Republic of the Philippines
In respondent's point A, it is claimed that it was error
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.
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 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.
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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]:
"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