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 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

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

Footnotes

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

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).

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