Contempt and disciplinary actions

MANILA, Philippines—Many readers asked me why the Supreme Court could, even without a complaint from anyone, conduct contempt and disciplinary actions against 37 University of the Philippines law professors for merely expressing their opinion on a court decision.

Pained and aggrieved. The source of the controversy is a “Statement” of the 37 mentors calling “for the resignation of Justice Mariano C. Del Castillo in the face of allegations of plagiarism in his work.” To be precise, the Court required the faculty members to show cause “why they should not be disciplined as members of the Bar for violation of Canons 10, 11, and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility.” (Re: Letter of the UP Law Faculty, Oct. 19, 2010)

These Canons and Rules obligate lawyers to uphold the law and to “refrain from any impropriety which tends to influence or gives the appearance of influencing the court.”

Additionally, Dean Marvic Leonen was singled out for submitting to the Court “a dummy which is not a true and faithful reproduction of the purported statement.” He was directed to show cause “why he should not be disciplinarily dealt with for violation of Canon 10, Rules 10.01, 10.02 and 10.03,” which exhort lawyers “not to do any falsehood, nor consent to the doing of any in court…”

The Court felt aggrieved by the UP faculty’s denunciation of the its “decision in Vinuya vs. Executive Secretary (which on April 28, 2010 dismissed the petition of several comfort women) as a reprehensible act of dishonesty and misrepresentation by the Highest Court of the land.”

The Court lamented that the “insult to the members of the Court was aggravated by imputations of deliberately delaying the resolution of said (Vinuya) case, its dismissal on the basis of ‘polluted sources,’ the Court’s alleged indifference to the cause of petitioners, as well as the supposed alarming lack of concern of the members of the Court for even the most basic values of decency and respect.”

Given that the “motion for reconsideration of the (Vinuya) decision alleged to contain plagiarized materials is still pending,” the Court felt that the law faculty’s condemnation “was totally unnecessary, uncalled for and a rash act of misplaced vigilance.” It warned that while a suit is awaiting final disposition, “any publication… tending to influence the decision of the controversy is contempt of court and is punishable.”

Separate and extraordinary. This “show cause” controversy has been docketed by the Supreme Court as a “regular administrative matter” separate and apart from the main case of Vinuya vs. Executive Secretary (April 28, 2010). This means that the professors’ disciplinary “matter” will proceed separately from the comfort women’s case.

Please note that in this “regular administrative matter,” there appears no plaintiff or petitioner, only respondents (the faculty members). That is why the case is titled “Re: Letter of the UP Law Faculty…” and not the usual “ABC vs. XYZ.” Here, the Court initiates, investigates and ultimately decides the controversy. Of course, as part of due process, it gives the persons in jeopardy of being penalized the opportunity to explain their side.

This extraordinary “inquisitorial” process is a departure from the “adversarial” procedure conducted in ordinary litigations, in which the courts play a very passive role. Normally, the plaintiffs take the active role, initiate the case, file the complaint, present evidence to prove their claims and argue passionately why they should win.

In turn, the defendants or respondents file their answer, submit their own version of the facts and the law, and argue why the judge should decide in their favor. In an adversarial proceeding, Edmund Burke’s search for the “cold neutrality of an impartial judge” is at once obvious.

In contrast, in inquisitorial contempt (which could be directed at both lawyers and non-lawyers) and disciplinary proceedings, the judge is the offended party, plaintiff and prosecutor at the same time. Here, the “cold neutrality” requirement is sometimes put at issue because of the natural temptation to vindicate one’s pains and to favor one’s opinions however preliminary they may be.

Greatness and humility. Indeed, the Court will have to balance carefully the need to uphold its dignity and honor vis-à-vis the professors’ right to free expression, in an awkward proceeding where, to repeat, it is both the offended party and the judge. Yet, no higher court or agency is authorized to review its decision. But the Court knows only too well, it will be answerable to history. By its judgment, it will be judged by the nation and by the world.

Verily, judging this case is not easy. Having already felt diminished by the published letter, the justices will have to struggle in the deepest recesses of their conscience to render a fair and just verdict. It takes great humility to reverse or modify their earlier strong opinion contained in the “show cause” resolution. But the greatest in the kingdom, Jesus Christ once said, are also the humblest.

As a footnote, may I add that the inquisitorial system is still regularly used in many countries. On the other hand, the adversarial system was introduced in the Philippines by the Americans at the dawn of the 20th century and had been used regularly since the Supreme Court was founded in 1901. As an exception, contempt cases initiated by the judges themselves had always been decided via the inquisitorial method.

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