WHEN A PROTEST LETTER ON THE NIGHT COURT BECOMES A VIOLATION OF

NEW CODE OF JUDICIAL CONDUCT?

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
avail a preliminary investigation or did not execute a waiver, the inquest prosecutor shall

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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
investigation is required to be conducted before the filing of a complaint or information

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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
tuberculosis and predispose him to other ills. Night work brings increased liability to

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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
the public prosecutor and public attorney, not to mention for the judge and the entire

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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 judges 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--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 As 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 Henrys 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

9
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
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 As 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 countrys 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 As 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

11
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
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) 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;

13
(12) The right to become a member of associations or societies for purposes not
contrary to law;
(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
14
have existed at all. Not only the parties but all persons are bound by the declaration of
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

15
penalties, one of which is removal from public service. In Judge As humble opinion,
this is an unjustified interference of one of her cherished freedoms, not only in our
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 As 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

16
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
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 courts 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

17
government represented by the Supreme Court as one of its branches through the
Office of the Court Administrator, must interfere, suppress and punish.

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 Americas 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

18
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
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 its an absolute value or
good for the soul, but because its 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.

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Therefore, John Stuart Mills 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.

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 Smiths 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 Smiths 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 Smiths 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 articles 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. Smiths 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 . . . Ill be telling my detailed story of using

21
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
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. Smiths 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.

22
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
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) 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

23
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 mans 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) Weight of Evidence and Burden of Proof

As the writer of the protest letter, the weight of Judge As 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 As
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

24
any incompetent evidence admissible. But admissibility of evidence should not be
equated with weight of evidence. Hearsay evidence whether objected to or not has no
probative value.

(6) 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 Courts 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 Courts 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.

25
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 ones
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 societys 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 Castillos 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 As 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 As
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. If Judge A
submitted the night court protest letter to the Department of Agriculture or Central Bank
of the Philippines, she should be dismissed from the service.

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

27
exploitation for workers among others because the words employed are constitutionally
protected speech. These words should not be interpreted in isolation with other words
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
ones constitutional right to free speech that will give rise to torts and damages under
our New Civil Code.

The actual case is A.M. No. MTJ- 12-1813 formerly A.M. No. 12-5-42-METC Office
of the Court Administrator vs. Judge Eliza B. Yu.
This charge was reiterated in OCA IPI No. 11-2378-MTJ Executive Judge Bibiano
Colasito, Vice Executive Judge Bonifacio Pascua, Judge Restituto Mangalindan Jr.,
Judge Catherine Manodon, Miguel Infante, Emma Annie Arafiles, Racquel Dinao,
Pedro Doctolero Jr., Lydia Casas, Auxencio Clemente, Eleanor Bayog, Leilani
Tejero - Lopez, Manolo Garcia, Jasmine Lindain, Fetronillo Primacio Jr., Evelyn
Depalobos, Benjie Ore, Erwin Russ Ragasa, Bien Camba, Marlon Suligan, Arnold
Obial, Ronald Quijano, Eduardo Ebreo, Chanda Tolentino, Ronalyn Armarvez, Ma.
Victoria Ocampo, Elizabeth Lipura, Maryann Cayanan, Ma. Luz Dionisio, Maribel
Molina, Edward Eric Santos, Emilio Domine, Ferdinand Molina, Ricardo Lampitoc,
Jerome Aviles, Ana Lea Estacio, Cristina l.ampitoc, Melanie Ragasa, Evangeline
Ching, Lawrence Perez, Edmundo Vergara, Lanie Aguinaldo, Karla Mae
Pacunayen, Domingo Hocosol, Edwin Ubana, Elizabeth Villanueva, lgnacio
Gonzales, Zenaida Geronimo, Soledad Bassig, Marvin Balicuatro, Aida Josefina
lgnacio, Benigno Marzan, Marissa Mashoor Ratsgoor, Marie Luz Obida, Joseph
Pamatpat, Fortunato Diezmo, Norner Villanueva, Edwin Jurok, Fatima Rojas, Armina
Almonte, Anna Marie Francisco, Ma. Cecilia Getrudes Salvador, Zenaida
Geronimo, Virginia Galang, Elsa Garnett, Amor Abad, Emelina San Miguel, Maxima
Sayo, Romer Aviles, Froilan Robert Tomas, Norman Garcia, Dennis Echegoyen and
Noel Labid vs. Judge Eliza B. Yu
The Philippine Supreme Court sustained the legal arguments of Judge Eliza B. Yu
on appeal because the Office of the Court Administrator omitted them in its report
and recommendation dated February 11, 2016.

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