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. GONZALEZ, claiming to be and acting as
Tanodbayan-Ombudsman under the 1987 Constitution, respondent.

RESOLUTION

PER CURIAM, p:

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 charges 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 Stated. 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 injury
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 manuscript of the Fourteenth Century, what is indisputable is
that from the foundation of the United Stated 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 members including the chairman, Senator, later to be Chief Justice,
Ellsworth, had been delegates to the Constitutional Convention (Oliver
Ellswoth, Chairman, William Paterson, Caleb Strong, Ricard Bassett,
 William Few. 1 Annals of Cong 17). In the First Congress itself no less
than nineteen members, 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 court, 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.

xxx xxx xxx

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's 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 Lagunzad v.
Vda. de Gonzales, 3 this Court, speaking through Mme. Justice Melencio-Herrera said:

". . . The right of freedom of expression indeed, occupied 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 psychological 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 I, 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).

2. 2 L ed 2d at 691-692; Italics 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).