Judicial delays: cost and causes
The constitutional right to due process has always been foundational for the Philippines. Yet an unfortunately resignedly accepted aspect thereof is the delay with which justice is dispatched. Surely, “justice delayed is justice denied” but other consequences — particularly on the economy — also prevail.
One recent study (Melcarne and Ramello, Universita` del Piemonte Orientale, April 2017) of 175 national judicial systems found that “judicial delay turns out to be a relevant and significant determinant of growth, as every extra year needed to dispose (on average) private litigation lowers growth rate by over 1%.”
Perhaps unsurprising considering, as the study contends, that the “judiciary is the main instrument for economic actors to solve their disputes.” Also, a “faster judiciary helps making the protection of property rights more credible.”
This is buttressed by a World Economic Forum brief (Why rule of law is the bedrock of sustainable development, September 2015, Andrew Ozanian): “The reason is because the rule of law can be seen as a linchpin right, something on which other rights depend. As access to justice improves, a lot of other things we value improve as well. The rule of law is a cornerstone for a better functioning economy.”
The impact of judicial speed is not only felt at the macro level but even on the ground, particularly by individual business organizations. In “Does the Quality of the Judiciary Shape Economic Activity? Evidence from India” (Matthieu Chemin Department of Economics, LSE, October 11, 2004), “a slow judiciary implies more breaches of contract, discourages firms from undertaking relationship-specific investments, impedes the access of firms to formal financial institutions, and favors inefficient dynasties. The negative implications of having an inefficient judiciary are large — moving a firm from the highest to the lowest pendency state would result in a 10% improvement in firm performance.”
Perhaps it is no coincidence then that the Philippine fall in the World Justice Project’s 2017-2018 rule of law report mirrors the Philippine downgrading in the World Competitiveness Yearbook rankings.
For the rule of law, the Philippines plunged 18 slots from 2016, to the current 88th out of 113 countries and 13th out of 15 countries in the East Asia & Pacific region. Significant factors were low scores in “fundamental rights” and “criminal justice.” In competitiveness, the Philippines fell 9 slots (50th out of 63 countries), the sharpest decline for the country in the last ten years. A low point is “efficiency of legal framework in settling disputes.”
In his superb masteral thesis “Judicial Performance in Case Deliberations: The Cases of Two Lower Level Trial Courts in Quezon City and Pasay City”, Mark Jason Aludino (an MA candidate in Political Economy with Specialization in International Relations and Development at the University of Asia & the Pacific School of Law and Governance) gives a fresh, pioneering, and ultimately practicable insights into the root causes of judicial delays in the Philippines.
The thesis findings are too numerous to be tackled here but focus for now is made on its determinations regarding Philippine cultural or societal aspects and judicial speed: “Court culture is a vital factor in influencing the pace of litigation and the efficiency of the courtroom staff. In terms of courtroom leadership, the judge maintains the most pivotal role and in the attempt to speed up proceedings, the judge controls a major part of it, with how they deal with the trial flow, requests from parties, and the conduct of their staff.”
The trick, however, is that the “judge’s envisioned management style has to be in-sync and supported by the branch clerk, especially since they are considered as the ‘court managers.’” But this can only be possible if the “judge is able to appoint his or her own staff members”, for which they are currently disallowed from doing.
Another, as Mr. Aludino (who’ll be proceeding for further studies on international relations at the Maxwell School of Syracuse University) points out, is “the litigants’ behavior”, which is “widely considered as the biggest determinant of court delay. This is also perhaps the most challenging to control”.
Admittedly, litigants’ behavior may be constrained by economic circumstances but then outright dilatory tactics (e.g., absenteeism, lack of preparedness, rescheduling — particularly with regard to the conduct of cross-examinations, and abuse of the registered mail system) clearly need proscription.
It is because of such, more than any other factor, that “delays become common in courts and the impact has been extremely detrimental to whatever efforts the court puts in place, as well as negatively impacting the efforts of the judge and other court actors to hasten litigation.”
Clearly, unlike in the past administration, where the words “rule of law” was employed merely as a political trope, people are now recognizing that the rule of law’s proper application has real world beneficial implications.
At the very least, the above-cited studies show that Filipinos must learn to distinguish between being merely legalistic and actually respecting the rule of law.
Jemy Gatdula is a Senior Fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence.
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