Justice Abad opinion

7/28/2019 Justice Abad opinion

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Te Bar ribune

21IBP: Celebrating 40 years, 1973-2013

I. THE MAKING OF THE LAWYER

Since the lawyer is the basic humancomponent of our legal system, any se-rious reform must begin with preparingand qualifying him for the practice of theprofession. Everybody complains aboutthe legal and moral bankruptcy of our law-yers, but very little has been done abouttraining and screening them.

Last year, the Supreme Court took asmall step in that direction. It changed theformat of the Bar exams to attune it to ourneeds. The essay kind of Bar exams that

you and I took was good when the exami-nees were a few hundreds. But with morethan 6,000 examinees per year, the grad-ing of essays had become haphazard.

In 2004, the Court assisted by Ameri-can experts approved the giving of theuniversally accepted multiple choicequestions. But with law schools object-ing, implementation failed. In late 2009,on learning that I would chair the 2011Bar Exams, I knew what I needed to do.I spoke to over 1,500 law professors incampuses all over the country and taughtthem how to prepare multiple choice ques-tions for their classroom tests. By 2011,

the graduates in that year were ready formy multiple choice exams.

But we retained an essay portion totest the examinees lawyering skills. Werequired them to prepare one trial memo-randum and one legal opinion based ongiven case problems. We added a littlelibrary of applicable laws and SupremeCourt rulings. Four examiners gradedeach of the two essays, thus minimizingsubjectivity in corrections. We measuredthe examinees ability to put the relevantfacts together, identify the issues in thecase, and craft persuasive arguments.

Because of the introduction of this kindof essay exams, law schools have begunto shift the direction of teaching studentsfrom just learning the law to practicing it.

When we took our bar exams, wememorized ridiculously useless thingsbecause none of us knew from where thequestions would come. We put an end tothis senseless torture. We asked expertsfrom the UP Law Center to draw up ineach subject a syllabus of topics relevantto law practice. We gave these to the ex-aminees and asked no questions outsidethe syllabus.

Our Committee on Bar matters, work-

ing with the Legal Education Board, isconsidering the possibility of reducing thenumber of Bar subjects from 8 to 4 so lawschools could free more units in the thirdand fourth years of schooling and tunethem to specic career paths in litigation,adjudication, and commercial practice.

II. A NEW SYSTEM FOR HEARING ANDDECIDING CASES

Studies show that 75% of our peoplelive in crowded cities. Consequently, theoccasions for human conict are unavoid-

able.The records show that our courts in

these cities are drowning in cases. Manyhave 1,000 plus cases each. They hear30 to 60 cases a day. Our courtroomsare full. Some litigants have to wait out-side to be called. Cases take from 3 to 5years, at times up to 8 or 9 years or moreto hear and decide, inicting a sense ofhopelessness over our justice system.Because of so many ridiculously long andrepeated postponements, complainantsin criminal cases simply give up comingto court. As a result, 40 out of every 100persons accused of crimes walk free. Vic-

THE NEED FORCHANGES IN OUR

LEGAL SYSTEMRoberto A. Abad

Associate Justice, Supreme Court

"NOTHING LESS THAN HISTORIC,"was how a social media blogger excitedly described the two-part IBP publicforum on the search for the next Supreme Court Chief Justice. For the f irst time ever in the history of CJ selection, the public saw thenominees up close and listened to their judicial philosophies and reform agenda.

The Bar Tribune is pleased to publish the full text of the presentations of the nine qualified CJ nominees who participated in the July20 IBP public forum.


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August 2012

22 IBP: Celebrating 40 years, 1973-2013

tims of crimes nd no speedy justice in ourcourts.

The consequences of delays in civilactions are dire. Few foreign business-men make long-term investments in ourcountry because our courts cannot pro-vide protection to their investments.

Result: we do not attain economicgrowth; our people remain poor.

What causes these terrible delays inour justice system? There are many caus-es. Our courts are few. Prosecutors andpublic attorneys are few. Our system forhearing and deciding cases is slow andcumbersome. We could do nothing aboutour shortage in number of courts, and thefew prosecutors and public attorneys wehave. But are we earnest in examining oursystem for hearing and deciding cases tosee if we can increase the capacity of ourjudges for disposing of their cases?

In 2009, upset with the mess of de-lays in the hearing and adjudication ofcases, I asked the Chief Justice to createa Committee to Address Case Congestion

in the lower courts and offered to head it.The conventional thinking was to stream-line the system and pound hard on judgesto speed up the disposition of cases.

But Albert Einstein once said that it ismadness to do the same thing the sameway when it is no longer working. How oldis our system for hearing and decidingcases? The Americans gave it to us overa hundred years ago. I t is a system uniqueto their history and culture. Yet we adoptedit in this country and we weretaught in our law schools theidea that there is no way tohear and decide cases fairlyexcept the American way.

The American system isadversarial and heavy in cer-emonials.

The plaintiff and the defendant matchskills in presenting evidence before ajudge set high on a pedestal but, ironical-ly, doomed to sit back and listen to whatthe parties want him to hear.

We also adopted a system designedfor both a jury trial and a Bench trial. Re-sult: we have a shadow jury sitting in ourcourtroom.

Our judge pre-screens the questionsto prevent a supposedly unlearned juryfrom hearing inadmissible answers. Butthis is pointless since the judge is himselfthe jury and, with his legal training, candisregard inadmissible answers even if hehears them.

Another thing, since the jurors sup-posedly know nothing about the facts ofthe case, witnesses must tell their sto-ries from beginning to end through directexamination required under section 4 ofRule 132. This means bearing with seriesof preliminary questions because, in directexamination, counsel has to elicit newfacts based on previously testied facts,like placing one stone on top of another.

But our judge does not actually need

to endure beginning-to-end testimonies.He knows from the pleadings the factsthat are admitted, and the facts that re-main in issue.

We tinkered with the possibility ofadopting a one-time face-to-face hearingof cases that tribunals in other countriesare employing to solve problems of delay.But before recommending the proposal tothe Supreme Court, we opted to bring it tothose that would be affected for consulta-tions. Thus, we presented the proposedchange to the Integrated Bar of the Philip-pine (IBP).

One-time, face-to-face hearing???they asked. But after a study, the IBP of-fered to hold nationwide discussions re-garding it. The IBP sponsored dialoguesat regional and chapter levels with judges,prosecutors, public attorneys, and privatepractitioners of all kinds. Thanks to theIBP we met them in IBP Chapter centersor campus halls.

CONSENSUS

Those who took part in the dialoguesagree based on experience that piece-meal trials have escalated to crisis propor-tions over the years. As a result, the judgeis unable to hear every item of fact in thecontext of the whole case. He is forced torely more on the transcript than on his per-sonal recollection of what the witness saidand how he said it. The judge often ndsno real value in paying attention to what

the witness says at the time he testies.Why should he when he would be decid-ing the case 3 or 5 years later. In contrast,the traditional European system for try-ing cases is inquisitorial. When a crimeis reported, the judge summons the wit-nesses, queries them, and makes his nd-ings. He takes a direct and proactive rolein searching for evidence. A subsequenttrial is largely conrmatory of the ndingsof the investigating judge.

We are preparing to shift from a purelyadversarial system to a combined adver-sarial and inquisitorial system patternedafter successful European models. It con-sists of a preliminary conference and oneface-to-face hearing with a decision at theend of the hearing.

PRELIMINARY CONFERENCE

Under the proposed rules, the judgewill hold a preliminary conference and aone-time, face to face hearing. The partieswill submit the afdavits of witnesses anddocuments already marked as exhibits.The judge will then prepare a summary of:(1) the conicting factual claims of the par-

ties and (2) the factual and legal issuesthat he needs to resolve. At the prelimi-nary conference, the judge and the par-ties will nalize the case summary, agreeon the order in which the factual issueswill be heard, and identify the needed wit-nesses.

All the facts that the parties allege intheir pleadings and afdavits, when notput in issue, shall be deemed admitted orregarded as irrelevant.

ONE FACE TO FACE HEARING

The court will then set the case forone, face-to-face hearing. Actually, withthe direct testimonies of witnesses em-bodied in afdavits, together with the doc-uments, the substance of the evidence forboth sides are already before the judge.

At the face-to-face hearing, the judgewill have all the witnesses sworn in simul-taneously. She may then question the wit-nesses present regarding the rst factualissue. Counsels for the parties may also

examine the witnesses. Then the courtwill move on to the next factual issue.Under the new procedure, the exami-

nation of the witnesses by the judge andthe lawyers will generally be free-owing,shifting from one witness to another, thuspromoting spontaneity in answers andvivid contrast between opposing versions.

This gives the judge the opportunity toobserve the demeanors of the witnessesand their reactions to each other. Nothing

beats face-to-face confronta-tion in sensing what is true.Conversation, says the Bible,is the test of a man. Sirach27:5 NAB In a way, our high-

ly successful small -claimscourt is a forerunner of the

proposed face-to-face hearing.Testimonies will be taken in the ver-

nacular. No longer will they be interpretedinto English. They will be electronicallyrecorded. Testimonies will be quoted inpleadings in their original version with theEnglish translation in parenthesis provid-ed by the party, subject to counter transla-tion by opposing side.

Trial will no longer be treated as aeld of combat where the opposing law-yers stand as champions of their clients.But rather, as an occasion for the judgeand the parties to collectively search fortruth. As a rule, the judge will hearevery case in one sitting. One continuoushearing will enable him to see every itemof fact in the context of the whole. In con-trast, the piecemeal trials we have todayrun for years. The poor judge would hard-ly remember what he heard two or threeyears ago considering the volume of hiscases.

PIECEMEAL TRIAL IS FARCE !IMMEDIATE DECISION

Since the rules require the judge to

We are preparing to shift from a purely adversarial system to acombined adversarial and inquisitorial system patterned after

successful European models. It consists of a preliminary confer-ence and one face-to-face hearing with a decision at the end of

the hearing.


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23IBP: Celebrating 40 years, 1973-2013

render an immediate oral decision, shewill be forced to focus on the issues andthe testimonies and seek the facts sheneeds to make a correct decision whenthe hearing ends. After the hearing, thejudge will, unless the issues are excep-tionally difcult, immediately announceher decision to the parties. The judge mayask the winning party to prepare a draft ofthe decision along the lines of reasoningshe gave. She will issue the correspond-ing written decision within fteen days.

What are the advantages of immedi-ate decision after hearing?

a) the judge will decide the case whenshe has the clearest picture of the dis-pute;

b) the judge will be deterred from ren-dering an unjust decision since thosepresent heard the evidence just as hedid;

c) knowing that he must decide the caseimmediately, the judge will be forcedto pay attention to the hearing;

d) she can avoid approaches by inter-ested parties between the trial andjudgment; and

e) the procedure makes a point for au-thentic speedy justice in our courts.

APPLICATION TO CRIMINAL CASES

The same procedure will be observedin hearing and deciding criminal cases.Question: would this not impair the consti-tutional rights of the accused? It wont. Ittakes into account all his rights. The faceto face hearing will be no less exhaustive.What is more, the required proof of guilt tosupport conviction remains the same.

Of course, since the accused is pre-sumed innocent, the burden is on the pros-ecution to prove his guilt. The prosecutionis required before hand to lay its evidenceon the table by submitting the afdavits ofthe complainant and his witnesses. Evi-dence not so disclosed shall be barred.The prosecution cannot change its theoryof the case. The accused has the right towithhold his testimony until the prosecu-tion has done this.

When the crime charged is punish-able by imprisonment in excess of sixyears, the judge shall require the wit-nesses during the face to face hearing tonarrate their testimonies in chief, rst, theprosecution witnesses, then, those of thedefense. In this way, the judge will havethe additional benet of observing the de-meanor of the witnesses both on their tes-timonies in chief and on their cross.

III. CLUSTERING OF COURTS

Our committee will shortly submit tothe Court a proposal for the clustering ofcourts of neighboring cities and munici-palities so that courts with small docketsof cases could take some of the burdenof those with large dockets. This shouldsubstantially relieve congestion of casesin problem cities and municipalities.

IV. DECONGESTING OUR HOLDINGJAILS

Many of us live in comfort and free-dom. We go home after a days work toour families. We have never been lockedin a small room that is crammed withstrangers and reeking with the foul smellof dried sweat. Welcome to our city jails.

One of the great tragedies in life thatcould strike you is for you to be detainedin any of them while your case is beingtried. The Constitution assures you thatyou are presumed innocent until the con-trary is proved. Yet, you suffer, even be-fore you are convicted, a worse fate thanone who quickly pleads guilty and is takento the national penitentiary to serve sen-tence. Why?

First, because trial in our courts aver-ages from 3 to 5 years and on occasions,8 to 9 years, you spend all that time be-hind iron bars. Second, our city jails areextremely overcrowded. The Manila cityjail for instance could handle no more than1,000 detainees. Yet it has taken in morethan 4,000. As a result, those awaitingtrial live in sub-human conditions. Ventila-tion and sanitation are extremely poor, re-sulting in frequent outbreaks of boils and

other contact diseases. The food is inad-equate. Gang wars are abundant, result-ing in death or maiming. And since reha-bilitation is for the guilty, city jail detaineesdo not enjoy the benets of sympathy orgroup cure.

The irony of it is that the majority ofcity jail dwellers are charged in court forthe rst time. Many of them are held fornon-violent offenses. About half are in-volved in drugs and only need rehabilita-tion. Yet they are mixed with the hardyones for lack of space. Many detaineesare eventually released because of in-adequacy of the evidence against themor because complainants simply give upcoming to court after repeated postpone-ments.

Such detainees leave the jail but thescars of pain, degradation, and hopeless-ness remain with them. They are perma-nently damaged.

Working with the International Com-mittee of the Red Cross, we are introduc-ing the following changes which should

substantially decongest holding jails in thenext two years: 1. The creation of a pilottask force Kalayaan at Katarungan in theCity of Manila that is currently establishingthe methods and standards for monitoringand moving forward the cases of detainedaccused persons; and 2. The correctionof the anti-poor culture dominating thebail system for detainees who, it is oftenforgotten, still enjoy the presumption of in-nocence.

For the same purpose, we are shortlysubmitting to the Court En Banc for ap-proval detailed guidelines for:

1. Getting back into the hands of the

courts from the Department of Justicethe xing of the amounts of bail, takinginto account the nancial ability of theaccused;

2. Releasing on recognizance poor de-tainees who are not involved in violentcrimes;

3. Provisionally dismissing cases wherethe complainants or their witnesseshave repeatedly failed to appear andtestify despite notice; and

4. One time summary hearing of applica-tions for bail of persons charged withcapital offenses to determine if theycan avail themselves of the right tobail when the evidence of guilt is not

strong.

We have to do something for thesemen and women who are presumed inno-cent but are made to suffer years of tor-ture and deprivation. Society has no rightto punish them until they are proven guilty.They are children of God like us, made outof His image and entitled to dignity and re-spect. Yet, we may have already becomeindifferent to their sufferings. Unless wedo something for them, Jesus could verywell say to us, I was in prison and you didnot care for me. (Mathew 25:43)

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Justice Abad opinion