Author: Ed Lingao

IN ANY DEMOCRATIC SOCIETY, the courts are supposed to be the last resort of those who seek justice and an end to impunity. Not so in the Philippine setting.

In fact, the Philippine judiciary has effectively erected a wall of impunity around itself, making it one of the least accountable institutions in the country, said De La Salle College of Law Dean Jose Manuel Diokno.

Diokno gave this assessment during the Chief Justice Artemio V. Panganiban 2nd Public Lecture at the DLSU last November 5. Diokno’s lecture tackled the problems and prospects in the Philippine judiciary.

Diokno said that while the doors to transparency in the courts have been opened by the recent impeachment of Chief Justice Renato Corona, “the room is still dark, and there is very little light entering.”

This is because of several rulings made by the Supreme Court in the last two decades that have effectively shielded court officials, from Justices to judges, from the reach of the laws that the courts themselves are supposed to interpret. In addition to this, Diokno said several recent rulings by the current high tribunal have added yet another veil of impunity on the judiciary.

• In 1992, the Supreme Court under Chief Justice Andres Narvasa promulgated a resolution restricting access to the statement of assets, liabilities, and net worth of all justices and court officials and employees. This ruling remains in force today, twenty years later, even as other branches of government are slowly granting access to asset statements as required by law.
• Also in 1992, the Narvasa court barred the Ombudsman from investigating any judge for any crime until the Supreme Court concludes its own administrative investigation. This rule, which effectively shields judges from any investigation by the Ombudsman, is also still in force today.
• In 2006, the Supreme Court issues a circular stating that Justices of the Supreme Court, Court of Appeals, and Sandiganbayan are not required to secure clearances from the Ombudsman prior to their retirement.
• In 2012, the Supreme Court issues new guidelines on the release of the judiciary’s SALNs to the public, effectively consolidating all the restrictions previously promulgated by the tribunal in the last twenty years.

In justifying all these decisions, the Supreme Court repeatedly said it was protecting its independence from other institutions, and other stakeholders who may have an interest in a case. However, Diokno said that this has simply made the judiciary less accountable to the public it is supposed to serve.

“Is it judicial independence at issue here, or judicial impunity,” Diokno asked.

“Unless we can hold judges accountable administratively and criminally, we will continue to have judicial impunity,” Diokno told an auditorium full of law students and professionals. Also present in the auditorium were former Chief Justice Artemio Panganiban and former Associate Justice Adolf Azcuna.

In the case of the 1992 ruling barring the Ombudsman from investigating an officer of the court, Diokno said this was partly the reason why few judges are ever sanctioned by the Ombudsman.

“The Ombudsman was directed to dismiss the complaints and refer the same to the Court for appropriate action. This explains why, despite reports of complaints, very few judges are ever investigated by the Ombudsman,” Diokno said. “Their hands are tied behind their backs and they cannot investigate unless the Supreme Court finishes its adjudication.”

As for transparency, Diokno said the Court’s rulings restricting the release of SALNs in the last twenty years have been an embarrassment for the judiciary. This is because Republic Act 6713, or the code of conduct and ethical standards for public officials and employees clearly states that the SALNs of all officials and employees must both be filed and made available to the public.

“The law is very clear, that the release of the SALNs is a ministerial act not requiring any discretion whatsoever on the part of the agency involved,” Diokno said. “Yet the Supreme Court issued guidelines that imposed additional requirements not found in the law, and rebuffed attempts by citizens, lawyers, and journalists to obtain their SALNs.”

Diokno said hopes were high after the impeachment of Corona that the Supreme Court would finally reverse its rulings on the release of its SALNs. However, the Court under the leadership of Chief Justice Maria Lourdes Sereno made it even more difficult to access SALNs.

In new guidelines issued by the Sereno court in June this year, the tribunal imposed additional requirements.

• All SALN requests must explain the purpose and the individual interests of the requesting parties
• The interest of the requesting party in the SALN “must go beyond pure or mere curiosity.”
• The requesting party must not have any derogatory record.
• All decisions on the release of SALNs are now made by the Court en banc

“It is now a decision of the en banc of the Supreme Court,” Diokno said. “Is there something to be deliberated on there?”

“All these requirements are not found in the law, they were simply added on by the court in its own set of guidelines,” he added. “The members of the court should recognize that they cannot use the court’s rulemaking power to convert a ministerial act into a discretionary decision.”

Diokno also revealed that a system of patronage exists in the judiciary, where judges rely on “backers” for appointments to the court or to higher positions. Sometimes, these backers are politicians, or influential fraternities that have established deep roots in the legal system.

“One word I hear so much is the word backer,” Diokno said. “Why does a judge have to have a backer? So long as that system is in place, we will never have an independent judiciary.”

This is one of the reasons why the disclosure of the SALNs is so important, he said. In other countries, members of the judiciary are required to make full disclosures of potential conflicts of interest in order to provide “a check on corruption.”

 

 

 

 

 

 

MEDIA GROUPS already disappointed with President Benigno S. Aquino’s mixed signals on the long-delayed Freedom of Information (FOI) bill were again floored when a Palace communications official told a Senate committee that the Executive supports proposals for a Right of Reply measure.

During the Senate committee on public information and mass media hearing on the proposed decriminalization of libel in the Philippines, Presidential Communications Operations Office Undersecretary Lesley Cordero told the committee that they support the idea of a right of reply measure, or at  least a provision providing for a right of reply in the law decriminalizing libel.

Media groups have been resisting efforts by some legislators to introduce a measure that would require media agencies to give equal time, space, and prominence to anyone who feels slighted by a story published or broadcast in the media. Called the right of reply proposal, the measure is seen by the media as an effort by politicians to appropriate airtime and print space for their own agendas for free.

At its worst, the proposal is seen as an attempt to infringe on the freedom and editorial independence of editors and journalists to decide for themselves what should see print or publication.

In the House of Representatives, several legislators have been demanding the insertion of a right of reply provision as a quid pro quo for the passage of the long delayed Freedom of Information (FOI) bill.

Media organizations have been pushing for the passage of the FOI as a way to allow greater access to public documents. President Aquino’s allies in Congress appear to be sitting on the bill, claiming they have not gotten the go signal from the President.

But if signals on the FOI are unclear, it seems the signals on the right of reply measure are just as muddled.

While most of the resource speakers in the Senate hearing expressed their opposition to Senate Bill 76 authored by Senator Manny Villar for a right of reply measure, Cordero was categorical in her position.

“We support the provision to the right of reply so long as it does not impede the freedom of speech,” Cordero told the committee chaired by Senator Gregorio Honasan.

Several minutes later, Honasan asked Cordero to repeat her office’s position on the decriminalization of libel and the right of reply proposal, and asked if these were the positions of the Executive branch.

Cordero reiterated the President’s position that he wants libel to be decriminalized, a move that would remove jail time as one of the punishments for libel. On the right of reply measure, Cordero repeated her first answer:

“On the right of reply, we have been attending several committee hearings in previous invitations, and our position is that we support the provision so long as it does not violate or abridge freedom of expression and speech.”

However, when the PCIJ asked Cordero for clarification after the Senate hearing, Cordero said “there is no official position yet.”

Instead, Cordero said she was merely referring to “a position paper that we saw, and whether it was from the previous administration or this administration, we have to verify it.”

Reminded that she had told the Senate committee twice that they supported the right of reply measure, Cordero said:

“It’s not the Palace position yet. On the part of the PCOO (Presidential Communications Operations Office) we are studying it. I think there is a position paper that was prepared, I’m not sure if it was submitted yet. But it is more of upholding the freedom of expression.”

“What I mentioned was that the Presidential Communications Operations Office may have prepared a draft,” Cordero said.

While Cordero did a solo flight on her position on the right of reply measure, the other resource persons stood firm against the idea of legislating the content of media organizations.

University of the Philippines professors Teddy Te and Harry Roque cited a ruling in the United States that states that “any attempt by the government to legislate a right of reply is an affront on the freedom of the press because it is the right of editors to determine what will see print or broadcast.”

“Any attempt to interfere is a violation of this freedom.” Roque said.

“Since it is a prior restraint, it effectively constitutes a substitution of editorial judgement by whoever wants to invoke the right of reply,” Te said.