Settlement and the 'Areglo' Mentality By Sassy Lawyer Manila Standard Today July 19, 2007 http://www.manilastandardtoday.com/?

page=connieVeneracion_july19_2007 Philippines Last Tuesday, I wrote about the $660 million that will be paid by the Archdiocese of Los Angeles to 500 victims of sexual abuses committed by priests. Let me continue the discussion but, this time, let me talk about why out-of-court settlements should have no part in any legal system that purports to be just. Let me start by going back to the 1980s when then President Ferdinand Marcos signed Presidential Decree 1508 which created a system for amicably settling disputes in the barangay level. My Criminal Law professor was one of those who had an active part in the creation of PD 1508 and he was very proud to enumerate the many benefits that it offered, one of which was the declogging of court dockets. In a way, it made sense. And, in a way, it was pragmatic too. Nobody wants to be embroiled in litigation. It is financially and emotionally draining. And since no damage can be undone in the real sense of the word and the only "realistic" way of compensating the aggrieved party is through the payment of a sum of money that "approximates" his grief, why not opt for settlement? It sounds callous, I know, but that's really how our justice system works. In fact, that's how most "modern" justice systems work. Moreover, because many cases would not be allowed to be filed in court without certification that they had passed through barangay settlement and no settlement was reached, the additional procedure was an effective deterrent to filing cases based on flimsy and, often, unfounded claims. However, it also added a burden to people who had genuine grievances. Instead of direct relief, they had to contend with the barangay, go through three hearings, secure the certification, and so on and so forth. Even then, on the theoretical level alone, I felt that the obvious intention of making cases "go away" was not justified. How could declogging court dockets be more important than bringing criminals to justice? But even beyond the theoretical level, in practice, the idea that out-of-court settlements could be an equivalent of justice and vindication has never been more wrong. Just last year, a friend found himself slapped with libel charges based on false accusations. I was personally aware of the circumstances of the case so when he came to me for advice, I told him to fight. I outlined his defense but since I had retired, he had to hire another lawyer to represent him. The lawyer advised him to settle the case. He did, eventually. I had my misgivings. Why should he pay money to someone who was making malicious accusations? It should be the other way around. The complainant should have been made to pay actual, moral and exemplary damages and shoulder my friend's attorney's fees too. But it wasn't that simple. Until the case was finally dismissed, I knew how my friend agonized with the emotional baggage. He could not focus on his work. He had to take a lot of time off from work for lawyer meetings and all that stuff. He felt harassed. He just wanted the whole thing to go away. It did when a settlement was reached which left the complainant richer by so many thousands of pesos. The law does not prohibit such settlements. In fact, based on the rationale of laws like PD 1508, the law

presumes that everyone will be happy if a case never reaches the court and there is no prolonged litigation which will just mean a waste of money for the complainant, the accused and the taxpayers. Much later, I thought about whether the settlement was a win or lose situation for my friend, and I had to admit grudginglythat had the case gone to trial, he would have spent much, much more in lawyer's fees alone with no assurance that every single centavo would be reimbursed via a court award. I felt he would have won an acquittal eventually but what if he had already spent a hundred thousand on lawyer's fees and the court only awards twenty thousand pesos? Go on appeal and incur more expenses? In short, my friend found no vindication. The emotional stress may have been cut short but was justice served? When we consider cases like murder or rape, the problem grows. Although serious crimes are not subject to barangay settlement, a lot never reach the court either because the suspects preempt prosecution by making an early offer of restitution. Let's have an example. Ana, a 10-year-old retard, was hit by a speeding car driven by the very drunk 18-year-old Jake. There were witnesses to the mishap who had already issued sworn statements with the police. Ana's family is poor and her parents, Mang Juan and Aling Juana, are problematic about where to get the money to give her the traditional wake and burial. Jake's parents approach Mang Juan and Aling Juana and offer them a hundred and fifty thousand pesos IF they will sign a document saying that they will make no further claims on Jake nor his family. A hundred and fifty thousand pesos can feed the family for a year. In law, every criminal case carries a civil aspect. Even if Juan and Juana waive their right to claim further damages, there's no reason why Jake cannot still be criminally prosecuted. But, in practice, once the civil aspect has been "settled", complainants rarely push through with the criminal case. Only the very doggedand financially capablewill go on. If we talk about "prinsipyo"about right and wrong there's nothing that will justify Mang Juan's and Aling Juana's acceptance of the money. In fact, it reeks strongly of bribery and "areglo." It means that in exchange for some financial comfort, Jake will never be prosecuted. On another level, it may even be considered a betrayal of their daughter's memory. But these things happen everyday and criminals go scot-free without criminal records and without so much as a blight on their names. In short, in more ways than one, a settlement is equivalent to hush money. To go back now to the settlement of the sexual abuse cases in the Archdiocese of Los Angeles, what purpose does the $660 million really serve? The obvious answer is so that the case will go no further. The Church isn't too keen on having witnesses testify one by one and outline the lurid things that the priests did to them. The Church especially does not want media coverage of these testimonies. Better to pay up and kill any possibility of going to trial. To the judge's credit, he insisted that for settlement to be considered, confidential priest personnel files must be released. Now that, for me, is a wise move. While the money will never be enough compensation for what the victims have been through, at least the erring priests will be exposed and the public will forever be warned of what might happen to them if they find themselves alone with these men.

To sum up, the concept of settlement, whether out of court or with court approval, has more than one dimension. Justice for justice's sake may seem too idealistic when we consider pragmatic benefits that aggrieved parties get out of these settlements. The truth remains, however, that the justice system is not only meant to serve individual interests but the collective interests of society as well. Considering that the true effect of settlements is to allow a dangerous person a criminalto remain a threat to the rest of society, then, any law that encourages settlements may be about something other than justice.