I have been asked to talk on "Cha-Cha". For the present, discussion on "Cha-Cha" is academic. "Cha-Cha" is not going to happen any time soon. Not this year. Not next year. The serious problems confronting our country now do not arise from the Constitution. They have their origins simply from poor governance. "Cha-Cha" talk will only divert attention from these problems.
As you are well aware, nearly all of my career has been in the law, now more than half a century, as an advocate in litigation - advocacy before the trial courts and advocacy before the Supreme Court. Lawyers, sadly, are not held in the highest esteem. And the most reviled are those who go to court, the trial lawyers, the lawyers who litigate, and the lawyers who go into combat. For this reason, the honor and privilege of being your guest speaker, my own club indeed, becomes more priceless.
The humorist Art Buchwald addressing a graduating class in law, observed:
This great government of ours has made the law profession the growth industry of America. Every time a new regulation is issued, a new law is passed, and an old law is repealed, fifty thousand lawyers are needed to explain it. Just one amendment to the IRS code will give every lawyer in this country enough work to last him thirteen years. One memorandum from the Food and Drug Administration will provide enough litigation to feed your families for the rest of your lives. Our country looks kindly on lawyers. Our government hires them to make the rules. Then the private sector is forced to hire lawyers to find ways of breaking them.
The beauty of the law is that the more complicated lawmakers make it, the more work it generates for other lawyers. Had the Ten Commandments been written by a government lawyer, Moses could never have carried them on a stone tablet. He would have had to haul them down from Mount Sinai on the Rock of Gibraltar. And if you ever get discouraged, remember this: even if the meek do inherit the earth, some lawyer will have to probate the will.
Our government, like the government of the United States, is a government of laws. It is no different. Lawyers, much too often, are denigrated as "lawless". But lawyers have the greatest stake in a government of laws. EDSA is anathema to the law profession.
In some other ways, and for reasons perhaps peculiar to the Philippines, government contributes immensely to making the law profession a "growth industry". Too many acts of government - or those of its functionaries - are badly motivated, ill-conceived, or if well-intentioned, sloppily done, casually ignoring procedural law or brazenly violating the Constitution. The targeted persons are left with no choice but to defend. These, as a consequence, although unintended, create a "market" for lawyers. Lawyers, bear in mind, are the most adept at finding fault - for that is the essence of the function of lawyers in an adversarial system of litigation. And governmental actions are never faultless.
On a personal note, the primary clientele in my professional career has been provided by government. I was Solicitor General from 1972 to 1986. My only client was the government. After going back to private practice in 1987, the government, unwittingly I am certain, likewise provided my primary clientele. It created the PCGG in 1986. The major "cronies" who were accused of amassing ill-gotten wealth became my clients. They are my clients to the present and not now limited to their ill-gotten wealth cases. These cases have now been pending for seventeen (17) years. The Ombudsman has contributed a good share. The Commissioner of Internal Revenue has also been a fertile source of clientele. Clients of mine were slapped with billion peso assessments.
The object of any dispute resolution is the settlement of disputes expeditiously and fairly. I would like to give you an overview of dispute resolution in our courts and suggest why dispute resolution in our courts has in many instances not been expeditious and the result, not fair.
And since most of you are "clients", allow me to start by giving you, as "clients", three suggestions so you do not contribute to making the law profession a "growth industry". If you get into a dispute in your business dealings or personal relationships: settle, settle and settle. Avoid getting the dispute in court. Should the dispute ripen to a case in court, continue the effort to settle. Instruct your lawyer to work on a settlement. If he disagrees, unless for good reason, fire him. The settlement may not give full satisfaction - no settlement does - but if litigated neither party is likely to be a winner. The sure winners would be the lawyers.
All disputes - or nearly all, may be settled. The disputes I have found most difficult, if not impossible, to settle are those involving government - for several reasons:
a.The government officials who have the authority to settle fear being held to account if suit is settled. The safest way is to litigate and to have the courts decide - even if the government loses.
b.Many government actions are induced by political, worst, partisan considerations, if not brazenly intended to harass or to intimidate.
c.A change of administration makes settlement more difficult. (e.g., ill-gotten wealth cases)
Since many cases are not going to be settled, let me give you an overview of dispute resolution in our courts.
Review of the Adversarial System.-
We have adopted what is known as the "adversarial system". Under the "adversarial system" of resolving disputes, the contending parties, by their respective attorneys, present their side. The assumption is that by this process, the judge will be able to render the correct judgment. The flaw, however, is that the attorneys who represent the parties may not be of the same competence, are of disparate diligence, of terribly unequal passion to prevail. And so the judgment is flawed; the lawyers, the judge share the blame.
There is hardly doubt that the "adversarial system" is imperfect. Whether it will result in a just judgment depends on highly uncertain factors: (a) that the respective lawyers of the parties will present the cause of their client fully, submitting all relevant evidence and marshalling all legal arguments; and (b) a judge who knows the law, has the perspicacity to evaluate the evidence and the acuteness of mind to apply the law to the evidence, and perhaps most important of all, the objectivity to make a judgment.
And yet, the system has been with us since we had a civil government. The Supreme Court is engaged in a continuing study of the Rules of Court. Occasional amendments or revisions are made - somewhat unfortunately, the most recent is the ballooning of the court fees. What is alarming is that the imperfection of the system notwithstanding, there has not been any apparent effort to review, change, or improve its fundamentals.
Compared to the technological miracles over the last decade in science, particularly in medicine, and computer and cyberspace technology, the resolution of disputes in the courts, indeed, law as a whole, is archaic and calcified. Perhaps the problem is the obsessive adulation of courts for stare decisis. But the reason, very likely, is that the formulation of miracle drugs and the incredible innovation in computer and cyberspace technology translate into millions, if not billions, of dollars of income. The just resolution of conflicts, the writing of laws that serve the general welfare, or liberate the impoverished many, are not marketable and are without value in dollar terms. Nonetheless, or precisely because of this, the problem must be addressed. The Supreme Court, the Integrated Bar of the Philippines and other bar associations must take the initiative. For a start, a colloquium of not more than fifty (50) lawyers, jurists, scholars - even lay people, may be organized for an open-ended discussion on the matter.
Perhaps there is no better system but even an affirmation of this fact would be of great value. Or some modifications, like requiring the judge trying a case to play a more active role especially in the face of inadequate representation of a party. The recently promulgated rules on the Conduct of Pre-Trial and the use of Deposition-Discovery Measures where judges are required to take initiatives to have the parties settle the dispute, identify the issues, and to have the parties expose their evidence before trial, move in this direction.
On Expediting the Resolution of Cases.-
Permit me now to submit some workable suggestions to bring about a more expeditious resolution of disputes before the courts.
Vacancies in courts, especially in trial courts need to be promptly filled.
A review of the procedure of the Judicial and Bar Council so that submission of nominees may be more promptly made is needed. It was somewhat of a shock to read not too long ago that several branches of the Regional Trial Court of Manila have been vacant for many years. This apparently is true not only in Regional Trial Courts but likewise in Metropolitan Trial Courts. This is a principal source of delay in the disposition of cases but is not being addressed.
A closer and more systematic exercise of the responsibility of administrative supervision of the Supreme Court over the lower courts is also needed. For what may be a trivial example, too many courts do not start their hearings on time. In most cases, hearings are scheduled at 8:30 a.m. Many courts do not start at 8:30 a.m. but at 9:00 a.m. or even 9:30 a.m. The number of hours of court personnel, litigants, witnesses and lawyers wasted while waiting for the judge to commence proceedings would be appalling.
The creation of collegiate trial courts should be avoided. Example of a collegiate trial court is the Sandiganbayan. Hearings are held by a division composed of three Justices. A unanimous vote is required. A study will likely show that trial of cases before the Sandiganbayan take much longer than those before the Regional Trial Courts, or even Metropolitan Trial Courts, with single judges. Recently, the Court of Tax Appeals, which is also a collegiate court, has been given trial jurisdiction over tax evasion cases. It must be remembered that Regional Trial Courts, of single judges, have jurisdiction to try capital offenses and to impose the death penalty. Why can not courts of single judges be entrusted to exercise jurisdiction over anti-graft cases and tax evasion cases?
This practice is aggravated when special divisions, within a court, such as the Sandiganbayan are created. The Estrada plunder case is an example. A special division of three Sandiganbayan justices, chosen by the Supreme Court, is trying the Estrada plunder case. Not only is this assailable on the ground of equal protection - from the Estrada viewpoint, but since the members of the special division are from different divisions of the Sandiganbayan, the functioning of the respective divisions of the members of the special division is impaired.
A right not found in the U.S. Constitution but is in our Constitution is that: "All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies." How do you enforce this? Imposing a deadline on the conclusion of cases before the Court may be seriously considered. The lapse of a certain period should have consequences. The most severe would be the ipso facto dismissal of the case after the lapse of a certain period. (Example: ill-gotten wealth cases). The following provision of the National Internal Revenue Code provides a reverse example:
Sec. 228. Protesting of Assessment - x x x
If the protest is denied in whole or in part, or is not acted upon within one hundred eighty (180) days from submission of documents, the taxpayer adversely affected by the decision or inaction may appeal to the Court of Tax Appeals within thirty (30) days from receipt of the said decision, or from the lapse of the one hundred eighty (180)-day period; otherwise, the decision shall become final, executory and demandable.
Various.-
The second paragraph of Section 1, Article VIII of the Constitution which defines judicial power gives the courts the jurisdiction to rectify any perceived wrong committed by any branch of the government. As a consequence, the Supreme Court has rendered decisions on cases which involve issues which are non-judicial but economic or political. Without amending the Constitution, the Supreme Court may exercise self-restraint in the exercise of its jurisdiction. The political question doctrine may be given life again. The principle, in our scheme of government, is vital in regard critical conflicts involving the exercise of power of the principal departments of government.
In my view, the matter of standing, especially in constitutional litigation, should be applied in full measure. This has been eroded and has become meaningless. The adversarial system of adjudication works best when those before the court are the real adversaries.
The Supreme Court, effective August 16, 2004, imposed fees on proceedings not previously subject to legal fees (e.g. motion for postponement) and increased many times over fees already required.
Access to the courts for resolution of disputes is the right of every citizen. The cost of maintaining the judicial system should not be the burden of those who go to the courts for settlement of disputes or redress of grievances, and more especially against actions of government. The "service", if we may call it that, which is rendered by the courts in the adjudication of cases is the responsibility of the government and not of the litigants. The members of the judiciary merit higher compensation but the national government, not the litigants, must provide the funds for that. No linkage whatsoever - especially in regard judges' compensation - should exist between judges and litigants.
Bar examinations should no longer be graded. Pass or fail should suffice. The desire to top the bar not only on the part of candidates but of law schools breeds many evils. Further, I suggest that there be only two sets of bar examination questions, one set of objective questions, and another set, a typical problem confronted in the practice of law. Both sets will cover all branches of the law. The second set will require not only knowledge of the law but its application to contentious situations. It may also be an open book examination.
As my final suggestion this afternoon: There should be accountability - and which is easily enforceable - when government institutes or takes adverse and prejudicial action against a person without basis in law or fact. A client of ours has been charged with violation of the Anti-Graft Law - three times, and all these cases were dismissed for lack of probable cause to justify the filing of the information or issuance of warrant of arrest. But it took years to accomplish this. Meanwhile, during the years that the cases were pending, he could not leave the country without permission of the court. Recently, a fourth information, also for violation of the Anti-Graft Law, has been filed against him. I am confident that the case will also be dismissed for lack of probable cause. But, meanwhile, he may not leave the country without permission of the court. And his profession - indeed, his livelihood, requires travel abroad frequently. Our client has really no choice but to simply forget these unfortunate experiences. (That would also be my suggestion.) But should there not be a remedy for every wrong?
May I conclude by recalling an often told story of a pious old man who lived by a river.
After weeks of rain, the river began to flood its banks. A group of friends drove by in a Jeep. "Jump in," they said. "We're headed out." "No," said the pious old man. "I'm trusting in the Lord. The Lord will provide." Up the waters rose until he had to retreat to his second floor. Someone paddled by in a boat. "Hop in," she said, "I'll get you out of here." "No," said the pious old man. "I'm trusting in the Lord. He will provide." Finally, the water rose above the roof of his house. The pious old man stood there as the waters swirled higher and higher around him. A helicopter flew over and dropped a rope ladder. "Grab on!" they yelled. "No!" shouted the man, "I'm trusting in the Lord." The man drowned. When he arrived in heaven he was furious. "What happened?" he demanded. "I put all my trust in You and look where it got me." "Well," said God, "What more do you want? I sent you a Jeep, then a boat, and then a helicopter."
As citizens of this Republic, in the face of grave peril, we ask -
Where is the jeep? We do not see any.
The water is rising. We do not see a boat.
The water is now over the roof. The helicopter is nowhere.
I suggest the jeep, the boat, and the helicopter are in every Filipino - a sense of discipline, a touch of decency, and a little kindness to everyone. |