Lived law

Last month I was invited to attend an “Ulat ng Hudikatura” (State of the Judiciary), an annual media event where Chief Justice Maria Lourdes Sereno reports on the activities of the judiciary, led by the Supreme Court.

I was part of a panel that had been invited to interact with the Chief Justice, to give our views on her report, copies of which were given to us before the event.

This was my first time to attend the “Ulat,” and I was grateful for being invited because I realized how little I knew of the workings of our judiciary, including the many reforms being introduced, mainly to decongest the court dockets.

Members of the Supreme Court staff, some of whom were my former students in UP when they were taking prelaw degrees, told me the Chief Justice is very comfortable with new technologies and has welcomed all kinds of electronic systems that cover the whole spectrum of paper-heavy legal processes: from payment of fees and serving of notices to monitoring and processing of cases, and even, in some cities, automated hearing systems so a court proceeding is captured in real time.

I was particularly intrigued by the Enhanced Justice on Wheels. Launched in 2008, it allows mobile court hearings combined with free legal, medical and dental aid to people still in jail and awaiting trial.

People’s experiences

The “Ulat” was not just about reforms. I read a summary of recent Supreme Court decisions and I realized how mass media coverage tends to emphasize TROs (temporary restraining orders) when in fact the decisions cover so many aspects of daily lives—for example, the custody of children after a divorce has been granted by a Shariah court. It’s decisions like this that come closest to people’s lives, and we need to see more media coverage of these decisions.

The fact is that despite the many reforms in the judiciary, people’s perceptions of the law and of the courts are still mainly shaped by experiences, their own as well as those of close friends and relatives, of getting or being deprived of justice. Sadly, many of these experiences continue to involve long periods of waiting and numerous hearings. The delays feed suspicions of corruption, as people conclude—unjustly, in many cases—that trials are delayed because judges and lawyers are waiting for bribes.

My view is that the most important reforms in the judiciary that will reshape people’s perceptions, and use of the judicial system, are those at the level of small claims courts and family courts. The disputes within families and between neighbors or small business partners are clogging our courts.  A revision of rules for small claims cases has cut average processing time from about six months to two months—so important for restoring faith in our courts.

I paused at the word “restoring” because the Chief Justice reminded me, and the media people, that among the challenges in bringing about justice is dealing with a preexisting system, one that perhaps has its roots even in a precolonial era and which has never really known a formal judicial system.

The Chief Justice’s reference to a preexisting system came about after I mentioned that a weak link in our justice system is the barangay courts, which are actually under the Department of Interior and Local Government. These courts were set up so small disputes—from noisy karaoke parties and barking dogs to a wife complaining about her husband taking a mistress—could be settled quickly.

I’ve always had mixed feelings about these courts. On one hand I’m impressed by the speed and, often, the arbitration skills and homespun wisdom of barangay captains; on the other hand, I’ve also seen crude justice being meted out: barangay tanod beating up a person caught stealing, a wife allowed to vent her rage on the mistress, even barangay captains themselves mauling a “defendant.”

It looks and sounds like reality TV, and in fact there was a local program—I don’t know if it’s still running—that mimicked barangay courts, with the addition of psychologists as resource persons offering advice to the audience in handling day-to-day aggravations.

The problem is that these forms of “justice” can be crude. Besides the physical punishment, there’s a lot of shaming, sometimes even before the facts are in.

The Chief Justice acknowledged that we do need to deal with these existing perceptions of justice. I had raised the matter of violence at barangay levels because I fear that with the ongoing extrajudicial killings, we will find this “native justice” reinforced, with people actually welcoming the violence in the hope that this will solve all our problems from snatching to drug pushing.

Words, terms, are important. Note how the Department of Justice, which includes the penal system, reinforces the idea of justice as punishment and, in the Philippine context with all its power inequities, as selective justice, where rich and powerful inmates have air-conditioned rooms while the poor are packed like sardines into tiny cells.

Let’s face it, too: When people refer to the judiciary and the courts, the terms are intimidating: pagsampa ng kaso (filing of cases), pagdemanda (suing), paghahatol (judgment).

People live the law on a daily basis, and so it is important that we gather their stories of this lived law. Our family driver recently settled a case in a small claims court. He had been hit by a car driver who refused to pay for his hospitalization and even filed estafa charges against him. I got him a lawyer, who guided him on what needed to be done, but when the hearings came, lawyers were not allowed in, which made my driver uneasy. No one explained that in this way, you won’t have the problem of some slick high-end lawyer being brought in to bully the other party, who might not even have a lawyer. He smiled after I explained and admitted that the hearing, more of arbitration, went well with an agreement reached right then and there.

I am sure he will tell his story to friends, as his wife will to her friends, making the small claims courts less intimidating.

‘Konsensya’

I think, too, of a fellow professor at UP trying to get a marriage annulment after years of emotional and physical battering from her husband. One day, in frustration, she went off to Quiapo and bought those black candles shaped like humans where you can insert the name and/or photograph of someone who has wronged or abused you. You then light the candle, held upside down.

“Pang konsensya,” the vendors told her, meaning to prick the conscience of the one who had wronged her. (If you ask if it isn’t kulam or sorcery, some vendors feign shock, and others simply smile.)

“Native justice,” I explain to my classes of medical students sent out to Quiapo to observe medicinal plants and amulets, even fortune-tellers. I tell them there’s more out there than just traditional medicine, as the black candles show.  Maybe we should send law students out there, too.

I hope for a time when people’s sense of justice will no longer be shaped by Quiapo, or barangay hysterics, or the night patrols and executions. I hope for a time when we can speak of our courts, barangay-level upward, as offering ginhawa (relief, comfort) and kapayapaan (peace) for our lives.

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