G.R. Nos.

79690-707 October 7, 1988

ENRIQUE A. ZALDIVAR vs. RAUL M. GONZALEZ,
FACTS:
The following are the subjects of this Resolution filed by the Petitioner : a Motion, dated 9 February 1988, to Cite in
Contempt filed by petitioner Enrique A. Zaldivar against public respondent Special Prosecutor (formerly Tanodbayan)
Raul M. Gonzalez, in connection with G.R. Nos. 79690-707 and G.R. No. 80578. and a Resolution of this Court dated 2
May 1988 requiring respondent Hon. Raul Gonzalez to show cause why he should not be punished for contempt and/or
subjected to administrative sanctions for making certain public statements.
The Motion cited as bases the acts of respondent Gonzalez in: (1) having caused the filing of the information against
petitioner in Criminal Case No. 12570 before the Sandiganbayan; and (2) issuing certain allegedly contemptuous
statements to the media in relation to the proceedings in G.R. No. 80578. In respect of the latter, petitioner annexed to his
Motion a photocopy of a news article which appeared in the 30 November 1987 issue of the "Philippine Daily Globe."
ISSUE: Are lawyers entitled to the same degree of latitude of freedom of speech towards the Court?
RULING:
No. The Court begins by referring to the authority to discipline officers of the court and members of the Bar. The authority
to discipline lawyers stems from the Court's constitutional mandate to regulate admission to the practice of law, which
includes as well authority to regulate the practice itself of law. Moreover, the Supreme Court has inherent power to punish
for contempt, to control in the furtherance of justice the conduct of ministerial officers of the Court including lawyers and all
other persons connected in any manner with a case before the Court.
Only slightly (if at all) less important is the public interest in the capacity of the Court effectively to prevent and control
professional misconduct on the part of lawyers who are, first and foremost, indispensable participants in the task of
rendering justice to every man. Some courts have held, persuasively it appears to us, and that a lawyer's right of free
expression may have to be more limited than that of a layman.
While the Court may allow criticism it has In Re: Almacen held: Intemperate and unfair criticism is a gross violation of the
duty of respect to courts. It is such a misconduct that subjects a lawyer to disciplinary action. The lawyer's duty to render
respectful subordination to the courts is essential to the orderly administration of justice. Hence, in the assertion of their
clients' rights, lawyers even those gifted with superior intellect are enjoined to rein up their tempers.

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 proprioproceedings 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 curiamResolution 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 dissentingopinion 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 curiamResolution 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