S1L33 – “Conflict of Interest” Involving a Public Prosecutor
This evening class I want to discuss a very controversial and contentious topic: judicial independence and the integrity of the criminal-justice system.”
The whole class went, “Ooooooh…!”
“Facts—a judge in Cawatan City, which is somewhere in the Philippines I’ve never been to, was seen in a posh five-star hotel having dinner with the CEO of a corporation that is trying to buy out a local cable company,” I started when Juan Dimacaawat suddenly butted in.
“I’m sorry, just to be clear, sir, by ‘cable company’ did you mean a hardware store that sells cable wires?”
“No, Jack, I meant a company that has cable wires strung along electric posts all across the city. Can you visualize that?”
“Yes, sir. Please continue…” the whole class laughed at how masterfully my student, in just 10 seconds flat, turned things around making ME recite!
“Thank you, Sir Juan!” I indulged him before continuing, “Anyway, just a few weeks after that incident, this judge dismissed two cases filed against the company owned by that CEO that were pending in his sala. Of course, there was a lot of speculations, very naughty ones. Because of social media, this incident caught the attention of many prominent citizens not only in Cawatan City but reaching out as far as Manila. Some were so outraged by the public conduct of that judge, fraternizing with a businessman like that, that they shared some of their Facebook posts with 2 or 3 justices of the Supreme Court whom they knew personally.”
It was Deema’s turn to butt in, “Don’t overwhelm us with too much facts sir. Are there any more?”
“No more, Miss Niwala. That’s it, basically. Now, my question is this: based on the New Code of Judicial Conduct, what would you do if you were the Supreme Court?”
I saw the raised hand of Hannah Maala, the gentle potato farmer’s daughter from Buguias. So I called on her, “By the way, before you answer Miss Hannah, your friend there Miss Deema just recently made me aware that your name ‘Hannah’ is a palindrome. It reads the same forwards or backwards he-he-he. I think that’s really cute.”
“Yes, sir, I thank my mother everyday that she didn’t give me one of those doorbell names…”
“Doorbell WHAT??”
“Well, you know, sir those names that sound like you’re ringing the doorbell—Bongbong, Kring kring, Ningning, Bingbong, Lingling, Singsing…” again the whole class started laughing.
“Well, maybe YOU hear a doorbell,” I said, “who knows their parents might be hearing a cash register drawer opening,” the class kept laughing. Deema started doing her ‘thing’ again stomping her feet as she laughed.
“But answer my question, Hannah, what would you do?”
“I would strip that judge of his judicial robe sir, remove him from the bench. He is an embarrassment to the judiciary and a disgrace to the legal profession!”
“Wow,” I said, staggered by the astronomically high standard of legal ethics of this girl. I said it again–BACKWARDS this time, “Wow!”
“Let me intercede for a moment for that poor judge, Miss Hannah,” I said slowly. I want my students NOT to develop an attitude of legal extremism. It’s always wise to start from a moderate position, because it’s very easy to escalate and very hard to undo damage.
“Wouldn’t you give him a ‘show cause’ order first and ask him to explain his behavior, Miss Hannah?”
“Well, sir, that judge violated about eleven provisions in the Canons of Judicial Ethics…even in baseball, just three strikes and you’re out. What about eleven?”
“Read it, Hannah, read those canons,” I said. I don’t make them memorize anything. I hate law students who memorize things they haven’t understood and couldn’t explain anyway.
“Canon 4, Section 1, sir, states that ‘Judges shall avoid impropriety and the appearance of impropriety in all of their activities.’ In my humble opinion sir, no judge should be wining and dining with litigants, and especially not with FUTURE litigants.”
“Yes, I see your point. That dinner took place less than 3 months before the judge dismissed the two cases, “ I agreed with Miss Maala.
“But, you know, Hannah, judges are humans too. They have need of socialization just like you and me. Won’t you give them just a little bit of wiggle room? Just a tiny one?” I’m starting to feel like I was lawyering for that corrupt judge.
“Well, sir, nobody put a gun to their heads and forced them to accept the prestigious position of a judge. They should know that sacrifice comes with the job.” Hannah said.
“The law says that?”
“Yes, sir. Right here in Section 2: ‘As a subject of constant public scrutiny, judges must accept personal restrictions that might be viewed as burdensome by the ordinary citizen… judges shall conduct themselves in a way that is consistent with the dignity of the judicial office.’
“Lordy Lord…” I said, “somebody ought to realize that even the mere appearance of corruption is a big deal. There is no appeal in the court of public opinion, class, I want you to take note of that. The Supreme Court is all too aware that once public trust on the courts is destroyed, it’s going to be very difficult to repair.”
Derma raised her hand, “Yes Ameed,” I said with a chuckle.
“My name is not a palindrome sir! You just changed my gender by reading my name backwards. SEXISM, SIIIIIIRRR!” the class burst out laughing at the favorite expression of this post-modern Jane Fonda. I have developed some tolerance for her because she is, after all, the undeclared summa cum laude of this class. It’s a good thing she doesn’t allow it to get to her head.
“Alright, Miss Deema, do you agree with Miss Palindrome here—I mean, Miss Hannah—that we should be maximally harsh on a misbehaving judge?”
“I do, sir. If anybody should understand the meaning of ‘dura lex sed lex’ it should be a judge. I know, for a fact, sir that in that scandalous dinner with that judge, there were two lawyers present too. If he is foolish enough to allow himself to be caught in a compromising situation like that, how competent of a judgment can he make?”
“See, Miss Deema, let me play devil’s advocate here. It’s a ‘guy thing’ that we lawyers do, you know, have a couple of drinks after work, you know, it’s all clean fun…”
“A ‘guy thing’? SEXISM SIIIIR!!!”
“Will you forget about the sexism for a minute, Miss Deema,” I said trying to refocus the girl, “just go ahead and read me that part of the law where it says fellow lawyers can’t do this ‘guy thing’ just because one of them happens to be a judge…”
“Gladly sir! It’s right here on Section 3 of Canon 4: ‘Judges shall, in their personal relations with individual members of the legal profession who practice regularly in their court, avoid situations which might reasonably give rise to the suspicion or appearance of favoritism or partiality.’ And on that score sir, I can’t think of anything more suspicious than a judge dismissing two cases against your client after you had an expensive dinner with that judge.”
I looked at the class. They’ve suddenly lost their sense of humor. They seemed disdained that I was beginning to sound like an enabler—and to think I was just PLAYING devil’s advocate! It’s all make-believe.
But at the same time I felt a sudden surge of hopeful pride at the purity and idealism of youth. These young people—they’re not yet lawyers—but they hold in their hands an uncompromising moral compass many lawyers have lost many years ago.
Now I just have to make sure they don’t allow that zeal to substitute for competence. So I expanded the scope of the ethical debate beyond what their books covered.
“Listen class, you’re all correct about that misbehaving judge. Now let me ask you a parallel question, and this is totally hypothetical, keep that in mind, I just want to see how you would universalize the concept. Are you up to that?”
“TRY US, SIR!” they all chorused.
“Alright. The same facts. But this time, the person involved is a public prosecutor—NOT a judge—how many of you think the Supreme Court would come down as hard on that public prosecutor?” Everybody raised their hands up high.
Except Deema.
I stepped down from the lectern and walked over to where she sat and stood directly in front of her.
“After all that fire and brimstone spewing out of you’re mouth about that judge, Miss Deema Niwala, would you care to explain to us why you don’t think the Supreme Court would come down just as hard on a public prosecutor who did the exact same thing?”
“Yes, sir….I know that the Supreme Court would uphold the Constitution and respect the Doctrine of Separation of Powers. The public prosecutor works for the National Prosecution Service under the Department of Justice, which is under the Executive Branch. A public prosecutor is not part of the Judiciary, sir, as shocking as that may sound to many people. So I think the Supreme Court would defer to the Secretary of Justice in cracking the whip on corrupt prosecutors, sir.”
There was a brief spell of silence that I literally heard Deema drop the hairpin she was clutching in her fingers.
“That is excellent, Deema,” I said while the class was still processing what she just said.
“On the other hand, sir,” the girl wasn’t done yet, “a public prosecutor is still a lawyer and the Supreme Court still has direct jurisdiction over him and how he practices law. At some point, there would still be a reckoning, he will still be held accountable.”
“Of course,” I said, inwardly thinking to myself I’m a little embarrassed that my student beat me to the point.
“And how do you think this public prosecutor could be held accountable, Miss Deema?”
“I don’t know, sir.”
THAT is the answer I have been trying hard to train my students to use in the right situation. We can’t know everything. We are all ignorant—on different subjects. I want these young people to realize that it’s not important to just know things all the time. It’s more important to be HONEST all the time. That’s precisely why we do research. This was my chance do something I haven’t been able to do for quite a while: give an assignment.
“For your assignment, class, for our discussion next time—I want you to research ‘how do you make a public prosecutor accountable for the SAME ACT for which a judge can be removed?’ … class dismissed.”
The author is a writer and lawyer based in Baguio City, Philippines. Former editor of the Gold Ore and Baguio City Digest, professor of journalism, political science and law at Baguio Colleges Foundation (BCF). He is a photographer and video documentarist. He has a YouTube channel called “Parables and Reason”