Tuesday, March 3, 2009

Great Speeches: CHARTER CHANGE FORUM

DISTINGUISHED GUESTS
LADIES AND GENTLEMEN, GOOD AFTERNOON.

IT IS A GREAT HONOR FOR ME TO BE WITH YOU ON THIS MOMENTOUS OCCASION. I AM ASKED TO REPORT ON THE TOPIC BUSINESS DEVELOPMENT IN RELATION TO JUDICIAL REFORMS.

THE INTENT OF THE CIVIL JUSTICE SYSTEM IS SIMPLE: TO ESTABLISH A FAIR AND EQUITABLE FRAMEWORK FOR RESOLVING CONFLICTS AMONG PARTIES. IF THE PROCESS FUNCTIONS WELL, IT PROVIDES A MEANS TO COMPENSATE LEGITIMATELY HARMED PARTIES AND DETER UNDESIRABLE BEHAVIOR. ON THE OTHER HAND, A POORLY CONCEIVED OR IMPLEMENTED SYSTEM CAN RESULT IN, AMONG OTHER CONSEQUENCES, INCREASED COSTS AND RISKS OF DOING BUSINESS; DISINCENTIVES FOR INNOVATIONS THAT BENEFIT CONSUMERS; INDUCEMENTS TO FILE FRIVOLOUS (QUESTIONABLE MERIT) LAWSUITS; INFLATED INSURANCE PREMIUMS; -AND IMPORTANTLY- ENCUMBRANCES TO ECONOMIC DEVELOPMENT AND THE ACCOMPANYING JOB CREATION. BUSINESSES SIMPLY CANNOT FUNCTION ON AN ENVIRONMENT OF INSECURITY.

INDEED, DELAY IN THE DISPOSITION OF CASES IS A FREQUENT COMPLAINT OF LITIGANTS AND THE PUBLIC IN GENERAL. ACCORDING TO THE NATIONAL STATISTICS COORDINATION BOARD, THE CASELOAD IN 2004 REACHED ABOUT 1.4 MILLION. OF THIS NUMBER, MORE THAN 800,000 WERE NOT DISPOSED OF OR RESOLVED.

NOT MUCH HAS CHANGED IN 2005 SINCE THERE WAS STILL A BACKLOG OF 806, 748 CASES.

IN THE BUSINESS SECTOR, UNNECESSARY EXPENSES CAUSED BY UNENDING LITIGATION, NOT TO MENTION PAYMENT OF ATTORNEY’S FEES, PLACE A HEAVY BURDEN ON THE COST OF DOING BUSINESS. THE SLOW TURNING OF THE WHEELS OF JUSTICE THROUGH ENDLESS POSTPONEMENTS OF CASES AND LEGAL MANEUVERINGS DISCOURAGE FOREIGN INVESTORS FROM DOING BUSINESS IN OUR COUNTRY.

INDEED, THERE IS A NEED TO REDUCE, IF NOT TOTALLY ELIMINATE, DELAY IN THE ADJUDICATION OF CASES IN ALL LEVELS.

THE EFFECT OF THE PERFORMANCE OF THE JUDICIAL SYSTEM HAS BEEN THROWN INTO THE LIMELIGHT AS THE BUSINESS SECTOR HAS IN VARIOUS SURVEYS POINTED TO ITS PERFORMANCE AS BEING ONE OF THE MAIN OBSTACLES AND DISINCENTIVES TO DOING BUSINESS IN THE PHILIPPINES.

FURTHER, ACCORDING TO THE STUDY DONE BY EMMANUEL DE DIOS OF THE UP SCHOOL OF ECONOMICS, THE CURRENT LEVEL OF FUNCTIONING OF THE LEGAL SYSTEM HAS AN ECONOMIC IMPACT EQUIVALENT TO FOREGOING AT LEAST 6-11 PERCENT OF TOTAL INVESTMENT IN THE ECONOMY AND FOREGOING AT LEAST ONE-FOURTH TO ONE-HALF OF A PERCENTAGE POINT (0.25-0.46) OF GDP GROWTH ANNUALLY, OR AN ANNUAL LOSS AMOUNTING TO BETWEEN P7 BILLION AND P13 BILLION IN 1999 ALONE. THESE ARE SIGNIFICANT AND RECURRING ECONOMIC LOSSES ATTRIBUTABLE TO THE NATURE AND FUNCTIONING OF INSTITUTIONS AND FORM A STRONG CASE FOR JUDICIAL REFORM. THE QUESTION IS HOW ARE WE TO GO ABOUT INSTITUTING THESE JUDICIAL REFORMS IN THE CONTEXT OF BUSINESS COMPETITIVENESS?

AT ANY GIVEN TIME, IN LEGAL JOURNALS, IN SEVERAL PUBLICATIONS, PROFESSIONAL MEETINGS, AND IN OUR LAW SCHOOLS, JUDICIAL REFORM IS BEING DISCUSSED IN MANY ASPECTS. THUS, THERE IS NO DEARTH OF INSIGHTS, PERSPECTIVES AND REFORM PROGRAMS IN THIS REGARD.

THE INCLUSION OF JUDICIAL REFORM, AS IT RELATES TO BUSINESS CONFIDENCE AND COMPETITIVENESS, AS ONE OF THE KEY ISSUES IN THE NATIONAL COMPETITIVENESS COUNCIL, UNDERSCORES THE DEEP APPRECIATION OF THE PRIVATE SECTOR ON THE ROLE IT CAN PLAY IN HELPING IMPROVE THE BUSINESS FUNCTION OF THE JUDICIARY.

ONE KEEN ACCOMPLISHMENT THAT HAS WORKED SIGNIFICANTLY TO THE BENEFIT OF THE PRIVATE SECTOR IN PARTNERSHIP WITH GOVERNMENT IS THE ENACTMENT OF THE ALTERNATIVE DISPUTE RESOLUTION (ADR) LAW. WITH THE CREATION OF THE PHILIPPINE DISPUTE RESOLUTION CENTER, ARBITRATION HAS BEEN MAINSTREAMED AS A PLATFORM FOR EXPEDITIOUS SETTLEMENT OF BUSINESS-RELATED ISSUES.

IN MY LEGAL EXPERIENCE, I LEARNED THAT THE BEST METHODS TO SETTLE DISPUTES ARE THROUGH NEGOTIATION, CONCILIATION, AND MEDIATION. THE PROBLEM, HOWEVER, IS THAT ULTIMATELY, THE SUCCESS OF THESE METHODS LIES ON THE GOODWILL AND COOPERATION OF THE PARTIES INVOLVED IN THE DISPUTE. ARBITRATION IS NOT “ADR” OUTSIDE THE COUNTRY. IN THE PHILIPPINES, HOWEVER, THE TERM “ALTERNATIVE DISPUTE RESOLUTION SYSTEM” REFERS TO ANY PROCESS OR PROCEDURE USED TO RESOLVE A DISPUTE OR CONTROVERSY, OTHER THAN BY ADJUDICATION OF A PRESIDING JUDGE OR A COURT OR AN OFFICER OF AN ADMINISTRATIVE AGENCY.

BUT LET US NOT FORGET THAT THE SOLE PURPOSE OF ALL THESE IS FOR US TO ARRIVE AT A SETTLEMENT ZONE OR THE BARGAINING RANGE WHEREIN THE PARTIES’ RESPECTIVE RESISTANCE POINTS MEET OR BREACH EACH OTHER.

ANOTHER EXAMPLE OF THE MANY THINGS THAT THE PRIVATE SECTOR AND JUDICIARY HAVE WORKED ON WAS REFORMING CERTAIN PROVISIONS OF THE RULES OF COURT WHICH HAVE BEEN OPEN TO ABUSE FROM MANY MEMBERS OF THE BAR, LIKE RULE 65.

AS MOST OF YOU KNOW, RULE 65 OF THE RULES OF COURT , WHICH DISCUSSES THE RULES ON FILING PETITIONS FOR CERTIORARI, PROHIBITION, AND MANDAMUS, PROVIDES A REMEDY TO ANY AGGRIEVED LITIGANT WHEN COURTS OR TRIBUNALS ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION.

REVISIONS TO RULE 65 WERE INITIATED BY THE RULE OF LAW EFFECTIVENESS (ROLE) PROJECT OF THE USAID. SEVERAL ROUNDTABLE DISCUSSIONS WERE ORGANIZED BY ROLE, LED BY ATTY. RITA JIMENO, MY VICE CHAIR TO THE SPECIAL CONCERNS TASK FORCE OF THE NCC SPEARHEADED THIS INITIATIVE. AS A RESULT OF THE SERIES OF ROUNDTABLE DISCUSSIONS, A COMMON FEEDBACK WAS GATHERED FOR THIS RULE TO BE AMENDED, THUS THE FOLLOWING THRUSTS HAVE BEEN SUBMITTED TO THE SUB-COMMITTEE ON RULE REVISIONS TO THE COURT:

SECTION 4: RESPECT FOR THE HIERARCHY OF COURTS WILL BE ENHANCED TO HELP PREVENT THE CLOGGING OF SC’S DOCKETS. RATHER THAN ALLOWING LITIGANTS TO DIRECTLY GO UP TO THE SC, THEY MUST FILE CERTIORARI CASES IN THE REGIONAL TRIAL COURT IF WHAT IS BEING QUESTIONED IS THE ACT OF A FIRST LEVEL COURT JUDGE. WHILE ELECTION CASES QUESTIONING ACTS ALLEGED TO BE TAINTED WITH GRAVE ABUSE OF DISCRETION BY RTC JUDGES MUST BE RAISED TO THE COMELEC IN ITS APPELLATE JURISDICTION.

SECTION 7: ADDITIONAL PARAGRAPH TO GIVE TEETH TO THE PRINCIPLE THAT THE MAIN OR PRINCIPAL CASE SHOULD PROCEED DESPITE THE FILING OF A PETITION FOR CERTIORARI UNLESS THERE IS A TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION ISSUED BY A HIGHER COURT. SHOULD THE JUDGE OR HEAD OF THE TRIBUNAL REFUSE TO PROCEED WITH THE PRINCIPAL CASE AFTER AN ALLOWANCE OF TEN (10) DAYS FROM THE FILING OF A PETITION FOR CERTIORARI, THERE BEING NO TRO, THE HEAD JUDGE OR HEAD OF THE TRIBUNAL COULD FACE ADMINISTRATIVE CHARGES. JUDICIARY COURTESY MAY NO LONGER BE USED AS AN EXCUSE BY COURTS OR TRIBUNALS IN NOT PROCEEDING WITH THE PRINCIPAL CASE.

SECTION 8: TREBLE COSTS WILL BE IMPOSED ON A PETITIONER OR HIS LAWYER FOR FILING A DILATORY AND BASELESS PETITION FOR CERTIORARI WHICH IS LATER DENIED, TO DISCOURAGE LITIGANTS FROM FILING BASELESS PETITIONS.

SECTION 1: PROVIDING PETITIONERS THE RIGHT TO SEEK PROVISIONAL REMEDIES UNDER RULE 45. THUS, THIS EMPHASIZES PROHIBITION AGAINST THE FILING OF A PETITION UNDER RULE 65 WHEN APPEAL OR ANY OTHER ADEQUATE REMEDY IN THE COURSE OF LAW IS AVAILABLE OR HAS LAPSED BECAUSE A PETITION FOR CERTIORARI UNDER RULE 65 CANNOT BE SUBSTITUTE FOR AN APPEAL IN RULE 45.

TO ACCOMPANY THESE REFORMS UNDER RULE 65 ARE GUIDELINES THAT REQUIRE PETITIONERS UNDER RULE 65 TO STATE AND CERTIFY UNDER OATH THE FOLLOWING:

1. BRIEF SUMMATION OF THE ALLEGED ACTS CONSTITUTING LACK OF JURISDICTION OR GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION.
2. WHETHER OR NOT THERE IS A PENDING APPEAL UNDER RULES 41, 43 OR 45 AND IF NONE, WHETHER THE PERIOD TO FILE APPEAL HAS LAPSED OR IS STILL AVAILABLE.
3. THE COURT OR TRIBUNAL OF ORIGIN.
4. WHETHER OR NOT A MOTION OF RECONSIDERATION WAS PREVIOUSLY FILED.

IN A STUDY BY THE RULE OF LAW EFFECTIVENESS PROJECT (ROLE) OF THE USAID IN 2006, USING A SAMPLING OF 144 PETITIONS FOR CERTIORARI FILED IN THE SUPREME COURT FROM 1967-2005, IT WAS ASCERTAINED THAT THERE WAS A GESTATION PERIOD AVERAGING 11 YEARS BEFORE THE PETITIONS WERE DISMISSED AND REMANDED BACK TO THE COURT OF ORIGIN OR BEFORE THE WRIT OF CERTIORARI WAS GRANTED. SUCH A GESTATION PERIOD WAS RECKONED FROM THE ISSUANCE OF AN ORDER OR DECISION BY THE LOWER COURT WHICH WAS ASSAILED ON CERTIORARI ALL THE WAY TO THE SUPREME COURT

AN IMPORTANT ELEMENT IN MAINSTREAMING COMPETITIVENESS AS IT RELATES TO JUDICIAL REFORM ARE THE VARIOUS MEASURES BEING UNDERTAKEN TO EXERCISE INTEGRITY AND CLEANSING AMONG THE RANKS IN THE JUDICIARY.

ALONGSIDE JUDICIAL CLEANSING IS THE CONDUCT OF AN INTEGRITY DEVELOPMENT REVIEW (IDR) IN PARTNERSHIP WITH VARIOUS DEVELOPMENT PARTNERS SUCH AS USAID, ABA-ROLE AND TRANSPARENCY INTERNATIONAL. IDR HAS PROVEN TO BE AN EFFECTIVE TOOL IN REDUCING OPPORTUNITIES FOR CORRUPTION. IT SYSTEMATICALLY LOOKS INTO THE INTEGRITY MEASURES EMPLOYED BY THE AGENCY AND ASSESS THE CORRUPTION VULNERABILITY IN ITS FUNCTIONS.

LADIES AND GENTLEMEN, THE IMPORTANT THING IN THESE JUDICIAL REFORMS IS THAT THEY MUST IMPROVE THE DELIVERY OF JUSTICE TO OUR PEOPLE, AND WE THE BUSINESS PEOPLE MUST BE ACTIVELY INVOLVED. WITHIN AND OUTSIDE THE CONFINES OF THE COURTS, OUR PEOPLE RELY ON THESE REFORMS FOR MORE LEGAL PROTECTION. IN A STRATIFIED SOCIETY SUCH AS OURS, THESE WILL LEND SUBSTANCE TO THIS NOBLEST OF DEMOCRATIC IDEALS: WHICH IS THE PROTECTION OF THE UNPROTECTED.

IN THE END, LET MET SAY THAT THE POWER OF THE JUDICIARY RESTS UPON THE FAITH OF THE PEOPLE AND THE INTEGRITY OF THE COURTS. TAKE THIS FAITH AWAY AND THE MORAL INFLUENCE OF THE COURTS IS GONE, AND POPULAR RESPECT IMPAIRED.

THANK YOU AND MABUHAY TAYONG LAHAT.

No comments:

Post a Comment