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| Abuse of free access to the courts |
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(Article published in the Sep 22,2003 issue of TODAY, Business Section)
If
we should ever get around to seeking seriously to improve our present
Constitution, sans the politician’s delusion that we can better our lives by
changing the form of our government from presidential to parliamentary,
or, from unitary to federal, one of the provisions worth re-examining is
Section 11 of the Bill of Rights which proclaims that “free access to
the courts and quasi-judicial bodies and adequate legal assistance shall
not be denied anyone by reason of poverty.” Not that we should start
considering wealth as pre-condition to securing justice, though current
reality seems to veer towards that direction.
But
rather, we should try to ensure that “free” in that promise to all of
“free access” to courts and to quasi-judicial bodies, does not mean
“licentious”. Because the Constitution did not articulate the implicit
premise of a meritorious cause, the freedom to go to seek the help of
judges and tribunals, I submit, has been abused, with as great a damage to
our country, as the much complained about freedom of speech.
Too easy has it become to accuse a person, particularly a public
official, before some court or tribunal in our legal system that the
institutions we had set up to protect against oppression, all too often,
have become instruments of harassment of the helpless innocent. Time is
now, I suggest, that an effective filtering system be put in place at the
doorstep of the courts to prevent the legal system from uncritically
accepting and processing all sorts of complaints, thereby converting the
courts to easy avenues for injustice.
The
damage to us due to “free access” is most evident in the government
bureaucracy.
One observes that decisive action is most difficult to elicit from
those nearing the age of retirement; paralysis visibly sets in as soon as
the countdown to retirement begins.
With every one in government vulnerable to a complaint being filed
with the Ombudsman, even if unsigned and anonymous, one understands why a
civil servant, who has spent his best years in the government honestly,
would not put his retirement pay in jeopardy by doing anything that has
the slightest possibility of controversy.
The
result is widespread lethargy, as everyone pushes the decision-making to
everyone else, usually under a memo that ends with the apparently
meaningless, “for your appropriate action”.
Actually, the phrase is full of meaning, it means the memo writer
is in no mood to stick his neck out.
His fear, dreaded and very real, is that someone out there, even if
with neither rhyme nor reason, nor cause nor merit, could easily file a
complaint, and, literally, with a mischievous stroke of his pen, deprive
him of his well-earned retirement pay and peace.
A
certain Mr. B has apparently mastered the technique and has, thereby,
achieved a reasonable measure of notoriety. Mr. B “is not a lawyer but
has apparently read some law books, and ostensibly come to possess some
superficial awareness of a few substantive legal principles and procedural
rules.” He is known
to a number of bankers who remember him for “his failure to comply with
his contractual commitments and his stubborn insistence on imposing his
own terms and conditions for their fulfillment.”
“He
has initiated or spawned in different fora [an] outstanding number of
…original or review proceedings…civil, criminal,
administrative…continuously cluttering the courts with his repetitive,
and quite baseless, if not outlandish, complaints and contentions.”
His forte, however, is suing administratively and criminally the
authorities who, correctly, decide on his cause.
The
Supreme Court, of course, frowns upon, to say, the least, such a
technique. It stated, at one
point, that it is taking “judicial notice of the fact that there has
been of late a regrettable increase in the resort to administrative
prosecution—or the institution of civil or criminal action—as a
substitute for or supplement to appeal.”
On
the question of whether that is proper, the Court unequivocably ruled that
“the administrative or criminal remedies are neither alternative nor
cumulative to judicial review where such review is available, and must
wait on the result thereof.”
The
impact of the contrary proposition, which is identical to the proclivity
of Mr. B to file administrative and criminal cases against public
officials, particularly those vested specifically with independence, the
Supreme Court said, quoting a prior decision which in turn drew on US
precedents:
“Liability
to answer to everyone who might feel aggrieved …would be inconsistent
with the possession of this freedom, and would destroy that
independence.”
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