An appeal to judicial reformers: start with the children

Acting Chief Justice Antionia Carpio delivered an address in June to the Integrated Bar of the Philippines[1]. His sentiment was commendable. In a wide-ranging speech that asked the judiciary to Œlearn the lessons from the recent impeachment of the former Chief Justice Renato C. Corona, His Honor Carpio sought to urge the judiciary to welcome modernization. He highlighted five key areas for improvement: Œclogged dockets (that is, congestion of cases), inadequate infrastructure and facilities, a need for more competitive compensation for judges, over-centralization of court administration, and the need to provide better training and career paths for judges.

In each category, His Honor identified practical and realistic measures that would undoubtedly increase efficiency and transparency in Philippine courts. From the perspective of those who work with Children in Conflict with the Law (CICL) and child victims, however, His Honor failed to prioritize the needs of those who suffer most in consequence of maladministration. As to the fact that the Philippine Judiciary needs to modernize, there is no question; but some consequences of its lethargy are graver than others. In (an uninvited) answer to the Acting Chief Justice, we have an alternative message for the judiciary.

It is, we would suggest, not difficult to prioritize. Though His Honor, and indeed academics and commentators,[2] focus equally on civil and criminal matters in their reforming zeal, the difference is this: those awaiting civil justice do not live in inescapable horror and daily violation of their most basic human rights while their cases are pending. As the Judiciary are well aware[3], in 2010 94% of inmates in Philippine jails had yet to be sentenced.[4] Detention without trial is the most fundamental violation of human rights; where trial is so delayed as to be virtually indefinite, that detention is equally unjust.

The majority of Philippine prisons are places of unimaginable grief: full to bursting four-times-over[5], without basic food, sanitation, or ventilation. With over 65,000 inmates, however, it must be conceded that the burden of their relief is too great for immediate address. But such pre-conviction detention conditions apply equally to Children in Conflict with the Law. It seems obvious that the judiciary must start its reform where the need is greatest, and work expeditiously to deal with the multitude of ongoing cases of children who suffer detention without conviction.

We would suggest that the priority areas for the judiciary urgent attention that would ease this problem are: reaffirming and promulgating existing constitutional and legal requirements as to the conduct of trials, disciplining wayward judges, and sanctioning bad lawyers.

Reaffirming and promulgating existing constitutional and legal requirements

Under Article III, section 14 of the Philippine Constitution the accused in a criminal case has the right to a speedy trial. Under Republic Act No. 8493, known as the speedy Trial Act of 1998², the rules are as follows: the judge shall set the case for continuous trial or on a weekly or short term calendar and in no case shall the overall length of the trial exceed one hundred and eighty days.

Ricardo Madrino[6] is a child of the slums now in the care of our Foundation who was arrested for frustrated murder after gang violence in his over-crowded Manila neighborhood left a teenager bleeding to death. Ricardo, aged 17, claimed that he had had nothing to do with it. He was arraigned on March 2nd 2009. The judge informed Ricardo that, should be plead or be found guilty, he would receive a sentence of two years. Ricardo refused, maintaining his innocence, and the same judge went on to preside over the trial for over three years. The prosecution began examining its witnesses on April 20th 2009. Subsequent hearings were set monthly, and almost one in three was canceled due to absence of a lawyer, the judge, or a prosecution witness. At the time of writing, July 12th, 2012, the prosecution have just finished examining their own witnesses and the defense has opened its case. A realistic expectation is that there will be a further two years worth of hearings. Ricardo is almost 21, and continues to maintain his innocence. This case is by no means anomalous. Frequently, children serve twice the maximum sentence for the crimes they are accused of while the case is pending, particularly in accusations of Theft or Trespass (often leveled at street children). There is, of course, no compensation available. They are more often than not advised to plead guilty or reach a settlement with their accuser because that is usually the only option that affords them their liberty.

The judiciary practice of setting Œpiece-meal trials is uniform in our experience, despite the glaring fact that it is unconstitutional. Each scheduled hearing lasts for roughly thirty minutes; witness examination is more often than not interrupted and cross examination is ineffective as a result. Aside from the length of the trial, this has very obvious repercussions for the quality of justice that a CICL can expect: judges, lawyers and witnesses simply cannot recall or manage the required level of detail over, for instance, a three year period on the basis of monthly hearings. Where a continuous hearing might take ten days (60 hours), the same amount of trial material on the piece-meal model will last five years.

A three-year long trial and detention without conviction is traumatic in the life of any man: for a teenage boy, it is irreversibly damaging. If the judiciary are unable to adhere to the constitutional and statutory requirement to provide a speedy trial to all those accused of crime, we would ask that they make an extraneous, concerted effort to do so when the accused is a child. In recognition of the very grave human impact of Œpiece-meal¹ trials, we would suggest that, first, the existing laws be reaffirmed by the judiciary and that the Chief Justice and Supreme Court see that they are promulgated, and, second, that in so doing CICL criminal cases are given priority in the calendar over civil cases in order to clear the backlog.

Removing the Impunity of Wayward Judges: Carrot and Stick

The Acting Chief Justice rightly identified a better selection, education, and remuneration of judges as essential to the bettering of the judiciary. Identifying a shocking vacancy rate of 25.6% among first and second level judges, he writes: there is a saying that to maintain a good judiciary, you must choose your judges well, but above all, you must pay them well. Though we are in agreement, and mindful of his Honor’s audience, would add that one must also discipline them well.

The Supreme Court have oversight of lower judges and courts. On June 13, 2012, the Court disciplined a judge who had, almost without reason, delayed in the giving of a final order in a civil case for three years. The facts were plain, and the Supreme Court duly fined the judge in question P1,000 (roughly $20). This constituted something of a reduction from the maximum fine of P20,000, because this Complaint was the judges first infraction[7].

The very suggestion that any infraction might be minor, or mitigated, is abhorrent. The children we support in their legal cases are often subject to months of pre-conviction detention as a direct result of judicial absence, which appears to be unchecked and widely tolerated. The judiciary are necessarily bastions of morality and integrity, and, moreover, peerless. They must hold themselves and one another to the highest standard. The Judicial Complaints route must be accessible, cheap, and effective. The punishment must be commensurate to the offense of disregard for public duty, and never nominal. We would therefore suggest that the Œcarrot¹ of improved remuneration be tempered with the Œstick of fair and effective discipline.

Sanction bad lawyers

There is little room for argument here: under the Speedy Trial Act of 1998 (RA 8493) section 14 the court has the power to sanction lawyers who unnecessarily delay trials. In our experience, these are seldom used. Parties, particularly the uneducated, do not understand the reasons, or rather, the motivation, for delay, and cannot be expected to guard against it themselves. To the layman the judiciary failure to hold the bar to account appears a self-serving and corrupt conspiracy.

Judges must be more circumspect in this regard, and should regularly impose the sanctions that are already within their power.

Conclusion

The efforts of the Judiciary to move the Philippine justice system forward are commendable. We would not seek to detract from the undoubted value of the cause or challenge their sincerity in the matter. But, we do not doubt that the task is a very heavy one indeed and that change will not be instantaneous. We ask that, as stakeholders recognize the enormity of the task, they also recognize the urgency in the particular case of Children in Conflict with the Law. As we seek to restore the dignity of detainees and the integrity of the system, we ask that they start here.

Four steps can be undertaken relatively easily and cost-effectively. They are, in summary:

1. Ensure the implementation of RA 8493 at least in CICL cases;

2. Achieve this by setting CICL trials to be continual and with priority over civil cases on the court calendar;

3. Improve the Judicial Complaints system and increase the amount and incidence of penalties for judicial infractions;

4. Encourage the judiciary to more regularly sanction lawyers for their part in trial delay.

A backlog of criminal cases and impunity for those who engender it is a tragedy for those who pay with years of their liberty; for they who have had so few, the price is higher still. We welcome the reforming zeal of Acting Chief Justice, His Honor Antonia Carpio, and ask for his help in this.

Sincerely and with hope,

 

 

Marlene Rachel Cayoun

Legal Intern, Preda Foundation Inc.