The Bar Tribune

"NOTHING LESS THAN HISTORIC," was how a social media blogger excitedly described the two-part IBP public
forum on the search for the next Supreme Court Chief Justice. For the first time ever in the history of CJ selection, the public saw the nominees 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 July 20 IBP public forum.

THE NEED FOR CHANGES IN OUR LEGAL SYSTEM

Roberto A. Abad
Associate Justice, Supreme Court I. THE MAKING OF THE LAWYER Since the lawyer is the basic human component of our legal system, any serious reform must begin with preparing and qualifying him for the practice of the profession. Everybody complains about the legal and moral bankruptcy of our lawyers, but very little has been done about training and screening them. Last year, the Supreme Court took a small step in that direction. It changed the format of the Bar exams to attune it to our needs. The essay kind of Bar exams that you and I took was good when the examinees were a few hundreds. But with more than 6,000 examinees per year, the grading of essays had become haphazard. In 2004, the Court assisted by American experts approved the giving of the universally accepted multiple choice questions. But with law schools objecting, implementation failed. In late 2009, on learning that I would chair the 2011 Bar Exams, I knew what I needed to do. I spoke to over 1,500 law professors in campuses all over the country and taught them how to prepare multiple choice questions for their classroom tests. By 2011, the graduates in that year were ready for my multiple choice exams. But we retained an essay portion to test the examinees lawyering skills. We required them to prepare one trial memorandum and one legal opinion based on given case problems. We added a little library of applicable laws and Supreme Court rulings. Four examiners graded each of the two essays, thus minimizing subjectivity in corrections. We measured the examinees ability to put the relevant facts together, identify the issues in the case, and craft persuasive arguments. Because of the introduction of this kind of essay exams, law schools have begun to shift the direction of teaching students from just learning the law to practicing it. When we took our bar exams, we memorized ridiculously useless things because none of us knew from where the questions would come. We put an end to this senseless torture. We asked experts from the UP Law Center to draw up in each subject a syllabus of topics relevant to law practice. We gave these to the examinees and asked no questions outside the syllabus. Our Committee on Bar matters, working with the Legal Education Board, is considering the possibility of reducing the number of Bar subjects from 8 to 4 so law schools could free more units in the third and fourth years of schooling and tune them to specific career paths in litigation, adjudication, and commercial practice. II. A NEW SYSTEM FOR HEARING AND DECIDING CASES Studies show that 75% of our people live in crowded cities. Consequently, the occasions for human conflict are unavoidable. The records show that our courts in these cities are drowning in cases. Many have 1,000 plus cases each. They hear 30 to 60 cases a day. Our courtrooms are full. Some litigants have to wait outside to be called. Cases take from 3 to 5 years, at times up to 8 or 9 years or more to hear and decide, inflicting a sense of hopelessness over our justice system. Because of so many ridiculously long and repeated postponements, complainants in criminal cases simply give up coming to court. As a result, 40 out of every 100 persons accused of crimes walk free. Vic-

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August 2012
tims of crimes find no speedy justice in our to endure beginning-to-end testimonies. ties and (2) the factual and legal issues He knows from the pleadings the facts that he needs to resolve. At the prelimicourts. The consequences of delays in civil that are admitted, and the facts that re- nary conference, the judge and the parties will finalize the case summary, agree actions are dire. Few foreign business- main in issue. We tinkered with the possibility of on the order in which the factual issues men make long-term investments in our country because our courts cannot pro- adopting a one-time face-to-face hearing will be heard, and identify the needed witof cases that tribunals in other countries nesses. vide protection to their investments. All the facts that the parties allege in Result: we do not attain economic are employing to solve problems of delay. But before recommending the proposal to their pleadings and affidavits, when not growth; our people remain poor. What causes these terrible delays in the Supreme Court, we opted to bring it to put in issue, shall be deemed admitted or our justice system? There are many caus- those that would be affected for consulta- regarded as irrelevant. es. Our courts are few. Prosecutors and tions. Thus, we presented the proposed ONE FACE TO FACE HEARING public attorneys are few. Our system for change to the Integrated Bar of the Philiphearing and deciding cases is slow and pine (IBP). One-time, face-to-face hearing??? The court will then set the case for cumbersome. We could do nothing about our shortage in number of courts, and the they asked. But after a study, the IBP of- one, face-to-face hearing. Actually, with few prosecutors and public attorneys we fered to hold nationwide discussions re- the direct testimonies of witnesses emhave. But are we earnest in examining our garding it. The IBP sponsored dialogues bodied in affidavits, together with the docsystem for hearing and deciding cases to at regional and chapter levels with judges, uments, the substance of the evidence for see if we can increase the capacity of our prosecutors, public attorneys, and private both sides are already before the judge. practitioners of all kinds. Thanks to the At the face-to-face hearing, the judge judges for disposing of their cases? In 2009, upset with the mess of de- IBP we met them in IBP Chapter centers will have all the witnesses sworn in simultaneously. She may then question the witlays in the hearing and adjudication of or campus halls. nesses present regarding the first factual cases, I asked the Chief Justice to create CONSENSUS issue. Counsels for the parties may also a Committee to Address Case Congestion examine the witnesses. Then the court in the lower courts and offered to head it. Those who took part in the dialogues will move on to the next factual issue. The conventional thinking was to streamUnder the new procedure, the examiline the system and pound hard on judges agree based on experience that piecemeal trials have escalated to crisis propor- nation of the witnesses by the judge and to speed up the disposition of cases. But Albert Einstein once said that it is tions over the years. As a result, the judge the lawyers will generally be free-flowing, madness to do the same thing the same is unable to hear every item of fact in the shifting from one witness to another, thus way when it is no longer working. How old context of the whole case. He is forced to promoting spontaneity in answers and is our system for hearing and deciding rely more on the transcript than on his per- vivid contrast between opposing versions. This gives the judge the opportunity to cases? The Americans gave it to us over sonal recollection of what the witness said a hundred years ago. It is a system unique and how he said it. The judge often finds observe the demeanors of the witnesses to their history and culture. Yet we adopted no real value in paying attention to what and their reactions to each other. Nothing face-to-face confrontait in this country and we were We are preparing to shift from a purely adversarial system to a beats tion in sensing what is true. taught in our law schools the idea that there is no way to combined adversarial and inquisitorial system patterned after Conversation, says the Bible, hear and decide cases fairly successful European models. It consists of a preliminary confer- is the test of a man. Sirach except the American way. ence and one face-to-face hearing with a decision at the end of 27:5 NAB In a way, our highly successful small -claims The American system is the hearing. court is a forerunner of the adversarial and heavy in certhe witness says at the time he testifies. proposed face-to-face hearing. emonials. The plaintiff and the defendant match Why should he when he would be decidTestimonies will be taken in the verskills in presenting evidence before a ing the case 3 or 5 years later. In contrast, nacular. No longer will they be interpreted judge set high on a pedestal but, ironical- the traditional European system for try- into English. They will be electronically ly, doomed to sit back and listen to what ing cases is inquisitorial. When a crime recorded. Testimonies will be quoted in is reported, the judge summons the wit- pleadings in their original version with the the parties want him to hear. We also adopted a system designed nesses, queries them, and makes his find- English translation in parenthesis providfor both a jury trial and a Bench trial. Re- ings. He takes a direct and proactive role ed by the party, subject to counter translasult: we have a shadow jury sitting in our in searching for evidence. A subsequent tion by opposing side. trial is largely confirmatory of the findings Trial will no longer be treated as a courtroom. Our judge pre-screens the questions of the investigating judge. field of combat where the opposing lawWe are preparing to shift from a purely yers stand as champions of their clients. to prevent a supposedly unlearned jury from hearing inadmissible answers. But adversarial system to a combined adver- But rather, as an occasion for the judge this is pointless since the judge is himself sarial and inquisitorial system patterned and the parties to collectively search for the jury and, with his legal training, can after successful European models. It con- truth. As a rule, the judge will hear disregard inadmissible answers even if he sists of a preliminary conference and one every case in one sitting. One continuous face-to-face hearing with a decision at the hearing will enable him to see every item hears them. Another thing, since the jurors sup- end of the hearing. of fact in the context of the whole. In conposedly know nothing about the facts of trast, the piecemeal trials we have today PRELIMINARY CONFERENCE the case, witnesses must tell their storun for years. The poor judge would hardries from beginning to end through direct ly remember what he heard two or three examination required under section 4 of Under the proposed rules, the judge years ago considering the volume of his Rule 132. This means bearing with series will hold a preliminary conference and a cases. of preliminary questions because, in direct one-time, face to face hearing. The parties examination, counsel has to elicit new will submit the affidavits of witnesses and PIECEMEAL TRIAL IS FARCE ! facts based on previously testified facts, documents already marked as exhibits. IMMEDIATE DECISION like placing one stone on top of another. The judge will then prepare a summary of: But our judge does not actually need (1) the conflicting factual claims of the parSince the rules require the judge to

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The Bar Tribune

render an immediate oral decision, she will be forced to focus on the issues and the testimonies and seek the facts she needs to make a correct decision when the hearing ends. After the hearing, the judge will, unless the issues are exceptionally difficult, immediately announce her decision to the parties. The judge may ask the winning party to prepare a draft of the decision along the lines of reasoning she gave. She will issue the corresponding written decision within fifteen days. What are the advantages of immediate decision after hearing? a) the judge will decide the case when she has the clearest picture of the dispute; b) the judge will be deterred from rendering an unjust decision since those present heard the evidence just as he did; c) knowing that he must decide the case immediately, the judge will be forced to pay attention to the hearing; d) she can avoid approaches by interested parties between the trial and judgment; and e) the procedure makes a point for authentic speedy justice in our courts. APPLICATION TO CRIMINAL CASES The same procedure will be observed in hearing and deciding criminal cases. Question: would this not impair the constitutional rights of the accused? It wont. It takes into account all his rights. The face to face hearing will be no less exhaustive. What is more, the required proof of guilt to support conviction remains the same. Of course, since the accused is presumed innocent, the burden is on the prosecution to prove his guilt. The prosecution is required before hand to lay its evidence on the table by submitting the affidavits of the complainant and his witnesses. Evidence not so disclosed shall be barred. The prosecution cannot change its theory of the case. The accused has the right to withhold his testimony until the prosecution has done this. When the crime charged is punishable by imprisonment in excess of six years, the judge shall require the witnesses during the face to face hearing to narrate their testimonies in chief, first, the prosecution witnesses, then, those of the defense. In this way, the judge will have the additional benefit of observing the demeanor of the witnesses both on their testimonies in chief and on their cross. III. CLUSTERING OF COURTS Our committee will shortly submit to the Court a proposal for the clustering of courts of neighboring cities and municipalities so that courts with small dockets of cases could take some of the burden of those with large dockets. This should substantially relieve congestion of cases in problem cities and municipalities. IV. DECONGESTING OUR HOLDING JAILS Many of us live in comfort and freedom. We go home after a days work to our families. We have never been locked in a small room that is crammed with strangers and reeking with the foul smell of dried sweat. Welcome to our city jails. One of the great tragedies in life that could strike you is for you to be detained in any of them while your case is being tried. The Constitution assures you that you are presumed innocent until the contrary is proved. Yet, you suffer, even before you are convicted, a worse fate than one who quickly pleads guilty and is taken to the national penitentiary to serve sentence. Why? First, because trial in our courts averages from 3 to 5 years and on occasions, 8 to 9 years, you spend all that time behind iron bars. Second, our city jails are extremely overcrowded. The Manila city jail for instance could handle no more than 1,000 detainees. Yet it has taken in more than 4,000. As a result, those awaiting trial live in sub-human conditions. Ventilation and sanitation are extremely poor, resulting in frequent outbreaks of boils and other contact diseases. The food is inadequate. Gang wars are abundant, resulting in death or maiming. And since rehabilitation is for the guilty, city jail detainees do not enjoy the benefits of sympathy or group cure. The irony of it is that the majority of city jail dwellers are charged in court for the first time. Many of them are held for non-violent offenses. About half are involved in drugs and only need rehabilitation. Yet they are mixed with the hardy ones for lack of space. Many detainees are eventually released because of inadequacy of the evidence against them or because complainants simply give up coming to court after repeated postponements. Such detainees leave the jail but the scars of pain, degradation, and hopelessness remain with them. They are permanently damaged. Working with the International Committee of the Red Cross, we are introducing the following changes which should substantially decongest holding jails in the next two years: 1. The creation of a pilot task force Kalayaan at Katarungan in the City of Manila that is currently establishing the methods and standards for monitoring and moving forward the cases of detained accused persons; and 2. The correction of the anti-poor culture dominating the bail system for detainees who, it is often forgotten, still enjoy the presumption of innocence. For the same purpose, we are shortly submitting to the Court En Banc for approval detailed guidelines for: 1. Getting back into the hands of the courts from the Department of Justice the fixing of the amounts of bail, taking into account the financial ability of the accused; 2. Releasing on recognizance poor detainees who are not involved in violent crimes; 3. Provisionally dismissing cases where the complainants or their witnesses have repeatedly failed to appear and testify despite notice; and 4. One time summary hearing of applications for bail of persons charged with capital offenses to determine if they can avail themselves of the right to bail when the evidence of guilt is not strong. 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 until they are proven guilty. They are children of God like us, made out of His image and entitled to dignity and respect. Yet, we may have already become indifferent to their sufferings. 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)

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