Human rights

As the world celebrates World Human Rights Day, perhaps it is timely to present to the visitors of this blog a summary of the fairly recent case of GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION, represented by the Philippine Department of Justice vs. HON. FELIXBERTO T. OLALIA, JR. and JUAN ANTONIO MUÑOZ, En Banc, GR No.153675, April 9, 2007, which once again asserted the rule of law and respect for human rights by the Philippine Judiciary. It abandoned a previous ruling that bail was not available in extradition cases.

In the abovecited case, the petitioner Government of Hongkong, thru the Department of Justice of the Philippines, alleged that the trial court committed grave abuse of discretion amounting to lack or excess of jurisdiction in admitting private respondent to bail; that there was nothing in the Constitution or statutory law providing that a potential extraditee has a right to bail, the right being limited solely to criminal proceedings.

Section 13, Article III of the Constitution provides that all persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.

In the 2002 case Government of United States of America v. Hon. Guillermo G. Purganan, Presiding Judge, RTC of Manila, Branch 42, and Mark B. Jimenez, a.k.a. Mario Batacan Crespo, G.R. No. 148571, September 24, 2002, 389 SCRA 623, 664, it was held that the aforecited constitutional provision on bail does not apply to extradition proceedings. It is “available only in criminal proceedings”. As suggested by the use of the word “conviction,” the constitutional provision on bail, as well as Section 4, Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings because extradition courts do not render judgments of conviction or acquittal.

The said case held that the constitutional right to bail “flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt” (De la Camara v. Enage, 41 SCRA 1, 6, September 17, 1971, per Fernando, J., later CJ). It follows that the constitutional provision on bail will not apply to a case like extradition, where the presumption of innocence is not at issue.

In the instant case, the Court stated that at first glance, the above ruling applies squarely to private respondent’s case. However, it added that it could not ignore the following trends in international law: (1) the growing importance of the individual person in public international law who, in the 20th century, has gradually attained global recognition; (2) the higher value now being given to human rights in the international sphere; (3) the corresponding duty of countries to observe these universal human rights in fulfilling their treaty obligations; and (4) the duty of this Court to balance the rights of the individual under our fundamental law, on one hand, and the law on extradition, on the other.

The modern trend in public international law is the primacy placed on the worth of the individual person and the sanctity of human rights. Slowly, the recognition that the individual person may properly be a subject of international law is now taking root. The vulnerable doctrine that the subjects of international law are limited only to states was dramatically eroded towards the second half of the past century. For one, the Nuremberg and Tokyo trials after World War II resulted in the unprecedented spectacle of individual defendants for acts characterized as violations of the laws of war, crimes against peace, and crimes against humanity. Recently, under the Nuremberg principle, Serbian leaders have been persecuted for war crimes and crimes against humanity committed in the former Yugoslavia. These significant events show that the individual person is now a valid subject of international law.


On a more positive note, also after World War II, both international organizations and states gave recognition and importance to human rights. Thus, on December 10, 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights in which the right to life, liberty and all the other fundamental rights of every person were proclaimed. While not a treaty, the principles contained in the said Declaration are now recognized as customarily binding upon the members of the international community. Thus, in Mejoff v. Director of Prisons, 90 Phil. 70 (1951), the Court, in granting bail to a prospective deportee, held that under the Constitution, the principles set forth in that Declaration are part of the law of the land. In 1966, the UN General Assembly also adopted the International Covenant on Civil and Political Rights which the Philippines signed and ratified. Fundamental among the rights enshrined therein are the rights of every person to life, liberty, and due process.

The Philippines, along with the other members of the family of nations, committed to uphold the fundamental human rights as well as value the worth and dignity of every person. This commitment is enshrined in Section II, Article II of our Constitution which provides: “The State values the dignity of every human person and guarantees full respect for human rights.” The Philippines, therefore, has the responsibility of protecting and promoting the right of every person to liberty and due process, ensuring that those detained or arrested can participate in the proceedings before a court, to enable it to decide without delay on the legality of the detention and order their release if justified. In other words, the Philippine authorities are under obligation to make available to every person under detention such remedies which safeguard their fundamental right to liberty. These remedies include the right to be admitted to bail. While the Court in Purganan limited the exercise of the right to bail to criminal proceedings, however, in light of the various international treaties giving recognition and protection to human rights, particularly the right to life and liberty, a reexamination of the said ruling in Purganan was in order.

First, the Court noted that the exercise of the State’s power to deprive an individual of his liberty was not necessarily limited to criminal proceedings. Respondents in administrative proceedings, such as deportation and quarantine, have likewise been detained.

Second, to limit bail to criminal proceedings would be to close the eyes of the Court to Philippine jurisprudential history. Philippine jurisprudence has not limited the exercise of the right to bail to criminal proceedings only. This Court has admitted to bail persons who are not involved in criminal proceedings. In fact, bail has been allowed in this jurisdiction to persons in detention during the pendency of administrative proceedings, taking into cognizance the obligation of the Philippines under international conventions to uphold human rights.

The Court held that if bail could be granted in deportation cases, it saw no justification why it should not also be allowed in extradition cases. Likewise, considering that the Universal Declaration of Human Rights applies to deportation cases, there is no reason why it cannot be invoked in extradition cases. After all, both are administrative proceedings where the innocence or guilt of the person detained is not in issue.

Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition Law) defines “extradition” as “the removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government.”

Extradition is characterized as the right of a foreign power, created by treaty, to demand the surrender of one accused or convicted of a crime within its territorial jurisdiction, and the correlative duty of the other state to surrender him to the demanding state. It is not a criminal proceeding. Even if the potential extraditee is a criminal, an extradition proceeding is not by its nature criminal, for it is not punishment for a crime, even though such punishment may follow extradition. It is sui generis, tracing its existence wholly to treaty obligations between different nations. It is not a trial to determine the guilt or innocence of the potential extraditee. Nor is it a full-blown civil action, but one that is merely administrative in character. Its object is to prevent the escape of a person accused or convicted of a crime and to secure his return to the state from which he fled, for the purpose of trial or punishment.

But while extradition is not a criminal proceeding, it is characterized by the following: (a) it entails a deprivation of liberty on the part of the potential extraditee and (b) the means employed to attain the purpose of extradition is also “the machinery of criminal law.” This is shown by Section 6 of P.D. No. 1069 (The Philippine Extradition Law) which mandates the “immediate arrest and temporary detention of the accused” if such “will best serve the interest of justice.” We further note that Section 20 allows the requesting state “in case of urgency” to ask for the “provisional arrest of the accused, pending receipt of the request for extradition;” and that release from provisional arrest “shall not prejudice re-arrest and extradition of the accused if a request for extradition is received subsequently.”

Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of a criminal process. A potential extraditee may be subjected to arrest, to a prolonged restraint of liberty, and forced to transfer to the demanding state following the proceedings. “Temporary detention” may be a necessary step in the process of extradition, but the length of time of the detention should be reasonable.

Records show that private respondent was arrested on September 23, 1999, and remained incarcerated until December 20, 2001, when the trial court ordered his admission to bail. In other words, he had been detained for over two (2) years without having been convicted of any crime. By any standard, such an extended period of detention is a serious deprivation of his fundamental right to liberty. In fact, it was this prolonged deprivation of liberty which prompted the extradition court to grant him bail.

While our extradition law does not provide for the grant of bail to an extraditee, however, there is no provision prohibiting him or her from filing a motion for bail, a right to due process under the Constitution.

The time-honored principle of pacta sunt servanda demands that the Philippines honor its obligations under the Extradition Treaty it entered into with the Hong Kong Special Administrative Region. Failure to comply with these obligations is a setback in our foreign relations and defeats the purpose of extradition. However, it does not necessarily mean that in keeping with its treaty obligations, the Philippines should diminish a potential extraditee’s rights to life, liberty, and due process. More so, where these rights are guaranteed, not only by our Constitution, but also by international conventions, to which the Philippines is a party. We should not, therefore, deprive an extraditee of his right to apply for bail, provided that a certain standard for the grant is satisfactorily met.

In his Separate Opinion in Purganan, then Associate Justice, now Chief Justice Reynato S. Puno, proposed that a new standard which he termed “clear and convincing evidence” should be used in granting bail in extradition cases. According to him, this standard should be lower than proof beyond reasonable doubt but higher than preponderance of evidence. The potential extraditee must prove by “clear and convincing evidence” that he is not a flight risk and will abide with all the orders and processes of the extradition court.

In this case, there is no showing that private respondent presented evidence to show that he is not a flight risk. Consequently, this case should be remanded to the trial court to determine whether private respondent may be granted bail on the basis of “clear and convincing evidence.”

In fine, the Court remanded the case to the trial court to determine whether private respondent was entitled to bail on the basis of “clear and convincing evidence.” If not, the trial court should order the cancellation of his bail bond and his immediate detention; and thereafter, conduct the extradition proceedings with dispatch.

Failed prisons

Philippine jails have been judged and have been found wanting. And by neutral foreign experts, at that. In a recent article by Dona Pazzibugan of the Philippine Daily Inquirer, quoted the observations of Anne Marie Noren Offerman of the Correctional Service of Sweden and Rev. Birgitta Winberg, president, International Prison Chaplains Association (IPCA), who were among those who took part in a recent meeting of an international ecumenical network of prison chaplains sponsored by the Catholic Bishops’ Conference of the Philippines Episcopal Commission on Prison Pastoral Care. Members of the IPCA visited Manila City Jail to check on conditions there and held a press conference thereafter.

The quotes from Madame Offerman and Rev. Winberg were as follows:

“It’s easy to get tired and give up because anyway we’re a poor country. But you can do a lot even without money”;

Narrating their talk with one woman prisoner: “She’s been in prison 12 years but she’s not been sentenced. She said there were 200 of them (in a similar situation). When we asked for a show of hands, about 30 raised their hands and said they were not yet convicted”;

“It’s not about being a poor country, it’s about a system that is not in order”;

“The situation of the prisoners here was among the most impoverished we have seen in any prison”;

“It’s worse here. The overcrowding and the standard of the prison system here are failing, actually”;

“You must speed up the procedure. I know there is a lack of lawyers, a lack of prosecutors, a lack of judges. But it is possible to do things”;
“Filipino prison authorities start with the cases of those who had been in jail at least three years without being convicted”;

“You take their records, work with the judges to expedite the cases. I don’t think that will take a long time”:

“In Manila City Jail, I was impressed by the prisoners and the prison staff because they’re able to survive”.

May I reproduce in full the Pazzibugan article below. Thus:


‘Poverty no excuse for having bad jails’
By Dona Pazzibugan


Philippine Daily Inquirer
First Posted 02:10:00 11/30/2008


MANILA, Philippines—Being a poor country is no excuse for the Philippines to have substandard jails and a slow justice system, a group of visiting foreign prison chaplains and officials has pointed out.

“It’s easy to get tired and give up because anyway we’re a poor country. But you can do a lot even without money,” said Anne Marie Noren Offerman of the Correctional Service of Sweden.

Offerman took part in a recent meeting of an international ecumenical network of prison chaplains sponsored by the Catholic Bishops’ Conference of the Philippines Episcopal Commission on Prison Pastoral Care.

Members of the International Prison Chaplains’ Association Worldwide (IPCA) visited Manila City Jail to check on conditions there. They spoke at a press conference on Friday.

Offerman said she was shocked to hear the story of one woman prisoner.

“She’s been in prison 12 years but she’s not been sentenced. She said there were 200 of them (in a similar situation). When we asked for a show of hands, about 30 raised their hands and said they were not yet convicted,” Offerman said.

“It’s not about being a poor country, it’s about a system that is not in order,” she said.

The CBCP estimates there are 90,000 prisoners being held in various facilities meant to hold less than a quarter of that number.
Mirrors the government

ICPA President Rev. Birgitta Winberg said prison conditions mirrored the kind of government a country had.

“The more prosperous countries, like Sweden, had better facilities with rehabilitation programs while the poorer countries like the Philippines could afford only the most basic accommodations,” she said.

Winberg said the situation of the prisoners here was among the “most impoverished we have seen in any prison.”

“It’s worse here. The overcrowding and the standard of the prison system here are failing, actually,” she said.

Offerman said prison authorities could not forever blame the problem of prison congestion on the shortcomings of the legal system.

“You must speed up the procedure. I know there is a lack of lawyers, a lack of prosecutors, a lack of judges. (But) it is possible to do things.”

She suggested Filipino prison authorities start with the cases of those who had been in jail at least three years without being convicted.
“You take their records, work with the judges to expedite the cases. I don’t think that will take a long time,” Offerman said.

“In Manila City Jail, I was impressed by the prisoners and the prison staff because they’re able to survive. If I were put there, I should die. I would not be able to live,” she said.


see:
http://newsinfo.inquirer.net/inquirerheadlines/metro/view/20081130-175250/Poverty-no-excuse-for-having-bad-jails

Court TQM

I wish to summarize here some of the salient points stated in a previous Philippine Supreme Court study on court caseflow management program, which is being piloted in the trial courts of Pasay City, Metro Manila and which is based on the principles of Total Quality Management (TQM), for purposes of legal research of the visitors of this blog.

The five (5) key performance areas of any Justice System are the following:

1. Access to Justice
2. Expedition and Timelines
3. Equality, Fairness and Integrity
4. Independence and Accountability
5. Public Trust and Confidence


To determine if a court is meeting its performance standards, a system must be devised to systematically collect and analyze its performance data. For example, before a court measures case backlog, it is best to evaluate first the extent in which it is keeping pace with its incoming caseload.

Because Philippine courts are courts of record, it is not difficult to conduct court and case record reviews by consulting case files, dockets and administrative reports. They are the primary sources of quantitative information and are more objective than surveys and interviews. This is not to say, though, the surveys, questionnaires, and interviews are useless tools of performance research. Another approach is the focus group approach, which requires the creation of groups of knowledgeable practitioners for the purpose of exchanges of ideas among such persons.

The Judiciary has borrowed the concept of Total Quality Management (TQM) from Business Schools. TQM is encouraged as a management strategy that enlists the participation of all members of an organization in meeting and exceeding the expectations of their clients or customers by integrating quality into every process that is performed, product produced or service delivered by their enterprise. Applied to the judiciary, it means continuous improvement of court services by injecting quality thereto to satisfy the needs of those who deal with the courts. Its goal is to provide quality service to court users.

A court is an organized whole or an assembly of interdependent parts so that a change in one part affects the whole system. Its administrative functions and processes are so closely linked with each other such that the proper discharge of one depends on the proper discharge of others. TQM finds applicability in a court system since processing court cases involves a series of administrative steps performed by various court employees from the commencement of an action to its final disposition. Quality can be integrated into these processes to satisfy and delight court users, thus enhancing the effective administration and delivery of justice.

To effectively implement TQM in a court system, the presiding judge must organize a management team composed of himself and all court personnel. Because of the nature of the office, he is the Team Leader. As such, he must cultivate the leadership abilities among his personnel, continually search for opportunities to challenge existing processes and improve the court organization, think "outside of the frame", and experiment and take risks, inspire a shared vision, think in the future tense, have a clear idea of the goals of his court, move the team towards this vision, empower others to act, actively involve his team members under an atmosphere of creativity, trust and respect for human dignity, lead the way, create standards of excellence and set examples for others to follow, recognize the contributions of each team member, celebrate team accomplishments, and make his/her members feel like heroes.

The judge must instill teamwork among all members. The word TEAM should mean “Together, Everybody Achieves More”. The catchword is “Together”. This stresses the need for "alignment," a situation where persons in a group function as a whole. A team is aligned when the individual energies and intelligence of the members are harnessed and harmonized. This results in a sense of oneness, a shared purpose and vision.

The three (3) determinants for setting an ideal climate for implementing TQM are communications, participatory decision-making in the management process, and humane treatment of employees. These mean that communication lines between the judge and staff must always be open. Court employees must be allowed to participate in deciding administrative issues since it is they who will implement the action to be taken. Any decision made should be the consensus of all team members. Each member must be treated with respect and should feel as an indispensable part of the team.

Case Management in trial courts is a process whereby judicial control over the cases is assumed and exercised, with maximum efficiency consistent with justice, from the moment of filing to disposition for purposes of reducing litigation costs and eliminating delay.

An essential tool of case management is Caseflow Management which is the process of moving cases swiftly through the court from filing to disposition. It is the heart of court administration. Thus, from the commencement of litigation to its resolution, whether by trial or settlement, any elapsed time other than reasonably required for pleadings, discovery and court events, is unacceptable and should be eliminated. To enable just and efficient resolution of cases, the court, not the lawyers or litigants, should control the pace of litigation. A strong judicial commitment is essential to reducing delay and, once achieved, maintaining a current docket.

The objectives of case management are equal treatment of all litigants by the court; timely disposition of cases; enhancement of the quality of litigation; and promotion and preservation of public confidence in the courts.

Case management is the sole and primary responsibility of a judge and court personnel. Judges must be actively involved early in the proceedings, i.e., from the time the case is filed. Firm judicial control must be maintained throughout the life of each case. The events or stages of a case must be scheduled at the earliest possible time and the time between these events should be as short as reasonably possible. This is called 'short scheduling.' Judges must create expectations that trials and other case events will occur as scheduled. They should adhere to a strict 'no-continuance' or ‘no adjournment' policy. Judges must establish an adequate information system for each case through an accurate caseload inventory report that shall include, among other data, the age and status of cases, to properly monitor and manage their caseloads.

The judge must involve all participants in the program. These are the lawyers, prosecutors, public defenders, law enforcers, court personnel and litigants. Explaining to them the caseflow process and its objectives and emphasizing the need to cooperate in terms of meeting deadlines and periods set by law will encourage readiness for pre-trial and trial.

There are four tracks under the court case flow management pilot project: Fast Track – for cases that can be easily disposed of and require minimum court supervision; Standard Track – for cases that require regular supervision by the court; Complex Track – for cases that require significant and intensive court supervision; and Holding Track – for cases that need extended case disposition time.

It starts with an inventory of cases which should describe the nature, age and status thereof, the number of cases filed and disposed of, and the age of cases at disposition time.

The judge and lawyers shall develop a caseflow chart for each track by identifying each key event in the life of a case under the track, and the maximum time prescribed by law or procedural rule between the events; ensure that the time limits are strictly observed by designating a "track coordinator" preferably, the branch clerk; and eliminate unnecessary case events and/or add necessary events consistent with timely disposition of the case.

Once case processing and procedures have been formulated through a tracking system, the judge and branch clerk must screen each case immediately after filing, and assign it to its appropriate track. The court must ensure that each scheduled case event substantially contributes to case preparation and disposition. The court must ensure that case events occur as scheduled. The court must be able to identify through its monitoring system those cases that are in danger of exceeding deadlines. Postponements or extensions must be sparingly granted and only on exceptional grounds. These must be closely monitored to determine whether a modification in the tracking system of time frames or events is necessary. Sanctions should be imposed by the court for non-compliance with established deadlines.

Another concern is records management. Records management involves the proper maintenance, preservation and accessibility of court records at the least cost and effort. The basic court records are the Dockets (Civil, Criminal, Land Registration, Search Warrants, Judgments, Entries Book -Execution Book, Reconstituted cases) and Transcripts of Stenographic Notes. The Clerk of Court shall keep a General Docket with numbered pages where all cases are recorded in numerical sequence, together with a description of the case events that have so far occurred in each case so that its particular case history can be readily seen.

Section 14, Rule 136 of the Rules of Court prohibits the taking of any court record without the authority of the court. Court records are confidential documents which may not be taken out of the court unless authorized and with the necessary safeguards.

Section 2, Rule 135 of the Rules of Court recognizes that the records of courts of justice are public documents and may be inspected during business hours. However, there are certain records which may not be open to the public. Strict confidentiality is thus observed in the following instances:

a. The Investigation Report and Supervision History of a probationer (Section 17 of the Probation Law);
b. Cases under Art. 200, of Presidential Decree No. 603 (The Child and Youth Welfare Code);
c. Violations of the Dangerous Drugs Act of 1972;
d. Proceedings against members of the Philippine Bar except the final judgment; and
e. Proceedings against members of the Bench; however, a copy of the decision or resolution of the Supreme Court shall be spread in the records of the judge at the Office of the Court Administrator.

Pre-trial plays an important part in the efficiency of the Justice System. It is a procedure consisting of conferences between attorneys for the parties to a lawsuit and a judge of the court. Its chief purpose is to prepare the case for an effective trial by formulating the issues, not in abstract terms but with specific facts of the particular case in mind, and stating them in the pre-trial order which then, in effect, becomes the chart for pre-trial. See Rule 18 and Rule 118, Rules of Court.

There are two stages in the pre-trial of a civil case: the negotiation stage and pre-trial proper. In both stages, the judge is the 'principal actor' and as such must actively wield his legal and moral authority in the proceeding. While there are no hard and fast rules in the conduct of a settlement, the following
techniques may be considered:

1. As soon as the parties receive each other’s pleadings, their lawyers should get in touch with one another to explore the avenues for settlement, or failing this, to determine what facts and evidence, documentary and otherwise, can be admitted during the conference. On the day of pre-trial but before the case is called, counsels for both parties may appear before the branch clerk of court for marking of their exhibits. This saves pre-trial time and effort.

2. The ideal venue for pre-trial is the courtroom itself with the judge at the bench and the parties seated across each other at the lawyers’ table. The judge, however, can be less formal and may sit with the parties and counsel. For cases involving confidential matters where pre-trial in the courtroom is not advisable, the conference may be held in chambers.

3. If held in chambers, the judge should require the presence of his branch clerk of court, interpreter and stenographer to prevent suspicion of any irregularity. The discussions should be amiable and cordial to create an atmosphere of understanding and goodwill between the parties.

4. The judge should endeavor to bring the parties to a settlement range. If the parties cannot settle, s/he should determine the reason therefor.

5. He asks plaintiff and defendant separately what possible concessions they can offer to settle the case.

6. He should take care not to appear to have pre-judged the case. He may premise his statements on assumptions. Thus, s/he may say: 'Assuming that the allegations of defendant (or plaintiff) in the pleadings are true, can you present more superior evidence?'

7. The judge must be able to highlight the 'soft spots' in the versions of both parties and exploit these to attain a just and fair pre-trial settlement.

8. The judge should remain from asking either side to name specific figures or a range of figures, i.e., 'best figure, ''highest offer, ''rock bottom figure' or 'irreducible minimum,' because the use of absolutes tend to end negotiation rather than encourage it.

9. In case of failure of settlement, pre-trial proper follows. The following are suggested techniques:

a) The judge asks plaintiff’s counsel if there are proposals for stipulation or admission of facts. The contents of exhibits already marked may be adduced by the lawyer at this point. The defendant is thereafter asked what s/he admits and if admission is refused, the reason therefor. When plaintiff is through with his/her proposals, the defendant takes his/her turn to propose admissions. The same process is observed.
b) Formulation and simplification of issues comes next. This consists of developing a complete statement of all of the actual contentions of the parties as to the law and the facts which have not been eliminated during the admission process. Any issue not raised during pre-trial and therefore not stated in the pre-trial order cannot be tried during trial on the merits. It is also at this stage that the number of witnesses and the nature of their testimonies are determined.
c) Once the issues have been defined, the judge and counsels next agree on trial dates. Whenever possible, the judge should schedule continuous trials to comply with the rule on mandatory continuous trials.

In criminal cases, the admissions of the accused cannot be used against him unless these are signed by him/her and counsel. The best time for signing is immediately after pretrial since both accused and counsel are still in court. The stenographer brings the typewriter to the courtroom. The judge then formulates and consolidates the stipulations of facts and issues as proposed by the parties. Once typed, the order is read by the lawyers and the parties who may immediately propose corrections. The signing thereafter takes place.

A pre-trial order, or, as described in the Rules, the 'record of pre-trial results' is an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered. It describes and limits the issues for trial to those not disposed of by admissions or agreements during the pre-trial and cannot anymore be altered; when entered, it controls the course of the trial.

Debatable

The 1987 Constitution of the Philippines (Art. VIII, Sec. 9) provides that “the Members of the Supreme Court ... shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation.”

The old constitutional procedure subjected all nominees to Supreme Court to the strict and partisan scrutiny of the Commission on Appointments of the Philippine Congress, following the American constitutional model. The JBC procedure under the Philippine Constitution, theoretically, shields the judges and justices, and the appointment process, as much as possible, from politics. I assume, of course, rightly or wrongly, that the JBC members are not beholden to the President and the politicians loyal to her.

If the President is not happy with the three recommendees of the JBC, does she have the right to reject the entire list? This constitutional question is yet undecided in Philippine jurisprudence.

The latest letter by Supreme Court spokesman, Atty. Jose Midas Marquez, addressed to the editors of the Philippine Daily Inquirer, seems to give us a clue as to the tentative position, at least, of the incumbent Chief Justice, Hon. Reynato Puno, if not of the entire Supreme Court.

He states in his aforementioned letter that as mandated by the Constitution, the President can only appoint from a list of at least three names submitted by the Judicial and Bar Council (JBC); that, while appointments to the Supreme Court or to any other lower court for that matter, rest on the President’s sound discretion, such discretion is bound by the list submitted by the JBC; that consequently, the President cannot reject all the nominees of the JBC, return its list, and ask for the inclusion of preferred candidates, contrary to the view of others; that this is a limitation on the presidential prerogative; and that to be sure, this cannot be allowed under the watch of the incumbent Chief Justice.

The above position is, of course, debatable, if we consider the constitutional doctrine of separation of powers. May JBC, which is not a constitutional body but merely a constitutional creation, limit the scope of the constitutional power of the President to appoint Supreme Court Justices? I do not think so. May the President reject the entire list of recommendees submitted to her by the JBC and require the latter to submit to her a new list, if she thinks the persons mentioned in the original list are not deserving of her appointment based on her standards, whatever those may be? I think so. But if such is the case, I admit that we may be opening our Judiciary to a worse kind of partisan control, this time by a single Executive and not by a collective Congress. Which is more dangerous to our country? You are free to express your opinion.


There will be seven vacancies in the Supreme Court by next year. By then, 14 out of 15 justices would ba appointees of the incumbent Pres. Gloria Arroyo, who does not have the trust of a great majority of the Filipino people as of the latest opinion surveys.

May I reproduce below the Marquez letter. Thus:


JBC to consider groups’ recommendations


Philippine Daily Inquirer
First Posted 04:24:00 11/29/2008


I write in reaction to the various views and reports on the public’s renewed concern over the appointment of new Supreme Court justices, which the retirement of seven incumbent justices next year will necessitate. (“‘Bantay Korte’ to watch SC appointments,” Philippine Daily Inquirer, 11/18/08; “Choosing Supreme Court justices,” Philippine Daily Inquirer, 11/10/08; “7 justices to retire next year,” Philippine Daily Inquirer, 11/8/08; etc.)

The matter of appointments to the Supreme Court is a matter of high public interest. Thus, Chief Justice Reynato S. Puno himself has called on private groups to help search for the best candidates for the high court. Accordingly, the recent formation of a citizens’ search committee within the Supreme Court Appointments Watch (SCAW) consortium, and the launching of Bantay Korte Suprema are welcome developments toward the call of the Chief Justice.

The 1987 Constitution (Art. VIII, Sec. 9) says, “The Members of the Supreme Court ... shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation.” This departure from the old process where presidential appointments to the judiciary shall be confirmed by the Commission on Appointments was introduced by the framers of the 1987 Constitution to shield the judges, and the appointment process, as much as possible, from politics.

As mandated by the Constitution, the President can only appoint from a list of at least three names submitted by the Judicial and Bar Council (JBC). Thus, while appointments to the Supreme Court or to any other lower court for that matter, rest on the President’s sound discretion, such discretion is bound by the list submitted by the JBC. Consequently, the President cannot reject all the nominees of the JBC, return its list, and ask for the inclusion of preferred candidates, contrary to the view of others. This is a limitation on the presidential prerogative. To be sure, this cannot be allowed under the watch of the incumbent Chief Justice.

Rest assured that the JBC will highly consider the recommendations of the SCAW, the Bantay Korte Suprema and other well-minded organizations, and will continue to perform its constitutional mandate functions and duties—independently—to the best interest of the high court, and the country.
In this regard, the public hearing on the first vacancy commenced on Nov. 19, 2008, at the Division Hearing Room, 1st Floor, Supreme Court.


JOSE MIDAS P. MARQUEZ, assistant court administrator; chief, Public Information Office, Supreme Court, Manila


See:
http://opinion.inquirer.net/inquireropinion/letterstotheeditor/view/20081129-175092/JBC-to-consider-groups-recommendations (November 29, 2008).

Judicial screening

In the November 24, 2008 issue of the Philippine Daily Inquirer, columnist Fr. Joaquin Bernas, a renowned Philippine constitutionalist, wrote the following about the Judicial and Bar Council, which is in charge of screening the applicants to judicial positions in the Philippines:


1. We would naturally expect that members of the Judicial and Bar Council themselves would likewise be of proven competence, integrity, probity and independence. At this moment we have no choice but to take it on faith that the ex officio members (the Chief Justice, the Secretary of Justice, and the members of Congress) as well as the regular members (the four appointed by the President with the consent of the Commission on Appointments) possess the desired qualifications. The current interest of the public, however, is in insuring that the JBC will be able to submit to the President a list of potential justices endowed with proven competence, integrity, probity and independence.

2. The JBC, as I recall, was a brainchild of the late Chief Justice Roberto Concepcion. It grew out of dissatisfaction with how the Commission on Appointments of Congress had behaved in the past. It will be recalled that under the 1935 Constitution all appointees, except those exempted by Congress, needed confirmation by the Commission on Appointments. Concepcion thought that appointees to the judiciary from the lowest judge to the justices of the Supreme Court should be screened in a less politically colored way. Thus was created the JBC, with the primary responsibility of limiting the President’s appointments to the judiciary to a list of at least three names.

3. I suggest that voting on who should be considered for appointment to the judiciary, especially to the Supreme Court, is a public and not a private act. Public office is a public trust for which public officers are answerable to the people. How they vote is a matter of public interest about which the public has a constitutional right to be informed.

4. In a sense, the JBC is also in the dock. The interviews of nominees conducted by the JBC are now open to the public. The public will be watching to see if their deliberations and decisions are characterized by integrity, probity and independence.

See:
http://opinion.inquirer.net/inquireropinion/columns/view/20081124-173975/The-JBC-in-the-dock

Ravished

In his column Separate Opinion in the Philippine Daily Inquirer, issue date November 23, 2008, entitled “The Backbone of a Banana”, former Philippine Supreme Court Associate Justice Isagani Cruz made the following remarks, which, I think, deserve, some reflection by freedom-loving lawyers of the Philippines:

1. Whatever our concept of justice, I believe our commitment to it must begin with the courts—of justice, as we call them. Although holding “neither purse nor sword,” the judiciary is an indispensable ingredient of the democratic government. The lifeblood of every libertarian regime pulsates in the vitality of its judicial system and the capacity of the courts to uphold the majesty of law.

2. The Supreme Court of the Philippines was like a pure and innocent maiden until its chastity was ravished by martial law. Having savored the thrill of surrender during that lustful period, it has learned the practical benefits of accommodation with the political departments as a more convenient way of life. A regrettable example is Mabanag v. Lopez Vito, where it dismissed the constitutional challenge to the Parity proposal as a political question and thus gave Americans more rights to our natural resources than our own citizens.

3. That craven case has since been reversed by more courageous decisions, but it continues to seduce the Supreme Court to go astray every so often. We had that reasonable fear before with the present tribunal composed of all appointees of President Arroyo except for one solitary figure from a past administration. However, that apprehension dissolved in 2006 when it decided three leading cases—Senate v. Ermita, Bayan Muna v. Ermita and David v. Arroyo—that assured the overjoyed nation that its allegiance was not to Malacañang but to the rule of law.

4. But, alas, our elation was short-lived. Early this year, the Supreme Court that before seemed so righteously bold reconsidered its bravura and decided to repent, not for its sins but its ungratefulness to its benefactor. In Neri v. Senate, it sustained the President’s executive privilege covering the dark secrets of the malodorous ZTE contract despite the people’s constitutional right to transparency in government.

5. As a former member of the Supreme Court, I can say that it is easy to support any decision it chooses to make, good or bad, and for whatever motives. This can be done with jurisprudence. Chief Justice John Marshall of the US Supreme Court reportedly used to say after coming to his own unresearched but “gut” conclusion on a pending case, “That is our decision, gentlemen. Let Justice Story find the precedents.”

6. Our high tribunal during martial law found enough jurisprudence to justify the Marcos despotism even as there were also enough contrary rulings from braver courts. These better cases were buried in unmarked graves like the desaparecidos of the dictator.


See:

http://opinion.inquirer.net/inquireropinion/columns/view/20081123-173826/The-backbone-of-a-banana

Silence

In 2001, Prof. Stefan H. Krieger of the University of Oregon published an article entitled “A TIME TO KEEP SILENT AND A TIME TO SPEAK: THE FUNCTIONS OF SILENCE IN THE LAWYERING PROCESS”, 80 Or. L. Rev. 199 (2001), which I wish to summarize here for legal research purposes of the visitors of this blog.

In his article, Prof. Krieger makes the following conclusions, which, I think, deserve serious reflection and consideration by the Bench and the Bar:

1. The legal profession is infatuated with the verbal. In relationships with clients, lawyers want detailed information and often become frustrated with evasive and ambiguous answers. In negotiations, they frequently strive to overwhelm the other side with words: arguments, threats, and posturing. When a tentative agreement has been reached, they spend, at least in the opinion of laypersons, inordinate amounts of time, parsing each and every term, and attempting to forge a deal that will take into account every possible eventuality. In formal hearings and trials, lawyers pride themselves on the precision and incisiveness of their arguments and examinations, ridiculing a witness' uncertainty and hesitation and often trying to take control of the courtroom with the power of their voices.

2. Much of legal education supports this culture. Many law professors demand the quick, precise answer, take advantage of student pauses and hesitations to make their point, and often appear to reward the glib response. At the end of the semester, mastery of a subject is evaluated solely on a three-hour examination in which rapid recall and recitation of the course material is the value.

3. Lawyers' infatuation with the verbal, however, ignores the fact that not all communication is informational. The details, demand for precision, search for the right words, the focus of most of a lawyer's craft, can ignore the interpersonal and contextual components of language. Lost in all the verbiage is an understanding of the communicative power of silence. Silence plays a variety of functions in human communication both to facilitate the sending of verbal messages (pauses and hesitations; intervening silences) and to send their own messages (assent; promotion of reflection and discussion; deep silences; and marking of social distance). Disregard of these functions can often lead to unreflective discourse and misunderstanding. Lawyers can have all the words right but can miss the mark when they do not have an appreciation of the function of the spaces between words. Especially in cross-cultural contexts, the failure to understand how someone from a less verbal culture uses silence can result in serious misunderstandings.


Effective lawyering requires knowledge not only of the grammar of language, but also the rules of silence. Obviously, much of a lawyer's practice needs to focus on verbal precision and the crafting of words into a persuasive and coherent message. But without a grasp of the forms and functions of silence, lawyers cannot communicate effectively with their clients, their adversaries, or decision-makers. Both as speakers and listeners, the messages sent can be lost or misunderstood in all the lawyerly noise. As strange as it may initially sound, a lawyer can at times be most effective when she does not speak.

Most of literature assume that a lawyer's skill is almost exclusively verbal and focus primarily on how a lawyer should craft language to communicate effectively. Lawyers are students of language by profession. They exercise their power in court by manipulating the thoughts and opinions of others, whether by making speeches or questioning witnesses. In these arts the most successful lawyers reveal (to those who can appreciate their performance) a highly developed skill. While this literature examines the use of language in the representation of clients, it largely ignores the role of silence in the lawyering process. Moreover, it rarely acknowledges that words can, at times, impede communication.

Many commonly assume that silence on the part of a lawyer, client, or witness has a negative connotation and discourage its use for clear communication. Silence during a trial may present considerable problems for the court. By its very nature, silence is ambiguous and therefore messy. Questions about its meaning may lurk in the shadows unless the court or the attorneys assume an active role in resolving the ambiguities. For example, what does it mean when a witness is slow to answer or generally reticent? What meaning lies in the behavior of a hesitant witness - careful thinking in order to report recollections faithfully or cautious planning to fabricate a false version?

Scholars in other social disciplines have recognized the significance of silence as a powerful means of communication. They reject the notion that silence is simply the absence of speech and contend that silence can serve positive, as well as negative, communicative functions. They assert that like speech, silence can have a wide variety of meanings depending upon several factors, including the mental states of the participants, the context of the discourse, and the culture within which the communication occurs.

Depending upon the backgrounds of the participants, the occasion, and the verbal and nonverbal contexts surrounding the silence, the following list identifies a number of typical potential meanings:


1. The person lacks sufficient information to talk on the topic.

2. The person feels no sense of urgency about talking.

3. The person is carefully pondering exactly what to say next.

4. The silence may simply reflect the person's normal rate of thinking.

5. The person is avoiding discussion of a controversial or sensitive issue out of fear.

6. The silence expressed agreement.

7. The silence expressed disagreement.

8. The person is doubtful or indecisive.

9. The person is bored.

10. The person is uncertain of someone else's meaning.

11. The person is in awe, or raptly attentive, or emotionally overcome.

12. The person is snooty or impolite.

13. The person's silence is a means of punishing others, of annihilating others symbolically by excluding them from verbal communication.

14. The person's silence marks a characteristic personality disturbance.

15. The person feels inarticulate despite a desire to communicate; perhaps the topic lends itself more to intuitive sensing than to verbal discussion.

16. The person's silence reflects concern for not saying anything to hurt another person.

17. The person is daydreaming or preoccupied with other matters.

18. The person uses silence to enhance his own isolation, independence, and sense of self-uniqueness.

19. The silence marks sulking anger.

20. The person's silence reflects empathic exchange, the companionship of shared mood or insight.


There is a grammar of silence, a set of rules structuring the relationship between verbal utterances and the unspoken, which demonstrates the function of silence in a given situation. This grammar may seem, at first blush, more difficult to understand than the grammar of the verbal, but it still can be similarly decoded.

The basic thesis of the article of Prof. Krieger is that effective lawyering requires an awareness of the significant role that silence plays in communication. Most lawyers love to hear the sound of their own voices and often view silence - either on their own part or on the part of their client, a witness, or an opposing attorney - as a sign of weakness. Consistent with the culture of much of contemporary society, many lawyers feel the need to avoid silence at all possible costs. In the process, they can get lost in all the noise. As speakers, they can easily turn off their audiences by talking too much; as listeners, their need to hear immediate responses, to fill in any silence, can create obstacles to fruitful discourse. Silence frequently does not reflect a lack of knowledge or hesitancy, but provides a means for expressing feelings and ideas. Indeed, it often is one of the most effective ways of combating the noise of legal communication and reanimating the power of words. Understanding the positive functions of silence can help attorneys better interpret silences on the part of a client, witness, or adversary; can assist them in communicating more effectively with clients, adversaries, and decision makers; and can give them an appreciation of the uses of the unspoken for persuasive advocacy.

Obviously, silence, just as verbal communication, does not always serve a positive function. At times, for instance, silence can indicate weakness, avoidance, lack of preparation, or deception. The point of is not to endorse the unbridled use of silence as a means of communication or to encourage lawyers to assume that a client's or adversary's lack of response always reflects some deeper, profound meaning. The thrust is to urge lawyers to become more conscious of their own use of words and silence in their communication and to become more reflective about others' silence.

Communication theorists contend that, at least for hearing individuals, there is no such thing as absolute silence. We are thoroughly enmeshed in layers of energy exchanges. The sonic expression of these exchanges is so constant that, for the most part, we remain unconscious of it. In short, there is no real escape from the noisy vibrancy of life. While our ears and its cochlea are our central receptors for hearing, there are no unique "points of view" to audition.

From the standpoint of the function of language, silence is a relative term. It is not simply the absence of language. The misconception that silence is totally apart from language arises from the mistaken belief that language is used solely to exchange information. Communication theorists contend that in addition to the information exchange (the ideational function), language serves at least two other functions: interpersonal, and textual. The ideational function represents those situations when the speaker, as observer, talks "about something". The interpersonal function concerns the interaction of the speaker with the audience. This is the component through which the speaker intrudes himself into the context of the situation, both expressing his own attitudes and judgments and seeking to influence the attitudes and behaviour of others. The textual function makes language relevant by giving it a context. It signals whether a given text is intended as a lecture, poem, play, joke, chit-chat, or some other form of speech event.

All communication, including discourse in the practice of law, consists of far more than exchange of information. Although information gathering and dissemination are certainly important components of lawyering in either the transactional or dispute resolution contexts, the interpersonal and textual aspects of language are also crucial to a lawyer's craft. In an interview with a client, for example, the interpersonal language used by the lawyer in eliciting information can have a significant effect on whether all the pertinent facts within the client's personal knowledge are discovered. In a negotiation, the attorney's choice of language can set the context for the discussions by suggesting to the other side her attitude in regard to the issues on the table or telegraphing her seriousness about reaching a deal. Finally, in a closing argument, regardless of the information the lawyer relates, her language choice can either connect with or alienate the finder-of-fact.

Although silence, by its very nature, provides quite limited informational content about peoples, events, and actions, it can play a significant role in the realm of the interpersonal and textual functions of language. In fact, the dictionary definition of "silence" reflects the fact that silence is part of language, not totally distinct from it. Silence is an alternative or response to speech, a deliberate state or condition, or even a type of communication.

In the context of oral communication, silence and speech are not total opposites. Rather they constitute a "continuum of forms ranging from the most prototypical instances of silence to the most prototypical instances of speech." In a limited capacity, silence allows speech to make sense. Obviously, speech would be pure gibberish without some silences. On a very basic level, the cessation of sound in the production of consonants creates the pattern of consonants and vowels that makes "speech." Pausing or hesitating within the stream of speech makes it possible for each speaker to take her turn. Lulls within a particular conversation give each party an opportunity to reflect on the discourse. Without silence, speech would be nothing but endless noise and could not perform any of the functions of language. Indeed, in situations where speakers do not take a breath, engage in simultaneous discourse, or fail to take a time out from heated arguments, speech can actually be disruptive of communication.

Just as one can utter words without saying anything, one can say something [*211] without uttering words. Examples of such silences are numerous: refusing to answer a question; ignoring a tactless comment; communicating anger or resentment; acknowledging agreement with a proposal; or expressing awe or respect for the other party. And just as the meaning of speech depends in part on silences, the meaning of silences hinges largely on the surrounding utterances. A particular silence only has meaning in the context of its surrounding utterances. The act of saying consists of two basic components: the said and the unsaid. The former component includes the actual utterance and those real and imagined ones that precede it and that follow. The unspoken presumptions and implications belong to the latter.

The repertoire of codes (of either speech or silence) from which we select depends in part on the particular culture in which we are communicating. While in some cultures, for example, density of speech is valued, in others silence is a virtue and loquaciousness is considered antisocial. Accordingly, the decision-making process of when to use speech or silence or any combination of the codes along the noise-silence spectrum may hinge in some way on the specific community's attitudes toward silence.

Not all silence is communication. Communication does not occur, for instance, when a passenger on a bus sleeps wordlessly through the trip next to her seat-mate; when a visitor to an art gallery stands silently awestruck by a work of art; when a hushed courtroom sits still mesmerized by a closing argument; or when an abused woman cowers in silence when attacked by a man. Just as not all noise is part of speech, the absence of sound does not necessarily constitute communication.

French poet Max Picard observed: Language has lost its spiritual quality; all that remains is its purely acoustic quality. Listening is only possible when there is silence in man; listening and silence belong together. Instead of truly speaking to others, today we are all waiting merely to unload on to others words that have collected within us. Speech has become a purely animal, excretive function.

A second form of silence which structures communication is "intervening silence." n64 While pauses and hesitations are primarily unintentional interruptions of the sequence of speech reflecting an effort to find the correct word or meaning, intervening silences are intentional attempts to punctuate words, phrases, or sentences to highlight the content of speech. Of all the senses, only hearing gives the appearance of progressing through time; silences can give a pattern to this temporal flow. Consider, for example, a comedian's telling of a joke. The silence before the punchline commands the audience's attention, stops what could be a monotonous flow. Without this silence, the joke could fall flat. Similarly, the tension created by the storyteller's silence before the suspenseful climax draws the listener's attention.

Related to intervening silences, a third form of structuring silences is "fore and after silence." Within a discrete utterance, intervening silences make particular sound phrases (words, phrases, and sentences) distinct from every other sound phrase. In contrast, fore and after silences make every particular utterance distinct from another utterance. They serve a framing function for speech: fore silences provide the open space immediately before the utterance begins, and after silences furnish an interval immediately after the utterance. They give a silent backdrop for all communication.

The most popular understanding of silence as communication is the belief that the failure of one party to a communication to respond to another party implies assent. Silence on the part of the auditor is frequently taken to mean agreement with the speaker. Since one is usually led to speak when something is wrong, silence suggests that one sees nothing wrong, that he gives assent to what exists. The old legal maxim derived from Roman law, qui tacet consentire videatur ("silence implies consent") reflects this notion. Also, in many other cultures, in particular ritual contexts, silence by a listener is regarded as consent.

A danger exists, however, in over-reliance on this notion. Silence by a listener in response to a demand or request by a speaker can have many more meanings than consent. Indeed, even in the legal setting, silence implies consent is not mechanically applied. Courts look to the full context both before and after the silence to determine its meaning.

Silences can increase our awareness of what we are saying. But they can also communicate to the listener the desire for further reflection and discussion. Communication scholars theorize that lengthy interactive silences allow listeners to make inferences and judgments about what has and has not been said, to reflect on the possible meanings of both verbal and silent messages, and to come to their own conclusions.

Not only can silence encourage processing of the message by the listener, but it can also coax her into expressing herself. Many participants in discourse have the common misconception that the more one speaks, the more one encourages the listener to respond. Many of us become anxious when a listener does not immediately reply to our speech and, before she can answer, we add more words to encourage a verbal reaction. At times, however, excessive talk, repetitious haranguing, and more verbiage can actually terminate the communicative process. Silences can signal that the lines of communication remain open and that no one has the intention of closing them. Too much speech, on the other hand, can have the effect of terminating discourse.

A cautionary note, however, is in order. People who fill their discourse with an inordinate amount of silence can actually discourage open communication. An interesting study of the behavior of participants in small group discussions highlights this point. The researcher found that the participants in discussions viewed silent members (those who did not speak unless spoken to) in a more unfavorable light than not only those who made positive contributions (those who encouraged participation and tried to resolve the conflict) but even those who made negative contributions (those who discouraged participation and resolution). Apparently, participants viewed negative members as contributing more to the resolution of the issues than those who remained silent. To promote communication, then, silence must be used in the context of sufficient information exchange so that discourse is encouraged.

In certain contexts silence can actually communicate an assertion of power. In situations when speech is expected, a communicator, by refraining from words, can attempt to take control of the discourse. Even when the silent communicator is in a subordinated social position, silence can constitute an assertion of power. A suspect in police custody or a hostile witness at a deposition, for example, can refuse to answer or evade questions by the detective or the lawyer. Additionally, silence can communicate an assertion of power by demonstrating dissent. Strategic use of silence by dissenters in a public setting where words are expected can draw attention to the protest and register a judgment of disapproval.

One of the functions of language is ideational: to exchange information about people, objects, and events. By attempting to communicate our knowledge of this information concretely and unambiguously, speech usually serves this function much better than silence. But precisely because this mode of speech conveys certainty of perception, it is often inadequate to communicate certain very strong emotions. Words are used as symbols to convey the knowledge we wish to impart to a listener. At times, however, we have knowledge of an experience we are undergoing but cannot find the words to articulate it. In everyday parlance, we are "left speechless." The only symbols we have to convey this message are "deep silences."

Deep silences occur in several types of situations. First, they will often come in reaction to unexpected conditions such as a tragic report of a sudden death, illness, catastrophe, joyous news of the birth of a child, accomplishment of a friend or family member, or personal success. Faced, on the one hand, with the uncertainty and ambiguity of isolation, bewilderment, or terror, or, on the other hand, with overwhelming feelings of happiness, we frequently feel that words are unnecessary, that the circumstances "speak for themselves." Moreover, in those situations utterances are simply inadequate to convey the message because words, in their very concreteness, fail to express the depth of our feelings.

A second type of deep silence communication occurs between two intimates. Words help to create connections between people, but once those relationships are developed, words may become superfluous. To lovers or old friends, while some information exchange is obviously necessary in discourse, often the purpose of their conversation is not primarily ideational but interpersonal. For intimates, words may be unnecessary and may actually be considered intrusive in the relationship. As one commentator puts it, "It is not through speech or acts but through silence that the deepest bonds are cemented. One sure fruit of this communion of silence is that it invites the deepest and most intimate of confidential sharing."

A third and final type of deep silence is the silence of hatred and anger. While the lack of utterance between two people can reflect intimate communion, that silence - even between the same two individuals - can suggest deep estrangement.

When some people feel betrayed or hurt by a remark or another's conduct, their emotions may be so intense that they may treat the relationship as dead and feel that any verbal exchange would be worthless. They are not merely using silence as a weapon in an argument to persuade the other party or as a "time out" for reflection. By withdrawing from words, they are communicating the rupture in the relationship.

Similar to other communicative silences, whether a particular silence is a deep silence in reaction to an unexpected event, one of intimacy, or one of hatred, will depend on its context. The utterances prior to the silence and the circumstances surrounding it will, of course, help in an understanding of its meaning. But it is important to recognize that a deep silence has its own meaning apart from the utterances: that the communicator's intense emotions have made her feel that words are inadequate, unnecessary, or impossible to express.

Related to formulaic silences are those used to avoid conflict. At times, when individuals are engaged in a highly emotional disagreement, one or more of the parties will refrain from utterance to give themselves the distance to disengage from the conflict. Their purpose is not to reflect on the discourse or develop an appropriate response, but to avoid further confrontation. By giving the parties social distance, silence allows them to "let off steam," to release the tension of the situation.

The final form of silences marking interpersonal distance is the use of silence as a weapon. Here a party does not use silence to avoid conflict but rather as a strategic maneuver in an ongoing conflict. Use of the "silent treatment" sends a message of indifference or even outright disdain for the party, her conduct, or her position on an issue. In fact, "such silent treatment of the opponent may be even more powerful than uttering the harshest of words and drives many people crazy." In some communities, entire groups of individuals use the silent treatment to shun a member, to mark interpersonal distance against an individual who has breached some social norm.

Besides the particular situational setting, cultural context can also have a significant bearing on a silence's meaning. For a person to communicate with individuals from an unfamiliar society, she must not only be able to interpret the literal content of different utterances but also know the kinds of codes, channels and expressions [which are used] in what kinds of situations an ethnography of communication. In regard to silence, she needs to grasp what particular functions silence plays within that culture and to understand that different cultures have different interpretative norms for giving meaning to specific acts of silence. A lack of awareness of these norms can lead to significant misinterpretations of silence.

While a number of studies have been conducted on the meaning of silence in different cultures, the only major generalization that can be drawn concerns the divergent attitudes in high context and low context cultures. In high context cultures (such as Japan and Arab countries), individuals rely most heavily on how a statement is said rather than the content of what is said; in low context cultures (such as Germany and the United States), people rely primarily on the substance of what is uttered. While in high context societies, the parties rely a great deal on nonverbal communication and pay less attention to detail, in lower context societies, they focus on the words and literal meaning of the communication. Consistent with these broad definitions, researchers have found that while individuals in high context cultures unconsciously use silence in their everyday conversations to send "scripted" messages about their feelings, communicators in low context cultures do not have such embedded scripts in their communications to send subtle silent messages but tend to use silence strategically, making conscious choices of when to refrain from speech.

The ability to communicate well is obviously critical to almost every aspect of the lawyer's craft. Much of a lawyer's work is involved in dealing with people - listening to clients, developing rapport with them, handling them, persuading judges or opponents, and so on. The skills of the successful lawyer lay in mastery of the human interaction - how to listen, how to persuade, how to meet emotional and psychological needs of clients, opponents, judges, indeed, everyone they deal with professionally.

As many commentators contend, language itself is inherently indeterminate depending in large part on the speaker's and listener's context for its meaning. Even with those limitations, attempts are made to develop a variety of oral advocacy techniques that lawyers can employ on a context-specific basis. Similarly, this analysis of silence in the lawyering process strives to identify possible meanings that silences can have in their interactions so that they can determine, within the context of the particular communication, how best to use silence or respond to its use by their audience. While it can be argued that interpreting silences may be a more daunting task than deciphering words, the following analysis will show that a lawyer's comprehension of silences will assist her in communicating her messages and understanding those she receives.

In an initial interview of a client, a lawyer has a number of goals: (1) to form an attorney-client relationship; (2) to determine the client's goals; (3) to gather as much as the client knows about the facts; and (4) to reduce the client's anxiety without being unrealistic. Whether or not the lawyer is successful in meeting these goals depends in large part on her ability to make the client feel comfortable, to encourage the client to communicate freely, and to remove inhibitions to communication, such as authority, cultural, psychological, or social barriers. Her capacity to respond to and use silences is essential to each of these skills.

As demonstrated earlier, pauses and hesitations can actually be very helpful to a speaker in communicating her message. They can aid her in becoming more aware of what she is saying; they can encourage her to explore her thoughts and feelings; and they can assist her in fine tuning her utterances. In many interviews, especially in their initial stages, the client's pauses and hesitations serve these functions. If, for example, she is embarrassed to discuss her problem with a stranger or fears the attorney as an authority figure, pauses and hesitations can give her time to become more comfortable with the setting and explore her feelings. If she is experiencing uneasiness in confronting the fact that she has to handle this legal problem, these silences can assist her in coming to grips with the fact that she cannot avoid her situation. If she is uncertain as to her memory of the particular events, pauses and hesitations can help her clarify her memory.

To use pauses effectively, however, a lawyer must overcome the popular misconception that silence is a failure in communication. As described previously, speakers feel a pressure to talk and fear that they will be considered inadequate as communicators if the discourse does not flow. Listeners feel uneasy, unsure of what the speaker is trying to say, and impatient to hear her thoughts or feelings. Pressured to talk, the speaker may not sufficiently process her thoughts and feelings and may not communicate her full message; impatient to hear more information, the listener may fill up the silence with her own talk.

Lawyers need to overcome their discomfort with pauses and hesitations in discourse and their desire to rush along the flow of the interview. Especially at the beginning of an interview, a lawyer needs to be sensitive to the possible barriers between the client and herself and should view pauses and hesitations as opportunities for the client to reach his own comfort level, not as a failure to move the interview. She should avoid filling in the spaces with rephrased, probing, closed-ended questions or, even worse, attempting to complete the client's thoughts. Instead, a lawyer should allow the client to continue speaking either by maintaining and using her own silence, non-verbal facilitators (e.g., nodding or leaning forward), or words of encouragement.

When faced with a client who is unable to remember key facts, to make up his mind about a course of action, or to decide whether or not to enter into a retainer agreement, lawyers tend to want to ask more questions; to try to clarify points; or to probe further. Although these techniques can, at times, be very helpful, too much talking can actually be distracting for the client. It can deter clients from drawing their own conclusions and can discourage them from freely expressing their thoughts and feelings.

The lawyer should let the client know what information is sought; what work the client has to do; or what specific issues must be decided. She should also give the client a message allowing him to take the time to reflect about the information required or the decision to be made. If possible, the interview should be recessed for this purpose.

Lawyers need to be clear in using silence as a tool for encouraging reflection lest the client start to feel anxious. If the client does not understand that the lawyer's silence has a purpose or feels that the silence has gone on too long, he may feel embarrassed, unsure whether the lawyer is floundering; whether she even cares about his problem; or whether the lawyer disapproves of something he said. Counseling literature is replete with suggestions as to the proper length of time for such silences: three to six seconds; up to fifteen seconds; or four to twenty percent of a two-minute segment of the session. The appropriate time for these silences will depend on the context of the situation: the complexity of the issue involved; the comfort level of the client; the success of the client in remembering information or making a decision; and any looming time pressures. The client's nonverbal cues, reflecting either concentrated thinking or uncomfortable fidgeting, should give the lawyer some guidance regarding when to move on with the session.

Often in the midst of an interview or counseling session, a client will communicate her feelings and thoughts with deep silences. A battered spouse in a domestic violence case, for example, might interrupt her description of her partner's abusive conduct with a silence reflecting the immensity of the pain she feels. A widow, recovering from the recent death of her husband, might have great difficulty discussing the distribution of his estate because of her grief. In the midst of the litigation of a case or the transaction of a deal, a totally unforeseen event might occur that radically changes the status of the case or the relationship of the parties and has a deep emotional impact on the client: a significant motion may be granted or denied; property sought to be acquired by the client may be condemned; or an unanticipated eviction notice may be served. Stunned by such events, the client may be left speechless.

Recognition of deep silences can be helpful to a lawyer in several respects. In terms of rapport, an empathetic response to the emotions reflected in the silence can strengthen the lawyer-client relationship. Even if the lawyer believes she would not have the same feelings in similar circumstances, she cannot ignore the impact of the experience on the client. At the very least, when faced with a deep silence, a lawyer should not embark immediately on probing, informational questions. She might want to engage in "active listening," mirroring the feelings with a reflective response, such as "You must feel real grief about the death of your husband," for the widow left speechless discussing his estate. Especially in cases when the client is obviously distraught, the lawyer might merely join the client in her silence. Since the client feels that his experience cannot be verbalized, these circumstances may not be the occasion for the lawyer to display her wonderful verbal skills. In fact, the lawyer's own deep silence may be the most appropriate message to the client that she understands his emotions.

In regard to information-gathering, such silences can be very important to a complete understanding of a case. They may indicate areas for fact investigation. If, for instance, in a sex discrimination case, a client's account of her interactions with a particular co-worker is punctuated with long silences, an inference can be drawn that possibly emotionally-laden issues exist between them. The silence may only mean that the client wants to protect a friend from becoming involved in the case or that she fears that the co-worker will not corroborate her story. But it may also suggest that the co-worker was involved in the discrimination and that the client has great difficulty describing her experiences with him. These silences then may call for further sensitive questioning of the client or interviews with other witnesses to the interactions. Deep silence may also suggest the need for the client to reappraise his strategy in a case. If, for instance, he reacts in prolonged deep silence in response to an unforeseen circumstance in a hotly-contested case (e.g., an adverse ruling of a motion or a heated rejection of an offer), the lawyer may want to explore alternative strategies with the client.

Many lawyers, especially inexperienced ones, may interpret silence as assent. The popular notion in American society, and especially the talkative legal culture, is that silence signifies agreement. n208 If the client does not want to talk about the different options, the lawyer assumes that he is satisfied with the offer on the table and that there is no reason for continuing the dialogue. n209 But, as the review of the different meanings of silence has shown, a client's minimal response [*245] in a counseling session may actually be subject to a wide variety of interpretations: that the client is tentative about his decision and wants to reflect on it; that he is emotionally upset by the offer but cannot express his feelings at that moment; or that he simply wants to avoid a conflict with a lawyer he feels has ignored his interests.

A lawyer, then, needs to be sensitive to these quiet moments in counseling. She should not jump to conclusions about the meaning of a minimal response or nod. Especially with clients who have been disempowered in much of their lives, the lawyer should try to encourage the client to articulate her feelings to confirm the meaning of the silence. Often, it is helpful to ask the client to describe explicitly the bases for his decision. The client may pause or hesitate in his response, but the lawyer should give him the opportunity to reflect fully on his initial response.

For a lawyer both to interpret properly the meaning of a client's silences and to use silence effectively herself, she must have some broad understanding of the functions of silence in the client's culture. As discussed previously, different cultures can have significantly diverse attitudes toward the use of silence in given situations. Just as a lawyer can be severely disadvantaged if she tries to communicate without an interpreter with a client who only has limited proficiency in her language, interviewing and counseling a client from a different culture without any sensitivity to issues of silence can interfere significantly with the discourse. In an initial interview, for instance, a client from a culture where only limited conversation is the norm between strangers might be put off by a very talkative attorney. If that same client responds to probing questions with silence or minimal information, the lawyer needs to understand that the client may be marking social distance and that the development of a relationship may take more effort than lively colloquy.

The danger of jumping to conclusions is very prevalent when lawyers confront silences in witnesses' stories. Throughout the fact investigation of a case - either informal interviews or formal depositions - lawyers encounter a wide variety of silences in the different stories being told. The traditional law of evidence has developed some interpretive rules for some of these silences, many of which unfortunately jump to conclusions as to the meaning of the particular silence. One rule, for example, allows for silences to be interpreted as "adoptive admissions": When a statement is made in the presence of a party containing assertions of facts which, if untrue, the party would under all the circumstances naturally be expected to deny, failure to speak is considered an admission. Another rule of evidence is that if a written statement is given to a party and read in the presence of others, the party's failure to deny its assertions may be received as an admission, when under the circumstances it would be natural for the person to deny them if he or she did not acquiesce.

The goal of any lawyer in a negotiation should be to communicate persuasively with the other side. Negotiation is not just a series of offers, counteroffers, and concessions. Nor is it limited to the identification of interests, generation of options, and development of solutions. The energy that fuels both of these processes - what moves parties to concessions or mutual solutions - comes from communication about the parties' rights and powers.

Some lawyers, however, ignore this goal and instead seek to prevail in a negotiation by pummeling the other party with words. They assume that by the sheer force of their arguments and threats, they can force the other side into agreement. By ignoring the persuasive aspects of the negotiation process, they run the risk of inviting counterthreats, pressuring the other side into terminating the discussions, and damaging any ongoing relationships between the parties.

Productive communication in negotiation requires the ability to listen to the concerns of the other party and to try to convince it to change its position. Whether the lawyer is using an adversarial strategy (concentrating on obtaining concessions from the other side for the distribution of limited resources) or a problem-solving strategy (focusing on developing solutions that can integrate the resources of both sides), the lawyer's aim is to motivate the other party to make an agreement on terms as favorable as possible to her client. "Negotiation is not a monologue with the other party's lawyer as a passive audience. Rather, it is a dialogue in which [each lawyer tries] to persuade the other party to reach a mutually agreeable decision on issues."

Expressive law

In 2000, Prof. Richard McAdams published an article entitled “AN ATTITUDINAL THEORY OF EXPRESSIVE LAW”, 79 Or. L. Rev. 339, which I which to summarize and discuss here, for legal research purposes of the visitors of this blog. In his article, Prof. McAdams makes the following conclusions:


1. Law influences behavior by what it says. In a democratic society, legislation and other law can change what people believe about the approval patterns in their community or society. The law operates as a signal of popular opinion. Because people value approval, intrinsically or instrumentally, such beliefs influence behavior. Updating one's beliefs to account for the law, an individual will infer the prospect of greater disapproval costs from behavior the law condemns, which gives the individual an incentive to obey the law that is independent of the legal sanctions.


2. Like other accounts of expressive law, the attitudinal theory suggests that economic theorists should stop implicitly assuming that law matters only because legal sanctions affect the costs of behavior. The economic analysis of a legal rule is at least presumptively incomplete when it ignores the possibility that law influences behavior expressively, as by influencing beliefs about approval patterns.


3. In addition, the attitudinal theory of expressive law has a number of interesting implications including: that local law will have a greater expressive effect than state or national law; that the expressive effect depends on the degree to which the public believes that law is positively correlated with public opinion; that courts can have an expressive effect because court decisions are so correlated; that ideological interest groups will seek to capture the expressive power of law as a means of expanding their influence over the behavior of others; and that some limits on government expression may be desirable to avoid its undesirable exploitation by such groups.



Law is often defined by the fact of its sanction. The state does not merely recommend compliance with the rules we call law, but backs those rules with liability or punishment. Law affects behavior "expressively" by what it says rather than by what it does. Law changes behavior by signaling the underlying attitudes of a community or society. Because people are motivated to gain approval and avoid disapproval, the information signaled by legislation and other law affects their behavior.

The attitudinal theory has three components. First, there is a motivational assumption that an individual's behavior depends, in part, on what actions she believes others will approve or disapprove. The motivating power of approval may arise either because the individual values approval for its own sake, or as an instrument for achieving some other end. Second, there is a claim that individuals have imperfect information about what others approve and that their beliefs about such matters are frequently (though not inevitably) mistaken. Given their concern for approval, individuals are therefore sensitive to new sources of information. Third, there is a claim that democratically produced legislative outcomes are positively correlated with popular attitudes and therefore provide a signal of those attitudes. Independent of the sanction, the legislative signal influences behavior by causing people to update their prior beliefs about what others approve and disapprove.

The attitudinal theory of expressive law also presents several interesting implications. First, the theory implies that local ordinances will have a greater expressive effect than state or national legislation because most approval and disapproval occur locally, where others observe us. Second, the perception that "special interests" control the legislature will undermine the expressive effect because it depends on the size of the perceived positive correlation between public attitudes and legislation. Third, court decisions may also have an expressive effect because court decisions often reflect public attitudes. The most significant implication, however, is some insight into political conflict over symbols.

Economics explains an individual's behavior as the result of his preferences, beliefs, and opportunities. That is, an individual seeks to maximize satisfaction of his preferences, given his beliefs about how he can accomplish these ends, subject to the constraints of his opportunities. In recent years, various rational choice theorists have applied this basic framework to explain social regularities, such as norms, that were at one time thought to be outside the range of economic theory.

The utilitarian analysis of law is dominated by a focus on legal sanctions. The above analysis, however, begins to reveal how law might have a significant expressive effect, an effect dependent not on the legal sanction but on what the law says. Law signals the existence of information held by the law-maker. In particular, democratically enacted legislation provides information about what elected representatives believe their constituents approve and disapprove. Because legislators have a professional interest in correctly judging approval patterns, their enactments reveal their private information about such patterns. The law, not the sanction, then influences behavior by causing people to update their prior beliefs about what others approve and disapprove.

It would be naive to deny that elected representatives sometimes feel immune from popular pressure. Legislators know that many citizens do not vote and those that do have imperfect information about how their representative has voted on or otherwise influenced legislation. Even if the citizen knows what her representative did, she also has imperfect information about whether the result was desirable. Perhaps the legislator had investigated the matter, possessed superior information, and acted paternalistically in the voter's interest. Finally, when the citizen enters the voting booth with the thought of ousting her representative in retaliation for some legislative act, she will have only a limited range of electoral options. Even if the voter disapproves of many of the incumbent's votes, she may still think herself better off with the incumbent than the challenger. For these reasons, democratic processes often fail to reveal or displace pluralistic ignorance. Not only do these limitations weaken the connection between majority preferences and legislative outcomes, but there are strong nonmajoritarian influences over legislation.

Here enters public choice theory and the problem of "rent-seeking." Rent-seeking occurs when a well-organized but narrow interest group exploits these limitations to secure a legislative transfer of material wealth from a larger and poorly organized majority. The obvious point is that lobbying groups influence legislators with campaign contributions and other favors. Less obvious before public choice theory was the relevance of a collective action problem.

When legal scholars talk of the expressive function of law, they often mean the expressive function of court-made law. The claim is that judicial pronouncements shape how individuals frame social and political issues and otherwise have a powerful symbolic effect on behavior. Indeed, if courts are "counter-majoritarian" institutions, as much legal theory suggests, then judicial decisions are not constrained by, and therefore cannot be a signal of, diffuse public attitudes. Under this line of thinking, the attitudinal model predicts that judicial decisions have no expressive effect.

The constitutional debate over the extent to which the Supreme Court is counter-majoritarian tends to obscure a second point: that much of what courts do is not constitutional. Courts interpret statutes and exercise common law powers. In both cases, they are subject to being "overruled" by the legislature, which has primacy in non-constitutional fields.

Two theories predict that courts would attempt to avoid issuing rules that legislatures feel compelled to supplant. First, if judges are motivated by prestige, they will presumably seek to avoid the loss of prestige that occurs when legislators enact highly popular legislation that "corrects" a judicial decision. Another theory posits that judges seek to implement their own policy preferences. If so, judges will get more of what they want if they push the policy only slightly beyond what it desires. The claim here is that legislatures can give attention to only a limited number of issues and that they are more likely to allocate that time to overruling judicial decisions the more those decisions deviate from legislative preferences. In other words, a statutory interpretation or common law rule is more likely to survive if it is consistent with or only slightly offends the popular attitudes that influence legislatures. Thus, under either a prestige model or a policy preferences model, non-constitutional decisions are constrained by popular attitudes. More precisely, popular opinion constrains publicized cases, but (as with legislation) law's expressive effect is, in any event, limited to cases that attract public attention.

Symbolic governmental actions, and the controversy they generate, present something of a puzzle for economic analysis. Even when the symbolic action involves legislation, it imposes no real sanction and allocates no material resources. Why then do people invest so much in a purely symbolic struggle? One can give an explanation based entirely on preferences. To satisfy this preference is then no different than satisfying material preferences. One's ends--to observe the veneration or desecration of the symbol--make rational some degree of political involvement to achieve those ends.

While a group may use symbolic governmental action to demonstrate its actual majority status, the struggle is not limited to signaling true approval patterns. Ideological interest groups would prefer to constitute a majority but will settle for creating the appearance of being the majority. Creating pluralistic ignorance will serve the group's interests nearly as well because, as noted above, this outcome can be stable and can substantially influence behavior. For this reason, opposing groups vying for public influence each will claim to represent the "mainstream." More generally, the size of an interest group often becomes a hotly contested issue, with a group expending significant effort in claiming to have the largest possible membership.