Transcript
Page 1: When a Protest Letter on the Night Court Becomes a Violation of New Code of Judicial Conduct?

WHEN A PROTEST LETTER ON THE NIGHT COURT BECOMES A VIOLATION OF NEW CODE OF JUDICIAL CONDUCT?

BY JUDGE ELIZA B. YU, LLM, DCL

Court Administrator “D” initiated an administrative complaint against Judge “A” for writing a protest letter about the night court operation in X City questioning its legality, rationality and productivity. Judges, like any other citizen in this country, have the constitutionally - enshrined freedom of speech and expression. However, there is a difference between freedom of expression and compromising the dignity of the Court through written or published emotional outbursts and destructive criticisms. From the standpoint of conduct and demeanor expected of a judge, resort to extreme and intemperate language only detracts from the respect due a member of the judiciary and becomes self-destructive. In the letter to Secretary of Tourism, Judge “A” disparaged the establishment of night courts in a manner which is critical, defiant and scathing, fully aware that the order which she is defying is an administrative order issued by no less than the Chief Justice himself. To quote the subject letter of Judge “A”:

XXX XXX XXX

This Court learned that you requested for the designation of night courts in X City that resulted to the issuance of Administrative Order No. 0 - 123 (Establishing Night Courts in the Metropolitan Trial Courts of X City and Y City).

With due respect, there is insufficient basis for your request. There was no statistical data presented or there was no study conducted by your department recommending the necessity of establishing night courts in X City. For the record, this Court is yet to hear a case involving any tourist. Moreover, the tourists should be advised not to roam around the city at night so as not to be victims of various crimes. Usually, the perception of the tourists who are going around the city at night is negative, for they are likely to be engaging in unlawful nocturnal activities. They are at their own risk at night.

There was no prior consultation with the police officers, public attorneys, public prosecutors, judges and their staff before your department requested for the creation of night courts in X City.

There are many concerns which your department did not consider.

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First, some of the rights of the accused who were charged with cases covered by the Summary Procedure are impaired by the operation of night courts. The 1991 Revised Rule on Summary Procedure provides the procedure to be followed in commencing a criminal action. Under Section 12 thereof, it states: " xxx (b) If commenced by information . - When the case is commenced by information , or is not dismissed pursuant to the next preceding paragraph, the court shall issue an order which, together with copies of the affidavits and other evidence submitted by the prosecution, shall require the accused to submit his counter-affidavit and the affidavits of his witnesses as well as any evidence in his behalf, serving copies to the complainant or prosecutor not later than ten (10) days from receipt of said order. The prosecution, may reply affidavits within ten (10) days after receipt of the counter-affidavits of the defense. In view of this, the accused cannot be immediately arraigned on the same day,' of his arrest at night. Neither can this Court order the arrest of the accused for the purpose of his arraignment at night. Section 16 of the same Rule declares:" The Court shall not order the arrest of the accused except for failure to appear whenever required. Release of the person arrested shall be either on bail or on recognizance by responsible citizen acceptable to the court." Neither can the police officers apprehend and detain the accused charged with cases covered by the Rule on Summary Procedure for the sole purpose of attending the hearing at night by the court without being liable for Arbitrary Detention under Article 124 of the Revised Penal Code. Said article provides the penalty of arresto mayor in its maximum period ( 4 months and 1 day to 6 months) to prision correctional in its minimum period (6 months and 1 day to 2 years and 4 months) of imprisonment, if the detention shall not exceed in three (3) days, committed by a police officer or employee who detains a person without any legal ground. There is no legal basis to detain the accused by the police officer at night before the night court opens to hear the cases because the accused is not required to post bail at all.

The night inquest without the corresponding release of the accused charged with cases covered by the Rule on Summary Procedure is questionable exposing the public prosecutor to criminal and administrative liabilities. Inquest is an informal and summary investigation conducted by a public prosecutor in criminal cases involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether or not said persons should remain under custody and correspondingly be charged in court (Section 1, DOJ Circular No. 61 , September 21, 1993). The inquest prosecutor determines the legality of the warrantless arrest of an arrested and detained person. When the warrantless arrest was improperly made, the inquest prosecutor shall, among others, recommend the release of the arrested and detained person. On the other hand, when the warrantless arrest was properly made, the inquest prosecutor shall inform the arrested and detained person if he wants to avail a preliminary investigation, in which case, he shall execute a waiver of the provisions of Article 125 of the Revised Penal Code. If the said arrested and detained person did not

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avail a preliminary investigation or did not execute a waiver, the inquest prosecutor shall proceed with the inquest. If the inquest prosecutor finds probable cause, he shall prepare the information which shall indicate the offense committed and the amount of bail recommended, if bailable. Under the 1985 Rules on Criminal Procedure Court effective January 1, 1985 as amended in 1988 and October 1, 1994, Rule 113, Section 5. Arrest without warrant; when lawful - "A peace officer or a private person may, without a warrant, arrest a person: (a) when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c ) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with Rule 112, Section 7." When a person is lawfully arrested without a warrant for an offense cognizable by the Regional Trial Court the complaint or information may be filed by the offended party, peace officer or fiscal without a preliminary investigation having been first conducted, on the basis of the affidavit of the offended party or arresting officer or person. However, before the filing of such complaint or information, the person arrested may ask for a preliminary investigation by a proper officer in accordance with this Rule, but must sign a waiver of the provisions of Article 125 of the Revised Penal Code as amended (Section 7, Rule 112, 1985 Rules on Criminal Procedure Court effective January 1, 1985 as amended in 1988 and October 1, 1994).

Under the Old Rule, it is silent as to the person arrested without warrant for an offense cognizable by the Metropolitan Trial Court or first level courts. Thus, it necessarily follows that inquest can be conducted only on cases cognizable by the Regional Trial Court. The Rules on Criminal Procedure was amended in 2000. The provision of Rule 112, section 11 was also amended which read as follows: "When a person is lawfully arrested without a warrant involving an offense which requires a preliminary investigation, the complaint or information may be filed by a prosecutor without need of such investigation provided an inquest has been conducted in accordance with existing rules, xxx Before the complaint or information is filed, the person arrested may ask for a preliminary , investigation in accordance with this Rule, but he may sign a waiver of the provisions of Article 125 of the Revised Penal Code, xxx After the filing of the complaint or information in court without a preliminary investigation, the accused may, within five (5) days from the time he learns of its filing, ask for preliminary investigation with the same right to adduce evidence in his defense as provided in this rule." What are the cases subject to preliminary investigation under the New Rule? The answer is in Rule 112, Section 1 that states:" a preliminary

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investigation is required to be conducted before the filing of a complaint or information for an offense where the penalty prescribed by law is at least four (4) years, two (2) months and one (1) day without regard to the fine. "Under the Old Rule, the offense covered is six (6) years or more. Thus, now the inquest can be conducted only where the penalty is four (4) years, two (2) months and one (1) day and above. Thus, the public prosecutors cannot conduct inquest of the night arrests of the suspected criminals because the penalty involved in cases covered by the Rule on Summary Procedure is not more than six (6) months.

Second, night courts in W City and Z City are criticized for being ineffective and non-functional, in W City, when I was a public prosecutor, I questioned as to the legality of the detention of the accused being arraigned at night for violation of ordinances. When I was not given any legal justification, I requested to be relieved from night court. My experience showed that night court is a waste of time for all. The cases tried at night court can be tried during day time without burdening the three (3) pillars of our criminal justice system. For example, in W City, the crime suspected was arrested at 3:00 p.m. for illegal vending, and information against him was filed at 4:00 p.m. at court. The police officer detains the accused from 4:00 p.m. to 7:00 p.m. or until such when the night court opens. If it opens at 7:30 p.m., there is arraignment of the accused. Usually, the accused enters a plea of guilty because there is only a fine of P200. If the accused refuses to enter into a plea of guilty, his case will be calendared in a regular day. As a public prosecutor, I witnessed only around two (2) to three (3) calendared cases by the night court, and the arraignment lasts for only few minutes. Then we all go home. This is a clear violation of the directive to stay in court from 4:00 p.m. to 11:00 p.m. In fact, it is a matter of few hours from night to day when an accused case can be tried by the same court, the police officer should have waited for day time to file the information and bring the accused for arraignment in court during day time instead of night time. There are no tourist crimes tried by the night court when I was a Manila public prosecutor assigned there. The cases tried are violation of city ordinances , mostly on illegal vending in the night courts. I heard that these cases were filed for money making scheme by the police officers. From the information gathered, only those accused who did not give them money were arrested, detained and brought to the night courts.

Third, there is a grave violation of the right of government employees against long and extended period of work with no additional pay at night. This is a form of exploitation of workers whose rights are enshrined under the Constitution. It bears pointing out that additional compensation for night time work is founded on public policy (Mercury Drug Co., Inc. vs. Dayao, G.R. No. L30452, September 30, 1982, 117 SCRA 99, 114; Article 6, New Civil Code). Working at night is violative of the law of nature for it is the period for rest and sleep. An employee who works at night has less stamina and vigor. Thus, he can easily contract disease. The lack of sunlight tends to produce anemia and

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tuberculosis and predispose him to other ills. Night work brings increased liability to eyestrain and accident (Association of International Shipping Lines, Inc et al. vs. United Harbor Pilots' Association of the Phils. Inc., G.R. No. 172029, August 06, 2008). Serious moral dangers also are likely to result from the necessity of traveling the street alone at night, and from the interference with normal home life (Shell Company vs. National Labor Union, 81 Phil. 315, 328 (1948), citing Commons and Andrews, Principles of Labor Legislation, 4th rev. ed., p. 142). Hygienic, medical, moral, cultural and socio-biological reasons are in accord that night work has many inconveniences and when there is no alternative but to perform it, it is but just that the laborer should earn greater salary than ordinary work so as to compensate the laborer to some extent for the said inconveniences (Poquiz, Labor Standards Law with Notes and Comments, 1999 ed., pp. 176-177, citing Barbash, The Practice of Unionism, p. 145). Why is a laborer or employee who works beyond the regular hours of work entitled to extra compensation called in this enlightened time, overtime pay? Verily, there can be no other reason than that he is made to work longer than what is commensurate with his agreed compensation for the statutorily fixed or voluntarily agreed hours of labor he is supposed to do. When he thus spends additional time to his work, the effect upon him is multi-faceted: he puts in more effort, physical and/or mental; he is delayed in going home to his family to enjoy the comforts thereof; he might have no time for relaxation, amusement or sports; he might miss important pre-arranged engagements; It is thus the additional work, labor or service employed and the adverse effects just mentioned of his longer stay in his place of work that justify and is the real reason for the extra compensation that he called overtime pay. Overtime work is actually the lengthening of hours developed to the interests of the employer and the requirements of his enterprise. It follows that the wage or salary to be received must likewise be increased, and more than that, a special additional amount must be added to serve either as encouragement or inducement or to make up for the things he loses which we have already referred to. And on this score, it must always be borne in mind that wage is indisputably intended as payment for work done or services rendered (Philippine National Bank vs. Philippine National Bank Employees Association (PEMA), G.R, No. L- 30279, July 30, 1982, 115 SCRA 507). The creation of night courts is violative of Section 278 and 283 Chapter 4, Volume I, Government Accounting and Auditing Manual, providing as follows: "Sec 278. Authority to render overtime service. - In general, rendition of overtime services may only be authorized where the work or activity has to be completed on a fixed date and the scheduled date of completion cannot be met within regular work days and hours; or where although there is no fixed date of completion, the prolonged delay in, or non-completion of the work or activity, shall: a. Cause financial loss to the government or its instrumentalities; b. Embarrass the government due to its inability to meet its commitments; or c. Negate the purposes of which the work or activity was conceived."

Fourth, it is very burdensome to attend the court at night. For instance, our Court hears cases from 8:30 a.m. to 11:30 a.m. daily from Monday to Thursday. It is very tiring for

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the public prosecutor and public attorney, not to mention for the judge and the entire court staff, to attend the night court from 4:30 p.m. to 11:00 p.m. after attending the tedious hearing in the morning, only to attend the exhausting hearing on the following day, without additional pay. Also, no witnesses will attend the hearing during the night court because of the dangers lurking at night, not to mention that night time is a period for rest and sleep. If subpoena is needed to compel attendance of the witnesses at night, this causes delay in the speedy hearing of cases because of difficulty of securing their presence at night. It is a better alternative to hear the cases scheduled at night to be heard in the morning. What more, if there are no cases filed at night to be heard by the night court, it is ridiculous for the judge, public prosecutor, public attorney and the entire court staff to merely stay there, eat dinner there, which means additional expenses, and then go home not doing anything productive at the night court. Please be informed that our Supreme Court created before courts that exclusively hear extrajudicial killings of media men, later on, the law creating them was revoked, because no cases are filed in these courts. This is similar with the night courts to be established in X City, as there are no tourist crimes reported, and, the accused will be objecting to their inquest by the public prosecutors and their detention by the police officers at night, later on, these night courts will be permanently closed for non-attainment of the objectives they are created.

Fifth, it is risky to work at night because of lack of security. Most of the staff of this Court live far away from X City. There is a danger of being held up at night or carjacked at night. A judge can be an easy target for a murder plot at night by any litigant who has grudge for the sentence or decision rendered by the court. The police security is up to court hearing only. Outside the court premises, there is no more police security.

Lastly, the establishment of night courts in X City will not unclog a court's criminal docket. The situation in W City and Z City are not similar with X City. A study of the X Metropolitan Trial Courts dockets reveals the big difference of the cases filed compared to other cities in the National Capital Region. Most of the cases in X Metropolitan Trial Courts are Theft and BP No. 22. These cases entail a full blown trial because almost all of the accused refuse to enter into plea bargaining. In W Metropolitan Trial Courts, majority of the accused pay the fine for the violation of ordinances not involving any tourist crime during the night court hearing. Also, a study must be conducted by your department, if necessary, about the effectiveness of, night courts in W City and Z City, and if these night courts are attaining the purposes they were created. If not, there is no reason to request for the establishment of a night court or tourism court here in X City. Another thing, there is an uneven assignment of judges alone to the night court. For example, In W City, there are thirty (30) judges, thus there is once a month night court assignment by a judge there. But what is actually happening, lady judges are not attending the night court as they give their respective assignment to some male judges,

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notably to Judge “B”. This is a disobedience to Administrative Order No. 234, predecessor of Administrative Order No. 123.

I hope you find merit with this letter. May your department reconsider your request for the establishment of night courts in X City. With due respect, it will be appreciated if your department will give additional compensation and provide police security to the judges, public prosecutors, public attorneys and the entire court staff, if it insist of establishing night courts here without conducting any study.

Looking forward to hear from your department about these concerns.

XXX XXX XXX

Oddly enough, in winding up her fiery and spirited discourse against the establishment of night courts in X City, Judge “A” made a somewhat startling, albeit puzzling request to Secretary of Tourism:

XXX XXX XXX

With due respect, it will be appreciated if your department will give additional compensation and provide police security to the judges, public prosecutors, public attorneys and the entire court staff if it insists of establishing night courts here without conducting any study.

XXX XXX XXX

Judge “A” described the creation of night courts as “ineffective and non-functional”, “a waste of time for all”, and “a form of exploitation of workers”, among others. In belittling the night courts established by the Supreme Court, Judge “A” went beyond the norms of decency and decorum expected of her as a magistrate and denigrated the wisdom and judiciousness of the Supreme Court, in the process violating Section 6, Canon 4 of the New Code of Judicial Conduct for the Philippine Judiciary which provides: Judges, like any other citizen, are entitled to freedom of expression, belief, association and assembly, but in exercising such rights, they shall always conduct themselves in such a manner as to preserve the dignity of the judicial office and the impartiality and independence of the Judiciary. Those who don the judicial robe are expected to be restrained and sober in their speech. Restraint is, in fact, a trait desirable to those who dispense justice. Indeed, a judge’s language, both written and spoken, must be guarded and measured lest the best of intentions be misconstrued.

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In the case at bar, Judge “A” did not hide her criticism and dissatisfaction over the issuance of A.O. No. 0-123. On the very same date she received a copy of the said order, she immediately wrote the Court Administrator “D” (copy furnished the Station Investigation and Detective management Section [SIDMS] of the X City Police Station) expressing her disapproval of the establishment of night courts, particularly in X City. Moreover, she wrote Secretary “C” of the Department of Tourism (DOT) expressing her strong dissent vis-à-vis the night courts and even pointing out matters which the DOT allegedly failed to consider when it made the request for night courts.

Worse, she even had the temerity to demonstrate her criticisms and insubordination outside the mantle of the judiciary by expressing her impertinence before the agencies of a separate branch of government (i.e. the Philippine National Police [PNP] and the Department of Tourism, both under the Executive Branch). While members of the judiciary are not deprived of the prerogative to voice out their contrary opinions and sentiments on issues which they believe affect their functions as magistrates, they must always bear in mind that, being esteemed members of the bench, they have the duty to maintain and observe the so-called proper chain of command in the judiciary, exclusive of any outside interference or intrusion. Simply put, judges in any matter related to the performance of their functions as such, should bring their views, thoughts and grievances solely and exclusively before their superior – the Supreme Court.

In the instant matter, while Judge “A” indeed addressed her concerns [anent the night courts] to Court Administrator “D” in her protest letter, nonetheless she also took it upon herself to furnish a copy thereof to the SIDMS of the X City Police Station, knowing fully well that the PNP- X City is not privy to the establishment of night courts. Worse, her views on the purported liability under the Rule on Summary Procedure undeniably created confusion among the officials of SIDMS. Without doubt, in lettering a non-judicial entity [like the SIDMS- X City] respondent on an issue that should have been exclusively addressed to, and resolved by the Court through the Court Administrator “D”, misunderstanding is likely to arise.

Moreover, bringing her so called “concerns” to an outside authority like the Secretary “C” of the Department of Tourism, for whatever agenda or purpose she may have had, in totally unwarranted and uncalled for. Like a double-edged sword, Judge “A”s action had cut both ways, undermined the authority and supremacy, and besmirched the dignity and integrity of the Supreme Court and at the same time, challenged the circumspection, prudence, wisdom and judgment of a distinct and separate agency of government.

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By complaining before the Secretary of Tourism regarding the establishment of night courts in X City, Judge “A” had cast aspersion on the ability of the Supreme Court to order and implement programs in the judiciary intended to deliver a speedy administration of justice. In the same manner, she likewise exhibited acts of impertinence when she practically accused Secretary “C” of incompetence and inefficacy for requesting the establishment of night courts in X City without any sufficient ground or basis at all. Unmistakably, Judge “A” committed acts of disrespect and contempt not only against the Supreme Court but also against the Secretary of the Department of Tourism. What is more, after lambasting the creation of night courts, Judge “A” shamelessly asked Secretary “C” for additional compensation and police security for the judges, public prosecutors, public attorneys and court personal, if the latter insists in establishing night courts [in X City] without conducting any study. Such act is inexcusable and improper, especially considering that she is asking for additional compensation (albeit not for herself alone but for all judges, prosecutors, public attorneys and court personal of X City) from an institution which is not her employer. If she were really serious in asking for additional benefits for those who would be working in the night courts, she should have coursed her request to the Supreme Court through the Court Administrator, and not from other agencies or instrumentalities of the government which are not in apposition to grant such demands.

Although every office in the government service is a public trust, no position exacts a greater demand on moral righteousness and uprightness of an individual than a seat in the judiciary. A magistrate of the law must comport himself at all times in such a manner that his conduct, official or otherwise, can bear the most searching scrutiny of the public that looks up to him as the epitome of integrity and justice.

In a similar complaint filed by four Judges and seventy court employees earlier against Judge “A”, they argued that the protest letter denigrated the Office of the Chief Justice and the Office of the Court Administrator on the night court order issuance and implementation. The protest letter resulted into confusion among the policemen in X City.

Did Judge “A” commit violation of Code of Judicial Conduct in writing a protest letter on night court? The answer is in the negative.

This is administrative case is about mind set, that the letter of protest of Judge “A” will be offensive to others yet not to some others, typical in a democratic country. To quote American patriot Patrick Henry’s speech on March 23, 1775: “But different men often see the same subject in different lights; and, therefore, I hope it will not be thought disrespectful to those gentlemen if, entertaining as I do opinions of a character very opposite to theirs, I shall speak forth my sentiments freely and without reserve. This is

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no time for ceremony. The questing before the House is one of awful moment to this country. For my own part, I consider it as nothing less than a question of freedom or slavery; and in proportion to the magnitude of the subject ought to be the freedom of the debate. It is only in this way that we can hope to arrive at truth, and fulfill the great responsibility which we hold to God and our country. Should I keep back my opinions at such a time, through fear of giving offense, I should consider myself as guilty of treason towards my country, and of an act of disloyalty toward the Majesty of Heaven, which I revere above all earthly kings.” He valiantly ended with these words: “Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!”

Rather than forcibly silencing, if not removing from government service a known protestant to night court like Judge “A”, it should have been more prudent and wiser for Court Administrator “D”, four judges and seventy court employees to submit the complete study and report about the effectiveness of the night courts in the National Region, particularly in X City Hall of Justice. Based from Judge “A”s personal experience, night court duties unduly burden the judges and court personnel as well as the other government employees from the other pillars of our criminal justice system without attaining the purposes the night court was created thus the subject administrative order requires immediate attention to prevent grave and irreparable damage and injury to the involved government employees whose rights guaranteed by the Constitution are unprotected, if not trampled.

Judge “A’ respects their low opinion of her as a magistrate who seemed not to be entitled to a right to protest that is inherent in every court in this democratic country. Court Administrator “D”, four Judges and seventy court employees can criticize the protest letter on night court because what Judge “A’ did in writing it copy furnished to the concerned offices which are the Department of Tourism and police station of X City is an official conduct. Judge “A’ will be directly affected by the implementation of Administrative Order No. 0-123 and to follow an order that was perceived to be wrong is in contravention to oath of office that Judges must be faithful to the Constitution and the laws of the land.

There is saying in sports that “attack is the best form of defense”, this should not be applied in the judiciary because we are not engaging in games in the night court protest of Judge “A”. Unlike in sports playing, what is stake here is a matter of transcendental importance that affects the public interest not only judges and court employees.

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In our democratic country, protests and dissents are welcomed and encouraged. After all, the Supreme Court is a market place of ideas. In our country’s painful history that during martial law, protesters and dissenters of the government are either jailed or killed. This is not anymore the case today with the birth of the 1987 Philippine Constitution. Judge “A”s protest to night court is supported by Article III, of the same Constitution: “Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.” The protest letter on night court is also supported by Section 11, Article II, 1987 Constitution that the State values the dignity of every human person and guarantees full respect for human rights.

Why Judge “A” is entitled to this constitutional right to protest is to remind Court Administrator “D” , four Judges and seventy court employees as complainants that our country, the Philippines, is a Republican and Democratic State. This is clear under Article II, Section 1, 1987 Constitution: “The Philippines is a Democratic and Republican State. Sovereignty resides in the people and all government authority emanates from them.” By Doctrine of Incorporation in Article II, Section 2, 1987 Constitution, we all enjoy the rights in Article 19 of the International Covenant on Civil and Political Rights that:

1. Everyone shall have the right to hold opinions without interference; and

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

Our national hero Dr. Jose P. Rizal wrote in the Letter to the Young Women of Malolos (22 February 1889) that “The tyranny of some is possible only through the cowardice of others.” It was he who declared that “There are no tyrants where there are no slaves.”

The U.S. Constitution and jurisprudences are very supportive to the protest letter on night court of Judge “A” before the Philippine Supreme Court because right to protest is one of the bedrocks of democracy. Thomas Jefferson, an American Founding Father, the principal author of the Declaration of Independence and third President of the United States, wrote in The Declaration of Independence, to quote portion of it: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any

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Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed.”

The following legal reasons presented by Judge “A” amplify the protection of the protest letter on night court that will not give rise to any administrative liability:

(1) The Doctrine of Supremacy of the Constitution

This is a doctrine where the Constitution is supreme of all the laws of the land and the government rules in accordance to the Constitution for the rule of law to prevail and the rule of tyranny to disappear. The powers of the government are limited by the Bill of Rights. According to former Justice Jose Vitug, “The Constitution is the written manifestation of the sovereign will of the people. It is the yardstick upon which every act of governance is tested and measured.”

In Manila Hotel vs. GSIS et al., G.R. No. 122156, February 3, 1997, a Constitution is a system of fundamental laws for the governance and administration of a nation. It is supreme, imperious, absolute and unalterable except by the authority from which it emanates. It has been defined as the fundamental and paramount law of the nation. It prescribes the permanent framework of a system of government, assigns to the different departments their respective powers and duties, and establishes certain fixed principles on which government is founded. The fundamental conception in other words is that it is a supreme law to which all other laws must conform and in accordance with which all private rights must be determined and all public authority administered. Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the constitution that law or contract whether promulgated by the legislative or by the executive branch or entered into by private persons for private purposes is null and void and without any force and effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed written in every statute and contract.

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And so we have Civil Law principles that “When the courts declared a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution.”

The right to protest is part of the freedom of speech clause of our Constitution. Corollary, the Doctrine of the Supremacy of the Constitution is extended to it. This qualitative significance arises from the fact that it is a matrix of nearly other freedom. It ranks higher than property in the hierarchy of constitutional rights. The great glory of democracy is the right to protest. It is supreme from all other laws of the country. It is a right guaranteed by the Constitution so it is a constitutionally protected right. Meaning, it is exempt from any form of interference and restriction from anyone albeit subject to few limitations imposed by the State in the exercise of its inherent police power. It is believed that if our freedom of speech is abridged or muffled by our government authorities, it will rob our people of other liberties, more importantly prevent them from complaining and voicing grievances which are antagonistic to every democratic society. Thus, we have this in Article 31 of the New Civil Code to prove the right to protest as part of freedom of speech is a Constitutional guarantee that is an actionable wrong when violated: Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages:

(1) Freedom of religion;

(2) Freedom of speech;

(3) Freedom to write for the press or to maintain a periodical publication;

(4) Freedom from arbitrary or illegal detention;

(5) Freedom of suffrage;

(6) The right against deprivation of property without due process of law;

(7) The right to a just compensation when private property is taken for public use;

(8) The right to the equal protection of the laws;

(9) The right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures;

(10) The liberty of abode and of changing the same;

(11) The privacy of communication and correspondence;

(12) The right to become a member of associations or societies for purposes not contrary to law;

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(13) The right to take part in a peaceable assembly to petition the government for redress of grievances;

(14) The right to be free from involuntary servitude in any form;

(15) The right of the accused against excessive bail;

(16) The right of the accused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witness in his behalf;

(17) Freedom from being compelled to be a witness against one's self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a State witness;

(18) Freedom from excessive fines, or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; and

(19) Freedom of access to the courts.

Moreover, the above enumerated constitutional provisions which are found in Article III, Section 4 of the 1987 Constitution enjoy superiority and take precedence over all other laws of our country. When the application of Administrative Code, Civil Service Rules and Regulations and the New Code of Judicial Conduct threaten, impair and defeat the provisions of the Constitution, clearly it is an actionable wrong. It is a culpable violation of the Constitution. The act is declared as unconstitutional. The nature of the act that is contrary to the Constitution is null and void. This concept is derived in applying by analogy the brief treatise made by former Justice Isagani A. Cruz, whose words were quoted in Republic vs. CA et al., G.R. No. 79732 November 8, 1993 —

“There are two views on the effects of a declaration of the unconstitutionality of a statute.

The first is the orthodox view. Under this rule, as announced in Norton v. Shelby, an unconstitutional act is not a law; it confers no right; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, inoperative, as if it had not been passed. It is therefore stricken from the statute books and considered never to have existed at all. Not only the parties but all persons are bound by the declaration of

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unconstitutionality, which means that no one may thereafter invoke it nor may the courts be permitted to apply it in subsequent cases. It is, in other words, a total nullity.

The second or modern view is less stringent. Under this view, the court in passing upon the question of constitutionality does not annul or repeal the statute if it finds it in conflict with the Constitution. It simply refuses to recognize it and determines the rights of the parties just as if such statute had no existence. The court may give its reasons for ignoring or disregarding the law, but the decision affects the parties only and there is no judgment against the statute. The opinion or reasons of the court may operate as a precedent for the determination of other similar cases, but it does not strike the statute from the statute books; it does not repeal, supersede, revoke, or annul the statute. The parties to the suit are concluded by the judgment, but no one else is bound.

The orthodox view is expressed in Article 7 of the Civil Code, providing that "when the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern.”

There are two (2) aspects of freedom of speech, one is freedom from prior restraint or censorship and the other is freedom from subsequent punishment.

Former Justice Antonio Eduardo Nachura wrote that without the assurance of freedom from subsequent punishment, the individual would hesitate to speak for fear that he might be held accountable for his speech or that he may be provoking the vengeance of the officials he may have criticized. On the other hand, Acting Chief Justice Antonio Carpio said that “the freedom of expression clause is precisely a guarantee against both prior restraint and subsequent punishment. It protects from any undue interference by the government the people's right to freely speak their minds. The guarantee rests on the principle that freedom of expression is essential to a functioning democracy and suppression of expression leads to authoritarianism.”

The protest letter about the night court became the basis of the administrative charges of Insubordination, Gross Misconduct and violation of New Code of Judicial Conduct against Judge “A” in this administrative matter. In applying the basic precepts underlying the Freedom of Speech Clause in our Constitution, there was an attempt to infringe the right to free speech guaranteed and protected by the Constitution before the Supreme Court Justices upon the recommendation by the Court Administrator “D” that Judge “A” be penalized for writing and submitting to it a letter of protest to the night court. Judge “A” as the writer of the protest latter was threatened to be subjected to administrative penalties, one of which is removal from public service. In Judge “A’s humble opinion, this is an unjustified interference of one of her cherished freedoms, not only in our

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Constitution but under the Universal Declaration of Human Rights recognizing the disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people. It is guaranteed universally that “ Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” The implication of this universally protected human right is that when Judge “A” go to other Republican and Democratic countries like the United States of America, where almost all of our laws and jurisprudences are patterned from, “Judge “A” and her protest letter will be immune from suits, yet it seemed to be different in our country, for here Judge “A” will be subjected to administrative liabilities for writing a protest letter involving public interest, and this is strange because our country is a Republican and Democratic country. This distinction is something is hard to understand. The legal philosophy behind this is leaning towards a Dictatorial country and firm adherence to the dictatorial principles. This is contrary to the democratic foundation where our Supreme Court was built for it to earn the title as “the last bastion of democracy”.

Court Administrator “D” acted dictatorial, if not undemocratic, in exposing Judge “A” to a possible subsequent punishment in writing a protest letter to the night court before the Your Honors of the High Court. This interference is both unlawful and unjustified. Unlawful because it contravenes the Constitution and statutes. Unjustified because there is no factual basis to interfere with the protest letter or no proof offered to curtail Judge “A”s right to protest. The protest letter to the night court is not a subversive material. It is not a libelous document. It is not an obscene literature. It did not incite lawless conduct. It did not contain fighting words that provoke physical or verbal retaliation.

In our country, there are three (3) tests for valid government interference to freedom of speech.

First is the Clear and Present Danger Rule which means that the evil consequence of the comment or utterance must be "extremely serious and the degree of imminence extremely high" before the utterance can be punished. The danger to be guarded against is the "substantive evil" sought to be prevented. And this evil is primarily the "disorderly and unfair administration of justice." According to former Justice Angelo Bautista, this test establishes a definite rule in constitutional law. It provides the criterion as to what words maybe published. Under this rule, the advocacy of ideas cannot constitutionally be abridged unless there is a clear and present danger that such

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advocacy will harm the administration of justice. This rule had its origin in Schenck vs. U. S. (249) U. S. 47), promulgated in 1919, and ever since it has afforded a practical guidance in a great variety of cases in which the scope of the constitutional protection of freedom of expression was put in issue.

Second is the Dangerous Tendency Rule has been adopted in cases where extreme difficulty is confronted determining where the freedom of expression ends and the right of courts to protect their independence begins. According to former Justice Angelo Bautista, there must be a remedy to borderline cases and the basic principle of this rule lies in that the freedom of speech and of the press, as well as the right to petition for redress of grievance, while guaranteed by the constitution, are not absolute. They are subject to restrictions and limitations, one of them being the protection of the courts against contempt (Gilbert vs. Minnesota, 254 U. S. 325). This rule may be epitomized as follows: If the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable. It is not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite persons to acts of force, violence or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil the utterance be to bring about the substantive evil which the legislative body seeks to prevent (Gitlow vs. New York, 268 U.S. 652).

Third is Balancing of Interest Test which requires a court to take conscious and detailed consideration of the interplay of interests observable in given situation or type of situation." In Soriano vs. Laguardia et al., G.R. No. 164785, April 29, 2009, Justice Presbitero Velasco Jr. borrowed its concept from Professor Kauper, rests on the theory that it is the court’s function in a case before it when it finds public interests served by legislation, on the one hand, and the free expression clause affected by it, on the other, to balance one against the other and arrive at a judgment where the greater weight shall be placed. If, on balance, it appears that the public interest served by restrictive legislation is of such nature that it outweighs the abridgment of freedom, then the court will find the legislation valid. In short, the balance-of-interests theory rests on the basis that constitutional freedoms are not absolute, not even those stated in the free speech and expression clause, and that they may be abridged to some extent to serve appropriate and important interests.

From the foregoing three (3) tests, the protest letter to night court of Judge “A” did not contain dangerous ideas or contemptuous thoughts or substantive evil, which our government represented by the Supreme Court as one of its branches through the Office of the Court Administrator, must interfere, suppress and punish.

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It is oft repeating that the right to protest is a perceived human right arising out of a number of recognized human rights. While no human rights instrument or national constitution grants the absolute right to protest, such a right to protest may be a manifestation of the right to freedom of assembly, the right to freedom of association, and the right to freedom of speech.

For example, the United States of America’s founders declared their independence on July 4, 1776, to break free of the tyranny of a nation that denied them the civil liberties that they believed all people were granted as a birthright. They reaffirmed that faith in independence from governmental tyranny with the ratification of the Bill of Rights in 1791. But Freedom cannot survive when those in power make exceptions.

Freedom of speech and freedom to protest are closely linked – free speech would mean nothing if there was no right to use public spaces to make your views known.

The rights to free speech and protest, along with the right to form and join associations or groups, are found in Articles 10 and 11 of the Human Rights Act. These rights can be limited by law to protect the interests of others, but only when the limitation is proportionate and necessary in a democratic society.

The human rights that are contained within this law are based on the articles of the European Convention on Human Rights. The Act ‘gives further effect’ to rights and freedoms guaranteed under the European Convention. What this actually means is that it does two things: (1) Judges must read and give effect to legislation (other laws) in a way which is compatible with the Convention rights; and (2) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2) Doctrine of Marketplace of Ideas

The protest letter to night court is protected by the Doctrine of Marketplace of Ideas.

The theory of marketplace of ideas has become an underpinning of American free speech law, and the interpretation of the clause of the First Amendment as Justice Oliver Wendell Holmes wrote in Abrams vs. United States, 250 U.S. 616 (1919), mere disagreement with speech is never enough to condemn it: political majorities should be content to put their faith in the marketplace of ideas, that their ideas will win out in the

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end, and if they don't, that they didn't deserve to in the first place. Thus, the marketplace of ideas confronts "bad speech" by offering the remedy of "good speech" and competition to cure it.

“The best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”

The rejection of the “Free Marketplace of Ideas” is committed by non-democratic states and their people.

“It is a hallmark of dictatorships that they tend to suppress free speech, as they fear that their ideas will not stand up in the marketplace of ideas, and can only survive with an administrative crutch, or by the forceful suppression of dissent. Dictatorships tend to fall.”

“Should the right to freedom of speech extend to extremely offensive opinions as well? For instance, should we protect the advocacy of employing genocide to solve problems of difficult-to-integrate ethnic minorities?

Should we allow someone to advocate in public that women should be barefoot and homebound? The answer is "Yes." The marketplace logic implies that any ideas having even the slightest redeeming social value should enjoy full protection. History has taught us again and again that the conventional wisdom of society often turns out to be wrong. The First Amendment's basic guarantee is that of freedom to advocate ideas, including unorthodox ideas, controversial ideas, and even ideas offensive to the prevailing climate of opinion. In regulating speech, the government should be neutral toward different ideas.”

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Justice Louis Brandeis offered a parallel and sometimes competing principle of First Amendment theory eight years later, when he articulated what might be called the purpose of the First Amendment in Whitney vs. California (1927):

“Those who won our independence believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile.”

Justice Louis Brandeis wanted to protect speech, not because it’s an absolute value or good for the soul, but because it’s essential for democracy and civic republicanism.

In turn, this doctrine of marketplace of ideas originated from 19th century English philosopher and political theorist John Stuart Mill who employs the metaphor of the “marketplace of ideas” to argue for free speech.

In his 1859 essay On Liberty, John Stuart Mill argues that free speech is crucial to the pursuit of truth, because discussion of different opinions serves to challenge and clarify beliefs:

“Complete liberty of contradicting and disproving our opinion, is the very condition which justifies us in assuming its truth for purposes of action; there must be discussion, to show how experience is to be interpreted. Wrong opinions and practices gradually yield to fact and argument: but facts and arguments, to produce any effect on the mind, must be brought before it.”

“Every opinion, has worth; if it is not true (something one can never be sure of), it serves to further illuminate and clarify the truth.”

“Minority opinions cannot be disregarded, no matter how unpopular they might be, or how absurd they might seem.”

Therefore, John Stuart Mill’s philosophy of free speech is to be described as a “marketplace of ideas” similar to an economic free market, the competition of ideas within an unrestricted public discourse allows the truth to prevail.

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In BidZirk, LLC, et al. v Philip J. Smith. C.A. No. 6:06-109-HMH (D.S.C. October 22, 2007): Schmidt alleges that Smith’s statements that Schmidt was a “yes man” who over promised and under delivered is defamation per se. The court has reviewed the article and the court finds that Smith’s statements about Schmidt are patently not defamatory. Smith stated in the article as follows: From the beginning . . . I could tell the owner was a yes man. Of course, I have to be honest . . . eBay is; in and of itself a yes man paradise. Many sellers over promise and under deliver. Although the owner seemed like a yes man . . . I had done my home work . . . he had owned an ecommerce B2B company called ChannelLinx. Tech savvy? Possibly . . . “ Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas. But there is no constitutional value in false statements of fact” (Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 [1974]). An alleged defamatory statement “must be provable as false before there can be liability under state defamation law” (Milkovich v. Lorain Journal Co., 497 U.S. 1, 19 [1990]). “Opinion statements, defamatory or otherwise, are not actionable unless they contain provably true or false factual connotations” ( Woodward v. Weiss, 932 F. Supp. 723, 726 [D.S.C. 1996]). The statement that “I could tell the owner was a yes man” is an opinion statement that cannot be characterized as true or false. The term “yes man” has different meanings to different people ( See McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir. 1987) finding that the term “scam” means different things to different people . . . and there is not a single usage in common phraseology. While some connotations of the word may encompass criminal behavior, others do not. The lack of precision makes the assertion ‘X is a scam’ incapable of being proven true or false” citing Lauderback v. Am. Broad. Cos., Inc., 741 F.2d 193, 196 (8th Cir. 1984), an insurance agent referred to as a “crook”. “Clearly, if the statement was not capable of being verified as false, there could be no liability for defamation” (Woodward, 932 F. Supp. at 726). Based on the foregoing, calling Schmidt a “yes man” cannot give rise to liability for defamation. Upon review of the content of the article, the court finds that Smith’s use of the BidZirk mark in the article was in the context of news reporting or news commentary. The article posted by Smith concerning the Plaintiffs is written for the purpose of conveying information to the public. In the four installments of the article, Smith describes his experience with BidZirk in great detail. The fact that Smith reports negatively about his experience with BidZirk does not dictate that the article’s function or intent was not news reporting or news commentary. There is no evidence that the sole purpose of the article was to denigrate BidZirk. Smith’s article was titled “Special Report: You Gotta Be Berserk to Use an eBay Listing Company! The Whole Story.” Smith plainly states at the beginning of the article as follows: “In this special report . . . I’ll be telling my detailed story of using such a company and relate how my selling Apple parts on eBay for 9 years has given me unique insight into this matter.” Smith further states that he has done research in preparation for his article as follows: This is my story as experienced by me personally. I have dealt with a company called BIDZIRK, in my home town. I have also visited

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several competitors. In doing extensive Google research, I have found that my problems are almost universal . . . but that only larger clients really complain. At the end, I will offer a checklist for you to use when choosing a listing company that includes questions you may not have thought of before. Smith’s article evidences his intent to report what he believed was a newsworthy story for consumers. Based on the foregoing, no genuine issues of material fact exist.

(3) Doctrine of Privileged Communications

The protest letter to night court is protected by the Doctrine of Privileged Communications.

In US vs. Bustos, G.R. No. L-12592, March 8, 1918, penned by Justice George Malcolm, the public policy, the welfare of society, and the orderly administration of government have demanded protection for public opinion. The inevitable and incontestable result has been the development and adoption of the doctrine of privilege.

The doctrine of privileged communications rests upon public policy, 'which looks to the free and unfettered administration of justice, though, as an incidental result, it may in some instances afford an immunity to the evil-disposed and malignant slanderer' (Abbott vs. National Bank of Commerce, Tacoma [1899], 175 U. S., 409, 411).

Privilege is classified as either absolute or qualified. With the first, we are not concerned. As to qualified privilege, it is as the words suggest a prima facie privilege which may be lost by proof of malice.

The rule is thus stated by Lord Campbell, C. J. A communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contained incriminatory matter which without this privilege would be slanderous and actionable.

A pertinent illustration of the application of qualified privilege is a complaint made in good faith and without malice in regard to the character or conduct of a public official when addressed to an officer or a board having some interest or duty in the matter. Even when the statements are found to be false, if there is probable cause for belief in their truthfulness and the charge is made in good faith, the mantle of privilege may still

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cover the mistake of the individual. But the statements must be made under an honest sense of duty; a self-seeking motive is destructive. Personal injury is not necessary. All persons have an interest in the pure and efficient administration of justice and of public affairs. The duty under which a party is privileged is sufficient if it is social or moral in its nature and this person in good faith believes he is acting in pursuance thereof although in fact he is mistaken. The privilege is not defeated by the mere fact that the communication is made in intemperate terms. A further element of the law of privilege concerns the person to whom the complaint should be made. The rule is that if a party applies to the wrong person through some natural and honest mistake as to the respective functions of various officials such unintentional error will not take the case out of the privilege.

In the usual case malice can be presumed from defamatory words. Privilege destroys that presumption. The onus of proving malice then lies on the plaintiff. The plaintiff must bring home to the defendant the existence of malice as the true motive of his conduct. Falsehood and the absence of probable cause will amount to proof of malice.

A privileged communication should not be subjected to microscopic examination to discover grounds of malice or falsity. Such excessive scrutiny would defeat the protection which the law throws over privileged communications. The ultimate test is that of bona fides.

The criterion of bona fides was met in this administrative case because of absence of any evidence by the Office of the Court Administrator that there was mala fides in writing the protest letter by Judge “A” to the night court that was received by it and by the Office of the Chief Justice un-acted as to its legal merits except by an administrative complaint after more than a year.

(4)The Principle of Totality and the Spirit of the Letter

The protest letter should be read, analyzed and construed as to its entirety, wholeness or totality not by isolated parts. Because it will lose its true meaning if the construction is to focus only at those parts that may be objectionable to the officials of the Office of the

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Court Administrator, and to them only. This Principle of Totality is similar to statutory construction that the statute must be read as a whole, that its clauses and phrases are not detached and isolated expressions, but that each and every part must be considered in order to ascertain its meaning. It is to be interpreted as a “whole” and "one section is not to be allowed to defeat another." It is not in accord with fair play if there will dismemberment of the parts from the whole body of the protest letter in providing interpretation for it that will surely be inaccurate. In inaccuracy, there is a doubt to favor the dismissal of their administrative complaint against Judge “A”.

The intention of the writer of the protest letter must prevail in interpreting the protest letter and not what is the intention of the readers in construing it especially the glaring intention of Court Administrator “D” is to subject the protest writer to penalties. This intention is noble as can be gleaned in the comments submitted by Judge “A”. In the protest letter and the related letters, none can be found that the intention is to denigrate the Office of the Chief Justice and the Office of the Court Administrator. To conclude it that way, it is a very erroneous conclusion that is also a baseless conclusion. The Code of Professional Responsibility enjoins the lawyers to “observe and maintain the respect due to the courts and to judicial officers and to insist on similar conduct by others” and “not to attribute to a Judge motives not supported by the record or have materiality to the case.” The spirit of the law insures man’s survival and ennobles him. In the words of Shakespeare, "the letter of the law killeth; its spirit giveth life." It is not the letter alone but the spirit of the law also that gives it life.

(5) The Weight of Evidence and Burden of Proof

As the writer of the protest letter, the weight of Judge “A”s explanation is heavier compared with complaint of Court Administrator “D”, four Judges and seventy court employee as an evidence in her favor and as evidence against them. Judge “A’ is their hostile witness in this administrative matter. Therefore, they cannot prove Judge “A”s culpability beyond reasonable doubt, the quantum of proof required, in this administrative case, without her active and direct participation. The letter of protest is a hearsay for them because they have no personal knowledge, much more proof, about the allegations of their complaint against Judge “A”. To reiterate, allegations must be proven by sufficient evidence because mere allegation is definitely not evidence. Admissibility of evidence should not be equated with weight of evidence. Hearsay evidence whether objected to or not cannot be given credence for it has no probative value. It have been consistently held that: The failure of the defense counsel to object to the presentation of incompetent evidence, like hearsay evidence or evidence that violates the rule of res inter alios acta, or his failure to ask for the striking out of the same does not give such evidence any probative value. The lack of objection may make any incompetent evidence admissible. But admissibility of evidence should not be

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equated with weight of evidence. Hearsay evidence whether objected to or not has no probative value.

(6) The Doctrine of the Exercise of Judicial Restraint

This doctrine of the exercise of judicial restraint was derived from the principle of the exercise of the power of contempt. It was held that indeed, the power to declare a person in contempt of court serves to protect and preserve the dignity of the court, the solemnity of the proceedings therein and the administration of justice. But this must be wielded sparingly. For "this power should be exercised on the preservative and not on the vindictive principle. Only occasionally should the court invoke its inherent power in order to retain that respect without which the administration of justice must falter or fail."

Former Justice Conchita Carpio-Morales advocated this view when she expressed that, “It is not unusual that unsolicited suggestions and unconstructive criticisms, oftentimes fashioned in an ardent manner, finds their way into the Court’s sensibilities and sensitivities. Most recently, various groups have once again turned to media to air their advocacies in support of or in opposition to the contentious issues involved in the Hacienda Luisita case. A few months ago, at the height of the "CJ Appointment Issue" and during the pendency of the motion for reconsideration, a number of hard manifestos and harsh articles saw print, which were no less intense than this plagiarism issue. The Court cannot close its eyes to the fact that certain quarters even pushed for the early resignation of Chief Justice Puno to save the Court from resolving the issue, and of the other Justices to save face. But the Court did not lift its finger. What is so special with the present case that disconcerts the Court, drawing it to institute this case against professors of a particular law school? Unless the Court intends to busy itself into consistently engaging in a judicial witch hunt against its detractors, it is more in keeping with the Court’s dignity not to dignify each and every write-up that is taken to vilify it, and console itself with the number of testimonials, written or living, that vivify the judiciary. It has been insightfully explained and suggested that a judge will generally and wisely pass unnoticed any mere hasty and unguarded expression of passion, or at least pass it with simply a reproof. It is so that in every case where a judge decides for one party, he decides against another; and oftentimes both parties are beforehand equally confident and sanguine. The disappointment, therefore, is great, and it is not in human nature that there should be other than a bitter feeling, which often reaches to the judge as the cause of the supposed wrong. A judge, therefore, ought to be patient, and tolerate everything which appears as but the momentary outbreak of disappointment. A second thought will generally make a party ashamed of such outbreak, and the dignity of the court will suffer none by passing it in silence.”

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Justice Maria Lourdes Sereno shared the same opinion on this doctrine of the exercise of judicial restraint when she declared that “with all due respect to my colleagues, it is not the place of the Court to seek revenge against those who, in their wish to see reform in the judiciary, have the courage to say what is wrong with it. The Court finds its legitimacy in demonstrating its moral vein case after case, not in flaunting its judicial brawn. There is nothing to be gained for the administration of justice in not letting this one instance pass just because feelings have been hurt and the urge to retaliate must be satisfied. If the 37 members of the UP Law Faculty are wrong, there will be recompense in their loss of esteem among the academic community and the legal profession. But if they are right, then the Court will have made martyrs out of those who – in their temporary passion – may have acted recklessly but truthfully and sincerely. Indeed, should they be proven right, they may even rise in esteem in the eyes of international academic and legal circles, for being the object of prosecution by one’s Supreme Court for bold but intelligent reformist language can be deemed a badge of honor similar to that bequeathed by history to the great thinkers who were persecuted by society’s reactionary forces.”

In A.M. No. 10-7-17-SC, October 12, 2010, when Justice Mariano Del Castillo was charged with an administrative case that involves intellectual dishonesty, he was exonerated and his case dismissed because of absence of disreputable motives, with more reason in this administrative matter here before the Your Honors in High Court, Judge “A” was charged with an administrative case that involves intellectual honesty, with more reason Judge “A” should be exonerated and the administrative case in writing a protest letter on night court should be dismissed because of absence of disreputable motives, too. Judge “A” is entitled to the judicial liberality given to Justice Mariano Del Castillo. There must be no double standard of justice before Your Honors in High Court.

In A.M. No. 10-7-17-SC, October 12, 2010, Your Honors in High Court cite these cases that can be applied by analogy in this administrative matter, “Only errors that are tainted with fraud, corruption, or malice are subject of disciplinary action ( Atty. Alberto P. Quinto vs. Judge Gregorio S. Vios, Municipal Trial Court, Kapatagan, Lanao del Norte, A.M. No. MTJ-04-1551, May 21, 2004, 429 SCRA 1; Tolentino vs. Camano, Jr., A.M. No. RTJ 10-1522, January 20, 2000, 322 SCRA 559). This is not the case here. Justice Del Castillo’s acts or omissions were not shown to have been impelled by any of such disreputable motives (Daracan vs. Natividad, A.M. No. RTC-99-1447, September 27, 2000, 341 SCRA 161). If the rule were otherwise, no judge or justice, however competent, honest, or dedicated he may be, can ever hope to retire from the judiciary with an unblemished record (Guerrero vs. Villamor, A.M. No. RTJ-90-483, September 25, 1998, 296 SCRA 88; Tan vs. Adre, A.M. No. RTJ-05-1898, January 31, 2005, 450 SCRA 145).” Majority of Supreme Court Justices in the said case law observed nitpicking on the part of the complainants of Justice Mariano Del Castillo similar to this

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protest letter on night court case. There was witch hunting by Court Administrator “D” against Judge “A” in her protest letter on night court.

Court Administrator “D” must submit convincing proof that Judge “A” protested the night court in bad faith to remove her from government service. Like the liberality given to Justice Mariano Del Castillo, there is no showing in the Memorandum of Court Administrator “D” that Judge “A”s acts or omissions are impelled by any of such disreputable motives. Your Honors in High Court added that “They are hypocrites who believe that the courts should be as error-free as they themselves are.” Judge “A”s protest to night court could hardly be considered as an error because it was supported by laws and jurisprudences in addition with real life experiences when she was still a public prosecutor in W City. When Judge “A” then a public prosecutor relayed the legal concern on the illegality of the arrest and detention of suspects and accused in cases covered by the Summary Procedure in the night court to their City Prosecutor and Chief Inquest Prosecutor, they understood her and relieved her from night court duties. She wrote letter of protest to them that they acted favorably at the Office of the City W Prosecutor. The City Prosecutor and Chief Inquest Prosecutor of W City did not charge Judge “A” who was a public prosecutor before, for Insubordination and Gross Misconduct unlike what the Office of the Court Administrator did to her. Much is expected from Supreme Court Justices because they are the priests and priestesses of justice in our temple of justice. That is why, their address is Justice affixed before their respective name.

Court Administrator “D” failed to present proof that the protest letter to night court was ill-motivated when written and given to the Office of the Court Administrator, Office of the Chief Justice, Department of Tourism and SIDMS, police station of W City, the latter two (2) are stakeholders in the establishment of the night court thus these institutions deserve to be informed of the legitimate grounds of opposing it from Judge “A’, as a judge who is directly affected with its implementation without any study conducted and as a Filipino citizen who has a civic duty to do so, on behalf of the public whose interest is at stake, especially that government funds are disbursed for the night court operation that lacked legality, rationality and productivity. There are no law and jurisprudence that prohibit the writing of the protest letter to Office of the Court Administrator, Office of the Chief Justice, Department of Tourism and SIDMS, police station of W City thus there is no legal basis to penalize Judge “A” for doing it in the interest of the public.

There is no violation of the New Code of Judicial Conduct for writing a protest letter with words “ineffective and non-functional”, “a waste of time for all”, and “a form of exploitation for workers” among others because the words employed are constitutionally protected speech. These words should not be interpreted in isolation with other words

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Page 28: When a Protest Letter on the Night Court Becomes a Violation of New Code of Judicial Conduct?

and sentences in the whole protest letter, otherwise, they will lose their genuine meaning as employed in the protest letter. There is no proof presented by Court Administrator “D” that those words are intended to denigrate the Office of the Chief Justice and the Office of the Court Administrator. The words in the protest letter to the night court are reasonable that should not be sanctioned, otherwise, it is infringement of one’s constitutional right to free speech that will give rise to torts and damages under our New Civil Code.

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