Pressing need for judicial reforms (II)

Last week, we used three i-words to describe our current legal system — inefficient, ineffective and inadequate — and four c-words to capture its challenges — corruption, congestion/delay, competence and credibility.

It is only right that if we pose problems, we must also proactively propose solutions. As they say, better to light a candle than to simply curse the darkness.

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To address the issues of corruption and competence, the first thing the Supreme Court should do is to mount an aggressive campaign to recruit the best and brightest lawyers and law students. This should be done fully realizing that its work is only as good as the people who do them.

Towards this end, the three branches of government should work hand in hand to improve the compensation packages, equipment and court infrastructure taking into account the work loads of judges as well as the physical and reputational risk that their position entails.

While it is not practicable to fully benchmark the judges’ pay versus the private sector, the Court has the luxury of appealing to a lawyer’s sense of patriotism. I remember in College there was a poster ad recruiting potential Jesuits with the tagline question “Why sell soap, build people.” In the same spirit, perhaps the Court can entice law graduates with a line like “Why just practice law, dispense justice.”

The issues relating to congestion of court dockets and delay have been plaguing our legal system since time immemorial and require radical, out of the box solutions.

Why not consider outsourcing the management of dockets (as distinguished from judicial writing) to the private sector so that the latest technology can be used to track the status of cases. This way, judicial score cards can be developed to effectively monitor court performance. Similarly, why should court administration be assigned to lawyers when other professionals could do a better job? Now if a lawyer had an MBA degree as well, that would be a different story.

The inter-related problems of congestion and delay stem from the inflow and outflow of cases. The simple solution is to reduce the inflow and increase the outflow. How do I propose to do this.

The Supreme Court should educate the citizenry that going to court is not the only, and more often than not, the more cost and time efficient way of settling a dispute. Hence, the use of Alternative Dispute Resolution techniques such as Court Annexed Mediation and Judicial Dispute Resolution should continue to be encouraged. This can significantly decrease the cases that the Courts have to deal with.

On the other hand, to increase the outflow, the Supreme Court should incentivize and properly recognize performers both in terms of the quantity and quality of decisions penned. In the same spirit, it should disincentivize and penalize the laggards who are not doing their job.

The Rules of Court should be amended so that the filing of frivolous cases and interlocutory appeals are minimized. There should be a limit to the motions to postpone and seek an extension of time to file a pleading. Judges should also be encouraged to write shorter decisions and use language that the non-lawyer parties can understand.

A major culprit for delay is Article VIII, Sec 15 (1). This section counts the period within which to decide cases from the time a case has been submitted for decision. But, it can take 5, 15, even 30 years before a case is deemed submitted. So in reality, the Constitution has not arrested but has in fact countenanced delay. The quick fix is to amend this section so that we count the period not from the date of submission but from the date of filing.

Finally, to maintain and enhance its credibility, the Supreme Court should lead by example. It should wipe out its own backlog. It should be more transparent and accountable in its use of public funds. It’s about time the Gods of Faura should realize they are more human and less divine. Every year, it should let the public know what its goals, objectives and key result areas are. Thereafter, it should perhaps hold its own State of the Judiciary address to report on its performance.

In short, The Supreme Court should exhibit not just political but judicial will in creating a justice system that we can all be proud of.

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Fraternicide: From the best and the brightest, we move back to the worst and the darkest as fraternity initiation rites claimed another victim in San Beda Law student Marc Andrei Marcos. He joins a growing roster — beginning with Lenny Villa in 1991 to Marvin Reglos just a few months ago, who continue to have died in vain. One wonders (if and) when this senseless carnage will (ever) stop?

If suicide refers to the taking of one’s life, parricide — the killing of a parent and infanticide — the killing of one’s child, then perhaps we should coin a new term — fraternicide which refers to the condonation by officers and members of a fraternity for deaths or injuries suffered by their neophyte “brothers” during initiation rites. The current practice of certain law schools is to require an incoming freshman to sign an undertaking that he will not join a fraternity. Unfortunately, this promise has been honored more in breach. The practice has proven inutile. Students continue to join fraternities and law schools have refused (or are powerless?) to clamp down.

Perhaps schools should consider a different approach. Instead of prohibiting fraternities, they should openly recognize them. So frats need not conduct activities in the sly or under cover of darkness. But there should be better regulation and monitoring of activities and greater disclosure on their officers and members. And accountability and culpability for the consequences of their actions as provided by law should be strictly and swiftly implemented. We, this will not be another example of how our justice system will fail to serve its end.

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“The greater danger is not that our hopes are too high and we fail to reach them, it’s that they are too low and we do.” – Michaelangelo

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