposes of legal research of the visitors of this blog, may I summarize the salient provisions of the Charter of the Association of the Southeast Asian Nations (ASEAN) which may be directly or indirectly relevant to the Justice System and the Legal Profession in the ASEAN Region.

ASEAN is composed of Brunei Darussalam, the Kingdom of Cambodia, the Republic of Indonesia, the Lao People’s Democratic Republic, Malaysia, the Union of Myanmar, the Republic of the Philippines, the Republic of Singapore, the Kingdom of Thailand and the Socialist Republic of Viet Nam.

The purposes of the ASEAN are as follows:

1. To maintain and enhance peace, security and stability and further strengthen peace-oriented values in the region; ;

2. To enhance regional resilience by promoting greater political, security, economic and socio-cultural cooperation; ;

3. To preserve Southeast Asia as a Nuclear Weapon-Free Zone and free of all other weapons of mass destruction; ;

4. To ensure that the peoples and Member States of ASEAN live in peace with the world at large in a just, democratic and harmonious environment;

5. To create a single market and production base which is stable, prosperous, highly competitive and economically integrated with effective facilitation for trade and investment in which there is free flow of goods, services and investment; facilitated movement of business persons, professionals, talents and labor; and freer flow of capital;

6. To alleviate poverty and narrow the development gap within ASEAN through mutual assistance and cooperation;

7. To strengthen democracy, enhance good governance and the rule of law, and to promote and protect human rights and fundamental freedoms, with due regard to the rights and responsibilities of the Member States of ASEAN;

8. To respond effectively, in accordance with the principle of comprehensive security, to all forms of threats, transnational crimes and transboundary challenges;

9. To promote sustainable development so as to ensure the protection of the region’s environment, the sustainability of its natural resources, the preservation of its cultural heritage and the high quality of life of its peoples;

10. To develop human resources through closer cooperation in education and life-long learning, and in science and technology, for the empowerment of the peoples of ASEAN and for the strengthening of the ASEAN Community;

11. To enhance the well-being and livelihood of the peoples of ASEAN by providing them with equitable access to opportunities for human development, social welfare and justice;

12. To strengthen cooperation in building a safe, secure and drug-free environment for the peoples of ASEAN;

13. To promote a people-oriented ASEAN in which all sectors of society are encouraged to participate in, and benefit from, the process of ASEAN integration and community building;

14. To promote an ASEAN identity through the fostering of greater awareness of the diverse culture and heritage of the region; and

15. To maintain the centrality and proactive role of ASEAN as the primary driving force in its relations and cooperation with its external partners in a regional architecture that is open, transparent and inclusive.


The basic principles that guide ASEAN are as follows:

1. respect for the independence, sovereignty, equality, territorial integrity and national identity of all ASEAN Member States;

2. shared commitment and collective responsibility in enhancing regional peace, security and prosperity;

3. renunciation of aggression and of the threat or use of force or other actions in any manner inconsistent with international law;

4. reliance on peaceful settlement of disputes;

5. non-interference in the internal affairs of ASEAN Member States;

6. respect for the right of every Member State to lead its national existence free from external interference, subversion and coercion;

7. enhanced consultations on matters seriously affecting the common interest of ASEAN;

8. adherence to the rule of law, good governance, the principles of democracy and constitutional government;

9. respect for fundamental freedoms, the promotion and protection of human rights, and the promotion of social justice;

10. upholding the United Nations Charter and international law, including international humanitarian law, subscribed to by ASEAN Member States;

11. abstention from participation in any policy or activity, including the use of its territory, pursued by any ASEAN Member State or non-ASEAN State or any non-State actor, which threatens the sovereignty, territorial integrity or political and economic stability of ASEAN Member States;

13. respect for the different cultures, languages and religions of the peoples of ASEAN, while emphasizing their common values in the spirit of unity in diversity;

14. the centrality of ASEAN in external political, economic, social and cultural relations while remaining actively engaged, outward-looking, inclusive and non-discriminatory; and

15. adherence to multilateral trade rules and ASEAN’s rules-based regimes for effective implementation of economic commitments and progressive reduction towards elimination of all barriers to regional economic integration, in a market-driven economy.


The over-all structure of ASEAN is made up of the ASEAN Summit (composed of the Heads of State or Government of the Member States), ASEAN Coordinating Council, the ASEAN Community Councils, and the ASEAN Sectoral Ministerial Bodies. It chief operating officer is the ASEAN Secretary-General who is appointed by the ASEAN Summit. The ASEAN Coordinating Council is composed of the ASEAN Foreign Ministers. The ASEAN Community Councils is composed of the ASEAN Political-Security Community Council, ASEAN Economic Community Council, and ASEAN Socio-Cultural Community Council. Each ASEAN Community Council shall have under its purview the relevant ASEAN Sectoral Ministerial Bodies. The ASEAN SECTORAL MINISTERIAL BODIES function in accordance with their respective established mandates. Each ASEAN Sectoral Ministerial Body may have under its purview the relevant senior officials and subsidiary bodies to undertake its functions as contained in Annex 1 of the Charter.

The Secretary-General of ASEAN shall be appointed by the ASEAN Summit for a non-renewable term of office of five years, selected from among nationals of the ASEAN Member States based on alphabetical rotation, with due consideration to integrity, capability and professional experience, and gender equality. He recommends the appointment and termination of the Deputy Secretaries-General to the ASEAN Coordinating Council for approval. The Secretary-General shall be the Chief Administrative Officer of ASEAN. He shall be assisted by four Deputy Secretaries-General with the rank and status of Deputy Ministers. The Deputy Secretaries-General shall be accountable to the Secretary-General in carrying out their functions. The four Deputy Secretaries-General shall be of different nationalities from the Secretary-General and shall come from four different ASEAN Member States.

Each ASEAN Member State shall appoint a Permanent Representative to ASEAN with the rank of Ambassador based in Jakarta. The Permanent Representatives collectively constitute a Committee of Permanent Representatives, which shall support the work of the ASEAN Community Councils and ASEAN Sectoral Ministerial Bodies, coordinate with ASEAN National Secretariats and other ASEAN Sectoral Ministerial Bodies, liaise with the Secretary-General of ASEAN and the ASEAN Secretariat on all subjects relevant to its work, and facilitate ASEAN cooperation with external partners.

Each ASEAN Member State shall establish an ASEAN National Secretariat.

In conformity with the purposes and principles of the ASEAN Charter relating to the promotion and protection of human rights and fundamental freedoms, ASEAN shall establish an ASEAN human rights body. This ASEAN human rights body shall operate in accordance with the terms of reference to be determined by the ASEAN Foreign Ministers Meeting. (Note: It will be noted that the said body is not conferred judicial or quasi-judicial and prosecutorial powers by the Charter, which is one of its weaknesses).

An ASEAN Foundation is created by the Charter, which shall support the Secretary-General of ASEAN and collaborate with the relevant ASEAN bodies to support ASEAN community building by promoting greater awareness of the ASEAN identity, people-to-people interaction, and close collaboration among the business sector, civil society, academia and other stakeholders in ASEAN. The ASEAN Foundation shall be accountable to the Secretary-General of ASEAN, who shall submit its report to the ASEAN Summit through the ASEAN Coordinating Council.

ASEAN shall enjoy in the territories of the Member States such immunities and privileges as are necessary for the fulfillment of its purposes.
The immunities and privileges shall be laid down in separate agreements between ASEAN and the host Member State.

The Secretary-General of ASEAN and staff of the ASEAN Secretariat participating in official ASEAN activities or representing ASEAN in the Member States shall enjoy such immunities and privileges as are necessary for the independent exercise of their functions. The immunities and privileges shall be laid down in a separate ASEAN agreement.

The Permanent Representatives of the Member States to ASEAN and officials of the Member States participating in official ASEAN activities or representing ASEAN in the Member States shall enjoy such immunities and privileges as are necessary for the exercise of their functions. The immunities and privileges of the Permanent Representatives and officials on ASEAN duties shall be governed by the 1961 Vienna Convention on Diplomatic Relations or in accordance with the national law of the ASEAN Member State concerned.

As has been its tradition, a basic principle of ASEAN decision-making process is the principle of consultation and consensus. Where consensus cannot be achieved, the ASEAN Summit may decide how a specific decision can be made.

In the case of a serious breach of the Charter or noncompliance, the matter shall be referred to the ASEAN Summit for decision. Member States shall endeavor to resolve peacefully all disputes in a timely manner through dialogue, consultation and negotiation. ASEAN shall maintain and establish dispute settlement mechanisms in all fields of ASEAN cooperation.

Member States which are parties to a dispute may at any time agree to resort to good offices, conciliation or mediation in order to resolve the dispute within an agreed time limit. Parties to the dispute may request the Chairman of ASEAN or the Secretary-General of ASEAN, acting in an ex-officio capacity, to provide good offices, conciliation or mediation.

Disputes relating to specific ASEAN instruments shall be settled through the mechanisms and procedures provided for in such instruments. Disputes which do not concern the interpretation or application of any ASEAN instrument shall be resolved peacefully in accordance with the Treaty of Amity and Cooperation in Southeast Asia and its rules of procedure. Where not otherwise specifically provided, disputes which concern the interpretation or application of ASEAN economic agreements shall be settled in accordance with the ASEAN Protocol on Enhanced Dispute Settlement Mechanism. Where not otherwise specifically provided, appropriate dispute settlement mechanisms, including arbitration, shall be established for disputes which concern the interpretation or application of the Charter and other ASEAN instruments. When a dispute remains unresolved, after the application of the preceding provisions, the dispute shall be referred to the ASEAN Summit for decision.

Unless otherwise provided for in this Charter, Member States have the right of recourse to the modes of peaceful settlement contained in Article 33(1) of the Charter of the United Nations or any other international legal instruments to which the disputing Member States are parties.

The Chairmanship of ASEAN shall rotate annually, based on the alphabetical order of the English names of Member States. ASEAN shall have, in a calendar year, a single Chairmanship by which the Member State assuming the Chairmanship shall chair the ASEAN Summit and related summits, the ASEAN Coordinating Council, the three ASEAN Community Councils, where appropriate, the relevant ASEAN Sectoral Ministerial Bodies and senior officials, and the Committee of Permanent Representatives.

The eighth of August of each year shall be observed as ASEAN Day.

ASEAN shall develop friendly relations and mutually beneficial dialogue, cooperation and partnerships with countries and sub-regional, regional and international organizations and institutions. ASEAN shall be the primary driving force in regional arrangements that it initiates and maintain its centrality in regional cooperation and community building. In the conduct of external relations of ASEAN, Member States shall, on the basis of unity and solidarity, coordinate and endeavor to develop common positions and pursue joint actions. The strategic policy directions of ASEAN’s external relations shall be set by the ASEAN Summit upon the recommendation of the ASEAN Foreign Ministers Meeting.

The ASEAN Foreign Ministers Meeting shall ensure consistency and coherence in the conduct of ASEAN’s external relations. ASEAN may conclude agreements with countries or subregional, regional and international organizations and institutions. The procedures for concluding such agreements shall be prescribed by the ASEAN Coordinating Council in consultation with the ASEAN Community Councils.

ASEAN Committees in Third Countries may be established in non-ASEAN countries comprising heads of diplomatic missions of ASEAN Member States. Similar Committees may be established relating to international organizations. Such Committees shall promote ASEAN’s interests and identity in the host countries and international organizations. The ASEAN Foreign Ministers Meeting shall determine the rules of procedure of such Committees.

In conducting ASEAN’s external relations, the ASEAN Foreign Ministers Meeting may confer on an external party the formal status of Dialogue Partner, Sectoral Dialogue Partner, Development Partner, Special Observer, Guest, or other status that may be established henceforth. External parties may be invited to ASEAN meetings or cooperative activities without being conferred any formal status, in accordance with the rules of procedure.

ASEAN may seek an appropriate status with the United Nations system as well as with other sub-regional, regional, international organizations and institutions. The ASEAN Coordinating Council shall decide on the participation of ASEAN in other sub-regional, regional, international organizations and institutions.

Non-ASEAN Member States and relevant inter-governmental organizations may appoint and accredit Ambassadors to ASEAN. The ASEAN Foreign Ministers Meeting shall decide on such accreditation.

Less talk, please.

The Philippine Daily Inquirer has published my previous blog entry on the issue of the Court of Appeals’ Covenant. I hope the Bench would not be onion-skinned in reacting to my opinion on the matter. Here is the full text thereof:


What for is the Covenant
Philippine Daily Inquirer, October 4, 3008, p. A12.


JUSTICES OF THE COURT OF APPEALS signed last Sept.14 a “covenant” in which they committed to “repair the damage caused” by the bribery scandal linked to the Meralco-GSIS case. They vowed to “prove our detractors wrong… show them we are not the kind of magistrates we are now perceived to be.”

The covenant commits to:
• The creation of a one-stop-shop that will handle the filing of cases, payment of docket fees, follow up of cases, etc.
• Electronic raffling of cases
• Revisions of the Internal Rules of the Court of Appeals
• Designation of a retired Supreme Court justice as Ombudsman for the Court of Appeals; and
• Case-load reduction.

As if a pending case is like a routine government contract, the justices said, “the one-stop-shop is intended to reduce the irregularities by minimizing the number of agencies that a litigant would have to go to in filing and following up a case.”

As if machines alone generate public trust, they said, “the raffling of cases will become electronic to make sure that there will be no more manipulation in assigning cases to justice”.

As if technical rules are the fountainhead of true justice, they promised that the Internal Rules of the Court of Appeals would be studied and amendments would be proposed.

The question is, why limit the same only to the Court of Appeals? What about the Sandiganbayan, the Court of Tax Appeals, and the lower courts per region? Why not apply the Ombudsman experiment to all judicial regions of the country?

Chief Justice Reynato Puno with his usual spiritual flavor, stated that “the ‘touching’ covenant could be achieved through moral renewal,” that “together we shall arise, overcome and emerge victorious, so is your invocation of Gods grace…”

The problem with mankind, Filipinos or otherwise, is that in times of trouble they invoke God as their refuge even with respect to events and issues that are not of His own making.

Moral renewal, yes. But are written technical rules of procedures, computers and infrastructures enough to achieve it? Do justices and lawyers live the percepts of moral enlightenment or is their livelihood ruled by greed and pride, form and externalities, hypocrisy and popularity? That is why, I listen to the following words of the Chief Justice with a grain of salt: “I cannot but concur with you that we need moral renewal in this struggle to cleanse the judiciary. It is but right that the first component of our covenant is moral enhancement. This is recognition that our legal universe revolves around the sun of morality.”

All right, Mr. Justice. Let’s get down to hard and ethical work. Less talk, pleas. Produce results.


- MANUEL LASERNA JR.,
Unit 15 Star Arcade, CV Starr Avenue
Philamlife Village, Las Piñas City

Lost dreams

To hear a senior lawyer express his dismay over the justice system bothers the confidence of younger lawyers in the legal profession.

Below is the letter to the editor of a senior/veteran lawyer, Atty. Efren Carag, published in the Philippine Daily Inquirer, which ends with a citation of Deuteronomy 16 in the New American Bible:

“You shall not distort justice; you must be impartial. You shall not take bribe; for a bribe blinds the eyes even of the wise and twists the words even of the just; justice and justice alone shall be your aim that you may have life.”
The letter expresses a balance between truth and money. Or, better yet, the happiness of voluntary poverty versus professional greed and corruption.


Lost Dreams

Philippine Daily Inquirer, October 9, 2008, p. A12.


RIGHT AFTER LOSING A CASE THAT MY office had zealously prayed for to win, PCGG chair Camilo Sabio painfully reminded me of the fact that the people-despite being prohibited by law or by the code of ethics- talk to judges and justices about their cases and then get favorable rulings and that “[i] f we follow strictly the law or the code, (and) we say that, we’re hypocrites.” (INQUIRER, 8/27/08)
I have been in the practice of law for 38 years, but I never talked to a judge or justice to ask for a favorable decision. Much less have I paid or even offered to pay anyone for a favorable judgment. My biggest test was in 1984. That year, a judge included me in his order of attachment in a suit against a finance company of which I was merely a lawyer. I considered asking for help from a lawyer- friend whom I knew was very close to the judge and from a colleague of the judge in the same court. I did not.

I was not comfortable making a selfish exception to my professional and personal rule that justice should be blind especially to the color of money and deaf to every manner of illegitimate persuasion.

My adversary and his lawyer were reportedly classmates of the judge and I saw them going in and out of his chamber. By the grace of the Almighty, I was cleared completely although by a different judge.

Like all lawyers, I also want to win and to be known. I also dream mansions, top-of-the-line vehicles and good food. I also dream of living luxury and in style.
Unfortunately, it has not been that way for me. Winning has been difficult. I lost many cases I honestly thought I should have won.

Could it have been because of my lack of competence? Maybe. But I hear people being under the payroll of this or that law office, of lawyers having access to prosecutors, labor arbiters, commissioners, judges and justices. Just last Friday, a retired general complained that a judge did not do as he was paid to do and instead offered to return the money given to him. And now comes Chairman Sabio.
So, where does that the place me?

Decades ago, a client lamented my future as a lawyer. Another asked if justice is not worth spending for.
To be sure, I too could go direct to judges and justices. But I chose to remain stubborn, insisting that there could be morality, integrity, honesty, and neutrality in the dispensation of justice. The message of Moses in Deuteronomy 16 in the New American Bible keeps coming back: “You shall not distort justice; you must be impartial. You shall not take bribe; for a bribe blinds the eyes even of the wise and twists the words even of the just; justice and justice alone shall be your aim that you may have life.”

May my God forgive me, but I am resigned to my low batting average when it comes to winning cases.

And so, the mansions and the top-of-the-line vehicles shall remain dreams as shall living in the luxury and in style.


- Atty. EFREN C. CARAG, 4 Lataña St.
Tahanan Village, Parañaque City

Japanese system

In 2001, the Justice Reform Council of Japan issued a report entitled "Recommendations of the Justice System Reform Council - For a Justice System to Support Japan in the 21st Century“, which I wish to digest hereinbelow, for legal research purposes of the visitors of this blog.


The Justice System Reform Council report sought “to clarify the role played by justice in Japanese society in the 21st century and to examine fundamental measures necessary for the realization of a justice system that is easy for the people to utilize…”. (Article 2, Paragraph 1 of the Law concerning Establishment of the Justice System Reform Council).


May I digest its recommendations below, for legal research purposes of the visitors of this blog.



“x x x.


Concrete measures along the following lines should be adopted from the standpoint of achieving more thorough and speedier trials:


• A new preparatory procedure presided over by the court should be introduced in order to sort out the contested issues and to fix a clear plan for the proceedings in advance of the first trial date.


• To achieve the thorough ordering and clarification of the contested issues, it is necessary to expand the disclosure of evidence. For that purpose, rules regarding the timing and the scope of the disclosure of evidence should be clearly set forth by law, and a framework that enables the court to judge, as necessary, the need for the disclosure of evidence should be introduced as part of the new preparatory procedure.


In considering the concrete form that the above-mentioned system should take, studies must be given to the role and the authority of the court in such a procedure (including the scope of judgment by the court over matters such as the admission of evidence and measures to secure the effectiveness of court direction for trial management) and to what the rights and duties of the parties should be in that procedure, while also paying attention to the relationship with the principle of avoiding prejudice. In addition, in connection with clarifying the rules regarding the disclosure of evidence, it is necessary to make rules that can avoid abuse of such disclosure (threats to witnesses, the danger of destruction of evidence, the danger of ruining the reputation or infringing the privacy of those involved).


From the standpoint of the primary purpose of criminal proceedings, the trial should in principle be held over consecutive days to the greatest extent possible. To hold the trial over consecutive days is an almost indispensable precondition when introducing the new popular participation system to the proceedings. Although the current rules of criminal procedure already contain a similar provision, due to its lack of effectiveness, related systems must be rearranged to enable the trial to be held over consecutive days, including clearly proclaiming this principle in the form of law.

In addition, there is an opinion that a limit should be fixed by law for the duration of proceedings for trial in the first instance. The necessity of this measure should be considered further paying attention to the relationship with holding the trial over consecutive days.


While there is a difference in views regarding the current state of affairs of operation of the hearsay rule (which basically bans admitting as evidence testimony whose contents are hearsay, or written records of statements made outside the trial instead of testimony at the trial), the principles of directness and orality (the principles that the court itself should decide the case by directly examining evidence and witness testimony, as well as hearing the oral arguments of both parties in open court) might be reversed, leading to the emasculation of the hearsay rule, if the trial is based on the examination of such written records as a result of a mistaken operation of the hearsay rule.


The focus of the problem is centered on how the trial proceedings of truly contested cases can be enriched and vitalized based on the spirit of directness and orality. In particular, in relation to the introduction of the new popular participation system in the trial proceedings, these demands will become even greater in order to secure meaningful participation by the saiban-in (lay members of the judicial panel), discussed later. It is the proper manner of criminal trial that, in truly contested cases, both parties actively make allegations and present evidence to clarify the contested issues, in concentrated proceedings, and on that basis the judges (and the saiban-in in the case of proceedings in which the saiban-in participate) then form their decisions. The related systems should be considered bearing that in mind.


In order to realize thorough and smooth proceedings, the court and both parties (prosecutors and defense counsel) naturally are required to assume the attitude of cooperating with and mutually supporting each other, with basic trust, making efforts in every capacity to improve their ability to manage the trial proceedings and the quality of their litigation activities respectively.


With that understanding in mind, it is important to enable the court to conduct proper and effective trial direction, when necessary, from the standpoint of thorough and smooth trial management; and study must be given to what concrete measures should be undertaken to secure this.


Distinguishing contested cases from uncontested cases and taking steps to make investigations and trial proceedings more rational and efficient are significant from the standpoint of thorough and prompt trials. As has been pointed out, introduction of the guilty plea system, which is followed in the Anglo-American legal system, as a concrete measure to that end, contains problems in terms of whether it is appropriate to let the defendant himself or herself dispose of the case and of the relationship with how the sentencing proceedings should be conducted; and further study is warranted, with possible reforms of the existing systems (summary order proceedings, simplified trial proceedings) also in the perspective.


X x x.

Establishment of Public Defense System for Suspects and Defendants

› A public defense system for suspects should be introduced, and a continuous defense structure covering both the suspect stage and the defendant stage should be established.

› The organization that manages the public defense system should be fair and independent, and public money should be introduced for operation of the system through a proper mechanism.

› While it is appropriate that technically the courts appoint and remove the defense counsel as in the case of the current court-appointed defense counsel system for the defendant, the above-mentioned organization should be responsible for the other services concerning administration of the system.

› The above-mentioned organization should take responsibility for the administration of the system vis-à-vis the people, and should establish a system that can offer thorough defense activity nationwide. In particular, it is critical to establish a structure that can support the effective implementation of the new popular participation system in the trial proceedings.

› In considering the structure and the management method of the above-mentioned organization and how to supervise it, respect should be given to the need to ensure transparency and accountability in order to ensure that it is worthy of the investment of public money.

› As the autonomy and the independence of the defense activity in the individual case must not be damaged even under the public defense system, this should be sufficiently taken into consideration in regard to designing as well as administering the system.

› The bar associations should actively cooperate in the establishment and management of the public defense system, taking into account the standpoint of the lawyer system reform, and at the same time should recognize that they themselves bear a serious responsibility to ensure the quality of the defense activity and should autonomously develop suitable arrangements for it.

› Special attention should be paid to those especially in need of help, such as the disabled and the young.

› Active consideration should be given to the public attendant system at juvenile hearing proceedings.



X x x.

Based on the following ideas, broad consideration should be given as to how the concrete system should be and the conditions for it, and on the basis of that consideration a continuous defense structure covering both the suspect stage and the defendant stage should be established.


• The organization that manages the public defense system should be fair and independent, and public money should be introduced for operation of the system through a proper mechanism.

• While it is appropriate that technically the courts appoint and remove the defense counsel as in the case of the current court-appointed defense counsel system for the defendant, the above-mentioned organization should be responsible for the other services concerning administration of the system.

• The above-mentioned organization should take responsibility for the administration of the system vis-à-vis the people, and should develop a system that can offer thorough defense activity nationwide. In particular, it is critical to develop a structure that can support the effective implementation of the new popular participation system in the proceedings. For that purpose, for example, measures might be considered such as hiring full-time lawyers or contracting with individual lawyers or lawyer corporations.

• In considering the structure and the management method of the above-mentioned organization and how to supervise it, respect should be given to the need to ensure transparency and accountability in order to ensure that it is worthy of the investment of public money.

• As the autonomy and the independence of the defense activity in the individual case must not be interfered with even under the public defense system, this should be sufficiently taken into consideration with regard to establishment and management of the system.

• The bar associations should actively cooperate in the establishment and management of the public defense system, taking into account the standpoint of the lawyer system reform (see Part 3 of Chapter III, "How the Legal Profession Supporting the Justice System Should Be," below), and at the same time should recognize that they bear a serious responsibility to ensure the quality of the defense activity and that they themselves should reinforce that structure.

• Special attention should be paid to those especially in need of help, such as the disabled and the young.



X x x.


As a result of the revision of the Juvenile Law (Law No. 142 of 2000), a system for a court-appointed attendant for juveniles was introduced, for cases in which prosecutors participate in the juvenile hearing proceedings. However, taking into account the special nature of juvenile cases and the need for balance when juvenile suspects are also covered under the public defense system, active study must be given to a public attendant system for other juvenile hearing proceedings, as well. In that study, consideration must also be given to the structure of juvenile hearing proceedings, the manner in which functions are shared with family court probation officers, and the role of the attendants.


The monopolization of prosecutions by public prosecutors and the granting of discretion over indictments to public prosecutors are necessary to ensure uniform and fair exercise of the public prosecution authority nationwide, and to enable concretely reasonable dispositions according to the circumstances of each individual suspect. Hereinafter, even more appropriate operation of the system is expected in order to meet the expectations and achieve the trust of the people.


At the same time, it is important to more directly reflect public opinion in the exercise of the public prosecution authority. The Inquest of Prosecution system was established to reflect public opinion in the exercise of the public prosecution authority in order to secure its fairness (the members of the Inquest are selected from the voters by lot) and has great significance as a part of the system of popular participation in the justice system. Although this system has been criticized on various grounds, it has played a considerable role. While paying attention to the guarantee of the due process of law for suspects, a system should be introduced that grants legally binding effect to certain resolutions of the Inquests of Prosecution in order to further expand the role of those Inquests, after thoroughly considering the structure, authority and procedures of the Inquests of Prosecution, as well as who files the indictments and conducts the prosecution at trial.


x x x.


New Forms of Investigations and Trial Proceedings that Can Respond to the New Era

› With regard to the introduction of new investigative methods such as the immunity system, consideration should be given from multi-faceted viewpoints to what the proper system is for meeting the social and economic changes in Japan in the coming age and the corresponding changes in the crime situation and crime trends, while respecting the import of the guarantee of human rights in the Constitution.

› Measures to ensure the cooperation of witnesses and measures to protect witnesses should be considered, from similar points of view.

› The international mutual investigation and mutual judicial assistance systems should be further expanded and strengthened under the guarantee of due process of law.



Measures to Ensure Cooperation of Witnesses, Measures to Protect Witnesses


As it goes without saying that the cooperation of witnesses is indispensable for criminal justice, measures to ensure the cooperation of witnesses will become even more important amid the changes in society in the coming age. This matter should be thoroughly considered from various viewpoints, giving some thought to the approach of expanding the system for pre-indictment examination of witnesses under existing law. On the other hand, as it is necessary to offer the witnesses proper protection as a precondition to securing their cooperation, consideration also should be given to measures to protect witnesses.


Expansion and Strengthening of International Mutual Investigation and Mutual Judicial Assistance Systems


As mentioned above, crimes are becoming more internationalized, and it is frequently pointed out that it is necessary for all countries to effectively and efficiently prevent and eradicate crimes in a cooperative manner. Bearing this in mind the international mutual investigation and mutual judicial assistance systems should be expanded and strengthened, under the guarantee of due process of law.



X x x.


Issues Related to Custody of Suspects and of Defendants

a. Measures to Resolve Problems that Have Been Pointed Out Regarding Custody of Suspects and of Defendants


Various concerns have been pointed out regarding the custody of suspects and of defendants, such as how daiyo kangoku (use of custody facilities in police stations in lieu of detention facilities) should be, possible introduction of pre-indictment bail system, how defense counsel's right to meet with suspects in detention should be, issuance of warrants, and how determinations with respect to requests for post-indictment release on bail should be (Recommendation of the United Nations Human Rights Committee, etc). It is difficult to reach a concrete immediate conclusion on these matters, because there are various ways of thinking arising from differences in assessments of the current state of affairs. Nevertheless, insofar as the mission of the Japanese criminal justice system is to get to the truth of the cases under the guarantee of due process of law, it is a matter of course that improper custody of suspects and of defendants must be prevented and rectified. While carefully examining the causes underlying the concerns that have been pointed out, consideration should continue to be given to the reform and improvement of both the systemic and operational aspects, within the whole structure of the criminal procedure.



With Regard to Measures to Ensure the Propriety of Questioning of Suspects


The questioning of a suspect, so long as it is conducted properly, contributes to the discovery of the truth, and, in the event the suspect who actually committed the crime truly regrets the crime and confesses, it also contributes to his or her rehabilitation.


On the other hand, however, it cannot be denied that there are in reality some cases where questioning lacks propriety, arising out of an excessive emphasis on confessions of suspects. Insofar as the mission of the Japanese criminal justice system is to get to the truth of cases under the guarantee of due process of law, questioning of suspects must not be improper, and measures to prevent improper questioning naturally are necessary.


Accordingly, a system should be introduced that imposes the duty of making a written record, for every occasion of questioning, regarding the process and the circumstances of the questioning. In connection with the introduction of such a system, necessary measures must be established to secure the accuracy and objectivity of such records (for example, an approach may be considered in which the matters to be recorded are specified, those matters are recorded on a form, and the record is then stored safely under a proper control system that prevents anyone from altering or revising the record at a later time).


In addition, while there are some opinions that audio and video recording of the questioning itself and the attendance of the defense counsel at the questioning are necessary, it is difficult to decide with certainty whether to introduce such measures at this stage because careful attention should be paid to such measures with regard to the function and significance of the questioning of suspects in the whole structure of the criminal procedure. Thus, these should be regarded as matters to be considered in the future.


Rehabilitation of Offenders, Protection of Victims

The criminal justice system of Japan plays important roles in the reintegration of offenders into society and in the rehabilitation of offenders so that they do not commit crimes again. This not only contributes to the welfare of the offenders involved themselves, but also contributes to maintaining the peaceful order of the society as well as securing the safety of the people's lives. As such, these roles will become even more important in the future society, and adequate attention should be paid to strengthening the system and the human resource structure for correction and rehabilitation of offenders.


Volunteer probation officers have played an important role in rehabilitation of offenders, in cooperation with (professional) probation officers; and the system of volunteer probation officers also has significance as a system for popular participation in criminal justice, in that volunteer probation officers engage in the service relating to the rehabilitation of offenders without pay as citizen volunteers. However, the difficulty of securing suitable persons due to the aging of the existing volunteer probation officers and other factors has been pointed out, so, in order to further strengthen this system, measures should be considered for securing suitable persons from a broad spectrum of the people to serve as volunteer probation officers, including the possibility of payment of expenses.


On the other hand, in criminal justice, in the past little attention was paid to the viewpoint of safeguarding the rights of victims. Recently, however, as social concern for this issue has risen considerably, it is recognized anew that further attention and protection to victims and bereaved family members is called for, and measures are being taken for that purpose (establishment of the liaison conference for crime victims of the relative government agencies, enactment of two laws concerning the protection of crime victims). As it is important to pay adequate attention to the protection of and relief for victims in the criminal proceedings in order to ensure the trust of the people in the criminal justice system, necessary studies should be undertaken for further strengthening of measures. In addition, it is necessary to establish a broad social support system that includes psychological and material care for victims..


Popular Participation in the Management of the Courts

Reflecting the sound common sense of the people in court management will lead to an elevation in the confidence and understanding of the courts by the people and will in turn lead to the strengthening of the popular base of the justice system. Currently, at each Family Court, a Family Court council (whose members are selected from employees of local public bodies and other persons of knowledge and experience outside the three branches of the legal profession) is established, which is to express its views with respect to the entire range of management of the Family Court. Measures should be introduced to enable the views of the people to be reflected broadly in the management of the courts, such as by reinforcing the Family Court council system and newly establishing in the District Courts bodies similar to the Family Court councils.


With Regard to How Supreme Court Justices Should Be Appointed, etc.
Under the current system, the Emperor appoints the chief justice of the Supreme Court based upon the nomination by the Cabinet, and the Cabinet appoints the associate justices (Article 6, Section 2 and Article 79, Section 1 of the Constitution, and Article 39, Sections 1 and 2 of the Court Law). However, the processes for nomination by the Cabinet and for appointment are not necessarily transparent, and problems have been pointed out, such as the entrenchment of fixed proportions for the numbers of justices who come from each field. The current situation should be reconsidered and, from the standpoint of strengthening the people's confidence in the justices of the Supreme Court, studies should be made on appropriate mechanisms for the purpose of securing transparency and objectivity with regard to the appointment process, while paying due respect to the importance of the position. (The system of the Justice Appointment Consultation Commission, established in 1947 pursuant to the provisions of the Court Law, is of reference.)


In addition, it has been observed that the system for popular review of Supreme Court justices has become a dead letter. The current situation should be reexamined and, from the standpoint of strengthening the people's confidence in the justices of the Supreme Court, studies should be made on measures to increase the effectiveness of the system for popular review of Supreme Court justices, such as by making efforts to reinforce the disclosure of information related to each individual justice subject to review so as to make it possible for the people to make meaningful judgments.


See:
http://www.kantei.go.jp/foreign/judiciary/2001/0612report.html

China learns

Digested below are some developments on the matter of judicial reform in China as of this year (www.der.oas.org/Catedra/Reform%20in%20China.doc).


China has signed 36 treaties on humanitarian matters, labor rights, civil and political rights and rights of refugees; 33 treaties on environmental protection;
11 intellectual property rights treaties; and 10 anti-terrorism treaties. In 2001, it became a member of the WTO. It has signed bilateral agreements on extradition and judicial cooperation in civil and criminal matters with more than 80 countries, including Australia, Argentina, Brazil, France, Korea, New Zealand, Peru, Portugal, Russia, South Africa, Spain and the United States.


China’s economic growth rate for the past 30 years has been 9.67% per annum. As it progresses, and as the government issues more and more regulations in the fields of Medicare, housing, education, food safety, and environmental protection, more and more lawsuits are being filed.

The “litigation explosion” I China is shown by the fact that court cases have escalated from 520,000 in 1979 to 5,200,000 in the first 6 months of 2007. From
2000 to 2005, more than 7 million cases were filed each year.


The Constitution was amended in 1993, 1999, and 2004 to face the modern demands of the market economy, the rule of law, private property protection, and human rights. In 2006, there were 5,200,000 private enterprises and 560,000 foreign-funded enterprises.


New laws were likewise adopted: “Administrative Litigation Procedural Law (1989); “Judges Law” (1995, amended in 2001); “Supervision Law” (2006); “Property Law” (2007); and “Labor Contract Law” (2007).


In 1991, the judicial system was reviewed to address the criticisms of young Chinese lawyers, to wit: courts were viewed traditionally as an instrument of class struggles; punishments without any intent to protect the legal rights of the accused and the innocent in criminal cases; local protectionism was common in civil cases involving parties from different jurisdictions; negligence in due process; too much attention was being paid to sentencing; procedural rules were not strictly followed; judicial profession was not respected; judges were viewed as public servants because of a lack of qualified judges after 20 years of suspended legal education; judicial system was administered in the same manner as governmental authorities: lower courts reported to higher courts for final decisions on complicated or novel cases; judges had no confidence in making the judicial system a public and transparent system; some judges at district courts were not qualified; no legal analysis made in most judgments rendered; final judgments were not made public and no reference could be made; final decisions were easily challenged and overruled during retrials; no effective enforcement mechanism for civil judgments.


The Criminal Procedure Law was adopted in 1979 and amended in 1996. The Civil Procedure Law was adopted in 1982 and amended in 1991. The Administrative Litigation Law was adopted in 1989.


The judiciary-related provisions of the First 5-Year Plan of Judicial Reform (1999 - 2003) were as follows:

“A. Goals and demands:

1). Full establishment of three trial procedures.
2). Independence of the judges and collegiate bench in trials.
3). Rebuilding judicial credibility.
4). Reconstruction of a professional judiciary.
5). Better facilities for courts.

B. Specific measures

1) The laws of criminal, civil and administrative litigation procedures are interpreted by the Supreme Court;
2). single judge trial procedure introduced for higher judicial efficiency;
3). sentencing power given to the collegiate bench and decided by majority vote;
4). cross examination introduced to court hearing and arguments;
5). establishment of enforcement offices at all levels of courts;
6). full law school education required for new judges;
7). court house reconstructions.”



The judiciary-related provisions of the Second 5-Year Plan for Judicial Reform (2004 - 2008) were as follows:


“A. Goals and Demands:

1) To ensure judicial fairness and neutrality as administered by the courts.
2) To improve judicial credibility with more methods to enforce civil judgments and define retrial conditions for civil litigation.
3) To ensure consistent application of law after joining the WTO.
4) To encourage more judicial transparency.
5) To promote judicial professionalism by attracting the .best legal professionals to courts
6) To increase judicial efficiency in dealing with the “litigation explosion”.


B. Concrete Measures

1). Judicial Neutrality Administered by Impartial Courts


a) Legitimate relationships with the local congress.
b) Attempt to balance the prosecutors and defendants in criminal procedures.
c) Human rights protection of the accused in criminal procedures”


The principle of presumption of innocence is recognized in court hearings.


Confessions of the accused “without corroborating evidence” are excluded from criminal cases in order to eliminate possible cruel treatment of the defendant during the investigation.


Approximately 6000-4000 persons were declared innocent each year between 2000 and 2004; 2162 persons in 2005 and 1713 persons in 2006;


The first non-governmental legal aid institution was founded in 1992 (The Center for the Protection of Rights for Disadvantaged Citizens (CPRDC) in Wuhan University Law School). 41,412 criminal suspects were provided with free legal aid services in 2006. 282,581 plaintiffs in civil litigation benefited from judicial aid. RMB 1.2 billion was waived or deducted from the litigation fees. Several local courts provided compensation to the victims in criminal cases when the accused had no ability to pay for civil damages.


In 2006, 17018 administrative decisions were declared invalid or illegal.
Judicial review resulted in the changes of 34% of total 92,613 decisions made by the government and their branches. Courts sustained only 18% of the total administrative decisions.


Death penalty is reviewed by the Supreme Court since January 1st, 2007. A 2- year suspension is enforced. All death penalty cases must be subject to appellate hearings before being submitted to the Supreme Court for final review.


A uniform exam for the legal profession (judges, prosecutors and lawyers) was adopted in 2002.


The National Judges College (NJC) takes charge of the continuing professional education of judicial personnel. For the past 10 years, it has trained 30,000 senior judges. Some 17 NJC provincial branches have conducted 500,000 trainings for local judges. It has conducted joint training programs with foreign and Hongkong law schools, namely, LL.M. program with Temple University Law School since 2002 (38 graduated) and HK City University Law School since early 2008.


Trials are open to the public, except cases involving state secrets, juvenile issues and privacy issues. Important cases may be televised or broadcast live on the internet.


A “people’s assessor system” (layman judge not in robe) has been adopted.
A layman judge has full power as an ordinary judge (but not to preside in a trial). He may make findings of fact and apply the law in family, maritime, and Intellectual property cases, as well as serious criminal cases. Since 2006, a total of 46,640 out of 55,681 layman judges have adjudicated 339,965 cases.
Some 32% of all cases were tried with people’s assessors since 2005. The professional training of the people’s assessors is provided by the NJC.


The Monthly Gazette of the Supreme Court and the China Law Report publishes the decisions of the Supreme Court. The national court website likewise publishes the decisions (chinacourt.org). All the provincial high courts and most of the lower courts have opened their own websites: bjgy.chinacourt.org; whfy.chinacourt.org; Intellectual Property Rights Website - chinaiprlaw.cn; International & Maritime Trial Website - ccmt.com.cn or ccmt.org.


The Civil Procedure needs further review to address the following issues: retrial procedure reform; newly discovered evidence, forged evidence, evidence not approved, wrong application of law, trial without due jurisdiction, judgment on unclaimed issues, partial judgment due to corruption, statute of limitation for retrial (2 years); jurisdiction for retrial by higher court; retrial starts from intermediate court; high courts and the Supreme Court may retry their own decisions; new civil judgments enforcement measures; 2 years’ statute of limitation for application of enforcement after final decision is made (6 months now); longer judicial detention and more fines; imperative annual report on assets; blacklist in credit system; suspension of immigration rights; and others.


More Challenges Ahead with Potential Efforts for New Reform 12 Issues in Debate


Other issues that should be addressed are: due process; how to balance judicial efficiency with due process requirement both in civil and criminal procedures? efficiency vs. quality; is due process also necessary in judicial mediation? (30%); possibility of plea bargaining; consistency in application of law; local judge appointment system; commercial case jurisdiction; judicial financial support from local executive to central legislative budget; judicial credibility; should courts retreat from civil enforcement activity; how to enforce civil compensation for the victims in criminal judgments; how to balance the judicial discretion (activism) and legitimate supervision over judiciary; relationship with media and local congress; judicial professionalism; lack of qualified judges in remote and western districts; professional management of judiciary; need of judges for more assistants; how to retain excellent judges in the judiciary.




Addendum:




May I digest the article entitled “Chinese Judicial System and Reform” written by Dr. Zheng Qiang (http://www.iolaw.org.cn/en1/art1.asp), for purposes of legal research of the visitors of this blog. He is the Sectary-general of the Public Law Center of the Institute of Law of Chinese Academy of Social Sciences.


The People's Court exercises judicial power in China. Prosecutorial power is exercised by People's Procuratorate. The investigative organizations are the Public Security Organization and the State Security Organization. The Judicial Administrative Organization (JAO) supervises the administrative affairs of the judiciary. The prison system is subject to the supervision of the JAO. The special organizations of lawyers, notaries public, and people's mediation and arbitration are supervised by the JAO. The abovenamed entities constitute the People's Judicial System of China.


The Constitution of the People's Republic of China provides that all powers of state belong to the people and the organizations by which the people exercise their state powers are the National People's Congress and its Standing Committees. The administrative organization (government), judicial organization (court) and procuratorial organization (procuratorate) are elected and supervised by the People's Congress.


In the central state organizations, the State Council is the Central People's Government. The State Council is the executive organization of the Central People’s Government. It is the supreme administrative organization. The Supreme People's Court is the supreme judicial organization. The Supreme People's Procuratorate is the “legal supervision organization” and the supreme procuratorial organization. Assisting the Central Military Committee is the Supreme Military Organization which is in charge of the military force of the state. The abovenamed entities four enjoy equal positions.


The departments such as the Ministry of Public Security, the Ministry of State Security and the Ministry of Justice under the State Council. They are administrative organizations. But the former two are regarded as organizations with justice character for their functions such as criminal investigation, detention, preliminary examination and arrest; the Ministry of Justice is also with character of justice for its function of being in charge of prison, lawyer, notary and people's mediation.


At the local level, the People's Court, Procuratorate and Government theoretically enjoy the same equal positions and are directed by their respective People's Congresses. But in reality, the position of the People's Court and People’s Procuratorate at the local level is lower than their counterparts in the People's Government.


According to the Constitution and the Organic Law of the People's Court, the Judiciary is composed of the Special People's Courts and the Supreme People's Court and the local people’s courts.


The local People's Courts of different levels are:

1) the local People's Courts which are set up at the levels of the counties, the autonomous counties, the cities without districts, and the districts of cities;

2) the Intermediate People's Courts which are set up at the levels of prefecture, city and autonomous state;

3) The higher People's Courts that are set up at the levels of Province, Autonomous Regions and municipalities directly under the Central Government.


The special People's Courts are the Military Courts and the other special courts created by law. The levels of the Military Courts are:

1) The local Military Court;

2) The Military Courts of greater military region and categories of troops.

3) The Military Court of the People's Liberation Army of China.



The other special courts are the Maritime Court and Railroad Transportation Court.


The Supreme People's Court is set up in capital Beijing.


According to the Constitution and the Organic Law of the People's Procuratorate, the People's Procuratorate is the “legal supervision organization of the state”. Its system consists of the Supreme People's Procuratorate, the local People's Procuratorate of different grades and special procuratorates such as the Military Procuratorate.


The Supreme People's Procuratorate is set up in capital Beijing.


The local People's Procuratorate of different grades are:


1) The Procuratorates of provinces, autonomous regions and municipalities directly under the Central Government;

2) The Sub-Procuratorate of provinces, autonomous regions and municipalities directly under the Central Government;

3) The procuratorates of autonomous prefectures, municipalities directly under provinces, and autonomous regions;

4) The Procuratorate of counties, autonomous counties, cities and districts under municipalities.



The special People's Procuratorates are the Military Procuratorate, Railroad Transportation Procuratorate, which are corresponding to the special people's courts.


According to Chinese law, the Public Security Organizations and the State Security Organization are parts of the administrative organizations of the country. They are in charge of criminal investigations. There are local Ministries of Public Security and local State Security Organizations in the whole country;



According to the law of China, its Ministry of Justice is the judicial administrative organization of the country.


Per Article 94 of Criminal Law of China, “judicial personnel” refers to the persons who have duty to investigate, prosecute, judge, control and oversee the prisoners”.


Per the Law of Judges and the Law of Prosecutors promulgated on 28th February 1995, the qualification and appointment of judges and prosecutors are as follows:

1) For new judges and prosecutors:

a) To a national of the People’s Republic of China.

b) More than 23 years old;

c) Supports the Constitution of P.R.C.

d) Have good political and professional qualification and good conduct;

e) In good health;

f) A college graduate -- either in law or in other majors provided they have the knowledge of law and have worked for more than 2 years in relation thereto; or possesses a bachelor's degree in law and has worked more than 1 year; but those who have obtained a master’s degree or a doctor’s degree in law are not be subject to the 1-year work experience requirement.

2) For judges and prosecutors currently in office, who had been appointed as judges or prosecutors before the Law of Judges and the Law of Prosecutors came into force and who do not possess the formal schooling required above must be trained to satisfy the demands of the two laws within time limit fixed by law; or, they would be dismissed or transferred to other relevant positions.



A person who has been convicted of a crime or who has been discharged from public employment cannot be appointed in the judicial system.


According to the current Constitution of P.R.C., the guiding thought of the People's Judicial System is Marxism and its Chinese edition, i.e. the theory of Deng Xiaoping, to wit:

“1) To uphold the thought line of emancipating the mind and seeking the truth from facts;

2) To uphold the rationale that the superstructure serves the economic basis;

3) To uphold the uniform principle of legal systems;

4) To uphold the aim of serving the people wholeheartedly;

5) To uphold the leadership of the Communist Party.”



The basic principles of the People's Judicial System are:

“1) The principle of judicial sovereignty;

2) The principle of judicial uniformity;

3) The principle of judicial independence;

4) The principle of judicial check;

5) The principle of judicial democracy;

6) The principle of judicial equality;

7) The principle of judicial realism;

8) The principle of judicial convenience”.



The judicial procedural system is divided as three parts: civil procedure, criminal procedure, and administrative procedure.


The first procedural code was criminal procedural law adopted in 1979 and revised in 1996. The revised edition of the criminal procedural code has 225 articles and embodies the spirit of reform for making use of the advanced legal experiences of the west countries such as the doctrine of the presumption of innocence and so on.


In 1982, the Code of Civil Procedure (trial implementation) was promulgated. The code was revised and simplified in 1991 with 270 articles.


The Code of Administrative Procedure was issued in 1989 and came into force in 1990. It regulates the procedure for administrative and disciplinary cases filed by citizens against public officials and employees.


The local protectionism and the department protectionism are so serious that they make the local courts can not exercise their judicial powers independently and make lots of effective judgments, especially the judgments of economic cases, couldn't be enforced. Why is it so terrible? Because the local power organs produced all the local courts the people the local power organs appoint all congress and the local judges too. Meanwhile, the local departments of the Communist Party and governments can control and manage those judges and the financial budgets of the local courts. So the local departments of the Communist Party and governments have many approaches to intervene the particular cases which should be handled independently by the courts. In this way, the local courts have become the tools just to be used to defend the local or department interests. For example, due to its personnel and matter interests are all subject to the railroad department, people regard the Railroad Transportation Courts as the watchdogs of the railroad department.


The former is that the court leaders, who do not try case directly, make the judgement for the case by the administrative powers and lead to the separation of trial and judgement. The last one is that the lower courts often report the hard case they think to the upper before the judgment is made, and the upper courts often direct how the case should be judged to the lower court, in this way the appeal right of litigants are damaged completely.


The organic laws of the People's Court and the People's Procuratorate only make general regulations for the judges and prosecutors, but have no concrete professional, moral and mental demands in a long time. The judges and prosecutors are treated as common cadres of Party and government department with lower treatments. This leads the generalization of judge's quality. Though the laws of judges and prosecutors promulgated in 1995 made some concrete provisions for the qualifications of judges and prosecutors, there needs some time to be strictly carried out of them.


The court, procuratorate, investigative and judicial organizations have their own systems which are independent to each other. The qualification exams for the judges, prosecutors and lawyers are held respectively, without the uniform demands and standards. There are no uniform legal safeguards to judges and prosecutors also remain a problem.


The mechanism of supervision from the People's Congress is not perfect at present. One of the channels for the people to appeal is to write to the department for letter set in the People's Congress. But the department is called, as "the transfer post" for it has no positive power to help the people who write to it but transport the letters that rarely noticed by the court. The litigants often feel very difficult to find the access to justice.


The above problems are seriously damaging not only the judicial system of China, but also the society and people's psychology as well. So it has aroused the great attentions of Chinese people and their leading levels. The media have reported many important meetings, documents and reform measures on the subject. We can say that, corresponding to the tide of the world today, a movement of judicial reform has begun in China. Many reform thinking have been made for the present judicial system, the following are the consensus reached by the most people.


1) To reform the personnel and financial system of the judicial system, namely the persons, finance and equipment must be controlled vertically by the Central in order to safeguard the judicial organizations to exercise their functional powers independently and fairly and get rid of the local intervene.

2) For overcoming the protectionism from the local and government department, a proper reform must be done to the establishment of the courts. For example, to make some judicial areas to which some circuits can be set up to handle the appeal cases and review the death penalty cases. To close all the special courts except the military court, the cases handled by them can be tried by the circuit trial from the higher court or the special trials.

3) To strengthen the grassroots courts, their detached trials, the organizations of arbitration and mediation, in order to exert their functions completely. The aim is to make most civil and commercial cases be solved by arbitration or mediation, to make most criminal cases be tried in the grassroots courts that the courts up the intermediate grades could focus on the important and complicated cases for the first instance and appeal. To raise the qualifications of judges and prosecutors and decrease the amounts of them, while increase the amounts of judicial assistants.

4) To set up some special trials in the grassroots court, such as the trials respectively for juvenile, family and employment. To assimilate some persons form social associations as part- time judges and they can handle special cases together with the full-time judges.



Broadly speaking, there are four fields of Chinese judicial system concerning judicial systems of Mainland China, Hong Kong, Macao and Taiwan. This article just refers to the judicial system of Mainland China.
　

Command responsibility

In Senate Bill No. 1427 (2007) filed by Sen. M. A. Madrigal, the matter of command responsibility was addressed, inspired by the recommendations made during the Supreme Court-led national summit on extrajudicial killings and enforced disappearances held in July 2007. I had the opportunity to participate in the precedent-setting national summit, upon invitation of the Chief Justice Reynato Puno. All sectors were duly represented, from the Left to the Right.


It will be noted that the Rules of Evidence of the Philippines do not create the presumption of command responsibility against the superiors of government employees and agents who are guilty of extrajudicial or political killings and enforced disappearances.


In her explanatory note, the proponent of the bill, Sen. Madrigal, stated that “the repeated involvement or implication of accused and suspected soldiers or subordinates in the rampant, country-wide and systematic cases of extrajudicial killings and enforced disappearances could not have transpired without their superiors ordering or at the very least knowing or encouraging these acts”. She added that “not one suspected perpetrator of any of the 871 summary killings and 180 enforced disappearances of political activists since January 2001 had been arrested, tried and convicted and that the climate of impunity had fostered the thinking that the unabated bloody pattern targeting leftist activists stems from an official state policy that had placed murderous wrongdoers beyond the reach of the law”.


The good senator added that “a commanding officer has the legal duty to take the necessary measures to prevent human right violations and to punish the perpetrators thereof”. The doctrine of command responsibility has long become part of “customary international law”. It has since been continuously refined and expanded in many jurisdictions, especially with the creation of the International Criminal Court to combat impunity for war crimes, crimes against humanity and genocide. While the Philippines has yet to ratify the ICC treaty, “it however adopts the generally accepted principles of international law as part of the laws of the land, which makes the doctrine of command responsibility an essential part of the country’s domestic law”, she stated.


The Additional Protocol I of the Geneva Convention states thus: ”The fact that a breach of the Conventions or this Protocol was committed by a subordinate does not absolve his superiors from responsibility if they knew, or had information which should have enabled them to conclude in the circumstances at the time that he was committing or about to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.”


Further, the International Criminal Tribunal for the former Yugoslavia Article 7(3) establishes that “crimes committed by a subordinate do not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators”.


Domestically, Executive Order 226 issued by President Fidel V. Ramos on 17 February 1995 states that, “Any (AFP) officer shall be held accountable for neglect of duty under the doctrine of command responsibility, if he has knowledge that a crime or offense shall be committed, is being committed, or has been committed by his subordinates, or by others within his area of responsibility and, despite such knowledge, he did not take preventive or corrective action either before, during or immediately after its commission.”


The principle of command responsibility was first applied in the country in the wartime case of Yamashita (G.R. No. L-129, 19 December 1945). However, the principle has subsequently disappeared in Philippine jurisprudence even if it remains much wanting in the prosecution of criminal cases, according to the sponsor of the bill.


Sen. Madrigal stated that the bill “provides for a legal basis to make superior officials culpable for the acts of their subordinates under the doctrine of command responsibility”; that it “upholds the ethos of responsible leadership and accountability - that government officials must be called to account for their acts, especially murders of political activists and journalists in their jurisdictions, instead of hiding behind the cloak of due process to avoid criminal responsibility”; and that it seeks “to integrate the principle and practice of command responsibility into our justice and political systems, in harmony with existing laws and international law”.


The bill, if approved, would be known as the "Command Responsibility Act of
2007."


It is premised on the following policies: a) To uphold the Constitutional principle that public office is a public trust; b) To implement the basic Constitutional premise that public employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency, and act with patriotism and justice; and c) To make public officials and superiors accountable for the acts of their subordinates under the principle of Command Responsibility.


It defines Command Responsibility as “the responsibility of an official or superior for crimes or offenses committed by their subordinates subject to their effective control or supervision or which their subordinates were about to commit or have committed, and such official or superior did not take measures to prevent such commission of crimes or offenses, or having learned about such crimes or offenses did not act to prevent and punish the offending subordinates”.


By “Official/Superior” is meant the person “who has actual powers to exercise effective control over the actions of their subordinates considering their position, their capacity to issue orders, the procedure for appointment; and the tasks that their subordinates are performing; and that they have the material ability to prevent and punish criminal acts of their subordinates”. The control may be “de jure or de facto and the official/superior may be military or civilian”.


The proposed law applies to all employees of the government whether in the executive, legislative and judicial branches and all their agencies and instrumentalities as well as in all Constitutional Commissions.


Any government official or superior shall be responsible for the crimes or offenses committed by their subordinates “if the official or superior has knowledge that a crime will be committed or has been committed by their subordinate and, despite such knowledge, did not take any measures to prevent such commission of crimes or offense, and having learned about such crime or offense did not act to prevent and punish the offending subordinate”.


A military officer or person effectively acting as a military commander shall be criminally responsible for crimes committed by forces under their effective command and control, or effective authority and control as the case may be, as a result of their “failure to exercise control properly over such forces”, where:


1. That military commander or person “either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes”; and

2. That military commander or person “failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution”.


The bill creates a presumption. A government official or superior is “presumed
to have knowledge of the crime committed by his or her subordinates when any of the following circumstances are present:

a) When the same crime was committed by his or her subordinates “two or more times in one year, whether or not the said offenses were committed by the same subordinate”;

b) When the crime committed by the subordinate was “pursuant to a policy being implemented by the official or superior whether or not said policy is in writing”; and

c) When the crime was committed “in compliance with the order of the superior, albeit only the intended result was manifested to the subordinate”.


The penalties proposed in the bill are imprisonment not exceeding a maximum of thirty (30) years; a fine; and forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties. In all cases, the penalty provided shall carry with it the accessory penalty of perpetual disqualification from holding public office.

Toothless tiger

Realizing the “toothless tiger” nature and image of the Commission on Human Rights (CHR), Senate Bill No. 1437 has been filed by Sen. Francis Escudero to strengthen its powers and jurisdiction.


In his explanatory note, Sen. Escudero noted the discouraging pronouncement of the Philippine Supreme Court in the case of Curio us. Commission on Human Rights (CHR) (GR No. 96681, 02 December 1991) categorized the CHR as a “toothless tiger”. The CHR is “neither a judicial nor a quasi-judicial body”. It can only extend “preventive measures, such as initiating applications in court for judicial writs and orders, conduct investigation and receive evidence of violations of human rights, among others”.


He added that the above ruling was reiterated in the more recent case of Simon, et. al. v. CHR, et. al. (GR No. 100150, 05 January 1994) which revisited the powers and functions of the CHR vis-à-vis the implementation of Republic Act No. 7279, otherwise known as the Urban Development and Housing Act (UDHA) of 1992. The case defined the parameters of the CHR’s jurisdiction which is limited only to political and civil rights. It enumerated the cases over which the CHR can exercise jurisdiction without, however, regarding them as having preclusive effect but merely a matter of priority setting.


The Escudero bill seeks to make categorical the state policy that the CHR can exercise jurisdiction over “cultural, economic and social rights”. It seeks to afford in general the CHR the unequivocal authority to step into cases involving “rights excluded from the definition and scope of political and civil rights”. It is meant in particular to erase all doubts brought about by the issue of whether or not the CHR can take cognizance of cases of under UDHA.


The prosecutorial power being sought to be granted under the bill is meant to equip the CHR a significant power to realize its mandate under Article XI11 of the Constitution. The proponent stated that it was unacceptable to forever regard CHR as a toothless or paper tiger if it is a State policy to secure, protect and guarantee the dignity of its citizens and to ensure the fulfillment of such citizens’ human rights.


Moreover, the grant of prosecutorial powers will decrease the burden of the National Prosecution Service of the Department of Justice (DOJ) and further enhance specialization in the investigation and prosecution of human rights violation cases, he added.


The policy that guides the bill is the constitutional policy that mandates that the human dignity of every person and the full recognition, respect, protection and fulfillment of human rights as the means for ensuring the security of its people shall be valued and guaranteed and the State has to formulate and adopt new measures on human rights to further secure its people from pervasive threats meant to attack not only civil and political rights.


“Human rights” for purposes of the bill means rights found in Article I11 of the Constitution and those duly affirmed and recognized by the Republic of the Philippines in the following legal instruments: International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1995); Convention on the Rights of the Child (1990); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1987); International Covenant on Civil and Political Rights (1986); Convention on the Elimination of All Forms of Discrimination against Women (1981); International Covenant on Economic, Social and Cultural Rights (1974); and International Convention on the Elimination of All Forms of Racial Discrimination (1967). It shall also refer to the rights duly affirmed and recognized in the Comprehensive Agreement on the Respect for Human Rights and International Humanitarian Law (CARHRIM,) and the rights recognized in the Universal Declaration of Human Rights (1948).


“Human rights violations” under the bill means and includes civil, political economic, social and cultural rights as found and enunciated in the legal instruments and constitutional provisions enumerated above and all such other similar instruments and laws.


The bill expressly provides that the jurisdiction of the Commission on Human Rights (CHR) shall include “civil, political, economic, social and cultural rights”.


It provides that in the exercise of its jurisdiction and in addition to its investigative powers, the CHR shall be given “prosecutorial powers similar to that of the National Prosecution Service (NPS) of the Department of Justice (DOJ) over all cases involving human rights violation cases”. As such, “all human rights violation cases shall now fall under the exclusive jurisdiction of the CHR”.


It creates the Office of the Human Rights Prosecutor which shall have the following powers and functions as the prosecuting arm of the CIIR:


1) Conduct preliminary investigation of all human rights violation cases for the determination of the existence of probable cause;

2) Prosecute, once there is finding of probable cause, human rights violation cases in court;

3) Provide legal services to victims of human rights violations; and

4) Perform such other functions and duties as may be assigned to it by the CHR.



The Office of the Human Rights Prosecutor shall be headed by a Chief Human Rights Prosecutor with the rank and emoluments similar to that of the Chief State Prosecutor in the DOJ who shall be appointed by the President upon nomination by the majority of the Commissioners of the CHR, and a member of the Philippine Bar, and have been engaged in the practice of Iaw for at least five (5) years at the time of his/her appointment.



Addendum:


The 2007 summit on extrajudicial killing inspired Sen. Jinggoy Estrada to file Senate Bill No. 429, which seeks the creation of a Commission on Missing Persons, with the following functions:


1. to conduct investigations of missing persons whose whereabouts are unknown, upon its initiative or upon the request of an interested party;
2. to evaluate and render corresponding reports on each of the cases and make recommendations to the party requesting the search, or to the DSWD for temporary shelter and assistance;
3. to continuously review and evaluate Detective Operations to achieve specification of detective assignments as a measure of the accomplishment of investigation teams;
4. to initiate policies and programs towards an effective communication system to aid the search of missing persons;
5. to devise a system of raising the consciousness of the people and for them to inform the Commission of persons who are found loitering about in public places, tramping or wandering about aimlessly;
6. to call upon different agencies, government and nongovernmental organizations, for assistance and service as it may require in the discharge of its responsibilities;



The Commission shall be composed of the Chairman of the Human Rights Commission as Chairman, the Director General of the Philippine National Police, the Director of the National Bureau of Investigation, Chairman of National Police Commission and the Secretary of Social Welfare and Development as members and two (2) representatives from the private sector whose advocacy is on human rights.


The Commission shall have the power to make arrests, searches and seizures in accordance with existing laws and rules and shall likewise have the power to issue subpoena or subpoena duces tecum for the appearance of any persons for investigation.