Titanic debate, titanic delay

A titanic war is looming between the executive and judicial branches of government over the judiciary’s budget. Simply stated, Budget Secretary Florencio Abad is proposing that appropriations for unfilled judicial positions should not be diverted to other purposes (like salary increases for incumbents) but should be reverted to the national treasury. Court Administrator Jose Midas Marquez objected, saying that Abad’s proposal violates fiscal autonomy. However, beyond the legalism and money rhetoric is – I think – a deeper problem: delayed justice for our people. Let me explain.

Backgrounder. Yearly, Congress passes a budget for the national government. For the judiciary, the budget includes appropriations for all judgeship positions (whether filled or not with incumbents) numbering over 2,000, their supporting personnel (like clerks of court and sheriffs), equipment, supplies, etc.

Once approved, the entire budget for the judiciary is released by the Department of Budget and Management to the Supreme Court, which in turn dispenses it for the items detailed in the appropriation law. However, of the over 2,000 judgeships, more than 600 are vacant for which “savings” are realized. The Supreme Court, specifically the chief justice, “realigns” the savings and uses them to “augment” other items like salaries, bonuses and allowances.

Under this method, the chief justice is able to increase the financial benefits of magistrates and judicial employees beyond what is originally provided in the national budget. Abad argues that this method of covertly inflating judicial pay violates accountability and transparency, and is unfair to government offices with no fiscal autonomy.

On the other hand, Marquez – supported by various judicial groups (which conduct “Black Monday” rallies) – believes the Abad proposal transgresses this constitutional mandate: “The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be reduced by the legislature below the amount appropriated for the previous year and, after approval, shall be automatically and regularly released.”

By blocking the sums intended for the unfilled 600 judgeships positions (about P2 billion), Abad – Marquez claims – would be illegally reducing “the amount appropriated for the previous year,” and would be violating the “automatic and regular” release of judicial appropriations.

Titanic judicial delay. There is reluctance to fill up the 600 vacancies because, once filled up, there will be no more savings and no source for the increased benefits that judicial personnel have enjoyed over the years. To fill up the vacancies, the Judicial and Bar Council, which is chaired by the chief justice and administratively supervised by the Supreme Court, must first nominate the prospective appointees. Because of the need for savings, the JBC has been shy in processing nominations.

During my term as chief justice, I tried to hasten the filling up of the vacancies such that, at the end of my term, only 300 posts remained vacant; I had hoped these would be filled up soon thereafter. But instead of further reducing, the vacancies have gone back to about 600, which was the number when I started my term.

The reluctance to fill up the 600 vacancies, which constitute about 30 percent of judgeships in the country, means that justice will always be delayed especially in the lower courts. Indeed, the dockets of trial courts are congested because only 70 percent are functional. Any machinery (or office) that works only 70 percent of its rated capacity is bound to be inefficient and delayed.

Win-win solution. Both Abad and Marquez posed good arguments. On one hand, there is indeed need for accountability and more transparency in judicial pay. On the other, there is the constitutional command on the “non-reduction” and “automatic and regular release” of funds. Should a suit involving these constitutional issues reach it, the high court may have the awkward job of ruling in its own favor.

But the public may be more interested in justice being titanically delayed and titanically denied by the reluctance to fill up the 600 vacancies. I think the permanent “win-win” solution is to increase the judicial budget by P2 billion to cover the pay increases and other items that the savings “augment.” In this way, all these expenses will be transparent and accountable.

At the same time, the appropriation for the vacancies should be maintained but henceforth prohibited by law from being used for any other purpose. Also, the JBC should immediately process nominations to fill up the 600 vacancies and solve the underlying problem of delayed justice. Thereafter, the budget for unfilled positions should no longer be “realigned.”

I hope that, with this win-win solution, the constitutional questions will be resolved properly, the judicial personnel paid satisfactorily, the vacancies filled up fully, the plague of delayed justice solved immediately, transparency and accountability observed faithfully, and the titanic word war ended totally.

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Kudos to Francis Chua, president of the Philippine Chamber of Commerce and Industry, for accepting my challenge to launch an anti-corruption campaign among micro, small and medium enterprises (SMEs). He said PCCI would use the guidelines outlined in this space last Sunday to kick off this advocacy during PCCI’s national conference this month. Being the undisputed champion of SMEs, PCCI can surely help President Aquino win the anti-corruption war.

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