[OPINION] Judicial independence: Democratic counterweight to populist sentiment

Abdiel Dan Elijah S. Fajardo
As the unelected branch of government, the judiciary’s sole standard of action is the rule of law rather than the public pulse. This is an essential democratic counterweight to the popularly elected officers of government.

 

This was delivered at the Conference on Democracy and Disinformation of the National Union of Journalists of the Philippines in Iloilo City on February 8, 2019.

I became a lawyer in 1998. I belong to the generation of lawyers that has witnessed the exponential advances in communications technologies. While 20 years ago we had to endure long lines to the pay telephone to be able to speak to our girlfriends, now our sons have the luxury of communicating with their buddies in ways we never imagined possible at the time. Now they can text, Viber, or Telegram 3 girlfriends  – all at the same time. That is change partnering with progress.

The present is a far cry from the past. Young people are communicating on platforms we older folks can only pretend to be able to keep up with. Lawyers are among the very few who continue to use the post office for registered mail, and only to comply with legal niceties, but really, we can now get our messages across at the speed of light via this wonderful progeny of the internet – the social media.

But it is not all a bed of roses. We gladly embraced Facebook when it made Friendster obsolete, but what used to be a platform to update ourselves on relatives and friends, has become a medium of false information, misleading opinions, and hate speech. People will say anything, without regard of personal sensibilities, and oftentimes in utter ignorance of the very subject matter that they discuss. 

Today we are faced with the reality of hate speech being hoisted in social media as a weapon against judicial independence. Speech that incites hatred or violence against judges. Speech that glorifies rape and murder. False statements that are proffered as facts, calculated to injure the reputation of a person or organization. Profanity that is integrated into opinion, as a means of hiding behind the protection provided by the Constitution on freedom of expression.

Clearly, the internet has become the new enabler. Discordant, sometimes disturbing views, previously kept out of the mainstream, are dominating and shaking the very foundations of our institutions.  

The Fourth Estate – the Press – previously, the sole gatekeeper of popular thought, is currently under siege. Journalists gathered here today are in a struggle for survival against an unexpected new enemy – Fake News. Under traditional logic, fake news should be easily defeated by the truth. But we are now witnesses to how opinion may be manipulated through the constant bombardment of lies and propaganda passed on as correct information. 

When I look at your battle, I see the possible future of lawyers. For as journalists were seen as the sole gatekeepers of “truth,” lawyers are seen as the sole gatekeepers of “justice.” 

I emphasize the word “sole” because it is precisely that characterization of exclusivity which is being undermined today. This is an age where information – not service- is the prime commodity. Most of this information is freely accessible online, and we face the prospect of the role of lawyers in society being tested, and challenged, in a manner no different from what you journalists are facing today. 

We lawyers have seen the signs of this happening. For instance, a political science professor was engaged in a fierce online debate against several lawyers about what a provision of the Constitution means. Hundreds of people “liked” and posted “comments,” a good number of them siding with the professor, some of the commenters even disputing the lawyers’ premises. Obvious expertise on the subject was not decisive. 

Sometime late last year, a highly partisan broadcast journalist who used to have a blocktime in a government channel, was seen on Youtube castigating a regional trial court judge somewhere in Mindanao for the latter’s decision acquitting a supposedly notorious drug queen. The expletives and unprintables flowing out of this broadcaster’s mouth would have certainly merited contempt in more enlightened times. But short of actually offering this judge to the mercy of anti-drug vigilantes, the broadcaster called him an imbecile who was either grossly ignorant of his law, or deliberately ignored evidence and rendered useless the efforts of law enforcement agents who had daily been risking their lives in the anti drug war. To this Youtuber, subtlety is out of vogue and libel is not a crime. This judge is corrupt, period. 

But which judge would endanger himself by coddling drug offenders at this time? May I say that despite the risks, there remain judges who maintain close fealty to the Constitution. and that includes the decision issued by the Mindanao judge who upheld the primacy of the Constitution by quashing the search warrant utilized  by the police operatives in securing the evidence they presented in court. 

The search warrant was illegally implemented. The alleged contraband was found in a house that was not so specifically identified in the warrant. Meaning, the wrong house was searched. Worse, the occupants of the house were herded outside in pre-dawn darkness and not allowed to get back in while the operatives declared themselves free from restraint in violating their domicile. This is in serious violation of the law that provides that no search may be effected without the presence of the lawful occupants or their counsel. This should guarantee, among others, that no conrtaband or illegal artifacts are planted in evidence.

A couple of hours later, media representatives and village officials are summoned and a search is conducted. And guess what. Illegal drugs are found in evidence.

The judges who continue to stand for the rule of law must be extolled as modern-day apostles of lady justice who is not only blind to the gravitas of the personalities appearing before her, but must be deaf as well to the loud voices of the many in social media who advocate legal shortcuts at the expense of the Constitution.

What is alarming is that this appears to have become the template in search warrant implementation. A trial judge in Manila recently acquitted another drug queen, publicly characterized as such by the authorities. In his decision, the judge decried the admitted testimony by the police themselves that a “clearing team” was sent into the premises and was free to roam around for at least half an hour without the presence of independent witnesses, and while waiting for the media and the village officials to arrive at the scene. That window was sufficient time to destroy the integrity of the premises being searched.  

Various chapters of the Integrated Bar of the Philippines have strongly protested this predilection of highly opinionated individuals to publicly shame judges who acquit drug suspects on constitutional grounds. Notoriety as a drug lord should never be a license to perverse or relax constitutional standards on search and seizure operations. 

Just recently, IBP Bataan decided to conduct an inventory of the cases being handled by one of its RTC judges in reaction to suspicions being publicly raised in social media that there had been indiscriminate and wrongful dismissals of the drug cases initiated by the police. 

After such investigation, IBP Bataan concluded that there was solid ground on which to anchor the acquittals rendered by the judge. The circumstances leading to the acquittal have been very similar:

  • There were material inconsistencies in the testimonies of prosecution witnesses, mostly police officers involved in the apprehension and investigation of the accused.
  • There was failure to comply with the requirements of Section 21 of the anti-drug law regarding chain of custody.
  • There were unexplained lapses of time between confiscation, marking, inventory and turnover of drug specimen.
  • There had been discrepancies in testimonies in such matters as time or place or manner of apprehension.     

The judges who continue to stand for the rule of law must be extolled as modern-day apostles of lady justice who is not only blind to the gravitas of the personalities appearing before her, but must be deaf as well to the loud voices of the many in social media who advocate legal shortcuts at the expense of the Constitution.  

As students of the law, we know the rationale behind not subjecting members of the judiciary to popular vote. This is because they should not be swayed one way or the other by public sentiment. 

Decisions we have studied and committed to memory uniformly dictate that the Judiciary must not allow itself to be involved in politics. This means that judges must not be impelled by political considerations in adjudication. 

The Constitution and our laws are skewed in favor of insulation through provisions expressly mandating the independence of the Judiciary. As the unelected branch of government, the judiciary’s sole standard of action is the rule of law rather than the public pulse. This is an essential democratic counterweight to the popularly elected officers of government.

Unfortunately, while there continue to be courageous judges, judicial independence appears to be among the first casualties in this social media empowered populist sentiment to rid our country of illegal substances. – Rappler.com

Abdiel Fajardo is the president of the Integrated Bar of the Philippines.