Manuel Jeffrey David

Word Count: 1,859

Exploring the Legal Terrain of Criticizing the Supreme Court

The Supreme Court of the Philippines is one of the pillars of Government in the Philippines. Retired Justice Cruz in his book sought to differentiate the nature of the judiciary, from the two other co-equal branches by stating: The political departments, if only because of the nature of their powers, have a tendency to bend if not actually break the laws, sometimes for the best of motives or out of mistaken zeal, but more often because of desire of selfaggrandizement. When they do so, the judiciary is expected to rectify the wrong and affirm its sacred and solemn duty to uphold the constitution and the laws of the land.1 With this mandate, it becomes paramount that the Supreme Court retains the trust and confidence of the people and be insulated from attacks that may undermine the Courts credibility. The Court describes this danger of criticism that may damage its credibility, in In re Tulfo2 wherein they said: In fact, nothing constructive can be attained by an attempt to downgrade, damage and even destroy the authority of the Court which is a focal institution of democracy in this country. Most prudent observers believe (whether or not Tulfo subscribes to it) that any act which tends to destroy the authority of the Court is in itself an attempt to destroy that democracy To help in this matter, members of the bar are mandated to uphold the courts integrity, dignity, and authority, and in Salcedo v. Hernandez3, the court said that: in so doing, he neither creates nor promotes distrust in the administration of justice, and prevents anybody from harboring and encouraging discontent which in many cases, is the source of disorder, thus undermining the foundation upon which rests the bulwark called judicial power to which those who are aggrieved turn for protection and relief. The Court did not entirely shut the door to criticism; it merely sought to regulate the actuations of its critics to ensure that its integrity and authority remains untarnished. Even with the considerations listed above, the Court does not consider itself as an institution beyond reproach. In In re Almacen4 it said; Courts and judges are not sacrosanct. They should and expect critical evaluation of their performance. For like the executive and the legislative branches, the judiciary is rooted in the soil of democratic society, nourished by the periodic appraisal of the citizens whom it is expected to serve. This admission that courts can make errors and thus be open to criticism is tempered by the fact that the Court wields the power to consider a person in contempt if ever he oversteps the boundary.

I. Cruz, CONSTITUTIONAL LAW 32 (2007 ed., 2007) In re Tulfo A.M 90-4-1545-0, April 17, 1990 3 Salcedo v. Hernandez, 61 Phil. 724 (1935) 4 In re Almacen G.R. No. 27654, February 18, 1970
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The Supreme Court, even with the need to insulate itself from criticism, acknowledged the right of an ordinary Filipino citizen to comment and criticize it, in In re Almacen 5which was reiterated in a 2011 case Lorenzo Shipping Corp., et al, v. Distribution Management Assn of the Phil., et al.,6 the court said that: every citizen has the right to comment upon and criticize the actuations of public officers. This right is not diminished by the fact that the criticism is aimed at a judicial authority, or that it is articulated by a lawyer. Such right is especially recognized where the criticism concerns a concluded litigation, because then the courts actuations are thrown open to public consumption. Our decisions and all our official actions, said the Supreme Court of Nebraska are public property, and the press and the people have, the undoubted right to comment on them, criticize and censure them as they see fit. Judicial officers, like other public servants, must answer for their official actions before the chancery of public opinion. The court in this case gave one of the standards to which ones criticism may be tested against. The criticism of the courts action must be with regard to concluded litigation. This helps ensure that the courts integrity is protected as comments and criticisms on pending litigation, may cast doubt on the Courts decision. The Court applied this concept in In re Tulfo7 where a journalist was held in contempt of court when he used disrespectful language in his comments on a pending case, and in an older case in In re Kelly8 the court said: The publication of a criticism of a party or of the court to a pending cause, respecting the same, has always been considered as misbehavior, tending to obstruct the administration of justice, and subjects such persons to contempt proceedings. Parties have a constitutional right to have their fairly in court, by an impartial tribunal, uninfluenced by publications or public clamor. Every citizen has a profound personal interest in the enforcement of the fundamental right to have justice administered by the courts, under the protection and forms of law, free from outside coercion or interference. Any publication, pending a suit, reflecting upon the upon court, the parties, the officers of the court, the counsel, etc., with reference to the suit, or tending to influence the decision of the controversy, is contempt of court and is punishable. The power to punish for contempt is inherent in all court. The summary power to commit and punish for contempt tending to obstructed or degrade the administration of justice, as inherent in courts as essential to the execution of their powers and to the maintenance of their authority is a part of the law of the land. Even with the desire to allow the people to exercise their right to freedom of speech, the Court nevertheless, is quick to admonish those persons, who in the exercise of their right may; sow distrust and doubt on the Court, so if a person desires to criticize the Court, such criticism must be couched in respectful language and pertain to concluded litigation, as to not cause the damage that the Court is trying to avoid, but in In re Jurado9 a journalist was also put in hot water by his utterances against the Judiciary as a whole even, without reference to a pending
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See note 4, supra Lorenzo Shipping Corp. et al, v. Distribution Management Assn of the Phil., et al., G.R. No. 155849, August 31, 2011 7 In re Tulfo A.M 90-4-1545-0, April 17, 1990 8 In re Kelly, 35 Phil., 944, 945. 9 In re Jurado A.M. No. 93-2-037 SC April 6, 1995

case. In the said case, the court declared: Contempt is punishable, even if committed without relation to a pending case. Philippine jurisprudence parallels a respectable array of English decisions holding contumacious scurrilous attacks against the courts calculated to bring them into disrepute, even when made after the trial stage or after the end of the proceedings. The court in this case decided to add another layer to the standard, wherein they also considered comments made in the absence of pending litigation, as contemptuous. It therefore begs the question: When can a persons comments, be considered improper? There is no fixed benchmark as to gauge whether a comment is contemptuous or not. In Zaldivar v. Sandiganbayan10, the court discussed the use of the respondent of the balance of interest test and the clear and present danger test, to which the Court then measured the comments made by the public officer, in which they found that the actions and statements of the respondent did not justify the application of the said test. This is an acknowledgement of the fact that the right to free speech is not absolute. Mr. Agpalo11, in his book made this even clearer as regards to lawyers. In his book he said: 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 spill over the walls of decency and propriety. , with this analysis, it can be concluded that, criticism in good faith is not punishable. With the allowance of criticism in good faith, personalities in Media, journalists in particular, and members of the Bar, are the usual group of people who are entangled with the problem of disrespectful criticism or criticism in bad faith. The Court as mentioned above; does not take offense to criticisms directed against them, as long as it meets the standards, to ensure that the Court does not suffer from loss of credibility and confidence. Media personalities are stuck in between the need for them to report the facts and make public officials accountable and the need for the Court to protect its integrity. The issue with this setup is; it is the Court that decides whether it is affronted by the criticisms made by the journalists. Lawyers on the other hand are held bound by their solemn oath to observe and maintain the respect due to the courts and judicial officers, and this mandate extends to the instance that the lawyer is aggrieved by the judicial officer that he is to give due respect. The Court in trying to temper the nature of criticisms that ails it, threads on very dangerous grounds. The Court does not desire to violate or abridge the constitutionally guaranteed right to free speech, in its desire to preserve its integrity. In Zaldivar v. Sandiganbayan12 the Court held that the restriction on free speech of a person is allowable when it said: What is at stake here is the authority of the Supreme Court to confront and prevent a substantial evil consisting not only of the obstruction of a free and fair hearing of a particular case but also the avoidance of the broader evil of the degradation of the judicial system of a
Zaldivar v. Sandiganbayan, G.R. 79690-707, February 1, 1989 Agpalo, R. LEGAL AND JUDICIAL ETHICS 171 (7TH Ed., 2002) 12 Zaldivar v. Sandiganbayan, G.R. 79690-707, February 1, 1989
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country and the destruction of the standards of professional conduct required from the members of the bar and officers of the courts. As was shown in the highlighted cases, it can be fairly difficult to ascertain whether one is within the limits prescribed or not, as it is the Court that determines whether a criticism is proper or not. The inherent difficulty that comes with trying to criticize the Court has the indirect effect of stifling the discussion. There is nothing wrong with prohibiting discussion with regard to pending matters, but for everything else it should be fair game. The Court cannot use the excuse of danger of losing integrity as a reason to mute any talk of wrong doing. Good faith criticism in theory is a good tool to continue to allow discussion as regards the actuations of the Court, in fact in the United States, this is the norm. Public officials are open to criticism as long as they meet the threshold requirement, in New York Times v. Sullivan13 A public official sued a newspaper on the premise that the allegations published were false and unfounded. The United States Supreme Court held that actual malice must be proven in order that damages must be awarded. The only issue with regard to this is that the institution tasked to determine the above, is the Supreme Court itself. It is the institution that is the subject of criticism and for it to seek redress for a supposed affront to its integrity, it merely needs to turn to itself; in the Court is the victim, prosecutor and judge, when it comes to issues that relate to criticizing the Supreme Court.

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NEW YORK TIMES V. SULLIVAN, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964)