Revisiting Legal and Judicial Ethics: Challenges and Perspectives Revisiting Legal and Judicial Ethics: Challenges and Perspectives Hilarion L. Aquino*
Hilarion L. Aquino* INTRODUCTION INTRODUCTION
Even the most rudimentary surveys will reveal that Filipinos will
Even the most rudimentary surveys will reveal that Filipinos will not give lawyers high marks fornot give lawyers high marks for
trustworthiness To say that lawyers are not well trusted is! in our days! almost ha"kneyed In fa"t! one internet trustworthiness To say that lawyers are not well trusted is! in our days! almost ha"kneyed In fa"t! one internet post put it with stinging humor when it de"lared# $%egal ethi"s is an o&ymoron'(
post put it with stinging humor when it de"lared# $%egal ethi"s is an o&ymoron'(
%ike all institutions! the )ar and the )en"h have their shares of pro*lems The )ar is suffering from a poor %ike all institutions! the )ar and the )en"h have their shares of pro*lems The )ar is suffering from a poor pu*li" image %awyers are per"eived *y the pu*li" as generally self+seeking The )en"h is hurting too from pu*li" image %awyers are per"eived *y the pu*li" as generally self+seeking The )en"h is hurting too from negative "omments of the pu*li" espe"ially media on per"eived ,udi"ial improprieties and in,udi"iousness of negative "omments of the pu*li" espe"ially media on per"eived ,udi"ial improprieties and in,udi"iousness of many a ,udge True! these may ,ust *e per"eptions whi"h may not s-uare with reality *ut in our milieu! many a ,udge True! these may ,ust *e per"eptions whi"h may not s-uare with reality *ut in our milieu!
per"eption and reality are virtually the same These pro*lems *elong to the realm of ethi"s and morality whi"h per"eption and reality are virtually the same These pro*lems *elong to the realm of ethi"s and morality whi"h make it not only ne"essary *ut imperative to revisit legal and ,udi"ial ethi"s
make it not only ne"essary *ut imperative to revisit legal and ,udi"ial ethi"s
These serious pro*lems "hallenge in this ./st Century all mem*ers of the legal profession to help in the These serious pro*lems "hallenge in this ./st Century all mem*ers of the legal profession to help in the restoration of that great! dignified and preeminent image that our profession on"e had In my paper I shall restoration of that great! dignified and preeminent image that our profession on"e had In my paper I shall present some ethi"al propositions whi"h are my perspe"tives on the su*,e"t! hopefully to provoke meaningful present some ethi"al propositions whi"h are my perspe"tives on the su*,e"t! hopefully to provoke meaningful dis"ussions on them in the different legal fora and a"ademe
dis"ussions on them in the different legal fora and a"ademe %aw! Ethi"s and 0usti"e# %inkages
%aw! Ethi"s and 0usti"e# %inkages
That the pre"epts of law need not rest on moral argument is now "ommon pla"e! and this "onvi"tion goes *y That the pre"epts of law need not rest on moral argument is now "ommon pla"e! and this "onvi"tion goes *y many names! $positivism( *eing among the most popular
many names! $positivism( *eing among the most popular )ut we persist! do we )ut we persist! do we not! in re"ogni1ing thenot! in re"ogni1ing the effi"a"y of the $moral( in the universe of the $legal(
effi"a"y of the $moral( in the universe of the $legal(
The elementary distin"tion in "riminal law *etween a malum prohi*itum and a malum in se is ta"it re"ognition The elementary distin"tion in "riminal law *etween a malum prohi*itum and a malum in se is ta"it re"ognition of the "riminali1ation of what is morally reprehensi*le $2n a"t whi"h is malum in se has *een defined as one of the "riminali1ation of what is morally reprehensi*le $2n a"t whi"h is malum in se has *een defined as one inherently wi"ked! one naturally evil! as ad,udged *y the sense of a "ivili1ed "ommunity! one involving illegality inherently wi"ked! one naturally evil! as ad,udged *y the sense of a "ivili1ed "ommunity! one involving illegality from the very nature of the transa"tion! upon prin"iples of natural! moral and pu*li" law! and one immoral in its from the very nature of the transa"tion! upon prin"iples of natural! moral and pu*li" law! and one immoral in its nature and in,urious in its "onse-uen"es without regard to the fa"t of its *eing noti"ed or punished *y the law nature and in,urious in its "onse-uen"es without regard to the fa"t of its *eing noti"ed or punished *y the law of the state(/
of the state(/ 3
3 Chair! %egal Chair! %egal Edu"ation )oard4 Chair! Edu"ation )oard4 Chair! Department of Ethi"s and Department of Ethi"s and 0udi"ial Condu"t! 5hilippine 0udi"ial0udi"ial Condu"t! 5hilippine 0udi"ial 2"ademy
2"ademy! 6u! 6upreme Coupreme Court / ./ rt / ./ 2m 0u2m 0ur .d! $Criminr .d! $Criminal %aw(! 7 al %aw(! 7 .8.8 . The I*5 0ourNal
. The I*5 0ourNal 9ilarion % 2-uino 9ilarion % 2-uino
Finally! the 6upreme Court has repeatedly linked $,usti"e( to the workings of the ,udi"ial system In holding the Finally! the 6upreme Court has repeatedly linked $,usti"e( to the workings of the ,udi"ial system In holding the inappli"a*ility of the prote"tive provisions of the Foreign Curren"y Deposits 2"t to a pedophile:s dollar a""ount! inappli"a*ility of the prote"tive provisions of the Foreign Curren"y Deposits 2"t to a pedophile:s dollar a""ount! 0usti"e 0usto Torres intoned# $In fine! the appli"ation of a law depends on the e&tent of its ,usti"e(. 2nd in 0usti"e 0usto Torres intoned# $In fine! the appli"ation of a law depends on the e&tent of its ,usti"e(. 2nd in de"iding against a literal appli"ation of Civil Code re-uirements for the e&er"ise of the right of redemption *y de"iding against a literal appli"ation of Civil Code re-uirements for the e&er"ise of the right of redemption *y "o+heirs in the sale *y another heir of his undivided share in the "ommon inheritan"e to a third party! the late "o+heirs in the sale *y another heir of his undivided share in the "ommon inheritan"e to a third party! the late 0usti"e Isagani Cru1 wrote with his usual flair# $The -uestion is sometimes asked! in serious in-uiry or in 0usti"e Isagani Cru1 wrote with his usual flair# $The -uestion is sometimes asked! in serious in-uiry or in
"urious "on,e"ture! whether we are a "ourt of law or a "ourt of ,usti"e Do we apply the law even if it is un,ust or "urious "on,e"ture! whether we are a "ourt of law or a "ourt of ,usti"e Do we apply the law even if it is un,ust or do we administer ,usti"e even against the law; Thus -ueried! we do not e-uivo"ate The answer is that we do do we administer ,usti"e even against the law; Thus -ueried! we do not e-uivo"ate The answer is that we do neither *e"ause we are a "ourt *oth of law and of ,usti"e <e apply the law with ,usti"e for that is our mission neither *e"ause we are a "ourt *oth of law and of ,usti"e <e apply the law with ,usti"e for that is our mission and purpose in the s"heme of our Repu*li"(=
2ll this of "ourse links the legal with the moral! *e"ause ,usti"e is prin"ipally not a legal *ut a moral "on"ept %E>2% ET9IC6
The Ethos of the %egal 5rofession
The ethos of the legal profession "onsists of ? the disposition of the lawyers! the "ulture lawyers "reate in the e&er"ise of their profession and in the evolution of their traditions! the adoption and a""eptan"e of pre"epts of "ondu"t
I have pra"ti"ed law for =/ years and was a mem*er of the )en"h for /8 years For all of @A years! I had *een intera"ting with lawyers This long period of "lose asso"iation with them! -ualifies me! I think! to talk a*out the lawyer:s mindset This! I shall do with utmost o*,e"tivity and "andor
<hen a lawyer a""epts a "ase! the thought of an opportunity to serve the "ause of ,usti"e does not at all "ross his mind 9is initial "on"erns are! to know thoroughly the pro*lem of the "lient and to get the fa"ts right and the fi&ing of satisfa"tory attorney:s fees 2 lawyer is *asi"ally "lient+"entered In managing the "ase! what is most important to him is the "ause of his "lient 9is ultimate goal is to win the "ase or se"ure some *enefits for his "lient <hen he is "onfronted with a dilemma of "lashing duties# his duties to his "lient on the one hand! and his duties to so"iety! or to his profession or to the "ourts on the other! without a se"ond thought! the lawyer would give preferen"e to his duties to his "lient
It is not easy to "hange this mental disposition *ut we ought not to stop trying
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= olume =A! Num*er = G @ + 0uly + De"em*er .H/=
Revisiting %egal and 0udi"ial Ethi"s# Challenges and 5erspe"tives The Imperatives of 5rin"ipled %egal 2dvo"a"y
Canon / of the Code of 5rofessional Condu"t announ"es the prin"ipal o*ligation of the lawyer# uphold the Constitution! o*ey the laws of the land! and promote respe"t for law and legal pro"esses 0usti"e does not figure in this arti"ulation of the lawyers: duty 2nd it should not *e assumed! naively! that the lawyers: o*ligation to uphold the Constitution and the laws is eo ipso his o*ligation to see that ,usti"e is done! for laws are not ne"essarily ,ust! espe"ially when applied to "on"rete "ir"umstan"es
In fa"t! the first aporia of legal ethi"s makes itself felt <hen the law itself ? parti"ularly in relation to the spe"ifi" fa"tual "onstellations of "ases ? yields un,ust results! what then does the o*ligation of the lawyer to o*ey the laws "onsist in; Does this *ind the lawyer to $"ram down( the law despite its un,ust results; I take it that it is not to *e seriously "ontested that a lawyer "annot ethi"ally take up a position ? whether it should serve his "lient:s interests or not ? that would allow his "lient to transgress the law 2fter all! as an offi"er of the "ourt! the lawyer owes his allegian"e prin"ipally to the "ourt! without detra"ting from his fidu"iary o*ligation towards his "lient
I am advan"ing a rather straightforward proposition# It is the lawyer:s o*ligation to *e ethi"al that o*ligates him to promote ,usti"e at all times ? and it is a lawyer:s espousal of the "ause of ,usti"e that links the spe"iali1ed "on"ern with the law to the ideal not ideali1ed -uality of so"ial and individual human living
<ith "hara"teristi" elo-uen"e does the >eneral 6tatute for the 6panish )ar Estatuto >eneral de %a 2*oga"ia Espanola make this point when it e&pressly provides#
$The fundamental o*ligation of the lawyer as a parti"ipant in the pu*li" fun"tion of the administration of ,usti"e is to "ooperate in su"h administration! "on"iliating and defending in law su"h interests as may *e entrusted to him In no "ase! however! do su"h interests ever ,ustify the lawyer:s departure from the supreme end of ,usti"e to whi"h the )ar is ine&tri"a*ly linked(@
2 propos are the e&-uisite lines written *y the late i"oni" 0usti"e 0)% Reyes whi"h he suggested to *e the mantra of all lawyers#
$No master *ut the law! No guide *ut "ons"ien"e! No goal *ut ,usti"e(
These /= simple words in = short lines whi"h "an *e uttered in less than a se"ond en"apsulate what I have *een talking a*out in the past several minutes
@ Estatuto >eneral de la 2*oga"ia Espanoloa! Titulo III! Capitulo 5rimero! 2rti"ulo =H @ The I*5 0ourNal
9ilarion % 2-uino
The Ethi"s of 5rose"utorial Dis"retion
Dire"tly related to the su*,e"t of ,usti"e as the overar"hing "riterion of ethi"al "ondu"t on the part of the lawyer is the matter of the e&er"ise of prose"utorial dis"retion From a string of de"isions on the su*,e"t! I "ite only two! twin "ases in fa"t# 5o v Department of 0usti"e and Chiu v Court of 2ppealsJ In these "onsolidated "ases! the Court held that! a*sent grave a*use of dis"retion! it "ould not interfere with the dis"retion of the prose"utor to file a "ase! all that was re-uired *eing a finding of pro*a*le "ause
Re"ently! as the 6upreme Court enfor"ed the newly+minted rule on the 0udi"ial 2ffidavit! prose"utors were agitated They in fa"t su""eeded in se"uring from the Court a stay in the implementation of the rule insofar as they were "on"erned The essen"e of their "omplaint was that! in those "ases "overed *y the rule on the ,udi"ial affidavits! they would have to *e ready! already at pre+trial! with all the ,udi"ial affidavits of all the
witnesses they intend to present *y whi"h to prove the guilt of the a""used This is *e"ause 6e" B * of the rule gives a "aveat to the prose"ution that ,udi"ial affidavits not su*mitted *efore the preliminary "onferen"e or pre+trial shall not *e a""epted during the trial The prose"utors argued that all that was ne"essary for the filing of the Information was $pro*a*le "ause( <hy then were they now re-uired! under the new rule! to muster all their eviden"e so that the ,udi"ial affidavits "ould *e prepared and duly su*mitted *efore "ommen"ement of trial;
I will formulate the issue in the following manner# Is it ethi"al for a prose"utor to file the Information in the
awareness that all the eviden"e that he has! esta*lishes only $pro*a*le "ause( whi"h is of "ourse insuffi"ient to "onvi"t the a""used;
It has *e"ome "ommonpla"e for prose"utors to argue that sin"e all that the rules re-uire for Information to *e filed is $pro*a*le "ause(! then that is the -uantum of eviden"e they need at the time they go to "ourt I must then ask# If they file the Information in the full awareness that at the time they do so! they have only su"h
eviden"e as esta*lishes pro*a*le "ause! would the prose"utors *e a"ting legally in filing the Information; Kes! of "ourse )ut would they *e a"ting ethi"ally;
Remem*er the %atin aphorism# Non omne -uad li"it *onestum est( Not everything permitted is honora*le )ut does a prose"utor have any option other than to file the information if in the preliminary investigation he finds pro*a*le "ause; The rule in effe"t provides that a finding of pro*a*le "ause is ne"essary for the filing of the information *ut it does not follow that where there is pro*a*le "ause ? without anything more ? the
Information must *e filed' The pro*lem is first logi"al# the illi"it transmutation of a "ategori"al proposition ? $is re-uired( ? to a modal proposition ? $must *e filed('
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Revisiting %egal and 0udi"ial Ethi"s# Challenges and 5erspe"tives
$5ro*a*le "ause( is defined in 6e"tion /! Rule //. of the Rules of Court as that eviden"e whi"h is suffi"ient to engender a well+founded *elief that a "rime has *een "ommitted and the respondent is pro*a*ly guilty thereof ay I yet again ask# Is it ethi"al to indi"t a person for the "ommission of an offense whi"h immediately and inevita*ly puts him and the mem*ers of his family to shame! in"ar"erates him if the "rime "harged is non+ *aila*le or even if *aila*le! if he "annot afford to post a *ail! *urdens him with e&penses of litigation and attorney:s fees! and makes him suffer an&iety and the in"onvenien"es of trial with time and effort spent when all that the prose"utor has is eviden"e showing the pro*a*ility of the indi"tee:s guilt; Note! most of these *urdens and in,uries are emotional or psy"hologi"al ? and! therefore! irrepara*le
To answer that in the affirmative! is to me! to tolerate an in,usti"e if not oppression To *e sure! my proposition is not new at all
The California Distri"t 2ttorneys 2sso"iation Uniform Crime Charging 6tandards dire"ts prose"utors a""ording to the following rules#
$/ )asi" Criteria for Charging# The prose"utor should "harge only if the following four *asi" re-uirements are satisfied#
a The prose"utor! *ased on a "omplete investigation and a thorough "onsideration of all pertinent data readily availa*le to him! is satisfied that the eviden"e shows the a""used is guilty of the "rime to *e "harged4 * There is legally suffi"ient! admissi*le eviden"e of a "orpus deli"ti4 " There is legally suffi"ient! admissi*le eviden"e of the a""used:s identity as the perpetrator of the "rime "harged4 d The admissi*le eviden"e should *e of su"h "onvin"ing for"e that it would warrant "onvi"tion of the "rime "harged *y a reasona*le and o*,e"tive fa"t+finder after hearing all the eviden"e availa*le to the prose"utor at the time of "harging and after hearing the most plausi*le! reasona*ly foreseea*le defense that "ould *e raised under the eviden"e presented to the prose"utor &&&(8
<hy indeed should a prose"utor *e allowed to gam*le with the honor! the li*erty! the property and the well+ *eing of a person in the "ru"i*le of a "riminal pro"eeding on the *asis of a mere e&pe"tan"y# that his
inade-uate eviden"e may per"han"e *e fortified or reha*ilitated during trial;
8 Cited in Limring and Fra"e! The Criminal 0usti"e 6ystem )oston# %ittle! )rown and Company! /BAH! p @@= J The I*5 0ourNal
9ilarion % 2-uino
In a very informative and frank arti"le *y 0ohn Maplan in the Northwestern %aw Review! we are told how things go in the federal prose"utor:s offi"e Maplan writes# $The first and most *asi" standard is the assistant:s
2ssistant United 6tates 2ttorney view of the a""used:s guilt of the "rime "harged It is generally agreed that! regardless of the strength of the "ase! if the prose"utor does not a"tually *elieve in the guilt of the a""used! he has no *usiness prose"uting
0UDICI2% ET9IC6 0udging For 0usti"e
Nowhere in the si&teen se"tions that "onstitute 2rti"le III of our Constitution! on the ,udi"iary! will one find mention of $,usti"e( Of the two hundred ninety si& se"tions of the fundamental law! $,usti"e( figures only in the 5ream*le and in 6e"tion / of 2rti"le PI that *inds all pu*li" offi"ers and employees to a"t with $,usti"e( I have tried to e&plain this *y the fa"t that $,usti"e( is a"tually a very diffi"ult "on"ept 2 non+legal attri*ute! it is in fa"t a moral "on"ept
2rti"le III! 6e"tion /@ "onfines the *ases of a Court:s ,udgment to the $fa"ts( and the $law( 2nd when you have a 6upreme Court pronoun"ements like ? $Courts are mere instruments of the law and in administering and "onstru"ting it! they "an will nothing *ut the will of the law(A ? then it should not *e surprising that ,udges will rest "ontent a*out having rendered a ,udgment that pays o*eisan"e to the letter of the law! no matter how atro"iously un,ust the results may *e
In this regard! the important pronoun"ement of 0usti"e Cru1 in the 2lon1o "ase earlier mentioned is worth re"alling#
Thus! we interpret and apply the law not independently of *ut in "onsonan"e with ,usti"e %aw and ,usti"e are insepara*le! and we must keep them so To *e sure! there are some laws that! while generally valid! may seem ar*itrary when applied in a parti"ular "ase *e"ause of its pe"uliar "ir"umstan"es In su"h a situation! we are not *ound! *e"ause only of our nature and fun"tions! to apply them ,ust the same! in slavish o*edien"e to their language <hat we do instead is find a *alan"e *etween the word and the will! that ,usti"e may *e done even as the law is o*eyed
2s ,udges! we are not automatons <e do not and must not unfeelingly apply the law as it is worded! yielding like ro*ots to the literal "ommand without regard to its "ause and "onse-uen"e QCourts are apt to err *y sti"king too "losely to the words of a law!: so we are warned! *y 0usti"e 9olmes again! Qwhere these words import a poli"y that goes *eyond them: <hile we admittedly may not legislate! we nevertheless have the power to interpret the law in su"h a way as to refle"t the will of the legislature <hile we may not read into the law a purpose that is not there! we nevertheless have the right to read out of it
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8 olume =A! Num*er = G @ + 0uly + De"em*er .H/=
Revisiting %egal and 0udi"ial Ethi"s# Challenges and 5erspe"tives
the reason for its ena"tment In doing so! we defer not to Qthe letter that killeth: *ut to Qthe spirit that vivifieth:! to give effe"t to the law maker:s will(
Every ,udge will do well to pay heed on"e more to a provision of law that! *e"ause it is so familiar! is now no longer "arefully read 2rti"le /H of the Civil Code dire"ts# $In "ase of dou*t in the interpretation or appli"ation of laws! it is presumed that the lawmaking *ody intended right and ,usti"e to prevail( No matter that the seeming transparen"y of the provision of law! if its appli"ation should result in ini-uity! mali"e! in,usti"e and unfairness! then there is a resulting am*iguity that the ,udge must resolve in favor of the right and ,usti"e that the
%egislature is presumed to have intended
I do not think then that there is anything so revolutionary a*out my proposal that when a magistrate renders ,udgment! he should do so on the *asis of fa"t and law with deli*erate intent to do ,usti"e 2nd whether or not
the Constitution is amended to in"lude this phrase or not! this! I su*mit! remains a moral imperative in every a"t of ,udging
In the several le"ture sessions I have had with ,udges all over the "ountry as a mem*er of the 5hilippine 0udi"ial 2"ademy! I have had the o""asion to ask what they would do when "onfronted *y this dilemma# rendering a ,udgment that they knew to *e legally "orre"t *ut patently un,ust No one takes "omfort from the aphorism dura le& sed le&' Kou "annot -uiet a "ons"ien"e that *others you a*out having visited in,usti"e *y intoning a Roman aphorism'
If a law has not yet re"eived an authoritative interpretation! then the trial "ourt should "onstrue it in su"h a way as to attain ,usti"e 9owever! if there is already a pre"edent! the trial "ourt is not at li*erty to ignore it The do"trine whi"h "ommands adheren"e to pre"edents in "alled stare de"isis et non -uieta movere whi"h means that on"e a "ase has *een de"ided one way! then another "ase! involving e&a"tly the same point at issue! should *e de"ided in the same manner
)ut! if the "ase *efore the ,udge is not e&a"tly on all+fours with the pre"edent due to some pe"uliar fa"ts or "ir"umstan"es! then the ,udge! when demanded *y the tenets of ,usti"e! may de"ide the "ase differently! in effe"t "onstituting su"h an ad,udi"ation as an e&"eption to the pre"edent I su*mit that the rule on stare de"isis "an a""ommodate this reasona*le ,udi"ial rendition
2 famous 2meri"an philosopher+,urist! 2ppellate 0udge Ri"hard 5osner puts it well# $The very thing that gives a "hain of pre"edents its strength ? length over time ? may in a "hanging so"iety signal o*soles"en"e(B
In relation to the so"ial "onte&ts in whi"h ,udgments are to take effe"t! I would like to take up the matter of $pu*li" welfare( in relation to the ,udi"ial disposition of "ases Note! like $,usti"e(! $pu*li" welfare( is not mentioned in the Constitution as one of the
B Ri"hard 5osner! The 5ro*lems of 0urispruden"e Cam*ridge4 9arvard University 5ress! /BBH! p //B A The I*5 0ourNal
9ilarion % 2-uino
*ases of a de"ision 9owever! the pream*le of the Constitution in part states that the government must promote the "ommon good 6e"tion @! 2rti"le II makes it the prime duty of the >overnment to serve and prote"t the people 6e"tion /! 2rti"le PI "ommands that pu*li" offi"ers and employees serve the people with utmost responsi*ility and a"t with ,usti"e
In our demo"rati" government where the people are sovereign! their welfare is the ultimate goal of
government In "onne"tion with the offi"e of a ,udge! the -uestion immediately presents itself# In rendering a de"ision! should pu*li" interest or welfare *e a relevant "onsideration; <hen a foreign investor! for e&le! wins an award to "onstru"t a gargantuan pro,e"t in the 5hilippines into whi"h he is to invest a handsome sum! *ut he fails to "omply with some re-uirements! a "ase is *rought for the res"ission of the award <ould it *e ethi"al to *e in"lined towards res"ission! or to find a way to save the award *y employing su"h devi"es as $su*stantial "omplian"e(! $"onstru"tive noti"e(! $good faith attempt(! $"olora*le title(; Is it altogether
in"onse-uential to a ,udge that an adverse ,udgment against su"h an investor may very well keep potential investors at *ay and deprive thousands of Filipinos of ,o*s; I su*mit that under "ertain "ir"umstan"es! pu*li" welfare should *e fa"tored in the de"isional pro"ess
I asked ,udges several times! if it has "ome to their knowledge that pi"tures and sket"hes were taken at the s"ene of the vehi"ular in"ident *ut they are not *efore the "ourt! should the ,udges demand for their produ"tion in "ourt if they *elieve that said pi"tures and sket"hes are needed *y them to resolve an issue in the "ase ost of the time! ,udges answered that they would not! lest they *e thought of favoring a party In other words! the prevailing ethos is one of passivity ? the ,udge merely awaiting what is presented *efore him and rules on it
It is time! I think! for the ,udge to *e truly in "ontrol of pro"eedings# and this means asking for eviden"e! if the ,udge thinks that the eviden"e is ne"essary The fear of *eing suspe"ted of *ias should not prevail against the ,udge:s passion to find the truth and to arrive at a fair ,udgment that does not depend on how su""essfully
parties have "on"ealed eviden"e True! it is! that this ,udi"ial attitude! we "arried over from the 2meri"ans! *ut as history has taught us! our 2meri"an heritage is a *ag of mi&ed *lessings and woes
6hift to In-uisitorial 6ystem of Trial
From the advent of the 2meri"an "olonial rule in the 5hilippines! the "ondu"t of trial in our "ountry had
generally *een the adversarial system This method is identified with the "ommon law tradition One aspe"t of this system is the re-uirement that the ,udge should restrain himself from e&er"ising his right to e&amine
witnesses Ta*uena v 6andigan*ayan!/H tea"hes that as mu"h as possi*le! ,udges should stay out of the "ondu"t
/H .HJ 6CR2 =A. /BB8
B olume =A! Num*er = G @ + 0uly + De"em*er .H/=
Revisiting %egal and 0udi"ial Ethi"s# Challenges and 5erspe"tives
of trial! neither interfering or intervening therein They should ask -uestions to witnesses sparingly and ,udi"iously and only to "larify some am*iguities in the eviden"e
The ,udge! in adversarial pro"eedings! is a neutral umpire! who ensures that the eviden"e is presented in a""ordan"e with "ertain ground rules! and "an generally ask only "larifi"atory -uestions! *ut not to take over from the "ontending attorneys 9e then ad,udi"ates on the *asis of the eviden"e presented *y the adversary parties//
On 6eptem*er @! .H/. the 6upreme Court promulgated the 0udi"ial 2ffidavit Rule/. whi"h *e"ame effe"tive on 0anuary /! .H/= 6ignifi"antly! this issuan"e planted the seed of the in-uisitorial system of trial in the 5hilippines Under this Rule! the -uestioning of witnesses *y the ,udge is no longer ,ust a right *ut more importantly! an imperative duty The ,udge! is "ommanded *y 6e"tion 8 to take a"tive part in e&amining the witnesses to determine their "redi*ility as well as the truth of their testimony and to eli"it the answers that he needs for resolving the issues
6oon after the 0udi"ial 2ffidavt Rule was promulgated! the 6upreme Court has started the revision of the /BB8 Rules of Civil 5ro"edure The proposed revision "hanges the trial system in the 5hilippines from generally adversarial to generally in-uisitorial system Under the proposed rules the ,udge would not ,ust *e a passive umpire *ut an a"tive third party! representative of the 6tate:s sovereignty! who seeks ,ust solutions to disputes and "ontroversies
Not too long ago! at a symposium organi1ed *y the %egal Edu"ation )oard that had partnered with the >raduate 6"hool of %aw of 6an )eda College! 0usti"e Ro*erto 2*ad and Dr 5a"ifi"o 2ga*in introdu"ed the law deans to the proposed revision to the Rules of Civil 5ro"edure Features su"h as the re-uirement of written demand and prior to su*mission to at least two modes of alternative dispute resolution! the re-uirement that
,udi"ial affidavits *e atta"hed already to the initiatory and to the responsive pleadings! *ut a*ove all the fa"e+to+ fa"e trial that involves the ,udge a"tively in the e&amination of the witness ? all these "onstitute a radi"al
departure from the "omfort 1one of lawyers for whom "ourt room meant dais! witness *o& and "ounsel:s ta*le *ehind the )ar
CONC%U6ION# T9E CU%TI2TION OF %E>2% 2C2DEI2
I shall "on"lude with a su*,e"t very "lose to my heart! as the very first "hairman of the %egal Edu"ation )oard From the time I entered into the dis"harge of the duties of my offi"e! I have always advo"ated the development of legal a"ademia as a distin"t profession There is no dou*t that all of us have *een s"hooled at the feet of giants in the legal profession! and ten of them have *een honored *y the %egal Edu"ation )oard *y ins"ri*ing their names in the 9all of Fame! ten more were honored posthumously )ut the fa"t is that law professors in this "ountry have largely *een law pra"titioners with time
// Farrar and Dugdale! Introdu"tion to %egal ethod! .nd Edition %ondon# 6weet and a&well! /BA@! pp B + JH /. 2 No /.+A+A+6C
/H The I*5 0ourNal 9ilarion % 2-uino
to spare for tea"hing law In other words! almost all of us who tea"h law or who have taught it have *een! at *est! $in"idental professors(
<hen I advan"e the "ause of the formation of legal a"ademia ? professorship and ,uristi" s"holarship! in other words ? I am not advo"ating anything new In fa"t! the Renaissan"e of 0ustinian:s Copus 0uris Civilis is owed to the professors at su"h an"ient law fa"ulties as )ologna and 5adua where law primarily did not mean "ourt appearan"es and legal "ounseling *ut a dis"ipline of study that e&a"ted mu"h in terms of intelle"tual energy from those who pursued it
<e must then resolutely move towards the formation of legal a"ademia as a distin"t profession ? one that pla"es a premium on s"holarship in the law! with the time and the opportunity to resear"h and to e&plore on topi"s great and small! not harried *y the prospe"t of what might *e asked in the )ar E&aminations ? and that prepares the a"ademi" for the supremely no*le vo"ation of passing on to others! neophytes in the s"ien"e of ,urispruden"e and the law! the fruits of the a"ademi":s mature and re"ondite refle"tions
