LEGAL MEMORANDUM

TO: Atty. Spencer M. Albos

FROM: Aaron Angelo A. Montesa
DATE: January 11, 2023
RE: Contempt of Court; Red-tagging a Judge; Criminal Liability of Lorraine Badoy

Questions Presented
1. Whether red-tagging a judge constitutes contempt of court
2. Whether criminal liability arises when one red-tags a judge

Brief Answer
1. Yes. Under the 1997 Rules of Civil Procedure, any improper conduct tending to
impede, obstruct, or degrade the administration of justice is a form of indirect
contempt punishable by the court. In addition, jurisprudence holds that any
conduct directed against the authority and dignity of a court or of a judge is a form
of criminal contempt. Since red-tagging is an act that destroys the dignity and
credibility of a judge by identifying them with communist violence and terrorism,
it is a form of indirect criminal contempt.
2. Yes. Under the Revised Penal Code, criminal liability arises when a person
commits a felony although the wrongful act done be different from that which he
intended, or when a person performs an act which would be an offense against
persons or property, were it not for the inherent impossibility of its
accomplishment. Although no law has been passed criminalizing red-tagging in
general, criminal liability can still arise from it when done against a judge as this
would constitute criminal contempt which, according to jurisprudence, takes the
nature of a criminal case.

Statement of Facts
On September 23, 2022, Lorraine Badoy, the former spokesperson of National Task
Force to End Local Communist Armed Conflict (NTF-ELCAC), posted a tirade on her
Facebook account following a court decision by herein client Marlo Magdoza-Malagar,
the presiding judge of Manila RTC Branch 19. 1 In the decision, Magdoza-Malagar

1Mike Navallo, Ex-ELCAC spox Badoy threatens judge, then denies Facebook post, Paragraph 2,
https://news.abs-cbn.com/spotlight/09/24/22/badoy-threatens-judge-then-denies-fb-post (September,
24, 2022).

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dismissed the proscription case of the Department of Justice (DOJ) against CPP-NPA-
NDF mainly for the reason that the organization was not established for the purpose of
engaging in terrorism per se. 2 Badoy viewed this as an impartiality on the part of
Magdoza-Malagar, accusing the judge of favoring the CPP-NPA-NDF and excusing
violence. Elsewhere in the post, she also called Magdoza-Malagar “idiot,”
“unprincipled,” and a “traitor.”
Apart from that, Badoy repeatedly red-tagged Magdoza-Malagar, labelling her as
a terrorist, “a friend of the CPP NPA NDF” and “an ally of a terrorist organization,” and
asserted that the judge is a communist and that her husband, Leo Malagar, is a member
of the CCP-NPA-NDF himself.3 She threatened the life of Magdoza-Malagar by writing
“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.” She also explicitly
made threats not only to toward other judges “who are friends of terrorists,” writing that
she will “bomb the offices” of these “corrupt judges.” 4
Although Badoy has since deleted the Facebook post, it still incited condemnation
from various sources. Concerned members of the University of the Philippines College
of Law Faculty published a statement condemning the acts of Badoy. Furthermore, a
group of lawyers has filed a petition before the Supreme Court seeking to cite Badoy for
indirect contempt over her statements. 5 Lastly, the Court per se acted motu proprio
ordering Badoy to show cause why she should not be cited in contempt of court over her
statements red-tagging and threatening the life of Magdoza-Malagar.6

Discussion
1. Whether red-tagging a judge constitutes contempt of court
Contempt of court is generally defined as a willful disregard or disobedience of a
public authority. This can come in the form of (a) disorderly conduct so as to cause the
interruption of a judicial body’s proceedings, or (b) misbehavior so as to impair the
respect due to such a body.7

2 Sundy Locus, DOJ to file new CPP-NPA proscription case at Court of Appeals, Paragraph 6,
https://www.gmanetwork.com/news/topstories/nation/845827/doj-to-file-new-cpp-npa-proscription-
case-at-court-of-appeals/story (September 23, 2022).
3 Mike Navallo, supra note 1.
4 Id.
5 Mike Navallo, Lawyers file contempt petition vs Badoy before SC, https://news.abs-

cbn.com/news/10/04/22/lawyers-file-contempt-plea-vs-badoy-before-sc (October 4, 2022)

6 Re: Judge Marlo A. Magdoza-Malagar
7 Castillejos Consumers Association, Inc. v. Dominguez, 757 Phil. 149, 158-159 (2015)

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 The 1997 Rules of Civil Procedure penalizes contempt of court, which it classified into
two: direct and indirect contempt.8 Although both pertains to obstructive behavior and
disrespect towards the Judiciary, its members, and its process, the main difference
between the two is that the former is done “in the presence of or so near a court” so as to
obstruct or interrupt its proceedings.9 Indirect contempt, on the other hand and as the
name would suggest, need not be done in the presence of or in close proximity to a court
or its members so long as it is an act that “tends, directly or indirectly, to impede, obstruct,
or degrade the administration of justice.”10
The case of Perkins v. Director of Prisons further nuanced the concept of contempt by
classifying it into two: civil and criminal contempt. While civil contempt pertains to the
failure to do something ordered to be done by a court, criminal contempt pertains to
conduct directed against the authority and dignity of a court or of a judge, as in
“unlawfully assailing or discrediting the authority or dignity of the court or judge, or in
doing a duly forbidden act.”11
In the case at hand, the online statement of Badoy is a clear example of disrespect
towards a member of the Judiciary. She explicitly hurled insults at Magdoza-Malagar,
called the judge “idiotic,” “unprincipled,” and a “traitor,” and even stated a threat, albeit
hypothetically, on her life. Furthermore, she red-tagged Magdoza-Malagar by
implicating, numerous times, that she is a supporter of communist violence, explicitly
identifying her and her husband with the CPP-NPA-NDF.
The dissenting opinion of Justice Marvic Leonen in Zarate v. Aquino III12 defined the
act of red-tagging as “vilification, labelling, or guilt by association of various democrat
organizations.” Although red-tagging has no official definition or is not officially
penalized as a crime under Philippine laws, it can still be punishable as a form of criminal
contempt when it is done against a judge, for red-tagging a judge entails “vilifying” her
and attacking her character and credibility.
In Re: Verified Complaint of Fernando Castillo Against Associate Justice Mariflor Punzalan-
Castillo, Court of Appeals, Manila, it has been stated that unfounded criticisms against
members of the Judiciary degrade the judicial office and greatly interfere with the due
performance of their functions in the Judiciary13 since these insults sow seeds of distrust
of the public against the Judiciary and reduce its credibility as the branch of government
that is concerned with the administration of justice.14 Hence, although red-tagging is not

8 1997 RULES OF CIV. PROC., Rule 71.

9 Id., Rule 71, sec 1.
10 Id., sec 3, par. (d).
11 Perkins v. Director of Prisons, 58 Phil., 271 (1948)
12 Zarate v. Aquino III, G.R. No. 220028 (Notice), November 10, 2015.
13 Re: Verified Complaint of Fernando Castillo Against Associate Justice Mariflor Punzalan-Castillo, Court

of Appeals, Manila, IPI No. 17-267-CA-J, April 24 2018.

14 Tallado v. Racoma, A.M. No. RTJ-22-022, September 27, 2022.

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explicitly prohibited under Philippine laws, it can still become a punishable act when
done against a judge since this would constitute criminal contempt of court.
Thus, Badoy must be cited in contempt of court for red-tagging Judge Magdoza-
Malagar since her post included statements that assailed the character, dignity, and
credibility of the judge.

2. Whether criminal liability arises when one red-tags a judge

Under the Revised Penal Code, criminal liability is incurred:
1. By any person committing a felony (delito) although the wrongful act done be
different from that which he intended.
2. By any person performing an act which would be an offense against persons or
property, were it not for the inherent impossibility of its accomplishment or on
account of the employment of inadequate or ineffectual means.15
Criminal liability is incurred when a person commits, and is found guilty of
committing a felony or an impossible crime. As was stated in the previous point, there is
yet to be a law that clearly and specifically defines and criminalizes red-tagging. It falls
neither under the felonies in the Revised Penal Code nor in any of the special penal laws
currently existing. Hence, it is not officially classified as a felony or a crime.
By the legality principle of criminal law, an act may only be classified as a felony
punishable by any penalty if such penalty has been prescribed by law prior to the
commission of the act. 16 Hence, a penalty may only be valid if it provides a
comprehensible rule that would inform those who are subject to it which conduct would
render them criminally liable.17
However, the 1997 Rules of Court provides a penalty for indirect contempt of
court. Under Section 7 of Rule 71, indirect contempt may be punished by a fine not
exceeding thirty thousand pesos or imprisonment not exceeding six (6) months, or both.
For those committed against a lower court, a person may be punished by a fine not
exceeding five thousand pesos or imprisonment not exceeding one (1) month, or both.18
Furthermore, although contempt of court is not explicitly considered as a crime or a
felony, its proceedings are treated as criminal in nature therefore subject to review only
in the manner provided for review of judgments in criminal cases. 19 This is evident in

15
REV. PEN. CODE., art. 4.
16 Id., art. 21.
17 Estrada v. Sandiganbayan, G.R. No. 148560, November 19, 2001.
18 1997 RULES OF CIV. PROC., Rule 71, sec. 7.
19 Benedicto v. Cañada, 129 Phil. 298 (1967).

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Sections 4 and 7 of Rule 71, where it is explicitly stated that a person accused of contempt
of court must be proven guilty of such before he/she may be punished.20
These characteristics of the act of contempt of court likens it to a crime or a felony,
where a charge must first be filed and a trial on the guilt of the accused be concluded
before one is officially pronounced guilty of the act and subsequently punished for it. As
was stated in the previous point, Badoy can be charged of contempt of court for her
statement against Magdoza-Malagar. Although she cannot be charged of red-tagging per
se, this very act when done against a judge, constitutes indirect contempt and may subject
her to the aforesaid punishment if her guilt is proven, thus holding her criminally liable
for indirect contempt.
In sum, although Badoy cannot be criminally liable for red-tagging Magdoza-
Malagar since there are no laws criminalizing red-tagging, she can be held criminally
liable for indirect contempt of court since red-tagging a judge, in effect, entails
discrediting her character and disrespecting her, thereby degrading the credibility of the
Judiciary in general.

Conclusion
In September 2022, Badoy posted a now-deleted tirade on her Facebook account
against Magdoza-Malagar for her dismissal of the proscription case of DOJ against CPP-
NPA-NDF. In the lengthy statement, Badoy red-tagged Magdoza-Malagar by branding
her as a supporter of communist violence and identifying her and her husband with the
CPP-NPA-NDF. This was stated along with other insults and threats hurled at the judge.
In this memorandum, the issues to be addressed are (1) whether Badoy’s red-
tagging of Magdoza-Malagar constitutes contempt of court, and (2) whether Badoy’s red-
tagging of Magdoza-Malagar holds the former criminally liable.
In addressing the first issue, red-tagging a person means identifying him/her with
communist violence and terrorism, “vilifying” them by associating them with communist
organizations.21 When directed against a judge, this can be destructive of her dignity and
reputation, and disrespectful of the Judiciary, hence constituting criminal contempt. 22
Criminal contempt is similar to indirect contempt as exemplified under Paragraph d of
Section 3, Rule 7123. Hence, red-tagging a judge, especially when based on unfounded
claims, constitutes indirect contempt of court. Therefore, Badoy may be convicted of
indirect contempt of court for red-tagging Magdoza-Malagar.

20 1997 RULES OF CIV. PROC., Rule 71.

21 See note 12, supra.
22 See note 11, supra.
23 1997 RULES OF CIV. PROC., Rule 71, sec. 3, par. (d).

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 In addressing the second issue, a survey of the existing laws would show that red-
tagging is not explicitly categorized as a crime or a felony, and is not punishable as an
act. The Revised Penal Code states that criminal liability can only arise from the
commission of a felony24 or a crime enumerated in the said code or in any other special
penal laws. Without a law penalizing such act, it cannot be punished. 25 Furthermore,
contempt of court is also not explicitly classified as a felony under the Revised Penal Code
but it is considered a punishable act under the 1997 Rules of Civil Procedure. In addition,
jurisprudence states that proceedings for a case of contempt of court take the form of a
criminal proceeding, and are, thus, criminal in nature,26 since a trial must still be heard
deciding on the guilt of the accused before he/she may be punished.27 Thus, although
criminal liability is not attached in an act of red-tagging, Badoy may still be held
criminally liable for indirect contempt since the act was done against a judge, namely
Magdoza-Malagar.

24 REV. PEN. CODE, art. 4.

25 Id., art. 21.
26 See note 19, supra.
27 1997 RULES OF CIV. PROC., Rule 71, sec. 7.