Sunday, February 06, 2005

Justice with mercy

Justice with mercy

Posted 00:18am (Mla time) Feb 06, 2005
By Isagani Cruz
Inquirer News Service

Editor's Note: Published on page A14 of the February 6, 2005 issue of the Philippine Daily Inquirer

DESPITE my repeated reminders that I am no longer in the active practice of my profession, I continue to receive requests from some of my readers to handle their cases. Many even send me thick documents for me to read, hoping to persuade me to represent them or at least to advise them on what to do with their legal problems.

Unfortunately, I cannot find the time or the energy to study their individual complaints, which are mostly already being handled by their respective counsel. In effect, many of them are asking me to interfere with my brother lawyers, who would have reason to resent my meddling and their clients' lack of confidence in them. I presume, of course, that their attorneys are doing their work well and all these readers are asking from me is a second opinion. I regret I cannot oblige.

I became a lawyer 53 years ago last Friday and my number in the Attorney's Roll is a low 3575. It has been a thrilling career for me and I am grateful to God and all those who have helped me along the way. The years have slowed me down as they must all of us, but I am thankfully not yet totally inactive. I still occasionally feel that burst of enthusiasm that fires the spirit and whips the blood of the convert enamored by the mystique of the Law.

Only recently, I wrote in this column about that decision in favor of a city that provoked two motions for reconsideration both denied by the Supreme Court. Entry of judgment was duly made, and the decision was partially enforced by the winning party. The losing party filed a third motion for reconsideration which was granted by the Court; it also allowed the final and executor decision to be appealed to the banc in violation of its own rules. Worst of all, the Supreme Court reversed the Second Division, which had acted on behalf of the entire Court, and ruled in favor of the respondent.

It is cases like this that make me speak out, not as a retained and active lawyer but as an ordinary observer of the administration of justice in this country. Courts are presumptively competent and honest but there are times when the rules prescribed for their proper conduct are ignored if not wantonly violated, sometimes by the High Tribunal itself. That is when I find it necessary to speak out but not as an intentional fault-finder of the judges. I do this as a member of the Bar anxious to correct or prevent, if I can, excesses or errors of the Bench.

In that curious case, the Court allowed a third motion for reconsideration and granted it after denying the two previous motions with finality. It accepted referral of the decision of the Second Division to the banc despite the prohibition in its own SC Circular No. 2-89. Even after the decision had already been recorded in the Book of Entry of Judgment and already partially executed, it was reversed by the Supreme Court which remanded the case back to the trial court. The city was not even allowed to comment on the third motion for reconsideration, if only to stress that it was prohibited by the Rules of Court.

Only recently, I called attention to a case where the Supreme Court described the Court of Tax Appeals as a quasi-judicial body despite its earlier pronouncement that it was a court of justice. Prof. Bartolome C. Fernandez was quick to add that Sec. 16 of the Administrative Code of 1987 includes the Court of Tax Appeals among the lower courts in which judicial power is vested. That undeniable error of the Supreme Court may cause a credible law student to flunk the bar examinations for believing in the infallibility of the justices composing the High Tribunal.

Speaking of the bar examinations, I remember the time I interceded for a student who had received a rating of 74.9980 percent and was considered flunked. She moved for reconsideration, respectfully showing that her computation of her grade gave her the passing average of 75 percent. Her motion was denied, the Court preferring the computation made by the Bar Confidant. I discussed the matter with Chief Justice Hilario Davide, who gave me the impression that he agreed with the petitioner. In the end, however, he said that the Court had refused to change its original denial.

More serious is the case of another flunker in the same 2003 bar examinations who received a grade of 74.9990 percent and was considered Failed. His motion for reconsideration was originally denied but was later referred to the Bar Confidant who as of Nov. 8, 2004, date of his letter to me, had not yet submitted her required report and recommendation to the Court. Like my student, the petitioner demonstrated that his own computation would give him the passing grade of 75 percent.

Regardless of the merits of the conflicting computations, I suggest that the computations made by the Bar Confidant should be made with less rigidity in determining the student's fate in the bar examinations. The plea of the two students who missed the passing grade by only .001 percent and .002 percent deserves more compassion from the Supreme Court, which has itself committed its own more substantial mistakes. As Milton said in "Paradise Lost," justice should be tempered with mercy.


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