Ju­di­cial de­lays: cost and causes

Filipinos must learn to dis­tin­guish be­tween be­ing merely le­gal­is­tic and ac­tu­ally re­spect­ing the rule of law.

Business World - - OPIN­ION - JEMY GAT­DULA

The con­sti­tu­tional right to due process has al­ways been foun­da­tional for the Philip­pines. Yet an un­for­tu­nately re­signedly ac­cepted as­pect thereof is the de­lay with which jus­tice is dis­patched. Surely, “jus­tice de­layed is jus­tice de­nied” but other con­se­quences — par­tic­u­larly on the econ­omy — also pre­vail.

One re­cent study ( Mel­carne and Ramello, Univer­sita` del Piemonte Ori­en­tale, April 2017) of 175 na­tional ju­di­cial sys­tems found that “ju­di­cial de­lay turns out to be a rel­e­vant and sig­nif­i­cant de­ter­mi­nant of growth, as every ex­tra year needed to dis­pose (on av­er­age) pri­vate lit­i­ga­tion low­ers growth rate by over 1%.”

Per­haps un­sur­pris­ing con­sid­er­ing, as the study con­tends, that the “ju­di­ciary is the main in­stru­ment for eco­nomic ac­tors to solve their dis­putes.” Also, a “faster ju­di­ciary helps mak­ing the pro­tec­tion of prop­erty rights more cred­i­ble.”

This is but­tressed by a World Eco­nomic Fo­rum brief ( Why rule of law is the bedrock of sus­tain­able de­vel­op­ment, Septem­ber 2015, An­drew Oza­nian): “The rea­son is be­cause the rule of law can be seen as a linch­pin right, some­thing on which other rights de­pend. As ac­cess to jus­tice im­proves, a lot of other things we value im­prove as well. The rule of law is a cor­ner­stone for a bet­ter func­tion­ing econ­omy.”

The im­pact of ju­di­cial speed is not only felt at the macro level but even on the ground, par­tic­u­larly by in­di­vid­ual busi­ness or­ga­ni­za­tions. In “Does the Qual­ity of the Ju­di­ciary Shape Eco­nomic Ac­tiv­ity? Ev­i­dence from In­dia” (Matthieu Chemin Depart­ment of Eco­nomics, LSE, Oc­to­ber 11, 2004), “a slow ju­di­ciary im­plies more breaches of con­tract, dis­cour­ages firms from un­der­tak­ing re­la­tion­ship-spe­cific in­vest­ments, im­pedes the ac­cess of firms to for­mal fi­nan­cial in­sti­tu­tions, and fa­vors in­ef­fi­cient dy­nas­ties. The

nega­tive im­pli­ca­tions of hav­ing an in­ef­fi­cient ju­di­ciary are large — mov­ing a firm from the high­est to the low­est pen­dency state would re­sult in a 10% im­prove­ment in firm per­for­mance.”

Per­haps it is no co­in­ci­dence then that the Philip­pine fall in the World Jus­tice Project’s 20172018 rule of law re­port mir­rors the Philip­pine down­grad­ing in the World Com­pet­i­tive­ness Year­book rank­ings.

For the rule of law, the Philip­pines plunged 18 slots from 2016, to the cur­rent 88th out of 113 coun­tries and 13th out of 15 coun­tries in the East Asia & Pa­cific re­gion. Sig­nif­i­cant fac­tors were low scores in “fun­da­men­tal rights” and “crim­i­nal jus­tice.” In com­pet­i­tive­ness, the Philip­pines fell 9 slots (50th out of 63 coun­tries), the sharpest de­cline for the coun­try in the last ten years. A low point is “ef­fi­ciency of le­gal frame­work in set­tling dis­putes.”

In his su­perb mas­teral the­sis “Ju­di­cial Per­for­mance in Case De­lib­er­a­tions: The Cases of Two Lower Level Trial Courts in Que­zon City and Pasay City”, Mark Ja­son Aludino (an MA can­di­date in Po­lit­i­cal Econ­omy with Spe­cial­iza­tion in In­ter­na­tional Re­la­tions and De­vel­op­ment at the Univer­sity of Asia & the Pa­cific School of Law and Gov­er­nance) gives a fresh, pioneer­ing, and ul­ti­mately prac­ti­ca­ble in­sights into the root causes of ju­di­cial de­lays in the Philip­pines.

The the­sis find­ings are too nu­mer­ous to be tack­led here but fo­cus for now is made on its de­ter­mi­na­tions re­gard­ing Philip­pine cul­tural or so­ci­etal as­pects and ju­di­cial speed: “Court cul­ture is a vi­tal fac­tor in in­flu­enc­ing the pace of lit­i­ga­tion and the ef­fi­ciency of the court­room staff. In terms of court­room lead­er­ship, the judge main­tains the most piv­otal role and in the at­tempt to speed up pro­ceed­ings, the judge con­trols a ma­jor part of it, with how they deal with the trial flow, re­quests from par­ties, and the con­duct of their staff.”

The trick, how­ever, is that the “judge’s en­vi­sioned man­age­ment style has to be in-sync and sup­ported by the branch clerk, es­pe­cially since they are con­sid­ered as the ‘court man­agers.’” But this can only be pos­si­ble if the “judge is able to ap­point his or her own staff mem­bers”, for which they are cur­rently dis­al­lowed from do­ing.

An­other, as Mr. Aludino (who’ll be pro­ceed­ing for fur­ther stud­ies on in­ter­na­tional re­la­tions at the Maxwell School of Syra­cuse Univer­sity) points out, is “the lit­i­gants’ be­hav­ior”, which is “widely con­sid­ered as the big­gest de­ter­mi­nant of court de­lay. This is also per­haps the most chal­leng­ing to con­trol”.

Ad­mit­tedly, lit­i­gants’ be­hav­ior may be con­strained by eco­nomic cir­cum­stances but then out­right dila­tory tac­tics (e.g., ab­sen­teeism, lack of pre­pared­ness, reschedul­ing — par­tic­u­larly with re­gard to the con­duct of cross- ex­am­i­na­tions, and abuse of the reg­is­tered mail sys­tem) clearly need pro­scrip­tion.

It is be­cause of such, more than any other fac­tor, that “de­lays be­come com­mon in courts and the im­pact has been ex­tremely detri­men­tal to what­ever ef­forts the court puts in place, as well as neg­a­tively im­pact­ing the ef­forts of the judge and other court ac­tors to has­ten lit­i­ga­tion.”

Clearly, un­like in the past ad­min­is­tra­tion, where the words “rule of law” was em­ployed merely as a po­lit­i­cal trope, peo­ple are now rec­og­niz­ing that the rule of law’s proper ap­pli­ca­tion has real world ben­e­fi­cial im­pli­ca­tions.

At the very least, the above­cited stud­ies show that Filipinos must learn to dis­tin­guish be­tween be­ing merely le­gal­is­tic and ac­tu­ally re­spect­ing the rule of law.

JEMY GAT­DULA is a Se­nior Fel­low of the Philip­pine Coun­cil for For­eign Re­la­tions and a Philip­pine Ju­di­cial Academy law lec­turer for con­sti­tu­tional phi­los­o­phy and ju­rispru­dence. je­my­gat­dula@ya­hoo.com www.je­my­gat­dula. blogspot.com face­book.com/jemy.gat­dula Twit­ter @je­my­gat­dula

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