Professional Documents
Culture Documents
Court of Appeals
Ma. Orosa St, Ermita
1000 Manila
Philippines
Tel: +63 (02) 524 1241 to 52
Email: ca_manila@yahoo.com
CC:
The Resolution against Salaysay, whose husband Napoleon Salaysay was among
32 journalists and media workers murdered in the massacre of 58 people on 23
November 2009, and Paraan, the General Secretary of the National Union of
Journalists of the Philippines (NUJP), leaves both women at risk of a jail term and
financial punishment.
The Resolution accuses Salaysay and Paraan of “foisting bias and corruption upon
the members of the court” through their statements. In substance, the statements
attributed to Salaysay and Paraan noted that although Associate Justices Danton
Bueser and Marlene Gonzales-Sison recused themselves in the case of Andal
Ampatuan Senior, they did not do so in the case of Zaldy Ampatuan. The statements
questioned this apparent inconsistency.
Courts in many countries have distinguished between statements which are critical
and paint courts and/or judges in a bad light (known in common law jurisdictions as
“scandalising the court”), and statements which undermine the fairness of judicial
proceedings. While historically, courts responded to criticism through contempt
proceedings, in many countries this is effectively a thing of the past.
In the United States, the offence of “scandalising the court” is effectively a dead
letter. The Supreme Court has made it clear, in a series of cases, that only
statements which create a “clear and present danger” to the administration of justice
(i.e. the fairness of proceedings) may attract sanction.1
In Canada, the situation is similar. The standard was set in a 1987 case involving the
most stringent possible criticism, alleging that the courts were “warped” in favour of
protecting the police, made not by a journalist but by a lawyer, an officer of the court.
In response, the Court stated:
But the courts are not fragile flowers that will wither in the hot heat of
controversy…. The courts have functioned well and effectively in
difficult times. They are well-regarded in the community because they
merit respect. They need not fear criticism nor need to sustain
unnecessary barriers to complaints about their operations or
decisions.2
We note that the Resolution of the Court of Appeals of the Philippines appears at
points to confuse the two objectives of the contempt power, noted above (protection
against criticism and protection of the fairness of justice). Thus, on page five, the
Resolution states:
We accept that there is a need to protect the courts against statements that might
undermine the fairness of proceedings, such as intimidation of witnesses. But we feel
confident that the Philippine courts are able to withstand strong, even unfair, criticism
and yet render justice. This is particularly true where, as is the case here, no jury is
involved.
1
Bridges v. California, 314 US 252, 270-71 (1941); Pennekamp v. Florida, 328 US 331 (1946); Craig
v. Harney, 331 US 367 (1947); Wood v. Georgia, 370 US 375 (1962).
2
R. v. Koptyo, (1987), 62 OR (2d) 449, p. 469 (Ontario Court of Appeal).
Like many members of the broader Philippine public, we are distressed by the
manner in which hearings into the massacre continue to be vexed by stalling tactics
and unacceptable delays and distractions in prosecuting the accused on charges
related to the murders of 57 of the 58 victims of 23 November 2009.
More than 18 months since the massacre horrified the world, it is imperative that the
judiciary and courts of the Philippines ensure that the focus of judicial actions is the
prosecution of all those responsible for ordering and undertaking this horrendous
crime, rather than permitting continued distractions.
Meanwhile, we continue to stand firmly with the families of the victims and with our
colleagues in the Philippines in their honourable quest for justice and defence of the
right of all peoples to speak out on matters of grave public importance.
Yours Respectfully,