EN BANC

[ A.M. No. 21-06-20-SC. April 11, 2023 ]

RE: DISTURBING SOCIAL MEDIA POSTS OF LAWYERS/LAW
PROFESSORS,
DECISION

PER CURIAM:

Antecedents

By Resolution[1] dated June 29, 2021, the Court, motu proprio, required Atty. Noel V.
Antay, Jr. (Atty. Antay, Jr.), Atty. Ernesto A. Tabujara III (Atty. Tabujara), Atty. Israel
P. Calderon (Atty. Calderon), Atty. Morgan Rosales Nicanor (Atty. Nicanor) and Atty.
Joseph Marion Peña Navarrete (Atty. Navarette) to show cause why no administrative
charges should be filed against them for the following Facebook posts:

SP Leon Yatna [Atty. Noel V. Antay, Jr.]

Just prosecuted and helped convict a member of the LGBTA community

for large scale estafa. The new convict then began cussing at me accusing
me of being a bigot. A first for me. =)

The judge (who is somewhat effeminate) comes to my defense and warns

the felon to behave.

All in a day's work. =) =) =)

Ernesto Tabujara III

Sino yung bakla na judge sa Taguig sa MTC sa first floor?

Naka eye liner and eye shadow pag nag hehearing. Ang taray pa!

SP Leon Yatna

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 Napromote na yon, Boss Ticky. RTC Judge na kaya yon. =) =) =)

Ernesto Tabujara III

The joke among lawyers is that sa Taguig sa 2nd floor puro may sira sa
ulo mga judge, sa baba bakla at mga corrupt

SP Leon Yatna

No comment, Boss Ticky. May mga kaso pa ako doon eh. =) =) =)

Denden Calderon [Atty. Israel P. Calderon]

Baka type ka.

SP Leon Yatna

Bad ka, Prof. =)

Denden Calderon

SP Leon Yatna malay mo. Nakita n'ya intelligence mo given na good

looks eh na convict mo pa s'ya. Tapos syempre di ka mapapasakamay n'ya
kaya ayon imbyerna I. Charot haha.

SP Leon Yatna

Ang bad mo sakin, Prof =)

Morgan Nicanor

SP Leon Yatna oo tama. feel ko type ka bossing. hehehe.

SP Leon Yatna

Ay anak ng garapon. Dalawang Profs na. =) =) =)

Ernesto Tabujara III

Dapat kinurot mo! Charot!

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 Joseph Marion Navarrete

Morgan Nicanor natatandaan ko yung kliente mo dinala sa Ombudsman.

SP Leon Yatna

Kwento ka naman, Prosec Joseph =)

Joseph Marion Navarrete

Pinatawag lang ako ng Prof Morgan Nicanor mga panahon nayan. Tapos
bitbit niya kliyente niya. Ang natatandaan ko lang is malagkit tingin kay
papa, este Prof. Morgan.

SP Leon Yatna

Matikas kasi si Prof. Morgan eh, Habulin. =) [2]

Through his Compliance[3] dated October 25, 2021, Atty. Antay, Jr. expressed his
deep remorse and profound shame over the incident and extends his sincerest
apologies for whatever anxiety and alarm that his posts might have caused. He
further asserts that he could barely remember the posts and was only reminded of
them when he saw screenshots that had begun circulating. He could no longer
recover the posts through his social media account and he can only rely on the
unauthenticated screenshots and the forwarded copy of this Court's resolution (he had
not yet been served a copy thereof). What makes the incident more perplexing is that
his social media profile is locked and its contents cannot be accessed by outsiders. He
has always been discreet and private in his personal dealings. He has no excuse about
the incident and is mortified of how the breach occurred. He had no intention of
disrespecting any magistrate or undermining the Judiciary. His posts did not single
out or disparage anyone. His use of the phrase "member of the LGBT community" was
merely descriptive, not disparaging nor disrespectful. The word "effeminate" was not
used to describe a particular magistrate but merely to describe a non-antagonistic and
non-threatening demeanor. He never dreams of discriminating against or disparaging
any member of the Lesbian, Gay, Bisexual, Transsexual, Queer or Questioning,
Intersex, Asexual, and more (LGBTQIA+) community. He even tried to politely put
an end to the conversation by saying "Bad ka."[4]

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 In his Explanation[5] dated October 6, 2021, Atty. Nicanor claimed that he only made
a lone comment directed to "SP Leon Yatna" which read: "SP Leon Yatna oo tama.
Feel ko type ka bossing. Hehehe." He wholeheartedly apologizes to the Court for his
lapse in judgment and lack of discernment for the lone comment. The statement was
made in a playful banter and in jest – he was making fun of one of the commenters.
He never intended to malign, degrade, or debase any member of the Judiciary or the
LGBTQIA+ community. He has been a lawyer for more than a decade and had never
been subject of an administrative complaint. He is continually learning to improve
himself as a lawyer and as a person. Part of that process is the realization that from
time to time, he may have unintentionally offended anyone with his actuations.[6]

Atty. Navarrete, in his Explanation[7] dated October 7, 2021, claimed that he spent
his elementary and high school years in an all boys school, where, at a young age, he
was already exposed to members of the LGBTQIA+ community. Growing up, he has
had relatives, friends, neighbors and acquaintances who were also LGBTQIA+. He
has always treated everyone equally and never felt the need and pressure to
discriminate against members of the LGBTQIA+ community. Even during his
college years, he had classmates that were LGBTQIA+ and he treated them with
respect. There were even times that he had to ally himself with the LGBTQIA+
community and "had to befriends with them, even when they were shunned" and
looked down on. As a lawyer, he works with members of the LGBTQIA+ community
and different socio-economic groups. In fact, some of his closest friends are
LGBTQIA+ and are even godparents to his children.[8]

He apologizes for not being sensitive enough. This is one of those circumstances
where he may have committed a mistake via a playful comment and a joking
repartee. While the comments he made may have multiple meanings and
interpretations, the "naughty boy" in him may have impressed a dimple of disrespect
on the members of the LGBTQIA+ community. The comments he made were not
intended to malign, disrespect, debase or degrade the LGBTQIA+ community. As is,
his comments had nothing to do with the LGBTQIA+ community. He was merely
engaging in conversation about a past event and he did not even specify the sex or
sexual orientation of the person they were talking about. Other than the posts he
made, he has no personal knowledge about the matters posted about by the other
respondents.[9]

In his Comment[10] dated November 7, 2021, Atty. Tabujara III avers he is a

moderator of numerous online pages and forums and every post he makes is always
made in good faith. He has been a practicing lawyer for more than 30 years and he

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 has never been involved in any shenanigans nor made disrespectful or disparaging
remarks about any judge, justice or prosecutor. He has always abided by the
principles of legal ethics and have conducted himself as a lawyer to the best of his
ability.[11]

Though the posts portray him as an "LGBT bigot," that is not who he is. He has
LGBTQIA+ friends, colleagues and classmates with whom he has smooth and close
relationships spanning decades. The jokes they tell to each other were not meant to
insult or disparage anyone. On his DZRJ radio show "Equal Justice," he has hosted
LGBTQIA+ guests such as Lexter Victorio, who has executed a sworn affidavit[12]
on this fact. A long-time client, Ma. Nidzhen Salanguit-Angeles, who is also
LGBTQIA+, attests[13] that he has given advice to and made favorable posts for
LGBTQIA+ individiuals on Facebook. He is a strong supporter of the courts and the
rule of law by actively participating and co-sponsoring activities in support thereof
during his two terms as an officer of the Integrated Bar of the Philippines (IBP) –
Quezon City.[14]

By Resolution[15] dated June 21, 2022, the Court referred the matter to the Office of
the Bar Confidant (OBC) for investigation, report and recommendation.

Further, by Resolution[16] dated July 26, 2022, Atty. Calderon was deemed served of
the issuances from the Court.

Report and Recommendation

of the OBC

By its Report and Recommendation[17] dated August 31, 2022, the OBC
recommended that the lawyers concerned be admonished. It noted that the lawyers'
comments show that the main topic of the online exchange were certain members of
the LGBTQIA+ community and judges in Taguig City. Though no names were
mentioned, the comments were made in a degrading and shameful manner. All those
involved in the administration of justice, such as lawyers, must always conduct
themselves with the highest degree of propriety and decorum. They should also
exercise caution in avoiding incidents that tend to degrade the Judiciary and diminish
the dignity, respect and regard for the courts. More, they should refrain from making
remarks and conjectures that tend to ridicule a certain segment of the population such
as the LGBTQIA+ community. Nonetheless, the lawyers concerned all apologized
and appear to be remorseful. They even pleaded for mercy and expressed that they

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 had no intention to disrespect any member of the Judiciary or the LGBTQIA+
community. Considering the foregoing, the lawyers should be admonished.[18]

Issues

1) Can the erring lawyers invoke their right to privacy as a shield against
administrative liability, if any?

2) What are the respective violations, if any, of the Code of Professional

Responsibility (CPR) committed by Attys. Antay, Jr., Tabujara III, Calderon, Nicanor
and Navarrete?

Ruling

Lawyers' right to privacy

vis-à-vis online
activities, not absolute

The lawyers' right to privacy, especially when it comes to their social media account,
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. On this score, Belo-
Henares v. Atty. Guevarra[19] (Belo-Henares) comprehensively explains:

Facebook is currently the most popular social media site, having

surpassed one (1) billion registered accounts and with 1.71 billion
monthly active users. Social media are web-based platforms that enable
online interaction and facilitate users to generate and share content. There
are various classifications of social media platforms and one can be
classified under the "social networking sites" such as Facebook.

Facebook is a "voluntary social network to which members subscribe and

submit information. x x x It has a worldwide forum enabling friends to
share information such as thoughts, links, and photographs, with one
another." Users register at this site, create a personal profile or an open
book of who they are, add other users as friends, and exchange messages,
including automatic notifications when they update their profile. A user
can post a statement, a photo, or a video on Facebook, which can be made
visible to anyone, depending on the user's privacy settings.

To address concerns about privacy, but without defeating its purpose,

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 Facebook was armed with different privacy tools designed to regulate the
accessibility of a user's profile, as well as information uploaded by the
user. In H v. W, the South Gauteng High Court of Johannesburg, Republic
of South Africa recognized this ability of the users to "customize their
privacy settings," but with the cautionary advice that although Facebook,
as stated in its policies, "makes every effort to protect a user's
information, these privacy settings are however not foolproof."

Consequently, before one can have an expectation of privacy in his or

her online social networking activity - in this case, Facebook - it is
first necessary that said user manifests the intention to keep certain
posts private, through the employment of measures to prevent access
thereto or to limit its visibility. This intention can materialize in
cyberspace through the utilization of Facebook's privacy tools. In
other words, utilization of these privacy tools is the manifestation, in
the cyber world, of the user's invocation of his or her right to
informational privacy.[20] (Emphasis supplied.)

Belo-Henares then went on to explain why there is no assurance that posts on

Facebook, or any social media platform for that matter, can be placed within the
confines of privacy, viz.:

Moreover, even if the Court were to accept respondent's allegation that his
posts were limited to or viewable by his "Friends" only, there is no
assurance that the same – or other digital content that he uploads or
publishes on his Facebook profile – will be safeguarded as within the
confines of privacy, in light of the following:

(1)Facebook "allows the world to be more open and

connected by giving its users the tools to interact and
share in any conceivable way;"

(2)A good number of Facebook users "befriend" other

users who are total strangers;

(3)The sheer number of "Friends" one user has, usually by

the hundreds; and

(4)A user's Facebook friend can "share" the former's post,

or "tag" others who are not Facebook friends with the
former, despite its being visible only to his or her own

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 Facebook friends. (Emphasis supplied)

Thus, restricting the privacy of one's Facebook posts to "Friends"

does not guarantee absolute protection from the prying eyes of
another user who does not belong to one's circle of friends. The user's
own Facebook friend can share said content or tag his or her own
Facebook friend thereto, regardless of whether the user tagged by the
latter is Facebook friends or not with the former. Also, when the post
is shared or when a person is tagged, the respective Facebook friends
of the person who shared the post or who was tagged can view the
post, the privacy setting of which was set at "Friends." Under the
circumstances, therefore, respondent's claim of violation of right to
privacy is negated.[21] (Underscoring and emphases supplied.)

In light of Belo-Henares, the Court cannot give credence to Atty. Antay, Jr.'s
invocation 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.[22] 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.

At any rate, even granting veracity to Atty. Antay, Jr.'s allegations, no reasonable
expectation of privacy arises in this case. It is settled that in ascertaining whether
there is a violation of the right to privacy, the test is whether a person has a
reasonable expectation of privacy and whether the expectation has been violated.
This, in turn, entails a two-part test: (1) whether, by a person's conduct, such
individual has exhibited an expectation of privacy; and (2) this expectation is one that
society recognizes as reasonable.[23] On this score, Belo-Henares is clear: there can
be no reasonable expectation of privacy as regards social media postings, 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.
[24]

The lawyers' duty to use

respectful language and
duty to observe due
respect for the courts
and its officers;
consequences of breach

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 The applicable provision of the CPR is Rule 7.03, viz.:

Rule 7.03 - A lawyer shall not engage in conduct that adversely reflects on
his fitness to practice law, nor shall he whether in public or private life,
behave in a scandalous manner to the discredit of the legal profession.

Indeed, lawyers, as keepers of public faith, are burdened with a high degree of social
responsibility and, hence, must handle their personal affairs with great caution.[25]
Citing anew Belo-Henares v. Atty. Guevarra,[26] the Court suspended Atty. Roberto
C. Guevarra for one year from the practice of law for his defamatory posts on
Facebook. The Court noted his breach of Rule 7.03 in this wise:

By posting the subject remarks on Facebook directed at complainant and

BMGI, respondent disregarded the fact that, as a lawyer, he is bound to
observe proper decorum at all times, be it in his public or private life. He
overlooked the fact that he must behave in a manner befitting of an officer
of the court, that is, respectful, firm, and decent. Instead, he acted
inappropriately and rudely; he used words unbecoming of an officer of the
law, and conducted himself in an aggressive way by hurling insults and
maligning complainant's and BMGI's reputation.

That complainant is a public figure and/or a celebrity and therefore, a

public personage who is exposed to criticism does not justify
respondent's disrespectful language. It is the cardinal condition of all
criticism that it shall be bona fide, and shall not spill over the walls of
decency and propriety. In this case, respondent's remarks against
complainant' breached the said walls, for which reason the former must be
administratively sanctioned.

"Lawyers may be disciplined even for any conduct committed in their

private capacity, as long as their misconduct reflects their want of
probity or good demeanor, a good character being an essential
qualification for the admission to the practice of law and for
continuance of such privilege. When the Code of Professional
Responsibility or the Rules of Court speaks of conduct or misconduct,
the reference is not confined to one's behavior exhibited in connection
with the performance of lawyers' professional duties, but also covers
any misconduct, which—albeit unrelated to the actual practice of
their profession—would show them to be unfit for the office and
unworthy of the privileges which their license and the law invest in

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 them." Accordingly, the Court finds that respondent should be suspended
from the practice of law for a period of one (1) year, as originally
recommended by the IBP-CBD, with a stem warning that a repetition of
the same or similar act shall be dealt with more severely.[27] (Emphasis
supplied)

Undoubtedly, inappropriate, disrespectful, and defamatory language of lawyers, even

in the private sphere, are still within reach of this Court's disciplinary authority.

Members of the legal profession must respect LGBTQIA+ individuals' freedom to be

themselves and express who they are, as part of their constitutionally-guranteed right
of freedom of expression. On this score, Ang Ladlad LGBT Party v. COMELEC[28]
expounds:

Freedom of expression constitutes one of the essential foundations of

a democratic society, and this freedom applies not only to those that
are favorably received but also to those that offend, shock, or disturb.
Any restriction imposed in this sphere must be proportionate to the
legitimate aim pursued. Absent any compelling state interest, it is not for
the COMELEC or this Court to impose its views on the populace.
Otherwise stated, the COMELEC is certainly not free to interfere with
speech for no better reason than promoting an approved message or
discouraging a disfavored one.

This position gains even more force if one considers that homosexual
conduct is not illegal in this country. It follows that both expressions
concerning one's homosexuality and the activity of forming a political
association that supports LGBT individuals are protected as well.

Other jurisdictions have gone so far as to categorically rule that even

overwhelming public perception that homosexual conduct violates public
morality does not justify criminalizing same-sex conduct. European and
United Nations judicial decisions have ruled in favor of gay rights
claimants on both privacy and equality grounds, citing general privacy
and equal protection provisions in foreign and international texts. To the
extent that there is much to learn from other jurisdictions that have
reflected on the issues we face here, such jurisprudence is certainly
illuminating. These foreign authorities, while not formally binding on
Philippine courts, may nevertheless have persuasive influence on the
Court's analysis.

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 In the area of freedom of expression, for instance, United States courts
have ruled that existing free speech doctrines protect gay and lesbian
rights to expressive conduct. In order to justify the prohibition of a
particular expression of opinion, public institutions must show that their
actions were caused by "something more than a mere desire to avoid the
discomfort and unpleasantness that always accompany an unpopular
viewpoint."

xxx

We do not doubt that a number of our citizens may believe that

homosexual conduct is distasteful, offensive, or even defiant. They are
entitled to hold and express that view. On the other hand, LGBTs and
their supporters, in all likelihood, believe with equal fervor that
relationships between individuals of the same sex are morally
equivalent to heterosexual relationships. They, too, are entitled to
hold and express that view. However, as far as this Court is
concerned, our democracy precludes using the religious or moral
views of one part of the community to exclude from consideration the
values of other members of the community.[29] (Emphases supplied)

More, the Court reiterates that the Philippines adheres to the internationally-
recognized principle of non-discrimination and equality. CBEAI v. Bangko Sentral ng
Pilipinas[30] is apropos:

The principle of equality has long been recognized under international

law. Article 1 of the Universal Declaration of Human Rights
proclaims that all human beings are born free and equal in dignity
and rights. Non-discrimination, together with equality before the law and
equal protection of the law without any discrimination, constitutes basic
principles in the protection of human rights.

Most, if not all, international human rights instruments include some

prohibition on discrimination and/or provisions about equality. The
general international provisions pertinent to discrimination and/or equality
are the International Covenant on Civil and Political Rights (ICCPR); the
International Covenant on Economic, Social and Cultural Rights
(ICESCR); the International Convention on the Elimination of all Forms
of Racial Discrimination (CERD); the Convention on the Elimination of

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 all Forms of Discrimination against Women (CEDAW); and the
Convention on the Rights of the Child (CRC).

In the broader international context, equality is also enshrined in

regional instruments such as the American Convention on Human
Rights; the African Charter on Human and People's Rights; the European
Convention on Human Rights; the European Social Charter of 1961 and
revised Social Charter of 1996; and the European Union Charter of Rights
(of particular importance to European states). Even the Council of the
League of Arab States has adopted the Arab Charter on Human Rights in
1994, although it has yet to be ratified by the Member States of the
League.

The equality provisions in these instruments do not merely function

as traditional "first generation" rights, commonly viewed as
concerned only with constraining rather than requiring State action.
Article 26 of the ICCPR requires "guarantee[s]" of "equal and effective
protection against discrimination" while Articles 1 and 14 of the
American and European Conventions oblige States Parties "to ensure ...
the full and free exercise of [the rights guaranteed] without any
discrimination" and to "secure without discrimination" the enjoyment of
the rights guaranteed. These provisions impose a measure of positive
obligation on States Parties to take steps to eradicate discrimination.[31]

Clearly, the principles of non-discrimination and equality are deeply embedded in the
Philippine system of laws. As such, every member of the legal profession is bound to
observe and abide by them, especially when dealing with LGBTQIA+ individuals.
Incidentally, any discriminatory act can be a source of civil liability as underscored in
Social Security System v. Ubaña:[32]

"That public policy abhors inequality and discrimination is beyond

contention. Our Constitution and laws reflect the policy against these
evils. The Constitution in the Article on Social Justice and Human Rights
exhorts Congress to 'give highest priority to the enactment of measures
that protect and enhance the right of all people to human dignity, reduce
social, economic, and political inequalities.' The very broad Article 19 of
the Civil Code requires every person, 'in the exercise of his rights and in
the performance of his duties, [to] act with justice, give everyone his due,
and observe honesty and good faith.'"[33]

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 We also reckon with Falcis v. Civil Registrar General,[34] where the eminent
Associate Justice, now Senior Associate Justice Marvic Mario Victor F. Leonen aptly
noted:

"[t]hose with sexual orientations other than the heteronormative, gender

identities that are transgender or fluid, or gender expressions that are not
the usual manifestations of the dominant and expected cultural binaries—
the lesbian, gay, bisexual, transgender, queer, intersex, and other gender
and sexual minorities (LGBTQI+) community—have suffered enough
marginalization and discrimination within our society."

He also went on to highlight the severity of discriminatory acts inflicted on the

LGBTQIA+ community in the Philippines, viz.:

A 2012 coalition report submitted by OutRight Action International,

together with 40 Philippine LGBTQI+ and human rights group and 13
activists, to the 106th Session of the United Nations Human Rights
Committee showed that from 1996 to 2012, 163 LGBTQI+ persons have
been murdered due to their gender identity, gender expression, or sexual
orientation. The report documented discriminatory acts against LGBTQI+
groups and persons both by State and non-State actors.

In 2016, EnGendeRights, Inc. and OutRight Action International, as with

34 Philippine groups and individuals, submitted a report to the Committee
on the Elimination of Discrimination against Women. This report
documented the lack of national anti-discrimination, gender recognition,
and hate crime legislation, as well as cases of discrimination by police,
health workers, educators, employers, and the judiciary against LGBTQI+
persons.

A more recent report submitted in 2017 by civil society organizations to

the Universal Periodic Review of the United Nations Human Rights
Council continued to document human rights violations against
LGBTQI+ persons, including an existing legal framework inadequate to
address systemic problems of discrimination and exclusion.

xxx

Too, Section 2 of Republic Act No. 11313[35] also known as the "Safe Spaces Act"
explicitly states that: "It is the policy of the State to value the dignity of every human

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 person and guarantee full respect for human rights. It is likewise the policy of the
State to recognize the role of women in nation-building and ensure the fundamental
equality before the law of women and men. The State also recognizes that both men
and women must have equality, security and safety not only in private, but also on
the streets, public spaces, online, workplaces and educational and training
institutions."

Inappropriate, disrespectful, belligerent or malicious language can be a source of

criminal liability under the Safe Spaces Act. Gender-based sexual harassment -
encompassing transphobic and homophobic slurs - in streets and public spaces[36] as
well as online,[37] may warrant progressive penalties ranging from community
service, fines and imprisonment.

Verily, members of the legal profession may simultaneously incur administrative,

civil and criminal liability on the basis of their language alone. It goes without saying
that lawyers are held to a higher standard as they all took the Lawyer's Oath by which
they all committed to "support the Constitution and obey the laws as well as the legal
orders of the duly constituted authorities therein."[38]

Analogous cases and the

corresponding
administrative penalties
under Rule 8.01 and
Canon 11 under the
CPR

In ascertaining the liability of lawyers for inappropriate and disrespectful language in

their private dealings, the Court looks to analogous cases where lawyers, and even
judges, were sanctioned for their inappropriate language in the discharge of their
roles as either officers of the court or as magistrates, respectively.

Rule 8.01[39] allows a lawyer to be forceful and emphatic in his or her language, but,
it should always be dignified and respectful, befitting the dignity of the legal
profession.[40] On many occasions, the Court has reminded the members of the Bar
to abstain from any offensive personality and to refrain from any act prejudicial to the
honor or reputation of a party or a witness. In keeping with the dignity of the legal
profession, a lawyer's language even in his or her pleadings, must be dignified.[41]

When it comes to language involving members of the LGBTQIA+ community, the

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 Court had sanctioned judges for offensive and impertinent language. In Dojillo, Jr. v.
Ching,[42] Judge Jaime Dojillo was admonished for his offensive language, viz.:

In the case of Judge Dojillo, he should be admonished to be more

circumspect in his choice of words and use of gender-fair language.
There was no reason for him to emphatically describe Concepcion as
a "lesbian" because the complained acts could be committed by
anyone regardless of gender orientation. His statements like "I am a
true man not a gay to challenge a girl and a lesbian like her," "the
handiwork and satanic belief of dirty gossiper," and "the product of the
dirty and earthly imagination of a lesbian and gossiper" were uncalled
for.

Being called to dispense justice, Judge Dojillo must demonstrate finesse

in his choice of words as normally expected of men of his stature. His
language, both written and spoken, must be guarded and measured lest the
best of intentions be misconstrued.[43] (Emphasis supplied)

In Espejon v. Judge Loredo,[44] Judge Jorge Emmanuel M. Lorredo was found to

have committed simple misconduct when he badgered litigants about their sexual
orientation and used homophobic slurs[45] during court proceedings and even in his
comment to the administrative complaint against him. There, the Court pronounced:

The statements Judge Lorredo made during the preliminary

conference, and especially in the Comment he filed in this case, are
clearly tantamount to homophobic slurs which have no place in our
courts of law. The fact that they were made by no less than a magistrate
should be rightfully upset the Court and must perforce be penalized. It
was not too long ago when the Court in Ang Ladlad LGBT Party v.
Commission on Elections declared that "as far as this Court is concerned,
our democracy precludes using religious or moral views of one part of the
community to exclude from consideration the values of other members of
the community." Thus, it should come as a matter of course for all judges
to desist from any word or conduct that would show or suggest anything
other than inclusivity for the members of the LGBTQIA+ community.
(Emphasis supplied)

Going now to analogous disciplinary measures meted under Canon 11,[46] it is a

lawyer's sworn duty to maintain a respectful attitude towards the courts.[47] A lawyer

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 must not sow hate or disrespect against the court and its members. He or she must be
at the forefront in upholding its dignity.[48] Tiongco v. Hon. Aguilar[49] outlines the
intricacies of a lawyer's obligation under Canon 11, viz.:

This duty is closely entwined with his vow in the lawyer's oath "to
conduct himself as a lawyer with all good fidelity to the courts;" his duty
under Section 20 (b), Rule 138 of the Rules of Court "[t]o observe and
maintain the respect due to the courts of justice and judicial officers;" and
his duty under the first canon of the Canons of Professional Ethics "to
maintain towards the courts a respectful attitude, not for the sake of the
temporary incumbent of the judicial office, but for the maintenance of its
incumbent of the judicial office, but for the maintenance of its supreme
importance."[50]

Indubitably, violation of Canon 11 warrants the imposition of an administrative

penalty.

In Judge Baculi v. Atty. Battung,[51] a lawyer was suspended for one year and sternly
warned for publicly berating a judge and threatening the latter with an administrative
complaint for gross ignorance of the law.

In Go v. Court of Appeals,[52] two lawyers were individually fined and sternly

warned for their disrespectful language[53] against a judge in their pleadings.

In Tiongco v. Hon. Aguilar,[54] a lawyer was fined and warned for his use of
intemperate language in his petition before the Court.

In Genato v. Mallari,[55] a lawyer who challenged a Court of Appeals Justice to a

public debate after losing a case, was disbarred since his offense was already
compounded by his other infractions in other incidents likewise involving justices
and judges.

Verily, disrespectful and intemperate language by a lawyer may entail a warning, a

fine, suspension and/or disbarment – depending on the severity of the offense.

The respective
administrative liabilities
of Attys. Antay, Jr.,
Tabujara III, Calderon,

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 Nicanor and Navarrete

It is not a defense that the discriminatory language was uttered in what was
seemingly intended to be private exchanges among the macho men. The fact that
their exchanges became public trumps whatever intention they may have had to keep
their communications private. Seekers of righteousness cannot seek cover under a
pledge of anonymity when their actions are brought to light for everyone's scrutiny.
Here, this was what happened. Unfortunately or fortunately, respondents' true
character came to light. Their secret codes divulged. This was their undoing. Their
conversations became public and have become a public proceeding by the turn of
events, as if they were uttered in a public discourse such as a court hearing.

Atty. Antay, Jr. was the one who initiated the Facebook thread by stating that he had
successfully prosecuted a case for estafa against a member of the LGBTQIA+
community. The convicted individual allegedly started cursing at him and accused
him of being a bigot. He then narrated that the judge, whom he described as
"somewhat effeminate" chastised the convict. Note that at the outset, Atty. Antay, Jr.
began the conversation with homophobic undertones by emphatically describing the
convict as a member of the LGBTQIA + community and the judge as effiminate.
These descriptions are uncalled for and have no context in the narrative, thus,
showing his gender bias.

Adding to the homophobic tone of the conversation, Atty. Tabujara III asked about a
Metropolitan Trial Court judge, whom he described as "bakla (gay)," in Taguig City
who wore eyeshadow and eyeliner. The judge was allegedly "mataray pa (prickly
demeanor)." He then proceeded to say that the joke among lawyers is that in the
Taguig Hall of Justice, judges in the second floor have "sira ng ulo (not right in the
head)" while those in the first floor are homosexuals and corrupt.

Here, Atty. Tabujara III unduly put emphasis on the judge's gender expression by
pointing out the wearing of eyeshadow and eyeliner – he said these things to
unnecessarily underscore the judge's sexual orientation. Additionally, he made
sweeping statements about the mental state of Taguig judges, thus, implying they are
unfit to perform their duties. Worse, Atty. Tabuja III lumped the allegedly
homosexual judges with the allegedly corrupt ones, thereby implying that
homosexual judges have the same degree of immorality as those of corrupt judges.
Undoubtedly, such sweeping, baseless and homophobic statements perpetuate the
stereotype of homosexuality as a moral flaw and abomination that must be quashed.

Atty. Calderon chimed in, saying that there is a possibility that the convict may have

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 been attracted to Atty. Antay, Jr., that was why the convict cursed at him. Atty.
Calderon hinted that the convict may have been frustrated at the thought that he could
not sexually have ("mapapasakamay") Atty. Antay, Jr.. Such statements by Atty.
Calderon may seem innocuous at first glance, yet, in truth baselessly and
demeaningly insinuate perverse intentions against a member of the LGBTQIA+
community. Atty. Calderon seemingly implies that the convict's outburst at Atty.
Antay, Jr. was rooted in his frustration on not having relations with or the affection of
Atty. Antay, Jr.. Such statement tends to propagate and enforce an unfair and harmful
stereotype regarding the sexual pinings of members of the LGBTQIA+ community.
This, however, is not representative of the LGBTQIA+ individuals and, therefore,
must be quelled. There is no room for such stereotypes in conversations among
lawyers.

Atty. Nicanor agreed with Atty. Calderon by saying "[Oo] tama. Feel ko type ka
bossing (That's right. I think you were the convict's type)." While he said nothing
more, he, too, fortified the misleading stereotype painted by Atty. Calderon in his
comment. Context shows his aggreance to his colleagues' malstatements.

Lastly, Atty. Navarrete recalled an incident involving Atty. Nicanor and a client at the
Office of the Ombudsman. Atty. Navarrete narrated that Atty. Nicanor's client looked
at the latter in an admiring ("malagkit") way. While there is no express hint of
homophobia or disrespect in Atty. Navarrete's comments, these comments
nonetheless carry the same wrong and perverse undertones often pinned against
LGBTQIA+ individuals. To stress, the Court cannot condone such improper conduct
and language by respondents against the LGBTQIA+ community.

Based on the foregoing, the Court finds each of respondents guilty of breaching Rule
7.03 of the CPR.

Atty. Nicanor, Atty. Navarrete, Atty. Antay, Jr. and Atty. Calderon must answer for
their intemperate language against the LGBTQIA+ community. Their fixation on the
respective sexual orientations of their subjects was uncalled for and they should be
more circumspect in their choice of words and be mindful of gender-fair language.
Thus, Atty. Nicanor, Atty. Navarrete, Atty. Antay, Jr. and Atty. Calderon should be
reprimanded, with stern warning that a repetition of the same or similar offense will
be dealt with more severely. An admonition will not suffice. Tobias v. Judge
Veloso[56] explains:

A warning, in ordinary parlance, has been defined as "an act or fact of

putting one on his guard against an impending danger, evil consequences

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 or penalties," while an admonition, "refers to a gentle or friendly reproof a
mild rebuke, warning or reminder, counselling, on a fault, error or
oversight, an expression of authoritative advice or warning." They are not
considered as penalties. A reprimand, on the other hand, is of a more
severe nature, and has been defined as a public and formal censure or
severe reproof, administered to a person in fault by his superior
officer or a body to which he belongs. It is more than just a warning
or an admonition.[57] (Emphasis supplied)

So must it be.

A heavier penalty is imposed on Atty. Tabujara III for not only did he violate Rule
7.03 of the Code of Professional Responsibility, he 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. Such language jeopardizes the high esteem in courts and is
prohibited per Tiongco v. Hon. Aguilar:[58]

Proscribed then are, inter alia, the use of unnecessary language which
jeopardizes high esteem in courts, creates or promotes distrust in judicial
administration (Rheem, supra), or tends necessarily to undermine the
confidence of the people in the integrity of the members of this Court and
to degrade the administration of justice by this Court (In re: Sotto, 82 Phil.
595 [1949]); or of offensive and abusive language (In re: Rafael Climaco,
55 SCRA 107 [1974]); or abrasive and offensive language (Yangson vs.
Salandanan, 68 SCRA 42 [1975]); or of disrespectful, offensive,
manifestly baseless, and malicious statements in pleadings or in a letter
addressed to the judge (Baja vs. Macandog, 158 SCRA 391 [1988], citing
the resolution of 19 January 1988 in Phil. Public Schools Teachers
Association vs. Quisumbing, G.R. No. 76180, and Ceniza vs. Sebastian,
130 SCRA 295 [1984]); or of disparaging, intemperate, and uncalled-for
remarks (Sangalang vs. Intermediate Appellate Court, 177 SCRA 87
[1989]).[59]

The Court notes that, unlike the other lawyers here, Atty. Tabujara III did not
sincerely apologize. He only said: "Unfortunately, some conversations may rub some
persons the wrong way or offend certain people. I do not profess to be perfect. I do
make mistakes occasionally. If I have hurt anyone, I am sorry and seek to make
amends. No one is 100% perfect."[60] He is the only one so far who has not

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 acknowledged his participation in the conversation and he seems to completely
sidestep the fact that he made such sweeping statements against judges pertaining to
their mental health or their sexual orientation. There is no slightest hint of remorse.
What makes the offense worse is that Atty. Tabujara III is a professor. On this score,
Re: Anonymous Complaint Against Cresencio P. Co Untian[61] expounds:

Respondent's responsibilities and expectations are even more heightened

because he is a law professor. He should be a beacon of righteous and
conscientious conduct. Respondent, as a molder of minds of soon-to-be
lawyers, should guide his students to behave and act in a manner
consistent with the lofty standards of the legal profession. Instead, he
abused his position of authority creating an offensive and uncomfortable
atmosphere in school. Again, what should be a place of learning and
growth had become a place of fear and distrust for the affected students.

Further, it is even more disappointing that respondent fails to

acknowledge the consequences of his actions and disregard the hurt
Sagarbarria, Toyco and Dal may have felt. He generally claimed that they
did not express any distress, embarrassment, or humiliation during the
incidents complained of. It must be stressed that as their law professor,
respondent exercised moral ascendancy over them. Thus, it is within
reason that the concerned students could not have readily expressed
disgust or annoyance over a person in authority. It takes courage and
strength to stand up and speak against any form of sexual harassment.
This is especially true considering that in most cases, the offender wields
power, authority, or influence over the victim.[62]

Here, the Court is disturbed by the unapologizing stance of Atty. Tubajara III and his
seeming disregard of his position as "molder of minds of soon-to-be lawyers" who is
tasked with guiding "his students to behave and act in a manner consistent with the
lofty standards of the legal profession." Nor can his claims of being an ally and
supporter of the LGBTQIA+ community absolve him of any liability. In fact, it
smacks of hypocrisy, for if he was truly unbiased, he would have refrained from
engaging in a homophobic and disrespectful conversation. No one consciously and
intentionally disrespect or humiliate those they hold with esteem and affection. And
if hurt was unintentionally inflicted, a sincere apology can lessen the sting.

Consequently, like in Tiongco, Atty. Tabujara III must be sanctioned. We however

cannot follow the penalty imposed in Tiongco. For one, Tiongco is dated. For another,
the power of social media has multiplied the adverse impact of the statements of Atty.

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 Tabujara III a countless times. Hence, he is fined PHP 25,000.00 with stern warning
that a repetition of the same or similar offense will be dealt with more severely.

ACCORDINGLY, the Court RESOLVES to:

1) REPRIMAND Atty. Morgan Rosales Nicanor, Atty. Joseph Marion Peña

Navarrete, Atty. Noel V. Antay, Jr. and Atty. Israel P. Calderon for violation of
Rule 7.03 of the Code of Professional Responsibility, with STERN WARNING
that a repetition of the same or similar offense will be dealt with more severely;
and

2) IMPOSE A FINE in the amount of PHP 25,000.00 on Atty. Ernesto A. Tabujara

III for violation of Rule 7.03 of the Code of Professional Responsibility, with
STERN WARNING that a repetition of the same or similar offense will be dealt
with more severely.

Let a copy of this Decision be attached to the respective personal records of Atty.
Morgan Rosales Nicanor, Atty. Joseph Marion Peña Navarrete, Atty. Noel V. Antay,
Jr., Atty. Israel P. Calderon, and Atty. Ernesto A. Tabujara III in the Office of the Bar
Confidant.

Too, furnish a copy of this Decision to the Integrated Bar of the Philippines for its
information and guidance; and the Office of the Court Administrator for
dissemination to all courts of the Philippines.

SO ORDERED.

Gesmundo, C.J., Caguioa, Hernando, Lazaro-Javier, Inting, Zalameda, M. Lopez,

Gaerlan, Rosario, J. Lopez, Dimaampao, Marquez, Kho, Jr., and Singh, JJ., concur.
Leonen, SAJ., I concur. See separate opinion.

[1] Rollo, pp. 17-19.

[2] Id. at 17-18.

[3] Id. at 44-51.

[4] Id. at 44-47.

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 [5] Id. at 70-74.

[6] Id. at 70-72.

[7] Id. at 79-85.

[8] Id. at 79-81.

[9] Id. at 81-83.

[10] Id. at 108-110.

[11] Id. at 108-109.

[12] Id. at 111.

[13] Id. at 113.

[14] Id. at 109.

[15] Id. at 147-c.

[16] Id. at 169.

[17] Id. at 171-175.

[18] Id. at 174-175.

[19] 801 Phil. 570 (2016) [Per J. Perlas-Bernabe, First Division].

[20] Id. at 583-585.

[21] Id. at 585-586.

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 [22] Dayandayan v. Rojas, G.R. No. 227411, July 15, 2020 [Per J. Gaerlan, Third
Division].

[23] See Spouses Hing v. Choachuy, Sr., 712 Phil. 337, 350 (2013) [Per J. Del
Castillo, Jr., Second Division].

[24] Supra note 19 at 585.

[25] See Torres v. Dalangin, 822 Phil. 80, 102 (2017) [Per J. Reyes, Jr., En Banc].

[26] Supra note 19.

[27] Id. at 588.

[28] 632 Phil. 32 (2010) [Per J. Del Castillo, En Banc].

[29] Id. at 80-85.

[30] 487 Phil. 531 (2004) [Per J. Puno, En Banc].

[31] Id. at 588-590.

[32] 767 Phil. 575 (2015) [Per J. Del Castillo, Second Division].

[33] Id. at 591.

[34] 861 Phil. 388, 413 (2019) [Per J. Leonen, En Banc].

[35] An Act Defining Gender-Based Sexual Harassment in Streets, Public Spaces,

Online, Workplaces, and Educational or Training Institutions, Providing Protective
Measures and Prescribing Penalties therefor: April 17, 2019.

[36] Section 4. Gender-Based Streets and Public Spaces Sexual Harassment. - The
crimes of gender-based streets and public spaces sexual harassment are committed
through any unwanted and uninvited sexual actions or remarks against any person
regardless of the motive for committing such action or remarks.

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 Gender-based streets and public spaces sexual harassment includes catcalling, wolf-
whistling, unwanted invitations, misogynistic, transphobic, homophobic and sexist
slurs, persistent uninvited comments or gestures on a person's appearance, relentless
requests for personal details, statement of sexual comments and suggestions, public
masturbation or flashing of private parts, groping, or any advances, whether verbal or
physical, that is unwanted and has threatened one's sense of personal space and
physical safety, and committed in public spaces such as alleys, roads, sidewalks and
parks. Acts constitutive of gender-based streets and public spaces sexual harassment
are those performed in buildings, schools, churches, restaurants, malls, public
washrooms, bars, internet shops, public markets, transportation terminals or public
utility vehicles.

Section 5. Gender-Based Sexual Harassment in Restaurants and Cafes, Bars and

Clubs, Resorts and Water Parks, Hotels and Casinos, Cinemas, Malls, Buildings and
Other Privately-Owned Places Open to the Public. - Restaurants, bars, cinemas,
malls, buildings and other privately-owned places open to the public shall adopt a
zero-tolerance policy against gender-based streets and public spaces sexual
harassment. These establishments are obliged to provide assistance to victims of
gender-based sexual harassment by coordinating with local police authorities
immediately after gender-based sexual harassment is reported, making CCTV footage
available when ordered by the court, and providing a safe gender-sensitive
environment to encourage victims to report gender-based sexual harassment at the
first instance.

All restaurants, bars, cinemas and other places of recreation shall install in their
business establishments clearly-visible warning signs against gender-based public
spaces sexual harassment, including the anti-sexual harassment hotline number in
bold letters, and shall designate at least one (1) anti-sexual harassment officer to
receive gender-based sexual harassment complaints. Security guards in these places
may be deputized to apprehend perpetrators caught in flagrante delicto and are
required to immediately coordinate with local authorities.

Section 6. Gender-Based Sexual Harassment in Public Utility Vehicles. - In addition

to the penalties in this Act, the Land Transportation Office (LTO) may cancel the
license of perpetrators found to have committed acts constituting sexual harassment
in public utility vehicles, and the Land Transportation Franchising and Regulatory
Board (LTFRB) may suspend or revoke the franchise of transportation operators who
commit gender-based streets and public spaces sexual harassment acts. Gender-based
sexual harassment in public utility vehicles (PUVs) where the perpetrator is the

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 driver of the vehicle shall also constitute a breach of contract of carriage, for the
purpose of creating a presumption of negligence on the part of the owner or operator
of the vehicle in the selection and supervision of employees and rendering the owner
or operator solidarity liable for the offenses of the employee.

Section 7. Gender-Based Sexual Harassment in Streets and Public Spaces Committed

by Minors. - In case the offense is committed by a minor, the Department of Social
Welfare and Development (DSWD) shall take necessary disciplinary measures as
provided for under Republic Act No. 9344, otherwise known as the "Juvenile Justice
and Welfare Act of 2006."

[37] Section 12. Gender-Based Online Sexual Harassment. - Gender-based online

sexual harassment includes acts that use information and communications technology
in terrorizing and intimidating victims through physical, psychological, and
emotional threats, unwanted sexual misogynistic, transphobic, homophobic and sexist
remarks and comments online whether publicly or through direct and private
messages, invasion of victim's privacy through cyberstalking and incessant
messaging, uploading and sharing without the consent of the victim, any form of
media that contains photos, voice, or video with sexual content, any unauthorized
recording and sharing of any of the victim's photos, videos, or any information
online, impersonating identities of victims online or posting lies about victims to
harm their reputation, or filing, false abuse reports to online platforms to silence
victims.

[38] Section 17 of Rule 138 of the Rules of Court.

[39] Rule 8.01 - A lawyer shall not, in his professional dealings, use language which
is abusive, offensive or otherwise improper.

[40] Noble III v. Atty. Ailes, 762 Phil. 296, 301 (2015) [Per J. Perlas-Bernabe, First
Division].

[41] Gimeno v. Atty. Zaide, 759 Phil. 10, 23-24 (2015) [Per J. Brion, Second
Division].

[42] 612 Phil. 47 (2009) [Per J. Carpio Morales, Second Division].

[43] Id. at 57-58.

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 [44] A.M. No. MTJ-22-007, March 9, 2022 [Per J. Caguioa, First Division].

[45] 1) "Being a homosexual pervert may be one of the reasons why a person is being
punished by God with not having a home of his own and with being ejected"; and 2)
"pagkabading, tomboy, lesbian, ayaw ng Diyos".

[46] CANON 11 - A LAWYER SHALL OBSERVE AND MAINTAIN THE

RESPECT DUE TO THE COURTS AND TO JUDICIAL OFFICERS AND
SHOULD INSIST ON SIMILAR CONDUCT BY OTHERS.

[47] Genato v. Atty. Mallari, 865 Phil. 247, 259 (2019) [Per Curiam, En Banc].

[48] Id.

[49] 310 Phil. 652 (1995) [Per J. Davide, First Division].

[50] Id. at 659.

[51] 674 Phil. 1, 10 (2011) [Per J. Brion, Second Division].

[52] 293 Phil. 425 (1993) [Per J. Romero, Third Division].

[53] Indeed, in the Motion for Reconsideration, counsels for petitioner describe as
"unparalleled for sheer malevolence" respondent judge's allegedly erroneous
assumptions. Petitioner's lawyers further stated: "Petitioner's counsel, citing the
above proceedings, contested the trial judge's baseless, nay despotic attempt to
muzzle his right to be heard in his defense ..." The trial judge's actions were also
branded as an obviously unholy rush to do petitioner in ..."

In the Urgent Motion filed by petitioner on December 16, 1992, respondent judge is
alleged to have: (1) "generated belief of his being under contract to do the
prosecution's bidding;" (2) "evinced contempt for Supreme Court case law;" and (3)
"dishonored his judicial oath and duty to hear before he condemns, proceed upon
inquiry, and render judgment on a man's liberty only after a full trial of the facts. Id.
at 452.

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 [54] 310 Phil. 652 (1995) [Per J. Davide, Jr., First Division].

[55] Supra note 47 at 259.

[56] 188 Phil. 267 (1980) [Per J. Melencio-Herrera, First Division].

[57] Id. at 274.

[58] Supra note 54.

[59] Id. at 662-663.

[60] Rollo, p. 99.

[61] 851 Phil. 352 (2019) [Per J. Reyes, Jr., En Banc].

[62] Id. at 366.

SEPARATE CONCURRING OPINION

LEONEN, SAJ.:

I concur. Atty. Noel V. Antay, Jr., Atty. Ernesto A. Tabujara III, Atty. Israel P.
Calderon, Atty. Morgan Rosales Nicanor, and Atty. Joseph Marion Peña Navarrete
(respondents) should be disciplined by this Court for their Facebook posts.

In Falcis v. Civil Registrar General,[1] this Court introduced a definition of the

concept of "sexual orientation":

Guidelines for Psychological Practice with Transgender and Gender

Nonconforming People, 70 AMERICAN PSYCHOLOGIST 832, 862
(2015), available at
<https://www.apa.org/practice/guidelines/transgender.pdf> (last visited on
September 2, 2019), provides:

Sexual orientation: a component of identity that includes a person's sexual

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 and emotional attraction to another person and the behavior and/or social
affiliation that may result from this attraction. A person may be attracted
to men, women, both, neither, or to people who are genderqueer,
androgynous, or have other gender identities. Individuals may identify as
lesbian, gay, heterosexual, bisexual, queer, pansexual, or asexual, among
others.[2]

"Gender identity" and "gender expression" were defined as:

SECTION 3. Definition of Terms. — As used in this Act:

....

(f) Gender identity and/or expression refers to the personal sense of

identity as characterized, among others, by manner of clothing,
inclinations, and behavior in relation to masculine or feminine
conventions. A person may have a male or female identity with
physiological characteristics of the opposite sex, in which case this person
is considered transgender[.]

Gender identity has also been defined in Guidelines for Psychological

Practice with Transgender and Gender Nonconforming People, 70
AMERICAN PSYCHOLOGIST 832, 862 (2015), available at
<https://www.apa.org/practice/guidelines/transgender.pdf> (last visited on
September 2, 2019), as follows:

Gender identity: a person's deeply felt, inherent sense of being a boy, a

man, or male; a girl, a woman, or female; or an alternative gender (e.g.,
genderqueer, gender nonconforming, gender neutral) that may or may not
correspond to a person's sex assigned at birth or to a person's primary or
secondary sex characteristics. Because gender identity is internal, a
person's gender identity is not necessarily visible to others. "Affirmed
gender identity" refers to a person's gender identity after coming out as
[transgender and gender non-conforming] or undergoing a social and/or
medical transition process.

Sexual Orientation, Gender Identity and Expression, and Sex

Characteristics at the Universal Periodic Review, ARC
INTERNATIONAL, THE INTERNATIONAL BAR ASSOCIATION
AND THE INTERNATIONAL LESBIAN, GAY, BISEXUAL, TRANS

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 AND INTERSEX ASSOCIATION 14 (2016), available at
<https://ilga.org/downloads/SOGIESC_at_UPR_report.pdf> (last visited
on September 2, 2019), provides:

Gender expression: External manifestations of gender, expressed through

one's name, pronouns, clothing, haircut, behavior, voice, or body
characteristics. Society identifies these cues as masculine and feminine,
although what is considered masculine and feminine changes over time
and varies by culture. Typically, transgender people seek to make their
gender expression align with their gender identity, rather than the sex they
were assigned at birth.[3]

Further, Falcis recognized that our Constitution is "capable of accommodating a

contemporaneous understanding of sexual orientation, gender identity and
expression, and sex characteristics"[4] in its provisions. As such, this Court has noted
that the term "marriage" in Article XV, Section 2 is textually not defined or restricted
based on sex, gender, sexual orientation, gender identity or expression.[5]

Similarly, our Constitution is equally capable of accommodating a contemporaneous

understanding of sexual orientation, gender identity and expression, and sex
characteristics (SOGIESC) in Article II, Section 11:

SECTION 11. The State values the dignity of every human person and
guarantees full respect for human rights.

Respect is at the core of human dignity, and this includes respect for each person's
SOGIESC.

It is often wrongly assumed that only people who are lesbian, gay, bisexual,
transgender, queer or similar (LGBTQ+) have a SOGIESC. The truth is that all
persons have SOGIESC. When LGBTQ+ persons seek respect for their SOGIESC,
they are only asking for the same respect and dignity afforded to persons whose
SOGIESC are in the majority or the so-called mainstream—heterosexual, or a sexual
orientation defined by sexual and romantic attraction to persons of the opposite sex;
cisgender, or gender identity that corresponds to their sex assigned at birth or their
primary or secondary sex characteristics; and gender expression that conforms to
conventional or traditional ideas of masculinity and femininity. Many heterosexual,
cisgender, and gender-conforming persons have no need to seek respect for their
SOGIESC because their identities are respected without question, with their
SOGIESC already aligned with social and cultural expectations. But for people

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 whose SOGIESC are outside what is perceived to be the norm, respect is not so much
a given, as it is often a struggle: a life-long struggle, both internally—for a person to
accept who they are—and externally—for others to accept them. As noted in Falcis:

Cultural hegemony often invites people to conform to its impositions on

their identities. Yet, there are some who, despite pressures, courageously
choose to be authentic to themselves. This case is about the assurance of
genuine individual autonomy within our constitutional legal order. It is
about the virtue of tolerance and the humane goal of nondiscrimination. It
is about diversity that encourages meaningful—often passionate—
deliberation. Thus, it is about nothing less than the quality of our freedom.
[6]

I agree with the ponencia in that LGBTQ+ people's freedom to be themselves and
expression of who they are is part of their constitutionally granted right of freedom of
expression.[7] But more than that, LGBTQ+ people's struggle for respect goes hand in
hand with the defense of their right to exist. As with other marginalized peoples,
LGBTQ+ people have been historically perceived to be undeserving of being treated
with dignity. To this day, their dehumanization and othering persist. Treating
LGBTQ+ people as though they are subhuman or "the other" too often becomes
license for the deprivation, time and time again, of their fundamental human rights,
including their right to life.

The duty of recognition and protection of human rights is incumbent upon all people,
as members of a common human society. And the faithful discharge of that duty is all
the more demanded from members of the Philippine Bar, who have taken an oath to
uphold the Constitution and its provisions. When lawyers use discriminatory and
derogatory language, they not only disrespect the specific lawyers and judges to
whom the language is directed, but also demonstrate their disrespect for the inherent
dignity and rights of an entire group of marginalized peoples. I agree with the
ponencia in this:

It is not a defense that the discriminatory language was uttered in what

was seemingly intended to be private exchanges among the macho men.
The fact that their exchanges became public trumps whatever intention
they may have had to keep their communications private. Seekers of
righteousness cannot seek cover under a pledge of anonymity when the[ir]
actions are brought to light for everyone's scrutiny. Here, this was what
happened. Unfortunately or fortunately, respondents' true character came
to light. Their secret codes divulged. This was their undoing. Their
conversations became public and have become a public proceeding by the

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 turn of events, as if they were uttered in a public discourse such as a court
hearing.[8]

The fitness to practice law is not only a matter of competence, but also of character.
Respondents' acts are in violation of Rule 7.03 of the Code of Professional
Responsibility, and they must be disciplined accordingly.

ACCORDINGLY, I vote as follows:

1) REPRIMAND Atty. Morgan Rosales Nicanor, Atty, Joseph Marion Peña

Navarrete, Atty. Noel V. Antay, Jr. and Atty. Israel P. Calderon for violation of
Rule 7.03 of the Code of Professional Responsibility, with STERN WARNING
that a repetition of the same or similar offense will be dealt with more severely;
and

2) IMPOSE A FINE in the amount of PHP 25,000.00 on Atty. Ernesto A. Tabujara

III for violation of Rule 7.03 of the Code of Professional Responsibility, with
STERN WARNING that a repetition of the same or similar offense will be dealt
with more severely.

[1] G.R. No. 217910, September 3, 2019 [Per J. Leonen, En Banc].

[2] Id., footnote 102.

[3] Id., footnote 103.

[4] Id.

[5] Id.

[6] Id.

[7] Ponencia, p. 9.

[8] Id. at 16.

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