Re: SC Project: Access to Justice for the Poor Project

February 15, 2005

A.M. No. 05-2-01-SC

Gentlemen :

Quoted hereunder, for your information, is a resolution of the Court En Banc dated February 15, 2005

"A.M. No. 05-2-01-SC — Re: SC Project: Access to Justice for the Poor Project

In early 2001, the Supreme Court and the European Commission (EC) delegation to the Philippines initially discussed the possibility of an EC grant to fund activities in line with the Action Program for Judicial Reform (APJR) or parts thereof.

By the end of 2002, the EC commissioned a team of experts as a Scoping Mission to look at the feasibility of an EC funded project for the Supreme Court that would cover the APJR components "Access to Justice for the Poor " and "Reforms Support System. "

By the end of the second quarter of 2003, the Scoping Mission, after consultations with various national agencies, local governments and non-governmental institutions (NGOs) proposed the creation of a network of information and dissemination systems interconnecting the "pillars of justice " in order to enhance accessibility of the justice system for the poor and disadvantaged (especially women and children).

In 2003, the SC Project: Access to Justice for the Poor Project (the Project) was approved by the EC and the Government of the Philippines with the Financing Agreement being signed on August 10, 2004. The Project is scheduled to commence in 2005 and is to be implemented over a 4-year period ending in 2009.

The Technical and Administrative Provisions (the TAPs) of the Project's Financing Agreement designate the Supreme Court as the Executing Authority and the Implementing Agency for the Project.

Per the TAPs, the purpose of the Project is:

To enable the poor in general andpoor women and children in particular in selected project areas (approximately 100 municipalities and 3000 barangays) to pursue justice through their increased knowledge about basic rights and the judicial system and to create an enabling, supportive environment to this effect within the judiciary and the institution[s] of law enforcement as well as an overall legal framework amended to ensure the rights of poor women and children in particular. (Emphasis supplied; footnote omitted) DTSaIc

The Project is described in this wise:

The project will expand the Information, Education and Communication infrastructure of the Court system by delegating one Clerk of Court as Municipal Court Information Officer (MCIO) at each of the approximately 100 Municipal Courts (out of 1124 in total) to be covered by the project. In approximately 3000 barangays under their jurisdiction, legal information desks will be established in co-operation with the Barangay Council and Captain and capacity building will take place for those involved in the Barangay Justice System, paralegals, women and children.An effort will be made to enhance the sensitivity of particularly those working in law enforcement and the judiciary to the problems of the poor.(Emphasis supplied)

As envisaged, the Project is intended to result in the following:

1) A decentralized Information Education Communication (IEC) function within the judiciary is established:

a) An IEC strategy for the Supreme Court (SC) is developed and implemented.

b) IEC function is operational at approximately 100 Municipal Courts (MC's) in the project areas.

2) Legal information desks are established in selected barangays and supported by the IEC function in the Municipal Courts.

3) The Barangay Justice System in selected barangays is strengthened in accordance with the revised Katarungang Pambarangay Law.

4) The poor and vulnerable groups (i.e., women and children) in the barangays know their rights, are aware of the legal procedures to uphold them, and received legal advice/assistance.

5) The police officers in the target areas are familiar with basic rights issues, are gender sensitive and are conducting their assignments accordingly.

6) Curricula of police training institutions includes adequate modules on human rights, the rights of children, gender issues, and the economic and social conditions of the poor. IDAaCc

7) The Supreme Court and the Department of Justice have adopted a training program sensitizing its personnel at the central, provincial and municipal level to the economic and social conditions of the poor, and the situation of women in particular.

8) The existing laws pertaining in particular to the situation of women and children have been reviewed and there has been advocacy to amend them so as to make them in accordance with basic rights and the international conventions signed by the Republic of the Philippines.

Per the Financing Agreement for the Project, the total cost is estimated at 3,472,324 euro (approximately P244,903,011.72 at P70.53 = 1 euro as of February 11, 2005),1 of which the EC undertakes to finance a maximum of 2,731,920 euro (approximately P192,682,317.60) and the Republic of the Philippines shall contribute 740,404 euro (P52,220,694.12).

On January 7, 2005, as directed by the Committee on Public Information chaired by Justice Artemio V. Panganiban, the Project Management Office (PMO) submitted a draft Memorandum of Agreement (MOA) among the Supreme Court, the Department of Justice (DOJ),the Department of the Interior and Local Government (DILG),the Department of Social Welfare and Development (DSWD),and the Commission on Human Rights (CHR).

The draft MOA was then referred to the Office of the Chief Attorney (OCAt) for review. In its Memorandum dated January 19, 2005, the OCAt recommended the withdrawal of the Court from participation as Executing Agency of the Project for the following reasons:

(1) the participation of the Court in the Project is of doubtful constitutionality, as the component activities to be undertaken are within the competence and authority of the executive branch of government to undertake, and

(2) the Project activities are either functions of the executive departments or are already being undertaken in the Court through other Projects managed by the PMO.

In view of the OCAt's submissions, the Committee on Public Information directed both PMO Program Director Evelyn Toledo-Dumdum and PIO Chief Atty. Ismael G. Khan, Jr. to submit their respective positions on the Project, which they did, through separate memoranda.

This matter was included in the February 1, 2005 Agenda of the Court en banc for study and comment. EAIcCS

The issues for resolution are the following:

A. Whether the program to inform, educate and communicate with the public in order to promote access to justice by the poor is within the constitutional mandate of the Supreme Court.

B. Whether the Court's participation in the Project as defined in the MOA violates the separation of powers.

A Program to Inform, Educate and

In its Memorandum, the OCAt opines that the judicial power as defined in Section 1, Article VIII of the Constitution "is clear enough to exclude dissemination of 'legal information.' " While acknowledging that the term "legal information " is not defined in the MOA or the TAPs, 2the OCAt speculates that "because the Project is about access to justice by the poor, the implication is that the poor would be informed and educated on how to file a case or to seek recourse before the courts. " To this, the OCAt adds the warning that "'legal information' may in fact include advisory opinion on legal matters such as the proper procedure to avail of by the person seeking such information. "

Moreover, the OCAt theorizes that "legal information " is synonymous to "legal education " in the APJR, 3 which it defines as referring to education and training in college for the purpose of obtaining a law degree in preparation to admission to the Bar. Thus, the OCAt concludes that "'[l]egal education' may not encompass educating the people, especially the disadvantaged, on how to have access to the justice system. " And further that "[p]roviding 'legal information' to the masses, which is the principal activity under the Project, is within the competence of the executive department of government, not the Judiciary, to undertake.

For its part, the PIO believes that court personnel at the trial court level can engage in information dissemination activities, but that these activities "should generally be confined to court users with respect to actual cases as well as Rules issued by the Court. "

The more reasonable opinion is that of the PIO.

It is undisputed that under the fifth paragraph of Section 5, Article VIII of the Constitution, this Court is vested with rule-making power, to wit: aICcHA

Sec. 5. The Supreme Court shall have the following powers:

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(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts,the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. (Emphasis supplied)

Concomitant to the power to promulgate rules is the duty to publish the same. As discussed at length in the landmark case of Tañada v. Tuvera,4 publication is an essential element of due process:

Publication is indispensable in every case ...

It is not correct to say that ...publication may be dispensed with altogether. The reason is that such omission would offend due process insofar as it would deny the public knowledge of the laws that are supposed to govern it. Surely, if the legislature could validly provide that a law shall become effective immediately upon its approval notwithstanding the lack of publication (or after an unreasonably short period after publication),it is not unlikely that persons not aware of it would be prejudiced as a result; and they would be so not because of a failure to comply with it but simply because they did not know of its existence. Significantly, this is not true only of penal laws as is commonly supposed. One can think of many non-penal measures, like a law on prescription, which must also be communicated to the persons they may affect before they can begin to operate. 

We note at this point the conclusive presumption that every person knows the law, which of course presupposes that the law has been published if the presumption is to have any legal justification at all.It is no less important to remember that Section 6 of the Bill of Rights recognizes "the right of the people to information on matters of public concern, " and this certainly applies to, among others, and indeed especially, the legislative enactments of the government. HCDaAS

The term "laws " should refer to all laws and not only to those of general application, for strictly speaking all laws relate to the people in general albeit there are some that do not apply to them directly. ...

We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the legislature or, at present, directly conferred by the Constitution. Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation.

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Accordingly, even the charter of a city must be published notwithstanding that it applies to only a portion of the national territory and directly affects only the inhabitants of that place. All presidential decrees must be published, including even, say, those naming a public place after a favored individual or exempting him from certain prohibitions or requirements. The circulars issued by the Monetary Board must be published if they are meant not merely to interpret but to "fill in the details " of the Central Bank Act which that body is supposed to enforce.

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We agree that the publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the laws.As correctly pointed out by the petitioners, the mere mention of the number of the presidential decree, the title of such decree, its whereabouts (e.g., "with Secretary Tuvera "),the supposed date of effectivity, and in a mere supplement of the Official Gazette cannot satisfy the publication requirement. This is not even substantial compliance. This was the manner, incidentally, in which the General Appropriations Act for FY 1975, a presidential decree undeniably of general applicability and interest, was "published " by the Marcos administration. The evident purpose was to withhold rather than disclose information on this vital law.

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Laws must come out in the open in the clear light of the sun instead of skulking in the shadows with their dark, deep secrets. Mysterious pronouncements and rumored rules cannot be recognized as binding unless their existence and contents are confirmed by a valid publication intended to make full disclosure and give proper notice to the people.The furtive law is like a scabbarded saber that cannot feint, parry or cut unless the naked blade is drawn. 5 (Emphasis supplied) cADEHI

The Tañada case specifies publication in the Official Gazette or in newspapers of general circulation as the absolute minimum compliance with the requirement of due process. However, there is nothing in the Constitution or in existing jurisprudence which prohibits the Court from undertaking further efforts to ensure that judicial rules and procedures are understood by the general public — including the poor and uneducated — for whose benefit they were promulgated.

In fact, as pointed out by the PIO, the Court has already undertaken additional efforts to further explain court procedures to the public at large, including the publication of various information materials such as brochures, flyers and the Benchmark, as well as the broadcast of the radio program Usapang Korte Suprema. Thus, the 2002 Revised Manual for Clerks of Court expressly includes among the non-adjudicative functions of a first-level clerk of court the responsibility to "[p]rovide information services to the public and private agencies including bar associations. " Furthermore, Section 12 of the Rule on Violence against Women and Children which took effect November 15, 2004 enumerates specific pieces of information which, in the proper cases, a clerk of court is required to communicate to the offended party, to wit:

Sec. 12. Duties of the clerk of court. — The clerk of court shall assist the petitioner or the offended party by:

(a) Communicating in a language understood by the petitioner;

(b) Providing the petitioner with a standard petition form written in English with translation into the major local dialects, including the instructions for its accomplishment;

(c) Ensuring the privacy of the offended party to the extent practicable while the form is being accomplished;

(d) Advising the petitioner on the availability of legal assistance from the Public Attorney's Office of the Department of Justice or any public legal assistance office;

(e) Advising of the petitioner on entitlement of support services from the DSWD and LGUs; DaECST

(f) Advising the petitioner on the availability of an affidavit of indigency in lieu of payment of the filing fee;

(g) Providing the offended party with a certified copy of the protection order as well as giving the necessary information regarding the process for its service and enforcement;

(h) Making available informative materials on violence against women and their children including their rights as victims; and

(i) Informing the offended party that compensation is available from the Department of Justice Board of Claims in accordance with the provisions of R.A. No. 7309 (1992),otherwise known as "An Act Creating a Board of Claims Under the Department of Justice for Victims of Unjust Imprisonment or Detention and Victims of Violent Crime and For Other Purposes.

Clearly, there is no constitutional prohibition against this Court "educating the people, especially the disadvantaged, on how to have access to the justice system. "

"Legal Information " Provided by

As correctly pointed out by the OCAt, the confusion regarding the proposed decentralization of the Information, Education and Communication (IEC) function to the municipal clerks of court stems from the failure of the MOA or the TAPs to adequately define the "legal information " which is supposed to be communicated.

In particular, the OCAt's concern that such "legal information " may amount to advisory opinions or the rendition of legal advice on the merits of a prospective litigant's case is well taken. In undertaking to provide "legal information " a clerk of court walks a fine line between the communication of basic court procedures and legal advocacy, which, if overstepped, opens the judiciary to accusations of bias and impropriety and threatens its impartiality and independence. ASETHC

In Alfonso v. Juanson,6 where a judge was charged with immorality and violation of the Code of Judicial Ethics, this court speaking through Justice (now Chief Justice) Hilario G. Davide, Jr., held:

...However, considering their prior special relationship, the respondent and Sol's meetings could reasonably incite suspicion of either its continuance or revival and the concomitant intimacies expressive of such relationship. In short, the respondent suddenly became indiscreet; he encumbered to the sweet memories of the past and he was unable to disappoint Sol who asked for his legal advice on a matter which involved her employment. Such indiscretions indubitably cast upon his conduct an appearance of impropriety.He thus violated Canon 3 of the Canons of Judicial Ethics which mandates that "[a] judge should avoid impropriety and the appearance of impropriety in all activities. " It has been said that a magistrate of the law must comport himself at all times in such manner that his conduct, official or otherwise, can bear the most searching scrutiny of the public that looks up to him as the epitome of integrity and justice. (Dia-Añonuevo vs. Bercacio,68 SCRA 81 [1975]).The ethical principles and sense of propriety of a judge are essential to the preservation of the faith of the people in the judiciary. (Candia vs. Tagabucba, 79 SCRA 51 [1977]) 7

The foregoing is equally applicable to the conduct of clerks of court, who are the chief administrative officers of their respective courts who must show competence, honesty and probity since they are charged with safeguarding the integrity of the court and its proceedings. 8

Indeed, this danger is acknowledged by the PMO in its Comment:

Noteworthy is the fact that although the Project description does not expressly provide for the exact definition of "legal information, " nevertheless, taking into account the Project's objectives, "legal information " is only meant to encompass basic information on the people's rights, what they could possibly do to uphold the same if these rights are transgressed and may include orientation on the simplified process on how to file a case.The project neither seeks to promote court litigation nor encourage the public to resort to litigation.

We share the concern of the OCAT on the possibility of overlapping activities embarked by the Department of Justice (DOJ),particularly by the Public Attorneys Office (PAO) in rendering "free legal assistance/representation to indigents in criminal cases and non-commercial civil disputes. " This Office, however, is fully aware of the parameters and the limitations of the "legal information " that may be disseminated by the Clerk of Courts [sic] such that proper delineation of functions of the partner government agencies will be contextualized in the implementation of the Project.(Emphasis supplied) EICSTa 

If the PMO is truly aware of the parameters and limitations of the "legal information " that may be disseminated by the clerks of court, then the same should be clearly indicated in the MOA, the TAPs and other relevant documents.

As it stands, while the MOA and TAPs speak of decentralizing the Information Education and Communication function of the judiciary, they provide neither clear guidelines on the nature of the "legal information " to be communicated to the public nor a procedure or process for the formulation of such guidelines.

As pointed out by the PIO, it is necessary that the Court provide specific standards of conduct with regard to the disclosure and publication of "legal information " in order to avoid even the appearance of impropriety and maintain the integrity of the judicial branch. Verily, the conduct required of court personnel must be beyond reproach and must always be free from suspicion that may taint the judiciary.

The Role of the Court as the Project's Constitution

However, even if the "legal information " to be provided by the municipal clerks of court is adequately defined, the Project still suffers from a fatal constitutional defect insofar as the Court is designated as the Executing Authority and Implementing Agency for the Project.

It is readily apparent from the Project description and the end results envisioned that the Project does not merely involve the decentralization of the IEC function of the judiciary, but also involves several concurrent undertakings on the part of the DOJ the DILG the DSWD, and the CHR. Consequently, the problem arises whether the Court's participation violates the constitutional principle of separation of powers.

The PMO has apparently become aware of this problem, because in its Memorandum dated February 25, 2005 it proffered the following clarification:

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2. May we clarify your Honors that the Supreme Court will only have an executing function with respect to Component 1 of the Project: Decentralization and Institutionalization of Information Function of the Judiciary while the rest of the components such as Community Development and Empowerment of Women and Children, Institutional Development of Law Enforcement and the Judiciary and Legal Reforms will be implemented by the Department of Interior and Local Government, Department of Social Welfare and Development, Department of Justice, respectively, within the perspective of their mandated authority and function. DEICTS

3. Ever mindful of the principle of separation of powers among the three branches of government and cognizant of the implicit limitations imposed by it, the implementation of the Project will adhere to the constitutional parameters, respecting domains of the Executive and Legislative branch of the government, nonetheless, without compromising the integrity and independence of the Judiciary.

4. Needless to state, the Project provides an opportunity of cooperation and mutual assistance among and between the Judiciary and the aforestated government agencies, sharing and contributing to the achievement of the judicial reform vision, "A Judiciary that is independent, effective and efficient, and worthy of public trust and confidence; and a legal profession that provides quality, ethical, accessible and cost-effective legal service to our people and is willing and able to answer the call to public service. "

5. Likewise, in view of the trust and confidence reposed by the donor community to [sic] the Supreme Court and its competence and credibility in pursuing the objectives of the Action Program for Judicial Reform, the European Commission proposes that the funds flow will be coursed through the Supreme Court with the appropriate accountability mechanisms.(Emphasis supplied)

Unfortunately, the provisions of the MOA and the TAPs belie the "clarification " of the PMO.

Under No. 3, Article II of the MOA, while the Partner Agencies (PAs) have "control over the production of outputs, " the Court, as Executing Agency (EA) has the authority to withhold or order the suspension of payments to the PAs or "undertake proper and immediate steps to aptly resolve the subject matter " if it is not satisfied with the quality and progress of their work:

3. Subject to the terms and limitations of this MOA, the PAs shall have control over the production of outputs as specified in this MOA and the related use of funds. The EA and the EC, however, shall review the quality of work and the progress being undertaken toward successfully achieving the goals of the Project. If the EA, in consultation with the EC, is not satisfied with the quality and progress of work, it may under its discretion either (i) withhold or order the suspension of payment until in its opinion the situation has been adequately corrected or remedied, or (ii) undertake proper and immediate steps to aptly resolve the subject matter, intended to accomplish the goals of the Project. The EA's decision with regard to the quality of work being performed and the progress being made shall be final, executory, and binding upon the PAs, in so far as further payments by the EC are concerned. (Emphasis supplied) HIAEaC

Further, Article III of the MOA provides that the Court as the EA shall have supervision and oversight over the PAs, and shall be accountable for the overall success of the Project to the EC:

Article III Responsibilities of the EA

1. The EA shall undertake the following responsibilities:

a) Provide guidance, supervision and oversight in the performance of the PAs responsibilities;

b) Review monitor and certify the satisfactory completion of outputs by the PAs;

c) Report the technical and financial delivery of the Project to the EC;

d) Facilitate the procurement of goods and services in accordance with the Terms of Reference;

e) Resolve operational issues and concerns that may arise in the course of Project implementation;

f) Release funds provided by the EC to the PAs in accordance with the Financing Agreement; and

g) Maintain an overall accountability for the production of outputs and use of Project funds and other resources.(Emphasis supplied)

Moreover, the TAPs contain the following administrative provisions:

3.1.3 Project Steering Committee

(a) The Executing Authority will establish a Project Steering Committee (PSC) with responsibility for policy guidance and co-ordination between all institutions and groups involved in the project.

(b) The PSC will meet at the beginning of the project an a minimum of twice a year onwards and will assist the Executing Authority in the overall project implementation. AaDSEC

(c) The PSC will review and endorse the PTF's six-monthly reports, as well as the policy and strategic implications of Overall and Annual Work Plans and budgets drafted by the PTF before they are sent to the Executing Authority and Commission for final consideration and approval.

(d) The PSC will also assist in facilitating overall project implementation.

(e) The PSC will be chaired by the Chief Justice or his/her representative9and membership will include representatives of Department of Interior and Local Government, Department of Social Welfare and Development, Department of Justice, NEDA, and Alternative law Groups and other civil society representatives. Representatives of other donor agencies may be invited as observers for co-ordination. EC representatives will be invited to the PSC meetings as observers with the right to speak.

(f) The PSC will as well co-ordinate with the other good governance project in the programme, the Corruption Prevention project. (Emphasis supplied)

The foregoing unquestionably vests the Court with administrative supervision, even control, over the other government agencies with respect to their undertakings under the Project.As such, they run afoul of Section 12, Article VIII of the Constitution:

Sec. 12. The members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions.

In Manila Electric Co. v. Pasay Transportation Co.,10 where the constitutionality of a statute requiring the members of the Supreme Court to sit as a board of arbitrators was assailed, this Court held:

The Supreme Court of the Philippine Islands represents one of the three divisions of power in our government. It is judicial power and judicial power only which is exercised by the Supreme Court. Just as the Supreme Court, as the guardian of constitutional rights, should not sanction usurpations by any other department of the government, so should it as strictly confine its own sphere of influence to the powers expressly or by implication conferred on it by the Organic Act. The Supreme Court and its members should not and cannot be required to exercise any power or to perform any trust or to assume any duty not pertaining to or connected with the administering of judicial functions. ASaTCE

The Organic Act provides that the Supreme Court of the Philippine Islands shall possess and exercise jurisdiction as heretofore provided and such additional jurisdiction as shall hereafter be prescribed by law (Sec. 26).When the Organic Act speaks of the exercise of "jurisdiction " by the Supreme Court, it could only mean the exercise of "jurisdiction " by the Supreme Court acting as a court, and could hardly mean the exercise of "jurisdiction " by the members of the Supreme Court, sitting as a board of arbitrators. There is an important distinction between the Supreme Court as an entity and the members of the Supreme Court. A board of arbitrators is not a "court " in any proper sense of the term, and possess none of the jurisdiction which the Organic Act contemplates shall be exercised by the Supreme Court. 

In the last judicial paper from the pen of Chief Justice Taney, it was said:

"The power conferred on this court is exclusively judicial, and it cannot be required or authorized to exercise any other. ...Its jurisdiction and powers and duties being defined in the organic law of the government, and being all strictly judicial, Congress cannot require or authorize the court to exercise any other jurisdiction or power, or perform any other duty....The award of execution is a part, and an essential part of every judgment passed by a court exercising judicial power. It is no judgment, in the legal sense of the term, without it. Without such an award the judgment would be inoperative and nugatory, leaving the aggrieved party without a remedy. It would be merely an opinion, which would remain a dead letter, and without any operation upon the rights of the parties, unless Congress should at some future time sanction it, and pass a law authorizing the court to carry its opinion into effect. Such is not the judicial power confided to this court, in the exercise of its appellate jurisdiction; yet it is the whole power that the court is allowed to exercise under this act of Congress. ... And while it executes firmly all the judicial powers entrusted to it, the court will carefully abstain from exercising any power that is not strictly judicial in its character, and which is not clearly confided to it by the Constitution...." (Gordon vs. United States [1864],2 Wall.,561; 117 U.S.,697, Appendix.) 11 (Emphasis supplied)

Similarly, in In Re: Rodolfo U. Manzano,12 the Court held:

Under the Constitution, the members of the Supreme Court and other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions (Section 12, Article VIII, Constitution).

Considering that membership of Judge Manzano in the Ilocos Norte Provincial Committee on Justice, which discharges administrative functions, will be in violation of the Constitution, the Court is constrained to deny his request.

Former Chief Justice Enrique M. Fernando in his concurring opinion in the case of Garcia vs. Macaraig (39 SCRA 106 [1971]) ably sets forth:

"2.While the doctrine of separation of powers is a relative theory not to be enforced with pedantic rigor, the practical demands of government precluding its doctrinaire application, it cannot justify a member of the judiciary being required to assume a position or perform a duty non-judicial in character.That is implicit in the principle. Otherwise there is a plain departure from its command. The essence of the trust reposed in him is to decide. Only a higher court, as was emphasized by Justice Barredo, can pass on his actuation. He is not a subordinate of an executive or legislative official, however eminent. It is indispensable that there be no exception to the rigidity of such a norm if he is, as expected, to be confined to the task of adjudication. Fidelity to his sworn responsibility no less than the maintenance of respect for the judiciary can be satisfied with nothing less." 13 (Emphasis supplied) ECSaAc

In like manner, the Project, as presently structured, does not pass the test of constitutionality.

Provision of Additional Salary Constitution

The total cost of the Project is estimated at 3,472,324 euro, of which the European Commission has committed to contribute 2,731,920 euro while the Philippine Government obligates itself to contribute 740,404 euro (364,900 euro in cash and 375,504 euro in kind).

An examination of the Project budget reveals that 103,500 euro (31,050 euro to come from the European Commission and 72,450 euro to come from the Philippine Government) has been allotted for the salaries of the municipal court information officers who are all Municipal Trial Court clerks of court. Hence aside from their regular salaries which they are receiving as clerks of court, those chosen to become information officers of the Project are also entitled to receive an additional salary. Furthermore, part of their additional compensation is funded by a foreign entity. This arrangement is clearly in violation of Section 8 of Article IX-B of the 1987 Constitution which provides:

Sec. 8.No elective or appointive public officer or employee shall receive additional, double or indirect compensation, unless specifically authorized by law,nor accept without the consent of the Congress,any present, emolument,office, or title of any kind from any foreign government. CcHDSA

Pensions or gratuities shall be considered as additional, double or indirect compensation.

Moreover, as observed by the PIO, clerks of court are already duty-bound to "provide information services to the public and private agencies including bar associations " as part of their non-adjudicative functions.

Thus, effectively, the Government of the Philippines will be wasting precious resources, paying additional, compensation for services which are already included as part of the duties of the municipal trial court clerks of court.

Training and Employment of

It bears noting that the implementation of the Project relies heavily on paralegals as an essential component of the Project. Necessarily, these paralegals would engage in the practice of law which this Court, in Cayetano v. Monsod,14 defined as "any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. " 15 But the use of paralegals may be improper since under Philippine law, a person who has not been admitted as an attorney cannot practice law for the proper administration of justice cannot be hindered by the unwarranted intrusion of an unauthorized and unskilled person into the practice of law. 16 As the OCAt astutely points out:

The TAPS mentions the training of paralegals that shall be fielded in the implementation of the Project. Paralegals are not a common breed in this country. Although the Court has supported approval by the Commission on Higher Education of the proposal of the Manuel L. Quezon University to offer the course of Bachelor of Science in Paralegals, such support is circumscribed by the requirement that the course shall be a pre-law course.Authorizing the practice of paralegals in the country is still being studied by the Committee on Legal Education and Bar Matters because of the need to regulate their practice in much the same way that the practice of the members of the Integrated Bar of the Philippines is subject to the Court's rule-making authority.17 Parenthetically, if the Project were to be properly implemented, the participation of the IBP is necessary. (Emphasis and underscoring supplied)

Surprisingly, the PMO agrees with the assessment of the OCAt, to wit:

This Office concurs with the position of the OCAT that the Committee on Legal Education and Bar Matters (CLEBM) is still studying the prospect of certifying paralegals. Taking into account this development, the utilization of the paralegals in the implementation of the Project could be held in abeyance pending proper sanction from the CLEBM.We also acknowledge that the participation of the Integrated Bar of the Philippines in this Project is necessary. (Emphasis and underscoring supplied) aHIEcS

WHEREFORE, the Court RESOLVES to request the Department of Foreign Affairs to renegotiate the Financing Agreement signed between the European Commission and the Republic of the Philippines on "Improving the Governance to Reduce Poverty: Access to Justice for the Poor, " particularly the "Technical and Administrative Provisions " or TAPS thereof, to limit the Supreme Court's participation in the Project, keep the same within the bounds of the Constitution and take into consideration existing laws, jurisprudence and issuances of the Court, including the New Code of Judicial Conduct for the Philippine Judiciary, the Code of Conduct for Personnel and the 2002 Revised Manual for Clerks of Court, specifically:

1. To relieve the Supreme Court of its responsibility as Executive or Implementing Agency for the entire Project, particularly of the provisions in the TAPs vesting the Court with administrative control or supervision over other government agencies with respect to the latter's undertakings under the Project; the functions and responsibilities of the Supreme Court being limited only to that which directly involve the Judicial Department of the government and its personnel.

2. To define the parameters and limitations of the "legal information " that may be disseminated by the municipal court information officers.

3. To delete provisions of the TAPS allotting or granting additional salary or compensation to the municipal court information officers.

4. To define the functions of the paralegals to prevent them from performing any activity which "requires the application law, of legal procedure, knowledge, training and experience " and which only attorneys-at-law may do. "

Very truly yours,

 

(SGD.) LUZVIMINDA D. PUNOClerk of Court

Footnotes

1.http://www.bsp.gov.ph/statistics/sdds/exchrate.htm.

2.In fact the term "legal information " is not used anywhere in the MOA, the Financing Agreement or the TAPs except in reference to "legal information desks " to be established in certain barangays.

3.IMPROVED ACCESS TO JUDICIAL AND LEGAL SERVICES

Reforming substantive law, jurisdictional structure of the courts, rules of court, judicial systems and procedures, legal education,as well as the institutional processes and resource generation strategies will be geared toward consolidating gains that will increase as well as financial access to judicial services particularly by the poor and other disadvantaged sectors of society. (Emphasis supplied)

4.146 SCRA 446 (1986).

5.Id. at 452-456.

6.228 SCRA 239 (1993). 

7.Id. at 254-255; vide Gozun v. Judge Liangco, 339 SCRA 253, 261 (2000).

8.Madrid v. Quebral, 413 SCRA 1, 12 (2003).

9.Per the Work Plan and Budget 2005-2008 dated October 12, 2004, the PSC is composed of the member Justices of the SC Committee on Public Information; the Court Administrator; the Program Director of the SC Program Management Office (SC-PMO);the Assistant Secretary for Human Resources of the DILG; the Undersecretary for Programs of the DSWD; the Undersecretary for Legal Affairs of the DOJ and the convenor of the Alternative Law Groups. Recently, the Chancellor of the Philippine Judicial Academy, the Chief of the SC Management Information Systems Office and the Chief of the DOJ Public Attorney's office were also named to the PSC.

10.57 Phil. 600 (1932).

11.Id. at 605-606.

12.166 SCRA 246 (1988).

13.Id. at 251.

14.201 SCRA 210 (1991).

15.Id. at 214.

16.Ulep v. Legal Clinic, Inc., 223 SCRA 378, 405 (1993).

17.In the Resolution in Bar Matter No. 553 (Ulep v. Legal Clinic, Inc.) issued on 17 June 1993 (223 SCRA 378), the Court ruled that the services offered by private respondent constituted "practice of law [that] cannot be performed by paralegals " and said: "We have to necessarily and definitely reject respondent's position that the concept in the United States of paralegals as an occupation separate from the law profession be adopted in this jurisdiction. Whatever may be its merits, respondent cannot but be aware that this should first be a mater for judicial rules or legislative action, and not of unilateral adoption as it has done " (p. 403).