The Centre for Democratic Institutions

PHILIPPINE JUDICIAL STUDY TOUR OCTOBER 2001

Following discussions with Chief Justice Michael Black of the Federal Court of Australia and Chief Justice Hilario G. Davide of the Supreme Court of the Philippines in early 2000, the Centre for Democratic Institutions embarked on facilitating a program of judicial cooperation between the two countries and their senior judiciary. The program has included study tours, curriculum development assistance for the Philippine Judicial Academy and exchange visits. Two study tours to Australia have already taken place, both led by Supreme Court Justices. This Study Tour by six judges from the Philippines led by Justice Jose Vitug, Associate Justice of the Supreme Court of the Philippines, to examine aspects of Australia's judicial system took place from October 18 - 24, 2001. The program was funded by CDI and scheduled by the Federal Court of Australia. Justice Susan Kenny and her staff undertook the design of the study tour and ensured that the visitors had a busy time. Chief Justice Michael Black was a most gracious host. The study tour exposed the visiting judges to a broad range of the Federal Court's activities. Throughout the tour the judges held discussions on issues concerning the role of registrars in the Federal Court, the Role of the Duty Judge, the Federal Court's use of information technology in the delivery of justice, the Federal Court case management system, the panel system for handling cases in specialized areas of law, and practices revolving around mediation in this jurisdiction. A comprehensive presentation on the Australian legal system was provided by Prof Cheryl Saunders of Melbourne University's Faculty of Law. The delegation was also given special presentations on specific key areas of Australia federal law. Justice Goldberg took the delegates through Australia's anti- trust legislation, the Trade Practices Act. Justice Finkelstein presented to the group on intellectual property law. Justice Merkel presented on the issues involved in the integration of international law into Australian law. Native Title law and its special requirements were also discussed at length with various Justices over the week. The delegation also received a tour of the Court Library and a presentation of Australian and international legal resources available on the internet.

Several issues prompted debate amongst the delegates and between the delegates and hosts. Justice Goldberg's presentation on the Trade Practices Act was valuable in comparative terms because the Act was considerably more specific and ambitious in its prescriptions than the Philippine anti- trust laws. Justice Goldberg was also able to detail some past high profile cases and specific difficulties involved in their resolution. Justice Goldberg also used a topical example. He referred to that day's newspaper advertisement by Qantas, offering a batch of heavily discounted airfares. He suggested that such a move might prove contentious, and if it went before the ACCC it might end up before one of his colleagues in the Federal Court. This led to a discussion of particular aspects of the Trade Practices Act and its application. Justice Merkel's presentation on integrating international law into domestic law also prompted much debate amongst the delegates. More specifically Justice Merkel's theme of 'accommodating difference' was of particular interest. Australia's experience with using international customary law as a guide on how to approach Native Title issues - and the broader issue of providing impartial justice to substantially different cultures - were particularly relevant to the Philippines. The Philippines, like most Southeast Asian nations, is comprised of many ethnic groups including tribal peoples, and also faces the additional difficulty of an Islamic secessionist movement in the south. Clearly Australia's experience with Native Title (and our federal structure) provided a useful comparative reference for the group. The delegation also shared various anecdotes with Justice Merkel regarding periodic accusations they too face about being 'judicial activists' instead of mere arbiters of justice. The session with Justice Nicholson in Perth using the video-conferencing equipment was valuable because a similar system is under consideration in the Philippines. Differing levels of resources mean however that their system will differ and probably rely more heavily on internet technologies. The comparison, and exposure to the current working procedure, should benefit the Philippines both in promoting knowledge of its benefits amongst the judiciary and also in terms of seeing working precedents on which to refine the design of their own system. A similar point can be made about the 'E-Court' initiatives of the Federal Court. Although the delegation was very internet and e-commerce aware, resourcing differences between Australia and the Philippines make it difficult for the Philippine Court System to pursue such initiatives to the same degree. They were able, however, to view first hand how such tech-frontier initiatives work and at what cost, and make assessments about how appropriate and what marginal gain such initiatives would deliver to the Philippine Justice System. At the end of the tour the delegates are asked to assess the program in writing. In response they made a number of points including:

• "[the study tour] will be useful particularly in case management, trade practices and corporations law"

• "the area on trade practices was most relevant to my present work" • "there is a strong possibility that the Philippines would look into a federal

system of government with a view to settling its Mindanao problem"

• "I am an IP judge and also a commercial law judge and the course contents included IP and commercial law topics which I could use in deciding cases in our jurisdiction"

• "the very manner [in] which sessions were held will already be a useful model for the Philippines Judicial Academy"

Program

Thursday 18 October 9.00 Arrival in foyer & orientation to building & chambers 9.30 – 10.00 Welcome by Chief Justice, introduction to Judges 10.00 – 10.30 Role of Duty Judge - Justice Marshall 10.30 – 1.00 Observation of Court Hearing - Justice Goldberg 1.00 – 2.00 Official Lunch with Judges 2.15 – 3.00 General question and answer session - Registrar Jamie Wood 3.00 – 3.45 Paperless Courts Demonstration - Registrar Woods 4.00 – 4.30 Discussion with Justice Goldberg Friday 19 October 9.15 – 10.30 Trade Practices (Part IV TPA) - Justice Goldberg 10.30 – 12.00 Federal Court Electronic Courtroom (video- conferencing) Demonstration - Registrar Jamie Wood and Justice Nicholson (Perth) 2.15 – 3.00 Role of Registrars - District Registrar Jamie Wood 3.00 – 4.00 Court’s use of Technology - Registrar Jamie Wood

Monday 22 October 9.00 – 11.00 The Australian Legal System - Prof Cheryl Saunders 11.30 – 1.00 Courts and the Public (Federal Court public education program) - Therese McCarthy 2.00 – 3.30 Case Management - Registrar Efthim 4.00 – 5.00 International Law in Domestic Law - Justice Merkel

Tuesday 23 October 9.30 – 1.00 Presentation in Library on Intranet / IT and ernational legal resources - Librarian Petal Kinder 2.00 – 4.00 Native Title Case Coordination - Louise Anderson Wednesday 24 October 9.15 – 11.00 Mediation - Justice Gray with District Registrar and Registrar Efthim 11.00 – 1.00 Court Observation 2.00 – 4.00 Administrative and Constitutional Review - Justice Kenny 4.30 Chief Justice farewell and final discussions with judges

List of Participants

Name Position

Justice Jose Vitug

Associate Justice of the Supreme Court of the Philippines

Justice Cancio Garcia

Associate Justice of the Court of Appeals of the Philippines

Judge Artemio Tipon

Presiding Judge, Regional Trial Court Manila

Judge Apolinario Bruselas

Presiding Judge, Regional Trial Court, Manila

Judge Reynaldo Daway Presiding Judge, Regional Trial Court, Manila

Father Ranhilio Aquino Chair, PHILJA Department of Jurisprudence and Legal Philosophy and Head, PHILJA Academic Office