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Going to Court: Differences from the US

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Last month I was in a Philippine courtroom for the first time. No, I didn’t do anything naughty… It was supposed to be our last hearing related to Juanito’s adoption. Unfortunately, there was a documentary issue and the final hearing will be taking place in the regional trial court in Ballesteros in late April. Yes, the process has taken a very long time, yet, as I have written before, the rules are there to protect my son… and we wanted to do everything properly.

I’ve always been a pretty law-abiding citizen, and have only been in courtrooms a few times. A misdemeanor public intoxication in my youth when I was 18 (and still couldn’t hold my alcohol: $50 fine and a lecture from the judge. I was obnoxious at a football game and told a cop that he needed to loosen up and have a beer… Not my most shining moment!); a few traffic violations (always speeding… I maxed out my penalty points 20 years ago and had to go to court for remedial driving school); small claims court 25 years ago against my landlord (I won…$1,000 and they had to pay my lawyer); divorce court twice; Jury duty three times (Never went to trial); and in Sharia court in Abu Dhabi for a traffic accident (I was acquitted).

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Therefore, I am not what you would call a habitual offender who knows the ropes through the court system.

After multiple semesters of business law (I once considered a MBA / JD instead of a sole MBA), I became pretty familiar with courtrooms in the US. What was interesting was going to court here in the Philippines, and noticing the difference between the procedures in the courts here versus the Western court system.

First off, despite the inevitable comments that will be written about corruption, I truly believe that the Philippine legal system is well established and makes the attempt to render fair verdicts in the vast majority of cases. At least, from what I have seen. The legal code here is based upon the Spanish Civil Code (Yes, even after the American occupation and Independence, much of the legal system still remains the same.) The Spanish Civil Code itself was derived from Roman Law, so the legal precedent in the Philippines dates back centuries. Add in several constitutions since independence, and what you get are the Republic Acts: The Philippine legal code.

The court system here is also quite overburdened, much like the court system in the United States. Trials and decisions can take years, depending on the type of case, and as has been written about significantly on this site, much of the burden is in criminal law, family law (annulments), and land law.

However, notice what is missing: Tort law, and bankruptcy law.

First off, Tort law gets a lot of press in the United States. Cases clog up the system for many years. Pretty much anyone can be sued by anyone for anything there. Tort law is not even defined in the Republic Acts here. The concept in the Philippines is known as Quasi-delict or negligence. What is different is that there is no concept of absolute liability for a manufacturer or employer, as in the United States. The burden of proof in the Philippines is nearly entirely on the plaintiff in negligence cases, and the plaintiff’s (or the injured’s) own actions are taken into account. So, if you trip on a sidewalk here in front of a shop, in order to successfully sue the business that owns that shop, you would need to prove that your own actions did not cause the injury (You were drunk, not paying attention, etc.), AND, that the shop owner willfully allowed a dangerous condition to exist and that he had reasonable suspicion that the condition would be dangerous. That is a pretty tough standard to prove, and is one reason that the courts here are not clogged up with frivolous lawsuits. (McDonald’s Coffee Lady would not stand a snowball’s chance here in collecting a single peso). Is this “beneficial”… Well, from a business perspective, yes, but from a perspective of inferior products in the market, no.

As to Bankruptcy, there is a provision in the law that allows for personal and corporate bankruptcy. However, the law dates back to 1909, and is very seldomly used, for a number of reasons. Bankruptcy in the Philippines (The type of which Americans would be more familiar) is covered by the Insolvency Acts, and are very difficult to prove. Again, the burden of proof is on the debtor, and the relief normally provided resembles restructuring of debts more often than dissolution of debts. So, in other words, you most likely will still have to pay.

So, the courts are burdened, but with different sorts of cases predominating. As in the United States, there are criminals here, and everyone is guaranteed a free trial by the constitution.

The biggest difference, however, is that there is no jury system in the Philippines: Trials are decided by judges. Not a big deal? Well, if the judge is fair, then no. But what if he is not? That is why juries are prevalent in many countries, rather than trial by a judge. Don’t like it? Well, then either: Don’t visit, or don’t get into trouble here. In our case, I believe that the judge is a fair man and tries his best to be impartial. In our interview, he looked up several family law provisions and told us, “I’m going by the letter of the law.”

So, many expats will never have an encounter with the legal system here. However, we also know that many people come here who are not saints… People sometimes do stupid things. You may also become involved in annulment proceedings someday, or you may get into other legal problems, so you had best know how the system works. Keep this in mind: You are always at a disadvantage in disputes here. This isn’t racism, or anything against foreigners, but a reality check. You are an outsider. In a dispute with a Filipino, he will know the law much better than you, and he will know his options much better than you. That statement is a fact.

Also remember: If you get into serious trouble, your embassy cannot “bail you out”. You are subject to the laws of the Philippines, just like Filipinos, and ignorance of the law is never an excuse (Though it may be considered a mitigating factor). In any event, all your embassy can do is help you arrange for a lawyer, make certain that you aren’t being deprived of human rights in prison, or advise you of what your situation may be with getting out of the country or of financing your defense.

So, we are scheduled for the hearing in the Regional Trial Court. The building is one large courtroom (about the size of a University classroom), with the judges chambers and the court clerk’s office beside the courtroom. All cases of all types (Criminal, Family, etc. This is just a small provincial court. In the cities, courts are often separated and there are many judges) are tried by the same judge. We arrive early, as instructed, and everyone (except criminal defendants) is standing outside chatting, smoking, etc. The Judge arrives, and after about 25 “mano pos”, he retires to his office and all of those with court business are invited to sign in with the bailiff (EVERYONE) and take a seat. No metal detectors (again, small rural court). Rebecca and I take a seat, and our attorney rushes up, “No… not there John… You aren’t a defendant!”. So we move over to the other chairs. Judge enters, and a prayer is said. Everyone rises when he enters and remains standing until instructed to sit down by the bailiff.

The criminal prisoners are then brought in by the PNP… The prison truck backs up to the doorway, and the guards escort the prisoners, chained together handcuffs and leg irons, to their seats. The guards remain on each side of the row of prisoners, uncuffing them as required by the judge.

So, the bailiff announces each case, and as your name is called, you stand up where you are sitting, making your presence known to the judge. Behind the bench is a Philippine flag, the country seal, and a very large wall calendar. You answer any questions asked by the judge, and then the bailiff will motion when you are to sit again. Your lawyer and the opposition lawyer will confer with the judge (For adoption, the government appoints a lawyer for the State… He just nodded his head). Whole procedure for our hearing took 2 minutes. The judge received the case file a month ahead, interviewed us in person when the case file was delivered, marked his questions for our attorney on the front page, and simply asked what was unclear during the hearing. He then decided he wanted some documentary clarification, asked our attorney how long it would take, and asked the bailiff to check the schedule… Scheduling a new hearing.

That was it. In and out.

What were the differences?

First off, with a judge, things move very quickly. When I have had jury duty, so much time is wasted… I never even got to the courtroom on one occasion when I was called. There were around 40 cases that day (a one meter high stack of paper in front of the bailiff), and the trials took about 30 minutes for the fifteen or so cases before our case. I was told that trials are held until lunch, and the judge spends the afternoon reviewing the case files for the next day. Think about that a second: This is a small court, and so much work is done personally by the judge. We heard bits of a murder trial, a rape case, an estafa case, an annulment, several drunk and disorderly, a domestic battery, a robbery, several land disputes, a title dispute, a name change, and a burglary (Whew!). In 30 minutes! (Not all were resolved… in fact, most weren’t. Our attorney told us that for something like murder, dozens of hearings may be required).

There are no computers for the court reporters. Three reporters transcribe the language of the proceeding simulaneously and independently, using shorthand. Our attorney told me that all of the three transcripts are reviewed in the event of a dispute. I was also told that becoming a court reporter here takes an awful lot of schooling and practice. (I didn’t know that anyone used shorthand anymore!)

So, I hope you find this article interesting and informative. It was a fascinating experience for me. Our adoption is nearly formal and complete.

Hopefully, if you find yourself in a court, that it is for happy circumstances, like ours.

JohnM

John Miele is a Citizen of the World, having spent time in many locations around the globe. Currently, he finds himself in Manila, but travels throughout the Philippines. John joined the Live in the Philippines Web Magazine in mid-2008.

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Dan
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Dan

Good post John and informative also. I hope all goes well with the adoption and sure You and Your wife will be happy when it is a done deal. I belive I remember your past post on all of this so this has been quite a long process for all concerned. The court system ( I am refering to the USA courts ) reminds me of the Military..hurry up and wait…I belive that is what small claims court is for here in the USA for the small things and my experince with that is it goes pretty fast ( the… Read more »

John Miele
Guest

Dan: Thank you… Yes, quite a bit of it is waiting. Last year, my old boss owed me over $20K in salary and expenses. Basically, he told me screw you, I’m not paying. So, what were my options? 1. Send a collection agency. I did this, but his answer was “sue us”. 2. Take him to court. Because the debt owed to me was wages, my case was pretty lock tight. However, keep in mind that taking someone to court and winning is very different than actually collecting any money. Since the amount owed was much more than small claims… Read more »

Dan
Guest
Dan

Ouch John…that was a hard pill to swallow…for sure……if that would have happend to me 30 years ago, I would be serving life in prison probably now.

brian
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brian

Not worth the busted knuckle John, walk away and start another day he will get his day another way. I got screwed for over 100K once…..yeah it hurt, but the gal years later died a very horrible death, …I’m a firm beliver it comes back.

John Miele
Guest

Brian: Agreed… People like that always get theirs in the end.

Papa Duck
Guest
Papa Duck

John

What comes around goes around, it always does. I’m glad your adoption will finally be over for you next month. Its a long process but to do it correctly it takes time, but in the end it will all be worth it. Thanks so much for the good info on the Philippine Court system. Its good to know, hopefully will never have to use it. Good luck to you and your family.

John Miele
Guest

Papa Duck: Thank you…. We are glad that the process is just about finished.

Paul Thompson
Member

John;
As long as I’ve been here, no one has been able explained the Court system to me. I’ll walk away from your article with more knowledge that when I started. So Thank you; but I’ll also keep trying to avoid being involved with any court system.

John Miele
Guest

Paul: Thank you… I hope to encounter it as little as possible too!

Dan
Guest
Dan

Paul with your sense of humor your good to go…I mean if you ever did end up in court I am sure you could joke your way right out of it.

Paul Thompson
Member

Dan;
I think there are somethings that even I can’t joke my way out of, have you ever met a judge that cracks you up.

Dan
Guest
Dan

Yes Paul I have met that kind of judge before..when I got divorced..I knew you would have a cute come back a there Paul….

John Miele
Guest

Well, the judge in our case was pretty serious. I will say that in his robes at the bench, he was quite an imposing figure… No room for joking around, that is certain.

Papa Duck
Guest
Papa Duck

Paul T. John M.

When i worked parttime as a bailiff in immigration court our 2 federal immigration judges were very down to earth and had a great sense of humor, so it was very enjoyable working for them.

Paul Thompson
Member

Papa Duck and Dan;
I’m in line at traffic court in Norfolk VA, the guy in front of me was found guilty and fined $500.00, he started laughing and said to the judge; “Sh-t your honor, I got more than that in my ass pocket!” The judge, who had a keen sence of humor, then added: Plus ten days in county lockup, Sir, do you have that in you ass pocket? My turn came, and I had nothing funny to say, as the judge seemed far funnier than me.

JC
Guest

You me both! This article caused me to learn a lot about Philippine law! Seriously!

John Miele
Guest

Thank you JC

brian
Guest
brian

Interesting article John, if you could count o n the judges being impartial and fair I would say it beats our system, especially like the ‘tort’ system. I go to court quite often (landlord) and I find it interesting to sit and watch the whole process evolve. I’ve noticed the more animated an individual becomes the more the judge sides with the other party, hence I love it when tenants start rammbling on . PS. I once told a cop to take off his badge and “we’ll settle this like men”….I got away with it …his supervisor showed up and… Read more »

John Miele
Guest

Brian: With a fair judge, I think you are correct. One of the problems with juries is that they can easily be swayed by emotion and not go by the law. However, with judges, the potential corruption risk is higher.

I’m not certain if one system or the other is better… Just different.

Roselyn
Guest
Roselyn

Hi John: Estate settlements can drag on for years in the Philippines. My parents passed away two years ago. We have yet to finalize appointing my oldest brother as the official administrator for the estate. (Our parents’ wills were negated due to some technicality.) Would you believe that the BIR block the appointment, although the estate did not owe anyone nor have outstanding taxes? In addition, all our parents’ estate addresses (real estate holdings), bank account numbers and balances, all the children’s names and addresses in the U.S. were published for a full two weeks in a newspaper. According to… Read more »

Dan
Guest
Dan

Roselyn, that sounds awfull…from the sounds of it..the family grand kids maybe will be the ones that are there when it is taken care of. Some times I think the courts are slow for the very reason so that the courts can make more fees and attorneys can make more fees…I know some people here that get divorced ( if they have land or money ) it can drag on for a long,long time.. I know when my parents passed on some years back they had I belive what is called a living will…(not sure on that) but any way..My… Read more »

John Miele
Guest

Roselyn: Good luck on your suit… It is indeed an unfortunate situation.

Roselyn
Guest
Roselyn

Hi Dan: I’m the third child from the oldest, and still working in the U.S. My oldest brother is retired, so has the time to go to the scheduled court dates. Even though retired, I believe that he gained a few grey hairs. Sometimes, it is better to be the middle child such as myself. (I have a younger brother.)

John Miele
Guest

Roselyn: Personally, I find that any time something goes to court, the lawyers will be the ones who collect. Many cases in the US can be dragged out for years with a skilled attorney. Just as I wrote in the response to Dan’s comment, sometimes there are few options (This is why I didn’t file a suit… He knows the law, could drag it out a long time, cost me money, and even were I to prevail, receiving a judgement doesn’t mean that I would ever actually collect anything.)

Roselyn
Guest
Roselyn

Hi John: You’re a wise man. I believe that you made the right decision.

Papa Duck
Guest
Papa Duck

Roselyn

Its unfortunate for your family that the estate is not settled yet. Sounds like your parents did everything right as far as a will and an estate administrator. If they had a bank account in the US would that still come under philippine law? John was right lawyers are the ones that really make out most of the time. Hopefully it will be settled soon. Unfortunately thats one of those things you have to accept to enjoy life there like your parents did. Have a nice day1

Roselyn
Guest
Roselyn

Hi Papa Duck: My parents’ bank accounts in the U.S. did not fall under Philippines’ law. We don’t expect the bank accounts in the Philippines to be there when the suit is settled. Most likely, it will be embezzled and squirrelled under some bank officer’s account (our lawyers warned us in advance). We are after securing the real estate holdings as our parents wanted us to have these homes if we desire to retire in the Philippines. My parents were wise elders. The U.S. is very expensive to retire now and most likely we will be retiring in the Philippines… Read more »

Paul Fuller
Guest
Paul Fuller

Money debts in the Philippines are notably difficult to collect on. My wife has attended court on four occasions in an attempt to recover a debt. After reading the complaint and questioning the defendant the Judge advised that her debt to us was acknowledged and that it would be in her best interests to settle in full without delay. He instructed all parties involved to attend a mediation tribunal in order to reach an amicable settlement. At that meeting the defendant promised to settle within one month and the adjudicator rescheduled a meeting for the payment to be received and… Read more »

John Miele
Guest

Paul: Having the proper connections here is important, and your suggestion is a valid one. I also would like to add that it is very important to only call on those connections for assistance in the most difficult of circumstances. Being put in jail here as a foreigner can be the most horrendous thing that can happen. However, most foreigners end up in jail through their own stupid actions. Only rarely are foreigners incarcerated due to bad cops, etc. (Those rumors seem to always be overblown, and when you hear them, the whole story is usually not being told). As… Read more »

Papa Duck
Guest
Papa Duck

Paul Fuller

Would love to visit the Davao City Jail whenever i get a chance to visit Davao. Working in the corrections field i think it would be interesting to compare it to where i work. That is harsh for writing a worthless check, no bail allowed. Here it would be a small bail and sometimes just released on own recognizance. Being held for a long period of time W/O a trial really is not fair, especially if the person is innocent.

kikas_head
Guest
kikas_head

Just an FYI – dishonored checks no longer fall under estafa, it falls under BP 22, which although is a criminal offense it rarely, if ever, leads to jail time. There now has to be more proof of fraud. You can often file for estafa and BP 22 at the same time but the judge will throw out the estafa charge if your only evidence is the return checks.

Val
Guest
Val

Paul:
Great posts! I wonder if you have any contact information about Davao City Jail. A close relative has recently been transfered their (sadly on the wrong side of the bars) & I need to get in touch with the jail to check about the possibilities of visiting him. I cant just go there without knowing if they let me visit him, because I live in Europe..
Best regards,
//Val

John Miele
Guest

Val: I’m not certain… I believe John grant, who used to write on this site and is still listed, may know, since he visited there. I also suggest that you write directly to Bob.

roy
Guest
roy

Hello John, as for me when I first went to a court room here for my bro’s divorce, I was then running late and did not take into account the metal detector inspection. My wallet had a metal chain that’s attached to one of my belt loops. The guard said it had to be deposited at the basement bec it could be used as weapon. Since I was afraid to come in late, I decided to toss the chain in the trash bin. Anyway, when I got to the floor where the court room was, I was greeted by this… Read more »

John Miele
Guest

Roy: A lot of the clutter here seems to be because so much of the information is recorded manually, on paper, as opposed to the largely computerized system in the States.

Aware of the tort rules here, but the basic difference in tort law arises because of that distinction between tort and negligence. You just don’t see the frivolous lawsuits here as you do in the US (ie. there must be true damages / negligence)

jonathan
Guest
jonathan

Hi John,

In my experience, what really sucks is the scheduling of cases. Like they have to avoid the holidays (like holy week, etc) and the elections (local or national). Scheduling like these, would drag on for months especially if your attorney does not object. Another thing that adds to the delay is making sure that all parties, especially the defendant, received an apperance notice from the court via snail mail or registered snail mail and acknowledged by the receiver. If not, the court usually says, send another notice. Next case, please!

John Miele
Guest

Jonathan: In our case, it looked quite complicated as to the scheduling…. I suspect that much of the backlog is, as you suggest, related to much of these issues.

jonathan
Guest
jonathan

Yes John, the scheduling of the court hearings are really complicated, it’s the norm here in PH courts (sigh). Like you, the first thing I noticed upon entering the judge’s sala are the enormous calendars separated by sheets and posted on the walls like wallpapers (lol).

Ricardo Sumilang
Guest
Ricardo Sumilang

“The legal code here [Philippines] is based upon the Spanish Civil Code (Yes, even after the American occupation and Independence…” Hi, John: If you go to the Library of Congress (Washington, D.C.) for the purpose of researching Philippine law or other Philippine legal precedents, you would think you would be directed to the American Law Division or the Far Eastern Law Division. Guess again. You would be directed to the Hispanic Law Division of the Library of Congres, because Philippine law is under the jurisdiction and reference responsibility of the Hispanic Law Division. It’s where Philippine Law collections are assigned.

John Miele
Guest

Ricardo: That makes sense, given its’ origins. From my understanding, during the US colonial period, much of the legal code was kept on the books. My guess as to the reasons why:

1. There would have been a great deal of confusion totally reworking the legal system here. US law is based on English common law, which is quite different in principle. Every lawyer, judge, and person in the system would have needed to effectively start from zero.

2. The US, supposedly, always intended to eventually give the Philippines independence.

3. Filipinos wanted it that way.

Ricardo Sumilang
Guest
Ricardo Sumilang

John – all three of your guesses are well grounded. After centuries of practice in the Philippines, the Spanish legal system is so well entrenched in Philippine society that any attempt to rework it to conform with the English common law would have been a monumental task to even contemplate.

Mark G.
Guest
Mark G.

Interesting post John. One never knows what will happen in the future. Your experiences could prove educational to many of us. Thanks for sharing.

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