Thursday, November 25, 2010

Justice & the Rule of Law

No contemporary society can achieve and maintain prosperity without the rule of law, for citizens, families, workers, and local and foreign investors want sufficient safety and predictability for their lives, liberty, and property. Also, “rule of law and access to justice go hand in hand as necessary conditions for a working democracy” (Hague Institute for International Law, 2007).

Inequality of access to justice endangers a contemporary democracy and the rule of law, as it breeds resentment, anti-social behaviour, criminality, violence, and rebellion among social sectors and classes that consider themselves systematically disadvantaged in their pursuit of fairness and right relationships in society.

Among the many challenges to the rule of law and access to justice in the Philippines, there are three that can be effectively addressed by the 2nd Aquino administration. These are: (1) the ordinate delay in the administration of justice, (2) the difficulty of poor litigants to secure the services of good lawyers and to appreciate lawcourt proceedings, and (3) the citizenry’s ineffective exercise of their right to information on official actions and decisions of government.

Challenge: There is inordinate delay in the administration of justice owing to several reasons among which are: (1) the insufficient number of prosecutors and judges which results in case congestion and inefficiency among them, (2) inadequate monitoring and management of cases, (3) insufficient inter-agency co-ordination.

According to the 2008 Annual Report of the Supreme Court, there were 519 vacancies in the Judiciary which constituted nearly 20% of existing court salas.
The prosecutor-to-case ratio is 1:228 in 2007. The average caseload is still too heavy, and the prosecution service is undermanned. Despite recent increases in allowances, many prosecutors are leaving to become either private practitioners or judges. It is estimated that more than 500 additional prosecutors are needed for current caseload to be managed efficiently.
Recommendations to the current administration:
1. Intensify the recruitment of prosecutors to address the disparity in the prosecutor-case ratio, and computerize fully the prosecution service for efficient monitoring by the Department of Justice (DOJ) of all cases for preliminary investigation, evaluation, and petitions for review.
2. Interconnect all the databases of the PNP, NBI, National Prosecution Service, BJMP and BuCor, PDEA, and the Supreme Court Administrator into one Integrated Criminal Justice Information System. This will enable the heads of the agencies in the justice system to retrieve, store, and manage information quickly and efficiently.
3. Operationalize the National Council on the Administration of Justice (NCAJ), created through a MOA among the DOJ, the Department of Interior and Local Government, the Supreme Court, and the Integrated Bar of the Philippines, with the Justice Secretary as Chair. The NCAJ should meet regularly (e.g. twice a month) to discuss and agree on specific ways and means to expedite the resolution of big criminal and civil cases without violating due process. Big or priority cases shall be massacres, extra-judicial killings, kidnap-for-ransom, illegal drug trade, plunder, syndicated smuggling, large tax evasion, and breaches of contract involving large local or foreign investments.
4. Support and complete the Supreme Court’s ongoing Action Program for Judicial Reforms (APJR) on case decongestion, judicial systems and procedures improvement, human resource development, and institutional development.

Challenge: Litigants among the poor and marginalized sectors have difficulty in securing the services of good lawyers owing to the financial costs, and they find court proceedings inaccessible and alienating owing to the (English) language used ("Philippine Democracy Assessment," 2010).
1. Increase substantially the budget of the Public Attorney’s Office (PAO) in order to upgrade the skills of, and increase allowances and benefits for, public attorneys.
2. Introduce a Commission on Higher Education (CHED) requirement for 3rd or 4th year law students to do an equivalent of six (6) months of free legal aid work with the PAO or with free legal aid groups accredited with the PAO and the IBP before they can graduate. In this way, future lawyers also gain an insight into the reality and struggles of poor litigants and will be more inclined to include free legal aid work in their careers.
3. Direct the CHED and the Komisyon ng Wikang Filipino to produce eight (8) manuals of the Rules of Court, and standard legal terms and expressions in many court proceedings, in the 8 major regional languages in order: (a) to enable judges, lawyers, and students of law to learn to conduct court trials in a regional language for the benefit of poor litigants and (b) to contribute to the intellectual development of the regional languages.
4. The CHED has to require law schools to introduce an elective course on the conduct of court trials using a regional language and the use of the concomitant manual on the rules of court in a regional language.
5. The Justice Secretary, as an ex-officio member of the Judicial and Bar Council, should recommend the capability to conduct court trials in a regional language as an additional requirement for applicants to half of the vacant court salas in every region starting 2013.
6. Seek the co-operation of the Supreme Court, and give it substantial budget support, so that, by 2016, at least 200 lawcourts scattered in the 17 regions of the country, or 10% of all courts, are fully capable to conduct court proceedings in a regional language for the benefit of poor litigants.

Challenge: Ordinary citizens and their organizations cannot effectively exercise their right to information in addressing the problem of graft and corruption owing to the absence of rules and procedures on information access.
1. The President has to issue an Executive Order that enables ordinary citizens and their organizations to exercise effectively their right to information on official acts, transactions, and decisions of agencies of the Executive Department. The EO shall formulate a simple, uniform, and speedy procedure for citizens to gain access to information from any agency of the Executive Department, or shall require within a fixed deadline every agency to formulate and disseminate widely a simple and speedy procedure for information access. The EO shall specify the administrative sanctions for violations of the provisions of the EO.
2. Certify as a priority administration bill a Freedom of Information Act that enables ordinary citizens and their organizations to exercise effectively their right to information on official acts, transactions, and decisions of all agencies in all branches of the government. This law will provide citizens a powerful tool to contribute to the government’s anti-corruption effort.
3. Certify as a priority administration bill a Whistleblower Protection Act. Engender a “positive whistleblowing culture” wherein people will not be afraid to disclose information on official malfeasance. By exposing graft and corruption in government, whistleblowers promote the public good and thus should be protected and rewarded by the State. Government should adopt as its official policy (perhaps initially thru the issuance of an Executive Order and later through the passage of a Whistleblower Protection Law) the protection of whistleblowers and the establishment of a system of monetary rewards for them.

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