UP Law 1990 and Judicial Affidavits


You have to give it to Mark Meruenas of GMA news online. Of the ten or so reporters covering the Maguindanao massacre, only he reported that Chief Justice Maria Lourdes Sereno’s latest judicial reform, the use of judicial affidavits, has been practiced in the controversial case involving the gruesome death of 58 victims. In a meeting between counsels that was presided by Hon. Jocelyn Solis-Reyes of the Regional Trial Court of Quezon City, it was proposed and agreed upon by all that in lieu of direct examinations, the majority of 58 private complainants, whose testimony would be to further the civil action deemed filed with the 57 counts of murder, would be testifying through judicial affidavits. These are affidavits in a question-and-answer format detailing what the lawyers and the witnesses would have asked and answered on direct examination. We did not object to the resort to these affidavits. We insisted, though, that at least five witnesses from the three major groups of private complainants represented by the private prosecutors should be allowed to testify under the traditional manner of direct testimonies. We insisted on this to show the human aspect of how the witnesses coped with the loss of their loved ones under the gruesome circumstances that claimed their lives. The affidavits, because they are what they are—almost a reproduction of what the stenographic notes would have looked like if they were allowed to testify on direct— simply does not show the pain and suffering that the victims have suffered.

An obvious advantage of the use of judicial affidavits is that it has facilitated the speedier testimonies of the private complainants. In fact, of the 17 private complainants whom we represent, only one has to take the stand. Another, Myrna Reblando, who has made public her asylum bid in Hong Kong, still has to conclude with her testimony on the issue of damages. Almost all of the private complainants have already testified. Unless I am mistaken, there are now only less than 10 private complainants who still have to testify.

An obvious disadvantage though of the use of these affidavits is that it puts a lawyer who knows what questions to ask on direct examination at a disadvantage. This is because the affidavits are a Godsend to those who do not know what questions to ask. How? Since the questions are now in written form, then all the questions should begin with what, where, when and how. This will do away with objections on the basis that a question is leading.

There are other disadvantages to the use of these affidavits. For instance, it will diminish the power of the judge to assess the credibility of witnesses. Normally, a Judge will either believe or ignore the weight of a testimony depending on the demeanor of the witness primarily on direct examination. This will now be played down. Further, as was our experience in the Maguindanao massacre, these affidavits will minimize the outburst of emotion on the part of witnesses. This may impact on the amount of moral and exemplary damages that a private complainant may recover in a criminal case. Moral damages are awarded for the sorrow, fright and sleepless nights suffered by complainants; exemplary damages are those awarded to show others, by way of example, that similar conduct will not be countenanced by our Courts.

Despite these setbacks, I think the rule on the use of judicial affidavits will result in faster testimonies which will hopefully will reduce the average life of a case pending before our courts. A World Bank study concluded that each case takes around five years to be resolved by the Regional Trial Court and longer, seven years, in the Sandiganbayan.

While this was the first reform announced by the new chief justice. Credit for the innovation should also go to Senior Justice Antonio Carpio who headed the Committee on the Revision of the Rules of Court that recommended this. Credit should also go to the many individuals who worked with the American Bar Association Rule of Law initiative headed by Scott Ciment that pioneered in the use of these affidavits in a pilot program currently being conducted in the regional trial courts of Quezon City.

While the innovation itself is a reason to congratulate the Court, the manner by which it was announced -by my classmate, Deputy Court Administrator Raul Villanueva- is also reason to rejoice for those who know Raul. For while the Midas touch is gone, the light has finally arrived.

Kudos to the Supreme Court for this reform and to the new Court Communicator for judicial reforms! Go UP Law 1990!

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