unclogging the court dockets by alfredo f. tadiar

8/12/2019 UNCLOGGING THE COURT DOCKETS by ALFREDO F. TADIAR

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UNCLOGGING THE COURT DOCKETS1

ALFREDO F. TADIAR2

INTRODUCTION

Court dockets are heavily and unjustifiably congested as a result of the indiscriminatefiling and delayed processing of cases in the courts of justice. Hundreds of thousands of casesremain pending for further action or resolution. The cases pending in all levels of the judicialsystem keep piling up at an alarming rate. The average judicial disposal of cases annually is only85.83% (see Exhibit A). The situation is believed to become worst and the backlog willcontinue to grow rather than diminish unless judges are enabled to dispose of more cases througha systematic and sustained judicial reform program. The slow or delayed processing of earliercases affects the progress of other following cases. As a consequence, some cases haveincredibly taken as long as a generation to resolve.

Judges need time to study, analyze and research to come up with persuasive decisionsthat may somehow even convince the losing party to accept the adverse decision and forego anappeal thereby lightening the docket of the appellate court. Court docket congestion deprives thecourts of the essential element of time. The quality of justice is, therefore, adversely affected.

Thus, the people have become wary, if not distrustful, of the judicial system as aneffective means of violating rights violated and redressing wrongs done. Nonetheless, the crimevictim or aggrieved party more often seek the underworld or underground rebel movement tosecure the justice they never get from the courts. The swift and deadly justice meted out bythe dreaded Sparrow Unit of the Alex Boncayao Brigade (ABB) of the NPA or mercenaryassassins is the result of this extrajudicial relief. This poses danger to the economic growth andpolitical stability of the country. Social growth and development are also adversely affected.

To the business sector, such delays in processing of cases would increase their businesscost due to high litigation expenses. It is, therefore, imperative that alternative measures ofunclogging court dockets should be explored to help minimize litigation expenses of the businesssector.

CAUSES OF DELAYS IN THE DISPOSITION OF CASES

Many factors cause delays in the disposition of cases filed with the judiciary. For thepurpose of this paper, however, these may be classified into three, namely, (1) those arisingfrom human failures; (2) those caused by the nature of the judicial system itself; and (3)

1Paper presented in the Symposium on Economic Policy Agenda for the Estrada Administration, June 1, 1999 atINNOTECH, Commonwealth Avenue, Diliman, Quezon City.

2Chairman, National Amnesty Commission and former Associate Dean, U. P. College of Law.


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indiscriminate filing of cases in court. The causes of delays in disposition of cases are discussedin detail below.

1. Human Failings

Human failings refer to weaknesses of the men and women administering thejudicial system such as judges, lawyer-advocates, court personnel, prosecutors, sheriffs,defense counsel, process servers, and others connected to or with the system. Delayedresolution of cases emanates from inefficiency, incompetence, sloth or laziness,corruption or conflict of interests of these officials.3

2. Consti tuti onal and Procedural Requi rements

Factors arising from the adversary nature of the judicial process and theconstitutional requirements of due process of law also cause judicial delays. Thus, theconstitutional presumption of innocence requires careful screening of criminal charges

in the form of preliminary investigations conducted by prosecutors or Municipal TrialCourts performing this function. Only uponan affirmative preliminary finding of meritmay the criminal charge be filed in court.4 This is an assurance of protection againsthasty and malicious prosecutions. The reform problem that arises here is how toshorten the periods in the different stages of processing without detracting from that

socially desirable objective of protecting the legal rights of those drawn into the judicial

process.

In both civil and criminal actions, concern with procedural legality requires a netperiod of time for giving notices and the preparation of pleadings. These periods arehowever, oftenextended many times, even for such an amorphous reason that counsel isindisposed.5 A more strict judge could avoid such unnecessary cause of delay.

Furthermore, the strict requirements on proof of service of pleadings, judgmentsand other paers6 taken together with the much-complained of postal service, are majorcauses of judicial delay. Modern electronic means of communication, such as the use ofcomputers and fax transmission, among others, are not utilized to the fullest. ChiefJustice Hilario Davide, Jr. reaffirms that the Philippine legal system has much catchingup to do with the rapid advances in technology.7

3 It was reported by the Philippine Star in its issue of 29 March 1999 that based on a survey conducted by theEconomist Intelligence Unit Philippine Corporate Update Program (EIU-PCUP), that a capricious and corruptjudiciary is one of the major deterrents to corporate growth in the Philippines.

4 Section 14 (1), Article 111, Bill of Rights guarantees that No person shall be held to answer for a criminaloffense without due process of law.

5 Both trial lawyers and judges are equally guilty of postponements due to that undefined cause of beingindisposed.

6 Rule 13, 1997 Rules on Civil Procedure.

7 Phil. Daily Inquirer, 26 April 1999, page 3, at the 7thNational Convention of Lawyers in Davao City.


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The Constitution limits the period for rendering decisions: for the SupremeCourt, 24 months; 12 months for all collegiate courts; and 3 months for all other lowercourts.8 Despite such deadlines, even the Supreme Court has not complied. There is,therefore, a clear need to strictly comply with deadlines set. It is not, however, clear asto what sanctions can be imposed upon the offending court for failing to comply with

said deadlines nor what is the effect thereof upon the late decisions.

3. Clogged Dockets Due to I ndiscriminate F il ing of Cour t Cases

Chief Justice Fred Ruiz Castro largely blames the overcrowding of court docketsto what he calls the over-use, misuse and abuse of the judicial remedy. This meansthat a person seeking redress of a grievance has gone directly to court when it probablywould have been more practical to have availed of other modes of dispute resolution.The hypothesis of Chief Justice Castro is that litigation prone lawyers have the courtsthe place of initial settlement rather than the ultimate place of dispute resolution thatthey were originally meant to be. The solution to this cause must start with the law

curriculum to give more emphasis to the preventive lawyering function

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in order tobalance the heavy concentration of preparation for litigation. A re-orientation of lawyersalong this line seems wanting.

4. Clogged Dockets Due to F il ing of Cases Related to the I ssuance

of Bouncing Checks

Majority of the cases that clog our court dockets today are those filed under BP 22or the Bouncing Checks law. Under this law, the mere issuance of a check, which islater dishonored, immediately makes the drawer criminally liable. The basis of this law,passed during the time of President Ferdinand Marcos, is to make checks a viable andcredible means of conducting commercial transactions. The proliferation of bad checksmay have negatively affected the economy during martial law as many Filipinos refusedto accept checks in commercial transactions.

With criminal penalties imposed, it was hoped that not only will the issuance of abouncing check be deterred, but also payment of the value of the bouncing check bythose who issued it, will be enhanced. There is no in-depth study so far on whetherthere are less bouncing checks now due to this law. Whether or not BP 22 is successfulin its declared objective, what is clear though is that, victims of bouncing checks foundit convenient to file a criminal case in court as a means of collecting from drawers ofbouncing checks. Thus, the volume of cases filed has drastically risen as courts aretransformed into collection agencies by creditors who received bad checks.Furthermore, due to the criminal nature of the charges against drawers of bouncingchecks, judgment is only rendered upon a process more tedious than that applied in civilcases, further adding to the clogging of court dockets.

8 Section 15 (1) Article III, Constitution.

9 A term used Mr. David N. Smith of the Harvard Law School in a talk to U. P. Law students.


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APPROACHES TO DECONGESTING COURT DOCKETS

There are several approaches that can be taken to solve the problem of court docketscongestion. These, among others, are: the output-oriented, input-oriented, and diversionapproaches.

1. The Output-Oriented Approach

Directed towards solving the problem of judicial delay, a major cause of cloggedcourt dockets, the approach seeks to enhance the disposition of cases by the courts ofjustice.

The output-oriented approach is primarily concerned with increasing the numberof cases that a court disposes of in a given period (monthly and yearly). The dispositionof a case could take the form of a decision on the merits of the dispute. This assumesthat a trial has been conducted, or that trial has been waived and the case submitted for

decision on the basis of the pleadings i.e., the Complaint and Answer, submitted by theparties.10 Decisions are usually rendered after the lapse of several years from the datethe case was filed in court. This also includes sentencing an accused in a criminal caseupon entering a plea of guilty. Other dispositions relate to rendering summaryjudgment11 based on affidavits, depositions or admissions; dismissals based ondemurrer to evidence12 which do not prove that the plaintiff is entitled to the reliefprayed for; and dismissals based on technical grounds, such as lack of jurisdiction,improper venue and the like.13

A judge who is unduly concerned with the periodic output of his court may resortto questionable means to show an increase, such as dismissals of civil actions based ontechnical grounds (e.g., improper venue, late filing of petition or payment of fees,absence of certification that a copy of the decision appealed from is a true copy), or incriminal actions, cajoling an accused to plead guilty despite his innocence therebyreducing the sentence imposed upon him which may be equal to the period of hispreventive detention up to the date of arraignment. Such an offer may be tempting to anaccused who has been detained for so long under the inhuman conditions in jail. Thisquestionable tactic is too steep a price for increasing output.

a. Simpl if ication of Procedural Rules

More meaningful efforts to increase the output of judges include simplification ofprocedural rules that lawyers unnecessarily argue about and thereby assuring an earlier

10 Rule 34, 1997 Rules of Civil Procedure, providing for Judgment on the Pleadings.

11Rule 35, ibid.

12Rule 33.Id.

13Rule 16, id..


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trial of the case. Along this line was the elimination of the concurrent jurisdiction of theMunicipal Trial Courts and the Regional Trial Courts by the Judiciary ReorganizationAct of 198014 The rules on original exclusive jurisdiction of the courts have simplifiedthe matter.

Simplified rules for forcible entry and unlawful detainer cases,

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including thosethat shall govern the adjudication of small claims proposed to be adopted as part of thejudicial reforms undertaken by the Davide Court, as well as rules detailing the numberof hours that judges are required to devote in daily court sessions 16are all part of thisoutput-oriented approach. It also includes the Summary Procedure adopted by theSupreme Court17 for Municipal TrialCourts to govern resolution of civil disputes ofsmall value18and petty criminal cases.19

b. F il li ng Up Vacancies; I ncreasing Number of Courts

While the foregoing measures relate to increasing the output of individual judges,

concern for the national output of the judiciary in resolving disputes must also beaddressed. Vacancies in courts, prosecutorial offices and support personnel diminishoutput. Appointments to fill up vacancies must, therefore, be made soon after everyvacancy that occurs.

Increasing the number of courts in proportion to corresponding demographicincreases and locating them in centers of population for greater accessibility is anothereffective measure. Efficiency requires that every trial court should be assigned at leastone trial prosecutor. Another prosecutor should be appointed to handle preliminaryinvestigation of criminal cases. The two prosecutors could alternately do trial work orinvestigative work. In reality, however, this arrangement is far from being attained andresults in the delay in the disposition of criminal cases. The resolution of civil cases hasconsequentially also been adversely affected.

c. Judicial Speciali zation

Specialization greatly contributes to efficiency and thereby increase output.Along this premise, the Supreme Court has assigned certain courts to take over thespecialized jurisdiction of the defunct Juvenile and Domestic Relations Court. Theassignment of courts to try only heinous crimes is also an attempt at specialization. The

14 Batas 16, id..

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Rule 70, ibid..

16 Section 5, Interim or Transitional Rules to the Implementation of BP. Blg. 129.

17 Adopted en banc by the Supreme Court effective 15 November 1991.

18 Not to exceed P10,000.00, exclusive of interests and costs.

19Violation of ordinances, traffic regulations and the rental law and other offenses punishable by imprisonment notexceeding six months or fine not exceeding P1,000.00.


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Sandiganbayans exclusive jurisdiction over crimes committed by public officials isanother example of specialization. Perhaps it is time to consider separating civil casesfrom criminal cases, and allocate specific courts to try only either civil or criminal cases,but never jointly. This was perhaps one of the intentions in the creation of the thenCircuit Criminal Courts. Unfortunately, the specialized courts, except for the

Sandiganbayan, have all been abolished. There is, therefore, a clear need for a policyreview to evaluate past experience on court specialization as a means for increasingefficiency.

2. The Input-Oriented Approach

Historically, the judicial system for the resolution of disputes was intended orresorted to by the parties as the final and authoritative forum for disputes that have failedearlier efforts for a private solution or adjustment of differences. The family, the church,the school and neighborhood associations are the traditional counselors for mediatingdisputes and informally settling them. As these institutions weakened in their

mediational role in the course of societys modernization, disputants have resorted to thecourts as the initial forum, rather than the forum of last resort, for settling their dispute.This has resulted in the filing of petty and even trivial cases in court. Some of themhave been litigated through all levels of the judicial hierarchy up to the Supreme Courtitself.

The use of the term minor or petty to describe a class of disputes relating tocommon or everyday conflicts may be misleading. For to the disputants personallyconcerned, the subject matter, no matter how inconsequential to others or to society, iscertainly far from being minor or trivial. Even though the dispute may only involve inthe last analysis, merely hurt pride from a perceived slight, yet to the party concerned itis of serious importance. It is minor then only in the sense that, by itself, it does nothave much financial worth nor social significance.

Partly to blame for this so-called litigiouness, therefore, is the lack of access toany alternative forum for the settlement of these minor disputes. The KatarungangPambarangay Law,20 provides the appropriate forum for the resolution of this class ofdisputes. It compels disputants to confront each other before the Punong Barangay formediation of their differences.

Moreover, as a screening mechanism, the KB law imposes as an effectivesanction to disputants who fail to comply with the condition of prior conciliation, thatthe offending party cannot seek judicial relief. In other words, the KB law imposes aprocedural bar to free access to the courts.

20 Presidential Decree No. 1508, s. 1978.


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The 20-year experience of the KB screening mechanism shows that it haseffectively screened out of the judicial system cases that would otherwise have beenfiled in court.21

The idea of restricting the input of cases into the judicial system did not start with

the 1978 KB Law. As early as 1950, the Civil Code of the Philippines had imposed thatNo suit shall be filed or maintained between members of the same family unless itshould appear that earnest efforts towards a compromise have been made but that thesame have failed. . . 22 There is also the settled jurisprudence requiring the exhaustionof administrative remedies before judicial relief may be sought. 23 Non-compliancewith this condition for judicial recourse will result in the dismissal of the suit orproceedings.

Exhibit B shows the effects of restricted access to court on the disposition ofcases.

3. The Court Diversion Approach

While the input-oriented approach would curtail the generally unrestricted accessto the courts for judicial relief, this third approach seeks to address the tremendousnumber of cases that have already been filed and are still awaiting for disposition. Afterseveral years of inaction, the frustrated parties who have become disillusioned with theefficacy of the judicial mode of dispute resolution, would be ready to end their problem.Diversion to an alternative mode is the desperate answer. Exhibit C shows the effects ofdiversion of cases on the disposition of cases while Exhibit D presents the effects of therestricted access to court and the diversion of pending cases on the disposition of cases.

The diversion approach originated from the following:

a. The Civi l Code of the Phi li ppines

As in the restricted access approach, the origin of the court diversion of cases maysimilarly be traced to the Civil Code which was approved on 18 June 1949. It included anew Title XIV containing two separate chapters on Compromises and Arbitrationprovide.

Article 2028 defines the term compromise and the purpose of entering into one,as follows:

21 See Report of the BILGS.22 Article 222, Civil Code.

23 Ortua vs. Singson Encarncacion, 59 Phil. 441.


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A compromise is a contract, whereby the parties, by making

reciprocal concessions, avoid a litigation or put an end to one already

commenced.

For pending cases in court, Article 2029 mandates the judge to persuade the

litigants in civil cases to agree upon some fair compromise. For this purpose, Article2030 directs suspension of judicial proceedings to afford the parties sufficient time toformulate the terms thereof. If the efforts to this end are successful, the compromiseagreement is submitted to the court for approval. Judicial approval is necessary to ensurethat what was agreed upon does not contravene law, morals, good customs, public orderor public policy.24

It is important at this point to distinguish between process and product. Acompromise agreement that would avoid litigation or put an end to one alreadycommenced is the product of a process that may be either direct negotiations betweenthe parties or a third party intervention by conciliation or mediation. The mediator may

even be the trial judge himself although some critics say that such a dual role may affectthe integrity of the judicial process.

Article 2030 further provides:

The duration and terms of the suspension of the civil action

or proceeding and similar matters shall be governed by suchprovisions of the rules of court as the Supreme Court shall

promulgate. Said rules shall likewise provide for the appointment

and duties of amicable compounders.

. .

It is unfortunate that the challenge posed by the Legislature to the SupremeCourt has not been taken up. Despite the lapse of almost half a century, thepersonality of an amicable compounderhas not even been recognized by the Rules ofCourt.

On the arbitrational mode of resolving disputes, Article 2046provides:

The appointment of arbitrators and the procedure for

arbitration shall be governed by the provisions of such rules of courts

as the Supreme Court shall promulgate.

24 Article 1409 declares such contract as inexistent and void from the beginning.


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Like the case of amicable compounders who were intended to facilitate thecompromise settlement of disputes and conflicts, the reliance of the Legislature on theSupreme Court to promulgate the necessary procedural rules for the appointment ofarbitrators and the procedure for the arbitration has been sadly misplaced. No such rules

have ever been promulgated.

b. The Arbitration Law (R. A. 876)

On 19 June 1953, four years after enacting the Civil Code, and undoubtedlyfrustrated by the inaction on the matter by the Supreme Court, Congress enactedRepublic Act No. 876, entitled AN ACT TO AUTHORIZE THE MAKING OFARBITRATION AND SUBMISSION AGREEMENTS, TO PROVIDE FOR THEAPPOINTMENT OF ARBITRATORS AND THE PROCEDURE FOR ARBITRATIONIN CIVIL CONTROVERSIES, AND OTHER PURPOSES.

This Congressional effort to divert pending cases in court to an alternative mode

of dispute resolution, however, was to no avail. Arbitration was infrequently availed ofby judges or used by practicing lawyers who were perhaps unaware of the existence ofthis law due in large part to the failure of the Supreme Court to incorporate it in the Rulesof Court. Other reasons for its unpopularity are:

1) Lack of or absence of a professional organization of arbitrators, theintegrity and capability of which have been certified to by an official

body, such as the Construction Industry Arbitration Commission

(CIAC), or the Philippine Association of Voluntary Arbitrators

(PAVA). Such body is necessary to provide the requisite training forskills competence in arbitration, to screen those accredited for good moral

character and to assure the public of high ethical standards of conduct inthe performance of arbitration functions.

2) Outdated straight daily compensation of arbitrators that is stillrigidly fixed to the 1953 rate of P50.00 per day. This is now merely aquarter of the present minimum wage for unskilled workers. A moreattractive remuneration should be based on a flexible schedule ofprofessional fees dependent upon the amount or value in controversy, as iscurrently being followed in construction arbitration.

3) Structural defect, i.e., the unenforceability of the arbitration award.

The necessity of undergoing the cumbersome process of having the awardjudicially confirmed before it could be effectively enforced against arecalcitrant party, understandably leads to the conclusion of inutility of theprocess. As a matter of fact, parties who submit to the jurisdiction of theConstruction Industry Arbitration Commission routinely waive theprovisions of the Arbitration Law and expressly agree to be bound by therules of procedure governing construction arbitration.


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c. The Katarungang Pambansa Law Under the Local Government Code

The judicial power to divert pending cases to an alternative mode was givenanother boost in 1991 when the Local Government Code was enacted into law. Underthe Codes revisedKatarungang PambarangayLaw, a trial court judge is empowered to

divert or refer a pending civil case for mediation.

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It is important to note two things.The first one is the diversion or referral is motu proprio, i.e., on the initiative or action ofthe judge. The second one is the referral may be made at any stage of proceedings.

Significantly, a motu proprio judicial action may be taken without any formalmotion being filed by a party and, therefore, does not require consent of the parties. Thepower of diversion or referral is not confined to the pre-trial stage and, therefore, may beexercised even after the trial has commenced.

d. The 1997 Rules of Civi l Procedure

For the first time since the Rules of Court were first promulgated in 1940, analternative mode of dispute resolution has now been made finally available by the 1997Rules of Civil Procedure. It must be noted, however, that diversion may be initiated bythe trial judge only during the early pre-trial stage of the proceedings.33 There is nothingin the Rules that would indicate judicial empowerment to avail of this mode for cases thathave reached a later stage of the proceedings. This could be perceived as excluding themuch more numerous cases in the backlog which have already reached trial stage. This isunfortunate.

It must further be noted that aside from requiring the trial court to consider thepossibility of an amicable settlement or of a submission to alternative modes of disputeresolution, the Rules of Civil Procedure give absolutely no guidelines to follow inmaking a decision on the matter. The nature of the dispute that may be diverted, therelationship between the parties to the dispute, the particular mode to which it may bereferred, e.g., conciliation/mediation, arbitration, early neutral evaluation (ENE), or someother method are essential and important matters that have been completely omitted fromthe Rules.

In September 1991, the author conducted an experiment upon the endorsement ofthe then Chief Justice Marcelo B. Fernan and the financial assistance of the AsiaFoundation to determine the practicability of using mediation as an alternative means ofsettling disputes that have already been filed and are pending in court. A 30% successrate was targeted as sufficient to endorse the experiment for possible adoption by theSupreme Court. The experiment was conducted in two sites one in San Fernando, LaUnion and the other in Quezon City. Both Regional and Municipal Trials Courts wereinvolved. Pending cases were referred for mediation by trained neutrals for a period of

32 Section 408, last paragraph, R. A. 7160.

33 Section 2 (a) of Rule 18 requires the court to consider the possibility of submitting the case of alternative modesof dispute resolution.


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one year. The mediators were required to undergo a two-day training course thatequipped them with the necessary knowledge, skills and attitude appropriate to their role.A 31.14% success rate was achieved for the provincial project site but fell short of thetarget for Quezon City. Nevertheless, the project proposed that the Supreme Courtshould conduct an official validation of the results before making a final decision on the

matter. Possible amendments to the Rules of Court were proposed.

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Early this year, five years after submission of the project report, the PhilippineJudicial Academy (PHILJA) under the leadership of its Chancellor, retired SupremeCourt Justice Ameurfina M. Herrera, became interested in the concept of diversion. Theauthor was taken in as consultant. This was an opportunity to revive the proposal for anofficial validation of the earlier experiment as a condition for formal inclusion of thereform measure as part of the Rules of Court. A Supreme Court Circular 35 that theauthor drafted for a pilot test of the court-referred mediation program in the City ofMandaluyong and Valenzuela, Metro Manila, is awaiting approval by the Supreme Court.

THE CONCEPT OF ALTERNATIVE MODES OF DISPUTE RESOLUTION

There are basically two views on the concept of alternative dispute resolutionmechanisms (ADRM). Onewould view it as giving a choice from the well-established judicialmode of resolving disputes. The other restricts the concept to those providing a mode ofsettling conflicts that is completely different from the adjudicative and essentially adversarialmode of deciding controversies.

The first view broadly includes as ADR, decisions of all quasi-judicial agencies, such asthe Securities and Exchange Commission (SEC) and the National labor Relations Commission

(NLRC) through the Labor Arbiters. Also included are decisions of the Sole Arbitrator orArbitral Tribunal on construction disputes filed with the Construction Industry ArbitrationCommission (CIAC).36 And, of course, mediation/conciliation is included.

The second view regards as a true alternative only those modes which empower thedisputants themselves to arrive at a compromise settlement of their controversy. This thenincludes conciliation, mediation, early neutral evaluation, rent a judge, and other such schemes.It, however, excludes arbitration.

As a means of unclogging court dockets, the broad view encourages the creation orestablishment of specialized agencies such as a Small Claims Court to deal with narrowlyconfined disputes. Along this line is to decriminalize vagrancy and traffic violations,37as well as

34 A new rule proposed as Rule 33-A, entitled Referral for Mediation and an amendment of Section 6, Rule 22 ofthe Revised rules of Court, are appended to this paper.

35 Attached as annex of this paper.

36 The CIAC was established by Executive Order No. 1008 on 04 February 1985.

37 Traffic violations and tenancy disputes are governed by the Revised Summary Rules of Procedure.


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bouncing checks to mention just three examples, and then to proceed with administrativeprocessing of the offenders. Disputes between landlord and tenant, such as claims for the returnof guaranty deposits and advance rentals, could be administratively processed rather thanjudicially dealt with.

Critics of this broad view, however, state that the dissatisfactions with the judicial systemare merely carried over to quasi-judicial processing which does not address the problems.

In a research survey that the Author conducted in 1982-8438 to test the premises of theKatarungang Pambarangay Law, among other objectives, popular grievances against judicialjustice were uncovered. These were grouped into: (1) judicial delay, (2) high cost, (3) failure tocomprehend the legal process, and (4) perceived unsuitability of the judicial process to theresolution of everyday conflicts.

The causes of and possible remedies for judicial delay have already been discussedearlier.

High costs refer to both financial expenditure and time costs. Lawyers fees, docket fees,sheriffs fees, cost for transcript of stenographic notes and other expenses of litigation, oftenmount to a level that could be ill-afforded by many disputants including small busnessmen.Time spent with lawyers preparing for court battle and for personal attendance for numerouscourt hearings that are frustratingly often postponed, detract from the gainful use of time and addto costs.

Popular incomprehensibility of the judicial process refers not only to the use of Englishas the official language of the formal legal system but also to the use of technical jargon oflawyers. It also refers to highly technical rules of procedure designed to ensure the accuracy ofthe fact-finding that is the essential basis for judicial decision-making. The rules are also

intended to ensure that the judge is a neutral, impartial, objective and fair decision-maker.

Unsuitability of judicial proceedings for everyday interpersonal disputes relates to thenature of the judicial process as essentially punitive and backward looking. It is simplyconcerned with the issue of who did what to whom and not to the why and the wherefore.Only the symptoms are recognized but not the cause of malady.

Many times, however, a complainant is not really interested in punishing the other partywith a jail sentence or a fine. This is true in disputes where the parties have some kind of arelationship based on kinship, employment or other working relationship. In these cases,restoration of the disrupted relationship is more important than the imposition of penalties, be itin the form of a criminal sentence or punitive damages. What the complainant is reallyinterested in is an opportunity to ventilate his grievance, explore the cause of the problem and getan assurance that the offending conduct will no longer be repeated.

There are several differences between the modes of dispute resolution. It has been aptlyobserved that the principal distinction between a judge and an arbitrator is that while a judge is

38 Bookbound mimeo Tadiar, Research Survey on the Conciliation of Disputes under the KatarungangPambarangay Law, 1984, 215 pages, U. P. College of Law.


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appointed by the President of the Philippines upon recommendation of the Judicial and BarCouncil, an arbitrator derives his authority from the consent of the parties to a dispute to havehim/her render a decision thereon and agree to accept it as binding upon them

It could be inferred, therefore, that a judge and an arbitrator are alike in their function of

rendering a decision to resolve a dispute. Although arbitration may be less formal and not asstrict in adherence to technical rules of procedure and evidence, both modes follow the samemethod of adversarial justice. The complainant asserts a claim that is denied by the other.Cross-examination of a witness is the method of ascertaining the truth of the conflicting claimsand defenses. The result of the process is that one party emerges the victor and the other thevanquished. One is declared right and the other wrong.

An arbitration proceeding, however, has the advantage of being constituted ad hocor fora particular case. An arbitrators attention and study being thus narrowly focused, thecontroversy is decided much more expeditiously than a judge who must deal with tens if nothundreds of cases at the same time.

On the other hand, conciliators and mediators do not render a decision on a controversy.They merely persuade the parties to arrive at making reciprocal concessions that lead to anamicable settlement thereof. The result of a conciliated settlement is mutually beneficial andsince no one has been condemned as having acted wrongly, the harmonious relationship betweenthe parties is restored.

The succeeding sections of this paper discuss in detail the small claims court and thedecriminalization of bouncing checks to help de-clog court dockets.

THE ROLE OF A SMALL CLAIMS COURT IN UNCLOGGING COURT DOCKETS

One of the means of helping unclog court dockets is to screen out issues, which need notbe filed in regular courts, factoring in the nature of the issue and amount of the claim. Thecreation of a Small Claims Court (SCC) would be an inexpensive way for the government tofacilitate the speedy administration of justice. It will also give citizens who find expensive courtlitigation an impractical solution to a legal problem, which only involves a very small amount, anopportunity for redress of a wrong committed against them.

A small claims court is an informal, simple, and inexpensive forum in which small claimsissues are threshed out before a judge. The filing fee in a small claims court is inexpensive andthe procedure speedy. The pleadings before the SCC are in Forms, provided by the SCC, whichare easy to fill up by non-lawyer litigants. Its jurisdiction is limited to money claims, the totalamount of which varies depending on the social setting of the court. Judgment of the smallclaims court is final and not appealable. The defendant, therefore, is given the option of meetingthe issue in a regular court, if he so makes the reservation in the SCC, before the plaintiffpresents evidence.


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A small claims court helps in unclogging court dockets and giving regular courts thebreathing space to resolve bigger and more substantial issues. Considering the nature of thecases filed in the SCC, no lawyers are allowed nor are highly qualified judges required.

Jurisdiction

Small claims court can award monetary damages or equitable relief (limited to orders torefund, reform, rescind or repair). The SCC has no jurisdiction over criminal cases, casesinvolving title to real property and cannot issue writs such as injunction or mandamus. It can,however, issue an order of attachment or garnishment to implement its decision. Any person oflegal age or legal entities such as partnerships and corporations, may file a small claims suit inthe small claims court located in the place where the cause of action occurred or where either theplaintiff or defendant resides. It is recommended that small claims in Philippine setting shouldencompass only those which involve a sum of up to P150,000.00 excluding interest charges,damages and cost. The number of small claims cases that can be filed by a party per year must belimited. In some countries, 13 small claims cases per person per year is the maximum number

allowed.

Cases under the jurisdiction of a small claims court are those which involve the followingissues:

1. Consumer issues such as:

a. The defendant refuses to give the plaintiff goods or services that are legally duethe plaintiff (landlord refuses to return security);

b. Defendant illegally refuses to allow plaintiff to return or receive a refund on anarticle bought by him;

c. Defendant refuses to repair an article purchased;d. Defendant refuses to allow plaintiff to cancel a contract;

2. Miscellaneous issues such as:

a. Controversy over a dent in one's fender resulting from a traffic accident;b. Tenant causing damages to an apartment (eviction is not within the jurisdiction of

a small claims court)c. Refusal of a friend to pay his debt/loan; andd. Bad checks (if BP 22 cases are decriminalized).

Procedure

The docket fee for a small claims action is minimal. It is recommended that the docketfee for such an action be 1 % of the amount claimed but not to exceed P1,000.00.

To start a case, the plaintiff must complete a Claim and Affidavit Form from the SCCClerk of Court, which should detail his cause of action and the relief he wants from the court.After filing the Claim Form and payment of 50% of the docket fee, the Clerks office will serve


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notice, either by registered mail or personal service, to all parties concerned to attend a hearingto be scheduled not later than 30 days from the filing of the case. The defendant must receive theClaim and Affidavit Form with Notice, at least seven days before the hearing.

During the first hearing of the case, the parties will be asked if they wish to explore

mediation process under a court referred mediator. Suits frequently occur because of the failureof parties to communicate with each other. Time and money can be saved if both parties reach asettlement out of court, prior to the hearing proper. Should this occur, a Dismissal Formobtainable from the SCCs clerk of court, must be prepared and filed. If the settlement is throughmediation and a compromise is agreed, the agreement will be presented to the court for approval.

The defendant may also request, before the plaintiff presents his evidence, that the casebe litigated in a regular court. The SCC then refers the case to the proper court and givesplaintiff the option to pursue said case by paying an additional docket fee. If the defendant choseto litigate in the SCC, he cannot ask for a change of venue after the plaintiff starts presenting hisevidence. The Plaintiff must pay the balance of the docket fee (the remaining 50%) before he

presents his evidence.

If the parties will not settle, the trial begins and the court hears both sides of the issue,evaluate the evidence in the same manner as ordinary courts except that, rules of procedure arenot strictly applied. The judge in this case will simply hear the side of the plaintiff and later thedefendant. After going through the evidence and witnesses presented, both parties may submitwritten memoranda in plain and simple language, before the judge decides.

The judgment and orders of the SCC cannot be appealed. However, either party may filewithin 30 days from receipt of notice of the judgment, a motion to reconsider the order ordecision (SCC also provides the Motion Form).

If the SCC affirms its judgment, the plaintiff may then proceed with other collectionprocedures including garnishment of wages or bank accounts, subject to the rules provided bylaw. He has to file a Writ of Garnishment (form to be provided by the SCC Clerk) uponpayment of a fee of .5 % of the value of award. The plaintiff may also file a Subpoena andDiscovery Petition, which will set a hearing at which the defendant will be required to disclosehis income or assets. These fees, however, including the docket fee will be included to theamount owing on the judgment.

Once the full amount of the judgment has been paid, the plaintiff must file a satisfactionof judgment form (this Form, like all other forms should be made available by the SCCs clerkof court as parties to a small claims suit are not represented by lawyers).

It is recommended that the Supreme Court conduct an in-depth study on the nature ofcases being filed in our regular courts, to find out exactly how many of the cases pending beforeregular courts are small claims issues. Pending this research however, from experience alone , itcan be safely concluded that almost 30-40% of the cases filed in our courts are small claimsissues. A Small Claims Court, therefore, will drastically reduce the backlog by this number iffully instituted.


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The creation of such court will not entail an additional enormous expense from thegovernment. Strict requirements for judges in regular courts may be waived, since small claimsissue and procedure do not require a lengthy legal experience. There are lots of lawyers in thePhilippines today who would be willing to take on the job of a small claims court judge.

Considering the time, effort and expense being spent by regular courts in small claims issues, thecreation of a small claims court will, in the long run, be more economical and the effect on theeffective delivery of justice, more beneficial.

DECRIMINALIZATION OF BOUNCING CHECKS TO HELP

DE-CLOG COURT DOCKETS

Not every check that bounces should be criminally prosecuted. Criminal prosecutionshould only apply when the drawer of the bad check receives something of value in exchange forthe check he draws with fraudulent intent, at the time the consideration is delivered. Fraudulent

intent is present when the drawer knows that the check will not be honored when it is presentedto the bank for payment. He is guilty of the crime of representing a worthless piece of paper ascash, so that the victim will part with his goods.

It should not be a criminal matter, however, in the case of a pre-existing debt where thedrawer received the goods or consideration in the past and makes payment on his debt with a badcheck. The victim did not part with his goods relying on a fraudulent representation of theworth of the check. When the check is not honored, it is equivalent to the drawer not makinggood on his debt. No one should be imprisoned for not making good on his IOU.

This is also generally applicable to post-dated checks. In this case, there is essentiallyan understanding that the check is not good on the date the consideration is received, whichagain makes said transaction a loan with the check a mere collateral for the loan. Criminalintent must be established here.

When the drawer makes a stop payment order on a check he previously issued, criminalintent to defraud the victim must also be established. There is no crime that automatically resultsfrom such an order. If there was no fraudulent intent on the part of the drawer, again the case isproperly a civil case for damages.

Imposing stiff civil penalties may be more effective than having criminal penalties thatare not actually imposed. In many countries today, penalties amounting to treble the value of thecheck is proving to be a successful deterrent in curbing the proliferation of bad checks. Thefollowing are examples of state civil penalty rules on bad checks in the United States :39

39(For discussion on when treble amount is granted see Braden Corp. v. Citizens National Bank of Evansville, 661NE 2d 838,Indiana Ct. App. 1996. For decision on when treble amount is not given, see Commercial & MedicalAccounts v. Mackintosh, 662 NE 2d 659 (Ind. Ct. App. 1996). Examples of state civil penalty rules on bad checksin the United States are discussed above.


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1. Alaska- The bidder may recover damages in the amount equal to US$ 100.00 ortreble the amount, whichever is greater, except that damages under the bad check lawmay not exceed the amount of the check by US $ 1,000.00

2. Arkansas- Amount due, service charge not to exceed $ 10.00. On stop payment, 15

days following the written demand to the drawers last known address, the holdermay collect fees not to exceed $ 15.00. Failure to make restitution and collection feewill result in liability of twice the amount of the check, but in no case less than US$50.00;

3. Colorado- Treble the amount of such check but in no case less than US$ 100.00including reasonable fees;

4. Florida- In the event of a failure to make payment within 30 days after demand, treblethe amount owed in addition to the amount owed together with the bank and courtcosts and reasonable attorneys fees, not less than US$50.00 and no more than US$

2,500.00. If payment is made in 30 days, a service charge of $10.00 or 5% of theamount of the check, whichever is greater, can be added. In stop payment actions,reimbursement for actual travel expense to the holder or agent for filing papers andfor travelling and providing witnesses to the proceedings will be included;

5. Indiana- Treble the amount of the check not to exceed $ 500.00 plus the amount ofcheck including attorney's fees of not less than $ 100.00 and interest at 18% perannum;

6. Washington- Lesser than the of amount of the check or interest of 12% and the cost ofcollection not to exceed $ 40.00. If court action is necessary after 15 days, lesser ofreasonable attorney's fees and treble the face value of the check or $ 100.00.

If a criminal intent is absent, decriminalization of the act of issuing a check thateventually bounced, will not only help unclog court dockets but also rationalize the country'scriminal legal system since only those with criminal intent will be imprisoned for their acts. Atpresent, the Philippines is one of the very few countries attaching automatic criminal liability forthe issuance of a bouncing check.

Current Situation

The problem however, is that the law on bouncing checks has to be applied untilrepealed. Pending the repeal of the law, issuing bouncing checks is still a criminal offense andBP cases will continue to be filed. In order to help de-clog court dockets of bouncing checkspertaining to collection cases, steps can be immediately instituted to help minimize the entry ofBP 22 cases with regular courts. The main thrust of solving this problem is input-screening, orproviding for mechanisms to resolve the issue before a court officially takes cognizance of a BP22 case for pre-existing debt.


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CONCLUSION AND RECOMMENDATIONS

It is clear from the discussion that the most effective way of solving the pervasiveproblems of judicial delay and clogged court dockets is through instituting reforms under theRules of Court. Even Supreme Court Circulars have not been as effective as the Rules of Court.

Procedural reforms through statutes such as the Arbitration Law and the KatarungangPambarangay Law have not been very effective.

To summarize, the following are general recommendations to unclog the court dockets:

1. Re-orient law student training, and lawyers attitudes as well as that of the general public onthe need for: (a) preventive lawyering; and (b) prior conciliation efforts before seekingjudicial relief;

2. Call for greater public participation in the recruitment process of court officials - Improvingthe recruitment process through appointment of honest, capable and committed individuals

would remedy the situation.

40

This, however, would include raising salaries and benefits thatwould attract the kind of personnel that is desired.

3. Make more effective the accountability of judges and other court personnel throughdisciplinary action - No matter how effective the screening process may be, however, therewill always be some undesirables that somehow get appointed to the system. Those whowere initially qualified become, in time, tainted by the same undesirable traits they wereoriginally free from. The next remedy, therefore, would be to make more effective theadministrative disciplinary actions that could deter undesirable acts or ultimately weed outthe incorrigibles.

Finally, specific recommendations to unclog or de-clog court dockets are as follows:

1. I ncrease output or case disposal rate through:

a. Return of specialization of courts (criminal courts and constitutional courts);

b. Strict compliance with set periods for rendering decisions; and

c. The continuance of procedural reforms for simplification of complex rules;shortening periods for filing of pleadings with due regard to fairness; andrecognition of fax/e-mail filing of pleadings.

40 The 1987 Constitution did away with the need for confirmation by the Congressional Commission onAppointments of appointments to the judiciary. Instead, the President of the Philippines appoints from amongthose recommended by the Judicial and Bar Council.


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2. Restr ict judicial access thr ough:

a. The creation of a Small Claims Court;b. Placing of a procedural bar as a condition for judicial access (e.g., Katarungang

Pambansa Law and exhaustion of administrative remedies); andc. The creation of an additional fora for ADR before access.

3. Di vert pending cases to ADR or to administrati ve processing thr ough:

a. Decriminalization of bad or bouncing checks; andb. Decriminalization of commonly recurring petty offenses; and

4. I nstitut ional izing the ADR System as a cour t-annexed system and as a separate

institution


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ANNEX A

US jurisprudence on bad checks, the penalties thereto and Small Claims Court rules, isone of the most advance in the world today. Examples from their experience are cited in this

paper to provide an idea on their rules regarding checks dishonored for insufficiency of funds.

Under the California Civil Code, Section 1719, any person who writes a check which isdishonored can be held liable for a penalty equal to three times the amount of the check, plus theface value of the check (minimum of $ 100.00 and maximum of $ 1,500.00)

The following simple steps must first be met in the case of a bad check under the CaliforniaCode:

1. You must write a letter to the check writer and mail it by certified mail. Ask to be paidthe amount of the bad check in cash or money order, within 30 days. Your demand may also

include the fee charged by your financial institution to process the bad check, not to exceed $25.00 for the first bad check and $ 35.00 for each subsequent bad check processed and thecost of mailing and notice. The Required Form Letter :

BAD CHECK DEMAND LETTER

Date ______Name of Check WriterLast Known Address of Check Writer

Dear Check writer

The check you wrote for $ _______, dated ___________, which was made payable to_________________ was returned by name of bank -- because of (Insufficient funds oraccount closed or stop payment)

Unless full payment of the check is received by money order or cash within 30 days ofthe date of mailing this demand, together with $__________ (amount charged by the bank toprocess bad check) and $ ________ for the cost of mailing, I will file a Small Claims Courtclaim against you.

The claim will request damages for the amount of the check $ ________ plus$____________ damages assessed at three times the amount of the check, for a total of$_____________ against you.

You may wish to contact a lawyer to discuss your legal rights and responsibilities.


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Please send payment to:Your name

AddressSignature

2. You must wait for 30 days. If you have not received payment in cash within 30 days fromthe date you mailed the demand letter, you may file a claim in a small claims or municipalcourt. You may proceed with your suit even though the party has not signed the letter aslong as you submit a proof of mailing by certified mail;

3. At the hearing, you must produce a copy of the demand letter sent to the check writer athis last known address and a signed certified mail receipt showing delivery or attempteddelivery if it was refused;

4. Take all other documents related to the case to the court hearing. This might include the

notice from the bank, notes of your conversations and copies of any correspondence with thecheck writer regarding your effort to collect.

unclogging the court dockets by alfredo f. tadiar

Documents