Supreme Court of the Philippines

Supreme Court penalizes lawyers over homophobic remarks. Here’s why.

Jairo Bolledo

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Supreme Court penalizes lawyers over homophobic remarks. Here’s why.

HIGH COURT. Supreme Court Chief Justice Alexander Gesmundo and other justices attend the special en banc session on October 14, 2022.

Angie de Silva/Rappler

'Members of the legal profession must respect LGBTQIA+ individuals' freedom to be themselves and express who they are, as part of their constitutionally-guaranteed right of freedom of expression,' the SC says

MANILA, Philippines – The Supreme Court (SC), in another important decision, reprimanded lawyers for their homophobic remarks.

Supreme Court penalizes lawyers over homophobic remarks. Here’s why.

In a decision dated April 11, but made public only on August 17, the High Court penalized five lawyers for their Facebook posts that contained homophobic remarks. The lawyers were identified as follows:

  • Noel Antay Jr.
  • Ernesto Tabujara III
  • Israel Calderon
  • Morgan Rosales Nicanor
  • Joseph Marion Peña Navarrete

The SC, in its ruling, resolved to reprimand Antay, Calderon, Nicanor, and Navarrete for violating the Code of Professional Responsibility (CPR), the old code of conduct for lawyers. The court also gave a stern warning that a repetition of the same act will be dealt more severely.

Meanwhile, the SC imposed a fine of P25,000 on Tabujara for the same violation. He also received a stern warning just like the four other lawyers.

On privacy, role of lawyers

In its decision, the SC said the lawyers’ right to privacy vis-a-vis online activities is not absolute. The High Court said the lawyers cannot invoke the right to privacy to shield themselves from any liability.

  • The SC brought up the Belo-Henares case, which explained that there is no assurance that Facebook posts can be placed within the confines of privacy. Referring to the Belo-Henares decision, the SC said it cannot give credence to Antay’s invocation of his right to privacy.
  • The lawyer’s excuse that his Facebook was locked and could not be accessed by outsiders was an allegation, the SC said. “Further, the fact that the exchanges leaked means that his social media account is not locked as he claims or that there is a rat amidst them,” the High Court added.
  • The SC reminded the lawyers that they have the duty to use respectful language, and respect the courts and its officers.
  • Rule 7.03 of the Code of Professional Responsibility, the old code of conduct for lawyers, was applicable in the case, according to the SC. The provision states that lawyers shall not engage “in conduct that adversely reflects on his fitness to practice law.”
  • The lawyers’ inappropriate, disrespectful, and defamatory language are still within the SC’s disciplinary authority, even in the private sphere. “Members of the legal profession must respect LGBTQIA+ [Lesbian, Gay, Bisexual, Transgender, Queer, Intersex, and Asexual] individuals’ freedom to be themselves and express who they are, as part of their constitutionally-guaranteed right of freedom of expression,” the SC explained.
  • Members of the legal profession may also simultaneously incur administrative, civil, and criminal liability due to language alone, said the SC.

According to the SC, saying that discriminatory language uttered “seemingly intended to be private exchanges among the macho men” is not a defense. The High Court said the exchanges became public and “have become a public proceeding by the turn of events.

The SC then described the roles of each lawyer in the conversation.

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  • Antay was the one who initiated the Facebook thread, stating that he successfully prosecuted a member of the LGBTQIA+ community for an estafa case.
  • The Court said the lawyer started the conversation with homophobic undertones by describing the convict as a member of the LGTBQIA+ community, and the judge as effeminate. The SC said the descriptions have no context in the narrative, so it showed his gender bias.
  • Tabujara added a homophobic tone to the conversation, describing a Taguig City judge as gay who wore eyeshadow and eyeliner. The lawyer also said that judges on the second floor of the Taguig City Hall of Justice have “sira ng ulo” (are crazy), while those on the ground floor were homosexuals and corrupt.
  • “Undoubtedly, such sweeping, baseless and homophobic statements perpetuate the stereotype of homosexuality as a moral flaw and abomination that must be quashed,” the SC said, referring to Tabujara’s statement.
  • For Calderon, the SC said his remarks baselessly and demeaningly insinuated perverse intentions against a member of the LGBTQIA+ community. Nicanor, meanwhile, “fortified” the misleading stereotype painted by Calderon. Lastly, Navarrete’s words “carried the same wrong and perverse undertones often pinned against LGBTQIA+ individuals.”
  • In its decision, the High Court explained that Antay, Calderon, Nicanor, and Navarrete must answer for their “intemperate” language against the LGBTQIA+ community. The SC said the four must be reprimanded, with a stern warning that a repetition of the same offense will be dealt with more severely.
  • However, the SC imposed a heavier penalty on Tabujara for violating the code of conduct for lawyers in a “reckless, wanton, and malevolent manner.” The High Court said it was disturbed by Tabujara’s “unapologizing stance.”
What happened before

The court, motu proprio or on its own, required the lawyers in 2021 to show cause why they should not be held administratively liable for their Facebook posts.

  • Through his compliance dated October 25, 2021, Antay expressed deep remorse and apologized for his posts. Most of the other lawyers also apologized for the incident, and explained themselves.
  • In a resolution dated July 26, 2022, the SC referred the case to the Office of the Bar Confidant (OBC) for a probe, report, and recommendation. On August 31, 2022, the OBC recommended that the lawyers be admonished.
  • “Though no names were mentioned, the comments were made in a degrading and shameful manner. All those involved in the administration of justice, such as lawyers, must always conduct themselves with the highest degree of propriety and decorum,” the OBC said in its resolution. –

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Jairo Bolledo

Jairo Bolledo is a multimedia reporter at Rappler covering justice, police, and crime.