5 Pillars Of Justice 1q5g3x

Supreme Court of the Philippines

United Nations Development Programme

Conduct of Further Study on Operations and Linkages of the 5 Pillars of Justice FINAL REPORT March 2006

RM consultants, inc.

Conduct of Further Study on Operations and Linkages of the 5 Pillars of Justice FINAL REPORT March 2006

United Nations Development Programme – Supreme Court of the Philippines CONDUCT OF FURTHER STUDY ON OPERATIONS AND LINKAGES OF THE 5 PILLARS OF JUSTICE

TABLE OF CONTENTS Chapter 1

Chapter 2

Chapter 3

Chapter 4

GENERAL INTRODUCTION 1

Background of the Project .................................................................................. 1-1

2

Scope of the Desk Review and Integration ........................................................ 1-2

3

Report Format .................................................................................................... 1-4

SYSTEM OVERVIEW AND CONCEPTUAL FRAMEWORK 1

Introduction......................................................................................................... 2-1

2

Criminal Justice System Overview ..................................................................... 2-1

3

Normative Protection .......................................................................................... 2-8

4

Conceptual Framework of the Study ................................................................ 2-16

SYNTHESIS OF THE DIAGNOSTIC STUDIES 1

Introduction......................................................................................................... 3-1

2

Performance in Providing Justice Remedies...................................................... 3-1

3

What the Strengths Are .................................................................................... 3-14

4

What the Needs to be Improved Upon ............................................................. 3-17

PROPOSED ROAP FOR CRIMINAL JUSTICE SYSTEM REFORMS 1

Objectives ........................................................................................................... 4-1

2

Composition of Reforms ..................................................................................... 4-1

3

Recommendations.............................................................................................. 4-2

LIST OF TABLES Table 2.1

Laws on the Protection of Vulnerable Sectors........................................................ 2-15

Table 3.1

Annual Caseload and Clearance Rates, Lower Courts, 2000-2004)........................ 3-2

Table 3.2

Annual Caseflows and Disposition Rates, Lower Courts, 2000-2004 ...................... 3-2

Table 3.3

Composition of Judicial Actions Lower Courts, 2000-2004 ...................................... 3-3

Table 3.4

Prescribed Time Durations in the Processing of Cases in the Courts...................... 3-3

Table 3.5

Percent of Civil and Criminal Cases Exceeding Prescribed Time Limits, Lower Courts ...................................................................... 3-4

Table 3.6

Disposition of Cases at the RTC and MTC/MCTC/MTCC for Y2002 ....................... 3-8

RM CONSULTANTS, INC.

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Table 3.7

Dispositive Action/Disposal Rate Preliminary Investigation of Criminal Cases, 1994-2003 .................................................................................. 3-9

Table 3.8

Occupancy Condition in National Penitentiaries, 2000............................................. 3-9

Table 3.9

Length of Time from Arrest to Last Hearing of Case April 2003 (Sentenced Inmates) ............................................................................. 3-11

Table 3.10 Annual Crime Volumes, 1995 – 2003 ..................................................................... 3-13 Table 3.11 Crime Solution Rate Selected Countries ................................................................ 3-13 Table 3.12 The Cost of Maintaining a Criminal Justice System National Government Obligations, 2005 ................................................................ 3-22 LIST OF FIGURES Figure 2.1 The Five Pillars of the Justice System ..................................................................... 2-3 Figure 2.2 Criminal Procedures in the Philippines, Summary.................................................. 2-10 Figure 2.3 Framework for Access to Justice ........................................................................... 2-17 Figure 2.4 Functionally Integrated Criminal Justice System .................................................... 2-19 Figure 2.5 Capacity Framework for a Functionally Integrated Criminal Justice System.......... 2-21 Figure 2.6 Capacity Assessment and Development Framework ............................................. 2-22


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1 GENERAL INTRODUCTION

1

BACKGROUND OF THE PROJECT

1.1

The Technical Assistance Project

1.1.1

Several studies and reform initiatives have been undertaken during the past 6 years in the various pillars of the justice system.

1.1.2

The Judiciary is in the thick of detailing and installing a 6-year Action Program for Judicial Reform (APJR), 2001-2006, which comprises of various reforms in institutions development, court systems and istration, court technologies, human resources development, information technology, court-community relations and reform systems.

1.1.3

The Department of Justice (DOJ) conducted a diagnostic study of agencies within the department performing prosecution, correction, law enforcement and community (public defender) functions. Specific studies on the Public Attorneys Office (PAO), the legal assistance system for the poor, and on the correction system and inmates were also undertaken and provided a rich resource of perspectives useful in understanding the issues and the reform responses that will address these.

1.1.4

The Philippine National Police (PNP) has completed several diagnostic studies, and on the basis of these studies adopted the Integrated Transformation Program (ITP) for the PNP where reforms in the police system’s legal and institutional framework; PNP structure, operations, human, financial and physical, as well as logistical resources; integrity and ability; and external linkages were identified and programmed over the medium-term.

1.1.5

Several other thematic studies were also conducted on the pillars. These studies have invariably pointed out the inextricable relationship among the 5 pillars and the need to seamlessly integrate, harmonize or connect as the case may be the policies, operating systems, technologies and competencies in order for the entire criminal justice system to function as an efficient and effective integrated system. The agencies concerned recognize the need for the synchronization of the scope and content, sequencing, timing, and perhaps public investments of the 5 pillars.

1.1.6

In response, the UNDP Governance Portfolio in partnership with the Program Management Office of the Supreme Court contracted the services of the RM Consultants, Inc. to undertake the project entitled: CONDUCT OF FURTHER STUDY ON OPERATIONS AND LINKAGES OF THE 5 PILLARS OF JUSTICE. The RM


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Consultants fielded a team of two (2) governance reform specialists 1 who have had extensive participation in the conduct of diagnostic studies and formulation of reform programs in the pillars of justice in the Philippines. 1.2

Purpose and Expected Outputs of the Engagement

1.2.1

As stated in the of reference, the purpose of the engagement is to conduct a desk review of studies in the criminal justice system, and harmonize as well as consolidate the outputs and recommendations in such a way that complementation will result, producing a unified set of recommendations applicable to all five pillars. In particular the engagement aims to: a)

Assess and harmonize various recommendations made by the five pillars during a series of FGDs and the National Forum conducted in 2004.

b)

Develop a rationalization approach for the five pillars towards enhancing and integrating the criminal justice system, which will be the basis for the eventual formulation and implementation of a Medium-Term Criminal Justice System Development Plan.

1.2.2

The expected outputs of the engagement consist of a draft final report which will be validated with the stakeholders and fine-tuned and finalized with their inputs. The report will contain the integration of the assessment and recommendations. Another expected output is a documentation report containing the highlights of issues and agreements reached during the validation workshop on the final output.

1.2.3

It is emphasized at this point that the content of the consultants’ outputs are delimited to what are contained in the studies reviewed. The work involves a desk review and synthesis as well as integration of the assessments and recommendations of the identified studies in the criminal justice system. The recommendations provide a roap for reforming the criminal justice system towards improving its functioning as an integrated system.

1.2.4

The timing, annual programming and sequencing, as well as the financial estimation of the cost of the design and implementation of the reforms and the management thereof, are not within the scope and resources of this engagement but should be part of the more detailed and planned Medium-Term Development Plan for the Criminal Justice System.

2

SCOPE OF THE DESK REVIEW AND INTEGRATION

2.1.1

The engagement basically involves desk review of relevant studies and reports. The task of the consultants is to consolidate and review the outputs and recommendations of previous studies and reports on fora conducted in relation to the five pillars of the criminal justice system. Where gaps in the assessment studies and recommendations are identified, these are pointed out and recommendations on what measures are needed to fill these study gaps are presented.

1

Vicky Alinsug, Governance and Institutions Development Specialist and Team Leader; Vienna Diuco, Institutions and Systems Engineering Specialist


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2.1.2

2.1.3

While the initial intent of the engagement is to harmonize 4 or 5 studies on the criminal justice system funded by the UNDP Governance Portfolio, the studies and reports actually reviewed and found to be useful and relevant comprised of 12 studies which include the following: a)

Strengthening the Other Pillars of Justice through Reforms in the Department of Justice, an institutional review of the law enforcement, prosecution, correction and public defender agencies of the Department of Justice, undertaken by RM Consultants, Inc.

b)

National Forum on Access to Justice through the Reforms in the Five Pillars of the Criminal Justice System, facilitated and reported by the Development Academy of the Philippines

c)

Focus Group Discussions on the Five Pillars of Justice facilitated and reported by the Development Academy of the Philippines

d)

Transforming the Philippine National Police Into a More Capable, Effective and Credible Police Force, Part 1: Focus Group Discussions, facilitated and reported by the Program Management Office, Supreme Court of the Philippines

e)

Transforming the Philippine National Police Into a More Capable, Effective and Credible Police Force, Part 2: Diagnostic Study and Reform Program Formulation, undertaken by RM Consultants, Inc.

f)

Freedom and Death Inside the Jail: A Look Into the Condition of Quezon City Jail, undertaken by Raymund E. Narag

g)

Assessment of the Public Attorney’s Office,2003, undertaken by the La Salle Institute of Governance

h)

National Survey of Inmates and Institutional Assessment, undertaken by RM Consultants, Inc.

i)

A Survey of Private Legal Practitioners to Monitor Access to Justice by the Disadvantaged, undertaken by The Arts and Sciences Interdisciplinary Network, Inc. (ASIN)

j)

Institutional Strengthening of the Shari’a Justice System: Phase 1, undertaken by RM Consultants, Inc.

k)

Papers on Mobilizing the Community Pillar, by various authors including Ms. Menez-Zafra, Chairperson, Community Pillar, NAPOLCOM Technical Committee on Crime Prevention and Criminal Justice, Philippines; Ms. M. Kakihara, Professor, UNAFEI; Mr. K Aizawa, Deputy Director, UNDAFEI; Mr. F. Seril, Chairman, PASUC; and Mr. R. Salvosa, President, Child and Family Service Philippines, Inc.

l)

Office of the Ombudsman Medium-term Anti-Corruption Plan, undertaken by RM Consultants, Inc., Office of the Ombudsman, and UNDP

There are several other earlier and later studies and reports on specific pillars that continue to be relevant, where identified issues remain current, and for which solutions that have been recommended remain to be implemented. These were therefore also considered, as follows: a)

Judicial Sector Study for the Philippines undertaken by Ms. Karen Hudes, World Bank


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b)

Formulation of istrative Reforms, a diagnostic study of the Judiciary undertaken by RM, Supreme Court, and World Bank

c)

Action Program On Judicial Reform undertaken by the Supreme Court, with services from RM and the World Bank

d)

Case Decongestion and Delay Reduction Strategy: Phase 1, conducted by RM, Supreme Court, and World Bank

e)

Enhancing Communication Between the Judiciary and the Citizenry, conducted by the Asian Institute of Journalism and Communication, Supreme Court, and UNDP

f)

The Philippine Criminal Justice System, conducted Prof. Myrna Feliciano and Alberto Muyot, Supreme Court, and World Bank

g)

Enhancing Access of the Basic Sectors to the Judiciary, conducted by Dr. Emmanuel Buendia, Supreme Court, and UNDP

h)

Strengthening the Independence and ability of the Judiciary, conducted by RM Consultants, Association of State Universities and Colleges of Canada, National Center for State Courts, The Asia Foundation, Supreme Court, and Asian Development Bank

i)

Institutional Studies and Reform Program Formulation and Design, various activities conducted by RM Consultants, Inc., Commission on Human Rights of the Philippines, and UNDP

2.1.4

A review of other studies and empirical experience were also undertaken. From the review of the studies and reports, the consultants developed an integrated reform approach, identified areas of integration and the strategies by which an integrated criminal justice reform program can be anchored. The integrated criminal justice reform framework is expected to ensure that reforms will be anchored on human rights, gender mainstreaming and access to justice.

3

REPORT FORMAT

3.1.1

This draft final report is organized into the following major components: Chapter 1: GENERAL INTRODUCTION Chapter 2: CONCEPTUAL FRAMEWORK Chapter 3: ASSESSMENT Chapter 4: ROAP FOR CRIMINAL JUSTICE SYSTEM REFORM


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2 SYSTEM OVERVIEW AND CONCEPTUAL FRAMEWORK

1

INTRODUCTION

1.1.1

This chapter presents an overview of the criminal justice system and the conceptual framework and approach of the integration study. The framework derived guidance from many approaches, including the UNDP’s rights-based approach to access to justice as contained in the document: Programming For Justice: Access to All, A Practitioner’s Guide to a Human Rights-Based Approach to Access to Justice, and from public sector, institutional development, systems and capacity assessment and development approaches.

2

CRIMINAL JUSTICE SYSTEM OVERVIEW

2.1

Definition and Goals

2.1.1

The criminal justice system is the mechanism which the society uses in the prevention and control of crime. It consists of the system of courts, including the barangay justice system, the informal justice system implemented through practice particularly by indigenous communities, and the quasi-judicial bodies empowered by law to perform adjudicatory functions; the systems for law enforcement and prosecution which involve investigating, apprehending and prosecuting those who could not be deterred from violating the law and the rules of the society; the system of corrections and rehabilitation or the means of rehabilitating offenders and returning them to the community as law-abiding citizens; and the community which collectively imposes limitations on individual behavior of citizens for the common good of civilized and democratic society that deters criminality and criminal behavior.

2.1.2

Along the above features, the Supreme Court has provided a definition of the criminal justice system which has been used as a working definition in this further study on the five pillars of the criminal justice system. The Supreme Court defines the criminal justice system as: “. . .the system or process in the community by which crimes are investigated, and the persons suspected thereof are taken into custody, prosecuted in court and punished if found guilty, with provision being made for their correction and rehabilitation.”1

1

The representatives of the agencies of the criminal justice system suggested during the January 2006 validation workshop on the study that a more descriptive definition of criminal justice system, which is acceptable to all the pillars, be crafted. They observed that the Supreme Court definition is delimiting and is not reflective of what the system actually embodies. They also noted that it is less indicative of the actual involvement of both claimholders and duty holders in the different pillars, especially that of the community whose concerns cut across all other pillars.


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2.1.3

The goals of the criminal justice system are: a)

To make sure that there are no wrongful convictions and that the right person is identified and convicted of the crime he/she committed; that both suspect and victim have access to remedies; that they are provided with a speedy and impartial process that ensures the protection of their human and legal rights, and equal treatment before the law; that the appropriate remedy is applied to the convicted; and, that while serving sentence the convicted is accorded humane treatment and adequate to enable him to develop or redevelop his capacity as a good and productive member of the community.

b)

To gain and sustain the trust and confidence of the community, and engage the community as an active and effective partner in solving crime, and in facilitating the provision of remedies particularly through restorative justice.

c)

To develop capacity of communities to demand accessible, speedy, impartial and quality justice, and in particular the appropriate remedies for their grievances.

2.2

Types of Crimes

2.2.1

The law provides presumption of innocence of all suspects and detained persons until proven guilty in court.

2.2.2

There are about 18 types of crimes as specified in the penal code and other laws: a) b) c) d) e) f) g) h) i) j) k) l) m) n) o) p) q) r)

Crimes against national security and law of nations Crimes against the fundamental laws of the state Crimes against public order Crimes against public interest Crimes related to opium and prohibited drugs (As amended by RA 6245) Crimes against public morals Crimes committed by public officers Crimes against persons Crimes against personal liberty and security Crimes against property Crimes against chastity Crimes against civil status of persons Crimes against honor Quasi-judicial Offenses Special crimes as provided for under special laws such as carnapping, hijacking, plunder, etc) Violations of city and municipal ordinances Crimes handled by special courts such as corporate crimes, heinous crimes, intellectual property rights violations, violation of forestry laws Crimes under the jurisdiction of the Barangay Justice System


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2.2.3

These types are based on the classification of cases by the courts. There is no formally established common and operational classification of crimes within the criminal justice system other than that provided for in the penal code and other crime legislation. The unification and codification of criminal law and crime classifications will help in harmonizing information across the pillars of the criminal justice system.

2.3

Institutional Framework

2.3.1

While other countries have only 3 or 4 pillars of the criminal justice the criminal justice system of the Philippines comprises of 5 pillars with the formal inclusion of the community among the pillars of the criminal justice. Figure 2.1 THE FIVE PILLARS OF THE\ JUSTICE SYSTEM LAW ENFORCEMENT

PROSECUTION

JUDICIARY

CORRECTIONS

OFFENDER

Process flow Linkages

COMMUNITY SOURCE: UNDP-SC, Survey of Inmates, RM Consultants, Inc.

2.3.2

In the Philippines responsibility for the criminal justice system is primarily with the national government with local governments performing ive roles. LAW ENFORCEMENT

2.3.3 2.3.4

Law enforcement involves prevention of the commission of crime and the protection of the life, liberty and properties of citizens. The national government plays the primary role in law enforcement, particularly in policing. The Philippine National Police (PNP) and the National Bureau of Investigation (NBI) are the primary law enforcement agencies of the national government. There are other 34 agencies performing police functions each of which usually has specific functional and geographical jurisdiction defined by law. But these 34 other


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government agencies have very limited policing competencies and resources and therefore utilize the police force of the PNP to carry out their operations. 2.3.5

The PNP maintains an extensive network of regional, provincial, city/municipal, district offices and police stations. The PNP delivery system is such that national units, regional offices, provincial offices, directly deliver police services to the community in addition to the city/municipal stations and their precincts also operated by PNP. The NBI also maintains its own network of regional and field offices. Within PNP and NBI are specialized task forces assigned to address special functions and type of crime and criminal incidences.

2.3.6

Local government units perform law enforcement functions as mandated in the local government code. The executive heads of the local government (mayors and governors) have the power to enforce all laws and ordinances relative to the governance of the local government. The mayor also exercises oversight functions over the PNP in his capacity as deputized representative of the National Police Commission. He formulates and implements the local peace and order plan, and exercises general supervision over the police force in the locality. Local executive heads are also empowered to call on law enforcement agencies of the national government to suppress disorder, riot, lawless violence, rebellion or sedition or to apprehend violators of the law. PROSECUTION

2.3.7

The prosecution pillar conducts preliminary investigation of cases filed in the prosecutors’ offices and prosecutes cases filed in the court against alleged offenders, after probable cause has been established.

2.3.8

Prosecution is the responsibility of the prosecution pillar which comprises primarily of two national government agencies, the National Prosecution Service, an organic unit of the Department of Justice and the Office of the Ombudsman. The Office of the Ombudsman is an independent agency responsible for the investigation and prosecution of graft and corruption cases and is empowered under the Constitution to have fiscal autonomy. The Public Attorney’s Office under the Department of Justice provides a wide range of legal services including prosecution and defense. As a matter of policy, PAO lawyers only intervene in cases that are already pending in court (Feliciano and Muyot, WB, SC, 2000).

2.3.9

A Chief State Prosecutor heads the NPS. Five (5) Assistant Chief State Prosecutors assist the Chief State prosecutor The Office of the Chief State Prosecutor is composed of 119 State Prosecutors. Under the istrative supervision of the Chief State Prosecutor are 14 Regional State Prosecutors, 96 City Prosecutors, 79 Provincial Prosecutors, and 1,801 Assistant City and Provincial Prosecutors. All in all, state prosecutors total 2,109. The number of prosecutors assigned in each city and province depends on the size of the province or city. In some cases, new cities are established without providing for additional prosecutor positions in the Office of the City Prosecutor.

2.3.10 The OMB has a total of 1,141 positions, of which 846 (74%) are filled and 295 (24%) are vacant. Of these, 40 (03%) are managerial positions, 544 (48%) are technical


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positions, 167 (15%) are to technical positions and 390 (34%) are istrative positions. There are about 60 prosecutor and 150 investigator positions. In the year 2006 budget, 40 new prosecutor positions and 200 new investigator positions are provided. The OMB estimates that a total of 500 investigator and 200 prosecutor positions will be needed in order to establish workload ratios that achieve efficiency and speed in the processing and prosecution of corruption cases. Technical positions are composed of investigators and prosecutors. Under the current staffing structure, there is almost 1:1 ratio between technical and non-technical positions. JUDICIAL SYSTEM AND DISPUTE RESOLUTION 2.3.11 Judicial power is vested in the Judiciary. The independence of the Judiciary is enshrined in the Constitution which provides that the budget of the Judiciary is automatically released and should not be less than that of the previous year. 2.3.12 The judiciary pillar adjudicates cases and renders judgment. The Philippine Judiciary is a four-tiered court system consisting of the Supreme Court as the highest court of the land; the intermediate courts consisting of the Court of Appeals, Sandiganbayan, and Court of Tax Appeals; the second level courts totaling 2080, which consist of 950 Regional Trials Courts; and the first level courts comprising of the 82 Metropolitan Trial Courts, 141 Municipal Trial Courts in Cities, 425 Municipal Trial Courts, and 426 Municipal Circuit Trial Courts. 2.3.13 The Philippine court system is founded both on codal and customary laws. The Shari’a Justice system has formalized into the mainstream of the judicial system customary laws and justice among Muslim communities through the creation of 5 Shari'a District Courts, and 51 Shari'a Circuit Courts which exercise jurisdiction over cases involving persons, family and property relations of Muslim Filipinos. A study conducted on the Shari’a courts indicated that a significant proportion of cases under the jurisdiction of the Shari’a courts were settled outside of the court, many of them by the Shari’a judges themselves acting as community leaders. While there were noticeably low caseloads in the Shari’a courts, Shari’a judges were in fact burdened with cases handled under the informal system. 2.3.14 The Judiciary has 32,000 positions in its authorized staffing pattern. Of this number, only about 2,000 are positions of justices and judges. The current judge-population ratio as of 2005 is estimated at 1:43,000. 2.3.15 In addition to the Judiciary, there are agencies in the national government that perform quasi-judicial functions on cases pertinent to the functions of their mother departments. Twenty-three of these quasi-judicial bodies while are under the istrative supervision of the President of the Philippines, have independence with respect to their adjudicatory functions which are appealable only to the Court of Appeals, except those of the Commission on Elections and the Commission on Audit whose decisions are appealable to the Supreme Court. 2.3.16 There is also the Barangay Justice System which adjudicates assigned cases at the barangay level before they are eventually filed in the courts. Moreover, there are the


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Court Annexed Mediation System which currently has 28 pilot units, and the private sector mediation organizations that are involved in case adjudication. 2.3.17 The Local Government Code provides for a barangay justice system, effective 1992, through the creation of a council of justice (lupong tagapamayapa) composed of the barangay chairman as head and 10 to 20 . The council is to be constituted every three years, coinciding with the tenure of the local government officials. A conciliation is constituted for every dispute brought before the Lupon consisting of three to be chosen by the parties to the dispute from the list of the . Supreme Court istrative Circular No. 14-93 stipulates that all disputes are subject to barangay level conciliation as pre-condition to the filing of a complaint in court or any government office, except in certain disputes specified therein. 2.3.18 The Supreme Court established in 2000 a system of court-annexed mediation. Through an istrative issuance, the Supreme Court established a Philippine Mediation Center under the supervision of the Philippine Judicial Academy to serve as a court-annexed mediation unit in each of the various lower courts in the country and in the Court of Appeals. CORRECTION 2.3.19 The correction pillar is composed of two major and equally significant components: the institution-based and the community based corrections. The institution-based corrections comprise of prisons and jails which are concerned with prisoners serving term of imprisonment, those under detention status, and those for safekeeping in selected cases. The jails and prisons are istered by the Bureau of Corrections of the DOJ, the Bureau of Jail Management and Penology of the DILG, and by the local government units with regard to provincial and sub-provincial jails. The Philippine National Police likewise maintains detention facilities in its different police stations nationwide. 2.3.20 Community-based corrections pertain to probation and parole. These are being managed by the Parole and Probation istration (PPA) of the DOJ. PPA conducts a post-sentence investigation of petitioners for probation as referred by the courts, as well as pre-parole/pre-executive clemency investigation for those referred by the Board of Pardons and Parole (another DOJ agency), to determine the suitability of the offender to be reintegrated in the community instead of serving their sentence inside an institution or prison. PPA further supervises probationers, parolees and conditional pardonees to promote their rehabilitation and reintegration to the mainstream of society. It mobilizes the community resources, especially through volunteer probation aides. 2.3.21 The Bureau of Pardons and Parole is authorized by law to grant parole to qualified prisoners. It also recommends to the President of the Philippines the grant of executive clemency in the form of reprieve, commutation of sentence, conditional pardon and absolute pardon.


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2.3.22 The Department of Social Welfare and Development moreover assumes responsibility for the restorative part of the correction system by maintaining centers for the care and restoration of youth and women who are in conflict with the law. THE COMMUNITY 2.3.23 Criminal justice in many countries has in recent years begun to recognize the power of working with communities and organized groups in fighting criminality. It is only in the Philippines however that the community is formally recognized as a pillar of the criminal justice system (Menez-Zafra), although the definition and role of the community pillar under the system has somehow not been clearly defined. 2.3.24 The community pillar collectively imposes limitations on individual behavior of citizens that deter criminality and criminal behavior for the common good of civilized and democratic society. Institutions such as the barangays, government agencies, legislative bodies, the academe, and religious and civic organizations, among others, are involved in this pillar. It is however commonly understood that the organized civil society and community perform both the roles of dutyholders and claimholders in the istration of justice. As dutyholders, they have the responsibility to assist law enforcement and the courts in solving crime by providing information, by community participation in crime prevention and creating a culture of peace, and by ing the mobilization of resources for peace and order. As claimholders they are the beneficiaries of the justice system and they play critical roles in holding system dutyholders able. 2.3.25 Non-Government Organizations (NGOs) and Civil Society Organizations (CSOs) play and increasingly active role in the criminal justice system both as instruments of ability and as partners in providing criminal justice services. 2.3.26 The Constitution of the Philippines guarantees the provision of adequate legal assistance to the poor. Legal assistance refers to free judicial and non-judicial services provided by law practitioners or groups to indigent of society. Judicial and non-judicial services include legal counseling, documentation or preparation of legal instruments, complaints, petitions and other pleadings, and representation to courts and quasi-judicial bodies. 2.3.27 The country’s social defense system comprises of the Public Attorney’s Office which is the primary agency responsible for providing legal assistance to indigent parties. The courts also provide free legal assistance to indigent parties, and so do several government agencies and private groups providing legal assistance to the poor, including the Commission on Human Rights, the Bureau of Agrarian Legal Assistance of the Department of Agrarian Reform, and the Philippine Overseas Employment istration. Each of these agencies handles cases pertinent to their functions. There are also several private organizations and civil society groups providing free legal assistance such as law firms, the Integrated Bar of the Philippines, legal clinics in law schools of universities, anti-crime groups, and alternative law groups.


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3

NORMATIVE PROTECTION

3.1

Description

3.1.1

UNDP refers to normative protection as individual, institutional and collective capacities to ensure that justice remedies to people, especially the disadvantaged, are legally recognized, either by formal laws or customary norms. Legal protection thus provides the bases, either or both in of formal laws or traditional practices, for the recognition of people’s rights and the subsequent provision of remedies to their grievances and complaints within the scope of the criminal justice system.

3.1.2

Norms, which comprise formal and informal laws, are socially generated and have the capacity to provide protection. Formal laws are legislated in respond to social demand. Informal laws on the other hand evolved through social interactions and are enforced by non-governmental institutions. Laws establish the of reference for the social contract under which citizens live and work together and are governed by a state authority. These laws provide the rudiments of social order where standards of right and wrong are defined, individual rights are protected, and the systems of remedies and penalties are enforced through the coercive power of the State.

3.2

National Framework for Normative Protection

3.2.1

The national framework for normative protection consists of the Constitution, legislation, court decisions or jurisprudence, and customary practices. In the Philippines, democratic governance and socio-economic development rest on a foundation of law which is recognized and valued by both citizens and state authorities. These laws, which are embodied in the Constitution, statutes, judicial opinions, and international instruments, comprise the body of official rules and regulations that govern the society and control the behavior of its . ƒ

The Constitution as the basic and supreme law of the country provides the general framework and principle by which a State is run. It is the standard by which other national legal instruments and governmental actions and decisions are based and measured.

ƒ

Legislation or statutory law is enacted by the legislature or the Congress of the Philippines. It comprises of statutes, codes, acts or legislative resolutions and decrees. Local governments are authorized by the constitution to formulate and in local ordinance pertaining to minor offenses such as traffic violations. These three sources of laws provide the legal infrastructure of the criminal justice system.

ƒ

Court decisions or jurisprudence is the link between the normative framework and the individual. They provide normative protection through the application of laws and international standards, especially those on human rights.

ƒ

Informal laws can either be written or unwritten. Customary norms and practices are the main sources of informal laws which likewise provide normative protection.


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ƒ

International agreements like treaties, conventions, covenants and charters concluded between states are also sources of normative protection. They are often supplemented by protocols and often stated in declarations, standards, rules, guidelines, recommendations and principles.

3.2.2

International treaties and conventions are best exemplified by those pertaining to the promotion and protection of human rights. At the core of the international human rights system is the United Nations and its charter which was signed on 26 June 1945. The charter provides provisions that set the foundation for the international human rights system. In particular, under Article 55 of the charter member-nations commit to promote “universal respect for and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.” Article 56 of the charter provides that all commit to take t and separate actions in cooperation with the UN to ensure the achievement of the provisions of Article 55.

3.2.3

The Philippines is signatory to twenty-three (23) human rights treaties and protocols. Thus, the government is bound to comply with and ensure the implementation or observance of the provisions of these treaties and protocols. International treaties provide protection and promote access to justice by providing (a) international obligations for states; (a) other standards that are not binding to the states as such but give normative guidance on specific issues (e.g., resolutions, declarations, guiding principles, etc.) and may be indicative of a growing internal consensus to further develop the international legal framework; (c) an additional forum for access to justice (e.g. communications and inquiry procedures initiated through treaty bodies and regional courts and commissions, in cases where national mechanisms are ineffective); (d) mechanisms to monitor states compliance with treaty obligations; and (c) an additional forum to create or influence national norm making.

3.2.4

The legal system has certain elements consisting of the (a) rules, which can be international or domestic, constitutional or ordinary, procedural or substantive, formal or informal in nature; (b) processes through which rules are made, applied, interpreted and enforced in practice (i.e., rule-making, rule-enforcing, and rulechanging); and (c) the relevant actors and institutions , whose mandate, functions, programs and concerns are involved with and related to the rules and processes of the systems.

3.3

The Formal Legal Protection System

3.3.1

The criminal justice system is the mechanism society uses to maintain social control or enforce the standards of conduct necessary to protect individuals and the community. This system operates through the pillars of the justice system, which starts with discovering of the commission of a criminal act, investigating, identifying and apprehending suspects, conducting preliminary investigation to establish probable cause, and prosecution in the courts, processing of the case in the court, rendering of judgment, serving of sentence and release after completion of the sentence. The process is and should always be controlled and influenced by laws and interpretations of law.


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3.3.2

The criminal justice system adopts the prescribed and established criminal procedures, rules and regulations. Figure 2.2 provides an overview of these procedures based on the Rules on Criminal Procedures of the Rules of the Court. The processes involved in the investigation and prosecution of criminal cases comprise the following: •

•

Police Investigation Preliminary Investigation Issuance of the Prosecutor’s Resolution Filing of the Information in Court Arrest of the Accused and Posting of Bail Arraignment [Plea of Guilty or Not Guilty to the Offense Charged] Pre-Trial Trial

•

Sentencing or Judgment

• • • • • •

Figure 2.2 CRIMINAL PROCEDURES IN THE PHILIPPINES, SUMMARY 2 to 3 months

POLICE INVESTIGATION

FILING OF INFORMATION AND COURT EVALUATION

PRELIMINARY INVESTIGATION/ INQUEST ARREST BY VIRTUE OF WARRANT

ARREST WITHOUT WARRANT

ARRAIGNMENT

DETENTION IN JAIL

POLICE LOCK UP

PRETRIAL

11 months

RELEASE ON BAIL

TRIAL

COMMITMENT TO NATIONAL PRISONS (as required by law)

SERVING OF PRISON SENTENCE (if found guilty)

JUDGEMENT

REMEDIES


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3.3.3

Police investigation is done motu propio or upon filing of complaint in the police station. Investigation is undertaken through surveillance, interview of persons with knowledge of facts directly or indirectly connected with the offense (including the suspects who consent to be questioned), entrapment operations, search and seizure and arrest, interrogation of suspects in police custody and gathering of physical evidence on the case. The police report is prepared and a case is filed with the Prosecutor’s Office within the geographical jurisdiction.

3.3.4

As a general rule, no person may be taken into custody except only by virtue of a warrant of arrest issued by a competent court. Arrest without warrant by a peace officer or a private person may only be allowed under the following circumstances specified in the Rules of Court: • • •

3.3.5

When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

Alleged offenders subject to such arrest are detained in police lock-up jails for custodial investigation. Persons under custodial investigation have the following rights enshrined in the Constitution: •

•

•

He must be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel; No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him; secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited; Any confession or ission obtained in violation of the foregoing shall be inissible in evidence against him.

3.3.6

A preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial.

3.3.7

Except in cases of lawful arrest without warrant, a preliminary investigation is required to be conducted before the filing of a complaint or information for an offense where the penalty prescribed by law is at least four (4) years, two (2) months and one (1) day without regard to the fine.

3.3.8

A preliminary investigation is essentially a judicial inquiry since there is the opportunity to be heard, the production and weighing of evidence, and a decision rendered on the basis of such evidence. In this sense, the investigating prosecutor is a quasi-judicial officer. A preliminary investigation is intended:


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•

•

3.3.9

to secure the innocent against hasty, malicious and oppressive prosecution and to protect him from an open and public accusation of a crime and from the trouble, expense and anxiety of a public trial; and to protect the State from having to conduct useless and expensive trials.

The conduct of a preliminary investigation is a substantive right, which the accused may invoke prior to, or at least at the time of plea, the deprivation of which would be a denial of his right to due process.

3.3.10 In brief, in the investigation of criminal complaints, the private complainant or the police files a complaint-affidavit with the prosecutor's office, alleging that a certain person has committed a criminal offense. As part of due process, the respondent, who is accused of committing such an offense, is allowed to file a counter-affidavit. The prosecutor handling the case usually conducts a hearing to the allegations contained in their respective affidavits, and evaluate the ing documents. In areas where there are no prosecutors, lower court judges conduct preliminary investigation. 3.3.11 At this stage, the prosecutor has to establish the standard of "probable cause", meaning that based on the allegations of the complainant and the respondent, there is reasonable ground to believe that a crime has been committed, and that the accused is probably guilty thereof. The finding of probable cause is contained in a document called a "resolution". If the reviewing official (the city or provincial prosecutor) approves of the resolution, then the proper information is filed in the proper court. (The "information" is a formal accusation or charge against a person who is believed to have committed the crime). If the imposable penalty is below six years, then the case is filed with the Municipal Trial Court. If the imposable penalty is more than six years, then the case is filed with the Regional Trial Court. 3.3.12 Inquest on the other hand is an informal and summary investigation conducted by a public prosecutor in criminal cases involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether or not said persons should remain under custody and correspondingly be charged in court. 3.3.13 Unless otherwise directed by the City or Provincial Prosecutor, those assigned to inquest duties discharge their functions during the hours of their designated assignments and only at the police stations/headquarters of the PNP in order to expedite and facilitate the disposition of inquest cases. The inquest proceedings must be terminated within the period prescribed under the provisions of Article 125 of the Revised Penal Code, as amended. The periods prescribed are: • • •

12 hours, for crimes or offenses punishable by light penalties, or their equivalent; 18 hours, for crimes or offenses punishable by correctional penalties, or their equivalent; and 36 hours, for crimes or offenses punishable by afflictive or capital penalties, or their equivalent.


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3.3.14 Criminal actions are instituted by filing the complaint or information directly with the Municipal Trial Courts and Municipal Circuit Trial Courts, or the complaint with the office of the prosecutor. In cases where the preliminary investigation is conducted by the investigating judge, the investigating judge shall transmit the resolution of the case to the provincial or city prosecutor. The latter shall then review the resolution of the investigating judge on the existence of probable cause, and may affirm, modify or reverse the finding of the judge. The prosecutor shall order the release of an accused who is detained if no probable cause is found against him. 3.3.15 In the case of a capital offense, (i.e., the possible sentence could be death or life imprisonment), the complaint has to be resolved within 90 days from the time that the case is assigned to the prosecutor. In all other cases, whether they are cognizable by the Regional Trial Court or the Municipal Trial Court, these cases must be resolved within 60 days from assignment. 3.3.16 The Speedy Trial Act also provides certain time standards within which the case should be decided, as follows: • • • •

From the time of the filing of the information to arraignment - 30 days From the time of arraignment to the first trial day - 30 days From the first trial day to the termination of trial - 180 days From the termination of the trial to the issuance of the decision - 90 days

3.3.17 Ideally, a criminal case pending with the lower courts should take no more than eleven (11) months to finish, from the time the charge is filed, to the time that the decision is promulgated.

3.4

Alternative Justice and Informal Norms of Protection BARANGAY JUSTICE SYSTEM

3.4.1

The Katarungan Pambarangay System or Lupong Tagapamayapa was created under the Local Government Code 0f 1991 (LGC) to assist in the settlement of disputes arising from potential litigants who reside in the same barangay, municipality or city. Most civil disputes and criminal cases punishable by imprisonment not exceeding one year or by a fine not exceeding Php5,000, based on the provisions of the LGC and arising between potential litigants residing in the same municipality or city, may be brought to the Katarungan Pambarangay. The Barangay System is the most important mechanism in reaching amicable settlement.

3.4.2

The Barangay Justice System is expected to contribute to the decongestion of court dockets. The following are its notable features: • • • •

Disputes are settled through mediation and conciliation precedent to court action rather than through litigation and adjudications Conciliation is compulsory since it is a condition precedent to court action Lawyers are banned from the conciliation proceedings No cost or fees charged for services rendered in connection with the proceedings


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•

Conciliators are chosen and appointed by the Barangay Captain from among the peers and neighbors of the disputants

QUASI-JUDICIAL AGENCIES OF THE EXECUTIVE BRANCH 3.4.3

The quasi-judicial agencies in the executive branch, although not considered as courts of justice, are empowered to hear and decide on cases provided by their respective mandates. ALTERNATIVE DISPUTE RESOLUTION

3.4.4

Republic Act 9285 (2004) institutionalizes the use of an alternative dispute resolution (ADR) system in the Philippines, to promote party autonomy in the resolution of disputes or the freedom of the party to make their own arrangements to resolve their disputes. The law likewise directs the active promotion on the use of ADR as an important means to achieve speedy and impartial justice and de-clog court dockets.

3.4.5

The law defines ADR as any process or procedure used to resolve a dispute or controversy, other than by adjudication of a presiding judge of a court or an officer of a government agency, in which a neutral third party participates to assist in the resolution of issues. ADR includes arbitration, mediation, conciliation, early neutral evaluation, mini-trial, or any combination of these schemes. There is a current courtannexed mediation system in the Judiciary which took off from the case congestion and delay reduction strategy of the APJR (Action Plan for Judicial Reform) and from learning derived from international experience. INFORMAL/TRADITIONAL LEGAL SYSTEMS

3.4.6

The 1997 Philippine Constitution provides that the state shall consider the customs, traditions, beliefs and interests of national cultural communities in the formulation and implementation of state policies (Art. XIV, sec.17).

3.4.7

Republic Act 8371 or the Indigenous Peoples’ Rights Act was ed, recognizing the indigenous peoples’ justice system and conflict resolution institutions. This is in recognition, for example, of the traditional justice systems of the indigenous communities in the Cordilleras and among the Lumads of Mindanao, whose traditional practices serve as alternative dispute mechanisms. While the systems among the indigenous peoples’ justice systems vary in approaches and methodologies, common to these traditional practices is the participation of the community in settling disputes.

3.4.8

PD 1083, enacted prior to the adoption of the 1987 Constitution, provides for the codification of Muslim Personal Laws and the establishment of a Shari’a Justice System. By creating a formal system for informal norms of justice, the state recognizes the uniqueness in their thinking of Muslim Filipinos of what is just and lawful in civil relationships, from the thinking of the rest of the country as embodied in our civil laws. Criminality is however still within the purview of the criminal code and other laws and not within the ambit of the Shari’a justice system.


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3.4.9

Muslim justice is based on religion. Muslim tradition involves strong roles played by religious leaders in informally settling disputes. Justice is guaranteed to all regardless of any social and political biases. Thus the judgment is based solely on the Word of Allah and the teachings and learning from the life, actions and words of Muhammad as the Prophet. Above all human matters or considerations, which include man-made laws, is the divine law and the principles of Allah communicated to man. This is the basis of justice, and it is istered to all.

3.4.10 Among the Muslims, informal settlements particularly on cases involving family and property matters are preferred over the formal (court) processes. Shari’a court judges themselves have assumed the role of customary elders that citizens can seek help to resolve conflicts, an indication of the pervasive informal nature of Muslim dispute resolution traditions that are deeply imbedded in practice.

3.4

Laws on Vulnerable Sectors

3.4.1

The Philippines has enacted certain laws that will benefit the vulnerable sectors of the society. Table 2.1 lists some of these major pieces of legislation and the specific target marginalized groups of each: Table 2.1 LAWS ON THE PROTECTION OF VULNERABLE SECTORS SECTOR

PHILIPPINE LAW

Victims of unjust imprisonment/ detention and victims of crimes

RA 7309

An Act Creating a Board of Claims Under the Department of Justice for Victims of Unjust Imprisonment or Detention and Victims of Violent Crimes and for Other Purposes

Arrested persons/detainees

RA 7438

Defining Certain Rights of Persons, Arrested , Detained or Under Custodial Investigation as well as the Duties of the Arresting, Detaining and Investigating Officers and Providing Penalties for Violations Thereof

Senior citizens

RA 9257

Expanded Senior Citizen’s Act of 2003

Women

RA 7877

Anti-Sexual Harassment Act of 1995 Declaring Sexual Harassment Unlawful in the Employment , Education, or Training environment and for Other Purposes

RA 6725

An Act Strengthening the Prohibition on Discrimination Against Women with Respect to and Conditions of Employment, Amending for the Purpose Article One Hundred Thirty-Five of the Labor Code , as Amended

RA 6955

An Act to Declare Unlawful the Practice of Matching for Marriage to Foreign Nationals on a Mail-Order Basis and for Other Similar Practices, Including the ment, Publication, Printing or Distribution of Brochures, Fliers and Other Propaganda Materials in Furtherance Thereof and Providing Penalty Therefor

RA 7192

An Act Promoting the Integration of Women as Full and Equal Partners of Men in Development and Nation- Building and for Other Purposes


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SECTOR

PHILIPPINE LAW

RA 7322

RA 8353

Women and children

Persons with disabilities

Urban poor

Indigenous peoples

Migrant workers

An Act Increasing Maternity Benefits in Favor of Women Workers in the Private Sector, Amending for the Purpose Section 14-A of Republic Act 1161, as Amended, and for Other Purposes An Act Expanding the Definition of the Crime of Rape, Reclassifying the same as a Crime Against Persons, Amending for the Purpose Act No. 3815, as Amended, Otherwise Known as the Revised Penal Code, and for Other Purposes

RA 9208

Anti-Trafficking in Persons Act of 2003 An Act to Institute Policies to Eliminate Trafficking in Persons Especially Women and Children, Establishing the Necessary Institutional Mechanisms for the Protection and of Trafficked Persons, Providing Penalties for its Violations, and for Other Purposes

RA 7277

Magna Carta for Disabled Persons An Act Providing for the Rehabilitation, Self-Development and SelfReliance of Disabled Persons and their Integration into the Mainstream of Society and for Other Purposes

RA 7279

Urban Development Housing Act of 1992 An Act to Provide for a Comprehensive and Continuing Urban Development and Housing Program, Establishing the Mechanism for its Implementation and for Other Purposes

RA 8371

Indigenous Peoples’ Rights Act of 1997 An Act to Recognize, Protect and Promote the Rights of Indigenous Cultural Minorities/Indigenous Peoples, Establishing the Implementing Mechanisms, Appropriating Funds Therefor and for Other Purposes

RA 8042

An Act to Institute the Policies of Overseas Employment and Establish a Higher Standard of Protection and Promotion of the Welfare of the Migrant Workers, Their Families and Overseas Filipinos in Distress, and for Other Purposes

4

CONCEPTUAL FRAMEWORK OF THE STUDY

4.1

Study Perspective: Human Rights and Access to Justice FUNDAMENTAL HUMAN RIGHTS AS BASIS FOR EQUAL JUSTICE

4.1.1

2

In 1948 the United Nations ed a resolution which contained the Universal Declaration of Human Rights. The resolution enunciates that all human beings are born free and equal in dignity and in their rights. And since all human beings are equal, if their rights and dignity are infringed upon, they are entitled to equal justice.2

UNDP, 2005, Ibid.


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NORMS OF PROTECTION AND EQUAL CAPACITIES BETWEEN DUTYHOLDERS TO PROVIDE REMEDIES AND CLAIMHOLDERS TO DEMAND THE PROVISION OF REMEDIES – THE CORE FOUNDATION FOR ACCESS TO JUSTICE 4.1.2

But achieving access to equal justice requires fundamental elements: a) that the formal and informal norms of protection are established in law or tradition and are understood in a common way; and b) that the two key players in the justice system – the dutyholders and claimholders have equal capacities: the dutyholders the capacity to provide remedies and the claimholders the capacity to demand that remedies are provided (Figure 2.3) Figure 2.3 FRAMEWORK FOR ACCESS TO JUSTICE

-law enforcement -prosecution -courts -correction ----------------------policies procedures competencies technologies resources integrity ability

CLAIMHOLDERS

DUTYHOLDERS

CAPACITY TO PROVIDE JUSTICE REMEDIES

NORMATIVE PROTECTION formal, informal

CAPACITY TO DEMAND JUSTICE REMEDIES

-awareness of rights and laws -capacity to pay -legal empowerment -community empowerment mechanisms

4.1.3

The UNDP Practitioner’s Guide identifies the capacity of the dutyholders to provide remedies through formal and informal mechanisms as another key element in successfully providing a rights-based access to justice. Capacities involve such factors as institutions and functions (law enforcement, prosecution, courts, and corrections), their policies and procedures, resources and competencies, their institutional coordinative relationships as well as their integrity and ability. All these affect the accessibility of the means to obtain remedies and the speed, impartiality and quality of remedies. They also provide the foundation for effective mechanisms in insulating the system from discrimination and politicization.

4.1.4

The role of informal mechanisms in providing remedies also form an important integral part of the criminal justice system – community-based conflict resolution, mediation, conciliation and arbitration, and the traditional Islamic and indigenous peoples community–based mediation of disputes. Many of these informal and traditional norms of protection have been formalized into law now forming part of the formal system of justice. The establishment of the 56 Shari’a district and circuit


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courts in Mindanao for instance formalized Islamic traditional and customary laws and integrated them into the formal justice system. 4.1.5

The creation of 23 quasi-judicial bodies in the national government to mediate, arbitrate or conciliate disputes within the functional jurisdiction of departments also formalizes customary dispute resolution mechanisms. The adoption of community policing and community-police partnerships integrates formal and non-formal components into a more cohesive crime prevention and solution mechanism.

4.1.6

The framework posits that equal access to justice would be difficult if the community and citizens, particularly the poor and vulnerable groups themselves, lack the capacity to demand remedies. Claimholders comprising of the aggrieved parties or victims, as well as those accused must have the capacities, including the following: a)

Awareness and sufficient understanding of the remedies available and how to obtain them;

b)

Legal empowerment by having access to quality legal counsel;

c)

Capacity to pay or in the payment of the cost of litigation; and

d)

Where necessary, have from the community in cases where political empowerment is necessary to obtain justice against the powerful.

4.2

Integration Approach

4.2.1

The study starts with the recognition that the integration of the criminal justice system is in the inter-connectivity of and inextricable relationship among the functions of its pillars and that these functions are actually connected through seamlessly linked and sequential processes and operating within the context of a sound and effective legal framework (normative protection).

4.2.2

Such that, to achieve the stated goals, the pillars of the criminal justice system must be linked, each with appropriate capacity to perform its component functions, and each is performing these functions well. The defined functional linkages provide the framework for the subsequent assessment and identification of reform recommendations.

4.2.3

The study looks at the entire criminal justice system in relation to the outcomes that it must achieve and at the same time considers each of the 5 pillars as integral components of the system.


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Figure 2.4 FUNCTIONALLY INTEGRATED CRIMINAL JUSTICE SYSTEM CRIMINAL JUSTICE OUTCOMES

CRIMINAL JUSTICE FUNCTIONS AND PROCESSES

PROVIDE MECHANISMS FOR RESTORATION AND MAINSTREAMING OF OFFENDERS, MONITORS PROTECTION OF RIGHTS OF OFFENDERS ACT AS WITNESS ACT AS WITNESS PROVIDE LEGAL COUNSEL, COMMUNITY -CONDUCT INVESTIGATION -ARREST SUSPECT PROVIDE -PREPARE CASE INFORMATION -GATHER, PROCESS EVIDENCE

COMMUNITY

LAW ENFORCEMENT

- PROVIDE WITNESS PROTECTION - ASSIST COMMUNITY IN BUILDING CAPACITY TO CRIME INVESTIGATION

-CONDUCT INVESTIGATION

-ESTABLISH PROBABLE CAUSE DETERMINE, PROMULGATE FILE CASE IN COURT REMEDIES PENALTIES -PROSECUTE

PROSECUTION

-COLLABORATE IN CASE, EVIDENCE PREPARATION

THE RIGHT PERSON IS CONVICTED

COURTS

ACCESSIBLE, SPEEDY, IMPARTIAL, FAIR PROCESS PROVIDED

CORRECTION

WORK TOGETHER TOWARDS SPEEDY TRIAL PROCESS

COLLABORATE AND ASSIST IN PROVIDING QUALITY WITNESSING

APPROPRIATE REMEDIES ENFORCED HUMAN AND LEGAL RIGHTS ARE RESPECTED CONVICT PROVIDED OPPORTUNITY

ENFORCE SENTENCE, PROVIDE MECHANISMS FOR RESTORATION AND MAINSTREAMING OF OFFENDERS, ENSURE PROTECTION OF RIGHTS OF OFFENDERS

LEGAL AND POLICY FRAMEWORK

4.2.4

The study focuses on the institutional capacity components in each pillar that directly contributes to the overall effective functioning of the integrated criminal justice system. These are the resources (human, financial, logistical and technological), operating rules and procedures in criminal cases, human competencies and human values (such as integrity, impartiality, honesty and sense of duty). This approach is depicted in Figure 2.4. Within the context of a reforming and/or evolving system, leadership and management quality become critical factors of a well-functioning integrated criminal justice system.

4.2.5

After assessing the directly contributing capacity components, the study proceeded to the underlying capacity components of the each pillar – the mandates and functions, institutional structures, istrative and financial management policies, processes and practices; institutional istrative relationships; and operating systems. These are also reviewed in of their implications on such


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issues as independence and politicization; human competency, motivation, and integrity values; capacities to attract and retain quality personnel; capacities for continuing competency and institutional improvement; and other related issues. 4.2.6

The capacity assessment of each of the 4 pillars and the corresponding reform recommendations were undertaken deriving guidance from the RM capacity assessment and development framework for individual institutions. The framework which is depicted in Figure 2.5 is anchored on the view that each pillar contributes to the overall performance of the criminal justice system in accordance with its capacity. The assessment attempts to answer the following question: What capacities must be built within each pillar in order for it to contribute to a well-functioning criminal justice system that provides access to justice within the context of human rights?

4.2.7

The framework identifies the various areas and components in an organization that determines or affects its capacity to perform its functions and achieve its mission or mandate: a)

structure, functions and functional linkages

b)

production and delivery systems or mission-critical systems

c)

behavioral systems

d)

management and development systems

e)

core resources – financial, technological, physical and human


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Figure 2.5 CAPACITY FRAMEWORK FOR A FUNCTIONALLY INTEGRATED CRIMINAL JUSTICE SYSTEM CRIMINAL JUSTICE OUTCOMES

PERFORMANCE REQUIREMENTS 1.

RIGHT PERSON IS ARRESTED 2.

GOOD CASE PREPARATION AND EFFICIENT, IMPARTIAL LITIGATION PROCESS

a) PRODUCTION OF GOOD EVIDENCE b) NO POLICE MISCONDUCT OR UNINTENDED MISTAKES

a) GOOD USE OF EVIDENCE AND WITNESSES b) NO PROSECUTOR MISCONDUCT OR MISTAKES c) GOOD DEFENSE LAWYERING

a) SPEEDY, IMPARTIAL LITIGATION PROCESS b) APPROPRIATE DECISION AND SENTENCE c) NO JUDGE MISCONDUCT 3. HUMAN LIVING CONDITIONS, OR MISTAKES RESTORATIVE JUSTICE PROVIDED

4. ACCESSIBLE SERVICES OF EACH PILLAR – GEOGRAPHICAL CONVENIENCE, AFFORDABILITY, THERE IS CAPACITY TO ACCESS, INSTITUTIONS PROVIDE FACILITATIVE, ASSISTIVE CULTURE IN SERVICE DELIVERY

COMMUNITY

1. RESOURCES FOR SOCIAL DEFENSE 2. WITNESS PROTECTION 3. COMMUNITY EDUCATION AND INFORMATION 4. COMMUNITY PARTNERSHIPS 5. INTEGRITY

LAW ENFORCEMENT

1. POLICE STATION RESOURCES 2. INVESTIGATION PROCEDURES AND TECHNOLOGY 3. POLICE REPORT AND COURT WITNESSING 4. ARREST PROCEDURES 5. HUMAN COMPETENCY QUALITY AND INTEGRITY 6. COMMUNITY PARTNERSHIPS

PROSECUTION

1. RESOURCES OF FIELD 1. PROSECUTORS 2. OFFICES 3. 2. PRELIMINARY INVESTIGATION, CASE PREPARATION 4. PROCESSES AND TECHNOLOGIES 3. CASE MANAGEMENT 5. PROCESSES AND TECHNOLOGIES 4. HUMAN COMPETENCY, AND INTEGRITY

COURTS

1. COURT RESOURCES RULES OF COURT CASE MANAGEMENT 2. PROCESSES AND TECHNOLOGY HUMAN COMPETENCY. 3. INTEGRITY AND IMPARTIALITY COURT JURISDICTIONAL STRUCTURE

CORRECTION

RESOURCES OF CORRECTION INSTITUTIONS OPERATING SYSTEMS AND PROCEDURES AND TECHNOLOGY RESTORATIVE JUSTICE POLICIES AND PROGRAMS

ACCESSIBLE, SPEEDY, IMPARTIAL, FAIR PROCESS PROVIDED APPROPRIATE REMEDIES ENFORCED HUMAN AND LEGAL RIGHTS ARE RESPECTED CONVICT PROVIDED OPPORTUNITY

CRIMINAL JUSTICE OUTCOMES

CAPACITY DEVELOPMENT AREAS


THE RIGHT PERSON IS CONVICTED

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Figure 2.6 CAPACITY ASSESSMENT AND DEVELOPMENT FRAMEWORK INTEGRITY SYSTEMS

ORGANIZATIONAL VALUES • Synergy, Synchronization and Complementation • Distribution Philosophy

• Internal Control • Transparency • ability

STRUCTURAL SYSTEMS • • • •

ISSUES TO ADDRESS, INPUTS FOR PROCESSING

Formal Structure Informal Structure Linkages Decision and Communication Ladders

MANAGEMENT & DEVELOPMENT SYSTEMS • • • • •

Mandate Plan-Program-Budget Policies and Procedures R & D Innovation Performance Management

• • • •

PRODUCTION DELIVERY SYSTEMS Process Technology Production Techniques Scope of Operational Decisionmaking Authority

BEHAVIOR SYSTEMS • Recruitment • Remuneration • Career Path, Incentives and Rewards • Workplace Quality

EFFECTIVE ORGANIZATIONAL PERFORMANCE

• Efficiency • Quality • Responsiveness • Timeliness

BASIC RESOURCES FinancialO PhysicalO Manpower : Technological

4.2.8

Utilizing the capacity assessment and development framework the study analyzed the various reform areas identified in the previous studies and identified pillar-specific as well as system wide reforms that will be needed in order to achieve integrated reform impacts in the five pillars of the criminal justice. PILLARS OF JUSTICE

AREAS OF REFORM AND INTEGRATION

LAW ENFORCEMENT POLICIES PROSECUTION

PROCESSES INTEGRATION

JUDICIARY

4.2.9

FUNCTIONS AND STRUCTURES

CORRECTION

TECHNOLOGIES

COMMUNITY

RESOURCES

Reforms will be identified in the indicated reform areas both at the individual pillar level and system-wide level toward achieving a system integration, holistic reform impact on the criminal justice system. An implementation strategy which will provide the proper sequencing of the inter-pillar reforms and the general implementation organizational and operational arrangements will be formulated.


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3 SYNTHESIS OF THE DIAGNOSTIC STUDIES

1

INTRODUCTION

1.1.1

This chapter puts in perspective the desk review and the recommended roap for criminal justice system reforms by placing these within the context of the system’s performance. Consistent with the approach, the assessment examines the strengths and weaknesses of criminal justice system and defines the implications of the findings for an integrated criminal justice reform program.

2

PERFORMANCE IN PROVIDING JUSTICE REMEDIES

2.1.1

The determination of the overall performance of the criminal justice system in providing justice remedies is ultimately established by the performance statistics of our courts, where the various processes by the other pillars in seeking remedies unfold and converge. The pace and quality of the litigation process is influenced by several factors that are outside of the judicial institutions – the ability to produce the right witness and present evidence and to arrest the suspect by the law enforcement agencies; the quality and pace of case preparation and preliminary investigation and leads to the establishment of a probable cause by the prosecution; the competence of prosecutors and defenders; the availability, quality and cooperation of witnesses; and other relevant factors. The performance of the courts therefore would serve to synthesize to a large extent the overall performance of the criminal justice system. LOW CLEARANCE RATES INDICATE THAT THERE IS A HUGE CASE BACKLOG PRACTICALLY IN ALL LOWER COURTS, CREATING CASE GONGESTION. DISPOSITION RATES ARE HOWEVER MUCH HIGHER, INDICATING HARDWORKING JUDGES WITH IMPROVED CAPABILITY IN HANDLING CASES.

2.1.2

Clearance rates have remained consistently low over the years averaging at 42.94% within the period 2000-2004 (Table 3.2). However, disposition rates have also remained consistently very high averaging at 104.09% annually during the same period. Considering that the average caseloads of judges range from 300 – 3,000 cases annually the numbers indicate hardworking judges with improved capabilities in handling cases.


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Table 3.1 ANNUAL CASELOAD AND CLEARANCE RATES Lower Courts, 2000-2004 YEAR

TOTAL CASELOAD

TOTAL DISPOSED

CLEARANCE RATE (%)

2000

1,510,558

685,977

40.63

2001

1,416,667

575,699

37.15

2002

1,405,972

587,093

41.75

2003

1,352,452

529,553

39.15

2004

1,534,528

905,925

56.03

SOURCE: OCA, Supreme Court of the Philippines

Table 3.2 ANNUAL CASEFLOWS AND DISPOSITION RATES Lower Courts, 2000-2004 YEAR

INFLOWS

OUTFLOWS

DISPOSTION RATE (%)

2000

695,417

685,977

98.64

2001

592,086

575,699

97.23

2002

565,004

587,093

103.90

2003

533,573

529,553

99.24

2004

745,737

905,925

121.48


ARCHIVAL RATES CONTINUE TO COMPRISE A SIGNIFICANT PROPORTION OF TOTAL OUTPUTS OF THE LOWER COURTS, AVERAGING AT 32.86% OF ANNUAL CASES DISPOSED 2.1.3

Interviews with clerks of courts during previous diagnostic studies indicated that about 80% of total annual caseloads are criminal cases and that high archival rates were due to the non-apprehension of suspects within the prescribed 6month period. Beyond this period, a criminal case is to be considered inactive and therefore archived. In many cases the suspects could not be found.

2.1.4

With low clearance rates accompanied by high archival rates and low decision/resolution rates an estimated 25.07% or only 1 out of 4 cases filed in the courts are effectively provided justice remedies.


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Table 3.3 COMPOSITION OF JUDICIAL ACTIONS Lower Courts, 2000-2004 CASES RESOLVED/ DECIDED YEAR

% OF TOTAL CASELOAD

% OF ALL CASES DISPOSED

ARCHIVAL RATE % OF TOTAL CASELOAD

% OF ALL CASES DISPOSED

2000

23.42

51.56

15.64

34.43

2001

23.78

58.52

13.43

33.05

2002

24.79

59.38

14.58

39.91

2003

23.96

61.21

12.55

32.06

2004

29.60

50.15

14.67

24.86


A SIGNIFICANT PORTION OF CASES IN THE LOWER COURTS ARE MORE THAN 2 YEARS OLD. 2.1.5

Huge case backlogsalso means case delay. A survey of the cases in the lower courts conducted with assistance from the PHRD Grant, World Bank indicated that a significant portion of surveyed cases, ranging from 13-33%, has remained open after 2 years (Prof. Hunter, CDDRP, WB, 2002). Table 3.4 PRESCRIBED TIME DURATIONS IN THE PROCESSING OF CASES IN THE COURTS LEGAL BASIS, STAGE IN THE PROCESS

DURATION SPECIFIED BY LAW YEARS

MONTHS

DAYS

SPEEDY TRIAL ACT From filing of information to arraignment

30

From time of arraignment to first day of trial

30

From the first day of trial to the termination of trial

180

From termination of trial to the issuance of decision

90

CONSTITUTIONAL PROVISIONS Duration within which cases should be decided from submission • Supreme Court

24

• Lower Collegiate Courts

12

• All Lower Courts

3


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2.1.6

More knowledge has been gained over time on the causes of delay primarily by two important studies: The Criminal Justice System by Prof Feliciano and Muyot, and the Case Decongestion and Delay Reduction Strategy (CDDRP) Phase 1, by RM and Prof. Hunter, both funded under the World Bank’s PHRD Grant.

2.1.7

The survey indicated that a significant proportion of civil and criminal cases in all lower courts exceeded the time limits prescribed by law. Prof. Hunter’s findings on the surveyed cases reveal that time duration was affected by the type of the case or the matter involved the location of the court, and the type of court which had jurisdiction over the case, implying the nature of the case. Table 3.5 PERCENT OF CIVIL AND CRIMINAL CASES EXCEEDING PRESCRIBED TIME LIMITS, LOWER COURTS COURT

CIVIL

CRIMINAL

RTC

57.6

46.1

METC

38.8

51.4

MTCC

57.0

27.4

MTC

35.1

51.2

MCTC

50.0

34.6

Source: Prof. Rosemary Hunter, RM, CDDRP, SC-WB, 2002,

2.1.7

The causes of delay in the courts were explained very incisively and extensively in Feliciano and Muyot, 1 to come from various sources (Figure 3.a): a)

b)

Court attributable delay ƒ

Ignorance of judges to developments in law and jurisprudence and scant knowledge in rules on procedure, and deficiencies in judicial writing where judges are wanting in precision, clarity, coherence and depth. These have created another layer of delay through repetitive appeals and justices in the higher courts, considering the need to review the entire proceedings due to the lack of reliability of poorly written decisions

ƒ

Conduct of trials on a piece-meal basis, absenteeism and tardiness of judge and lawyers at scheduled hearings, leniency of judges in granting postponements, judge’s laxity in the enforcement of rules of procedures, and abuse by lawyers of rules of procedure; and

ƒ

Failure of process servers and sheriffs to act immediately on an order of execution.

Lawyer- related delay ƒ

1

Lawyers’ propensity to: (a) file petitions for mandamus, prohibitions, and certiorari even for interlocutory orders of the lower courts in order to delay the case and for postponements and extensions; (b) offer flimsy reasons

Prof. Myrna Feliciano and Alberto T. Muyot, The Philippine Criminal Justice System, PHRD Grant, World Bank and Supreme Court of the Philippines, 2000


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for not appearing in court; and (c) protract cross examination. Lawyers are said to do these to hopefully improve the position of their clients as the case drags. ƒ

c)

Delay caused by other agencies ƒ

d)

Lawyer’s lack of preparation for hearings that trigger requests for extension, postponements and dilatory tactics High caseloads of lawyers have been cited as one of the main reasons for this.

Police related causes of delay including: (a) laboratory findings not submitted promptly to the court; (b) cases not transmitted on time to the prosecutors office; (c) non-appearance during trial by police and prosecutor; (d) failure to effect a valid arrest by the police; (e) lack of coordination between prosecutor and police; (f) investigations and inquiries taking too long and constraint in issuing a warrant until proper information has been filed in the court; (g) preliminary investigation being appealed to the Secretary of Justice; (h) delay in postal service delivery of pleadings and orders sent via ed mail; and (i) defective documentation of cases from police and prosecutor.

Institutional deficiency related delay ƒ

limited budget and physical facilities

ƒ

delays in judicial appointments


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Figure 3.a CAUSES OF CASE DELAY IN THE PROVISION OF JUSTICE REMEDIES LAWYER ATTRIBUTED DELAY -Notorious filing of petitions for extensions and postponements -Absence, tardiness and ill-preparedness of lawyers -Lack of competence in discovery proceedings -Abuse of procedures and provisional remedies (such as TROs) -Heavy lawyer caseload and indiscriminate acceptance of caseload resulting in incompetence -Protracting of cross - examinations -Propensity to elevate cases by filing petitions for mandamus, prohibition or certiorari

JUDGE ATTRIBUTED DELAY -Insufficient knowledge of developments in law and jurisprudence -Deficient knowledge of court procedures - Judge absenteeism and tardiness -Trials are conducted on piece-meal basis -Leniency in granting of postponements by judges and laxity in enforcement of rules of procedures -Lack of competence in judicial decision-writing (decisions wanting in precision, clarity, coherence and depth -Poor istrative skills, poor case management, laziness, inefficiency, and corruption LAW ENFORCEMENT ATTRIBUTED DELAY -Delay in transmittal of case to Prosecutor’s Office -Protracted investigations and inquiries thus preliminary investigation remains unresolved -Evidence not promptly submitted to the court -Non-appearance during trial -Failure to effect a valid arrest -Lack of internal coordination -Poor case documentation -Weak coordination with prosecutor in case preparation

PROSECUTOR ATTRIBUTED DELAY -Protracted investigations and inquiries thus preliminary investigation remains unresolved -Preliminary investigation findings are appealed to the Secretary of Justice -Heavy prosecutor caseload -Deficient prosecutor competencies

DELAY CAUSED BY INSTITUTIONAL WEAKNESSES -Lack of court resources and facilities -Inefficiencies in the postal service particularly delays in the delivery of notices -Delays in the filling up of judicial vacancies -Weaknesses in the judicial appointments system -Complicated rules couched in complex language -Insufficient training -Lack of formal systems for ensuring inter-pillar coordination -Weak crime information management system as well as information sharing and system integration -Deficient case management system and tools and information technology across pillars RM CONSULTANTS, INC.

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DELAY OF CASES IN COURTS


2.1.8

Delays could also be pointed to the poor case management systems in the lower courts. The CDDRP survey showed postponements civil and criminal cases in all lower courts. The reasons were the same: non-appearance of lawyers, prosecutors and judges. Many judges still have the tendency to schedule more cases that can be realistically heard in the hope that should there be postponements, enough cases would be ready, and thereby enable them to maximize the use of time. The current practice of judges particularly in high –caseload courts is to schedule 20 hearings per day. However, the daily hearing hours of judges is only 5 hours. It would be thus physically impossible to complete the scheduled 20 hearings. Anecdotal information indicated the completion of only about 2 cases in a day. The lawyers contend that this method of over-scheduling hearings and trials results in unmitigated loss of time on the part of the parties concerned, the witnesses and lawyers who are compelled to spend hours, and even days, idly waiting for their turn to be heard. The eroded credibility of the hearing schedules might have further contributed to the reasons for the non-appearance of lawyers, parties and prosecutors, and consequently has also contributed to the delay.

2.1.9

The CDDRP survey data and Prof. Hunter’s findings also suggest that the limited use of pre-trial may have contributed to the protraction of trial periods, particularly in criminal cases, and also to the increase in number of cases that go to trial. This was ed by judges who view that failure to settle at the barangay level renders pretrial irrelevant. These situations prevail despite the requirement for a mandatory pretrial for criminal cases under the rules of court and the Speedy Trial Act. THERE IS DELAY AND HIGH ACQUITTAL RATES IN SANDIGANBAYAN CASES

2.1.10 Prof. Hunter’s findings under the CDDRP survey showed that the Sandiganbayan has the longest median duration of 6.6 years, with a minimum of 1.5 years and a maximum of 11 years. In more than 75% of cases the accused persons were acquitted. The court is treated with little respect as evidenced by the high proportion of postponements due to the non-appearance of a party, non-appearance of counsel, non-appearance of a witness, or inability of counsel to proceed. 2.1.11 Former Ombudsman Marcelo expressed that the average workload of 441 cases per justice is heavy. Since Sandiganbayan justices work in divisions, each division effectively handles more than 1,000 cases per year. According to the Ombudsman, corruption cases are complex and difficult, and suggested that less complex corruption cases be reassigned to the lower courts, thus allowing the Sandiganbayan to focus on more complex and bigger cases. The Ombudsman further suggested the restructuring of the Sandiganbayan such that some cases can even be assigned to individual justices instead of divisions. LOW CONVICTION RATES CHARACTERIZE THE PERFORMANCE OF THE PROSECUTION SYSTEM 2.1.12 The disposition rate for prosecution of cases2 which are already pending with the courts as of 2002 was only 16.90% 3, reinforcing the delay indicated in the statistics 2 3

Include cases for trial in RTC, cases for trial in MTC/MCTC/MTCC, and cases for trial in RTC/MTC/MCTC referred by other offices. 150,015 cases disposed out of 887,744 cases for trial.


3-7


of the courts. Conviction rate was at a low of 18.06%. Relatively, archival and dismissal rates were much higher at 33.80% and 33.69%, respectively. The underlying reasons for these statistical results should be extensively analyzed. Although not ed by empirical data, one reason that may be attributed to the high rate of dismissal is the settlement of cases between the parties involved. With respect to the high rate of archival, one probable reason is the lack of witnesses to proceed with the case. Table 3.6 DISPOSITION OF CASES AT THE RTC AND MTC/MCTC/MTCC FOR Y2002 Conviction rate4

18.06%

Acquittal rate5

4.53% 6

Percentage dismissed 7

33.69%

Percentage archived

33.80%

Transferred/Referred/Others8

9.92%

Source: NPS

IT IS SAID THAT WHEN A CASE IS FILED IN THE OMBUDSMAN IT IS 70% LIKELY TO BE DISMISSED 2.1.13 The profile of dispositive actions on preliminary investigation of criminal and istrative cases/complaints, as presented in Table 3.7, reveals that a large percentage of these cases (73% for criminal and 91% for istrative) were disposed through dismissal/exoneration or termination, and only 27% and 9%, respectively, were prosecuted and penalized. 2.1.14 About 34% of the disposed istrative cases were referred to other government agencies for action. These cases are thus reported as closed or terminated. The other 57% of istrative cases were considered as dismissed. On the other hand, criminal cases which were no longer pursued and closed or terminated for only about 3% of the disposed cases, leaving 70% of the criminal cases having been actually dismissed. The OMB staff initially mentioned that about 50% of these cases have been received directly by the OMB’s Preliminary Investigation and Adjudication Bureau (meaning they did not the fact-finding procedures of OMB’s Fact finding and Intelligence Bureau). But this information is not enough in explaining the high dismissal rate. Lack of evidence, deficient competencies among investigators, case withdrawal, absence of mechanisms to protect witnesses and complainants, etc. would comprise some of the many possible reasons for high dismissal rates. Based simply on the current trend, it may be said that when a criminal case is filed in the OMB, there is a 70% chance that it will be dismissed.

4 5 6 7 8

25,765 convictions out of 142,693 cases disposed. 6,467 acquittals out of 142,693 cases disposed. 48,070 cases dismissed out of 142,693 cases disposed. 48,229 cases archived out of 142,693 cases disposed. 14,162 cases transferred/referred/others out of 142,693 cases disposed.


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Table 3.7 DISPOSITIVE ACTION/DISPOSAL RATE PRELIMINARY INVESTIGATION OF CRIMINAL CASES, 1994-2003 1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

Total

Disposal Rate (%)

Prosecuted

1060

1521

1506

2210

2166

2017

2209

1374

1268

1369

16700

27

- regular courts

430

958

1265

1772

1800

1638

1938

1196

1229

1278

13504

81

-Sandiganbayan

630

563

241

438

366

379

271

178

39

91

3196

19

Dismissed/Closed or Terminated

4851

4262

5109

6848

5208

4137

5850

3882

2665

3088

45900

73

TOTAL

5911

5783

6615

9058

7374

6154

8059

5256

3933

4457

62600

100

Particulars

Source: OMB

CONGESTION, SUB-HUMAN CONDITIONS, HUMAN RIGHTS VIOLATIONS AND LACK OF ACCESS TO JUSTICE PERSIST IN PHILIPPINE JAILS DESPITE REPORTS AND ADVISORIES COMING FROM HUMAN RIGHTS, CIVIL SOCIETY AND OTHER INSTITUTIONS. 2.1.15 The seven national penitentiaries house about 25,000 inmates as of December 31, 2002 vis-à-vis their total capacity of only 19,600 or 28% over and above their maximum capacities. Congestion has been attributed to several factors, among which is the increase in the number of arrests by law enforcement agencies, inability of detainees to post bails, slow implementation of decongestion laws, and delay in rendering decisions/adjudication actions by the courts.9 Table 3.8 OCCUPANCY CONDITION IN NATIONAL PENITENTIARIES, 2000 CAPACITY

ACTUAL POPULATION

% TO ACTUAL

CONGESTION RATE (%)

8,700

16,134

65

85

500

951

4

90

Iwahig Prison and Penal Farm (IPPF)

3,500

1,974

8

-

Davao Prison and Penal Farm (DPPF)

3,100

3,005

12

-

San Ramon prison and Penal Farm (SRPPF)

1,300

1,000

4

-

Sablayan Prison and Penal Farm (SPPF)

1,500

1,050

4

-

Leyte Regional Prison (LRP)

1,000

888

3

-

Total

19,600

25,002

100

28

NATIONAL PENITENTIARY New Bilibid Prison (NBP) Correctional Institution for Women (CIW)

Source: BuCor

9

The Judiciary has been implementing programs to address delay and docket congestion in courts, to include: dispute settlement through the Katarungang Pambaranggay; continuing judicial education; continuing trial system; monitoring of judicial performance; and continuing reforms in court rules/procedures.


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2.1.16 While there is general congestion, there is also an apparent inequitable population distribution in national jails, where some jails are overpopulated while others are under-populated. The NBP in Muntinlupa City and the CIW in Mandaluyong City have population twice their capacities, while the IPPF in Puerto Princesa, Palawan has only about 56 percent occupancy rate (1,974 out of 3,500). About 300 and 450 more prisoners could be placed in SRPPF in Zamboanga City and SPPF in Mindoro Occidental, respectively, while the DPPF in Davao and LRP in Leyte could still house 95 and 112 additional inmates, respectively, to full capacity. 2.1.17 But redistribution of prisoners will not be easy since transfers require orders from the court. Politics also play a part in the process, specifically when politicians interfere in the transfer of favored prisoners. Usually, prisoners look for sponsors who would restrain their possible transfer to the Iwahig Prison and Penal Farm where they are made to do farm work. 2.1.18 Congestion contributes to the worsening of jail conditions. A study in 1993 of the Commission on Human Rights (CHR) on the existing conditions of 619 correctional institutions, including national prisons, in the country 10 confirmed that inmates in more than 50 percent of the covered institutions are deprived of the basic needs for food, shelter/living space, water and lighting. 2.1.19 The CHR observed that problems on food insufficiency, delay in release of food allotment, inadequate and unsanitary food preparation and lack of food provision prevail in said institutions. In 1992 when the food allowance of a prisoner was Php20.00 per day (meal allowance is currently at Php 40.00 per inmate per day), there were jails that were provided with a daily food allowance of as low as PhP 7.00 per inmate. 2.1.20 Old, dilapidated prison cells; congestion; lack of separate cells for female inmates and youth offenders; poor ventilation and lighting facilities; defective water system; unsanitary cells and comfort rooms; and inadequate provisions for sleeping materials (beds/bunks, mats/blankets, pillows, etc.) are prevalent in most penal establishments, contributing to the sub-standard situations of inmates. 2.1.21 Human rights violations in jails observed by the CHR include breach of constitutional right against self-incrimination, threat against life, confinement in bartolina, lack of preliminary investigation, absence of commitment order from the court, failure of prison officers to bring prisoners/detainees to court hearings on scheduled dates, denial of the right to counsel and to speedy trial, illegal and arbitrary arrest and detention, torture, maltreatment, physical injuries, sexual harassment and abuse against chastity. 11 There are inmates who have been confined for already more than three years, yet the courts have not given the necessary decision on their cases. 2.1.22 The CHR findings were reinforced by a survey of inmates conducted by RM for UNDP and the Supreme Court. Convicted or sentenced prisoners in city jails within NCR spend an average of 11.5 months before the final hearing on their cases is

10 11

Commission on Human Rights, “A Study on the Existing Conditions of Jails and Correctional Institutions in the Philippines”, October 1993 Ibid.


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made. They have been incarcerated for a minimum of 32 days and a maximum of almost 8 years before the final court hearing of their cases has been completed. Table 3.9 LENGTH OF TIME FROM ARREST TO LAST HEARING OF CASE, APRIL 2003 (SENTENCED INMATES) Number of Months/Years

Percentage of Prisoners Reporting City Jails Within NCR

Less than 1 month

City Jails Outside NCR

Provincial Jails

10.5

National Prisons 2.2

1 Mo. - < 2 Mos.

13.8

1.8

4.3

2.5

2 Mos. - < 3 Mos.

10.3

10.5

4.3

4.7

3 Mos. - < 4 Mos.

10.3

3.5

4.3

1.5

4 Mos. - < 5 Mos.

13.8

3.5

4.3

2.9

5 Mos. - < 6 Mos.

3.4

7.0

3.3

6 Mos. - < 1 Year

24.1

15.8

13.0

12.0

1 Year - < 2 Years

3.4

21.1

26.1

20.4

2 Year - < 3 Years

10.3

19.3

8.7

15.3

3 Year - < 4 Years

6.9

3.5

8.7

12.0

4 Year - < 5 Years

3.4

1.8

8.7

5.5

1.8

17.4

17.8

More than 5 Years Minimum

32 days

4 days

32 days

4 days

Maximum

1,623 days or 7.9 years

5.8 years

9.2 years

46 years

Mean

11.5 months

1.3 years

2.7 years

3.2 years

Source: BuCor

2.1.23 In the case of convicted or sentenced prisoners in jails outside NCR, the average of time spent by inmates from their arrest to last date of case hearing is 1.3 years. The minimum is 4 days and the maximum is almost 6 years. Sentenced inmates in provincial jails waited for an average of 3 years from the time of their arrest until the last hearing of their cases. The minimum waiting time is 32 days and the maximum is 9.2 years. Surveyed inmates in the national prisons waited for an average of 3.2 years from the date of arrest until they had their last case hearing. The minimum waiting time is 4 days, while the maximum is 46 years. About 18% of the total inmates surveyed have waited for more than five years until the last hearing of their case has been conducted. PROBLEMS ON ACCESS TO JUSTICE BY PRISONERS ARE REINFORCED BY THEIR LACK OF CAPACITY TO DEMAND JUSTICE REMEDIES 2.1.24 Lack of access to justice and weak capacities to demand justice remedies are indicated in the following survey findings: a)

Only 1 of every 5 inmates in NCR jails know of the availability of free legal services to poor litigants and there are more inmates in these jails who do not know of any office or agency that could help them on their legal requirements.


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However, more than 50% of inmates in city, provincial and national jails outside NCR, know of the existence of PAO and its available services from the Department of Justice, the courts when they were being arraigned and coinmates. b)

Almost 80% of the total sample inmates in all types of jails were informed by their co-inmates, arresting officers or lawyers that they could be temporarily released from detention through posting of bail. However, because of poverty, only a limited number of inmates had resorted to this mode of release.

c)

More than three-fifths of the sample male and female inmates in the different jails/prisons have knowledge of these requirements in serving warrants of arrest. Arresting officers, co-inmates and visiting friends, usually supply inmates with information in regard the matter.

d)

A higher percentage (above 50%) of inmates detained in city jails and provincial jails know about this right, as compared to those in the national prisons (only between 39% to 47%). They learned about such right from coinmates and other sources especially the media. Around 53% of the male inmates and 60% of the female inmates who are serving their sentences in national prisons hardly know about this right.

e)

Seven in every ten inmates, male or female, in any type of jail, know that they have the right to legal counsel, or that they could be represented by a lawyer in court. They got this information from their co-inmates or from other sources.

f)

Above 50% of the inmates from the different types of jails/prisons know that there exist rules on separating youth from adult offenders to protect juvenile delinquents. They knew about this from their co-inmates or from the jail staff.

g)

More than 50% of male and female inmates have no knowledge of the legal procedures to be undertaken after detention. A higher percentage of inmates in city jails within NCR and national prisons fall under this situation.

POLICE STATISTICS ON CRIME INCIDENCE (REPORTED CRIMES) AND SOLUTION RATE DO NOT MATCH THE HIGH CASE INFLOWS AND HIGH ARCHIVAL RATES IN THE LOWER COURTS. 2.1.25 The assessment of the performance of the police in meaningfully contributing to providing appropriate justice remedies is constrained by sheer deficiency of crime and performance information within the PNP and NBI. Table 3.10 below contains annual crime volume as reported by the PNP. The table indicates a decreasing trend in annual crime incidence. What is disturbing about the data is that with the annual crime statistics translate to an average caseload of 1.32 cases annually for each of the more than 110,000 uniformed personnel in the PNP and yet the police-population ratio in the Philippines which is at 1:700 is considered to be lower than the international benchmark of 1:500.


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Table 3.10 ANNUAL CRIME VOLUMES, 1995 – 2003 YEAR

TOTAL CRIME VOLUME

INCREASE/DECREASE In %

1995

79,258

1996

76,915

-2.96

1997

71,080

-7.59

1998

71,575

0.70

1999

82,538

15.32

2000

80,108

-2.94

2001

76,997

-3.88

2002

85,776

11.4

2003

83,704

-2.42

SOURCE: Crime Statistics from DIDM, PNP: 2004

2.1.26 One other disturbing information based on statistics is the reported high crime solution rate (89.34%) by the PNP, which is incredibly much higher than countries with more equipped and resourced police forces. If 9 out of 10 reported crimes are solved, what explains then the more than 30% archival rate in criminal cases in the courts, which according to previous studies can be attributed to the nonapprehension of the suspect?

Table 3.11 CRIME SOLUTION RATE SELECTED COUNTRIES

COUNTRY PHILIPPINES

% OF CRIMES SOLVED 89.34

USA

21.6

CANADA

45.0

JAPAN

58.0

BRITAIN

35.0

AUSTRALIA

30.0

SOURCE: PNP 2003; BAYLEY, 1996

SOURCE: PNP 2003, BAYLEY 1994

2.1.27 Anecdotal information obtained under a UNDP-assisted diagnostic study of the PNP indicated that policemen were required to present a rosy picture of their performance, such that reports were altered to depict an improved crime situation and crime solution rate.


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2.1.28 There is also lack of observance of rules of procedures and human rights standards in crime investigation. The presentation of suspects before the media, with the witnesses pointing to the victim, is a practice by law enforcers today. This is however prejudicial to the person’s rights to be presumed innocent and to a fair trial. Anecdotal data also point to rape victims’ lack of privacy during medical examinations where several law enforcers being allowed as onlookers. These are indicative of issues on values and competency, as well as the need for clearer human rights-based investigation systems and procedures. 2.1.29 The integrated transformation program initiated by the current PNP leadership and the transformation program manager includes a seamlessly integrated set of institutional, procedural, human resources and technological reforms to address issues identified. 2.1.30 It is clear from the performance of the criminal justice system that there are problems in providing appropriate justice remedies. These problems have been analyzed as to their root causes by various diagnostic studies which are being integrated in this study and synthesized in the following sections.

3

WHAT THE STRENGTHS ARE (1)

NORMATIVE PROTECTION AND INSTITUTIONAL FRAMEWORKS FOR CRIMINAL JUSTICE IN PLACE, INCLUDING MECHANISMS FOR CONTINUING REVIEW AND REFORM

3.1.1

The legal and tradition based frameworks for criminality and justice remedies are in place as provided for in the Constitution and translated in our laws. Laws formalizing the traditional laws particularly of Muslim Filipinos and indigenous peoples are also in place. There is awareness and initiative among political leaders of the need to continuously review and update our criminal laws demonstrated among others by the age of the anti-money laundering act, the age of laws within the last 10 years protecting the rights of women and children, indigenous peoples, urban poor, persons with disabilities and other vulnerable sectors. The institutional framework for the criminal justice system is also in place and ripened by long history and continuously evolving and expanding (see section 2.4 Institutional Framework, Chapter 2).

3.1.2

Two key executive orders, EO 366 and EO 444, and the provision in the annual general appropriations act of the authority to reorganize government agencies put in place mechanisms for wider and more comprehensive approaches to reforming public sector institutions. EO 366 calls for the rationalization of the mandates, functions, structures, staffing and budgets of national government agencies. EO 366 requires departments and agencies to anchor their rationalization program on a set of governance principles espoused by the DBM which will guide in defining their proper roles and the corresponding shift in the focus of their mandates and functions. EO 444 calls for the conduct of a strategic review by DILG of departments and government owned and controlled corporations for purposes of identifying functions, programs, projects and activities that are to be devolved to local government units.


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(2)

LAWS AND SYSTEMS VULNERABLE SECTORS

SENSITIVITY

TO

HUMAN

RIGHTS

AND

3.1.3

Our criminal justice system has legal mechanisms for the protection of women, youth, indigenous peoples, and other vulnerable groups. At least 15 laws have been ed during the last decade on the protection of their rights. PNP and NBI have established mechanisms at the police station or point of access for dealing with women and youth. The PNP operates women and youth desks in police stations manned by accordingly trained policemen/policewomen. The DSWD and civil society organizations maintain several halfway houses and social service centers that address the needs of women and youth in conflict with the law or victims of crimes.

3.1.4

In actual practice however, much remains to be done to establish a culture of human rights and gender as well as youth sensitivity both in the operational processes and practices and organizational cultures of criminal justice institutions. (3)

3.1.5

RECOGNITION AND CORRESPONDING EFFORT TO IMPROVE THE COORDINATION OF ACTIVITIES ACROSS PILLARS PARTICULARLY IN THE MANAGEMENT OF CRIMINAL CASES

The creation of the inter-agency task force on pillars of justice is a concrete mechanism that provides a venue to improve inter-pillar coordination both at policy and operational levels. There is also a need to formalize inter-pillar coordination particularly at the process level, meaning in the management of individual criminal cases. This emanates from a corresponding recognition of the impact of weak interpillar coordination on the speed and quality of the prosecution and litigation process, on conviction and on the rendering by the court of the appropriate remedies. (4)

STRONG AND VIGILANT COMMUNITIES AND CIVIL SOCIETY ORGANIZATIONS WITH INCREASING PARTICIPATION IN DISPUTE RESOLUTION, IN ANTI-CRIME WATCH, ANTI-CORRUPTION, LEGAL DEFENSE, HUMAN RIGHTS ADVOCACY AND RESTORATIVE JUSTICE, AND WITH IMPROVING CAPACITY TO DEMAND JUSTICE REMEDIES

3.1.6

There are growing initiatives in civil society to organize the community into a powerful and constructive force, both in demanding appropriate justice remedies and in contributing to providing justice remedies.

3.1.7

The Commission on Human Rights leads the way to promote a rights–based system of criminal justice. These are undertaken through several interventions such as jail visits and evaluation, independent fact-finding and investigation, human rights advocacy and promoting citizen’s human rights capacities by implementing human rights teaching exemplars in coordination with DepEd.

3.1.8

The Office of the Ombudsman is also initiating its own teaching exemplars and community awareness programs on corruption.

3.1.9

Community groups provide a variety of services including community based legal services (through the Barangay Justice System, FLAG or Free Legal Assistance Group, Catholic Lawyers Guild, and St. Tomas Moor and Associates, among others);


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and community policing (through the Federation of PNP-accredited NGOs or FAN under their community policing programs along specialized areas of interest such as drugs, pornography, violence against women, etc). The role of an organized community is primarily that of providing assistance to demand justice remedies, restorative justice, community information and education, and community dispute resolution. (5)

VIBRANT MEDIA CONTRIBUTING TO THE IMPROVEMENT OF THE CAPACITY OF COMMUNITIES TO DEMAND JUSTICE REMEDIES, AND TO THE STRENGTHENING OF THE PUBLIC ABILITY OF CRIMINAL JUSTICE INSTITUTIONS

3.1.10 The impact of the media in strengthening community capacities to demand justice remedies are yet to be assessed. But media has played a strong role in popularizing the criminal justice system to the masses through its various programs. (6)

EMERGING CULTURE OF REFORM, OPENNESS TO NEW FORMS OF DELIVERING JUSTICE, AND ORGANIZED REFORM PLANS AND PMOS THAT WILL PAVE THE WAY FOR MORE MEANINGFUL REFORMS IN THE CRIMINAL JUSTICE SYSTEM

3.1.11 The sheer number of the diagnostic and reform program studies in the pillars of justice and the growing interest and commitment of the leaders of the three branches of the government indicate a bright future for the criminal justice system. Formally approved plans implemented by fully operational and emerging PMOs (Judiciary, PNP, OMB, CHR) with the corresponding staff competencies and strong, visiondriven leaderships will pave the way for a more sustainable and long-term as well as integrated reforms in the criminal justice system. (7)

AWARENESS BY NATIONAL GOVERNMENT OF THE NEED FOR INFUSION OF MORE RESOURCES AND IMPROVEMENT IN INSTITUTIONAL RELATIONSHIPS TOWARDS STRENGTHENING INDEPENDENCE AND INTEGRITY

3.1.12 The issue of severe resource constraints is common to the law enforcement, prosecution, public defender and judiciary pillars, which the Department of Budget and Management has recognized to be a genuine concern. The national government has made tremendous strides in providing resources to increase judicial salaries and police compensation, and to finance pilot implementation of certain judicial reform projects. But much remains to be done to enable the pillars to operate within minimum resource requirements. 3.1.13 There is also growing awareness of the need to provide mechanisms for strengthening the independence of criminal justice institutions particularly in the provision and management of budget, manpower, and physical resources. 3.1.14 The advocacy on these was started by the Judiciary with the proposed operationalization of judicial autonomy. Conferences with leaders in Congress and Executive Branches generated enunciated , but much remains to be done to actualize autonomy mechanisms in operational policies and processes.


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4

WHAT NEEDS TO BE IMPROVED UPON (1)

4.1.1

Opinion surveys have indicated consistent perception of a worsening corruption situation in the public sector, particularly in law enforcement, prosecution and judiciary pillars. While comprehensive reforms are being initiated in the PNP and the Judiciary, and more are being planned in the other pillars, they will face profound challenges in engendering public to the reform process at a time when public trust and confidence in the system is at a low. (2)

4.1.2

WEAK PUBLIC TRUST AND CONFIDENCE AMIDST PERCEPTION OF CORRUPT, POLITICIZED AND WEAK CRIMINAL JUSTICE SYSTEM INSTITUTIONS

LACK OF MEANINGFUL INDEPENDENCE OF CRIMINAL JUSTICE SYSTEM INSTITUTIONS, AS INDICATED IN THEIR INSTITUTIONAL FRAMEWORKS AND AS REFLECTED IN THE ISTRATIVE AND FINANCIAL PROCESSES OF GOVERNMENT WHICH EFFECTIVELY INSTITUTIONALIZED VULNERABILITY TO POLITICAL PRESSURE AND CORRUPTION

While the notion of independence has normally applied to the Judiciary, there is also a need for independence in law enforcement, prosecution and correction agencies, such that they will maintain their impartiality in police investigation and prosecution and will not be influenced or harassed particularly where a criminal case involves a high-ranking politician, national government executive or influential economic elite. Independence issues in law enforcement and prosecution

4.1.3

Law enforcement agencies must have independence in order that they can objectively investigate and apprehend offenders regardless of their socio-economic or political status. Mechanisms within the PNP and NBI that will ensure the integrity of physical or scientific examination of crime evidence should be put in place by establishing a system whereby independent laboratories undertake the examinations, particularly in cases where a police officer is an accused party. Similarly, prosecutors must likewise be insulated from political pressure where the suspect of the case involves someone politically powerful. The independence issue in law enforcement and prosecution is both institutional and individual. Where the PNP releases findings of a scientific investigation, the integrity of such findings becomes an issue of institutional credibility. Where a police report is made, the integrity of such report is an issue of individual credibility.

4.1.4

But the current institutional frameworks of the law enforcement and prosecution pillars render them extremely vulnerable to political pressure and harassment. In particular these vulnerabilities are found in the following institutional mechanisms: a)

Local government units are mandated by the local government code to provide funding to the police and prosecutors in their respective jurisdictions. In practice many local governments adopt discretionary and highly negotiable processes for the infusion of resources to the pillars. Most local governments provide monthly allowances and travel allowances to policemen, prosecutors


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and their staff based on amounts determined at the discretion of the executive head. s for office facilities, cars and equipments, and in some cases personnel, are also done on a discretionary basis. This renders the individual policeman and prosecutor personally beholden to the mayor on whom the decision to increase and release allowances and perks depend. b)

The National Prosecution Service (NPS) is an organic unit of the Department of Justice and reports istratively to the Secretary of Justice. The lack of institutional independence of the NPS renders it highly vulnerable to political pressure in cases where high-ranking government officials are the accused parties. The institutional independence of the NPS is an essential part in ensuring an impartial preliminary investigation and prosecution.

c)

Similarly, the police are extremely vulnerable to politicization, which lies in the appointment, promotion and disciplinary systems of the police force. LGUs have a hand in deciding on police recruitment and promotion, along with the President who also exercises these powers, as well as with of Congress, who send recommendations to the police regional directors or PNP Chief. Police discipline is also exercised by LGUs, NAPOLCOM and the President. This system severely undermines unity of command and authority of the PNP Chief and the integrity of the human resources management system erodes ability.

d)

Low remuneration furthermore renders policemen and prosecutors vulnerable to corruption. According to PNP officials, about 80% of policemen in Metro Manila live in poverty and in slum dwellings. On same vein, the salary of senior prosecutors is lower than the entrance basic pay of a medium-sized law firm in Makati.

Judicial independence 4.1.5

The independence of the Judiciary is enshrined in the Constitution but its operationalization is undermined by mechanisms that render it vulnerable to undue political influence. For example, the annual budget of the Judiciary is subject to detail scrutiny and determination by the other branches of government and its release is negotiable due to the transactional approval release process. The Executive Branch reviews and approves the creation or modification of the Judiciary’s istrative structure and staffing and the realignment of its budget. LGUs also provide funding to the courts on a highly discretionary basis. Some LGUs provide monthly and travel allowances and equipment upon personal request of the judge and personal approval of the LGU head. Judicial appointments are vulnerable to undue political influence if the procedures for such accommodate political recommendations. Low judicial remuneration also renders judges and court personnel vulnerable to bribery, while centralized control of istrative and financial decision making, accompanied by highly discretionary management decision making, threatens decisional independence from within the Judiciary itself. The Judiciary is initiating several reform measures to insulate the courts from undue politicization, but many of these reforms require corresponding reforms in the operational policies, processes and practices in LGUs and in the Executive Branch. A proposed legislation must be ed by Congress to effect and sustain judicial independence.


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(3)

INEFFICIENCY OF THE JURISDICTIONAL STRUCTURE OF THE COURTS WHICH HAS EVOLVED OVER TIME AS TO ITS IMPACTS ON ACCESS TO JUSTICE

4.1.6

The jurisdictional structure of the courts is defined both in geographical and functional 12, and therefore the manner in which the jurisdictions of the courts is structured will have profound implications on geographical access on one hand, and on case management efficiency as well as judge capacity on the other.

4.1.7

The jurisdictional structure of the courts has evolved over time as the courts respond to specific needs. Family courts, drug courts and heinous crimes courts were established by designating or converting lower courts into such special purpose courts. Proposals to create small claim courts to facilitate processing of small claims cases, as well as the reassignment of small and less complex cases from Sandiganbayan to the RTCs or first level courts and the establishment of courtannexed mediation system should be considered within the broader and more comprehensive review of the jurisdictional structure of the courts. (4)

COMPLEX RULES OF COURT AND LAWS THAT CONTRIBUTE TO CONGESTING POLICE AND PROSECUTORS’ LOGBOOKS AND COURTS’ DOCKETS

4.1.8

Feliciano and Muyot argue that the complexity of the court procedures further delay litigation. According to these authors, there are aspects of procedures which the Supreme Court must address like the problem of language in court proceedings, including the need to seriously look into the translation of legal documents, prioritization of cases where communities are represented (e.g., prioritization of cases in the Rules of Court in favor of the indigents), and removal of reinterpretation of court processes that effectively remove judicial redress to marginalized sectors or communities.

4.1.9

Their study pointed to the Constitutional requirement where a judge must repeat all the facts of a case in a decision as contributing to delay. According to them, since judicial writing causes delay, distinction is needed between cases that deserve lengthy decisions and those that do not. If a judge is not required to repeat all the facts relevant to the decision, it will greatly shorten the time necessary to pen decisions. The same authors pointed to the need for strict compliance to pre-trial procedures so that the parties may agree on certain things and not make it subject to objections when trial has already commenced.

4.1.10 Feliciano and Muyot also see the need to adopt continuous trial instead of the practice of piecemeal or segmented trials. Continuous trial is currently underutilized or even flagrantly ignored by judges. The Continuous Trial System requires that the presiding judge: (a) adheres faithfully to the session hours prescribed by law; (b) maintains full control of the proceedings; and (c) efficiently allocates and uses time and court resources to avoid delay. This is a mode of judicial fact finding and adjudication with speed and dispatch so that trials are held on the scheduled dates 12

Geographical jurisdiction defines the authority of the court over the case based on the location of the subject or issue in dispute. Functional jurisdiction defines the authority of the court to take cognizance of the case based on such factors as disputing parties, subject of dispute, geographical locations of the subject parties, and punishment or penalty involved.


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without needless postponement. To address the issue, Feliciano and Muyot propose the adoption of the following: a)

Decriminalization and de-penalization of certain offenses where there is no specific party involved. For example, the abolition of the crimes of prostitution, vagrancy, unjust vexation, premature marriages, failure to render assistance of or assume public office, simple disobedience to an agent or a person of authority, causing alarms and scandals, and traffic violations may be a subject of a possible legislative measure. A deeper study on the matter is thus called for to determine the viability of the proposal.

b)

Amendment of the Bouncing Checks Law (BP Blg. 22). This must likewise be studied so that: (a) the case can only brought to the regular courts if the dishonored check is of specified amount or amount involved is huge, and (b) checks issued as guarantee for an obligation is excluded from its coverage.

c)

Adjustments in the threshold amounts in crimes against property under the Revised Penal Code (such as theft and estafa) to make them more attuned to the times. These amounts, on which the corresponding penalty is based, were determined some 70 years ago. If the Code is amended, many crimes against property will be resolved at the level of the metropolitan and municipal courts, instead of the regional trial courts.

(5)

DISTED AND UNCOORDINATED CASE MANAGEMENT SYSTEM ACROSS THE PILLARS

4.1.11 Diagnostic studies cite poor coordination between the courts and court-related agencies, particularly those involved in law enforcement, as one of the primary causes of judicial delay. Policemen, agents of the National Bureau of Investigation, and medico-legal officers fail to appear on the dates they were scheduled to take the witness stand. This situation unduly burdens and compromises the case of the prosecution, who may end up failing to establish proof beyond reasonable doubt in a given case. There are instances where warrants or subpoenas were not served by the police or by process servers, and indispensable laboratory reports not submitted by government forensic chemists. 4.1.12 Officials of court-related agencies moreover engage themselves in turf-wars, grandstanding and jurisdiction disputes, adversely affecting the purpose of investigation especially when agencies submit conflicting reports and recommendations. 4.1.13 While there are efforts to coordinate case management across pillars, a formal mechanism must be put in place that will harmonize and synchronize skills, processes and rules with inter-pillar workflows, and improve inter-personal relationships among policemen, prosecutors and public attorneys. Relatedly, there may be a need for a law to be ed to better define and refine the duties and limitations of court-related agencies to avoid overlapping of functions and responsibilities, as well as to properly enforce coordinative requirements among them.


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(6)

WEAKNESSES IN CRIME INVESTIGATION AND CASE MANAGEMENT CAPACITIES OF THE POLICE FORCE CONTRIBUTING TO THE LOW CONVICTION RATES AND THE HIGH ARCHIVAL RATES IN THE LOWER COURTS

4.1.14 In September 2002, the PNP released its Handbook of Operational Procedures, a manual of twenty six (26) operational procedures to guide every police officer in the performance of his or her functions. The Handbook is a review, update and compilation of the PNP operational rules; it substitutes the June 1997 Revised Rules of Engagement and details the procedural guidelines to cover general and special operational procedures. The Handbook provides the Rules that every police officer must follow, and which each one must know by heart.13 But the handbook is written in highly formal and technical jargon and must be made more -friendly 4.1.15 Rules 11 and 12 of the Handbook are mere repetitions – often verbatim reproductions – of Rules of Court provisions, specifically Rules 113 and 126 of the 2000 Revised Rules of Criminal Procedure. Their translation into specific procedural steps on arrest, search and seizures is therefore lacking. Further, the manual does not provide for the giving of ‘Miranda Warnings’ to persons arrested pursuant to a warrant of arrest. The law expressly provides for the giving of the Miranda warnings to persons arrested, without distinction as to whether the arrest was done in compliance with a warrant, or was a warrantless arrest. Thus the operational rules on Miranda warnings must apply to both types of arrests. 4.1.16 While crime scene investigation is a regular and daily operation, it has been categorized as a specialized police operation because it requires specialized skills and capacities. The operations manual does not describe the detail and specific procedural steps and rules in crime scene investigation. Rule 13 broadly describes the documentation to be done – mainly photographs and sketches – it fails to detail how documentation is actually done, i.e. types of sketches, range of photographs, and the like. Further, although it refers to the conduct of a crime scene search, it gives no hint whatsoever of what to look for, what may be important pieces of evidence, and how to go about conducting a methodical search. Operations of the Crime Laboratory SOCO team, as described in the Crime Laboratory Manual, are far more comprehensive and precise than Rule 13. While the SOCO manual elaborates on the functions to be performed by the various technicians, and indeed provides technical descriptions of the modes of documentation and search, Rule 13 is extremely limited and general, describing mainly the functions of the first responder and the team leader of the investigating team. 4.1.17 The manual on crime scene investigation should be scientific and technical, and leave less to the discretion of the individual technician. It should specify how he is to document the crime scene, and defines the steps by which the search is to be conducted. 4.1.18 Another critical factor is the quality of the crime laboratory of the PNP and NBI. While crime investigation technology has advanced far in the fields of scientific investigation, low budgets considerably hamper the acquisition of state-of-the-art 13

“PNP Handbook of Operational Procedures”, Foreword by then DIDM Police Director Lucas Managuelod, pp. v-vi.


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crime laboratory technologies and training. Japan has been providing equipment and training to PNP field offices on finger print analysis. But in many cases investigation technology are not available to the many police stations in the field. The government must consider expanding alternative means of accessing modern crime investigation technologies through a combination of direct public investments, outsourcing and partnerships. (7)

SEVERE RESOURCE DEFICIENCIES AGGRAVATED BY INEFFICIENCIES IN THE INTERNAL MANAGEMENT OF EXPENDITURES THAT CONTINUE TO SERIOUSLY UNDERMINE THE CAPACITIES OF THE LAW ENFORCEMENT, PROSECUTION, AND SOCIAL DEFENSE AGENCIES AS WELL AS THE COURTS TO DELIVER THEIR CORE FUNCTIONS

4.1.19 Severe resource deficiencies characterize justice sector agencies. In 2005 the national government investment per capita to the criminal justice system was about PhP612.77 pesos. This pales considerably when compared to the AUS$1 million per capita that the Australian government spends on the police system alone. Table 3.12 THE COST OF MAINTAINING A CRIMINAL JUSTICE SYSTEM National Government Obligations, 2005 AGENCY

NO

AMOUNT (in million PhP)

1

Bureau of Jails Management and Penology, DILG

2,247,832

2

National Police Commission, DILG

3

Philippine National Police, DILG

35,264,857

4

Philippine Public Safety College

504,442

5

Office of the Secretary, Department of Justice

6

Bureau of Corrections, DOJ

7

National Bureau of Investigation, DOJ

630,297

8

Parole and Probation istration, DOJ

349,843

659,671

1,507,189 850,869

9

Public Attorney’s Office, DOJ

565, 899

10

Philippine Drug Enforcement Agency (PDEA), OEO

141,602

11

The Judiciary

12

Commission on Human Rights

13

Office of the Ombudsman TOTAL % OF TOTAL NATIONAL GOVERNMENT OBLIGATION PROGRAM

PER CAPITA SOURCE: BESF, 2005

8,005,206 210,675 535,011 51,473,393 5.45 612.77

4.1.20 This situation is particularly reinforced by larger amounts of MOOE budgets allocated to central offices, but much smaller amounts are distributed to the wider regional and local units. In the Judiciary, more than 70% of MOOE is allocated to the central offices, while the remaining less than 30% are allocated to the more than 2000 courts. In PNP, about 80% of the MOOE budget goes to central offices and units,


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while the rest is distributed to the various regional and provincial offices and the police stations in each city and municipality. Thus, police stations and court houses as well as offices of prosecutors and public attorneys are severely ill equipped. Many police stations do not have adequate transport equipment, firearms and supplies and do not have budgets for gasoline. Lower court employees bring their own supplies and equipment and spend on their own for minor office repairs and transport. The seriousness of these deficiencies cannot be overemphasized. If basic resources are not provided, the pillars cannot be expected to perform functions as they should. (8)

UNREALISTICALLY LOW AND UNCOMPETITIVE REMUNERATION THAT RENDERS MISSION-CRITICAL POSITIONS IN THE CRIMINAL JUSTICE SYSTEM UNATTRACTIVE, THEREBY LIMITING THE ABILITY OF AGENCIES TO RECRUIT AND RETAIN THE QUALIFIED AND COMPETENT AND RENDERING INCUMBENTS VULNERABLE TO CORRUPTION

4.1.21 Studies conducted on the remuneration systems across pillars point to the difficulty in attracting and maintaining quality manpower due to lack of competitiveness of salaries and other compensation benefits. Despite legislated increases in the salaries of judges and policemen and upgrading of levels of legal positions including prosecutors in the government, their salaries have remained unattractive, uncompetitive and do not commensurate to the status that the position holds. About 80% of the police force lives below the poverty threshold. The salaries of judges and prosecutors are less than half the basic salaries of lawyers of medium-sized law firms. Further, policemen do not have their own pension plan, and so they are not provided with social benefits that GSIS enjoy. Retirement benefits, which are a part of the police regular budget approved annually, are even delayed by as much as more than one year. Families of policemen who die on duty receive only immediate burial assistance but not sustained benefits. The personnel remuneration system in the criminal justice system must be reformed to maintain quality and professional workforce who are not vulnerable to corruption and who enjoy prestige in the community. (9)

DEFICIENCIES IN RECRUITMENT PROCEDURES IN THE POLICE AND LOWER COURTS DO NOT WEED AWAY THE CORRUPT AND OTHER MISFITS FROM ING THE POLICE FORCE AND THE BENCH, RESPECTIVELY

4.1.22 The weaknesses in recruitment policies and procedures in the police can be attributed both to internal and external factors. The interference of external agencies and authorities over recruitment and appointment, promotion and deployment, and police discipline undermine unity of command and the authority of the Chief, PNP. There are also several internal weaknesses in the police human resources management system such as the inability of the testing process to weed out the morally unfit from entering the police force, the lack of career development opportunities, and the absence of a coherent and integrated personnel development policy for the police force. 4.1.23 The recruitment procedures to fill vacancy in the lower courts must likewise be studied to address weaknesses. Concrete parameters and basis for determining the fitness of applicants to the bench must be set.


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(10) POOR QUALITY AND IRRELEVANCE OF EDUCATION AND TRAINING ACROSS THE KEY PILLARS, PARTICULARLY IN THE POLICE, PROSECUTION AND LOWER COURTS 4.1.24 Weak competency development systems undermine the capacities and performance of the criminal justice system workforce. Law enforcers, investigators and prosecutors need to improve their individual capacities to prevent, control and solve crimes. Policemen in particular need to improve skills in investigation, in proper arrest and search procedures that are in accordance with law and human rights, in investigation and evidence gathering, in case preparation and writing, and in witnessing in court. Prosecutors, public attorneys and judges need improved training in case management and in special crime areas such as money laundering and other heinous crimes, as well as in their regular functions such as case preparation and prosecution in the case of prosecutors, and decision-writing and case management with regard to judges. 4.1.25 The establishment of a corps of professionals in investigation, control and solution of global and complex crimes (corporate crimes, terrorism and transnational crimes) through recruitment and training, particularly in the NBI, is necessary to enable our criminal justice system to cope with the increasing number of this type of crimes. (11) LACK OF INTEGRATED PUBLIC AND ISTRATIVE ABILITY FOR PERFORMANCE OF PROVINCIAL, CITY AND MUNICIPAL JAILS, AND A NEED TO CONSIDER DEVOLUTION WITH STRONG OVERSIGHT STANDARDS, MONITORING, AUDIT AND SANCTION FUNCTIONS AS A WAY TO ADDRESS DETERIORATING JAIL CONDITIONS 4.1.26 The presence and uniform application of laws and similar treatment of prisoners and detainees will ensure/address equality, equity, and non-discrimination. Highly decentralized operations on corrections and rehabilitation with direct delivery of services lodged primarily with local government units will enable policies and programs better reflect the interest of clients in the local areas and encourage wider participation in the development of programs and projects for effective delivery of correction and rehabilitation services. 4.1.27 An oversight mechanism to formulate national policies and standards on correction and rehabilitation and monitor implementation of programs and performance of agencies involved in the pillar is necessary. The arrangement will also require the identification of proper organizational placement and roles of agencies and institutions concerned; definition of the interventions to be done at the oversight level, and those at the operating or local level; delineation of functions based on appropriate horizontal and vertical compartmentalization criteria; and development of clear and effective inter-agency coordinative mechanisms and operating processes. The oversight mechanism will have the capacity to formulate overall policy framework on correction and rehabilitation activities; strictly enforce national and international standards on prison and jail management and treatment of inmates; and ensure performance of state obligations, particularly on access to justice


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(12) INADEQUATE STRATEGIES FOR IMPROVING THE EFFICIENCY IN THE USE OF RESOURCES FOR SOCIAL DEFENSE TO REACH A GREATER PORTION OF THE POOR IN NEED OF JUSTICE REMEDIES 4.1.28 The provision of legal assistance to pauper litigants is provided primarily by the Public Attorney’s Office (PAO) in the Department of Justice. There are several other agencies providing legal assistance. This fragmentation and uncoordinated provision of legal assistance to the poor in the government indicates expenditure inefficiency due to duplication of vertical structures and overhead expenditures that are needed to manage the service delivery. 4.1.29 Access to justice by the poor is hindered among others by lack of lawyers. The current social defense system of the government is weak, fragmented across various departments and lacks resources. There is opportunity to integrate the social defense system and strengthen the Public Attorney’s Office. Government needs to mobilize and synchronize public and private sector legal resources for the poor. (13) DUPLICATION, PROLIFERATION AND FRAGMENTATION OF FUNCTIONS PARTICULARLY AMONG LAW ENFORCEMENT AND LEGAL ASSISTANCE AGENCIES THAT WORSEN RESOURCE LIMITATION 4.1.30 The Constitution provides for one national police force. But in actuality, there are 34 policing agencies including the PNP and NBI that perform overlapping functions and jurisdictions. The government’s efforts to curb criminality resulted in the creation of specialized crime agencies, but which still utilizes the PNP’s police force in actual operation. 4.1.31 The Public Affairs Office of the DOJ is primarily mandated under the law to provide legal assistance to pauper litigants. There are other government agencies that provide similar services, including the Bureau of Agrarian Legal Assistance in the Department of Agrarian Reform, Commission on Human Rights, and the Philippine Overseas Employment istration, to name a few. 4.1.32 The integration of legal assistance units of government agencies into one organization, or the privatization of such services may be looked into to optimize resources and/or channel such resources to much needed concerns. (14) LIMITED GEOGRAPHICAL ACCESS TO CRIMINAL JUSTICE SYSTEM AGENCIES 4.1.33 In the area of public sector corruption, access to OMB services is limited by lack of technology, insufficient number of prosecutors and investigators, poor investigation facilities, and limitation in the geographical presence of OMB offices at the regional level. Regional access is said to limit access by complainants and whistle blowers where LGU corruption is concerned. Meanwhile limited investigation and prosecution manpower and technologies hamper evidence gathering and case preparation and therefore contribute to delay and high dismissal rates in corruption cases.


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4.1.34 Geographical access is likewise an issue with regard to the Shari’a Justice System. Lack or limited geographical accessibility is evident in areas outside of the Mindanao regions where there are Muslim communities but no Shari’a courts. There is a need for clear directions where to file cases in such areas, especially where the Judiciary cannot immediately provide direct judicial services to them. (15) ABSENCE OF INTEGRATED CRIMINAL JUSTICE INDICATORS AND INFORMATION MANAGEMENT SYSTEMS AND TECHNOLOGY THAT HAMPERS BOTH COORDINATION ACROSS PILLARS AND EFFICIENT OPERATIONS MANAGEMENT WITHIN EACH PILLAR 4.1.35 Lack of information technology particularly in managing caseload is deficient in all justice sector agencies. Courts do not have an integrated case management information system and this hinders the capacity of judges to efficiently manage caseload and prevent delay. This likewise affects the supervision by the Supreme Court over the lower courts and in its monitoring of judges’ performance. Police stations do not similarly have automated case management information systems and this hinders crime mapping, crime monitoring and crime management both at police station and national levels. In the case of NPS and PAO, computer-aided case management systems will be needed to facilitate the tracking and prioritization of cases as well as sound time management of prosecutors and public attorneys, while allowing enterprise-wide performance monitoring and evaluation that inputs to strategic planning and institutional development. (16) PERCEPTION OF LACK OF PUBLIC ABILITY AND CAPACITY TO DEMAND APPROPRIATE JUSTICE REMEDIES AS REFLECTED IN PERSISTENT CORRUPTION AND POLITICIZATION OF THE CRIMINAL JUSTICE SYSTEM 4.1.36 The perception of corruption in the criminal justice system persists. Vulnerabilities to corruption are deeply embedded in dysfunctions in structures and functions, in law and policy-making processes, public service delivery and regulatory systems, and procurement and financial management systems, among others. They are found in unclear rules of the game; in the convoluted procedures that migrate through layers of unnecessary and overlapping authority structures that undermine transparency and ability; and in the lack if not absence of accessible and quick reaction grievance, complaint and sanction mechanisms that will ensure the rectification of wrongdoings and punishment of participants to the corrupt act. 4.1.37 Mechanisms for community empowerment is still weak as evidenced by inadequate public knowledge and understanding of the rules and the processes by which the law is enforced or the service is provided. It is likewise evidenced by the high tolerance for corruption both by the general public as a whole and the victims in particular.


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4 PROPOSED ROAP FOR CRIMINAL JUSTICE SYSTEM REFORMS

1

OBJECTIVES

1.1.1

This roap identifies the set of seamlessly integrated strategic reform recommendations identified in previous studies that will hopefully achieve a wellfunctioning integrated criminal justice system capable of achieving its overall goals and the individual objectives of each pillar.

2

COMPOSITION OF REFORMS

2.1.1

Reforms in previous studies were identified in accordance with their contribution to the following stated goals:

2.1.2

•

access to justice and respect for human rights

•

case decongestion and delay reduction

•

provision of appropriate justice remedies

•

improvement of capacity to provide justice remedies

•

improvement of capacity to demand justice remedies

Accordingly reforms were identified in the following areas: a)

NORMATIVE PROTECTION, which includes reforms in the legal framework and the rules and procedures in criminal justice

b)

OPERATING PROCESSES AND TECHNOLOGIES, which include reforms in the processes and work technologies ing mission-critical functions of the pillars

c)

INSTITUTIONS DEVELOPMENT AND GOVERNANCE, which include reforms in the assignment of governmental functions across levels of governance and in the structure and functions and internal istrative management of the pillars

d)

HUMAN RESOURCES DEVELOPMENT, which includes reforms in the planning and management of human resources across the pillars

e)

FINANCIAL RESOURCE MANAGEMENT, which includes reforms towards improving the expenditures and the efficiency of their management by the government and the pillars


4-1


3

RECOMMENDATIONS Recommendation No. 1 DECRIMINALIZE CERTAIN OFFENSES UNDER THE REVISED PENAL CODE AND SPECIAL LAWS AND CODIFICATION OF CRIMINAL LAW

A deeper study to decriminalize and de-penalize certain offenses where there is no specific offended party is necessary to improve the adjudication process. Legislation is also needed, for instance, to abolish the crimes of prostitution, vagrancy, unjust vexation, premature marriages, failure to render assistance of or assume public office, simple disobedience to an agent or a person of authority, causing alarms and scandals, and traffic violations. The amendment of Batas Pambansa Blg. 22 (Bouncing Checks Law) must likewise be studied, and so is the adjustment in the threshold amounts with regard to crimes against property under the Revised Penal Code. If the Code is amended, many crimes against property would no longer be brought before the regional trial courts as they would already be resolved at the level of metropolitan and municipal trial courts. The codification of criminal law is also proposed.

Recommendation No. 2 ADOPT MECHANISMS FOR ENFORCING STRICT COMPLIANCE TO MANDATORY CONTINUOUS TRIAL AND PRE-TRIAL This will require that a case management tool be provided to judges in lower courts in order to manage their caseloads and the programming of trial hearings on the basis of continuous trials. A pre-trial conference which is efficiently and effectively istered by the judge should yield to a shorter trial period, if not altogether avert the need for trial through alternative modes of settlement that may be reached by the parties during the pre-trial period. The pre-trial conference provides for extensive use of discovery modes, which will eventually be helpful in the trial stage. In criminal cases, the pre-trial conference is used to consider plea bargaining, stipulation of facts, marking for identification of evidence of the parties, waiver of objections to issibility of evidence, and such matters that will promote fair and expeditious trial of the criminal and civil aspects of the case. It is recommended that the Supreme Court adopt mechanisms for the monitoring of the implementation of pre-trial and the imposition of sanctions for non-compliance. It is also recommended that extensive practical training on procedures and case management tools within the context of continuous trials and the use of pre-trial be conducted by the Philippine Judicial Academy (PHILJA) together with an accompanying video presentation that should be produced as a teaching tool.


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Recommendation No. 3 REVIEW AND IMPROVE THE RULES OF COURT The review and amendment of the Rules of Court is necessary to further speed up, simplify and render more inexpensive the disposition of cases. The review should consider the following improvements: a)

Limiting the period within which Judges of Municipal Trial Courts have to terminate the preliminary investigation of criminal cases;

b)

Returning to decisions by the Supreme Court en banc in order to avoid conflicting decisions on same issue;

c)

Setting of fixed amounts of time for the presentation of evidence and cross examinations; using of affidavits in lieu of direct testimony of witnesses; prohibiting postponements; and submitting draft orders and resolutions;

d)

Deputizing barangay officials to act as process servers because the cause of delay in preliminary investigation is the lack of adequate process servers;

e)

Implementing electronic payment of legal fees, electronic case filing, and electronic delivery of summons, orders and notices;

f)

Adopting teleconferencing as substitute to personal appearances of accused and witnesses;

g)

Authorizing law enforcement agents to file cases directly with the Metropolitan Trial Courts and/or Municipal Trial Courts in chartered cities, so that warrant of arrest may be issued immediately for the detention of prime suspects of heinous crimes;

h)

Reducing the grounds for motion to quash (presently, there are eight grounds for motion to quash – Section 3, Rule 117, Rules of Criminal Procedure);

i)

Amending Section 5(b), Rule 113, on warrantless arrest, which requires personal knowledge of facts on the part of the peace officers or private persons that the person to be arrested has committed the offense, inasmuch as it is very seldom that the peace officer is present during the commission of the crime which is the only instance when he could be considered to have personal knowledge thereof;

j)

Finding probable cause by the prosecutors to be binding on the courts for purposes of proceeding with trial;

k)

Carving out more exemptions from the filing of bonds;

l)

Relaxing the Constitutional requirements for a judge to repeat all facts of a case in a decision, to shorten the time necessary to pen decisions;

m)

Shortening the filing period for several pleadings and abbreviating court processes by reducing direct testimonies;

n)

Looking into the problems of language in court proceedings by studying the use of local dialects instead of English;

o)

Reviewing the time standards provided in the rules of court and speedy trial act, identifying appropriate criteria to be used in the determination of time standards for specific types of cases, and establishing time standards for case types; and

p)

Reviewing procedures for the litigation process for specific types of cases.


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Recommendation No. 4 REVIEW THE JURISDICTIONAL STRUCTURE OF THE COURTS Prior studies provide recommendations on improving court jurisdictional structures in specific areas based on assessments of specific issues in these areas. An assessment of the effects of the current court jurisdictional structure on geographical access, case congestion and delay, judge capacity, and overall coherence of the court system has moreover been recommended. These recommendations also include: (1)

Establishing small claims courts;

(2)

Reasg jurisdiction on less complex corruption cases from Sandiganbayan to the lower courts;

(3)

Reorganizing the distribution of case assignments in the Sandiganbayan by allowing individual justices to handle specific cases and selectively asg cases to divisions and to the En Banc; and

(4)

Focusing the TC Heinous Crime Courts on heinous crime cases; removing from their jurisdictional coverage civil cases.

Recommendation No. 5 REMOVE DUPLICATION AND OVERLAP AND CLEARLY DEFINE THE OPERATIONAL DELINEATION AMONG PRE-TRIAL SYSTEM, BARANGAY JUSTICE SYSTEM AND THE COURT-ANNEXED MEDIATION SYSTEM Judges argue that cases that have ed through the Barangay Justice System do not require pre-trial. Relatedly, a mandatory court-annexed mediation is being implemented in the lower courts and in the Court of Appeals, although the experience of the pilot courtannexed mediation units indicated that while case settlement rates are high, referral rates of cases by judges are very low. Similarly, during pre-trial, an attempt to arrive at an amicable settlement could be made. In view of this similarity of purpose and objective, there is a need to study these discrete systems and clearly define their jurisdictions and operational delineation so that they can meaningfully contribute to case decongestion and delay reduction. Within the context of established jurisdictional delineations and operational processes, the strengthening of the Barangay Justice System and full implementation of the court-annexed mediation system must be undertaken as necessary measures for case decongestion and early dispute resolution. Mechanisms at the barangay level must be installed in order to protect poor and vulnerable parties from the abuse of more politically and economically powerful opponents to the case.


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Recommendation No. 6 MODERNIZE CASE MANAGEMENT TECHNOLOGY AND INFORMATION SYSTEM IN THE LOWER COURTS Systems functional specifications and requirements definition have been developed under a project on an enterprise-wide case management information system in the lower courts which was funded by the World Bank PHRD Grant. The system will provide a unique case identification mechanism; allow tracking of case location and status; and provide mechanism for detecting forum shopping, delay and violation of statutory time limits, and detained parties whose stay in jail have exceeded the maximum penalty prescribed by law for their offenses. The system will likewise provide tools for judges to manage case prioritization and scheduling, as well as manage courtrooms utilization. It will provide functions for e-payment and e-issuance of court orders and notices. At the analytic level it will allow court s and justices to track the performance of judges, locate specific cases of interest, and provide information which is useful in monitoring and evaluating institutional performance. The adoption of transcription technology, teleconferencing, and electronic case-filing, electronic issuance of summons, orders and notices has been planned. These application systems will require substantial one-time public investments in installing the necessary infrastructure, in deg the systems, and in implementing them. Funding for these is available under a Judicial Reform Program Loan from the World Bank. The implementation of the case management information system must however be undertaken within the context of an integrated criminal justice information system. A change management program is essential particularly since these will revolutionalize court processes and the way the courts communicate and relate to court s. training, technology competency training, thematic training in specific work areas, and public information and advocacy would be essential components of the change management strategy. Recommendation No. 7 DESIGN AND ADOPT AN INTEGRATED CRIMINAL JUSTICE INFORMATION SYSTEM The design and installation of an integrated criminal justice information system that will link crime and case information across the pillars is recommended. The integrated system will have the following system components: a)

Crime management information system of PNP, NBI and other police agencies which will store data on crime offenders, crimes, and other crime indicators. The system will also police operations by allowing information sharing to facilitate tracking of suspects and cases, crime mapping, and crime analysis.

b)

Prosecution system which will contain a case management information system that will the management of specific cases and overall caseload.

c)

Court case management system which will provide information and management required in the management of caseload and case management by judges and clerks of courts.


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d)

Jail management information system which will provide information and management tools in tracking prisoners, their conditions, status and activities and other relevant information.

e)

Criminal justice information sharing system which will allow exchange of information across the pillars within the bounds of disclosure policies.

The development of crime classification and crime indicators will be necessary in establishing the criminal justice information system. Recommendation 8 ADOPT A HOLISTIC APPROACH TO THE IMPROVEMENT OF THE CRIME INVESTIGATION SYSTEM OF THE POLICE Improving the overall capacities of the police for crime investigation will require a holistic approach that will involve the following: a)

Improving and integrating police manuals into one manual for police operations, including among others specific improvements on investigation procedures, eyewitness identification procedures, interrogation procedures, arrest, and rules on evidence.

b)

Modernizing the crime laboratory, improving its capacity for scientific analysis of crime case evidence.

c)

Strengthening the independence of crime investigations and the analysis of evidence and providing institutional mechanisms for insulating these. The outsourcing of scientific analysis of evidence should be considered to improve efficiency and strengthen independence of the process.

d)

Establishing mechanisms to ensure that prosecutors get all the evidence.

e)

Improving case documentation procedures and skills in police report preparation.

f)

Strengthening the curricula and teaching technologies in PPSC on crime scene investigation, interrogation and field investigation, case documentation and reporting, and witnessing in courts. Mastery of the police manual should be a pre-condition for completion of the training and education program.

g)

Improving the remuneration of the police force as a way of strengthening their insulation from undue politicization and corruption.

h)

Improving the resources and facilities of court stations and their services to vulnerable groups.

i)

Developing peer to peer and office dialogue mechanisms for regular and collective analyses of crime cases and for information and experience sharing

j)

Focusing policemen on just doing police work and not deploying them as body guards of important people

k)

Piloting these and other institutional reforms at the police station level and creating pilot model police stations


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Recommendation No. 9 ESTABLISH THE INDEPENDENCE OF CRIME INVESTIGATION AND PROSECUTION AGENCIES TOGETHER WITH A MEANINGFUL OPERATIONALIZATION OF JUDICIAL AUTONOMY Consider establishing an independent National Prosecution Service, and PNP/NBI, together with the operationalization of reforms in judicial independence. The parameters for the independence of the prosecution and police must be defined while operating within the reasonable bounds of existing istrative and financial management laws, rules and regulations of the government. This will include addressing the following issues: removing negotiable and highly discretionary from LGUs; reintegrating authority to the PNP Chief to recruit, appoint and promote and discipline the police force without prejudice to an appropriate civilian review system; removing LGU authority over the internal istration of the police force; and removing NPS as an organic structure of the DOJ and establishing it as an independent agency. The implementation of judicial independence reforms include the adoption of a one-line item budget which should be automatically and fully released by removing transactional requirements; putting in place mechanisms for the objective determination and automatic remittance of LGU to the courts; and assumption by the Judiciary of the authority to determine the details of its budget, organization and staffing. These will require legislation and long-term development of institutional capacities as well as considerable political will. These will be one of the most difficult reforms to put in place. Recommendation No. 10 UNDERTAKE DETAILED REVIEW AND REENGINEERING OF THE ENTIRE PUBLIC DEFENSE SYSTEM TO IMPROVE ITS CAPACITY TO PROVIDE SERVICES, IMPROVE ACCESS AND EFFICIENCY, AND STRENGTHEN ITS INDEPENDENCE Within severely limited budgetary resources, the government must improve the efficiency of expenditures for public defense by adopting among others good governance framework and practices. A detailed review and reengineering of the social defense system is needed considering the following: a)

Integrating all legal services of the national government into the Public Attorney’s Office (PAO);

b)

Refocusing the role of PAO from directly providing legal services to mobilizing and managing the country’s resources for public defense;

c)

Establishing PAO as an independent agency with some corporate powers, allowing it to mobilize private sector resources;

d)

Asg public defense functions to LGUs (starting with high income LGUs) with PAO performing oversight roles and functions (e.g., providing and enforcing service standards and providing technical assistance);

e)

Enacting a law, requiring all law firms, law students and law practitioners to render free legal assistance to the poor and remote barangays; and

f)

Strengthening partnership mechanisms among the PAO, the courts, IBP and alternative law groups to improve geographical access of public defense services particularly in remote areas.


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Recommendation 11 ASSESS POSSIBILITIES FOR MAINSTREAMING CUSTOMARY MODES OF ADJUDICATION IN THE CRIMINAL JUSTICE SYSTEM The Indigenous Peoples’ Rights Act (RA 8371) gives due recognition to the indigenous peoples’ justice system and the use of their own traditional methodologies and practices for conflict resolution. While the justice system among the indigenous peoples varies in approaches and methodologies, common to these traditional practices is the participation of the community in settling disputes. These traditional forms of justice should be reconciled with the national legal systems and internationally recognized human rights processes and with the penal code. There is therefore a need to provide clear parameters on how these may be integrated and made compatible with the current legal system of government. A study on the potential expansion of the jurisdiction of the Shari’a courts and the removal of the overlapping of its functions with the regular lower courts should be also undertaken. Recommendation 12 REMOVE DUPLICATION, OVERLAPPING, PROLIFERATION AND FRAGMENTATION OF LAW ENFORCEMENT FUNCTIONS, REINTEGRATE POLICE FUNCTIONS, AND REMOVE INSTITUTIONALIZED POLITICIZATION OF THE POLICE In order to conserve severely limited budget resources, improve overall coherence and efficiency, and clarify ability, a system-wide rationalization of police institutions should be undertaken through the following measures: a)

Removing duplication of functions and jurisdictions between the National Bureau of Investigation (NBI) and the Philippine National Police (PNP);

b)

Reintegrating specialized crime agencies into the regular police force, thus removing duplicative overhead expenditures and conflicting jurisdictions;

c)

Reintegrating police powers and functions now assigned to more than 30 national government agencies to a reorganized PNP/NBI; and

d)

Defining the role of local governments in policing.


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Recommendation No. 13 STRENGTHEN THE CAPACITIES OF PROSECUTION AGENCIES –NPS AND OMB The government must strengthen the core capacities of prosecution agencies simply by providing more prosecutors to the National Prosecution Service (NPS) and the Office of the Ombudsman (OMB). The criteria for the determination of the appropriate number of prosecutors should be established based on caseload. Caseload fluctuations can be addressed by adopting some flexible prosecutor deployment and tenure mechanisms which may include outsourcing prosecutors and providing legal research staff to prosecutors, for example, through deployment of law students as practicum Recommendation No. 14 REENGINEER THE INSTITUTIONAL FRAMEWORK OF THE CORRECTIONS PILLAR, DEVOLVE DELIVERY WHILE MAINTAINING STRONG OVERSIGHT The preparation of a devolution plan for the correction system and the rationalization of its institutional framework within a devolution context are recommended. Such devolution program will involve: a)

Transferring to provinces, cities and municipalities the responsibility for the provision and maintenance of local jails.

b)

Streamlining the oversight agencies of national government by removing their delivery functions and strengthening their role in providing and enforcing standards.

c)

Providing mechanisms for private sector participation in restorative justice and providing half way houses particularly for women and youth offenders.

Recommendation No. 15 AMEND THE PROBATION LAW TO EXPAND ITS COVERAGE The coverage of the Probation Law could be expanded to include sentences of prision mayor medium, except in drug cases. This will ease the severely congested penal facilities in the country and thereby contribute to the efficiency of the Bureau of Corrections in processing papers of inmates and its effectiveness in providing restorative justice programs. This will also lessen the caseload of the Bureau of Jail and Management and Penology, as well as the provincial and sub-provincial jails which manage their respective jail facilities. With decongested local jails, limited resources can be used to improve prison conditions and put in place mechanisms for restorative justice in local jails in partnership with LGUs, national government agencies, civil society organizations and the communities. Moreover, if more offenders could benefit from probation, they could be persuaded to enter a guilty plea with the prospect of being put under probation instead of being imprisoned, resulting in more criminal cases speedily disposed by the courts. This would also not only prevent but minimize appeals.


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Recommendation No. 16 POPULARIZE THE LAW TOWARDS BETTER COMMUNITY CAPACITY TO DEMAND JUSTICE REMEDIES AND IMPROVE COMMUNITY CONTRIBUTION IN PROVIDING JUSTICE REMEDIES The general public who are familiar with the law may be better able to and be more cooperative with the police in solving crimes. They will have stronger capacities to demand the provision of justice remedies thus strengthening the ability of criminal justice institutions. Aside from the strategy of tapping the media to popularize the law, other related measures include: a)

Integrating criminal justice teaching exemplars or subjects into the formal education system, building on the gains of the CHR’s teaching exemplars on human rights.

b)

Integrating law popularization procedures in the legal assistance services of the government and private sector and in the Barangay Justice System. Recommendation No. 17 MAINSTREAMING RBA IN CRIMINAL JUSTICE

This involves the design and implementation of rights-based approaches (RBA) by mainstreaming them into the operational procedures and practices and in training programs of policemen, prosecutors, lawyers and judges. RBA is now being formulated and implemented by the CHR. What needs done is to formulate specific approaches and tools and provide assistance to the pillars in conducting assessments of their policies, procedures and practices. There is also a need to design appropriate RBAs and mainstream them into these policies and procedures. Recommendation No. 18 STRENGTHEN THE HUMAN RESOURCE MANAGEMENT SYSTEMS ACROSS THE PILLARS The studies pointed to serious issues in human resources management that undermine the efficiency, effectiveness and integrity of the criminal justice system. Reforms to address these issues have been identified, including the following: a)

Conduct of study and rethinking the entire police education and training system, considering its transfer to the PNP. Police training must produce competent policemen who upon completion of training have acquired core competencies in all relevant aspects of police operations and procedures, the law, and the police tools.

b)

Integrating prosecutors’ training to the Philippine Judicial Academy and expanding the training programs as well as the institutional capacities and resources of the Academy. These include specialized training programs on case management, law and jurisprudence, management of trials by judges, decision-writing and judicial comportment by judges, case preparation by prosecutors, trial skills of prosecutors and other specialized competency areas. PhilJA’s reach and delivery system must be considerably improved.

c)

Improving qualification standards for new recruits (police, investigators and agents and prosecutors) accompanied by attractive compensation and benefit package, and


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career development opportunities; and expanding the skills mix for investigators and other personnel involved in highly specialized crime intelligence and investigation. d)

Improving the policies and procedures for police performance evaluation and promotion.

e)

Deg and adopting new psychometric tools for policemen and judges to weed out those whose character profile does not fit the integrity requirements and other personality traits required for the job. Recommendation No. 19 STRENGTHEN DISCIPLINARY MEASURES PARTICULARLY ON MATTERS CONNECTED WITH CRIMINAL CASE MANAGEMENT

A review of disciplinary procedures and manuals on discipline in the pillars is recommended. Disciplinary measures relating to compliance with specific rules on handling of criminal cases should be put in place, synchronized with the improvement of operating rules and procedures in the pillars, such as the rules of court. Specific measures can already be adopted such as: a)

Imposing disciplinary actions on policemen who fail to appear during trials.

b)

Imposing sanctions and penalties to lawyers who are notoriously tardy or absent during court hearings. The courts must establish a tracking system on lawyers in litigation cases.

c)

Developing standards for police case investigation and arrest procedures and defining compliance parameters together with sanctions for breaches in procedures.

d)

Integrating in the performance standards and evaluation system criteria on managing cases, reporting skills and performance, investigation performance, and imposition of stronger disciplinary actions for habitual tardiness and absenteeism.

Recommendation No. 20 ADOPT A ONE-TIME COMPREHENSIVE ACTIVITY TO FAST TRACK THE PROCESSING OF SOME 600, 000 CASES COMPRISING THE CASE BACK THE LOWER COURTS This initiative will require planned action and resource mobilization which include among others the following: a)

Identifying all courts with unmanageable case backlogs.

b)

Undertaking an inventory of case backlogs.

c)

Formulating a typology of cases as basis for the formulation of procedures and determination of interim time standards.

d)

Developing interim time standards and procedures for the processing of case backlogs.

e)

Developing and implementing training programs for appointed judges who will participate in the project.


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f)

Deg an organizational mechanism for providing judges to process case backlogs.

g)

Installing a project management mechanism to monitor the project, identify and provide istrative and technical systems and do trouble shooting if necessary.

h)

Developing mechanisms for cooperative arrangements with the other pillars of justice (PNP,NBI, NPS, OMB and social defense agencies and private organizations) in order to facilitate the gathering or provision of evidence, production of witnesses, provision of legal assistance to pauper litigants, arrest of suspects, provision prosecutors, etc.

Recommendation No. 21 LEGISLATION TO RATIFY INTERNATIONAL TREATIES AND CONVENTIONS International treaties and conventions are best exemplified by those pertaining to the promotion and protection of human rights. At the core of the international human rights system is the United Nations and its charter which was signed on 26 June 1945. The charter provides provisions that set the foundation for the international human rights system. In particular, under Article 55 of the charter, member-nations commit to promote “universal respect for and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.” Article 56 of the charter provides that all commit to take t and separate actions in cooperation with the UN to ensure the achievement of the provisions of Article 55. The Philippines is signatory to 23 human rights treaties and protocols. Thus, the government is bound to comply with and ensure the implementation or observance of the provisions of these treaties and protocols. International legal framework like that on the above on human rights provides normative protection for access to justice by providing (a) international obligations for states; (b) other standards that are not binding to the states as such but give normative guidance on specific issues (e.g., resolutions, declarations, guiding principles, etc.) and may be indicative of a growing internal consensus to further develop the international legal framework; (c) an additional forum for access to justice (e.g. communications and inquiry procedures initiated through treaty bodies and regional courts and commissions, in cases where national mechanisms are ineffective); (d) mechanisms to monitor states compliance with treaty obligations; and (e) an additional forum to create or influence national norm making. The legal gaps in the protection of human rights include the non-inclusion of international law in the national law of the country. This is specifically true in the case of torture and other cruel, inhuman or degrading treatment or punishments. The Philippines is a signatory of the UN convention on the matter and on the international humanitarian law, but there is no national law yet to implement the conditions and requirements of these commitments. There is need therefore to study the legal barriers to international legal protection, especially the non-incorporation in the national law of ratified treaties in which the country is a signatory.


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