Revisiting Legal and Judicial Ethics: Challenges and Perspectives

Hilarion L. Aquino*
INTRODUCTION
Even the most rudimentary surveys will reveal that Filipinos will not give lawyers high marks for
trustworthiness. To say that lawyers are not well trusted is, in our days, almost hackneyed. In fact, one internet
post put it with stinging humor when it declared: Legal ethics is an oxymoron!
Like all institutions, the Bar and the Bench have their shares of problems. The Bar is suffering from a poor
public image. Lawyers are perceived by the public as generally self-seeking. The Bench is hurting too from
negative comments of the public especially media on perceived judicial improprieties and injudiciousness of
many a judge. True, these may just be perceptions which may not square with reality but in our milieu,
perception and reality are virtually the same. These problems belong to the realm of ethics and morality which
make it not only necessary but imperative to revisit legal and judicial ethics.
These serious problems challenge in this 21st Century all members of the legal profession to help in the
restoration of that great, dignified and preeminent image that our profession once had. In my paper I shall
present some ethical propositions which are my perspectives on the subject, hopefully to provoke meaningful
discussions on them in the different legal fora and academe.
Law, Ethics and Justice: Linkages
That the precepts of law need not rest on moral argument is now common place, and this conviction goes by
many names, positivism being among the most popular. But we persist, do we not, in recognizing the
efficacy of the moral in the universe of the legal.
The elementary distinction in criminal law between a malum prohibitum and a malum in se is tacit recognition
of the criminalization of what is morally reprehensible. An act which is malum in se has been defined as one
inherently wicked, one naturally evil, as adjudged by the sense of a civilized community, one involving illegality
from the very nature of the transaction, upon principles of natural, moral and public law, and one immoral in its
nature and injurious in its consequences without regard to the fact of its being noticed or punished by the law
of the state.1
* Chair, Legal Education Board; Chair, Department of Ethics and Judicial Conduct, Philippine Judicial
Academy, Supreme Court 1 21 Am Jur 2d, Criminal Law, 27
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Finally, the Supreme Court has repeatedly linked justice to the workings of the judicial system. In holding the
inapplicability of the protective provisions of the Foreign Currency Deposits Act to a pedophiles dollar account,
Justice Justo Torres intoned: In fine, the application of a law depends on the extent of its justice.2 And in
deciding against a literal application of Civil Code requirements for the exercise of the right of redemption by
co-heirs in the sale by another heir of his undivided share in the common inheritance to a third party, the late
Justice Isagani Cruz wrote with his usual flair: The question is sometimes asked, in serious inquiry or in
curious conjecture, whether we are a court of law or a court of justice. Do we apply the law even if it is unjust or
do we administer justice even against the law? Thus queried, we do not equivocate. The answer is that we do
neither because we are a court both of law and of justice. We apply the law with justice for that is our mission
and purpose in the scheme of our Republic.3

All this of course links the legal with the moral, because justice is principally not a legal but a moral concept.
LEGAL ETHICS
The Ethos of the Legal Profession
The ethos of the legal profession consists of the disposition of the lawyers, the culture lawyers create in the
exercise of their profession and in the evolution of their traditions, the adoption and acceptance of precepts of
conduct.
I have practiced law for 31 years and was a member of the Bench for 17 years. For all of 48 years, I had been
interacting with lawyers. This long period of close association with them, qualifies me, I think, to talk about the
lawyers mindset. This, I shall do with utmost objectivity and candor.
When a lawyer accepts a case, the thought of an opportunity to serve the cause of justice does not at all cross
his mind. His initial concerns are, to know thoroughly the problem of the client and to get the facts right and the
fixing of satisfactory attorneys fees. A lawyer is basically client-centered. In managing the case, what is most
important to him is the cause of his client. His ultimate goal is to win the case or secure some benefits for his
client. When he is confronted with a dilemma of clashing duties: his duties to his client on the one hand, and
his duties to society, or to his profession or to the courts on the other, without a second thought, the lawyer
would give preference to his duties to his client.
It is not easy to change this mental disposition but we ought not to stop trying.
2 Salvacion v. Central Bank, G.R. 94723 (August 21, 1997) 3 Alonzo v. Intermediate Appellate Court, G.R.
72873 (May 28, 1987)
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Revisiting Legal and Judicial Ethics: Challenges and Perspectives
The Imperatives of Principled Legal Advocacy
Canon 1 of the Code of Professional Conduct announces the principal obligation of the lawyer: uphold the
Constitution, obey the laws of the land, and promote respect for law and legal processes. Justice does not
figure in this articulation of the lawyers duty. And it should not be assumed, naively, that the lawyers obligation
to uphold the Constitution and the laws is eo ipso his obligation to see that justice is done, for laws are not
necessarily just, especially when applied to concrete circumstances.
In fact, the first aporia of legal ethics makes itself felt. When the law itself particularly in relation to the
specific factual constellations of cases yields unjust results, what then does the obligation of the lawyer to
obey the laws consist in? Does this bind the lawyer to cram down the law despite its unjust results?
I take it that it is not to be seriously contested that a lawyer cannot ethically take up a position whether it
should serve his clients interests or not that would allow his client to transgress the law. After all, as an
officer of the court, the lawyer owes his allegiance principally to the court, without detracting from his fiduciary
obligation towards his client.
I am advancing a rather straightforward proposition: It is the lawyers obligation to be ethical that obligates him
to promote justice at all times and it is a lawyers espousal of the cause of justice that links the specialized
concern with the law to the ideal (not idealized) quality of social and individual human living.
With characteristic eloquence does the General Statute for the Spanish Bar (Estatuto General de La Abogacia
Espanola) make this point when it expressly provides:

The fundamental obligation of the lawyer as a participant in the public function of the administration of justice
is to cooperate in such administration, conciliating and defending in law such interests as may be entrusted to
him. In no case, however, do such interests ever justify the lawyers departure from the supreme end of justice
to which the Bar is inextricably linked.4
A propos are the exquisite lines written by the late iconic Justice J.B.L. Reyes which he suggested to be the
mantra of all lawyers:
No master but the law, No guide but conscience, No goal but justice.
These 13 simple words in 3 short lines which can be uttered in less than a second encapsulate what I have
been talking about in the past several minutes.
4 Estatuto General de la Abogacia Espanoloa, Titulo III, Capitulo Primero, Articulo 30
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The Ethics of Prosecutorial Discretion
Directly related to the subject of justice as the overarching criterion of ethical conduct on the part of the lawyer
is the matter of the exercise of prosecutorial discretion. From a string of decisions on the subject, I cite only
two, twin cases in fact: Po v. Department of Justice5 and Chiu v. Court of Appeals6. In these consolidated
cases, the Court held that, absent grave abuse of discretion, it could not interfere with the discretion of the
prosecutor to file a case, all that was required being a finding of probable cause.
Recently, as the Supreme Court enforced the newly-minted rule on the Judicial Affidavit, prosecutors were
agitated. They in fact succeeded in securing from the Court a stay in the implementation of the rule insofar as
they were concerned. The essence of their complaint was that, in those cases covered by the rule on the
judicial affidavits, they would have to be ready, already at pre-trial, with all the judicial affidavits of all the
witnesses they intend to present by which to prove the guilt of the accused. This is because Sec. 9 (b) of the
rule gives a caveat to the prosecution that judicial affidavits not submitted before the preliminary conference or
pre-trial shall not be accepted during the trial. The prosecutors argued that all that was necessary for the filing
of the Information was probable cause. Why then were they now required, under the new rule, to muster all
their evidence so that the judicial affidavits could be prepared and duly submitted before commencement of
trial?
I will formulate the issue in the following manner: Is it ethical for a prosecutor to file the Information in the
awareness that all the evidence that he has, establishes only probable cause which is of course insufficient to
convict the accused?
It has become commonplace for prosecutors to argue that since all that the rules require for Information to be
filed is probable cause, then that is the quantum of evidence they need at the time they go to court. I must
then ask: If they file the Information in the full awareness that at the time they do so, they have only such
evidence as establishes probable cause, would the prosecutors be acting legally in filing the Information? Yes,
of course. But would they be acting ethically?
Remember the Latin aphorism: Non omne quad licit bonestum est. (Not everything permitted is honorable)
But does a prosecutor have any option other than to file the information if in the preliminary investigation he
finds probable cause? The rule in effect provides that a finding of probable cause is necessary for the filing of
the information but it does not follow that where there is probable cause without anything more the

Information must be filed! The problem is first logical: the illicit transmutation of a categorical proposition is
required to a modal proposition must be filed!
5 G.R. 195198 (February 11, 2013) 6 G.R. 197098 (February 11, 2013)
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Probable cause is defined in Section 1, Rule 112 of the Rules of Court as that evidence which is sufficient to
engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof.
May I yet again ask: Is it ethical to indict a person for the commission of an offense which immediately and
inevitably puts him and the members of his family to shame, incarcerates him if the crime charged is nonbailable or even if bailable, if he cannot afford to post a bail, burdens him with expenses of litigation and
attorneys fees, and makes him suffer anxiety and the inconveniences of trial with time and effort spent when
all that the prosecutor has is evidence showing the probability of the indictees guilt? Note, most of these
burdens and injuries are emotional or psychological and, therefore, irreparable.
To answer that in the affirmative, is to me, to tolerate an injustice if not oppression.
To be sure, my proposition is not new at all.
The California District Attorneys Association Uniform Crime Charging Standards directs prosecutors according
to the following rules:
1. Basic Criteria for Charging: The prosecutor should charge only if the following four basic requirements are
satisfied:
a. The prosecutor, based on a complete investigation and a thorough consideration of all pertinent data readily
available to him, is satisfied that the evidence shows the accused is guilty of the crime to be charged; b. There
is legally sufficient, admissible evidence of a corpus delicti; c. There is legally sufficient, admissible evidence of
the accuseds identity as the perpetrator of the crime charged; d. The admissible evidence should be of such
convincing force that it would warrant conviction of the crime charged by a reasonable and objective fact-finder
after hearing all the evidence available to the prosecutor at the time of charging and after hearing the most
plausible, reasonably foreseeable defense that could be raised under the evidence presented to the prosecutor
xxx7
Why indeed should a prosecutor be allowed to gamble with the honor, the liberty, the property and the wellbeing of a person in the crucible of a criminal proceeding on the basis of a mere expectancy: that his
inadequate evidence may perchance be fortified or rehabilitated during trial?
7 Cited in Zimring and Frace, The Criminal Justice System (Boston: Little, Brown and Company, 1980), p. 443
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In a very informative and frank article by John Kaplan in the Northwestern Law Review, we are told how things
go in the federal prosecutors office. Kaplan writes: The first and most basic standard is the assistants
[Assistant United States Attorney] view of the accuseds guilt of the crime charged. It is generally agreed that,
regardless of the strength of the case, if the prosecutor does not actually believe in the guilt of the accused, he
has no business prosecuting.

JUDICIAL ETHICS
Judging For Justice
Nowhere in the sixteen sections that constitute Article VIII of our Constitution, on the judiciary, will one find
mention of justice. Of the two hundred ninety six sections of the fundamental law, justice figures only in the
Preamble and in Section 1 of Article XI that binds all public officers and employees to act with justice. I have
tried to explain this by the fact that justice is actually a very difficult concept. A non-legal attribute, it is in fact
a moral concept.
Article VIII, Section 14 confines the bases of a Courts judgment to the facts and the law. And when you
have a Supreme Court pronouncements like Courts are mere instruments of the law and in administering
and constructing it, they can will nothing but the will of the law8 then it should not be surprising that judges
will rest content about having rendered a judgment that pays obeisance to the letter of the law, no matter how
atrociously unjust the results may be.
In this regard, the important pronouncement of Justice Cruz in the Alonzo case earlier mentioned is worth
recalling:
Thus, we interpret and apply the law not independently of but in consonance with justice. Law and justice are
inseparable, and we must keep them so. To be sure, there are some laws that, while generally valid, may seem
arbitrary when applied in a particular case because of its peculiar circumstances. In such a situation, we are
not bound, because only of our nature and functions, to apply them just the same, in slavish obedience to their
language. What we do instead is find a balance between the word and the will, that justice may be done even
as the law is obeyed.
As judges, we are not automatons. We do not and must not unfeelingly apply the law as it is worded, yielding
like robots to the literal command without regard to its cause and consequence. Courts are apt to err by
sticking too closely to the words of a law, so we are warned, by Justice Holmes again, where these words
import a policy that goes beyond them. While we admittedly may not legislate, we nevertheless have the
power to interpret the law in such a way as to reflect the will of the legislature. While we may not read into the
law a purpose that is not there, we nevertheless have the right to read out of it
8 Tiamco v. Diaz, 76 Phil 672 (1946); Security Bank and Trust Co. v. Regional trial Court of Makati, 263 SCRA
483 (1996).
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the reason for its enactment. In doing so, we defer not to the letter that killeth but to the spirit that vivifieth, to
give effect to the law makers will.
Every judge will do well to pay heed once more to a provision of law that, because it is so familiar, is now no
longer carefully read. Article 10 of the Civil Code directs: In case of doubt in the interpretation or application of
laws, it is presumed that the lawmaking body intended right and justice to prevail. No matter that the seeming
transparency of the provision of law, if its application should result in iniquity, malice, injustice and unfairness,
then there is a resulting ambiguity that the judge must resolve in favor of the right and justice that the
Legislature is presumed to have intended.
I do not think then that there is anything so revolutionary about my proposal that when a magistrate renders
judgment, he should do so on the basis of fact and law with deliberate intent to do justice. And whether or not

the Constitution is amended to include this phrase or not, this, I submit, remains a moral imperative in every
act of judging.
In the several lecture sessions I have had with judges all over the country as a member of the Philippine
Judicial Academy, I have had the occasion to ask what they would do when confronted by this dilemma:
rendering a judgment that they knew to be legally correct but patently unjust. No one takes comfort from the
aphorism dura lex sed lex! You cannot quiet a conscience that bothers you about having visited injustice by
intoning a Roman aphorism!
If a law has not yet received an authoritative interpretation, then the trial court should construe it in such a way
as to attain justice. However, if there is already a precedent, the trial court is not at liberty to ignore it. The
doctrine which commands adherence to precedents in called stare decisis et non quieta movere which means
that once a case has been decided one way, then another case, involving exactly the same point at issue,
should be decided in the same manner.
But, if the case before the judge is not exactly on all-fours with the precedent due to some peculiar facts or
circumstances, then the judge, when demanded by the tenets of justice, may decide the case differently, in
effect constituting such an adjudication as an exception to the precedent. I submit that the rule on stare decisis
can accommodate this reasonable judicial rendition.
A famous American philosopher-jurist, Appellate Judge Richard Posner puts it well: The very thing that gives a
chain of precedents its strength length over time may in a changing society signal obsolescence.9
In relation to the social contexts in which judgments are to take effect, I would like to take up the matter of
public welfare in relation to the judicial disposition of cases. Note, like justice, public welfare is not
mentioned in the Constitution as one of the
9 Richard Posner, The Problems of Jurisprudence (Cambridge; Harvard University Press, 1990), p. 119
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bases of a decision. However, the preamble of the Constitution in part states that the government must
promote the common good. Section 4, Article II makes it the prime duty of the Government to serve and
protect the people. Section 1, Article XI commands that public officers and employees serve the people with
utmost responsibility and act with justice.
In our democratic government where the people are sovereign, their welfare is the ultimate goal of
government. In connection with the office of a judge, the question immediately presents itself: In rendering a
decision, should public interest or welfare be a relevant consideration? When a foreign investor, for example,
wins an award to construct a gargantuan project in the Philippines into which he is to invest a handsome sum,
but he fails to comply with some requirements, a case is brought for the rescission of the award. Would it be
ethical to be inclined towards rescission, or to find a way to save the award by employing such devices as
substantial compliance, constructive notice, good faith attempt, colorable title? Is it altogether
inconsequential to a judge that an adverse judgment against such an investor may very well keep potential
investors at bay and deprive thousands of Filipinos of jobs? I submit that under certain circumstances, public
welfare should be factored in the decisional process.
The Ethos of the Judge

I asked judges several times, if it has come to their knowledge that pictures and sketches were taken at the
scene of the vehicular incident but they are not before the court, should the judges demand for their production
in court if they believe that said pictures and sketches are needed by them to resolve an issue in the case.
Most of the time, judges answered that they would not, lest they be thought of favoring a party. In other words,
the prevailing ethos is one of passivity the judge merely awaiting what is presented before him and rules on
it.
It is time, I think, for the judge to be truly in control of proceedings: and this means asking for evidence, if the
judge thinks that the evidence is necessary. The fear of being suspected of bias should not prevail against the
judges passion to find the truth and to arrive at a fair judgment that does not depend on how successfully
parties have concealed evidence. True, it is, that this judicial attitude, we carried over from the Americans, but
as history has taught us, our American heritage is a bag of mixed blessings and woes.
Shift to Inquisitorial System of Trial
From the advent of the American colonial rule in the Philippines, the conduct of trial in our country had
generally been the adversarial system. This method is identified with the common law tradition. One aspect of
this system is the requirement that the judge should restrain himself from exercising his right to examine
witnesses. Tabuena v. Sandiganbayan,10 teaches that as much as possible, judges should stay out of the
conduct
10 206 SCRA 382 (1997)
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Revisiting Legal and Judicial Ethics: Challenges and Perspectives
of trial, neither interfering or intervening therein. They should ask questions to witnesses sparingly and
judiciously and only to clarify some ambiguities in the evidence.
The judge, in adversarial proceedings, is a neutral umpire, who ensures that the evidence is presented in
accordance with certain ground rules, and can generally ask only clarificatory questions, but not to take over
from the contending attorneys. He then adjudicates on the basis of the evidence presented by the adversary
parties.11
On September 4, 2012 the Supreme Court promulgated the Judicial Affidavit Rule12 which became effective
on January 1, 2013. Significantly, this issuance planted the seed of the inquisitorial system of trial in the
Philippines. Under this Rule, the questioning of witnesses by the judge is no longer just a right but more
importantly, an imperative duty. The judge, is commanded by Section 7 to take active part in examining the
witnesses to determine their credibility as well as the truth of their testimony and to elicit the answers that he
needs for resolving the issues.
Soon after the Judicial Affidavt Rule was promulgated, the Supreme Court has started the revision of the 1997
Rules of Civil Procedure. The proposed revision changes the trial system in the Philippines from generally
adversarial to generally inquisitorial system. Under the proposed rules the judge would not just be a passive
umpire but an active third party, representative of the States sovereignty, who seeks just solutions to disputes
and controversies.
Not too long ago, at a symposium organized by the Legal Education Board that had partnered with the
Graduate School of Law of San Beda College, Justice Roberto Abad and Dr. Pacifico Agabin introduced the
law deans to the proposed revision to the Rules of Civil Procedure. Features such as the requirement of written
demand and prior to submission to at least two modes of alternative dispute resolution, the requirement that

judicial affidavits be attached already to the initiatory and to the responsive pleadings, but above all the face-toface trial that involves the judge actively in the examination of the witness all these constitute a radical
departure from the comfort zone of lawyers for whom court room meant dais, witness box and counsels table
behind the Bar.
CONCLUSION: THE CULTIVATION OF LEGAL ACADEMIA
I shall conclude with a subject very close to my heart, as the very first chairman of the Legal Education Board.
From the time I entered into the discharge of the duties of my office, I have always advocated the development
of legal academia as a distinct profession. There is no doubt that all of us have been schooled at the feet of
giants in the legal profession, and ten of them have been honored by the Legal Education Board by inscribing
their names in the Hall of Fame, ten more were honored posthumously. But the fact is that law professors in
this country have largely been law practitioners with time
11 Farrar and Dugdale, Introduction to Legal Method, 2nd Edition (London: Sweet and Maxwell, 1984), pp. 59 60 12 A.M. No. 12-8-8-SC
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to spare for teaching law. In other words, almost all of us who teach law or who have taught it have been, at
best, incidental professors.
When I advance the cause of the formation of legal academia professorship and juristic scholarship, in other
words I am not advocating anything new. In fact, the Renaissance of Justinians Copus Juris Civilis is owed
to the professors at such ancient law faculties as Bologna and Padua where law primarily did not mean court
appearances and legal counseling but a discipline of study that exacted much in terms of intellectual energy
from those who pursued it.
We must then resolutely move towards the formation of legal academia as a distinct profession one that
places a premium on scholarship in the law, with the time and the opportunity to research and to explore on
topics great and small, not harried by the prospect of what might be asked in the Bar Examinations and that
prepares the academic for the supremely noble vocation of passing on to others, neophytes in the science of
jurisprudence and the law, the fruits of the academics mature and recondite reflections.