It is said that it is better to have an irresponsible press than to have a timid press because the press is a catalyst of public opinion. The right to criticize public acts, even judicial conduct, is guaranteed by the Constitution but it must be exercised with responsibility. It has been said that to say that lawyers must at all times uphold and respect the law is to state the obvious. Considering that of all classes of professions, lawyers are most sacredly bound to uphold the law, (Ex parte Wall, U.S. 265; cited in Malcolm Legal and Judicial Ethics, p. 214), it is imperative that they live by the law.

II. Constitutional basis of the freedom of expression

“No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people to peaceably assemble and petition the government for redress of grievances.” (Article III, Sec. 4, 1987 Constitution).

III. Code of Ethics of Lawyers

Canon 11      A lawyer shall observe and maintain the respect due to the courts and to the judicial officers and should insist in similar conduct by others.

Rule 11.03    The lawyer shall abstain from scandalous, offensive or menacing language or behavior before the courts.

Rule 11.04
    A lawyer shall not attribute to a Judge motive not supported by the record or have no materiality to the case.

IV. Cases

Judicial conduct maybe criticized.

The guarantee of free speech and a free press include the right to criticize judicial conduct. The administration of law is a matter of vital public concern. If the people cannot, criticize a judge in the same manner as any public officer, public opinion will be effectively muzzled. Attempted terrorization of public opinion on the part of the judiciary would be tyranny of the basest soil. (U.S. vs. Bustos, 37 Phil. 731).

Official acts and conduct may be criticized.

In U.S. v. Bustos, 37 Phil. 731, it was said that complete liberty to comment on the official acts of public men is like a scalpel in the case of free speech. The incision of its probe relieves the abscesses of officialdom. Men in the public life may suffer from unjust accusation, but the wound is assuaged by balm of a clear conscience. Men have the right to attack, rightly or wrongly, the policy of a public official, with every argument which ability can find or ingenuinely innervate. They may show, by arguments good or bad, such policy to be injurious to the individual and to society.

Limitations on the right to criticize policies or official acts.

While people can criticize, the law does not permit them to falsely impeach the motives, attack honesty, blacken the virtue, or injure the reputation of that official. Men may argue, but they may not traduce. Man may differ, but hey may not, for that reason, falsely charge dishonesty. Men may look at policies from different points of view, and see them in different lights, but they may not, on that account falsely charge criminally, lack virtue, bad notions, or corrupt heart and mind. Men may falsely charge that policies are bad, but they cannot falsely charge that men are bad. (U.S. vs. Contreras, 23 Phil. 513).

* * * *

A newspaper reporter or editor who published an inaccurate account of a closed-door investigation of a judge may be cited for contempt.

In In Re: Lozano vs. Quevedo, 54 Phil. 801, the Supreme Court said:

“The rule is well-established that newspaper publications tending to impede, obstruct, embarrass, or influence the courts in the administration of justice in attending a suit or proceeding constitute criminal contempt which is summarily punishable by the courts. The rule is otherwise after the case is ended. IT is also regarded as an interference with the work of the courts to publish any matter which their policy requires should be kept private, as for example the secrets of the jury room, or proceedings in camera.” (6 R.C.L., pp. 508-515).

The Organic Act wisely guarantees freedom of speech and of the press. This constitutional right must be protected in its fullest extent. The court has heretofore given evidence of its tolerant regard for charges under the Libel Law which come dangerously close to its violation. We shall continue in this chosen path. The liberty of the citizens must be preserved in all of its completeness. But license or abuse of liberty of the press and of the citizen should not be confused with liberty in its true sense. As important as is the maintenance of an unmuzzled press and the free exercise of the rights of the citizen is the maintenance of the independence of the judiciary. Respect for the judiciary cannot be had if persons are privileged to scorn a resolution of the court adopted for good purposes and if such persons are to be permitted by subterranean means to diffuse inaccurate accounts of confidential proceedings to the embarrassment of the parties and the courts. (See also In Re: Sotto, 82 Phil. 575).

A lawyer may be dealt with in contempt if he publishes false statements relative to the Court’s action on a pending case or otherwise indulging in speculation or conjecture or airing illicit information.

His act cannot be justified under the freedom of the press and the right of the people to information on matters of public concern.

While his rights are guaranteed, a publication, however, relating to judicial action in a pending case which tends to impede, embarrass or obstruct the court and constitutes a clear and present danger to the administration of justice is not protected by the guaranty of press freedom.

What is fundamental is the principle of confidentiality of all actuations of, or records or proceedings before a court in a pending action, which are not essentially public in character. As far as the proceedings are concerned, those confidential matters include, among others, raffling of cases, deliberations and discussions of the en banc or the division, drafts or decisions and resolutions agreed upon by the members in consultation.  (In Re: Atty. Emiliano Jurado, Jr., Adm. Matter No. 90-5-2373, July 12, 1990).

A lawyer may be guilty of indirect contempt of court for uttering statements aimed at influencing and threatening the Court in deciding in favor of the constitutionality of the Plunder Law.

The Supreme Court said that the judiciary, as he branch of government tasked to administer justice, to settle justiciable controversies or disputes involving enforceable and demandable rights, and to afford redress of wrongs for the violation of said right, (Copez vs. Roxas 17 SCRA 756) must be allowed to decide cases independently, free of outside influence or pressure. An independent judiciary is essential to the maintenance of democracy, as well as of peace and order in society. Further, maintaining the dignity of courts and enforcing the duty of citizens to respect them are necessary adjuncts to the administration of justice. (Weston vs. Commonwealth, 77  SE 2d 405, 409 (1953).

Thus, Rule 71, Section 3 (d) of the Revised Rule of the Court authorizes the courts to hold liable for criminal contempt a person guilty of conduct that is directed against the dignity or authority of the court, or of an act obstructing the administration of justice which tends to bring the court into disrepute or disrespect. (People vs. Godoy, 243 SCRA 64 (1995).

Respondents cannot justify his contemptuous statements – asking the Court to dispel rumors that if would declare the Plunder law unconstitutional, and stating the a decision declaring it as such was basically wrong and would not be accepted by the people – as utterances protected by his right to freedom of speech.

Indeed, freedom of speech includes the right to know and discuss judicial proceedings, but such right does not cover statements aimed at undermining the Court’s integrity and authority, and interfering with the administration of justice. Freedom of speech is not absolute, and must occasionally be balanced with the liberty of speech and of the press, for they tend to destroy the very foundation of good order and as well-being in society by obstructing the course of justice. (State vs. Morcil, 16 Ask 384).

Clearly, respondents’ utterances pressuring the Court to rule in favor of the constitutionality of the Plunder law or risk another series of mass actions by the public cannot be construed as falling within the ambit of constitutionally protected speech, because such statements are not fair criticism of any decision of the Court, but obviously are threats made against it to force the Court to decide the issue in a particular manner, or risk earning the ire of the public. Such statements show disrespect not only for the Court but also for the judicial system as a whole, tend to promote distrust and undermine public confidence in the judiciary, by creating the impression that the Court cannot be trusted to resolve cases impartially and violate the right of the parties to have their case tried fairly by an independent tribunal, uninfluenced by public clamor and other extraneous influences. (Nestle Phils. Case).

It is respondent’s duty as an officer of the court, to uphold the dignity and authority of the courts and to promote confidence in the fair administration of justice (In Re: Sotto) and in the Supreme Court as the bulwark of justice and democracy. Respondent’s utterances as quoted above, while the case of Estrada vs. Sandiganbayan was pending consideration by the Court, belies his protestation of good faith but were clearly made to mobilized public opinion and bring pressure on the court. (Atty. Leonard de Vera, A.M. No. 01-2-03-SC, July 29, 2002).

In his Explanation submitted to the Court, respondent De Vera admitted to have made said statements but denied to have uttered the same ‘to degrade the Court, to destroy public confidence in it and to bring it into disrepute.” He explained that he was merely exercising his constitutionally guaranteed right to freedom of speech.

The Court found the explanation unsatisfactory and held that the statements were aimed at influencing and threatening the Court to decide in favor of the constitutionality of the Plunder Law.

The ruling cannot serve as a basis to consider respondent de Vera immoral. The act for which he was found guilty of indirect contempt does not involve moral turpitude.

Can this pronouncement be used to disqualify him from running for Governor in the IBP? No.      

In Tak Ng v. Republic of the Philippines cited in Villaber v. Commission on Elections, the Court defines moral turpitude as an “act of baseness, vileness, or depravity in the private and social duties which a man owes his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man, or conduct contrary to justice, honesty, modesty or good morals.” The determination of whether an act involves moral turpitude is a factual issue and frequently depends on the circumstances attending the violation of the statute.

In this case, it cannot be said that the act of expressing one’s opinion on a public interest issue can be considered as an act of baseness, vileness or depravity. Respondent De Vera did not bring suffering nor cause undue injury or harm to the public when he voiced his views on the Plunder Law. Consequently, there is no basis for petitioner to invoke the administrative case as evidence of respondent De Vera’s alleged immorality. (In Re: Petition to Disqualify Atty. De Vera, etc., Garcia, et al. vs. Atty. Leonard de Vera, et al., A. C. No. 6052, December 11, 2003).

A lawyer was sanctioned for conduct unbecoming when he claimed that the Justices committed acts of political partnership.

Canon 11 of the Code of professional Responsibility mandates that a lawyer should observe and maintain the respect due to the courts and judicial officers and, indeed, should insist on similar conduct by others. In liberally imputing sinister and devious motives and questioning the impartially, integrity, and authority of the members of the Court the lawyers has only seceded in seeking to impede, obstruct and pervert the dispensation of justice.

The attention of Atty. Paguia has also been called to the mandate of rule 13.02 of the Code of Professional Responsibility prohibiting a member of the Bar from making such public statements on a case that may tend to arouse public opinion for or against a party. Regrettably, Atty. Paguia has persisted in ignoring the Court’s well-meant admonition.

On the 7th September 2003 issue of the Daily Tribune, Atty. Paguia wrote to say –

“What is the legal effect of that violation of President Estrada’s right to due process of law? It renders the decision in Estrada vs. Arroyo unconstitutional and void. The rudiments of fair play were not observed. There was no fair play since it appears that when president Estrada filed his petition, Chief Justice divide and his fellow justices had already committed to the other party – GMA – with a judgment already made and waiting to be formalized after the litigants shall have undergone the charade of a formal hearing. After the justices had authorized the proclamation of GMA as president, can they be expected to voluntarily admit the unconstitutionality of their own act?”

Unrelentingly, Atty. Paguia has continued to make public statements of like nature.

The Court has already warned Atty. Paguia, on pain of disciplinary sanction, to become mindful of his grave responsibilities as a lawyer and as an officer of the Court. Apparently, he has chosen not to at all take heed. He was suspended indefinitely from the practice of law. (Estrada vs. Sandiganbayan,, G.R. No. 159486-88, November 25, 2003).

After Atty. Raul Gonzales was stripped of his power of investigation as Tanodbayan pursuant to the 1987 Constitution, he hurled several attacks at the Supreme Court through the media. He was suspended on the basis of the same.

Gonzales is entitled to the constitutional guarantee of free speech. No one seeks to deny him that right, least of all, the Supreme Court. What he seemed unaware of is that freedom of speech and expression, like all constitutional freedoms, is not absolute and that freedom of expression needs occasion to be adjusted to and accommodated with the requirements of equally important public interests. One of these fundamental public interests is the maintenance of the integrity and orderly functioning of the administration of justice. There is no animosity between free expression and the integrity of the system of administering justice. For the protection and maintenance of freedom of expression itself can be secured only within the context of a functioning and orderly system of dispensing justice, within the context, in other words, of viable independent institutions for delivery of justice which are accepted by the general community. As Mr. Justice Frankfurter puts it; “x x x A free press is not to be preferred to an independent judiciary, nor an independent judiciary to a free press. Neither has primacy over the other, both are indispensable to a free speech.” (Zaldivar vs. Sandiganbayan and Raul Gonzales, G.R.  Nos. 74690-707 and 80578, Feb. 1, 1989).

Atty. Gonzales cannot invoke his right to expression as a lawyer.

A lawyer’s right to free expression may have been more limited than that of a layman. A lawyer, acting in a professional capacity, may have fewer rights of free speech than would a private citizen. Neither the right of free speech nor the right to engage in political activities be construed or extended as to permit any such liberties to a member of the Bar. A layman may, perhaps, pursue his theories of free speech or political activities until he runs a foul of the penalties of libel or slander, or into some infraction of the statutory law. A member of the bar can, and will, be stopped at the point where he infringes the Canons of Ethics, and if he wishes to remain a member of the bar, he will conduct himself in accordance therewith. (Zaldivar vs. SB, G.R. Nos. 79690-707; Zaldivar vs. Gonzales, G.R. No. 80578, Oct. 7, 1988).

Suspension for subjecting the Supreme Court justice to threats.

In the case of In Re: Wenceslao Laureta, 148 SCRA 382 (1987), a lawyer was suspended indefinitely.

A letter individually addressed to some justices of the Supreme Court is not covered by the constitutional right to “privacy of communication” when the same pertain to their exercise of judicial functions.

To subject the threat and ordeal of investigation and prosecution, a judge, more so a member of the Supreme Court for official acts done by him in good faith and in the regular exercise of official duty and judicial functions is to subvert and undermine that very independence of the judiciary, and subordinate the judiciary to the executive. “For it is a general principle of the highest importance to the proper administration of justice that a judicial officer exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself. Liability to answer to everyone who might feel himself aggrieved by the action of the judge would be inconsistent with the possession of this freedom, and would destroy that independence without which no judiciary can be either respectable or useful”. (Bradley vs. Fisher, 80 U.S. 335).

To allow litigants to go beyond the Court’s resolution and claim that the members acted ‘with deliberate bad faith” and rendered an “unjust resolution” in disregard or violation of the duty of their high office to act upon their own independent consideration and judgment of the matter at hand would be destroy the authenticity, integrity and conclusiveness of such collegiate acts and resolutions and to disregard utterly the presumption of regular performance of official duty. To allow such collateral attack would destroy the separation of powers and undermine the role of the Supreme Court as the final arbiter of all justiciable disputes.

Limitations on right to criticize.

Like any other right, the right of a lawyer to comment on or criticize the decision of a judge or his actuation is not unlimited. “It is the cardinal condition of all such criticism that it shall be bona fide, and shall not spell over the walls of decency and propriety. A wide chasm exists between fair criticism, on the other hand, and abuse and slander of courts and judges on the other”. A publication in or outside of court tending to impede, obstruct, embarrass or influence the courts in administering justice in pending suit, or to degrade the courts, destroy public confidence in them or bring them in any way into disrepute, whether or not there is a pending litigation, transcends the limits of fair comment. Such publication or intemperate and unfair criticism is a gross violation of the lawyer’s duty to respect the courts. It is a misconduct that subjects to disciplinary action. (In re Almacen, 31 SCRA 562; In Re Gomez, 43 Phil. 376).

Moreover, where by law or resolution of the Supreme Court proceedings, such as disciplinary actions against judges and lawyers, must be conducted in secret or considered confidential for the proper administration of justice until their final adjudication, they should not be given publicity by the press. And no one may publicly comment thereon during their pendency. For as important as the maintenance of an unmuzzled press and the free exercise of the rights of the citizens is the preservation of the independence of the judiciary. Respect for the judiciary cannot be adopted for good purpose and if such persons are to be permitted by subterranean means to diffuse inaccurate accounts of confidential proceedings to the embarrassment of the parties and the courts. (In re Lozano, 54 Phil. 801; In re Abistado, 57 Phil. 668).

Right and duty of lawyer to criticize courts.

The rule is not, however, intended to prevent or preclude criticism of the judicial acts of a judge. For the guarantees of free speech and a free speech and a free press include the right to criticize the judicial conduct. The administration of the law is a matter of vital public concern. Whether the law is wisely or badly enforced is, therefore, a fit subject for proper comment. If the people cannot criticize a judge the same as any other public official, public opinion will be effectively muzzled. Attempted terrorization of public opinion on the part of the judicial officer would be tyranny of the basest sort. The sword of Damocles in the hands of a judge does not hand suspended over the individual who dares to assert his prerogative as a citizen and to stand up bravely before any official. The people are not obliged to speak of the conduct of their officials in whispers or with bated breath in a free government, but only in a despotism. (U.S. vs. bustos, 37 Phil. 731).

As a citizen and officer of the court, a lawyer is expected not only to exercise the right but also to consider it his duty to expose the shortcomings and indiscretions of courts and judges. “Criticism of the courts has, indeed, been an important part of the traditional work of the lawyer. In the prosecution of appeals, he points out the errors of lower courts. In articles written for law journals he dissects with detachment the doctrinal pronouncement of courts and fearlessly lays bare for all to see the flaws and inconsistencies of the doctrines”. (In re Almacen, 31 SCRA 562).

For no “class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartially or integrity of judges than members of the bar. They have the best opportunities for observing and forming correct judgment. They are in constant attendance in the courts. x x x. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained, (Ex Parte Steinman, 40 Rep. 641; In re Almacen).

Courts and judges are not sacrosanct. They should expect critical evaluation of their performance. For like the executive and the legislative branches, the judiciary is rooted in the soil of democratic society and nourished by the periodic appraisal of citizens whom it should serve. (In re Almacen; Austria vs. Masaquel, 20 SCRA 1247).

The doctrine of fair comment.

In Borjal vs. CA, et al., G.R. No. 126466, January 14, 1999; 301 SCRA 1, it was said that fair commentaries on matter of public interest are privileged and constitute a valid defense in an action for libel or slander. The doctrine of fair comment means that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judiciary proved, and every false imputation is directed against a public reason in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts.

Limitations and effects of the Right to Criticize Judicial Acts.

The freedom of expression rights cannot be a good defense whenever a lawyer unduly criticizes the courts. Neither does the doctrine of qualified privilege communications and fair criticism. The reason is that, such a freedom is not a license to malign anyone.

Hence, lawyers have been suspended even as they invoked such freedom.

1.    In Montecillo vs. Gica, 60 SCRA 243 (1974), a lawyer was suspended until further orders from the Court for alleging that the Justices knowingly rendered unjust judgment. He alleged that they acted with intent and malice, if not with gross ignorance of the law in disposing of the case in his client.

2.    In re Almacen, 31 SCRA 562, a lawyer was suspended for having exceeded the boundaries of fair criticisms.

3.    In Paragas vs. Cruz, 14 SCRA 809, a lawyer was suspended because of derogatory statements in his Motion for Reconsideration.

4.    In In re Sotto, 82 Phil.  595, a lawyer was held in contempt despite his avowals of good faith and his invocation of the constitutional guarantee of freedom of speech.

5.    In Salcedo vs. Hernandez, 61 Phil. 724, Atty. Vicente Francisco was dealt with in contempt for presuming that the Court is so devoid of the sense of justice.

In Zaldivar vs. Gonzales, 166 SCRA 316, Atty. Gonzales was suspended because of charges that the Supreme Court deliberately rendered an erroneous and unjust decision, necessarily implying that the Justices betrayed their oath of office, merely to wreak vengeance upon him. This was considered as constituting the grossest kind of disrespect for the court. Such statements debase and degrade the Supreme Court and the entire system of administration of justice.

As Mr. Frunkfurter put it:

A free press is not to be preferred to an independent judiciary, nor an independent judiciary to a free press. Neither has primacy over the other; both are indispensable to a free society.

The freedom of the press in itself presupposes an independent judiciary through which that freedom may, if necessary, be vindicated. And one of the potent means for assuring judges their independence is a free press.