TRANSFORMATION FROM ADVERSARIAL SYSTEM TO INQUISITORIAL SYSTEM UNDER THE DRAFT 2013 REVISED RULES IN CIVIL PROCEDURE:

LEGAL PRACTITIONER’S PERSPECTIVE

Atty. Sharon B. Millan 91­30862

With the unceasing growth of laws and jurisprudence, it is the burden of a lawyer to keep abreast of them.

In legal battles, a person’s life, right, liberty or property is at stake. Lawyers are thus duty­bound to handle cases with meticulous care.

­Former Chief Justice Hilario G. Davide, Jr.

ABSTRACT

The August 2012 issue of the Bar Tribune, the official publication of the Integrated

Bar of the Philippines (IBP), published an article by Supreme Court Associate Justice, Roberto A. Abad entitled, “The Need for Change in Our Legal System”. Justice Abad proposed the adaptation of a shift from the American Adversarial model to the European Inquisitorial model in hearing and deciding cases. The European model consists of a preliminary conference and one face­to­face hearing with a decision at the end of the hearing.

To pursue this reform, a National Conference for the Revision of the Rules of Civil Procedure was conducted from April to July 2013 wherein the First Draft of the Revised Rules of Civil Procedure was published.

This paper mainly discusses the history, characteristics, comparison between the adversarial and inquisitorial system, salient features and prospects of this proposed revised rules of civil procedure. Perception and attitude of legal practitioners in Iloilo City were taken through convenience sampling.

The introduction of a completely different European model by Justice Abad has yet to be culturally accepted by practicing lawyers. A perception study of the local response to this model can help in laying the foundation for reshaping the trial proceedings in the country.

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1 INTRODUCTION

The legal profession is a branch of the administration of justice (Jayme vs. Bualan, 58 Phil 422). The law is a profession the practice of which is intimately connected and bound up with the exercise of judicial power in the administration of justice (Nebraska State Bar Asso., 114 ALR 151, 133 Neb 283, 275 NW 265) and is, therefore, affected with public interest (Rhode Island Bar Asso. vs Automobile Serv. Asso., 100 ALR 226, 55 RI 122, 179 A 139).

Attorneys at the bar are properly termed the “court’s constituency,” to aid in the administration of justice (Dodge v. State, 39 NE 745, 140 Ind 284). Attorneys­at­law are quasi officers of the Court subject to regulation by the court, their functions are quasi­judicial, and their profession is an inherent element in our judicial system, and, though subject to regulation, it cannot be abolished (In re Maresh’s Will, 187 NW 1009, 1011, 177 Wis 194).

However, public perception towards the conduct of litigation by lawyers have been far from positive. Due to the adversarial nature of litigation in the Philippines, a citizen regards the pursuit for justice through the courts as a necessary evil that one has to put up with. This dominantly adversarial system for hearing and deciding cases were given to us by the Americans over a hundred years ago. Under this system, pitted adversaries build and defend their positions while destroying that of the other party apart, with the judge sitting back to watch the contest below before announcing the winner (Abad, Roberto A., 2012). This system gave rise to the various problems such as needless testimonies and redundancies in evidence, time­consuming marking of evidences, frequent objections and clarification and there is the favorite, urgent motion to postpone.

It is, in fact, public knowledge that the Justice System in the country is beset with clogged court dockets and snail paced case trials. At present, 21% of trials take 2 to 5 years to finish, and 13% take more than 5 years to finish (Carpio, Antonio T., 2012). Solutions to solve the clogged dockets problems are constantly introduced such as case management, case filtering, simplification of trial procedures, pre­trial and preliminary conferences, mandatory referral to mediation, addressing lack of judges, prosecutors and Public Attorney’s Office (PAO) lawyers and the most recent application of the judicial affidavit to replace the direct testimonies of witnesses. However, these solutions do not take into account the informal factors such as the “brotherhood” culture of the IBP, the strong clutch by senior lawyers to tradition and the tendency of lawyers to complicate legal procedures that adds to the cumbersome system in hearing and deciding cases.

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In May 20, 2013, the first draft Revised Rules of Civil Procedure was published and is now scheduled for approval by the Supreme Court en banc. Among the salient features selected for this study of the Revised Rules are as follows: Table I. Key areas of the draft of the Revised Rules of Civil Procedure

Mandatory ADR Every case with few exceptions must undergo alternative dispute resolutions before it is filed in court Preparation of a court paper called the Terms of Reference Limit the scope of trial to those issues that the conflicting claims and evidence of the parties present. Judicial Dispute Resolution Before moving on to trial, however, the court will refer the case to a pairing branch for judicial dispute resolution conference, where the judge, acting as mediator, shall exert every suitable effort to settle the case amicably, using his knowledge of the parties relative positions based on the Terms of Reference attached to the record forwarded to it. Judge as Active Facilitator of Needed Evidence The 2012 Judicial Affidavit Rule granted for the first time authority to the court to actively take part in examining the witnesses to determine their credibility, ascertain the truth of their testimonies, and elicit the answers that the court needs for resolving the issues. Face­to­face trial Finally, the proposed rules introduce face­to­face trial where the witnesses from either side appear together before the court and simultaneously swear to the truth of their testimonies. They are made to sit facing each other around the table in a non­adversarial environment and answer questions from the court and the parties’ counsel respecting the factual issue at hand. a) Regular Trial If the issues are complex and the witnesses are many, the court may schedule the hearings of the different issues on different dates where only the relevant witnesses need to come.

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b) Simple Trial If the issues are simple and the witnesses are few, the court may, at its option, hold a one­time face­to­face adjudication hearing. After the close of examination of the witnesses, the court shall immediately hear the parties on oral argument then render a verbal judgment, subject to the issuance of a written judgment. Language Used at Trial The Revised Rules makes Pilipino the preferred language for trial — with no need for interpretation. Efficient use of court time The proposed rules would require every party filing a position paper or similar paper exceeding 20 pages, excluding the caption, the signature page, and the appendices, to accompany his main paper with a summary which is equivalent to 20% of the pages of such paper. Grounds for Dismissal of Complaint. Motions to dismiss would no longer be allowed. In its place, the court will, before issuing summons, examine the complaint and dismiss it if, on its face, the court has no jurisdiction over the subject matter, the action has already prescribed, or the preconditions for filing have not been complied with. The lack of jurisdiction over the person of the defendant due to improper service of summons and the non­payment of docket fees will no longer be treated as grounds for outright dismissal. The plaintiff may act to comply with what is required of him during a curing period of fifteen (15) days from notice. The provisions on Bill of Particulars have been deleted. Motions No Longer Set for Hearing. With the need to set all motions for hearing, it is up to the court to set a motion for hearing to enable it to examine those who executed judicial affidavits in support of or against the motion. The adverse party would just have to file his comment on the motion within 15 days of receipt. No reply or rejoinder shall be allowed except with prior leave of court. The court will resolve the motion within a given time. Finally, no further motion shall be allowed to impede trial once it has begun. Source: Primer on the 2013 Revised Rules of Civil Procedure

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2 REVIEW OF LITERATURE History

Until the development of Medieval inquisition in the 12th century, the legal systems used in medieval Europe generally relied on the adversarial system to determine whether someone should be tried and whether that person is guilty or innocent. Under this system, unless people were caught in the act of committing crimes, they could not be tried until they had been formally accused by their victim, the voluntary accusations of a sufficient number of witnesses, or by an inquest (an early form of grand jury) convened specifically for that purpose. A weakness of this system was that because it relied on the voluntary accusations of witnesses, and because the penalties for making a false accusation were severe, victims and would­be witnesses could be hesitant to actually make their accusations to the court, for fear of implicating themselves. Because of the difficulties in deciding cases, procedures such as ordeal or combat were accepted.

Beginning in 1198, Pope Innocent III issued a series of decretals that reformed the ecclesiastical court system. Under the new processus per inquisitionem (inquisitional procedure) an ecclesiastical magistrate no longer required a formal accusation to summon and try a defendant. Instead, an ecclesiastical court could summon and interrogate witnesses of its own initiative, and if the (possibly secret) testimony of those witnesses accused a person of a crime, that person could then be summoned and tried. In 1215, the Fourth Council of the Lateran affirmed the use of the inquisitional system. The council also forbade clergy from conducting trials by ordeal or combat. As a result, in parts of continental Europe, the ecclesiastical courts operating under the inquisitional procedure became the dominant method by which disputes were adjudicated. In France, the parlements — lay courts — employed inquisitorial proceedings.

In England, however, King Henry II had established separate secular courts during the 1160s. While the ecclesiastical courts of England, like those on the continent, adopted the inquisitional system, the secular common law courts continued to operate under the adversarial system. The adversarial principle that a person could not be tried until formally accused continued to apply for most criminal cases. In 1215 this principle became enshrined as article 38 of the Magna Carta: "No bailiff for the future shall, upon his own unsupported complaint, put anyone to his law, without credible witnesses brought for this purposes."

The first territory to wholly adapt the inquisitional system was the Holy Roman Empire. The new German legal process was introduced as part of the Wormser Reformation of 1498 and then the Constitutio Criminalis Bambergensis of 1507. The adoption of the Constitutio Criminalis Carolina ("peinliche Gerichtsordnung" of Charles V)

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in 1532 made inquisitional procedures empirical law. It was not until Napoleon introduced the code d´ instruction criminelle, of the French code of criminal procedure, on November 16, 1808 that the classical procedures of inquisition were ended in all Germany territories.

In the development of modern legal institutions which occurred in the 19th century, for the most part jurisdictions did not only codify their private law and criminal law, but the rules of civil procedure were reviewed and codified as well. It was through this movement that the role of an inquisitorial system became enshrined in most European civilian legal systems. However, there exist significant differences of operating methods and procedures between 18th century ancien régime courts and 19th century courts; in particular, limits on the powers of investigators were typically added, as well as increased rights of the defense.

It would be too much of a generalization to state that the civil law is purely inquisitorial and the common law adversarial. Indeed the ancient Roman custom of arbitration has now been adapted in many common law jurisdictions to a more inquisitorial form. In some mixed civil law systems, such as those in Scotland, Quebec and Louisiana, while the substantive law is civil in nature and evolution, the procedural codes that have developed over the last several hundred years are based upon the English adversarial system. (http://en.wikipedia.org/wiki/Inquisitorial_system)

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Fundamental differences between typical adversarial and inquisitorial systems: Table 2.

ADVERSARIAL SYSTEM INQUISITORIAL SYSTEM

Nature The adversarial systems is a legal system where two advocates represent their parties positions before an impartial judge to attempt to establish the truth of a case.

Court is actively involved in conducting trial, determining facts, finding the truth. Inquisitoral system has a group of judge whose task is to investigate a case.

Applied by

UK and the USA, Australia

Many European nations and Asian countries

Role of the parties

Each party has control over their own case. Decide how evidence is represented, Party control. Parties are responsible for instigating the proceedings. Investigating the facts of the case. Which evidence to present, which witnesses to call. Investigating the laws, relevant precedents. Can choose the quality of legal representation according to their ability to pay. Parties are responsible for the outcome of the case. Both sides will fight to win their case. Cases are heard without state interference.

Greatly reduced role. Respond to the directions of the court. No control over their own case. Should reduce inequity between the parties like financial imbalance. Place control of the case with a third party.

Role of Judge

Judge must keep the contest fair and impartial. Decides on admissibility of evidence. Whether it is hearsay, or a legal opinion or illegally obtained evidence. Decide questions of law. Ensure that the burden of proof is discharged. Decide the case.

Much more active role. Involved in investigating the case. Define the issues to be resolved. Gather evidence (with the police).Objective is to find the truth. Can call witnesses as they see fit. Raise other matters of law or fact. Wide ranging powers to investigate

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Burden and standard of proof

Lies in the person who brings the case. Standard is the strength of proof required on the balance of probabilities. Ensure the person bringing the matter to court has to prove their case to the required standard

There is no formal burden of proof. It is up to the Judge. Pursuit of truth is the main objective.

Need for legal representation

Ensure parties are able to present their best case. Familiar with rules of evidence and procedure. Aware of people’s legal rights. Assist in achieving a just outcome. When each party present their case to the best of their ability, the truth should emerge. Adversary system works effectively when both sides are equally represented. If one lawyer is better than the other, they may be able to influence the case and bring about an unfair result.

Much lesser role. Job is to assist the Judge to find out the truth at the direction of the Judge. Help in questioning the witnesses.

Rules of evidence and procedure

Fair and equal treatment. Unreliable or illegally obtained evidence is not heard. Evidence is not unduly prejudicial to one of the parties. Evidence should relate only to present case. CReate an atmosphere of respect ­ parties are more likely to follow decision. The truth should emerge through questioning

Much less reliance on strict rules. Hearsay and improperly obtained evidence is admissible if the Judge decides that it is relevant.. Extensive use of written evidence as opposed to mainly oral evidence in adversary. Witnesses are allowed to tell their story when they are told to testify. They do not have to respond to specific questions.

(Tim Macdonald, VCE Legal Studies Unit 4 AOS 2, http://www.youtube.com/watch?v=Tx8sDVl7sBk&list=PLD8F28C27EF14895A; http://www.youtube.com/watch?v=k­3kQFV3reo)

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3 METHODOLOGY

The main purpose of this study is to present the 2013 First Draft of the Revised Rules of Civil Procedure and how this fare to the perception and attitude of legal practitioners in Iloilo City. In order to do this, an attitude and perception survey was conducted among practising lawyers in Iloilo City. Survey development and implementation took into consideration the awareness, acceptability and adaptability to the draft revised rules of civil procedure. A total of 10 surveys were completed. The survey was implemented by sending the respondents an electronic link (https://docs.google.com/forms/d/13fP6QsQL49h19fLS3xDreuSf6ufhnZjgl5hQr3njP8o/viewform) to an online survey which was later further conducted through a key informant interview in their respective law offices. The discussion during the interviews focused on the acceptability and adaptability of the respondents towards the draft revised rules. 4 FINDINGS

The results of the survey and the key informant interviews were as follows: Table 3 : Summary of survey responses

Indicator Significant Findings

Awareness of the First Draft of the Revised Rules of Civil Procedure dated May 20, 2013 which emphasizes the shift from our Adversarial system to Inquisitorial System.

70% of the respondents were unaware of the draft revised rules of civil procedure

Awareness that the Draft is now scheduled for approval by the Supreme Court En Banc.

80% of the respondents were unaware that the draft rules are now scheduled for approval by the Supreme Court and may soon be implemented.

Agreement with the salient features:

Mandatory ADR 70% agreed that ADR is necessary

Preparation of a court paper called the Terms of Reference

70% agreed with the use of the Terms of Reference

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Judicial Dispute Resolution 70% disagreed with the additional step of judicial dispute resolution

Judge as Active Facilitator of Needed Evidence

Respondents were equally divided on the role of the Judge as active facilitator of needed evidence

Face­to­face trial 70% of the respondents disagreed with this basic feature of an inquisitorial system of face­to­face trial

Language Used at Trial Respondents were divided in the use of Pilipino as the preferred language during trial

Efficient use of court time

Respondents were divided on the 20 page limit on position papers

Grounds for Dismissal of Complaint.

60% disagreed that motion to dismiss would no longer be allowed

Motions No Longer Set for Hearing.

60% agreed that motions should no longer be set for hearing

Agreement to the transformation from adversarial to inquisitorial

Respondents were divided on this transformation from the adversarial to inquisitorial system mainly due to lack of awareness on the draft revised rules of procedure. One view was that this was not fit for Filipino mentality as the inquisitorial limits the check and balance of behavioral discrepancies. a Judge’s prejudice can affect the trial and the administration of justice in general. Two were indifferent, as long as it suits our culture and only if it can help lessen the process which is not clear in the draft rules.

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Adaptation

As to adaptation, respondents either stated that they were not yet ready as they are still studying and getting familiar with the "un­revised" procedure. Another stated that it is not a matter of adoption but if it is so provided one has to follow and that they had no choice. Others anticipated that there might be some confusion during the transition period due to the implementation of the revised rules and that there must be a piloting and eventually nationwide implementation. Potential Problems

Potential problems identified by the respondents are Complexity, Resistance to change, Lack of knowledge, Varied interpretation may cause conflict and difference in judgment of similar cases. Confusion during its "roll­out". judging from what happened when the 1997 RCP took effect, the SC was quite lenient in applying the rules for a certain time.

Comment on the face to face trial­ Regardless, all the witnesses should be heard to be consistent with the principle of due process. There was a positive surprise on the verbal judgment after the one face­to­face trial in simple cases.

The use of Pilipino was disagreed upon by some respondents as it is going to be difficult for witnesses speaking other Filipino languages.

Almost all of the respondents opined that the judges will be unable to immediately adjust to the revised rules on civil procedure Suggested preparations for adaptation

Among the preparations suggested by the respondents to adopt the revised rules of civil procedure were: a. Firstly, the revised rules should have been properly disseminated; b. Orientation for all judges, court personnel, litigators, training, conference with the different interested sectors. The revised rules should Include in the Mandatory Continuing Legal Education; c. Mock court observing the revised rules, with the proponents in attendance; d. Need for immersion with Parallel implementation; and e. transition period should be sufficient from approval

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Readiness to adjust

Respondents were equally divided as to their readiness to immediately adjust to the revised rules. Some of the respondents were unsure as to the complexity of the revised rules due to unfamiliarity with the details. Another stated that some features are simplified, while others are complicated. Another opined that though it is complicated, it is high time to codify the rules due to the Supreme Court various circulars that have introduced revisions in the 1997 Rules of Civil Procedure. One stated that the revised rules seeks to simplify litigation, but by overhauling decades old procedures, it may encounter opposition from old­time litigators and judges. Unclogging of Court Dockets

Some respondents stated that they were cannot say whether the revised rules will unclog court dockets. Another stated that it is not that effective, it needs further study and should not be rushed. One respondent who answered that change is always for the better, until everybody would again find ways to circumvent the rules.

One respondent opined that the Judicial Affidavit Rule does not necessarily expedite the disposal of the case, but the Judicial Dispute Resolution can help expedite due to a more convincing authority by a judge to settle a case. Another stated that procedures may be longer but with higher possibility of amicable settlement.

A positive response from another respondent was that the revised ruled might unclog the dockets, but it is not the only solution to the problem of clogged court dockets. Public perception of judges, justices, court personnel of the judiciary in general must also be addressed . The "people power" /vigilante mindset of some must be corrected so as to bring back the people's trust in the judiciary and in government in general. 5 ANALYSIS

There is an apparent lack of awareness on the part of the legal practitioners on the Draft Revised Rules of Civil Procedure despite the fact that there were consultations held by the National Conference for the revision of the Rules of Civil Procedure. Despite this lack of knowledge, lawyers, as officers of the court are duty­bound to comply with whatever new procedural rules are required by the Supreme Court.

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Agreement with the salient features

The establishment of an an alternative dispute resolution and judicial dispute resolution systems as part of the feature of the Revised Rules of Civil Procedure are very laudable. This will discourage malicious and dilatory tactics that some lawyers resort to, just to harass or delay the exercise of a right by the opposing party. The mediation by a pairing judge before a case proceeds to trial will give the litigating parties a legal and hopefully, an unbiased legal view of the potential outcome of the case. This will surely cut­down the trial period.

The Terms of Reference is akin to the existing pre­trial system with several improvements. This will force the litigating lawyers to lay down all their cards for the judge to see clearly and analyze the issues effectively.

The responses to the judge as active facilitator and the face­to­face trial features which are the meat of the Inquisitorial system, are indicators that the legal practitioners are still hesitant to give­up the adversarial system. Admittedly, the adversarial system has contributed to the pursuit of due process wherein witnesses are one­by­one subjected to direct examination and cross examination. However, this system has been limited as vital evidence may be inadmissible, oral evidence can be misleading, witnesses can be intimidated by the courts and their memory are unreliable and judges have biases and can be influenced.

With the judge as active facilitator and the face­to­face trial, there can be timely resolution as these features gives greater investigative role of judge and therefore could allow the judge to ask questions and call witness and eventually allow the judge to ensure that cases are decided correctly and fairly. The rendering of a verbal judgment, subject to the issuance of a written judgment, right after the conduct of a one­time face­to­face adjudication hearing, shall radically shorten court proceedings.

The Pursuit of truth is the main objective. It will no longer be about winning and losing, rather it’s about the search for truth. Parties will have little control of proceedings and this reduces the chance that the rules will be manipulated.

Potential issue might be that the judge could lose his or her independence, especially if past records are known. Also there is the issue of less reliance on legal representation. This may reduce the cost of parties, especially if one party is poorly represented.

The use of Pilipino and not Filipino as language in the court may cut the trial

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proceedings as translations from english to the local dialect and vice­versa will now be avoided. The respondents had an issue that Pilipino refers to tagalog and not the official national language of Filipino which recognizes words from various local dialects in the country.

The cut­off of 20 pages for the position paper, though disagreeable to half of the respondents only means to discipline lawyers to keep their position papers short and direct to the point. The grounds for dismissal is a fertile area to cut short proceedings whenever there is really no cause of action on the part of the complainant.

Motions no longer set for hearing is a welcome reform as motions do cause delays in proceedings wherein lawyers merely appear to manifest that the subject motion is submitted for resolution.

The suggested preparations for implementation should be seriously considered as the shift from adversarial to inquisitorial is relatively new but adaptable to lawyers. This is to avoid confusion and ensure uniform compliance and interpretation by all stakeholders 6 CONCLUSION

The atmosphere of competition in adversarial proceedings has resulted to frustration of the litigative model by the public. This only works if the parties do not know each other and after the case, the litigants will not see each other anymore. However, most civil cases involve relationships and the litigants will have an unhealthy post­trial life.

The reforms aimed at improving the judicial process requires the support of the

litigators. This affects the productive lives of our countrymen that can be devoted to other relevant pursuits, rather than years of enduring the slow paced litigation process. The social and economic cost of these delays are undeniable.

The judiciary which must always be relied upon as the bulwark of the our rights. The

judiciary’s role as a “protector of the Constitution” assumes extreme importance given the fact that our basic rights are continuously subjected to unrelenting onslaught of self­interests by those in power, both in the Executive and the Legislative. The judiciary must always be relied upon even if the people have grown tired and fatigued of issues of corruption and injustice. The 2013 Draft Revised Rules of Civil Procedure can be one of the solutions.

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References

Jayme vs. Bualan, 58 Phil 422 Nebraska State Bar Asso., 114 ALR 151, 133 Neb 283, 275 NW 265 Rhode Island Bar Asso. vs Automobile Serv. Asso., 100 ALR 226, 55 RI 122, 179 A 139). Dodge v. State, 39 NE 745, 140 Ind 284 In re Maresh’s Will, 187 NW 1009, 1011, 177 Wis 194 Abad, Roberto A. (2012), The Need for Change in our Legal System. The Bar Tribune, August 2012, 21­23. Carpio, Antonio T., Judicial Reform in the Philippines. The Bar Tribune, August 2012, 10­13. Primer on the First Draft of the Revised Rules of Civil Procedure, May 20, 2013, National Conference for the Revision of the Rules of Civil Procedure, 2­3. First Draft of the Revised Rules of Civil Procedure. National Conference for the Revision of the Rules of Civil Procedure. May 2013 http://en.wikipedia.org/wiki/Inquisitorial_system Tim Macdonald, VCE Legal Studies Unit 4 AOS 2, http://www.youtube.com/watch?v=Tx8sDVl7sBk&list=PLD8F28C27EF14895A; http://www.youtube.com/watch?v=k­3kQFV3reo

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