THE Supreme Court (SC) has penalized five lawyers in relation to their homophobic posts on Facebook and declared that the right to privacy of lawyers is limited especially when it comes to their social media engagements.
In a 26-page decision promulgated on April 11, 2023 but only recently made public, the Court en banc reprimanded lawyers Morgan Rosales Nicanor, Joseph Marion Pena Navarrete, Noel Antay Jr., and Israel Calderon, and imposed a P25,000 fine on Ernesto Tabujara III, all for violation of Rule 7.03 of the Code of Professional Responsibility.
The SC issued a stern warning that a repetition of the same offense will be more severely dealt with.
Rule 7.03 prohibits lawyers from engaging in conduct that “adversely reflects on their fitness to practice law” and from behaving in a “scandalous manner” whether in public or in private which would discredit the legal profession.
The SC explained that a heavier penalty was imposed on Tabujara because he did not only violate the Rule 7.03 but did so in a “reckless, wanton and malevolent manner.”
“What makes his infraction worse than that of Atty. Nicanor, Atty. Navarrete, Atty. Antay Jr. and Atty. Calderon is that Atty. Tabujara III made a sweeping statement about the mental fitness of judges and equated homosexual judges with corrupt ones,” the SC held.
Records of the case showed it was Antay who initiated a Facebook thread with a post stating he had “just prosecuted and helped convict a member of the LGBTQIA+ community for large-scale estafa.”
Antay said that when the defendant began cussing at him, “the judge who is somewhat effeminate comes to my defense and warns the felon to behave.”
Tabujara commented on the post with a question: “Sino ‘yung bakla na judge. Naka-eye liner and eye shadow ‘pag nag hehearing. Ang taray pa! (Who is this gay judge. He puts on eye liner and eye shadow when he attends hearings. He is arrogant too!)”
He likewise supposedly said that it was a standing joke among lawyers that at the Taguig Hall of Justice “sa 2nd floor puro may sira ulo mga judge, sa baba bakla at mga corrupt (at the second floor, the judges are crazy, while in the ground floor, the judges are gay and corrupt).”
Calderon replied to Antay’s post: “Baka type ka (Maybe he likes you),” later on adding “Nakita n’ya intelligence mo, given na good looks, na convict mo pa s’ya. Tapos syempre di ka mapapasakamay n’ya kaya ayon imbyerna. Charot haha (Maybe he saw that you are intelligent, your good looks are convict, and you were able to convict him. But then he cannot have you, so he is upset. Just kidding).”
Nicanor agreed to the comment, posting: “feel ko type ka bossing. Hehehe (I feel he likes you),” to which Tabujara added: “Dapat kinurot mo! Charot! (You should have pinched him! Just kidding!)”
Navarrete also chimed in, saying that he remembered Nicanor’s client that the latter brought to the Ombudsman.
He said: “Pinatawag lang ako ng Prof Morgan Nicanor mga panahon nayan. Tapos bitbit nya kliyente niya. Ang natatandaan ko lang is malagkit tingin kay papa, este Prof. Morgan (Prof Morgan Nicanor called for me at the time. His client was with him. I recall that he was looking with interest at papa, or Prof. Morgan).”
Antay then posted: “Matikas kasi si Prof. Morgan eh. Habulin (Prof. Morgan is good looking. People run after him).”
In its report and recommendation dated August 31, 2022, the Office of the Bar Confidant (OBC) recommended that the lawyers be admonished, noting that their comments show that the main topic of their online conversation was LGBTQIA+ community members and judges.
The OBC said that while no other names were mentioned, the comments of the five lawyers were made in a degrading and shameful manner, contrary to the duty of lawyers to “conduct themselves with the highest degree of propriety and decorum” and to “refrain from making remarks and conjectures that tend to ridicule a certain segment of the population such as the LGBTQIA+ community.”
The OBC only recommended the penalty of admonition, taking into consideration that the lawyers concerned have apologized and appeared to be remorseful.
In finding the five lawyers administratively liable for their statements, the SC en banc first resolved the issue of whether they can invoke their right to privacy vis-í -vis their online activities.
The SC ruled that the right of lawyers to privacy is limited, especially when it concerns their social media accounts.
Citing the 2016 case of Belo-Henares v. Guevarra, the SC said it is clear that “there can be no reasonable expectation of privacy as regards social media posts, regardless if the same are ‘locked,’ precisely because the access restriction settings in social media platforms do not absolutely bar other users from obtaining access to the same.”
“The lawyer’s right to privacy, especially when it comes to their social media accounts, is limited. They cannot use this right as a shield against any liability. At best, the right to privacy has limited application to online activities of lawyers,” the SC held.
The SC further reiterated that restricting the privacy of one’s Facebook posts to “Friends” only does not guarantee absolute protection from the prying eyes of other users.
Thus, it explained, it cannot give credence to the invocation of Antay, who started the post, of his right to privacy.
“His excuse — that his social media account is locked and the contents thereof cannot be accessed by outsiders — is a mere allegation at best. Allegations are not proof. Further, the fact that the exchanges leaked means that his social media account is not locked as he claims or that there is a rat amidst them,” the SC added.
In finding the lawyers liable for violation of Rule 7.03 of the Code of Professional Responsibility, the SC said that inappropriate, disrespectful, and defamatory language of lawyers, even in the private sphere, are still within the Court’s disciplinary authority.
“Members of the legal profession must respect the freedom of LGBTQIA+ individuals to be themselves and express who they are, as part of their constitutionally guaranteed right to freedom of expression,” it said.
The SC likewise reiterated that the Philippines adheres to the internationally-recognized principle of non-discrimination and equality.
“As such, every member of the legal profession is bound to observe and abide by them, especially when dealing with LGBTQIA+ individuals,” the ruling said, adding that inappropriate, disrespectful, belligerent, or malicious language can be a source of criminal liability under the Safe Spaces Act.
In the present case, the SC said it found the subject Facebook posts laced with “homophobic undertones,” with descriptions of the convict and the judge that are “uncalled for and have no context in the narrative, thus showing gender bias.”
The ruling is the latest in a string of SC decisions disciplining lawye rs for their conduct both online and offline.
