Judicial reform: You lose, you pay

It was good to meet the new Supreme Court Chief Justice last month when I hosted a luncheon for the Philippine delegates to the US Legal Aid Clinic Learning Visit in Washington, D.C. With CJ Bersamin were SC Associate Justice Alexander Gesmundo (we simultaneously took our oath of office in Malacañang) and their staff, the deans of various law schools in the Philippines and representatives from the Asia Foundation and the US embassy in Manila.   

I met Justice Lucas Bersamin on several occasions in the past, but it was the first time that I had the chance to have a fairly long conversation with him. He struck me as somebody who is level headed and sincere in reforming the justice system in our country.

Coming from a political family in Abra and whose brother, the late Congressman Chito Bersamin was killed by an assassin’s bullet while attending a wedding ceremony in Quezon City in December 2006, Chief Justice Bersamin – who has served in the judiciary for 32 years – certainly knows how critical it is for crime victims to obtain justice.  

During the public interviews in August when he was first considered for the position of top magistrate, CJ Bersamin – who obtained his AB Political Science degree from the University of the Philippines, is an alumnus of the University of the East College of Law and placed 9th during the 1973 bar exams – talked about introducing innovations and firming up existing programs and activities to enhance the image of the Supreme Court to boost public confidence for members of the judiciary especially those serving in rural areas. He promises to assert judicial autonomy by improving the competencies of court workers through skills-based training, and will enforce discipline among workers in all levels in the judiciary.

I wish the new Chief Justice well, and hope he will continue with reforms needed to improve the delivery of justice in our country. As everyone knows, one of the major issues regarding the judiciary is the clogged courts, with cases taking so many years before a decision is made. 

The computerization of court records including decisions was a step toward the right direction, but a lot more will need to be done. One of the consequences of the slow resolution of cases is the overcrowding in jails, with records indicating that the overcapacity in many prisons all over the country is at 380 percent – with the most congested even reaching an overcapacity level of 2,000 percent! 

Among the recommendations made by business groups is to make more use of alternative dispute resolution and arbitration in resolving civil disputes outside of the courts to lessen case backloads and speed up the delivery of justice.  

But one major judicial issue that businessmen have been incessantly complaining about is the harassment that happens through the filing of frivolous and unsubstantiated lawsuits, especially by rival firms and losing bidders. Several years ago, a major infrastructure project (an international airport, actually) was delayed because the notice of award could not be given to the winning consortium because a losing bidder lodged a complaint – resulting in the derailed implementation of the critical infrastructure project.

Many government officials have also been at the receiving end of unfounded corruption charges. Article XI of the 1987 Constitution regarding accountability of public officers practically allows anyone to file complaints in any form or manner against public officials or government employees. 

That’s also why many welcome the move of Ombudsman Samuel Martires to protect public officials from “prosecution by publicity” by refusing to docket anonymous complaints before the Office of the Ombudsman. Receiving copies of the complaint will not be given to protect the employees whose reputations could be unduly tarnished if these anonymous complaints are publicized. At the same time, the issuance of press releases on the finding of probable cause will not be done, and the case will only be disclosed if these have been filed before the Sandiganbayan, Ombudsman Martires explained.

My late brother, Dr. Quasi Romualdez who was the health secretary during the presidency of Joseph Estrada, was one of those who experienced legal harassment from pharmaceutical firms. Even before he became health secretary, he was already advocating for cheaper medicines and universal healthcare. He worked with then Senators Estrada and Mar Roxas to allow generic medicines to be sold locally. As a result, he earned the ire of big multinational pharmaceutical companies that filed administrative cases against him. The sad part was that my brother – who was of modest means – had to pay for his own legal fees. Our family all pitched in.

It’s totally unfair when you are doing your job as a government official but anyone can make your life hell by filing unsubstantiated and frivolous charges which could impoverish those with little or no financial means to fight back legally.

I am one of those advocating for what is known as the “English rule” wherein the party that loses in court pays for the cost of litigation incurred by the other party. While some may contend that this could discourage the poor from filing cases against employers, there are those who want this included in judicial reforms, agreeing with Baron Derry Irvine – who served as Lord Chancellor during the term of Tony Blair as Prime Minister – that it is meant to discourage the filing of weak cases and prevent vexation (or aggravation or harassment). 

In other words, this “losers pay” principle should be applied against people who file frivolous and unsubstantiated complaints with the intention of harassing or besmirching the reputation of public officials. 

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