In re: UP Law Faculty

Lawyers who are also law professors cannot invoke freedom of expression or academic freedom as a defense in bar disciplinary proceedings for intemperate statements tending to pressure the Court or influence the outcome of a case or degrade the courts. The constitutional right to freedom of expression of members of the Bar may be circumscribed by their ethical duties as lawyers to give due respect to the courts and to uphold the public's faith in the legal profession and the justice system, and this applies with greater force to law professors who are bound by their oath to uphold ethical standards.

The respondents are 37 professors of the University of the Philippines College of Law, including Dean Marvic M.V.F. Leonen, four former deans, regular faculty, and lecturers. The case arose from the promulgation of the decision in Vinuya, et al. vs. Executive Secretary (G.R. No. 162230) on April 28, 2010, penned by Associate Justice Mariano del Castillo, which dismissed the petition of the "Malaya Lolas," Filipino comfort women seeking claims against the Japanese government. After the petitioners' counsel filed a Supplemental Motion for Reconsideration alleging that the Vinuya decision plagiarized several foreign scholarly works, the UP Law faculty issued a public statement entitled "Restoring Integrity" that accused the Court of dishonesty and misrepresentation. The Court, through a Show Cause Resolution dated October 19, 2010, directed the respondents to explain why they should not be disciplined as members of the Bar for violating specific provisions of the Code of Professional Responsibility.

The case stemmed from the April 28, 2010 promulgation of the decision in Vinuya, et al. vs. Executive Secretary (G.R. No. 162230), penned by Associate Justice Mariano del Castillo, which dismissed the petition of the "Malaya Lolas," Filipino comfort women seeking to compel the Executive Department to take up their claims against the Japanese government. On May 31, 2010, counsel for the Malaya Lolas filed a Motion for Reconsideration, and on July 19, 2010, Attys. H. Harry L. Roque, Jr. and Romel Regalado Bagares filed a Supplemental Motion for Reconsideration raising for the first time the charge of plagiarism, alleging that the Vinuya decision copied from three sources: Evan J. Criddle and Evan Fox-Decent's article "A Fiduciary Theory of Jus Cogens," Christian J. Tams' book Enforcing Erga Omnes Obligations in International Law, and Mark Ellis' article "Breaking the Silence: On Rape as an International Crime." On the same day, journalists posted an article on the Newsbreak website entitled "SC justice plagiarized parts of ruling on comfort women," and on July 22, 2010, Atty. Roque's column "Plagiarized and Twisted" appeared in the Manila Standard Today, quoting Prof. Criddle's response confirming the alleged plagiarism.

On July 22, 2010, Justice Del Castillo wrote to his colleagues in reply to the plagiarism charge, and on July 23, 2010, Dr. Mark Ellis wrote the Court expressing concern about the unauthorized use of his work. In Memorandum Order No. 35-2010 issued on July 27, 2010, the Court formed the Committee on Ethics and Ethical Standards, and the matter was docketed as A.M. No. 10-7-17-SC. On August 9, 2010, a statement dated July 27, 2010, entitled "Restoring Integrity: A Statement by the Faculty of the University of the Philippines College of Law on the Allegations of Plagiarism and Misrepresentation in the Supreme Court" was posted on Newsbreak's website and Atty. Roque's blog, and on August 11, 2010, Dean Leonen submitted a copy of the Statement to the Court through Chief Justice Corona. The Statement accused the Court of committing "a singularly reprehensible act of dishonesty and misrepresentation," described the Vinuya decision as based on "polluted sources," and called for the resignation of the ponente.

During the August 26, 2010 hearing in the ethics case against Justice Del Castillo, the Ethics Committee noted that the copy of the Statement submitted was not signed but merely reflected names with the notation "(SGD.)" beside them. Upon compliance with the directive to present the signed copy, it was revealed that only 37 of the 81 faculty members had actually signed, that former Supreme Court Associate Justice Vicente V. Mendoza's name appeared as a signatory when he had not signed, and that Atty. Miguel R. Armovit's name was omitted from the signature pages despite having signed. In a Resolution dated October 19, 2010, the Court directed the respondents to show cause why they should not be disciplined as members of the Bar for violation of Canons 1, 11, and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility, and directed Dean Leonen to show cause for violation of Canon 10, Rules 10.01, 10.02, and 10.03 for submitting a "dummy" that was not a true and faithful reproduction of the Statement.

• N/A: The case is an administrative matter initiated motu proprio by the Supreme Court; there is no petitioner in the traditional sense.

• Freedom of Expression: The 35 respondents in the Common Compliance argued that they issued the Restoring Integrity Statement in the exercise of their constitutional right to free speech as citizens of a democracy, and that the Show Cause Resolution denied them this right. They cited United States vs. Bustos, In re: Atty. Vicente Raul Almacen, and Gonzales vs. Commission on Elections in support.

• Academic Freedom: Respondents asserted that their Statement was issued in the exercise of their academic freedom as teachers in an institution of higher learning, relying on Section 5 of the University of the Philippines Charter of 2008 and Garcia vs. The Faculty Admission Committee, Loyola School of Theology, claiming that the Court encroached on their right to determine how lessons shall be taught.

• Good Faith and Noble Intentions: Respondents claimed they acted with the purest of intentions, not to malign the Court but to defend its integrity and credibility, and that their call for the Court to provide guidance to the Bench and Bar was in keeping with Canon 4 of the Code of Professional Responsibility.

• Correctness of Plagiarism Position: Respondents devoted significant portions of their compliance to arguing the merits of their charge that Justice Del Castillo committed plagiarism, relying on University of the Philippines Board of Regents vs. Court of Appeals and foreign materials, asserting their position was the correct view.

• Being Singled Out: Respondents alleged that the Court unfairly singled them out for sanctions when others, including lawyer-columnists and civic circles, had likewise spoken on the plagiarism issue, citing various published reports and opinions.

• Due Process and Right to Hearing: Respondents prayed for the Show Cause Resolution to be set for hearing, for a fair and full opportunity to refute the findings, and for access to the records and evidence in A.M. No. 10-7-17-SC, asserting their due process rights.

• Dean Leonen's Defense on Canon 10: Dean Leonen argued that he did not misrepresent the contents of the Statement or the identities of the signatories, that the main body of the Statement was unchanged in all versions, and that the discrepancies in the signature pages were due to the "live" and "evolving" nature of public manifestos, citing Rudecon Management Corporation vs. Camacho on the required quantum of proof.

• Prof. Vasquez's Compliance: Prof. Vasquez argued that a lawyer has the right to comment on acts of public officers, that he never intended to unduly influence the Court, and conceded that he "might have been remiss in correctly assessing the effects of such language" and "could have been more careful."

• Prof. Lynch's Manifestation: Prof. Lynch manifested that he was not a member of the Philippine Bar but of the Bar of the State of Minnesota, and invoked freedom of expression, arguing that the Statement did not pose any clear and present danger of a substantive evil.

• Freedom of Expression: Whether the Show Cause Resolution denies respondents their freedom of expression.
• Academic Freedom: Whether the Show Cause Resolution violates respondents' academic freedom as law professors.
• Violation of Canons 1, 11, and 13: Whether the submissions of respondents satisfactorily explain why they should not be disciplined as Members of the Bar under Canons 1, 11, and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility.
• Violation of Canon 10: Whether the separate Compliance of Dean Leonen satisfactorily explains why he should not be disciplined as a Member of the Bar under Canon 10, Rules 10.01, 10.02, and 10.03.
• Right to Hearing and Access to Records: Whether respondents are entitled to have the Show Cause Resolution set for hearing and to require the production or presentation of evidence bearing on the plagiarism and misrepresentation issues in the Vinuya case and the ethics case against Justice Del Castillo.

• Freedom of Expression: No. The Show Cause Resolution did not deny respondents their freedom of expression; it was not the fact that respondents criticized a decision of the Court nor that they charged one of its members of plagiarism that motivated the Resolution, but rather the manner of the criticism and the contumacious language by which respondents expressed their opinion in favor of the petitioners in a pending case.

• Academic Freedom: No. The Show Cause Resolution does not interfere with respondents' academic freedom; there is nothing in the Resolution that dictates upon respondents the subject matter they can teach and the manner of their instruction, and academic freedom cannot be successfully invoked by respondents in this case.

• Violation of Canons 1, 11, and 13: The Common Compliance of 35 respondents is unsatisfactory, and they are reminded of their lawyerly duty under Canons 1, 11, and 13 to give due respect to the Court and to refrain from intemperate and offensive language. Prof. Vasquez's Compliance is satisfactory. Prof. Lynch is excused as he is not a member of the Philippine Bar.

• Violation of Canon 10: Dean Leonen's Compliance is unsatisfactory, and he is admonished to be more mindful of his duty to observe full candor and honesty in his dealings with the Court.

• Right to Hearing and Access to Records: No. Respondents' requests for a hearing and for access to the records of A.M. No. 10-7-17-SC are denied for lack of merit; a formal investigation is discretionary, not mandatory, on the Court under Rule 139-B, Section 13.

• Freedom of Expression: The Court held that the right to criticize the courts and judicial officers must be balanced against the equally primordial concern that the independence of the Judiciary be protected from due influence or interference. In cases where the critics are not only citizens but members of the Bar, jurisprudence has repeatedly affirmed the authority of this Court to discipline lawyers whose statements regarding the courts have exceeded the limits of fair comment and common decency. The Court cited Salcedo vs. Hernandez, In re: Atty. Vicente Raul Almacen, In re: Vicente Sotto, Choa vs. Chiongson, Saberon vs. Larong, and Zaldivar vs. Sandiganbayan and Gonzales to establish that intemperate and unfair criticism is a gross violation of the duty of respect to courts and subjects a lawyer to disciplinary action. The accusatory and vilifying nature of certain portions of the Statement exceeded the limits of fair comment and cannot be deemed as protected free speech.

• Academic Freedom: The Court held that the reason that freedom of expression may be delimited in the case of lawyers applies with greater force to the academic freedom of law professors. Citing Cayetano vs. Monsod, the Court noted that lawyers when they teach law are considered engaged in the practice of law, and unlike professors in other disciplines, respondents are bound by their oath to uphold the ethical standards of the legal profession. Their actions as law professors must be measured against the same canons of professional responsibility applicable to acts of members of the Bar.

• Violation of Canons 1, 11, and 13: The Court found that the respondents, not parties to the Vinuya case, denounced the Court and urged it to change its decision therein in a public statement using contumacious language, which they subsequently submitted to the Court for "proper disposition." The Court noted that whether or not respondents' views regarding the plagiarism issue had valid basis was immaterial to their liability for contumacious speech and conduct. The Court found that the respondents' claim of noble intention was doubtful, as the Statement was published and reported in the media first before it was submitted to the Court. The Court held that where the excessive and contumacious language used is plain and undeniable, good intent can only be mitigating. Prof. Vasquez's Compliance was found satisfactory for his candor and sincere deference to the Court, while Prof. Lynch was excused as he was not under the disciplinary authority of the Court.

• Violation of Canon 10: The Court found that Dean Leonen's submission of Restoring Integrity II with retyped signature pages, instead of the signed Restoring Integrity I, was unusual and constituted a display of lack of candor. The Court held that Dean Leonen's admission that at least one purported signatory had not actually signed the Statement was "precisely tantamount to making it appear to this Court that a person or persons participated in an act when such person or persons did not." The Court admonished Dean Leonen for failing to observe full candor and honesty in his dealings with the Court.

• Right to Hearing and Access to Records: The Court clarified that this is not an indirect contempt proceeding and Rule 71 has no application; the case was docketed as an administrative matter. Under Rule 139-B, Section 13, a formal investigation is merely discretionary, not mandatory. The Court held that the essence of due process is simply an opportunity to be heard, and a formal or trial-type hearing is not at all times essential. The Court found that respondents had no right to a hearing and that the facts they were required to explain were within their own knowledge.

• Limits on Lawyer Criticism of Courts — A lawyer's right to criticize the courts, guaranteed by freedom of speech and expression, must be exercised responsibly, for every right carries with it a corresponding obligation. Intemperate and unfair criticism is a gross violation of the duty of respect to courts and subjects a lawyer to disciplinary action. The Court applied this doctrine to find that the accusatory and vilifying nature of the Restoring Integrity Statement exceeded the limits of fair comment and could not be deemed protected free speech.

• Academic Freedom Not a Defense in Bar Discipline — Lawyers who teach law are considered engaged in the practice of law, and their actions as law professors must be measured against the same canons of professional responsibility applicable to acts of members of the Bar. Academic freedom cannot be successfully invoked as a defense in an administrative proceeding for intemperate statements tending to pressure the Court or influence the outcome of a case or degrade the courts. The Court applied this doctrine by analogy to its past treatment of the "free speech" defense in bar discipline cases.

• Due Process in Administrative Proceedings — The essence of due process is simply an opportunity to be heard or, as applied to administrative proceedings, an opportunity to explain one's side or to seek a reconsideration of the action or ruling complained of. A formal or trial-type hearing is not at all times and in all instances essential to due process. The Court applied this doctrine to deny respondents' request for a hearing, holding that they were afforded the opportunity to present their side through their compliances.

• Disciplinary Proceedings Against Lawyers Are Sui Generis — Disciplinary proceedings against lawyers are neither purely civil nor purely criminal; they do not involve a trial of an action or a suit but are rather an investigation by the Court into the conduct of one of its officers. Public interest is the primary objective, and the real question is whether the attorney is still a fit person to be allowed the privileges of the Bar. The Court applied this doctrine to reject respondents' characterization of the proceeding as one for indirect contempt under Rule 71.

• "It is respondents' collective claim that the Court, with the issuance of the Show Cause Resolution, has interfered with respondents' constitutionally mandated right to free speech and expression. It appears that the underlying assumption behind respondents' assertion is the misconception that this Court is denying them the right to criticize the Court's decisions and actions, and that this Court seeks to 'silence' respondent law professors' dissenting view on what they characterize as a 'legitimate public issue.' This is far from the truth." — This passage clarifies that the Show Cause Resolution was motivated not by the fact of criticism but by the manner and contumacious language of the criticism, establishing the Court's distinction between protected speech and sanctionable conduct.

• "Applying by analogy the Court's past treatment of the 'free speech' defense in other bar discipline cases, academic freedom cannot be successfully invoked by respondents in this case. The implicit ruling in the jurisprudence discussed above is that the constitutional right to freedom of expression of members of the Bar may be circumscribed by their ethical duties as lawyers to give due respect to the courts and to uphold the public's faith in the legal profession and the justice system. To our mind, the reason that freedom of expression may be so delimited in the case of lawyers applies with greater force to the academic freedom of law professors." — This passage articulates the novel doctrine that academic freedom cannot shield law professors from bar discipline for contumacious speech, applying the free speech limitation with greater force to those who teach law.

• "Contrary to Dean Leonen's proposition, that is precisely tantamount to making it appear to this Court that a person or persons participated in an act when such person or persons did not." — This passage states the Court's finding that Dean Leonen's submission of a version of the Statement with misrepresented signatories constituted a violation of Canon 10, despite his claims of good faith and reliance on staff.

• "The essence of due process is simply an opportunity to be heard or, as applied to administrative proceedings, an opportunity to explain one's side or an opportunity to seek a reconsideration of the action or ruling complained of. What the law prohibits is absolute absence of the opportunity to be heard, hence, a party cannot feign denial of due process where he had been afforded the opportunity to present his side." — This passage states the controlling doctrine on due process in administrative proceedings, which the Court applied to deny respondents' request for a formal hearing.

• Salcedo vs. Hernandez, 61 Phil. 724 (1935) — Controlling precedent establishing that a lawyer's intemperate and injudicious statements in pleadings accusing the Court of erroneous ruling constitute contempt and grounds for administrative discipline; the Court distinguished this case as authority for the principle that lawyers are duty bound to uphold the dignity and authority of the Court.

• In re: Atty. Vicente Raul Almacen, G.R. No. L-27654, February 18, 1970, 31 SCRA 562 — Followed; established that criticism of courts, whether done in court or outside of it, must conform to standards of fairness and propriety, and that intemperate and unfair criticism is a gross violation of the duty of respect to courts.

• In re: Vicente Sotto, 82 Phil. 595 (1949) — Followed; held that a lawyer is duty bound to uphold the dignity and authority of the Court and not to promote distrust in the administration of justice, and that false charges against the Court tend to undermine public confidence in the honesty and integrity of its members.

• Choa vs. Chiongson, 329 Phil. 270 (1996) — Followed; the Court administratively disciplined a lawyer for malicious and unfounded criticisms of a judge, establishing that the right to criticize must be exercised responsibly and that freedom is not freedom from responsibility but freedom with responsibility.

• Zaldivar vs. Sandiganbayan and Gonzales, 248 Phil. 542 (1988) — Followed; the Court indefinitely suspended a lawyer for issuing to the media statements grossly disrespectful towards the Court in relation to a pending case, holding that freedom of expression needs to be adjusted to and accommodated with the requirements of equally important public interest, including the maintenance of the integrity and orderly functioning of the administration of justice.

• Cayetano vs. Monsod, G.R. No. 100113, September 3, 1991, 201 SCRA 210 — Followed; defined the practice of law as any activity which requires the application of law, legal procedure, knowledge, training, and experience, establishing that lawyers who teach law are considered engaged in the practice of law.

• Pena vs. Aparicio, A.C. No. 7298, June 25, 2007, 525 SCRA 444 — Followed; established that disciplinary proceedings against lawyers are sui generis, neither purely civil nor purely criminal, and that the Court may initiate them motu proprio with public interest as the primary objective.

• Canon 1, Code of Professional Responsibility — A lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and legal processes; applied to find that respondents' contumacious statement violated their duty to promote respect for legal processes.

• Rule 1.02, Code of Professional Responsibility — A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system; applied to the charge against respondents for their public statement.

• Canon 10, Code of Professional Responsibility — A lawyer owes candor, fairness and good faith to the court; applied to Dean Leonen for submitting a version of the Statement that misrepresented its signatories.

• Rule 10.01, Code of Professional Responsibility — A lawyer shall not do any falsehood, nor consent to the doing of any in court; nor shall he mislead, or allow the Court to be misled by any artifice; applied to Dean Leonen's submission of the "dummy" version of the Statement.

• Rule 10.02, Code of Professional Responsibility — A lawyer shall not knowingly misquote or misrepresent the contents of paper, the language or the argument of opposing counsel, or the text of a decision or authority; applied to Dean Leonen's misrepresentation of the signatories to the Statement.

• Rule 10.03, Code of Professional Responsibility — A lawyer shall observe the rules of procedure and shall not misuse them to defeat the ends of justice; applied to Dean Leonen's submission of the Statement during the pendency of the Vinuya case and the ethics investigation.

• Canon 11, Code of Professional Responsibility — A lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduct by others; applied to find that respondents' statement violated their duty of respect to the Court.

• Rule 11.05, Code of Professional Responsibility — A lawyer shall submit grievances against a Judge to the proper authorities only; applied to the charge against respondents for airing their grievances publicly rather than through proper channels.

• Canon 13, Code of Professional Responsibility — A lawyer shall rely upon the merits of his cause and refrain from any impropriety which tends to influence, or gives the appearance of influencing the court; applied to find that respondents' public statement tended to influence the Court on pending matters.

• Section 13, Rule 139-B, Rules of Court — Provides that in proceedings initiated motu proprio by the Supreme Court, the Court may refer the case for investigation to the Solicitor General or to any officer of the Supreme Court or judge of a lower court; applied to hold that a formal investigation is merely discretionary, not mandatory, on the Court.

Corona, C.J., Velasco, Jr., Peralta, Bersamin, Abad, Perez, Mendoza, and Sereno, JJ., concurred. Nachura, J., was on leave. Brion, J., certified that he left his concurring vote and was on leave. Del Castillo, J., took no part.

• Justice Antonio T. Carpio — Dissented, finding the Compliance of the 37 legal scholars satisfactory and seeing no need to admonish or warn them. He argued that the matter of Justice Del Castillo's reported misuse of sources was an issue of public concern constituting "prime political speech" enjoying the highest constitutional protection, and that under the "clear and present danger" test, the UP Law faculty statement did not pose any extremely serious and imminent evil. He also argued that the statement, taken as a whole, sought to uphold the bedrock democratic value of keeping judicial processes free of any taint of dishonesty, and that the majority's action impermissibly expanded the Court's administrative powers and abridged constitutionally protected speech.

• Justice Conchita Carpio Morales — Dissented, maintaining her position that there was no reasonable ground to motu proprio initiate the administrative case, in view of the injudiciousness attending the Resolution anchored on an irregularly concluded finding of indirect contempt with adverse declarations prematurely describing the subject Statement, and the Court's conventionally permissive attitude toward the "expression of belief" or "manner of criticism" coming from legal academics, lawyer-columnists, and civic circles in a number of high-profile cases.

• Justice Martin S. Villarama, Jr. — Dissented, finding the submissions satisfactory in view of respondents' claim of good faith and the fact that a re-examination of the Statement admits of such claim. He argued that the subject statements present no clear and present danger of a substantive evil that the State has a right to prevent, and that Dean Leonen's lapses appeared more the result of overzealousness rather than bad faith or a deliberate intent to do falsehood or to mislead the Court.

• Justice Maria Lourdes P. A. Sereno — Dissented, joining the dissents of Justices Carpio, Carpio Morales, and Villarama. She argued that the proceeding was in essence one for indirect contempt, the due process requirements of which are strictly provided for under Rule 71 of the Rules of Court, and that the Show Cause Order failed to specify which particular mode of contempt was committed and demonstrated that respondents' guilt had already been prejudged. She maintained that the Court, which has the greater duty of restraint and sobriety, gains nothing by punishing those who lacked such restraint, and that the judiciary must demonstrate moral authority and legitimacy, not only legality.