Learning from the South: A Comparative Study of Judicial Reforms in

Argentina and the Philippines

Abstract

Over the last three decades, governments in Latin America and Southeast Asia have

transitioned from authoritarian to democratic regimes. A series of reforms to criminal

procedures have been promoted to improve transparency and accountability and

reduce the chronic backlog suffered by courts in the region. These reforms are

based on the “ideal” model of societies in the Global North. However, due to the

socioeconomic conditions and the institutional history of societies in these regions,

these reforms have not achieved the proposed goals. Because of these failures, later

reforms in Latin America have prioritised managerial concerns. Thus, they have

favoured different types of bargained justice and simplified procedures that usher in

convictions based mainly on police reports without a proper cross-examination of

evidence. This article argues that jurisdictions in both regions could learn a lot from

one another regarding avoiding failures and unintended consequences. To achieve

this, the article uses a comparative approach and demonstrates the potential of this

by comparing four reform strategies carried out in Argentina and the Philippines.

Keywords

Judicial reforms; criminal courts; transparency; backlog; Global South

1. Introduction

Over the last three decades, governments in Latin America and Southeast Asia have

transitioned from authoritarian to democratic regimes. Those processes have

brought about profound social changes triggered by the economic reforms of

globalisation. The development and strengthening of the rule of law are considered

to have been crucial to maintaining democracy and sustaining an open market

economy. Legal reforms were carried out to adapt the legislation to international

standards, laying the foundations for the rule of law. However, a fundamental

challenge that these new democracies have faced is the corruption and inefficacy of

state’s bureaucracies. Furthermore, economic and social changes wrought by

globalisation and the neoliberal ideology that drives it have triggered widespread

social unrest. In the face of these problems, international financial organisations

(e.g., IMF, World Bank, etc.) and cooperation agencies (e.g., USAID, DAAD, etc.),

have focused on strengthening local courts. From the liberal perspective,

international institutions argued that courts were the institutions that should ensure

the primacy of the rule of law. However, with some rare exceptions, courts in both

regions were regarded as being as inefficient as other state institutions. To address

these problems, a series of reforms were implemented within the two regions’ judicial

systems.

This article focuses precisely on how the judicial reforms carried out in recent

decades have affected criminal courts’ capacity for controlling police and public

prosecutors. Recognising that courts’ backlog and other organisational problems

need to be addressed, this article argues that the reforms in Latin America have

prioritised managerial concerns, and consequently, they have favoured different

types of bargained justice and simplified procedures that usher in convictions based

mainly on police reports without a proper cross-examination of evidence. The article

offers a comparative study of the solutions implemented by jurisdictions Latin

America and Southeast Asia. It focuses on the cases of Argentina and the

Philippines. It aims at identifying the problems generated by reforms imported from

the Global North as well as locally developed solutions that could be beneficial to

other Global South jurisdictions.

Argentina is a paradigmatic example of the transformations that criminal procedures

have undergone in Latin America. It has been at the forefront of courts reforms since

the 1980s. The problem courts are facing, such as the increase of street crime,

authoritarian police, and the lack of resources, are similar to the ones in other Latin

American jurisdictions. As for the Philippines, although Southeast Asia is less

homogenous than Latin America, it is one of the most consolidated democracies in

the region, that nevertheless still struggles with the legacy of its authoritarian past. It

faces similar problems of police violence, lack of resources and a worrying level of

street crime. Moreover, the Philippines have implemented a series of judicial reforms

promoted by the American Bar Association and the World Bank among others,

similar to those implemented in other countries of the region (e.g. Indonesia,

Malaysia, Cambodia, among others).

This article presents a comparative study of the reforms introduced to deal with the

courts backlog of criminal cases in Argentina and the Philippines. It is based on

interviews conducted in both jurisdictions, the analysis of legislation and government

reports, and the available literature on the topic. It focuses on three key proposals of

the programmes carried out in Argentina and the Philippines, namely the

establishment of time limits for the procedures in the legislation, the introduction of

oral hearings in the criminal procedures, and the empowerment of public

prosecutors. The comparative analysis shed light on how these similar proposals

have been locally adapted and what kind of problems they have produced.
The paper is divided into five further sections. Section 2 discusses the strengths and

shortcomings of a comparative approach to judicial reforms. It argues for an

approach that considers the history of each country’s criminal courts and the larger

sociopolitical context in which they operate. Section 3 justifies the jurisdictions

selected and the methodology used in the analysis. Section 4 identifies the key

features and actors involved in the reform processes that took place in Latin America

and examines the outcomes of these processes, before comparing them with the

reforms that took place in Southeast Asia. Section 5 compares reforms in the PBA

and the Philippines. It contrasts the results of four reformist strategies aimed at

improving transparency and accountability and reducing backlog in these two

jurisdictions: the introduction of time limits in the legislation, the promotion of oral

hearings (pretrial and trial), the introduction of judicial affidavits, and the entrustment

of the direction of police investigations to public prosecutors. Section 5 concludes the

paper with a comparative analysis that identifies lessons learnt in the PBA and the

Philippines that may be useful in designing reforms in other jurisdictions in the Global

South.

2. Comparing Courts in the Global South

In Latin America, the transition to democracy and neoliberal policies were

accompanied by an exponential increase in crime rates (Bergman, 2006; Rivera

2015). After years of authoritarian rule and state violence, police and criminal courts

proved themselves to be ineffective in dealing with the increasingly violent crimes

that citizens had to face daily. This incapacity to deal with crime was apparent in the

chronic backlog courts which resulted in, on the one hand, prisons being

overcrowded with detainees waiting for their trial, and on the other, a sense of

impunity since it took several years to sentence defendants (Ciocchini, 2014). It was
argued that these problems were partially a result of lack of resources, but even

more importantly, there were primarily a consequence of outdated and inefficient

‘inquisitorial’ criminal procedures (Ciocchini, 2013b). Furthermore, it was argued that

the lack of transparency among judges was also a consequence of the criminal

procedural legislation (Binder, 1997). The combination of the courts’ collapse and

their lack of transparency undermined the public confidence in them. Given this

situation, adversarial criminal procedures were introduced to guarantee due process,

in line with global trends. However, persistent efficiency problems led reforms to

focus efforts on reducing backlog and improving criminal case processing times. As

a result, managerial considerations were privileged, to the detriment of due process.

Meanwhile, most of Southeast Asia was experiencing similar problems. The crime

rate increased with the transition to democracy, but to a much lesser degree than in

Latin America (Braithwaite, 2014). However, courts in the Southeast Asia have

struggled to improve their transparency and accountability as much as courts in Latin

America have, if not more so. Furthermore, judicial institutions in the region showed

similar problems of backlog as the ones found in Latin America, e.g. Malaysia (World

Bank 2011), Cambodia (Parliamentary Institute of Cambodia, 2016), Indonesia (Men

Yon and Hearn, 2016), and the Philippines (Abadines, 2017) among others, with the

notable exception of Singapore (Malik, 2007). To deal with these issues, several

reforms similar to those carried out in Latin America were implemented.

In recent years, a series of studies have identified and analysed the intended and

unintended effects of the reforms of criminal courts in Latin America (Ciocchini,

2013a; Ciocchini, 2014; Duce, Fuentes, and Riego, 2009; Fondevila et al., 2016;

Hazán and Iud, 2010; Tiede, 2012). Those studies consistently demonstrate that one

of the most damaging effects of these reforms has been avoidance of public oral
trials by relying on plea bargaining or similar mechanisms to dispose of cases, an

outcome that resulted from the emphasis on efficiency and reducing case processing

times. The use of these mechanisms has led to two interrelated problems. First, it

provides public prosecutors and courts with an incentive for improving their disposal

and conviction rate relatively easily by focusing on simple street crimes. Second, by

avoiding public oral trial, it prevents police evidence from being seriously debated.

This lack of legal control over the police due to the emphasis on efficiency is very

serious because police forces in the region have a record of abusive practices and

corruption.

There are no similar studies that assess the consequences of the latest reforms in

Southeast Asia. This prompts several questions. How far are the reforms in Latin

America comparable to the ones carried out in Southeast Asia? Is the social context

in the countries of Southeast Asia comparable to that of Latin America? Have

reforms in criminal courts and procedures managed to improve accountability in

Southeast Asia? What is the relationship between courts and the police like? Can

studies of Latin American reforms help to identify relevant areas to explore? This

paper seeks to explore the potential of a comparative approach to address these

questions.

The literature on comparative law has a long and robust tradition (Ginsburg,

Monateri, and Parisi, 2014), but studies comparing courts and judicial systems are

much scarcer (Yeh and Chang, 2015a:4). Early comparative studies of courts were

developed by scholars of comparative politics, focusing either on the structures or

functions of courts (Tate, 1987). Shapiro’s seminal work comparing courts from an

institutional perspective highlighted the different functions that courts perform:

conflict resolution, social control, and administrative tasks (Tate, 1987:24). His work
was crucial to developing a line of research that focuses on courts as institutions and

explores their interactions with other political actors and how are they shaped by

social and political contexts (Yeh and Chang, 2015a:4-5). Comparative studies in

Latin America and Asia taking the institutional approach have aimed to measure the

involvement of courts in politics by assessing the power of the judiciary in society,

the level of judicial independence, and the role of courts in the context of the

judicialisation of politics (Helmke and Ríos-Figueroa, 2011; Kapiszewski and Taylor,

2008; Yeh and Chang, 2015b).

It should be noted that since the goal of the studies mentioned above is to analyse

the power of courts in relation to other key state actors, they tend to focus their

attention on high courts, be they constitutional or supreme courts. Criminal courts

have not received similar attention. However, whilst decisions by the high courts may

be politically relevant, people’s interactions with courts are usually restricted to

criminal courts. Thus, everyday decisions in criminal courts exert a considerable

influence in people’s lives and they shape people’s perception of the judicial system

and, to a certain extent, of the law itself. Therefore, because of their large numbers

and the variety of cases they deal with, it could be argued that criminal courts are

more representative of the legal culture and the internal dynamics of judicial actors

than higher courts. They are just as relevant as higher courts in promoting and

protecting the rule of law and democratic life, if not more so.

Their role is even more critical in countries with an authoritarian past and/or an

endemic problem of police corruption, as is unfortunately true of most countries in

both Latin America and Southeast Asia. Arguably, criminal courts’ key function is to

guarantee due process. By doing so, they ensure that public prosecutors and police

act in accordance with the law, preventing abuses that result either in the breach of
defendants’ rights or the impunity of powerful criminals. This article focuses precisely

on how judicial reforms carried out in recent decades have affected criminal courts’

capacity for controlling police and public prosecutors. The hypothesis based on

evidence coming from studies carried out in Latin America is that even when reforms

were meant to improve due process and have successfully done so on many levels,

managerial concerns have pushed for different types of bargained justice and

simplified procedures that usher in convictions based mainly on police reports

without a proper cross-examination of evidence. It is therefore important to

understand the institutional politics that rule criminal courts’ interactions with public

prosecutors and the police.

3. Methodology

Whilst there are significant differences between and within the regions, courts in

Latin American and Southeast Asia share certain relevant features, so a comparative

approach may shed light on their dynamics and the problems they face.

This paper compares reforms to Argentina’s criminal courts, focusing on the

Province of Buenos Aires (PBA), and those implemented in the Philippines, focusing

on Metro Manila. Comparing two semiperipheral societies from the Global South

avoids the trap of presenting one of the systems as a “model” or “standard” against

which to measure the other. The comparison thus helps to develop a more reflexive

approach.

Argentina is a federal country made up of 23 provinces and one autonomous city, all

of which have their own judicial systems. However, these systems are very similar,

sharing common socioeconomic contexts and a strong legal tradition. The PBA was
chosen for this study because it is the largest and most populous province in

Argentina, home to over 15 million inhabitants or approximately 40% of the country’s

population. The PBA is a highly industrialised area, and most of its population is

concentrated around the city of Buenos Aires (which is autonomous and has its own

judicial system). It suffers from the highest crime rate in Argentina and severe levels

of social inequality.

In 1996, the PBA became one of the first jurisdictions in Latin America to adopt an

adversarial system and it was also one of the first to adopt managerial-inspired

reforms in the mid-2000s.

The other country selected for this study is the Philippines, with a focus on the courts

in Metro Manila, a highly urbanised, industrialised area with more than 12 million

inhabitants.

Argentina and the Philippines were both subject to authoritarian regimes, and both

transitioned to democracy in the 1980s. Police in both jurisdictions have been

accused of corruption and brutality, arguably a legacy of that authoritarian past.

The Philippines adopted the adversarial system a century ago under the rule of the

United States. As is the case in Argentina, the Philippines has also implemented a

series of judicial reforms with the aim of modernising its courts and criminal

procedure legislation and improving their efficiency.

To compare institutional judicial politics and the rationality that drives everyday

operations in criminal courts, this study must look beyond the formal legal framework

that structures courts and guides criminal procedures. Although a clear

understanding of this is essential, to assess actual judicial practices, a qualitative

approach is required. This approach implies the need for a socio-legal analysis of
multiple sources of data. These sources include relevant legislation, government’s

published reports, senior officers’ public statements, interviews with local judicial

actors, and observations of courtroom interactions. By complementing the legal

analysis of legislation and documentation with information provided by key

informants such as judges and prosecutors, the analysis aims to understand the

different interests at stake and the obstacles these actors face.

This article contrasts findings of fieldwork carried out in the PBA in 2010 with those

from exploratory research conducted in the Philippines in 2017. The fieldwork in the

PBA consisted of 45 semistructured interviews with judges, prosecutors, and public

attorneys and observations of court proceedings for a year. The exploratory research

in the Philippines consisted of four interviews with prosecutors and judges in Metro

Manila and the observation of court proceedings in a Regional Trial Court. These

interviews and observations informed a subsequent analysis of the reform process

and some key obstacles to implementing this. Although limited, the exploratory

research conducted in the Philippines is evidence of the potential of comparative

studies of courts in the Global South.

4. The Reforms of the Courts in Latin America and Southeast Asia

In Latin America, the postauthoritarian reforms were told to replace the legal

framework for criminal procedures. The hundred-year-old criminal procedure codes

were labelled “inquisitorial” and identified with an authoritarian culture and thus were

replaced with adversarial/accusatorial legal procedures that were meant to be more

transparent and efficient. The major concern around these early reforms was the

replacement of highly regulated and formalistic written procedures with less

formalised procedures where the verdict and other relevant decisions were decided

in public oral hearings (pretrial, trial, and appeal hearings). This was meant to
provide accountability but also increase efficiency because scholars involved in the

reforms and politicians agreed that written procedures had promoted a highly

inefficient bureaucracy which was to blame for the chronic backlog in courts. 1 This

was not a minor concern: in Latin America, the widespread use of pretrial detention

combined with this serious backlog had resulted in prisons overcrowded with

defendants awaiting trial.

This first wave of reforms started with a bill for reforming the Criminal Procedure

Code (CPC) in Argentina’s federal jurisdiction. The bill was heavily influenced by the

German Criminal Procedure Code and was meant to democratise and improve the

efficiency of the criminal courts (Langer, 2007:638). The CPC it put forward

established public oral trials as the standard mechanism for disposing of cases and a

version of plea bargaining and diversion as alternative mechanisms. Although judges

maintained their key role during the pretrial phase, they could delegate investigations

to public prosecutors. Furthermore, the introduction of alternative mechanisms to

dispose of cases gave public prosecutors some discretional power. Although the bill

was never passed, it became very influential in the region. A network of legal

scholars in Latin America promoted reforms based on it with financial support from

international financial organisations (World Bank, Inter-American Development Bank,

etc.) and aid agencies (USAID, the German Society for Technical Cooperation, the

Konrad Adenauer Foundation, and the United Nations Development Programme,

among others.). The Province of Córdoba, Argentina, and Guatemala in 1992 were

1 Following Damaška (1991) classical work, there was consensus among scholars involved in the reforms on
the advantages of the adversarial system over the so-called inquisitorial (Ciocchini, 2013b). However, that
consensus has left way for more nuance perspectives. For example, Jimeno-Bulnes (2013) while recognising
some of the advantages of the adversarial system in theory, argues that its application is far from that ideal.
Furthermore, bearing in mind that distance between the ideal and the actual implemented system, and taking
into consideration that none of the current system is purely inquisitorial or adversarial, she even questions the
explanatory potential of these categories.
the first jurisdictions in the region to adopt CPCs based on the initial bill. Two

decades later, more than 14 Latin American countries had reformed their CPCs.

Of this first wave of reforms, the PBA’s CPC, which was passed in 1993, is

particularly relevant due to its adversarial features and the size of the jurisdiction.

Those who played a played a part in designing it include Alberto Binder, one of the

authors of the seminal 1986 bill mentioned above.

Politicians and reformers argued that backlogs were the result of the old inquisitorial

system and that the introduction of public trials would speed procedures up and

eradicate those problems. But, following traditional adversarial jurisdictions such as

the USA or England, the new procedural systems included other tools to reduce

court backlog. Local versions of plea bargaining and different diversion mechanisms

were introduced to reduce the caseload of criminal courts. These mechanisms gave

discretional power to public prosecutors, who had already gained power through the

new adversarial system, to the detriment of judges. Public prosecutors used to have

a rather passive role under the inquisitorial system, but with the new adversarial

procedures, besides actively leading the prosecution process, they were also put in

charge of conducting the investigation, which used to be part of the judge’s remit.

The new mechanism was introduced to reduce caseloads, but it gave public

prosecutors discretional powers to settle or file cases.

Despite these legal changes, replacing the inquisitorial system with an adversarial

one did not reduce backlog (Riego, 2002;). It was noted in different Latin American

jurisdictions that judicial actors resisted some of these changes. They avoided oral

hearings, in particular, and continued to rely on written case files (Ciocchini, 2013c).

Furthermore, judges refused to take a passive attitude and kept leading

investigations and interrogations, whilst public prosecutors delegated the direction of

the investigation to the police.

Given these failures, a second wave of reforms took place at the beginning of the

21st century. These focused more explicitly on reducing court backlog and were

promoted by the Centre for Judicial Studies of America (CEJA), a Chile-based

international organisation belonging to the Organisation of American States (OAS).

Whilst reforms promoted by the network that had grown around Julio Maier and

Alberto Binder focused on legal changes, the CEJA’s approach centred on

organisational changes (REDEX, 2010:12-13). Recognising the failure of the first

wave of reforms, this second wave focused on changing judicial practices (Binder,

2002:22, Duce, Mera and Riego, 2002). However, there were still obstacles to

implementation, which ranged from the resistance of members of the judiciary and

unsteady support from local governments to the lack of material resources such as

computers or courtroom space.

Perhaps, the most serious issue affecting reforms of criminal courts has been their

inability to “control” police work, which was aggravated by the introduction of

expedite trials. Public prosecutors who oversee the police during their investigations

and pretrial and trial courts should control the legality of the procedures. However, in

practice, the majority of cases are based on the evidence collected by the police at

the moment of the arrest, following a poor or nonexistent investigation (Fondevila et

al., 2016). Expedite trials to reduce backlog problems for cases in which the

defendant was caught red-handed resulted in courts focusing their resources on

these cases to the detriment of more complex ones. These cases are typically

settled before the trial on the basis of police reports and without a proper cross-

examination of the evidence. In the few complex cases that go to trial, defendants
must wait years in detention to prove their innocence. In line with these claims, a

recent comparative study carried out by Bergman and Langer (2015) between the

old CPC operating in the national jurisdiction of Argentina with the PBA’s CPC

argues that there is no significant difference between the two systems in terms of

due process: there are similar delays and numbers of defendants at the pre-trial

stage, and both share a lack of transparency and accountability in the process.

These problems were aggravated by the widespread fear of crime that was triggered

by the growth in violent crimes and was fuelled by the mass media during the 1990s.

The fear of crime marked the political agenda of Latin American governments and

further weakened the already limited legitimacy of police and criminal courts.

4.1. Reforms in Southeast Asia

Whilst crime rates are low in Southeast Asia when compared with Latin America,

they have risen worryingly in some of the larger countries in the region (the

Philippines, Indonesia, Malaysia, and Thailand). Furthermore, corruption among both

the police and the judiciary is a shared problem that affects Southeast Asia as much

as Latin America.

The situation in Latin American countries is not homogenous, but countries in

Southeast Asia show greater cultural diversity. This is due to several factors,

including the different influences of former colonial powers from one country to the

next and the way that religions shape local values. Nevertheless, a common trend

can be seen among countries in the region. Open-market economics has been very

successful and recent decades have shown signs of a slow but continuous shift

towards more democratic regimes.

Different types of judicial reforms affecting criminal courts have been carried out all

over Southeast Asia including in Singapore, Malaysia, the Philippines, Thailand,

Vietnam, Indonesia, and Cambodia. One example of this trend was the replacement

of Cambodia’s criminal procedure legislation in 2007 with a procedural system that is

heavily based on the French Code of Criminal Procedure. Similarly, the Philippines

has reformed its criminal procedure law (rules of courts) several times since the end

of the authoritarian Marcos regime in 1987. A new criminal procedure code is

currently being debated by the Indonesian legislature, although it should be

mentioned that there has been a history of unsuccessful attempts at reform in recent

decades (Tilemann, 2016).

A major problem affecting criminal courts around Southeast Asia was backlog. This

problem has triggered the introduction of different plea-bargaining systems and

diversion mechanisms. For example, Malaysia has recently introduced plea

bargaining (Farrar, 2013), and the system in Thailand relies on alternative

mechanisms such as mediation to reduce backlogs. In fact, there are ongoing

debates on the pros and cons of adopting plea bargaining to reduce caseloads in

Thailand (Junlakan, Boriboonthana, and Sangkhanate, 2013) and Singapore (Yeoh

et al., 2014). However, Singapore is the exception in the region, with no problems of

backlog since the managerial reforms carried out in the late 1990s.

As is the case in Latin America, the World Bank, the Asian Development Bank,

USAID, and other cooperation agencies have played a key role in promoting and

financing these reforms. However, it should be noted that many of these

programmes are the result of local or even regional initiatives, with international

sponsors being brought in only later. This is true of the most important reforms in

Latin America, such as the replacement of the CPC in the PBA in 1996 (local) and
the implementation of expedite trials and pretrial hearings in 2004 (regional).

Similarly, the Action Program for Judicial Reform (2001) in the Philippines was

developed locally but received strong support from the American Bar Association.

So, legal transplants may be promoted by local or regional actors, and therefore not

been necessary an imposition of international organisations. However, their logic

reproduces a colonial mentality, under which the diagnostics and solutions for local

courts are based on how courts in the Global North work even when there are vast

differences between circumstances in the places reforms inspired by and the

reforming countries. So, for example, reforms promoted hearings in contexts in

which case files are stacked up in the corridors of court buildings due to the lack of

space, as was the case in the PBA and the Philippines. More seriously, they

advocated for simpler procedures and promoted plea bargaining in places where the

reputation of the police force was highly questionable.

Reforms and their actual consequences therefore cannot be understood without

identifying the local politics of reform and the cultural and material context in which

those politics take place. The relevance of the comparative approach here is to

identify common problems faced by jurisdictions in the Global South, such as the

above-mentioned lack of resources or an unreliable police force, and understand

how these problems shape the impact of reforms. It is important to recognise that

programmes based on best practices from other countries in the Global South have

shown some success. An example of them is the Justice on Wheels project, a

mobile court system that was implemented in the Philippines and modelled after a

programme developed in Guatemala (Tupaz, 2012).

With the intention of taking the first steps toward a South-South dialogue, the next

two sections explore the cases of the PBA and the Philippines. They describe the

reforms and their impacts and seek to identify common problems.

5. Learning from Each Other’s Successes and Failures

The reforms in Southeast Asia and Latin America shared two main goals: to increase

transparency and accountability while improving efficiency and efficacy. However, as

was recently admitted by the president of the PBA’s Court of Criminal Cassation, the

highest instance in criminal jurisdiction, courts in the PBA continue to suffer serious

backlogs (2015). Similarly, during a speech encouraging the judiciary to embrace

reforms, the Chief Justice of the Supreme Court of the Philippines said that courts

are currently characterised by delay (Torres-Tupas, 2014).

A comparative study between these jurisdictions may shed light on some of the main

reasons behind this failure. This section analyses and compares three key proposals

of the programmes carried out in the PBA and the Philippines.

Criminal courts in both the PBA and trial courts in the Philippines have suffered from

chronic delay for several decades. The problem of court delay has been discussed

among Filipino legal scholars and politicians since the early 1980s (Tadiar, 1980).

The seriousness of court delay has also been widely recognised by local members of

the Filipino judiciary. Legal scholars, politicians, and the judiciary associate court

delays with a lack of transparency and ultimately a failure to protect human rights

and democracy (Villarama, no date). Similarly, there is a long history to discussions

on court backlog in Argentina (Fucito, 1984; Morello, 1983), which has been

associated with both impunity and the infringement of the defendant’s human rights

(Ciocchini, 2013b; Ciocchini, 2014).

This article compares four aspects of the reforms carried out in these two

jurisdictions. Firstly, it compares the common failure of attempts to regulate the time

taken to dispose of cases by merely establishing time limits in the legislation. Legal

provisions establishing strict time periods in which the different stages of criminal

procedures had to be concluded were introduced in both the PBA and the

Philippines but they have proven ineffective. These deadlines were imposed without

acknowledging the realities in which courts operate.

Second, this article seeks to assess the claim that trials and pretrial hearings would

bring transparency and accountability while reducing the time required to dispose of

a case. This was one of the essential promises of reforms in Latin America and it has

not been fulfilled. Similarly, the recent push for continuous trials in the Philippines

seeks to impose constant court hearings to reduce disposal times. A comparison

between the problems faced by courts in the two jurisdictions may shed light on

some problematic assumptions underlying these programmes and may also point to

possible solutions to some of the organisational problems faced in jurisdictions in the

Global South.

Third, in relation to the previous point, oral hearings are assumed to be a more

efficient, transparent way of disposing of cases. In Latin America, reformers

associate bureaucratic, authoritarian practices with written files. However, after two

decades of reforms, written files still play a fundamental role in criminal cases. It is

enlightening to contrast the reformist discourse on this issue and the reasons for its

failure with the recent introduction of the judicial affidavit in the Philippines. The latter

seems to acknowledge the circumstances in which courts operate and the relevance

of the written file as an organisational artefact.

Lastly, the adversarial system of the PBA’s new CPC empowered public prosecutors

by making them, rather than judges, responsible for directing the criminal

investigation. This was supposed to prevent bias in judges’ verdicts and to avoid the

practice of judges delegating the direction of the investigation to the police.

Nevertheless, this has proved ineffective, in that it is now prosecutors that delegate

the investigation to the police, just as judges used to do. This failure is particularly

relevant in the Philippines since there is an ongoing debate around removing the

preliminary investigation in the Philippines so that the prosecutor oversees the police

investigation. The case of the PBA should raise awareness of the potential problems

this proposal entails.

5.1. Time Limits

The first strategy for dealing with excessive delays and backlog has been to impose

legal time limits. In the PBA, this strategy has been implemented over the years.

Strict time limits were established for each stage in the CPC in 1996 and then again

in 2004 with the introduction of expedite trials. However, these time limits have been

largely ineffective, partly because they were established based on an abstract ideal

instead of a study of the actual time required for disposing of cases. Furthermore,

the local jurisprudence recognised several exceptions to these limits based on

different characteristics that cases may have. Perhaps more significantly, they

established that these limits are not mandatory but are merely a suggestion (Pastor,

2002; Vázquez Rossi, 2004). The most controversial law establishing time limits has

been Law no. 24,390, popularly referred to as “2x1” [“two for the price of one”]. This

law was enacted to comply with jurisprudence of the American Courts of Human

Rights on the article 8.1 of the American Convention on Human Rights, which

establishes defendants’ right to a trial hearing within a reasonable amount of time.

The law stated that defendants under pretrial detention should have a trial within two

years and that every day spent in pretrial detention after those two years should be

counted as two. The law was meant to incentivise courts to dispose of cases within

two years, however, not only has it had no effect on disposal times, detention days

being worth double has led to prison sentences being dissolved. Lastly, in 2004,

expedite trials were introduced which stated shorter time limits. However, instead of

merely introducing time limits, expedite trials also introduced mechanisms such as

pretrial hearings and a new office in charge of coordinating and supervising these

hearings. As will be analysed below, this strategy was more successful.

In the case of the Philippines, provisions establishing time limits for disposing of

cases were introduced in the democratic constitution enacted in 1987. Nevertheless,

court delay and backlog remained a serious problem (Caparas and Feliciano, 1987).

In 1998, the Speedy Trial Act was passed, which established strict time limits for

criminal procedures. The act was implemented by the Supreme Court Circular No.

38-98 of August 1998. It established that the arraignment and pretrial conference

must be held within 30 days of the date that the court acquires jurisdiction over the

person of the accused if the accused pleads not guilty to the crime charged. In any

case, the regular trial must be terminated within 180 days. However, JOHN JOSEPH

LUMANLAW y BULINAO vs. Hon. EDUARDO B. PERALTA JR, which was decided

by the Philippine Supreme Court in 2006, illustrates the failure of some courts to

proceed according to these time limits. In this case, the defendant was detained for

two years without being arraigned. The arraignment was postponed on fourteen

occasions for different reasons varying from the retirement of the judge in charge of

the case to the repeated failure of the jail wardens to bring the accused to court. It is

interesting to note that serious organisational shortcomings such as those described

in this case are not uncommon in the jurisdiction of the PBA. As one public

prosecutor stated in an interview, “the problem is there are no penalties if the time

limits are exceeded”.

In conclusion, time limits established by law are not necessarily effective, partly

because they themselves are subject to judicial interpretations, in other words,

judges have the power to interpret the laws that should control their own

performance. Furthermore, they can even bring about unintended effects unless they

are introduced with other measures that provide mechanisms for effectively reducing

disposal times.

5.2. Oral Hearings

Before the reform of 1996, public oral trials in the PBA were only available as an

option for the defendant in murder cases. Under the new CPC, every case should be

decided in a public oral trial. Under the previous CPC, judges used to decide based

on the written file which contained the evidence gathered by the police. It was

argued that public oral trials would bring transparency and accountability by offering

the defendant a space in which evidence would be cross-examined. They were also

meant to reduce disposal time since it was argued that written procedures created

bureaucratic practices. Nevertheless, statistics from the Supreme Court of the

Province of Buenos Aires show that less than 1% of cases actually go to trial. 2

Furthermore, observations of trial hearings revealed that judges prepare their

opinions before the trial by reading the case file. During hearings, they would rarely

interrogate witnesses unless their testimonies differed from those previously

recorded in the written file. Organising hearings is a complex process due to the

2 The statistical information on criminal courts was provided by the Secretary of Planning of the Supreme
Court of the Province of Buenos Aires.
coordination and mobilisation of legal actors, witnesses, and defendants that it

involves, the inadequacy of the infrastructure (courtrooms that are too small or

unavailable), and the unpredictability of the case. This ultimately incentivises parties

to either divert or dispose of cases through a local version of plea bargaining.

However, the consequence of this is that there is no cross-examination of the

evidence gathered by the police, so the process thus fails provide the accountability

and transparency that were promised.

Despite parties resorting to plea bargaining, public oral trials did not significantly

reduce the backlog of courts (Palmieri et al., 2004). To tackle this chronic delay,

expedite trial procedures were introduced in 2004 for cases in which the defendant is

caught red-handed. A large share of the cases that courts deal with fall into this

category. Expedite trial procedures did not take off until organisational reforms were

carried out a year later, most notably introducing early hearings in the pretrial stage

for these cases and a whole new office inside courts dedicated to organising such

hearings. Expedite trials were very successful in promoting early settlements, and

pretrial judges were given the power to sentence in cases of plea bargaining to

reduce trial courts’ caseloads. However, expedite trials also brought serious

setbacks. First, the success was partially the result of focusing courts’ and public

prosecutors’ resources on these cases. The introduction of these expedite trials was

meant to release resources for more complex cases, but, in practice, the inability of

public prosecutors and the police to investigate more complex cases has prevented

that from happing (Hazán and Iud, 2010). Furthermore, there is evidence that more

complex cases suffer from the same chronic delay as in the past (Bergman and

Langer, 2015). Second, expedite trials incentivised the use of alternative

mechanisms to dispose of cases by further reducing the opportunity for cross-

examining the evidence gathered by the police. This is highly problematic in a

society in which the reputation of the police force is continually called into question

due to its authoritarian past while also being widely discredited due to the numerous

cases of corruption and police abuse that are routinely reported by activists and the

local press.

These experiences are useful for assessing the most recent reform in the

Philippines, namely the implementation of continuous trials. The system requires

courts to conduct trials from Monday to Thursday and leave Fridays to deal with

motions, arraignment, and pretrial conferences. Under this system, courts must call

cases at exactly 8:30 a.m. for morning hearings and 2 p.m. for afternoon hearings.

The system was considered a success in the pilot courts where it was tested (Lloyd

T. Caliwan, 2017). However, the judges and prosecutors interviewed were sceptical

about its wider implementation. They raised concerns about the feasibility of such

strict time guidelines and listed several day-to-day problems that affect hearings,

such as delays in detainee transport, witness absences, and delays on the part of

prosecutors or attorneys due to traffic jams or hearings in other courts. Similar

problems affect courts in the PBA, and in Latin America more broadly. The proposed

solution was to create an office that is independent from the courts but operates

under the judicial power, coordinates the agendas of the different parties and the

judge, and organises hearings. This proved to be successful for expedite trials where

the defendant was caught red-handed in part because of the simplicity of such

cases, which generally require very few witnesses, if any.

5.3. The Obscurity and Length of Written Procedures Induce Bureaucracy

The second wave of reforms in the PBA was carried almost a decade after public

oral trials were introduced. It was clear at that time that the chronic backlog had not

been significantly reduced (Palmieri et al., 2004). Reformers blamed judicial actors’

attitudes for this failure. They argued that the “old inquisitorial” practices, particularly

the insistence on keeping written records of every communication or decision taken

during the process, warped the system. It was argued that this attitude promoted

bureaucracy and increased delay. Furthermore, judicial actors preferred to take

decisions in their offices based on the information available in the written file, rather

than through debate at an oral hearing. This meant that every decision in a case,

from ordering pretrial detention to the request for a new expert’s report, required a

formal written request that the other party had to notified of before the judge could

decide on it. Furthermore, each of these decisions could be and often were

appealed, which created another series of written requests and notifications. The

written thus file became the symbol of old bureaucratic and nontransparent

practices, and reformers have long insisted on the need to eliminate it.

However, it is interesting to rethink reformers’ claims in the light of the experience of

the Philippines. One of the latest and most successful reforms has been the

introduction of the judicial affidavit for witnesses’ testimonies, which was

implemented to reduce court time. The affidavits replaced direct oral testimony but

the adverse party retains the right to cross-examine. Reports by the Supreme Court

stated that the implementation of this system “quickly resulted in reducing by about

two-thirds the time used for presenting the testimonies of witnesses” (Panganiban,

2012).
Contrasting efforts to eradicate written records in Latin America and the judicial

affidavit rule offers some interesting conclusions. First, the introduction of the judicial

affidavit is an indirect recognition that procedures based on oral hearings demand

human and material resources that are not available in jurisdictions of the Global

South. It thus makes no sense to impose a rule that forces a practice that cannot

actually be complied with. In the two countries under study, two different strategies

were put in place to deal with this: in the Philippines, hearings have been simplified

through judicial affidavits that reduce the length of witnesses’ testimony, while in

Argentina expedite trials have been used to reduce the space for discussion, or the

discussion is replaced altogether by alternatives to trial such as plea bargaining.

Second, in systems from the Global South where resources are scarce, the

unpredictability of hearings increases significantly. Hearings are unpredictable not

merely because of the judge’s discretional power, but also because it is not possible

to guarantee whether witnesses or even the defendant will be present. In such

conditions, the written file is crucial technology that helps coordinate work between

the parties asynchronously. It is no wonder, then, that reforms in Latin America have

been unable to eradicate the written file from the everyday practices of criminal

courts.

5.4. Failure of Prosecutors Directing Investigations

The last point is about the role of public prosecutors in directing and monitoring the

police. When the PBA’s CPC was reformed in 1996, the role of directing

investigations was handed from the judge to prosecutors. Under the old CPCs,

investigations were highly formalised processes. Testimonies from witnesses and

expert were supposed to be gathered by judges and recorded in the case file. In
practice, however, judges delegated these tasks to the police, which resulted in a

system that lacked transparency. Under the new CPC, the investigation phase was

supposed to be less bureaucratic: as was mentioned above, the reform aimed to

eradicate the written file. However, this failed as public prosecutors reproduced

previous practices and delegated the investigation to the police and evidence was

compiled in written case files just as before.

This should be taken into consideration in the Philippines since there is an ongoing

discussion on a proposal to remove the preliminary investigation phase and give

public prosecutors the remit to direct police investigations. The preliminary

investigation is a stage in the criminal procedure in the Philippines during which

prosecutors review the evidence gathered by the police. It is argued that, in practice,

this preliminary investigation duplicates subsequent investigative work. A proposal

was presented in 2016 by the former Secretary of Justice (Senate Bill No. 369) to

improve the efficiency of investigations. The goal is to reduce backlog, but the

prosecutors interviewed stated that it would also help to ensure that the evidence is

handled properly, avoiding legal objections at a later stage. The problem is whether

prosecutors are prepared to engage in police investigations and direct the police

appropriately. However, it should be taken into consideration that prosecutors are

legal professionals, and the PBA’s experience suggests that consideration should be

given to how well-equipped they are to lead a highly corrupt, authoritarian police

force. Local interviews in the Philippines hinted that prosecutors face similar

problems in dealing with police as is the case in the PBA. These types of reforms are

designed following the US model without fully acknowledging local complexities,

particularly the difficulties of directing a police force that is used to operating

autonomously.
6. Final Thoughts

This paper has argued that lessons can be learnt by comparing judicial reforms in

the PBA and the Philippines that aimed to increase transparency and accountability

and reduce court backlogs. Models imported from the Global North fail in such

locations because the conditions in the Global South are extremely different. Without

an appropriate understanding of the problems faced by semiperipheral and

peripheral societies, the outcomes of such initiatives will only aggravate these

problems. The adversarial system and the replacement of written procedures with

oral hearings (at both the pretrial and trial stages) do not automatically improve the

transparency and efficiency of courts. Because these procedures require more

resources to work properly, their introduction may end up promoting practices to

simplify procedures that reduce rather than increasing the transparency of the

procedure. Furthermore, an adequate understanding of how police and other

enforcement agencies operates is needed if the shortcomings of criminal courts are

to be understood. In societies that are still suffering the legacy of authoritarian

regimes, efforts should be focused on increasing control over the police and

improving defendants’ rights. There is a tendency in recent reforms to focus on

management strategies that may result in promoting punitive interventions based on

dubious police procedures. In jurisdictions in which police abuse is widespread, due

process should be paramount over managerial concerns.

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