[Please Check Against Delivery]

The Rule of Law in the Context of Todays Judiciary and its Challenges1 Hon. Maria Lourdes P. A. Sereno Chief Justice of the Republic of the Philippines President Beda G. Fajardo and outgoing President Ma. Charito P. Cruz, the other officers and members of the Philippine Bar Association, friends and fellow members of the legal profession: good evening to you all. "The rule of law is better than that of any individual," said Aristotle more than two millennia ago. A society should be governed by rules established and enforced through an open and fair process for the purpose of maintaining harmony, stability and justice for all. Established rules must govern citizens because their fortunes, freedoms and their very lives can easily be put asunder by the dictates of a king, ruler or the mob. Thus, under a regime governed by the Rule of Law, all are subjects, beggars and kings alike, but more so the latter. After all, the history of the world, and indeed our own recent history have seen kings or rulers, even benevolent ones, transform into despots if their powers remained unchecked. Today, we have more pluralistic societies, where political power is not concentrated in the hands of singular titular rulers. But even when centers of political power are dispersed, we are still wary of the tyranny of government and call upon the Rule of Law for protection. The idea of a Rule of Law stems from many traditions and continents and is intertwined with the evolution of the history of law itself.2 Before Aristotles time, the Rule of Law has found its place in the Orient. The King of Babylons Code of Hammourabi, which was promulgated sometime in 1760 B.C. is one of the first codified law that applied to both ruler and his public.3 There is a similar strand of making rulers accountable to established laws in the Islamic legal tradition and in Eastern philosophies like Confucianism.4

1

Keynote speech delivered on the occasion of the celebration of Law Day 2013 by the Philippine Bar Association Inc. (PBA), September 25, 2013, Makati City. 2 http://www.unrol.org/article.aspx?article_id=3 3 Id. 4 Id.

In the Anglo-American tradition, Englands King Johns signing of the Magna Carta of 1215 is considered seminal. During the 17th century, the English parliament passed pieces of legislation giving citizens the right to petition government for redress against abuses, the right against taxes without representation, and finally the English Bill of Rights in 1689.5 American constitutionalism in the next century added separation of powers and the independence of the judiciary, expounded in Madison v. Marbury, as pillars of the Rule of Law. Because it is a time-tested idea, the Rule of Law is generally accepted as a must, though many will admit that it is a framework that is far from perfect. Some would argue, for instance, that laws that are promulgated are not always just, fair and balanced even in a democratic system where the decision-making process is supposed to be free and open. The Rule of Law framework, they say, fails to recognize that elites could still corner economic and political power and advance narrow interests. Thus, laws have been passed that benefit particular business interests, disempower minorities, and weaken fair play. On the other hand, Rule of Law supporters would point out that this problem can be solved by ensuring, through the electoral rules, that decisions are made by a group with the right mix of background and which reflects the varying interests of the communities that they govern. I think whatever side of the argument we belong, it is important that we recognize the possible limitations of the Rule of Law framework. Despite the possible flaws of the Rule of Law framework, its key features constitutionalism, accountability of leaders, accessible and neutral courts, protection of human rights, transparency are not something people question. I think no one will really go out and say he is against the Rule of Law. Indeed, the purpose of tonights gathering is for us to recommit ourselves to the Rule of Law. But what are we actually committing ourselves to? In contracts, parties prefer that technical terms are defined, which enables them to clearly understand their obligations or deliverables under the agreement. So, I think we should have a working definition of the Rule of Law. I do not mean to imply that you and I have not understood the concept when we declared our commitment to the Rule of Law in the past. But rather, I think that going back to the definition of the Rule of Law should be a regular exercise as part of a process of continuous reassessment of the state of the Rule of Law in our society. By regularly going back to its basic

5

Id.

elements, we are actually asking ourselves if our society possesses these building blocks. Going back to the definition allows us to understand how to operationalize the Rule of Law. And if we look at the Rule of Law on an operational level, we are able to identify the flaws in the operation and make intervention at its problematic junctures. According to the World Justice Project, the Rule of Law is a system in which the following four universal principles are upheld: 1. The government and its officials and agents as well as individuals and private entities are accountable under the law. 2. The laws are clear, publicized, stable and just, are applied evenly, and protect fundamental rights, including the security of persons and property. 3. The process by which the laws are enacted, administered and enforced is accessible, fair and efficient. 4. Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve. If these four principles are the end results that we want to attain, operationally the three branches of government, civil society, and ordinary citizens have roles to play. But as Chief Justice, I am confined to but a limited stage presence. I am not in a position to speak for the Legislature and the Executive nor can I prescribe solutions to the public. But I would like to talk about the role of the courts in upholding the Rule of Law. I want to put this role in the context of the problems faced by the judiciary in terms of its resources, independence, the quality of its people and processes and the reform programs that we are implementing. Operationally, the Rule of Law demands that: (i) (ii) (iii) (iv) The courts are accessible to ordinary citizens; The delivery of justice is not subject to unreasonable delays, and punishment or redress is given in a timely and effective manner; The courts are free from improper government influence and their independence is maintained; and There is an absence of corruption and competent, ethical, and neutral judges are appointed to the bench.

We recognize the strides must still be made to meet these demands. In the 2012-2013 Rule of Law Index of the World Justice Project, the Philippines stood
3

out among lower-middle income countries for having reasonably effective checks on government power, including a vibrant civil society, a free media, and an independent judiciary.6 But according to the report, there is still a perceived problem with regard to corruption among judges and the lengthy duration of cases. These are some of the hurdles that the judiciary faces in meeting its commitment to the Rule of Law. But we are clearing the way to bring the hurdles down. Some of the stumbling blocks will not fall within a short term, but with policies crafted after successful implementation of pilot projects, firmed-up data and information, and new technology, these barriers that have been holding us back are bound to fall. Allow me to share some of the steps that the judiciary has taken, with assistance from our development partners and the support of our judges and workers from the ground: (1) To make courts accessible and efficient for ordinary people, Small Claims courts have been put up across the country. These courts have jurisdiction over claims amounting to PhP100,000 or less. These cases usually involve claims of small business owners and loans of ordinary people like teachers, government employees, and office workers. A prolonged trial would cause undue financial burden to these people, so the goal of the Small Claims courts is to provide an abridged trial process that is even shorter than Summary Procedure. Moreover, lawyers are not allowed to appear in the proceedings; hence, the parties are not burdened with high costs of litigation. On average, cases are heard four months after a litigant files a small claims case while the hearing and the decision itself takes only one day. In comparison, traditional courts normally need 3 to 4 years to resolve incoming civil cases. 7 As much as a third of all cases are settled amicably. Due to its successes, we are studying the possibility of increasing the jurisdiction of small claims courts to claims of PhP200,000 or less. (2) To end the slow pace of justice and speed up the resolution of cases, a menu of solutions involving investments in human resources and technology and procedural reforms are being implemented. They include: (a) A decongestion project called Hustisyeah, which has been piloted in Quezon City. Heavily burdened courts, i.e., those with case loads of 500 or more, have been targeted for this project. A group of lawyers and law

6 7

The World Justice Project Rule of Law Index 2012-2013, p. 33. http://philippines.usaid.gov/programs/democracy-governance/success-stories/small-claims-court-enhances- public-participation-justice-system

students are trained to help a judge do an inventory of the cases assigned to her courts and come up with a court-specific decongestion plan that will identify cases that can be dismissed moto proprio, archived or submitted for alternative dispute resolution. According to initial reports, as much as 30% of caseloads of some of target courts can already be removed from the dockets. (b) eCourts have been piloted in Quezon City and have been approved for roll out to other courts where the number of cases is high. An eCourt is a computer-based system designed to enable trial court judges and court personnel to organize, plan and control the flow of the case from filing to resolution and enforcement. Some of its features are ePayment, eRaffle, document management through the use of bar codes, and electronic calendaring of cases. eCourts also enhance transparency because anyone can access the status of a case through the use of online portals. The computerized case management system is its main tool to help speed up the trial process. Since the judges are notified of the age and status of their cases, they are able to focus on the delayed cases. In the CA, the installation of a CMS has helped increase the number of disposed cases annually to a figure greater than the number of cases that the CA receives for that given year (about 20% more). Thus, eventually the backlog in the CA will disappear. We want to replicate that success story in the lower courts and the rest of the judiciary. (c) In terms of procedure, the Supreme Court has promulgated the Judicial Affidavit Rule aimed at cutting trial time by half. The proposed revisions in the Rules of Civil Procedure and the internal procedures in the Sandiganbayan are now being studied by the Court. We hope that further improvements in procedures will help curtail dilatory tactics, prolonged suspension of hearings and other causes of delay. (d) Through the Justice Sector and Coordinating Council, the SC, DILG and DOJ have agreed to implement an electronic subpoena system alerting the Chief PNP of the scheduled court appearance of police officers as witnesses. We have found out that much of the delay in and dismissal of criminal cases has been caused by the non-appearance of police witnesses in court.

(3) Filling the court vacancies is another means of addressing delays in court. I am happy to report that the submission of nominations to the Judicial Bar and Council has been fast-tracked from the time of my appointment in August 2012. The vacancy rate was at 22% at end of 2012, down from average of 24.51% from 2005-2011. It went further down to 20% as of July 23, 2013 and may reach as low as 17% if nominations pending in Malacaan are acted upon. The courts are doing their part in upholding the Rule of Law. Even our friends from the Executive Branch are noticing how actively the Judiciary is pursuing reforms. They recognize that the pace of reforms currently being undertaken is quite fast, considering the gargantuan problems that we seek to address and the limited resources that are available. How about the members of the legal profession? What is your role in helping reform the bench? You are the single biggest group of people that actively interacts with the courts, and you have a big stake in making the judiciary a success story. Lawyers are the first to complain of corruption in the judiciary. It is common in lawyers circles to talk of judges engaged in below-the-table dealings, which talk has besmirched the reputation of the bench. You talk about law firms and lawyers with vaults in their offices that are ready to churn out hard cash for payoffs. Yet, you discuss these evils in hushed tones and through blind items. It is seldom that a lawyer comes up to the Supreme Court, armed with evidence to kick these culprits out of the bench and bar. My office receives dozens of letters each month accusing this or that judge of corruption and bias as shown by his supposed unjust decisions or rulings. Oftentimes, these letters come from losing parties, who just rehash their losing arguments. None of them have shown that money passed hands, and aside from the fact the judge did not give weight to their supposedly solid arguments, these letter senders cannot point to any interest or relation that may have caused the judges bias. I understand the dangers in becoming a crusader against hoodlums in robes. There are professional risks involved when lawyers become whistle blowers. Clients may also not be willing to support you in going after erring judges. When you get the ire of judges, you may also start losing clients who do not want their cases prejudiced. Thus, I think anti-corruption campaigns led by organizations like PBA rather than by individual lawyers are more feasible.

With the sufficient talent and resources available to your organization, I think you can be more successful in identifying and gathering evidence against scalawags in purple robes and the unscrupulous members of our profession. I hope you will start by naming judges who have initiated discussions or actually demanded bribes. The PBA may want to submit proposals on how the Supreme Court can encourage more whistle blowers to come out. Perhaps, we can discuss administrative amnesties in favor of lawyers who will report their past dealings with judges who have built a reputation for being available to the highest bidder. The Court may possibly agree to not disbar or administratively penalize these lawyers who come forward. As to their criminal liability, perhaps the Court can discuss with the Ombudsman the possibility of naming the whistleblowers as state witnesses and giving them immunity. I am not taking any definite positions on these matters, but I cannot start discussing these ideas with my colleagues in the Supreme Court, unless I have an indication of the willingness of the legal profession to cooperate in our effort to weed out corruption. I have already shared with the public the absence in the judiciary of any hard-nosed investigative capacity like that of the NBI; thus, the indispensability of the testimonies of whistleblowers. I assure you that if the cases filed are serious and supported by evidence, the justices of the Supreme Court will see to it that the axe will fall on whoever deserves it, even if it falls close to us. Please look at our recent decisions against erring judges, including those in Cebu, who were involved in marriage packages. The image of the judiciary will probably temporarily suffer with the filing of these cases, but in the long run, a cleaning of the house will help lead to the gold standard status that we want for the judiciary. We can look at these initial steps as an inoculation experience, which always hurts at first. Second, we also need your assistance in recruiting the right people for the bench. I have requested my colleagues in the JBC to implement a system where we go out and identify qualified lawyers from all parts of the country who can sit in our courts. I have asked the JBC to reorient itself from being a passive receiver of applications to acting like a headhunting agency, which gets the best people to join the judiciary. We need the assistance of groups like the PBA and the IBP in identifying lawyers of high professional calibre and ethical standard, who can join the judiciary. You know your colleagues in the profession, their work ethic and moral standing. In the context of todays judiciary and the challenges it faces, we need to mine the philosophical underpinnings of the Rule of Law. We need to continue to
7

hold up its principles and use them as our lights. But we need to go beyond the realm of philosophy and ideas. We need to identify the practical and operational aspects of the Rule of Law and make them work. And, pardon the clich, we need to put our money where our mouth is. Congratulations to the new officers of the Philippine Bar Association. I hope you will take up the challenge of reforms and together let us work for the courts and the legal professions transformation that is long overdue. Mabuhay po kayong lahat.