Reading Assignment 1

April 24, 2018 | Author: Mariline Lee | Category: Precedent, Prosecutor, Lawyer, Jurisprudence, Judiciaries
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problems in legal ethics...


Revisiting Legal and Judicial Ethics: Challenges and Perspectives Hilarion L. Aquino* INTRODUCTION Even the most rudimentary surveys will reveal that Filipinos will not give lawyers high marks for trustworthiness To say that lawyers are not well trusted is! in our days! almost ha"kneyed In fa"t! one internet post put it with stinging humor when it de"lared# $%egal ethi"s is an o&ymoron'( %ike all institutions! the )ar and the )en"h have their shares of pro*lems The )ar is suffering from a poor pu*li" image %awyers are per"eived *y the pu*li" as generally self+seeking The )en"h is hurting too from negative "omments of the pu*li" espe"ially media on per"eived ,udi"ial improprieties and in,udi"iousness of many a ,udge True! these may ,ust *e per"eptions whi"h may not s-uare with reality *ut in our milieu! per"eption and reality are virtually the same These pro*lems *elong to the realm of ethi"s and morality whi"h make it not only ne"essary *ut imperative to revisit legal and ,udi"ial ethi"s These serious pro*lems "hallenge in this ./st Century all mem*ers of the legal profession to help in the restoration of that great! dignified and preeminent image that our profession on"e had In my paper I shall present some ethi"al propositions whi"h are my perspe"tives on the su*,e"t! hopefully to provoke meaningful dis"ussions on them in the different legal fora and a"ademe %aw! Ethi"s and 0usti"e# %inkages That the pre"epts of law need not rest on moral argument is now "ommon pla"e! and this "onvi"tion goes *y many names! $positivism( *eing among the most popular )ut we persist! do we not! in re"ogni1ing the effi"a"y of the $moral( in the universe of the $legal( The elementary distin"tion in "riminal law *etween a malum prohi*itum and a malum in se is ta"it re"ognition of the "riminali1ation of what is morally reprehensi*le $2n a"t whi"h is malum in se has *een defined as one inherently wi"ked! one naturally evil! as ad,udged *y the sense of a "ivili1ed "ommunity! one involving illegality from the very nature of the transa"tion! upon prin"iples of natural! moral and pu*li" law! and one immoral in its nature and in,urious in its "onse-uen"es without regard to the fa"t of its *eing noti"ed or punished *y the law of the state(/ 3 Chair! %egal Edu"ation )oard4 Chair! Department of Ethi"s and 0udi"ial Condu"t! 5hilippine 0udi"ial  2"ademy!! 6upreme  2"ademy 6upreme Court Court / ./ 2m 0ur 0ur .d! $Criminal $Criminal %aw(! 7 .8 . The I*5 0ourNal 9ilarion % 2-uino Finally! the 6upreme Court has repeatedly linked $,usti"e( to the workings of the ,udi"ial system In holding the inappli"a*ility of the prote"tive provisions of the Foreign Curren"y Deposits 2"t to a pedophile:s dollar a""ount! 0usti"e 0usto Torres intoned# $In fine! the appli"ation of a law depends on the e&tent of its ,usti"e(. 2nd in de"iding against a literal appli"ation of Civil Code re-uirements for the e&er"ise of the right of redemption *y "o+heirs in the sale *y another heir of his undivided share in the "ommon inheritan"e to a third party! the late 0usti"e Isagani Cru1 wrote with his usual flair# $The -uestion is sometimes asked! in serious in-uiry or in "urious "on,e"ture! whether we are a "ourt of law or a "ourt of ,usti"e Do we apply the law even if it is un,ust or  do we administer ,usti"e even against the law; Thus -ueried! we do not e-uivo"ate The answer is that we do neither *e"ause we are a "ourt *oth of law and of ,usti"e eneral de la 2*oga"ia Espanoloa! Titulo III! Capitulo 5rimero! 2rti"ulo =H @ The I*5 0ourNal 9ilarion % 2-uino The Ethi"s of 5rose"utorial Dis"retion Dire"tly related to the su*,e"t of ,usti"e as the overar"hing "riterion of ethi"al "ondu"t on the part of the lawyer is the matter of the e&er"ise of prose"utorial dis"retion From a string of de"isions on the su*,e"t! I "ite only two! twin "ases in fa"t# 5o v Department of 0usti"e and Chiu v Court of 2ppealsJ In these "onsolidated "ases! the Court held that! a*sent grave a*use of dis"retion! it "ould not interfere with the dis"retion of the prose"utor to file a "ase! all that was re-uired *eing a finding of pro*a*le "ause Re"ently! as the 6upreme Court enfor"ed the newly+minted rule on the 0udi"ial 2ffidavit! prose"utors were agitated They in fa"t su""eeded in se"uring from the Court a stay in the implementation of the rule insofar as they were "on"erned The essen"e of their "omplaint was that! in those "ases "overed *y the rule on the  ,udi"ial affidavits! they would have to *e ready! already at pre+trial! with all the ,udi"ial affidavits of all the witnesses they intend to present *y whi"h to prove the guilt of the a""used This is *e"ause 6e" B * of the rule gives a "aveat to the prose"ution that ,udi"ial affidavits not su*mitted *efore the preliminary "onferen"e or pre+trial shall not *e a""epted during the trial The prose"utors argued that all that was ne"essary for the filing of the Information was $pro*a*le "ause(
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