Thursday, October 31, 2013

A Broken Judicial System; Can It Still be Fixed?

Transparency International has identified a number of severe hindrances to the smooth delivery of justice in the Philippines. These are: (1) backlog of cases; (2) delays in resolving complaints against members of the judiciary, court officers and lawyers; and (3) inadequate salaries and facilities. These are merely symptoms of the underlying main problem that beset the judiciary.

Judge's average salary is currently pegged at US$5,996 a year. While most judges receive additional allowance from local government units and the Supreme Court, even at US$28,000 a year the salary is still low compared to the workload. However, this should not be an excuse anymore why judges can be prone to corruption. Inadequate salary is only a supplementary problem to the main problem besetting the judicial system in the Philippines: the lack of proper accountability in the system.

The accountability factor starts with the selection of judges which is being handled by a Judicial and Bar Council. This body is prone to patronage politics such that lawyers aspiring to become judges are expected to have a political sponsor in order to be appointed as judge. While this does not necessarily lead to dependence of the judiciary to politicians, it has the effect of eroding the public's trust in the judicial system and also the judicial system's perception of itself. The aura of independence, meritocracy and allegiance to the rule of law is already eroded at the onset. Reforms are thus needed in the judicial selection process.

The second accountability factor is the presence or lack thereof of a monitoring and disciplinary framework. The need to monitor and discipline erring judges may be made insignificant if the educational system has instilled in future judges the moral and republican-democratic values that are the foundation for a solid judicial system. However, we are already aware that our own educational system is wanting in that regard because it is itself one of the most corrupt institutions in the country. Thus, there is a great need to strengthen the monitoring and disciplinary framework of our judicial system.

Chief Justice Ma. Lourdes Sereno was correct in saying, when she was interviewed by the JBC for the post of Associate Justice, that reforms in this area must come from the top. We must take our cue from the leadership in the Supreme Court. Now that she is in the helm, despite the difficulties she is facing as a relatively young and inexperienced primus inter pares or first among equals, we hope that the chief justice can push forward the reforms she intended. One of the reforms she must implement now is to create an efficient mechanism of reporting to the Supreme Court the corrupt and inept practices of judges. This should be coupled with prompt resolution of complaints against judges. While there have been a number of cases already where several judges were dismissed from service, these numbers are still considered too small compared to the number of judges who are perceived by lawyers and the public to be inept and corrupt. That is why we must also fix our current system that discourages the media from commenting on the public behavior of judges and their decisions. The concept of maintaining an aura of institutional invincibility of judges and the courts is already outdated in this age of transparency. No institution must be exempted from public scrutiny and democratic discourse. Many people are still afraid of corrupt and scheming judges because they wield so much power yet to make them accountable is an arduous and painful process reserved only to the most persistent and courageous fighter.

When can ordinary citizens or lowly lawyers be able to stand up against a corrupt and inept judge without fear of reprisal and with full trust that the system's leadership will examine their cause with efficiency and objectivity? That is a big question that is still hanging in the air.

Wednesday, October 30, 2013

Secretly Recording a Conversation is Illegal

Section 1 of Republic Act 4200 or the Anti-Wiretapping and Protection of Privacy of Communication Act (An Act to Prohibit and Penalize Wire Tapping and Other Related Violations of the Privacy of Communication, and for Other Purposes) states:

"It is shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or walkie-talkie or tape recorder, or however otherwise described:
It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be covered by this prohibition."
 Penalty upon conviction for violation of the said section is imprisonment for not less than six months or more than six years.

This law was approved on June 19, 1965 which explains its outdated enumeration of devices used for illegal recording. With the phrase "any other device or arrangement", the law still clearly includes 21st century devices such as smartphones and digital recorders. But the enumeration of outdated devices is not the only thing outdated about this law. Some courts in the United States have already recognized that their laws on wiretapping and privacy of communication have been misused to forbid any recordings of people without their knowledge. A report says one court has declared that secretly recording a conversation, in this case an iPhone, is legal as long as no crime was committed with the recording and the recording was for a legitimate purpose. For the recording to be illegal, the intention must be to commit tort against the individual beyond the recording itself and not for any reasonable purpose. (https://www.techdirt.com/articles/20100818/17141010676.shtml) Moreover, many states in the US have already adopted the principle of "one party consent recording of oral communications" which means that secretly recording a conversation is legal as long as the one recording it is a party to the conversation.

With Republic Act 4200 still in effect, however, secretly recording a conversation can still jeopardize the person who recorded the conversation or the person who shared the recorded conversation knowing that it was secretly recorded.

Be careful of this outdated law.

Monday, October 28, 2013

What to Do During the Waiting Period After the Bar Exams

The bar exam month in the Philippines is over after the fourth Sunday exam last October 27. When I took the bar exams in 2009, it was still held in the month of September. But because of Typhoon Ondoy which caused massive flooding in Metro Manila, our last Sunday exam was postponed and stretched to the first week of October. With the exams over, what should the anticipating lawyer-to-be do while waiting? Here's what you can do that may help you:

1. Forget about the bar exams for at least until January next year.

There is Christmas to look forward to in December and you really need a break after those more than six grueling months. It's okay to avoid those people who keep on reminding you about the upcoming bar exam results, or to ask the people close to you not to talk about the bar exams.

2. Take a vacation, at least for the next two weeks. You deserve it!

3. Get a job or get back to your job after taking that vacation.

This may be easier said than done. It was a difficult experience for me because I quit my full-time job before I started preparing for the bar exams. Post-bar, when I was ready to go back to the job market, I could not easily get a full-time job because my prospective employers felt threatened that if I pass the bar exams I would leave them for the legal profession. So good luck looking for that job. For me, I lived a life of poverty for the next five or six months of waiting for the bar exam results because I could only settle for odd part-time jobs. But the sacrifice was worth it when I became a lawyer.

4. Pray.

The waiting period is the time to spiritually prepare yourself for the success or failure that is about to come. Whatever the results, you need to be spiritually ready because in the event God answers your prayers with a resounding "Yes!" and you are not spiritually and morally ready, you will succumb to the usual temptations that come with being a lawyer - the abuse of money, women (or perhaps vanity in the case of lady lawyers) and power.

5. Apply your knowledge of the law.

Seize every opportunity to apply your knowledge of the law. This is the best time to do it because the laws that you have studied for the last four years in law school plus six months of preparation are still fresh in your mind. This will not only help you in your future practice but this can also help you in establishing a network of more clients in the likely event that you become a lawyer.

Good luck and God bless!!!

Saturday, October 26, 2013

What Constitutes Tortious Interference?

Article 1314 of the Civil Code, or the law against tortious interference, states that any third person who induces another to violate his contract shall be liable for damages to the other contracting party. A third person is anyone who is not party to the said contract.

What constitutes inducement? According to the Supreme Court, there is inducement where a person persuades or intimidates another into choosing one course of conduct. (Go vs. Cordero, G.R. No.  164703, May 4, 2010) Hence, the party-claimant must prove that the party who breached their contract did so not by his own volition but because the intruder persuaded or intimidated him into doing it.

However, to constitute tortious interference, the inducement must be malicious.

Thus in Gilchrist vs. Cuddy (G.R. No. L-9356, February 18, 1915), the Supreme Court held that "where there was no malice in the interference of a contract, and the impulse behind one’s conduct lies in a proper business interest rather than in wrongful motives, a party cannot be a malicious interferer." This is interesting because the intruder may justify his interference as solely motivated by his financial interest and not to cause harm to the affected party. You don't even have to compare who stands to lose the most in the transactions.

The elements, therefore, of tort interference are: (1) existence of a valid contract; (2) knowledge on the part of the third person of the existence of a contract; and (3) interference of the third person is without legal justification. (Go vs. Cordero)

Friday, October 25, 2013

Good Debt, Bad Debt

Even before becoming a lawyer, I have always been interested in economics and in my spare time I have been browsing through literature about the economic system. So allow me this time to digress from the main topic of this law blog and discuss about debts from an economic point of view.

The only good debt is one that you incur to increase the value of what you already have so you can pay off that debt and still be left with more valuable assets in the future. All the rest are bad debts which may allow you to live well in the present but will steal your future time and freedom.

On another perspective, debt promotes productivity in a way that it compels the debtor to work hard and be productive in order to pay for what he is enjoying now. But that is only true if the debt proceeds are used to acquire non-consumable assets that are useful in the long term and not quick to depreciate, or whose values appreciate over time. In that way, debt is actually used to accumulate capital assets now which is not possible without debt. The debt shall then be paid by present and future toils plus the added value that the capital assets give to exponentially increase the productivity of work.

So, are you incurring good debts or bad debts?

Thursday, October 24, 2013

Quashal of Warrant of Arrest

A warrant of arrest may be quashed on the ground that it was issued without probable cause. In Allado vs. Diokno (G.R. No. 113630, May 5, 1994), the Supreme Court declared that "probable cause for an arrest or for the issuance of a warrant of arrest has been defined as such facts and circumstances which would lead a reasonable discreet and prudent man to believe that an offense has been committed by the person sought to be arrested."

In the same case, the Supreme Court found no probable cause in the issuance of the warrant of arrest considering the following circumstances:

(1) The accounts of the complainant and his witnesses were incredible, laden with inconsistencies and improbabilities;

(2) The evidence thus far presented was utterly insufficient;

(3) The judge did not personally examine the evidence nor did he call for the complainant and his witnesses in the face of their incredible accounts;

(4) Instead, the judge merely relied on the certification of the prosecutors that probable cause existed; and

(5) The prosecutors themselves have similarly misappropriated, if not abused, their discretion to determine probable cause.

The Supreme Court said:
"Clearly, probable cause may not be established simply by showing that a trial judge subjectively believes that he has good grounds for his action. Good faith is not enough. If subjective good faith alone were the test, the constitutional protection would be demeaned and the people would be "secure in their persons, houses, papers and effects" only in the fallible discretion of the judge."

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