By: Diega V. Webster

(Editor’s note: The views expressed in this piece are solely the author’s and do not necessarily represent Firm’s institutional position.)

One of the Supreme Court’s issuances during the COVID-19 pandemic, issued on the day the enhanced community quarantine (ECQ) in Luzon was declared, ends with a solemn but hopeful note:

The Constitution and our laws are not suspended, and our courts are not shutting down in times of emergencies. But with the situation still rapidly evolving and an atmosphere of uncertainty pervading, we must all do everything we can, including making drastic adjustments in our operations without sacrificing the need to attend to urgent cases that affect life and liberty, to prevent the spread of Covid-19, and protect the health and safety of our justices, judges, court workers, lawyers, and the public we serve.[1]

These words were written in the same document that ordered the courts nationwide to “drastically reduce operations” and suspend non-urgent hearings and filings for a month, which was later extended as the ECQ continued.

As of now, there is no end in sight. A vaccine may take up to 12 to 18 months, and even then, it is an extraordinary feat, as vaccine research normally take years to develop. Out of the four coronaviruses already circulating among humans, no vaccine exists for any.

The World Health Organization (WHO) leads the way in teaching the world how to protect themselves against Covid-19. Out of these, social and physical distancing takes the most toll on the economy, norms, and daily life, not just in the Philippines but all over the world. This disrupts all our usually acceptable behaviors and current practices. Constant fear and paranoia continue to overwhelm the public because the numbers of deaths and persons infected have no signs of slowing down.

While social distancing arguably succeeds in flattening the curve, it has led to extreme lockdowns, closing of businesses, curfews, and from a legal standpoint, the abrupt near cessation of court proceedings.

Unexpectedly, law offices are not considered a vital sector anymore. Non-urgent hearings are postponed until further notice. Deadlines of pleadings extended to months from the original dates. Lawyers suddenly left without hearings to attend. Cases are stalled and litigants must endure a 2-month delay, at the very least.

It seems that based on what is going on around us, justice is not being served as efficiently and effectively as it had been before.

But the Supreme Court is taking this crisis head-on and has issued numerous circulars to ensure the continuation of court services, slowly but surely adjusting to the “new normal.” The pandemic will change how courts are run and cases are heard. The Supreme Court’s circulars are illustrative of how the justice system is rapidly evolving. While the Supreme Court announced that these changes are temporary if the ECQ persists, it has implied that it will review the new procedures depending on the evolution of circumstances.

Litigation is a very fluid, rapidly changing field in the legal profession, and we will witness its transformation as we go along this long path of survival of a pandemic. Some changes can be anticipated to happen soon, as we will see below.

Prioritization of criminal cases involving detainees. Courts should make a gradual transition from the ECQ to regular court sessions. The Supreme Court has already defined urgent hearings in its March 31 circular which allows the online filing of complaint or information and posting of bail.[2] This logically follows the creation of official e-mail addresses and hotlines in courts, a first in the history of Philippine courts. Naturally, since no one was prepared for this event, courts that do not have official e-mail addresses have to create accounts from free platforms.

The first few months after the end of ECQ should ideally be strictly reserved for pending criminal cases, with a preference for those involving persons deprived of liberty (PDLs) accused of non-bailable offenses, as it is being practiced now following the Supreme Court’s recent circular.[3] During the ECQ, some PDLs may have been qualified for release, subject to bail or recognizance, under the Supreme Court’s guidelines for decongesting holding jails,[4] and the courts have been directed to immediately implement this directive.[5]

Cases of unqualified PDLs may be prioritized first when court sessions resume under the rules on continuous trial for criminal cases.[6] In this situation, civil cases and other special cases will be pushed back unless there is an urgent need to hear them, as in injunctions and applications for restraining orders. The courts may have to be more lenient in trial periods for civil cases as provided in the new rules in the interest of justice and due to the current extraordinary circumstances.

Incremental schedules of hearings. Instead of the usual practice where all counsels and litigants arrive in court at the same time, courts must schedule hearings in increments of 15 or 30 minutes so parties will not overcrowd the courtroom in one whole session and wait for their cases to be called. A court may, for example, hear a total of 26 cases a day at increments of 15 minutes from 8:30 AM to 4:30 PM, with a 1.5-hour lunch break. When hearings are more complicated or litigious, such as presentation of witnesses, identification of voluminous documents, or oral arguments before the court, more time may be required.

In line with this, parties and counsels who arrive early should not be allowed inside the courtroom unless the court staff directs them to because they are next in line. They might even be directed to only be in court at a maximum period of 15 minutes before their scheduled hearing, otherwise, they would have to wait outside the courthouse in an open area.

Limiting persons attending hearings. The Supreme Court may issue guidelines on who are required to attend hearings. Courts may direct that only one lawyer must appear for each client every hearing instead of the entire legal team working on the case. Only one witness must appear, or, if the court orders the appearance of several witnesses, then the case must be the only one in the calendar for that session. If the party is a juridical entity, only one authorized representative should be allowed to attend.

PDLs whose cases are heard need not go to court every time their case is set for hearing, but to allow them the right to witness the proceedings, they may be allowed to watch it live through videoconferencing.

Videoconferencing hearings. The Supreme Court has now allowed the conduct of hearings on criminal cases involving PDLs through videoconferencing.[7] This covers all PDLs and may apply to all stages of trial of newly-filed and pending criminal cases, including but not limited to, arraignment, pre-trial, bail hearings, trial proper and promulgation of judgment. This could be the new norm, and PDLs may not need to leave detention centers anymore to attend hearings. Not only does this promote physical distancing, but it is also more practical and efficient, as logistical issues arise in transporting PDLs from detention centers to courts.

Videoconferencing may also apply in all other cases under unique or exceptional circumstances. For instance, witnesses may be allowed to testify using videoconferencing if they are abroad or residing far from the judicial region where the court belongs, of advanced age, ill, physically indisposed, or otherwise unable to come to court personally. Even PDLs may also testify through videoconferencing while detained. This allows better administration of justice as parties and counsels have more liberty to choose the witnesses to build their case and are not hindered by logistical considerations. Expert witnesses from all over the world can give expert testimony in court without having to fly to the Philippines and spend money in the process. PDLs need not be transported by a battalion of prison guards to courts. Child witnesses may testify from home or another place where they are more comfortable, rather than in a judge’s chambers or court.

The Rule on Examination of a Child Witness[8] already allows videotaped depositions and live-link testimonies, which essentially align with the physical distancing guidelines, but it may need to be amended to allow these modes and videoconferencing to accommodate present circumstances and new technologies on virtual testimony.

Modes of discovery. Both the old and new Rules of Court have always allowed various modes of discovery, but these modes are rarely used by trial lawyers. Now, more than ever, they gain more significance. Depositions, written interrogatories, and requests for admissions should be the top priority among lawyers and encouraged by courts.

Filing and service of pleadings and other papers. It is very timely that the Supreme Court has issued the New Rules of Civil Procedure that took effect on May 1, 2020, which now allows e-mail or other electronic means as a mode of filing[9] and service.[10] Not only does this rule reduce foot traffic in courts, but it also reduces traffic and physical contact in general, as parties and counsels need not deliver pleadings and other papers to opposing parties personally or by courier. This means that filing and service can be done anywhere, even in the comfort of one’s home.

If social and physical distancing will be the new norm, courts will encourage parties to file and serve pleadings and motions by e-mail, and parties will likely consent to this as a preferred mode of service as it is the most convenient of all modes.

Moreover, the Supreme Court has now limited motion hearings to litigious motions only and has enumerated the kinds of non-litigious motions that do not require hearings. There are also motions prohibited in the Rules, which lessens the number of motions that can be filed. All these not only make litigation more efficient but also encourage social distancing.

Judgment on the pleadings. The new rules on civil procedure now provide that courts may now render judgment on the pleadings motu proprio and need not wait for a motion from a party. This is a welcome amendment to ensure speedy disposal of cases and abide by physical distancing guidelines which are essential for the benefit of the public.

Technological equipment and digital docket. Courts must be fully equipped technologically to implement these measures. The need for a strong internet connection is indispensable, albeit difficult since court buildings were not designed to allow a stable internet connection indoors. Courts will require televisions, upgraded computer systems, speakers, earphones, cameras, and microphones, among others.

Courts may have to go digital in keeping records as these new and necessary equipment will take up more space. The digital docket must be a program universal to all courts, highly encrypted, and secure to ensure maximum privacy and security. The protection of electronic court records and other documents may be the most difficult among these, but highly essential and imperative, especially since the Supreme Court has already allowed electronic filing and service, and maybe gearing towards a fully digitized record-keeping platform.

The Supreme Court is taking a proactive role in following the directives on physical distancing and ECQ while guaranteeing the administration of justice. Courts must thrive in and survive in this crisis, as it is seen as a stronghold in upholding the rule of law. When chaos and uncertainty surround us, the continuity of a legal and justice system, well-adjusted to these difficult times, gives a sense of security, which is something we, the public, need the most.

[1] SC AC No. 31-2020, March 16, 2020

[2] SC AC No. 33-2020, March 31, 2020

[3] SC AC No. 37-2020, April 27, 2020, and OCA Circular No. 93-2020, May 4, 2020

[4] Section 5, SC A.M. No. 12-11-2-SC, March 18, 2014; See also Section 16, Rule 114 of the Rules of Court and Section 5(b) of Republic Act No. 10389

[5] OCA Circular No. 91-2020 dated April 20, 2020

[6] SC A.M. No. 15-06-10-SC, September 1, 2017

[7] SC AC No. 37-2020, April 27, 2020, and OCA Circular No. 93-2020, May 4, 2020

[8] SC A.M. No. 004-07-SC, December 15, 2000

[9] Section 3, Rule 13, SC A.M. No. 19-10-20

[10] Section 5, Rule 13, Id.


MAIN OFFICE:

23rd Floor, Multinational Bancorporation Centre,
6805 Ayala Avenue, Makati City 1226 Philippines
Mailing Address : MCPO Box 2697 Makati City 1200 Philippines

E-mail Address: [email protected]
Telephone No.: (632) 8812-8670 (connecting all departments)
Telefacsimile: (632) 8812-7199, (632) 8812-4251


LIAISON OFFICE:

Fortun Narvasa & Salazar (H.K.) Services Limited
16th Floor, Unit C-2 United Centre, 95 Queensway, Hongkong, China

E-mail Address: [email protected]
Telephone No.: (852) 2520-1976
Telefacsimile: (852) 2865-5790

Website Policy Statement

© 2019 Fortun Narvasa & Salazar.