Law and Governance in the Justice System By Roberto A. Abad Retired Associate Justice of the Supreme Court The founder of the University of Asia and the Pacific, Dr. Jesus P. Estanislao, once wrote in Universitas that good governance “demands breakthrough results, particularly those that are beneficial for the majority of our people and those that can be sustained over a long period such that genuine transformation get to happen in society.” Systems Change But genuine and pervasive transformation can take place only by changing existing systems that no longer work, Superficial changes do not produce real transformation that improves life. In the justice system, for example, in order to remedy the delay in the hearing and adjudication of cases, the Constitution set specific deadlines within which courts must decide cases. But this has not worked because the system did not give judges the means for meeting such deadlines. | am pleased to say that the judiciary has in the past few years taken steps to change what no longer worked in the justice system. The Supreme Court has begun to put in place certain measures of good governance that would eliminate intolerable delays in the hearing and adjudication of cases. In late 2010, the Supreme Court created a Committee to Address Case Congestions and Delays. To carry out its work, the Committee held dialogues with judges, lawyers, and litigants to get a sense of the situation on the ground. The Committee asked questions, keeping an open mind for the variety of views that it expected to get. It learned many things. Itlearned that about 75% of our people now live in crowded cities. With so many living in these cities, occasions for human conflict are inevitable. Where there are human conflicts, court cases abound.People seeking justice simply drown the courts with theircases. Many have 1,000 plus cases; some have 2,000 plus. They hear 30 to 60 cases a day. Their courtrooms are full and people wait outside to be called. Just calling the attendance when the court opens usually takes from 8:30 to 10 a.m, since each case requires some attention like granting postponements. This leaves only 2 hours for hearing the cases that are ready. If 10 cases are ready, the judge gives the parties in each case 10 minutes to present part of the testimony of just one witness. Result: we have piecemeal trials that take 3 to 5 years, at times more, before cases are finally decided, inflicting a sense of hopelessness over our country's justice system. Because of case congestion, postponements of court hearings are easily granted, prompting victims of crimes to give up coming to court. Result: 40 out of every 100 accused persons walk free. Foreign businessmen are reluctant to make long-term investments in us because our courts cannot protect their investments. The Bottleneck What causes these terrible delays in our justice system? There are many causes. Our Courts are few and disproportionately distributed. Prosecutors and public attorneys are few. But one of the major causes of court delays in our country is our slow and cumbersome system for hearing and deciding cases. Where is the bottleneck in our system? The bottleneck is at the witness stand. Why, because courts can hear no more than one witness at a time. Assuming there are just two witnesses per case, 2,000 witnesses would be waiting to be called in courts that have 4000 cases in their dockets. If required to form a line outside the courtroom, those 2,000 witnesses would form a very long line indeed with only three witnesses getting in on an ordinary hearing day Why does it take long for our courts to hear the testimonies of witnesses? For one thing, existing rules insist that the testimonies of witnesses are recorded in English. Consequently, since most witnesses prefer to testify in the local dialects, we require an interpreter to translate their testimonies into English. The court haslittle time for hearing cases, yet it hears the testimony of every witness twice. For another, we follow the adversarial system where pitted adversaries build and defend their positions while attacking and tearing the other party apart. In this system, it is the opposing lawyers who determine which witnesses the judge will hear and what documents he can read. Since the idea is to keep an opponent in the dark, the tendency is for a lawyer to withhold evidence and surprise his opponent with it at the last minute. And because the idea is to ensure victory, lawyers also have a tendency to throw in everything they have, resulting in redundancy, and prolonged trial. Our judge has very little to say about how much evidence he will hear and he can ask only clarificatory questions. He merely oversees the process by which evidence is received. He just sits back and listens. We have been stuck in the last 100 years with the adversarial system that the Americans gave us. Unfortunately, these system has been designed for both jury and bench trial. Consequently, we unwittingly established a shadow jury in our courtroom. This creates three problems for us. First, the American jury system takes pain to ensure that those who will sit at the jury box know nothing of the case they will hear. Consequently, at the trial, the witnesses must tell their stories to the jurors from beginning to end~from A to Z without missing a letter. The decision makers in the jury box hear the story of the parties from scratch. For example, the claims of the parties might look like this: Plaintiff's Defendant's Claims Claims sold him a car I bought his car To pay in30days Must pay in 30 days He did not pay | already paid lasked him to pay He wanted me to pay He refused to pay _— refused to payThe only issue is whether or not defendant already paid for the car. Yet the adversarial system requires each of them to testify and tell his story. This beginning-to-end testimony often make no sense in our system since, unlike the jury, our judge already knows from the pleadings the matters that the parties admit and those that they deny. Yet, our judge cannot tell the witness to skip all the preliminaries and go straight to the facts in issue since preliminaries are still needed to introduce the remaining disputed facts. Second, because the jurors must hear and see everything, every piece of documentary evidence needs to be identified, marked and authenticated during the trial. This process, which we have adopted, is both tedious and painfully time consuming, slowing down the hearing Third, lawyers often make indiscriminate objections to the questions asked of the witness. It is a fight to the finish in an adversarial system and many believe that objections to questions come as potent weapons for blocking the other party's evidence Theoretically, a lawyer objects to questions asked of the witness so the judge could prevent inadmissible answers from touching the ears of the jurors, lest such answers irreversibly influence their thinking But we have no jury, only a judge who, with his legal training and experience, is not irreversibly affected by inadmissible answers. In a purely inquisitorial system, on the other hand, after the opposing parties have filed their respective claims, itis the judge who investigates, identifies the issues, and, where warranted, calls for witnesses and production of relevant documents. Although the parties may urge the judge to investigate what they believe are important facts, itis the judge alone who examines the witnesses for the facts he needs to render a decision Good Governance Dr. Estanislao once wrote that a good governance regime should aim to bring about positive, progressive change in institutions,transform society, and make it a much better place to work and live in, Itis in this spirit that the Supreme Court has taken steps to change the country’s system for hearing and deciding cases from a dominantly adversarial system to a mix adversarial and inquisitorial system. But before imposing a new system, the Court discussed the problem with the stakeholders. After considerable consultations, the Court began to implement major changes in the justice system. Judicial Affidavit Rule The FIRST major change is the use of judicial affidavits in place of the direct testimonies of witnesses. It used to be that a witness in court would be subjected to two examinations a) the direct examination where the lawyer who presents him asks him questions that would enable him to tell his story from beginning to end; and b) the cross examination where the adverse counsel would try to find flaws in his direct testimony. With judicial affidavits, we are able to cut the testimonies of witnesses by two-thirds. Why two-thirds? The testimony of a witness usually consists of two-thirds direct examination and one-third cross examination. With judicial affidavit as direct testimony, the witness is examined in court only on cross. Instead of one witness testifying at a given time, the court can now accommodate three witnesses in that time. But will this not impair the court's opportunity to observe the demeanor of the witness while he testifies on direct? Not substantially because witnesses often respond to direct examinations with prepared answers, such witnesses having been previously interviewed by counsel. The witness’ responses are also closely controlled by the questions asked by friendly counsel. It is really during cross, when the witness has to answer questions that he has not prepared for that his true demeanor will showArecent survey shows that 77% of judges approve of the use of judicial affidavits simply because these shorten trials. Further, they believe that its use has not impaired their ability to evaluate the evidence. The Judicial Affidavit Rule applies to the trial of all civil cases in our courts. It'also applies to trials in criminal cases but only at the option of the accused Full Disclosure of Evidence The SECOND major change in the justice system is that parties in civil actions are now required to lay their cards on the table by submitting all the evidence they have before pretrial for the court and the other party to see. Surprise or last-minute evidence will no longer be admitted, With full disclosure, no stipulations of facts are needed at the pretrial since, by comparing the judicial affidavits of the opposing sides, the court will already see what matters the parties agree on and what matters they dispute. Take our earlier example where the claims of the parties look like this: Plaintiff's Defendant's ‘Claims Claims I sold him a car | bought his car To pay in30 days Must pay in 30 days He did not pay already paid lasked him to pay He wanted me to pay He refused to pay —_I refused to pay Since the only issue is whether or not defendant already paid for the car, the court can directly go to that issue and promptly decide the case, In this way, trial will be shortened because the plaintiff need not testify that he had previously known the defendant; that he sold his car to him on May 2, 2010 at plaintiff's residence; that defendant promised to pay the price of PS00,000 in 30 days but did not; and that plaintiff made a demand on defendant to pay but this was unheeded. The defendant need not also testify that he had previously known theplaintif; that he bought the car from him; that he promised to pay for it in 30 days; that he in fact paid the P50,000; and that plaintiff nonetheless demanded payment, which he refused. The parties and the court can immediately focus on the disputed fact: whether or not the defendant already paid the plaintiff for the car. Testimony in the Local Dialect The THIRD major change is that the witness is now allowed to testify in the language know to him or her but, if this is not in English or Filipino, it is to be accompanied by a translation in English or Filipino, What is the significance of this? We are now allowing testimonies to be taken and kept in the dialect of the place provided they are subsequently translated into English or Filipino, Is cross examination of the witness allowed under the Judicial Affidavit Rule? Yes. The adverse party shall have the right to cross-examine the witness on his judicial affidavit and on the exhibits attached to the same. With judicial affidavits, opportunities for postponement have been reduced. Since the adverse party has been given a copy of the judicial affidavit long before the hearing, he would have no valid reason for seeking postponement of his cross. Judge Can Seek Answers The FOURTH major change is the grant of authority to the court to take active part in examining the witnesses. As already stated, the judge in the adversarial system can only sit back and hear the evidence of the parties. The new system makes the judge an active participant at the hearing. He can examine the witnesses and ask questions that will determine the credibility, ascertain the truth, and elicit the answers that he needs for resolving the issues. The active participation of the judge at the hearing has an ancient precedent. King Solomon acted as judge of disputes among his subjects. Two mothers who were fighting over the possession of a child presented their conflicting claims to him. He did not decide thecase based solely on what the two mothers told him, which is the adversarial method. Solomon was proactive. To test them, he proposed to cut up the child and give half to each of the claiming mothers. The real mother opted to give up her claim rather than see her child brutally killed. King Solomon gave her the child. (1 Kings 3:16-28,) | believe that such is the God-given way of resolving disputes, For instanea, if you come home from work and find that two of your children quarrelled, would you tell them that you will resolve their quarrel through adversarial hearing? Would you say to the first child, “Begin by telling me your version of what happened and then make your argument?" Then to the second child, “You will be next. Tell me also your version of what happened and make your argument. | will sit here and listen. Then | will decide your dispute based on what | hear from both of you.” No, you won't do that since that is not how it is normally done. The responsibility for making a decision is yours. You will need to ask your children questions to elicit the answers that you need to make the correct decision. Sometimes, one child is articulate while the other is slow. You need to question the slow child patiently to draw from him his complete story. The adversarial system is hounded by the problem of inequality of protagonists or mismatch between opposing lawyers. You cannot send a new passer in the bar exams against a veteran high-caliber lawyer. But, with the active participation of the judge during trial, the extent of the injury that poor lawyering can bring to his client is minimized Face-to-Face Trial We are proposing rules that would further shorten trial, namely, a system of face-to-face trial, where it is possible for three witnesses from one side and three witnesses from the other side to testify at the same time, further reducing the time needed to finish trial The factual issues shall be tried face-to-face with the judge, the parties, the counsels, and the witnesses seated in a manner that9 would facilitate the exchange of questions and answers. The court shall simultaneously swear the witnesses to the truth of their testimonies. The court shall first hear and examine the witness from one side respecting the first issue, then hear and examine the witness from the other side respecting that issue. Examination may shift from one side to the other, but always giving each equal time The court shall then allow the parties to examine the witnesses from both sides, until the issue at hand has been fully exhausted ‘At the close of the oral argument, the court shall verbally announce Its rulings on the various issues before it and immediately Fender a verbal judgment based on such rulings. The court shall afterwards issue a written decision but it may, at its option, require the winning party to prepare and submit a draft of the decision in the case, copy furnished the losing party. Jail Congestion ‘Another area that the Supreme Court has recently addressed is. the problem of the appalling congestion in the local jalls where persons awaiting trial of their criminal cases are kept Many of us live with our families in comfort and freedom. Not once were we locked against our will in a room crammed with strangers and reeking with the foul smell of dried sweat. One of the great tragedies in life that could strixe you is for you or @ loved one to Se detained in any of these jails while the case against you or thet loved one is being heard. ‘Although those kept in detention jails are presumed innocent, they suffer worse fate than convicted felons in the national penitentiary who enjoy larger living spaces, hospitals, sports facilities, Fecreations, and craft works. Our detention jails, especially in cities, are so deplorably congested that those awaiting trial in our courts exist in sub-human conditions: extremely poor ventilation and sanitation and widespread cases of boils, asthma, tuberculosis, depressions, and psychotic behavier. Although a great number of the accused are subsequently absolved, the scars of pain, degradation, and hopelessness coveringmany years remain with them. Quite often, they return to families that have been broken by a parent's long absence. They are permanently damaged. We have to do something for these men and women who are presumed innocent but are made to suffer years of torture and deprivation. Society has no right to punish them and take them away from their families until they are proven guilty. They are children of God like us, made out of His image and entitled to dignity and respect. Unless we do something for them, Jesus could very well say to us, “I was in prison and you did not care for me.” (Mathew 25:43) The detention of accused persons are meant to ensure attendance at trial, not punish them, yet delays in the hearing of their cases result in their incarceration under extremely deplorable conditions for 3 to 8 years or more, inviting a rightful concern from the International Committee of the Red Cross that our justice system has become a party to the violation of the guarantees of due process and internationally set humane conditions of detention. The Right of the Destitute to Bail The Rules of Criminal Procedure require courts to fix a reasonable amount of bail for accused persons, taking into account their financial ability and flight risks. In practice, however, courts simply adopt the amounts of bail fixed in the Department of Justice (DOJ) Bail Bond Guide. But these amounts are based solely on the gravity of each offense. Consequently, the bail for the very rich and the very poor are the same. The trouble is that many among these very poor are first-time offenders, held for non-violent crimes, and have children to feed and look after. Question: who are not entitled to bail under the Constitution? Answer: only those accused of capital crimes when the evidence of guilt is strong. Wrong answer! Include the poor who cannot afford bail. They do not enjoy the right to bail. Quite shamefully, our bail system has been anti-poor. The Supreme Court is now addressing these problems in the spirit of the law and good governance. It issued new Guidelines on March 18, 2014 for decongesting holding jails by easing the bail requirements for the destitute. It declares the DOJ Bail Bond Guideno longer controlling and reiterates the Constitution's command that “in no case shall the court require excessive bail.” If the bail is too stiff for the impoverished accused, they can seek reduction by showing what little bail they can afford. More significantly, the Guideline places a cap to temporary detention. Penalties usually have two periods: a minimum and a maximum. For example, the penalty for theft of P6,500 is imprisonment from 2 years, 4months, and 1 day to 6 years. The Guideline provides that, if the accused has been under detention for the minimum period, the court will automatically order release on his own recognizance or personal undertaking pending further hearing in his case. Right to Bail in Heinous Crimes Another cause for holding the accused under detention without bail for so long is the court's failure to act on the application for bail of persons charged with offenses punishable by death or life imprisonment. They are entitled to bail only if the evidence of their guilt is not strong. The hearing of the application for bail is supposed to be summary but in actual practice, courts insist on hearing the prosecution's entire evidence before acting on the application. This often takes years with the result that many who are eventually absolved of guilt are freed only after years in detention. Most of the accused affected by these delays are those on trial for drug offenses. The new Guidelines insist that the hearing of the accused's motion for bail in heinous crimes shall be summary, with the prosecution bearing the burden of showing that the evidence of guilt is strong, Still, the accused has the option to submit evidence of his defense. At the hearing, the court shall examine the witnesses presented before it based on their affidavits or direct testimonies to ascertain if the evidence of guilt of the accused is strong. The court's questions need not follow any particular order and may shift from one witness to another. The court shall then allow counsels from both sides to examine the witnesses as well. It shall afterwards hear the orai arguments of the parties on whether or not the evidence of guilt isstrong and resolve the issue within 48 hours of the hearing, The court's finding that the evidence of guilt is strong or not strong shall not be regarded as pre-judgment on the merits of the case that is to be determined only after a full-blown trial The Right to Speedy Trial To enforce the right of the accused to speedy trial, the Supreme Court Guidelines lay down specific time limits for the various stages of the proceedings: the raffle of the case (3 days from filing); the arraignment (10 days from raffle); the pre-trial conference (10 days from arraignment); and the trial (30 days of pre-trial conference), which trial must be finished in 180 days, excluding the justified postponements under the 1998 Speedy Trial Act. The accused shall be entitled to dismissal of the case on ground of denial of his right to speedy trial upon non-observance of the above time limits. Where the postponements are justified because of the absence of essential witnesses, whose whereabouts are unknown, the case is to be provisionally dismissed after 3 postponements based on that reason. But notice must be given to the complainant prior to the provisional dismissal of the case. The Guidelines further provide that the one or two-year period allowed for reviving a criminal case that has been provisionally dismissed shall be reckoned from the issuance of the order of dismissal. The dismissal shall become automatically permanent if the case is not revived within the required period. Conclusion The Judiciary is in a continuing search of the means by which it can change those things in the justice system that no longer work and have been a burden to our people, especially the poor who do not enjoy the protection of wealth and power. This is what law and good governance is about: a relentless movement towards improving the lives of our people.