Badoy told to comment on repercussions of her statements and if they are protected by Constitution

MANILA — A week after issuing a stern warning, the Supreme Court on Tuesday issued a show cause order requiring former anti-insurgency task force spokesperson Lorraine Badoy to explain why she should not be cited in contempt over her statements against a Manila judge.

In a 1-page press briefer, the high court’s public information office said the Supreme Court en banc ordered Badoy to “SHOW CAUSE, within a non-extendible period of 30 calendar days from the time that this Resolution is served on her, why she should not be CITED IN CONTEMPT OF THE JUDICIARY AND THEREFORE OF THIS COURT.”

The briefer did not mention which specific statements of Badoy the high court is asking her to explain but it referred to “statements attacking the September 21, 2022 Resolution” of a Manila court.

Judge Marlo Magdoza-Malagar of Manila Regional Trial Court Branch 19 had junked on September 21 the proscription case filed by the Department of Justice (DOJ) which sought to declare the Communist Party of the Philippines (CPP) and the New People’s Army (NPA) as terrorist groups.

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In a Facebook post, Badoy criticized Malagar’s ruling as “judgment straight from the bowels of communist hell” and accused the judge of “lawyering” for the CPP-NPA when she ruled that rebellion and political crimes are not acts of terrorism.

In the same post, Badoy posed a hypothetical scenario: “So if I kill this judge and I do so out of my political belief that all allies of the CPP NPA NDF must be killed because there is no difference in my mind between a member of the CPP NPA NDF and their friends, then please be lenient with me.”

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In the Supreme Court’s en banc order Tuesday, Badoy was asked to explain, under oath, the following issues:

• Whether or not she posted or caused the posting of the statements attacking the September 21, 2022 Resolution rendered by the Regional Trial Court in Civil Case No. R MNL-18-00925-CV in any or all of her social media accounts;
• Whether or not her social media post encouraged more violent language against the judge concerned in any or all of her social media platforms;
• Whether or not her post, in the context of social media and in the experience of similar incendiary comments here or abroad, was a clear incitement to produce violent actions against a judge and is likely to produce such act; and
• Whether or not her statements on her social media accounts, implying violence on a judge, is part of her protected constitutional speech.

The SCPIO briefer made clear that the high court issued the order in connection with the administrative matter it initiated, which it referred to in last week’s warning.

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While it noted letters from HUKOM, Inc. (a group of trial court judges) and the University of the Philippines College of Law Faculty, as well as the Court Administrator’s report on the steps taken to ensure Judge Magdoza-Malagar’s safety, it did not mention a new petition for indirect contempt filed by a group of lawyers and law deans on Tuesday morning.

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‘SC CLOSING RANKS’

The language of the show cause order issued by the SC is not the usual show cause order issued by a court in indirect contempt proceedings under Rule 71 of the Rules of Court.

Unlike direct contempt which is committed in the presence of the court and immediately punished, an indirect contempt charge for certain cases committed outside the court may either be initiated by the offended court on its own or it may filed by a verified petition before the court.

Contemptuous acts include any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice.

The Supreme Court, in the order, however said that Badoy should explain why she should not be cited “in contempt of the Judiciary and therefore of this Court.”

Former SC spokesperson Theodore Te said the high court is treating Badoy’s statements as an attack against the entire Judiciary.

“My reading of the language is that the SC is saying that it is contempt against the entire Judiciary led by the SC even as the language of Badoy threatened only one judge; it is the SC closing ranks,” Te said.

“Since it is a motu proprio action by the SC, it is not specifically referring now just to the statement against Judge Malagar but to the entire judicial branch as a whole,” he added.

On Twitter, Te also highlighted the “very specific formulation of issues.”

“The formulation of issues reads like a formulation of issues for oral argument; it still refers to the contempt power but anticipatory of any free expression defenses that may be raised,” he said.

He pointed out that the third issue which Badoy is being asked to comment on could go into the US case of Brandenburg vs. Ohio which deals with the First Amendment on free speech, while the 4th issue on whether Badoy’s statements can be considered protected speech under the Constitution anticipates a freedom of speech defense.

In the Brandenburg case, the US Supreme Court ruled that a speech advocating the use of force or unlawful conduct cannot be prohibited unless it is likely to incite or produce “imminent lawless action.” This case figured prominently during the oral arguments on the Anti-Terrorism Act.

Badoy, in a subsequent post, had cited her constitutional right to an opinion in justifying her statements.

• Badoy to Supreme Court: I did not threaten Judge Malagar

But Albay First District Rep. Edcel Lagman had rejected this argument.

“That is a futile defense for a very aggressive and arrogant speech. It should not be protected anymore by our Constitution. She has crossed the boundary of legitimate speech,” he said in an interview with ANC.

REACTION

Reacting to the SC show cause order, Edre Olalia, president of the National Union of Peoples’ Lawyers said it welcomed the Supreme Court’s initiative to warn Badoy about her statements and to afford her due process.

But he hopes the high court would also take note of the September 26 statement signed by 485 lawyers calling for SC to act against attacks on judicial independence. The number of signatories has climbed to 612 as of September 30.

“We also await at the proper time that relative to the factual and legal issues defined by the Court, the cognate issues of red-tagging not only on Judge Malagar but also against lawyers be necessarily touched upon in the ultimate resolution of the matter,” he said.

Lawyers, activists and human rights groups have accused Badoy of red-tagging not only the judge but also her husband, a UP Cebu chancellor, by linking them to the CPP-NPA.

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