G.R. No.

79690-707 Page 1 of 4

Today is Thursday, March 08, 2018

Custom Search

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 79690-707 February 1, 1989

ENRIQUE A. ZALDIVAR, petitioner,

vs.
THE HONORABLE SANDIGANBAYAN and HONORABLE RAUL M. GONZALEZ, claiming to be and acting as
Tanodbayan-Ombudsman under the 1987 Constitution, respondents.

G.R. No. 80578 February 1, 1989

ENRIQUE A. ZALDIVAR, petitioner,

vs.
HON. RAUL M. GONZALES, claiming to be and acting as Tanodbayan-Ombudsman under the 1987
Constitution, respondent.

RESOLUTION

PER CURIAM:

We have examined carefully the lengthy and vigorously written Motion for Reconsideration dated October 18, 1988
filed by counsel for respondent Raul M. Gonzalez, relating to the per curiam Resolution of the Court dated October
7, 1988. We have reviewed once more the Court's extended per curiam Resolution, in the light of the argument
adduced in the Motion for Reconsideration, but must conclude that we find no sufficient basis for modifying the
conclusions and rulings embodied in that Resolution. The Motion for Reconsideration sets forth copious quotations
and references to foreign texts which, however, whatever else they may depict, do not reflect the law in this
jurisdiction.

Nonetheless, it might be useful to develop further, in some measure, some of the conclusions reached in the per
curiam Resolution, addressing in the process some of the "Ten (10) Legal Points for Reconsideration," made in the
Motion for Reconsideration.

1. In respondent's point A, it is claimed that it was error for this Court "to charge respondent [with]
indirect contempt and convict him of direct contempt."

In the per curiam Resolution (page 50), the Court concluded that "respondent Gonzalez is guilty both of contempt of
court in facie curiae and of gross misconduct as an officer of the court and member of the bar." The Court did not
use the phrase "in facie curiae" as a technical equivalent of "direct contempt," though we are aware that courts in
the United States have sometimes used that phrase in speaking of "direct contempts' as "contempts in the face of
the courts." Rather, the court sought to convey that it regarded the contumacious acts or statements (which were
made both in a pleading filed before the Court and in statements given to the media) and the misconduct of
respondent Gonzalez as serious acts flaunted in the face of the Court and constituting a frontal assault upon the
integrity of the Court and, through the Court, the entire judicial system. What the Court would stress is that it
required respondent, in its Resolution dated 2 May 1988, to explain "why he should not be punished for contempt of
court and/or subjected to administrative sanctions" and in respect of which, respondent was heard and given the
most ample opportunity to present all defenses, arguments and evidence that he wanted to present for the
consideration of this Court. The Court did not summarily impose punishment upon the respondent which it could
have done under Section 1 of Rule 71 of the Revised Rules of Court had it chosen to consider respondent's acts as
constituting "direct contempt."

2. In his point C, respondent's counsel argues that it was "error for this Court to charge respondent
under Rule 139 (b) and not 139 of the Revised Rules of Court."

In its per curiam Resolution, the Court referred to Rule 139 (b) of the Revised Rules of Court pointing out that:

[R]eference of complaints against attorneys either to the Integrated Bar of the Philippines or to the
Solicitor General is not mandatory upon the Supreme Court such reference to the Integrated Bar of the
Philippines or to the Solicitor General is certainly not an exclusive procedure under the terms of Rule
139 (b) of the Revised Rules of Court, especially where the charge consists of acts done before the
Supreme Court.

The above statement was made by the Court in response to respondent's motion for referral of this case either to
the Solicitor General or to the Integrated Bar of the Philippines under Rule 139 (b). Otherwise, there would have
been no need to refer to Rule 139 (b). It is thus only necessary to point out that under the old rule, Rule 139, referral

http://www.lawphil.net/judjuris/juri1989/feb1989/gr_79690_707_1989.html 3/8/2018
G.R. No. 79690-707 Page 2 of 4

to the Solicitor General was similarly not an exclusive procedure and was not the only course of action open to the
Supreme Court. It is well to recall that under Section 1 (entitled "Motion or complaint") of Rule 139, "Proceedings for
the removal or suspension of attorneys may be taken by the Supreme Court, (1) on its own motion, or (2) upon the
complaint under oath of another in writing" (Parentheses supplied). The procedure described in Sections 2 et seq. of
Rule 139 is the procedure provided for suspension or disbarment proceedings initiated upon sworn complaint of
another person, rather than a procedure required for proceedings initiated by the Supreme Court on its own motion.
It is inconceivable that the Supreme Court would initiate motu proprio proceedings for which it did not find probable
cause to proceed against an attorney. Thus, there is no need to refer a case to the Solicitor General, which referral
is made "for investigation to determine if there is sufficient ground to proceed with the prosecution of the
respondent" (Section 3, Rule 139), where the Court itself has initiated against the respondent. The Court may, of
course, refer a case to the Solicitor General if it feels that, in a particular case, further factual investigation is
needed. In the present case, as pointed out in the per curiam Resolution of the Court (page 18), there was "no need
for further investigation of facts in the present case for it [was] not substantially disputed by respondent Gonzalez
that he uttered or wrote certain statements attributed to him" and that "in any case, respondent has had the amplest
opportunity to present his defense: his defense is not that he did not make the statements ascribed to him but that
those statements give rise to no liability on his part, having been made in the exercise of his freedom of speech. The
issues which thus need to be resolved here are issues of law and of basic policy and the Court, not any other
agency, is compelled to resolve such issues."

In this connection, we note that the quotation in page 7 of the Motion for Reconsideration is from a dissenting
opinion of Mr. Justice Black in Green v. United State. 1 It may be pointed out that the majority in Green v. United
States, through Mr. Justice Harlan, held, among other things, that: Federal courts do not lack power to impose
sentences in excess of one year for criminal contempt; that criminal contempts are not subject to jury trial as a
matter of constitutional right; nor does the (US) Constitution require that contempt subject to prison terms of more
than one year be based on grand jury indictments.

In his concurring opinion in the same case, Mr. Justice Frankfurter said:

Whatever the conflicting views of scholars in construing more or less dubious manuscripts of the
Fourteenth Century, what is indisputable is that from the foundation of the United States the
constitutionality of the power to punish for contempt without the intervention of a jury has not been
doubted. The First Judiciary Act conferred such a power on the federal courts in the very act of their
establishment, 1 State 73, 83, and of the Judiciary Committee of eight that reported the bill to the
Senate, five member including the chairman, Senator, later to be Chief Justice, Ellsworth, had been
delegates to the Constitutional Convention (Oliver Ellsworth, Chairman, William Paterson, Caleb
Strong, Ricard Basett, William Few. 1 Annals of Cong 17). In the First Congress itself no less than
nineteen member including Madison who contemporaneously introduced the Bill of Rights, had been
delegates to the Convention. And when an abuse under this power manifested itself, and led Congress
to define more explicitly the summary power vested in the courts, it did not remotely deny the existence
of the power but merely defined the conditions for its exercise more clearly, in an Act "declaratory of
the law concerning contempts of court." Act of Mar. 2, 1831, 4 Stat 487.

xxxxxxxxx

Nor has the constitutionality of the power been doubted by this Court throughout its existence . In at
least two score cases in this Court, not to mention the vast mass of decisions in the lower federal
courts, the power to punish summarily has been accepted without question. ... 2

To say that a judge who punishes a contemnor judges his own cause, is simplistic at best. The judge who finds
himself compelled to exercise the power to punish for contempt does so not really to avenge a wrong inflicted upon
his own person; rather he upholds and vindicates the authority, dignity and integrity of the judicial institution and its
claim to respectful behaviour on the part of all persons who appears before it, and most especially from those who
are officers of the court.

3. In his point D, respondent counsel urges that it is error "for this Court to apply the "visible tendency"
rule rather than the "clear and present danger" rule in disciplinary and contempt charges."

The Court did not purport to announce a new doctrine of "visible tendency," it was, more modestly, simply
paraphrasing Section 3 (d) of Rule 71 of the Revised Rules of Court which penalizes a variety of contumacious
conduct including: "any improper conduct tending, directly or indirectly, to impede, obstruct or degrade the
administration of justice."

The "clear and present danger" doctrine invoked by respondent's counsel is not a magic incantation which dissolves
all problems and dispenses with analysis and judgment in the testing of the legitimacy of claims to free speech, and
which compels a court to exonerate a defendant the moment the doctrine is invoked, absent proof of impending
apocalypse. The clear and present danger" doctrine has been an accepted method for marking out the appropriate
limits of freedom of speech and of assembly in certain contexts. It is not, however, the only test which has been
recognized and applied by courts. In Logunzad v. Vda. de Gonzales, 3 this Court, speaking through Mme. Justice
Melencio-Herrera said:

...The right of freedom of expression indeed, occupies a preferred position in the "hierarchy of civil
liberties" (Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., 51
SCRA 191 [1963]. It is not, however, without limitations. As held in Gonzales v. Commission on
Elections, 27 SCRA 835, 858 [1960]:

http://www.lawphil.net/judjuris/juri1989/feb1989/gr_79690_707_1989.html 3/8/2018
G.R. No. 79690-707 Page 3 of 4

"From the language of the specific constitutional provision, it would appear that the right is not
susceptible of any limitation. No law may be passed abridging the freedom of speech and of the press.
The realities of life in a complex society preclude however, a literal interpretation. Freedom of
expression is not an absolute. It would be too much to insist that all times and under all circumstances
it should remain unfettered and unrestrained. There are other societal values that press for
recognition."

The prevailing doctrine is that the clear and present danger rule is such a limitation. Another criterion
for permissible limitation on freedom of speech and of the press, which includes such vehicles of the
mass media as radio, television and the movies, is the "balancing-of-interests test" (Chief Justice
Enrique M. Fernando on the Bill of Rights, 1970 ed., p. 79). The principle "requires a court to take
conscious and detailed consideration of the interplay of interests observable in a given situation or type
of situation (Separate Opinion of the late Chief Justice Castro in Gonzales v. Commission on Elections,
supra, p. 899). (Emphasis Supplied) 4

Under either the "clear and present danger" test or the "balancing-of-interest test," we believe that the statements
here made by respondent Gonzalez are of such a nature and were made in such a manner and under such
circumstances, as to transcend the permissible limits of free speech. This conclusion was implicit in the per curiam
Resolution of October 7, 1988. It is important to point out that the "substantive evil" which the Supreme Court has a
right and a duty to prevent does not, in the instant case, relate to threats of physical disorder or overt violence or
similar disruptions of public order. 5 What is here at stake is the authority of the Supreme Court to confront and
prevent a "substantive evil" consisting not only of the obstruction of a free and fair hearing of a particular case but
also the avoidance of the broader evil of the degradation of the judicial system of a country and the destruction of
the standards of professional conduct required from members of the bar and officers of the courts. The "substantive
evil" here involved, in other words, is not as palpable as a threat of public disorder or rioting but is certainly no less
deleterious and more far reaching in its implications for society.

4. In his point H, respondent's counsel argues that it is error "for this Court to hold that intent is
irrelevant in charges of misconduct." What the Court actually said on this point was:

Respondent Gonzalez disclaims an intent to attack and denigrate the Court. The subjectivities of the
respondent are irrelevant so far as characterization of his conduct or misconduct is concerned. He will
not, however, be allowed to disclaim the natural and plain import of his words and acts. It is, upon the
other hand, not irrelevant to point out that the respondent offered no apology in his two (2) explanations
and exhibited no repentance (Resolution, p. 7; footnotes omitted).

The actual subjectivities of the respondent are irrelevant because such subjectivities (understood as pyschological
phenomena) cannot be ascertained and reached by the processes of this Court. Human intent can only be shown
derivatively and implied from an examination of acts and statements. Thus, what the Court was saying was that
respondent's disclaimer of an intent to attack and denigrate the Court, cannot prevail over the plain import of what
he did say and do. Respondent cannot negate the clear import of his acts and statements by simply pleading a
secret intent or state of mind incompatible with those acts or statements. It is scarcely open to dispute that, e.g., one
accused of homicide cannot successfully deny his criminal intent by simply asserting that while he may have
inserted a knife between the victim's ribs, he actually acted from high motives and kind feelings for the latter.

5 In his point 1, respondent's counsel argues that it is error "for this Court to punish respondent for
contempt of court for out of court publications."

Respondent's counsel asks this Court to follow what he presents as alleged modern trends in the United Kingdom
and in the United States concerning the law of contempt. We are, however, unable to regard the texts that he cites
as binding or persuasive in our jurisdiction. The Court went to some length to document the state of our case law on
this matter in its per curiam Resolution. There is nothing in the circumstances of this case that would suggest to this
Court that that case law, which has been followed for at least half a century or so, ought to be reversed.

6. In his point J, respondent's counsel pleads that the imposition of indefinite suspension from the
practice of law constitutes "cruel, degrading or inhuman punishment". The Court finds it difficult to
consider this a substantial constitutional argument. The indefiniteness of the respondent's suspension,
far from being "cruel" or "degrading" or "inhuman," has the effect of placing, as it were, the key to the
restoration of his rights and privileges as a lawyer in his own hands. That sanction has the effect of
giving respondent the chance to purge himself in his own good time of his contempt and misconduct by
acknowledging such misconduct, exhibiting appropriate repentance and demonstrating his willingness
and capacity to live up to the exacting standards of conduct rightly demanded from every member of
the bar and officer of the courts.

ACCORDINGLY, the Court Resolved to DENY the Motion for Reconsideration for lack of merit. The denial is FINAL.

The Court also NOTED the Ex-Parte Manifestation and Motion, dated October 25, 1988 and the Supplemental
Manifestation, dated October 27, 1988, filed by respondent

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento, Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur.

Footnotes

1 356 US 165, 2 L Ed 2d 672 (1958).

http://www.lawphil.net/judjuris/juri1989/feb1989/gr_79690_707_1989.html 3/8/2018
G.R. No. 79690-707 Page 4 of 4

2 2 L ed 2d at 691-692; Emphasis supplied.

3 92 SCRA 476 (1979).

4 92 SCRA at 488.

5 See the separate opinion of the late Chief Justice Castro in Gonzalez v. Commission on Elections, 27
SCRA 835, 888 at 897-898 (1969).

The Lawphil Project - Arellano Law Foundation

http://www.lawphil.net/judjuris/juri1989/feb1989/gr_79690_707_1989.html 3/8/2018