Judicial reform too important to fail

Antonio T. Carpio
Clogged dockets impair social justice, hinder economic development, and erode public confidence in the justice system and ultimately in the entire government

ACTING CHIEF JUSTICE ANTONIO CARPIOThe judiciary needs to learn, and implement, the lessons from the recent impeachment of the former Chief Justice. These lessons pertain to integrity, transparency and accountability in the Judiciary. Of course, the judiciary is only one of the pillars of the broader justice system that includes the community as well as agencies of the executive branch.

Judicial reform is always a work in progress, and the judiciary must keep on building on past initiatives to address intractable problems as well as emerging ones. These are my personal thoughts, as I do not claim to speak for the entire Court.  

The number one problem of the judiciary is clogged dockets, arising from delays in trial, and delays in deciding cases. Clogged dockets impair social justice, hinder economic development, and erode public confidence in the justice system and ultimately in the entire government.

Trials should ideally take not more than two years to finish.

At present, 21% of trials take 2 to 5 years to finish, and 13% take more than 5 years to finish. On the other hand, cases should ideally be decided as prescribed by the Constitution: not more than 24 months for the Supreme Court, not more than 12 months for all other appellate courts, and not more than 3 months for all other lower courts, all counted from the date of submission for resolution of the case.

The judiciary does not fully comply with these timelines.   

Since public office is a public trust, the judiciary must account to the public for the clogged dockets.

The solution to clogged dockets is a combination of measures to address case management, performance, procedural, case filtering, personnel, and judge-population issues.

The judiciary must adopt a computerized case management system (CMS) for all courts, from first level courts to the Supreme Court.

The template for this CMS is the two-year old case management system of the Court of Appeals (CA), which is widely acknowledged worldwide as a success. Presiding Justice Andres Reyes of the CA estimates that by the end of this year 2012, the CA will comply with the constitutional directive that CA cases should be decided within 12 months from date of submission for resolution.

Online, real-time monitoring

If the CA can do it – that is, comply with the constitutional directive – then all other appellate courts, including the Supreme Court, should be able to do it also.  A CMS for trial courts, similar to the CA CMS, will be pilot-tested in all Quezon City trial courts before the end of this year.  If successful, the trial court CMS will be deployed nationwide.

The CMS will allow the CJ, PJ, the Court Administrator and the Deputy Court Administrators, to monitor online, and in real time, the caseload, aging, and the rate of disposition of cases of any judge or justice. The public can also find out the status of their cases by simply going to the website of the court.  

Right now, a litigant with a pending case in the CA can go to the CA website, type his case number, and instantly he will know if a decision or resolution has been issued, and if one has been issued, he can download a copy. A litigant can also go to the CA compound in Manila where there is a computer kiosk. The litigant can find out the status of his case by simply typing on the touchscreen of the computer kiosk the case number or title of his case.

The judiciary must adopt a simplified trial procedure for all trial courts.  

The present trial procedure, which is obsolete, cumbersome and time consuming, is a principal factor for the clogged dockets of the judiciary. To eliminate clogged dockets, there has to be a sea change in how courts conduct trials. Even if courts can comply with the constitutional timelines in deciding cases submitted for decision, the trial of cases still drags on too long.

Simplify trials

The way forward is to adopt a simplified trial procedure patterned after the four existing special rules adopting simplified trial procedures, namely:

(1) the Revised Rule on Summary Procedure which has been implemented by first level courts in certain cases for over ten years now;

(2) the Interim Rules of Procedure Governing Intra-Corporate Controversies which have been implemented by second level courts also for over ten years now;

(3) the Rules of Procedure for Environmental Cases adopted two years ago; and

(4) the Rules of Procedure for Intellectual Property Rights Cases adopted last year 

Sufficient jurisprudence has developed over these existing simplified trial procedures.  It is high time to expand these simplified trial procedures to all civil cases.  

Thus, in all civil cases not presently governed by special simplified trial procedures, the direct testimony of witnesses shall be by affidavit only (except for hostile witnesses), subject to cross-examination by the adverse party.  All affidavits of witnesses shall be submitted before the start of the trial. This alone will cut down trial time by at least one-half.   

Objections to questions will merely be noted by the judge, who anyway knows what testimony is admissible or not, unlike jurors in the jury system. Demurrer to evidence, motions to dismiss, motions for bill of particulars, motions for reconsideration, motions for extension of time to file pleadings, and petitions for certiorari, prohibition and mandamus against interlocutory orders, shall be prohibited, as they are now prohibited in the four existing special rules adopting simplified trial procedures. The judge shall take active part in questioning witnesses.  

After trial, the parties shall submit their respective memoranda of facts and law, which the judge may adopt, in whole or in part, in writing his decision.  

The simplified trial procedure in these four existing special rules can be combined with the Guidelines for Litigation now being pilot-tested in Quezon City trial courts, which simplify further the trial procedure in the four existing special rules on simplified trial procedures.

In criminal cases, the simplified trial procedure in the Revised Rule on Summary Procedure, which already applies to crimes where the imposable penalty is arresto mayor or lower, can be applied to crimes where the imposable penalty is prision correccional.  

The judiciary must strengthen and expand court-annexed mediation (CAM) and judicial dispute resolution (JDR), which filter cases and ensure that only cases that cannot be amicably settled go to trial.  

This means setting up more mediation units, and training more judges on judicial dispute resolution.

The figures are very encouraging: out of 209,165 cases mediated as of May 2012, the success rate was 63.76%; and out of 23,979 cases placed under judicial dispute resolution as of May 2012, the success rate was 39.53%.  Judicial dispute resolution is a second layer filtering mechanism as it applies to cases where mediation has failed.

In effect, mediation and judicial dispute resolution, which now applies to almost 80% of all first and second level courts, can filter out 78% of all civil cases filed with first and second level courts.

Mediation and judicial dispute resolution are huge successes in the battle to decongest the dockets of trial courts.

Avoiding political debts

The judiciary must work for legislation that makes appointment to trial courts by level of court, not by specific branch. Right now, a Metropolitan Trial Court (MTC) judge who wants to transfer as an MTC judge to a neighboring city or municipality must go through another appointment, as if he is applying for the first time. This means he must again be nominated by the JBC and appointed by the President, just to be an MTC judge again in a neighboring city or town.  

Every time a judge makes a lateral transfer like this, he accumulates political debts, which weaken his independence.   

In the executive branch, a bureau or regional director can simply be assigned from one station or region to another by the department head without need of a new appointment from the President. This should also be the case in the judiciary.  

Once appointed a first or second level judge by the President, the judge can be assigned by the Supreme Court to a particular branch within the same court level. The Supreme Court should be able to assign and reassign judges within the same court level based on the caseload of courts, and the need for lateral advancement of judges. 

A high vacancy rate in the position of judges in trial courts naturally contributes to clogged dockets.  At present, the overall vacancy rate in first and second level courts is 25.6%.  This includes unfunded and unopened trial courts. The vacancy rate in funded and opened trial courts, or existing trial courts, is 22.4%.  
 
These vacancy rates are quite high, exacerbating the already clogged dockets. The vacancy rate in existing trial courts should ideally be less than 5%, to account only for the time needed to fill vacancies arising from normal retirements, promotions and resignations.   

In the United States, the vacancy rate in existing federal district courts is currently at 10%, and they are already talking of a judicial crisis or emergency.  The Judicial and Bar Council (JBC) will have to find ways to reduce the vacancy rates in first and second level courts.

The number of courts in a locality must follow a judge to population ratio.  

Manila, with a population of 1,652,171, has 30 first level courts, or a ratio of one first level judge for every 55,072 residents.  Makati, with a population of 510,383, has 7 first level courts, or a ratio of one first level judge for every 72,911 residents. Taguig, with a population of 644,473, has only 1 first level court, or a ratio of one first level judge for 644,473 residents.   

This disparity is reflected in the caseloads of first level courts: in Manila, the average caseload is 242 cases per first level judge, in Makati 1,167 cases per first level judge, and in Taguig 1,161 cases per first level judge.    Clearly, there is a need to re-engineer the distribution of courts in relation to population to insure an equitable distribution, and faster disposition, of cases.   This re-engineering requires legislation.

Equally important as case decongestion is how to insure and maintain integrity and independence among judges and justices.  The Constitution mandates that judges and justices must have integrity (probity) and independence, aside from competence.

Challenge to JBC

The gatekeeper of integrity and independence is the JBC, which must insure that no one who does not possess integrity and independence gets into the list of nominees submitted to the President.   

If the JBC deems it necessary that nominees to the post of Chief Justice should execute bank waivers to verify their Statement of Assets, Liabilities and Net Worth (SALN), and hence determine their integrity or honesty in declaring their assets, then the bank waiver requirement must also apply to all other applicants to the Judiciary.  This is not an additional qualification for the office, but merely a tool to determine the integrity of the applicant, similar to the requirement to submit police, Ombudsman and court clearances.  

Decisions of a judge or justice are the best evidence of the competence, integrity and independence of the judge or justice.  A decision can reveal whether the judge or justice knows his law, whether a judge or justice has favored a litigant, and whether a judge or justice has a steely or wimpy decisional independence.  

Practicing lawyers can tell, from a collection of decisions of a judge or justice, whether the judge or justice has competence, integrity and independence.  In constitutional cases, decisions or opinions of a justice can reveal whether the justice has decisional independence vis-à-vis the Executive or Legislative branches.  

Yet the JBC has not adequately evaluated decisions of applicants in screening nominees to the judiciary. The JBC must give greater weight to decisions of applicants who seek promotion in the judiciary.   

The IBP must make its own evaluation of the decisions of a judge or justice to assist the JBC in determining the competence, integrity and independence of applicants seeking promotion in the Judiciary.  The IBP can submit its own evaluation through its permanent representative in the JBC.  

Indeed, other groups with acknowledged competence in evaluating decisions of judges and justices, like law school faculties and professors, should submit to the JBC their own evaluation of decisions of applicants seeking promotion in the Judiciary. Law professors also have a permanent JBC representative who can articulate their evaluation.

Once a person is appointed judge or justice, the gatekeeper function is passed on to the Supreme Court, which has the constitutional power to discipline judges and justices of lower courts.  The Supreme Court can create permanent administrative tribunals to handle administrative complaints against judges and justices, instead of the present ad hoc investigative bodies.  This will expedite the resolution of administrative complaints.

The leaders of the judiciary must lead by example. The successful organizations are those whose leaders lead by example.  

The leaders of the judiciary, and I refer to the Chief Justice and the Associate Justices of the Supreme Court, must be the embodiment of integrity and independence for the rest of the judiciary to follow.  Thus, the Supreme Court Justices should lead in complying with the law by disclosing their SALNs as mandated by the Constitution and the law.  The Supreme Court has done this as part of the lessons learned from the recent impeachment of the former Chief justice.

Financial transparency

The judiciary should embrace transparency and accountability in governance by publishing its COA Audited Annual Reports, its collections and disbursements of the Judiciary Development Fund (JDF) and the Special Allowance for Judges (SAJ), as well as all other financial reports required by law.  If you go to the Supreme Court website, you will see all these reports now posted online.   

This is part of the new transparency and accountability policy of the Supreme Court.  This is really a no-brainer since all these financial reports are public documents.

Adequate courthouses are necessary for the administration of justice.  All appellate courts have decent and adequate courthouses, but not the first and second level courts. The existing Halls of Justice can accommodate only 22% of all existing first level courts, and only 51% of all existing second level courts.  

This glaring shortage of courthouses nationwide needs to be addressed. The annual GAA must provide a budget for a programmed construction, over the next decade, of more courthouses throughout the country.

The City of Manila, founded more than 440 years ago, with 104 trial courts, comprising more than ¼ of all trial courts in Metro Manila, still does not have a Hall of Justice today. 

It is really a shame that the capital city of the Republic does not have a Hall of Justice.  The judges in the City of Manila continue to hold office and trials in cramped and dilapidated rooms and courtrooms. The construction of the Manila Hall of Justice must be revived as soon as possible.  There is already a lot for the Manila HOJ titled in the name of the Supreme Court – almost a one-hectare lot at the back of the Manila City Hall.

With funding from the World Bank, the Supreme Court was able to construct two model courthouses. The first model courthouse, located in Lapu-Lapu City, was inaugurated in December 2007.  The second model courthouse, located in Angeles City, will be inaugurated next week, July 5, 2012.   

The construction of these two model courthouses is part of the Judicial Reform Support Program initiated by former Chief Justice Hilario Davide in 2001. The third and last model courthouse should be the Manila Hall of Justice, which should be constructed once the funding is secured, hopefully with assistance again from our development partner the World Bank, whom we must thank for the first two model courthouses. 

Internet connection for all courthouses is now a necessity.  Access to the Supreme Court’s E-Library will put at the fingertips of all judges nationwide all the jurisprudence and laws they need in writing decisions. The E-Library now contains, in full text searchable format, all Supreme Court decisions from 1901 to the present, as well as all laws from 1900 to the present.   

Supreme Court Circulars and Manuals can also be found in the E-Library. So are rules and regulations of all government agencies that are required to be filed with the U.P. Law Center before they can take effect. Decisions of the Supreme Court are uploaded to the E-Library within days from their promulgation.  

Techie judges

Every judge and justice will be provided with a USB 3G wireless thumb-drive that, once inserted in his laptop or desktop, will directly connect him to the Supreme Court website where he can access the E-Library. The trial judge can upload his monthly report of pending cases to the OCA section of the Supreme Court website.  

When the CMS of trial courts is deployed, the system can automatically upload to the OCA updates on pending cases and other data.  The USB thumb-drive cannot be used to go to any website other than the Supreme Court website. The Supreme Court approved two weeks ago the procurement of the USB thumb-drives.  

There is a saying that to maintain a good judiciary, you must choose your judges well, but above all, you must pay them well.  

To choose our judges well, we have the JBC. But to pay our judges well, we have the salary standardization law, which does not distinguish between judges and non-judges.  Under the SSL, judges and non-judges have the same pay even if they do not have the same work and responsibility.  

So how do we resolve this issue of paying our judges well?  

A new law, RA No. 9946, makes the monthly pension of retired judges equivalent to the salary of incumbent judges. So when incumbent judges get a salary increase, the monthly pension of retired judges, which is tax-free, also gets the same increase.   

There is also the SAJ under RA No. 9227, which entitles judges to a monthly allowance equivalent to 100% of their basic monthly salary.  While the best compensation and benefit packages are those given to officials in government financial institutions, judges are better compensated compared to government officials in the regular executive departments.   Even then, the Supreme Court must continue to find ways to improve the compensation package of judges and justices.

LGUs give judges in their areas monthly allowances. This may give rise to a conflict of interest or weakened independence on the part of judges when the LGU or its officials have cases before these judges.  

In one case, LGU officials withheld the monthly allowance when the LGU lost a case before one of the judges.  To remove this conflict of interest issue, one province decided to give a monthly lump sum to the Supreme Court, for the Court to allocate to the judges in that province.  

This should be the template for all financial assistance to be given by LGUs to judges  –  the financial assistance should be given direct to the Supreme Court for the Court to allocate to judges stationed in the particular LGU.

First and second level courts nationwide are administered by the Office of the Court Administrator (OCA), which is under the Supreme Court. The OCA is centralized in Manila and there are no decentralized offices in the regions, other than the now defunct pilot Regional Court Administration Office (RCAO) in Region VII.    

The judiciary is probably the only government agency, with extensive operations in all regions nationwide, that has not yet regionalized. You can just imagine the problems, in terms of logistics, finance, maintenance, and personnel, in administering all trial courts nationwide from one central office in Manila.

The OCA should go back to the old set-up, with the difference that instead of holding office in Manila, the Deputy Court Administrators  will hold office right in their areas of jurisdiction.  In short, we simply station the DCA for Mindanao in Davao City and the DCA for Visayas in Cebu City, along with their immediate staff.  The DCAs can visit the trial judges more often and know their problems better. There is no need, however, to regionalize immediately the OCA.  We can first simply physically locate the DCAs right in their areas of jurisdiction.  

Lessons from Corona

There are many who have passed the very tough Pre-Judicature Program of the Philippine Judicial Academy (Philja).  However, they have not been employed in the Judiciary.  The JBC rules provide that those who pass the Pre-Judicature shall enjoy preference in the selection of nominees for vacancies in the lower courts.   

But many of them are not appointed as judges even if they are included in the JBC list submitted to the President.  The Supreme Court can give them preference in the appointment of clerks of courts, which will give them more preparation for appointment later as judges. This can easily be done since the Supreme Court appoints the clerks of courts.

The Philja can expand the Pre-Judicature Program into a one-year masteral degree course open even to new lawyers. You do not have to go abroad to get a masteral degree from a prestigious institution. With this program, new lawyers can see a clear career path in the Judiciary starting with the Pre-Judicature Program. This will follow the practice in other countries that provide a career path in the judiciary for lawyers as soon as they pass the bar.   

I said earlier that the judiciary must learn the lessons from the recent impeachment trial. These lessons touch on integrity, transparency and accountability.  

But beyond these, the judiciary must also address other pressing problems besetting the Judiciary, like clogged dockets, inadequate infrastructure and facilities, the need for competitive compensation for judges, over-centralization of court administration, and the need to provide training and career path for judges.   

I share these thoughts with you because judicial reform is too big to be undertaken by the judiciary alone.  Judicial reform can happen only with the cooperation of all stakeholders in the justice system – the judiciary, the executive and legislative Branches, the Bar and the public.  

All the stakeholders must work earnestly together because a well-functioning judiciary is essential for good governance and for the economic development of our country. Judicial reform is simply too important to fail. – Rappler.com

(These are excerpts from a speech delivered by Acting Chief Justice Antonio Carpio before the Central Luzon Regional Convention of the Integrated Bar of the Philippines on June 29 in Clark, Pampanga.)