Businessworld - OUR JUDICIAL system is predominantly
adversarial. This is why the resolution of disputes through litigation
is inevitably a long, tedious, painstaking and expensive process. Even
then, while various and relatively less expensive alternative modes of
dispute resolution (ADR) are readily available to them, the aggrieved
appear to prefer to litigate and "have their day in court."
American lawyer and ADR professional Charles B. Parselle explains this seeming "allure" of litigation, thus:
"A court trial fulfils, or is thought to be capable of fulfilling, five
needs that are usually absent in a mediated settlement: a sense of
vindication, a sense of empowerment, a desire to be heard publicly, a
desire for the particular dispute to receive the stamp of legitimacy,
and the desire not only that justice be done but that it "be manifestly
seen to be done."
Aggrieved litigants seek vindication, and further, they seek public
vindication. That is to say they want their "day in court," no matter
what it costs. Perhaps they will not really achieve vindication, but
there is always the chance that they might, and they see a trial as the
best chance they have of achieving it. People do not necessarily
approach their conflicts in purely rational terms; they have strong
emotional interests to satisfy, and a deep human desire to be proven
right. They want to win, and they want someone else to lose. They want
forever after to be able to tell themselves, their family and friends,
that they won their case. They want bragging rights. People will pay a
high price for this, and will bear not only the cost of the litigation,
but also the risk of losing, in order to attempt it.
People want to feel empowered; they want to feel that they can create an
impact. When they walk into court for trial beside their hired
champion, the attorney, and sit in the world of the courtroom looking up
at the judge, they feel that the full authority of the state, that
embodies the society in which they live, has interested itself in their
particular conflict. And, in fact, it has, even though the particular
judge may not quite see it that way.
In the last few years, we have seen judicial reforms aimed at speeding
up the disposition of litigated cases. One recent measure promulgated by
the Supreme Court is the Judicial Affidavit Rule which took effect
January of this year. This new procedural rule mandates the use of
judicial affidavits, instead of the direct oral testimony of witnesses.
It aims to expedite the process of presenting evidence, which should
ultimately result in the earlier resolution of pending cases, by:
1. Doing away with the often lengthy and time-consuming direct
examination of witnesses. The "judicial affidavit" is in Question and
Answer format and records in written form the testimony on direct
examination that the witness has given under oath. The affidavit must be
submitted at least five days prior to a preliminary conference in a
case or the hearing of motions. Object and documentary evidence should
also be marked and attached to the affidavits at the time of their
filing and must be authenticated by a declaration therein that they are
faithful copies. The failure to submit the affidavits on time results in
a waiver although the court may give a one-time reprieve to the party
at fault if he gives a valid reason for the omission and pays a fine
ranging from ₱1,000 to ₱5,000. As soon as the purpose of a witness’s
testimony is declared in open court and objections to the testimony’s
admissibility are resolved, the witness is immediately readied for
cross-examination. The party who presented the witness may conduct a
re-direct examination, if necessary.
2. Having the rule apply to all actions, proceedings and incidents
requiring the reception of evidence in cases cognizable by the first and
second level courts including the Shari’a circuit and district courts,
the Sandiganbayan, the Court of Tax Appeals, the Court of Appeals, the
Shari’a Appellate Courts, the investigating officers and bodies
authorized by the Supreme Court to receive evidence including the
Integrated Bar of the Philippines and the special courts and
quasi-judicial bodies whose rules of procedure are subject to
disapproval by the Supreme Court.
3. Requiring the oral offer of documentary exhibits immediately upon the
termination of the testimony of a party’s last witness. After each
piece of exhibit is offered, the adverse party shall state the legal
ground for his objection, if any, to its admission, and the court shall
immediately make its ruling respecting that exhibit. Since the
documentary or object exhibits form part of the judicial affidavits that
describe and authenticate them, it is sufficient that such exhibits are
simply cited by their markings during the offers, the objections, and
the rulings, dispensing with the description of each exhibit.
The rule also applies to criminal actions: (1) Where the maximum of the
imposable penalty does not exceed six years; (2) Where the accused
agrees to the use of judicial affidavits, irrespective of the penalty
involved; or (3) With respect to the civil aspect of the actions,
whatever the penalties involved are.
However, while the judicial affidavit rule may cut trial time
considerably, it does have at least one major drawback. Because the
direct testimony of a witness is reduced to affidavit form, it may be
more difficult for the judge to assess the witness’s credibility. In
many cases, the credibility of a witness is weighed on the basis of his
demeanor in the rendition of his direct oral testimony. Unavoidably,
during trial, the judge is naturally attuned not only to what is said,
but also to how it is said. In fact, a witness’s credibility is often
assessed even by what is unsaid: the facial expression, the tone and
volume of one’s voice, and all the other nonverbal cues that by ordinary
human experience, are given meaning as either confirming or
contradicting what the witness utters in open court.
Even then, the judicial affidavit rule is one novel measure among many
others which, when implemented properly, will substantially reduce
delays in the litigation process. It is one significant and
ground-breaking step towards the more speedy administration of justice.
As to eliminating delays altogether, however, suffice it to say that, as
former California Attorney General Evelle J. Younger mischievously put
it: "An incompetent lawyer can delay a lawsuit for years. A competent
lawyer can delay one even longer."
Glenn C. Aquino is a partner of the Angara Abello Concepcion Regala
& Cruz Law Offices. He obtained his LLB from the University of the
Philippines College of Law. He is resident partner and monitor of
ACCRALAW’s Davao Branch. He can be contacted through e-mail at gcaquino@accralaw.com or tel. no. (082)224.0996.
No comments:
Post a Comment