[OPINION | Just Saying] Judges should not take offense

Maria Ressa and Reynaldo Santos Jr’s conviction by the Manila Regional Trial Court Branch 46 presided by Judge Rainelda H. Estacio-Montesa dismayed many. Criticisms were irreverent, some snarky, others calm, coming from members of many sectors: journalist-organizations, academicians, legislators, and students.  

Retired Supreme Court Chief Justice Artemio Panganiban and Senior Associate Justice Antonio Carpio likewise chimed in. CNN’s Amanpour and Hillary Clinton twitted their concerns. 

Observations, whether based on evidence, law, or mere perceptions were posted on social media. There were all sorts of reasons, ranging from the misapplication of prescription rules and  cyberlibel to the threat against freedom of expression and the press.      

Caustic reactions were aplenty considering that the case has also been perceived as a highly political and persecutory one, given President Duterte’s vocal and public animosity toward Rappler.  

But the judges resented the uproar. Unprecedentedly, through their association, they issued a statement saying that “personal attacks, criticisms laden with political threats, those that misrepresent and distort the nature and context of judicial decisions, those that are misleading or without factual or legal basis, and those that blame the judges for the ills of society, damage the integrity of the judiciary and threaten the doctrine of judicial independence. xxx” (READ: Judges’ group cries foul over bashing of judiciary after Ressa conviction)

But, instead of stemming disapproval, the statement’s castigatory and lecturing – some say pompous – tone may have fueled the fire. Are judges very special public servants beyond public scrutiny?

The official statement failed to stress a fundamental point: public office is a public trust. Magistrates are also accountable to the citizenry. They cannot just blame people for making negative outbursts regarding their decisions. The very nature of their work is polarizing. Judgments inevitably produce clashing emotions: a winner’s joy and a loser’s disgust, which may even be justified. Such is simply human nature. It is unbecoming of judges not to transcend these various emotions, especially when human imperfection can make them commit mistakes resulting in the most irreparable, physical, financial, psychological, and/or devastating damage to individuals and their families. Their job demands no room for error.   

An untouchable judiciary beyond critical scrutiny belongs to a bygone era. Former US Supreme Court Associate Justice, Mr Justice Brewer, said: 

“It is a mistake to suppose that the Supreme Court is either honored or helped by being spoken of as beyond criticism. On the contrary, the life and character of its justices should be the objects of constant watchfulness by all, and its judgments subject to the freest criticism. The time is past in the history of the world when any living man or body of men can be set on a pedestal and decorated with a halo. True, many criticisms may be, like their authors, devoid of good taste, but better all sorts of criticism than no criticism at all. The moving waters are full of life and health; only in the still waters is stagnation and death.” (Government by Injunction, 15 Nat’l Corp. Rep. 848,849)

Thus, inquiries regarding possible reasons influencing the outcome of decisions, whether pursued or merely posted, are justified. In fact, it is necessary. For instance, can a judge’s decision be a payment for a previous favor given by some officials? Justice Leonen’s speech at the oath-taking for new lawyers laments: “They mistake the public interest with debt of gratitude to the elite and the powerful that continue to provide their wealth and create their careers. Expediency overwhelms conscience.” Are there conflicts of interest? In describing government officials, the Supreme Court said that “the private life of an employee cannot be segregated from his public life. Dishonesty inevitably reflects on the fitness of the officer or employee to continue in office and the discipline and morale of the service.” (Nera vs Garcia G.R. No. L-13160 106 Phil 1031)

For people to respect judges and to accept their decisions, albeit grudgingly, every aspect of their lives must be open to scrutiny, if only to make sure that they are uprightly and intelligently qualified to render justice for all.

Another important point: judges have no direct mandate from the sovereign people. Though unelected, they are conveniently tenured with very good salaries and allowances. Upon retirement, a comfortable pension awaits them. Powers are granted to them to adjudicate cases covering private concerns to  public interest involving constitutional and human rights issues. They have contempt powers exercisable against people in and out of a case. 

Not only that: judges are, generally, accorded immunity from liability resulting from an erroneous judgment. Notwithstanding a serious violation of a litigant’s constitutional rights, indemnity such as moral and exemplary damages “is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute.” (Article 32 of the Civil Code)

So much authority and privilege given and yet so little means directly provided to the people to make  judges feel accountable. 

And there lies the immeasurable value of public opinion and the press. To keep judges on their toes, people must be encouraged to openly criticize their proceedings and decisions if warranted. The press must report them. Stirring up arguments is not innately prejudicial. In a democracy, there must be a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials” (Terminiello vs. Chicago 337 US 1, 4). Awareness of  the public’s disquietude makes a judge circumspect in resolving cases. 

Undoubtedly, the Ressa and Santos convictions have an effect on freedom of expression and the press. All must be free to expose wrongdoings if factual or legal proofs exist. Not even the pendency of a case should unduly restrict this constitutional right. The Supreme Court said: “A public utterance or publication is not to be denied the constitutional protection of freedom of speech and press merely because it concerns a judicial proceeding still pending in the court, upon the theory that in such a case, it must necessarily tend to obstruct the orderly and fair administration of justice.” (Marantan vs. Diokno G.R. No. 205956 February 12, 2014). The sub judice rule, if arbitrarily applied, is prior restraint on speech. (READ: Dismay, disgust, dissent: How Filipinos online reacted to issues during Duterte’s 4th year)

And even if judgments are reached, they should not be excused from critical debate. For citizens to be deprived of their freedom of expression in matters of injustice can be an irresistible lure to the abuse and misuse of powers by those to whom they are given.

Judges, being “property of the public,” must learn to suffer criticism emanating from taxpayers who provide financial sustenance to them and their families. Being onion-skinned has no place in the judiciary. If they cannot stand the heat, as the saying goes, better get out of the kitchen.  

Finally, some humble introspection on their part may be the beginning of genuine respect. The destruction of the judiciary’s integrity and independence may very well come from within. Even Chief Justice Diosdado Peralta made it his mission “to get rid of the misfits and those not conforming with the standards” – proof  that the predilection of many to blame “judges for the ills of society” is not entirely  unfounded. – Rappler.com

Mel Sta Maria is dean of the Far Eastern University (FEU) Institute of Law. He teaches law at FEU and the Ateneo School of Law, hosts shows on both radio and Youtube, and has authored several books on law, politics, and current events.