Transforming the Judiciary

Address delivered by Retired Chief Justice Artemio V. Panganiban before a meeting of the US-Asean Business Council held on March 30, 2011 at the SGV Lounge, SGV Building 6760 Ayala Avenue, Makati City.

At the outset, I say welcome to the US-Asean Business Council, especially its President Alexander C. Feldman, for flying all the way from Washington DC to assess the business climate in our country under our new President Benigno Aquino III. I thank the venerable founder of the SGV Group /Ernest and Young, my good friend Washington Sycip, current SGV Chairman Cirilo P. Noel and Asian Institute of Management President Edilberto De Jesus for inviting me to address your forum this afternoon. This formidable trio conspired to convince me to rise from my retirement and to speak on the topic “How the Judicial System Can Be Reformed.”

Three Main Complaints Against the Judiciary

Let me preface my short remarks by relating three incidents in the fictional life of Judge Cerapio I. Delayo, who for easy recollection, we will just address by his initials, CID.

One early morning while our judge was having breakfast at home, a lawyer with a multi-billion case visited him. “Why are you here? Don’t you know it is unethical to talk with a judge about a pending case outside the courtroom and in the absence of the opposing lawyers?” Judge CID intoned.

“No, Your Honor, I did not come to speak with you about my case. But if you will look outside your window, you will see a sparkling new Mercedes Benz S560 parked on your driveway,” the lawyer explained. “That is the worse; you have come to bribe me!” the magistrate exclaimed. “No again, your Honor. I am not giving you the car. I am selling it to you,” was the firm reply.

“And how much is the car?” His Honor asked. “Fifty dollars,” the smart attorney matter-of-factly answered. “In that case,” Judge CID solemnly said, “I will buy two!”

Later that morning, the judge conducted a hearing. A witness was asked by his counsel: “When you reached the place where the killing took place, what did you saw?” The judge was aghast at the wrong grammar, so he interrupted the lawyer, “Mr. Counsel, please be careful in asking questions. Consult first your three colleges sitting by your side before you examine the witness.” The lawyer also detected the error of the judge and wanted to correct him respectfully. So he meekly replied, “Your Honor, you must be referring to my three colleagues, not to my school or my college.”

Judge CID was even more irritated. He banged the gavel and blurted, “Colleagues, singular; colleges, plural!”

After hearing the murder case, Judge CID moved on to a civil matter involving two women who claimed to be the mother of the same infant boy. When the father of a child cannot be determined, that is normal. But when two women claim to be the mother of the same infant, that is unusual. It is reminiscent of the problem brought to the great, wise King Solomon.

When the case was called for hearing, the judge asked the two claimants to stand up. However, nobody responded. In his irritation, the judge banged his gavel and boomed: “I am ordering the parties in this case to stand up and approach the bench.”

Slowly, an old man, about 80 years old, with white hair, limped towards the bench. The judge was more irritated. “Not you, Grandpa. I am calling the two women who are the parties in this case.”

But the old man did not mind the judge and continued walking. When he was near enough, he politely explained, “Your Honor, the two women are now dead. But I am also a party to this case. I was the baby they were fighting over!”

My friends, these three apocryphal incidents in the life of fictitious Judge CID may be funny, but they illustrate the three most common complaints against our judiciary: corruption, incompetence and delay – or CID – in the delivery of justice.

Corruption takes many forms – not just direct bribery but the many varieties of witchcraft, indecent proposals, and bedeviling temptations that besieged our underpaid and overworked judges.

Incompetence ranges from poor command of language to utter lack of knowledge of elementary law. Delay, on the other hand, is the result not only of laziness and incompetence, but also of the abuse and the misuse of our rules of procedure by litigants and their lawyers who hope to win their cases by confusing, outwitting or bankrupting their opponents.

Three Proposals to Solve the Complaints

To address these problems, three proposals have been put forward: first, overhaul the constitutional system; second, pass new laws to increase judicial compensation and penalize corrupt practices; and third, strengthen the ethical backbone of our judges, and for that matter, of all our officials.

On the first, many lawmakers propose a change of our presidential system to the parliamentary system, arguing that the parliamentary system fits the Asian mind-set better, adding that in our region of the world, only the Philippines has a presidential system. Charter change proponents argue that the problems of our country are rooted in the defects of our 1987 Constitution. They say that unless these defects are addressed, reforms in our country are not possible.

With due respect, I disagree. I believe that constitutional change is not the answer. The presidential system was already our form of government since we became independent in 1946. It has worked since then until President Ferdinand Marcos discarded it and established a dictatorship in 1972. But we reverted back to it in 1986 when President Corazon Aquino took power after our peaceful People Power revolution. We borrowed much of that system from the United States.

In fact, I dare say that, based on lessons learned from the Marcos years, we even improved on it. So we strengthened the independence of the judiciary, created constitutionally independent offices to conduct our elections, established an independent prosecutor – the Ombudsman – to chase the corrupt and the greedy, and established two other constitutionally independent offices to audit the government and to protect human rights.

The US Constitution does not provide for an independent Commission on Election, yet elections in America are generally peaceful and orderly. Neither does it provide for an independent Ombudsman or Commission on Audit, yet America does not stink with graft and is able to prosecute and convict corrupt officials. The US Charter has not granted the American judiciary the extraordinary duty to void gravely abusive acts, yet the US Supreme Court has satisfactorily fulfilled its judicial duties over the last 220 years.
What I am saying is that Constitutions are not perfect. But they are not necessarily the stumbling bloc to the triumph of justice and the march to economic prosperity. Constitutions are not made so people would adjust to them. Rather, it is the other way around. Constitutions reflect the history, culture, habits and mores of the people.

I also believe the second proposal, which is to pass new laws to increase judicial salaries and combat corruption, is also not the priority. During my incumbency in the Supreme Court, the legislature – at our request – already doubled judicial compensations. Now, our judges have one of the highest take home pays among all government employees. So too, we have enough laws to punish crimes. Thus, we have a time-tested Penal Code, a strict Anti-Graft Law, a unique Ethical Standard Law for public servants, and an Anti-Plunder Law, which even the United States does not have.

The Right Solution to the Complaints

If overhauling the Charter and the enactment of new laws are the wrong solutions to excessive corruption and grinding poverty, what is the right one? It is changing the officials who subvert our institutions and make a mockery of our laws. More accurately, what we need is not just a change of leaders, but a change in our leaders, in the men and women who run our institutions and systems. A change from the inside out, a change of hearts, a change of values, a change in ethical backbone.

What we need are courageous, competent, ethical and patriotic leaders who will make our institutions and systems work, who will enforce our existing laws, who will fulfill our grand visions and programs, who will put our nation’s interest above their own.

We need more patriotism, less formalism; more dignity, less legalism; more substance, less rhetoric; more action, less talk; more dedication to duty, less posturing; more economics, less politics; more truth, less duplicity; more ethics, less image building; more integrity, less bigotry.

Only when we reform ourselves, only when we internalize values and principles, can we talk about overhauling our Constitution, changing our institutions and adding more laws. Charter change is meaningless if the same selfish, arrogant and arrant officials occupy our institutions and systems, and treat cavalierly our penal laws.

Modesty aside, during my incumbency in the Supreme Court, we put in place a full-scale program to reform our judicial machinery. It was called the Action Program for Judicial Reform or APJR. The program included the establishment and maintenance of the Philippine Judicial Academy, precisely to provide continuing legal education for judges and address the problem of incompetence. As Chief Justice, I was able to obtain from the Japanese government a grant of P300 million, which was used to construct the Academy’s buildings in Tagaytay City some 60 kilometers from Manila.

We also instituted a program of Mandatory Continuing Legal Education Program (MCLE) under which all lawyers are required to undergo a retraining every three years to renew their licenses to practice. To address the problem of delay, we filled up the vacant judgeships in the country and monitored the flow of cases by a computerization program supported by the World Bank, the US AID, the Canadian International Development Agency and the European Union.

As I said earlier, we were able to convince the legislature to increase judicial compensation to discourage corruption and to recruit the best and the brightest into the judiciary. With the assistance of the World Bank and the Asian Development Bank, we improved judicial facilities and tools via the construction and computerization of model courthouses, the creation of an electronic library, and the publication of bench books for judges. In fact, I am proud to tell you that our APJR was cited by the World Bank as its official model in assisting other judiciaries in the world.

Unfortunately, after I retired in 2006, the Court gave little priority to the Action Program for Judicial Reform. The program’s many initiatives were discontinued. Sadly, the APJR was taken off the World Bank’s website as a model judicial reform program. Many of the national and international agencies, which helped us, have not renewed their assistance program.

One final note. During my incumbency in the Supreme Court, I espoused a clear judicial philosophy of “Liberty and Prosperity.” This program provided a beacon by which the public could predict the flow of jurisprudence with some certainty. My philosophy was communicated in various ways. I wrote a book, with the same title, a copy of which I will give your president, Mr. Feldman, after I finish this little talk.

On October 18 -20, 2006 – two months before my retirement – our Supreme Court sponsored a “Global Forum on Liberty and Prosperity” here in Makati City. More than three hundred chief justices, Supreme Court members, lower court judges and lawyers from all over the world attended that Forum. Chief Justice Beverley McLacklin of Canada was so appreciative of the Forum that she stayed in our country an extra four days and suggested that I add the phrase “Under the Rule of Law” in the theme of Liberty and Prosperity.

In the short time allotted to me, I cannot give you an exhaustive discussion of this legal philosophy. Suffice it to say, that under this philosophy of “Liberty and Prosperity Under the Rule of Law,” the judiciary helps advance the public weal by adopting two standards of judicial review:

1. In litigations involving civil liberties, the scales of justice should weigh heavily against the government and in favor of the people – particularly the poor and the marginalized. Laws and actions that restrict fundamental rights, like the freedom of expression, come to court with a heavy presumption against their validity. This policy is commonly known as “heightened” or “strict” scrutiny.

2. In conflicts affecting prosperity, development and the economy, deference must be accorded to the political branches of government, namely the President and Congress, for they know best what is good for the well being of our citizenry. This approach is more widely known as the “deferential” or “liberal” interpretation of laws and executive actions.

To close, may I say that the Philippines should be experiencing a renaissance in the near future, not only in the judiciary but also in the entire country. Based on what I have seen and heard and on the actions so far taken, I feel confident that our new President’s program to rid the country of corruption and poverty will bring us to new heights. As our favorite investors, coming from our favorite ally and benefactor – the United States of America – you, I hope, will find renewed trust in our economy and will be the first to place your investments in the new Philippines. Join the battle cry of President Noynoy Aquino, Kung Walang Corrupt, Walang Mahirap.” Let us all join the war against corruption and poverty. I thank you.

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