Zaldivar vs. Gonzalez

7/29/2019 Zaldivar vs. Gonzalez

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EN BANC[G.R. Nos. 79690-707. February 1, 1989.]

ENRIQUE A. ZALDIVAR, petitioner, vs. THE HONORABLE SANDIGANBAYAN andHONORABLE 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 beand acting as Tanodbayan-Ombudsman under the 1987 Constitution, respondent.

SYLLABUS

1. LEGAL ETHICS; DISBARMENT OR SUSPENSION OF ATTORNEYS; RULE139 (b), REVISED RULES OF COURT; REFERENCE OF COMPLAINTS TOINTEGRATED BAR OF THE PHILIPPINES OR TO SOLICITOR GENERAL NOTMANDATORY UPON SUPREME COURT; CASE AT BAR. In its per curiamResolution, 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 thePhilippines or to the Solicitor General is not mandatory upon the Supreme Court; suchreference to the Integrated Bar of the Philippines or to the Solicitor General is certainlynot an exclusive procedure under the terms of Rule 139 (b) of the Revised Rules ofCourt, 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 forreferral of this case either to the Solicitor General or to the Integrated Bar of thePhilippines under Rule 139 (b). Otherwise, there would have been no need to refer toRule 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 notthe 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 orsuspension 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). Theprocedure described in Sections 2 et seq. of Rule 139 is the procedure provided forsuspension or disbarment proceedings initiated upon sworn complaint of anotherperson, rather than a procedure required for proceedings initiated by the Supreme Courton 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 theprosecution of the respondent" (Section 3, Rule 139), where the Court itself has initiatedcharges against the respondent. The Court may, of course, refer a case to the SolicitorGeneral if it feels that, in a particular case, further factual investigation is needed. In thepresent case, as pointed out in the per curiam Resolution of the Court (page 18), therewas "no need for further investigation of facts in the present case for it [was] notsubstantially disputed by respondent Gonzalez that he uttered or wrote certainstatements attributed to him" and that "in any case, respondent has had the amplestopportunity to present his defense: his defense is not that he did not make thestatements 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 thusneed to be resolved here are issues of law and of basic policy and the Court, not anyother agency, is compelled to resolve such issues."

2. ID.; ID.; INDEFINITE SUSPENSION FROM PRACTICE OF LAW NOT "CRUEL,DEGRADING OR INHUMAN PUNISHMENT"; REASON THEREFOR. In his point J,respondent's counsel pleads that the imposition of indefinite suspension from thepractice of law constitutes "cruel, degrading or inhuman punishment." The Court finds itdifficult to consider this a substantial constitutional argument. The indefiniteness of therespondent's suspension, far from being "cruel" or "degrading" or "inhuman," has theeffect of placing, as it were, the key to the restoration of his rights and privileges as a

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lawyer in his own hands. That sanction has the effect of giving respondent the chanceto purge himself in his own good time of his contempt and misconduct byacknowledging such misconduct, exhibiting appropriate repentance and demonstratinghis willingness and capacity to live up to the exacting standards of conduct rightlydemanded from every member of the bar and officer of the courts.

3. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CONTEMPT; USE OF PHRASE"IN FACIE CURIAE" EXPLAINED. In the per curiam Resolution (page 50), the Courtconcluded that "respondent Gonzalez is guilty both of contempt of court in facie curiaeand of gross misconduct as an officer of the court and member of the bar." The Courtdid 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 phrasein speaking of "direct contempts" as "contempts in the face of the courts." Rather, thecourt sought to convey that it regarded the contumacious acts or statements (whichwere made both in a pleading filed before the Court and in statements given to themedia) 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 itrequired respondent, in its Resolution dated 2 May 1988, to explain "why he should notbe punished for contempt of court and/or subjected to administrative sanctions" and inrespect of which, respondent was heard and given the most ample opportunity topresent all defenses, arguments and evidence that he wanted to present for theconsideration of this Court. The Court did not summarily impose punishment upon therespondent which it could have done under Section 1 of Rule 71 of the Revised Rules ofCourt had it chosen to consider respondent's acts as constituting "direct contempt."

4. ID.; ID.; ID.; PURPOSE OF EXERCISE OF POWER TO PUNISH FOR

CONTEMPT. 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 topunish 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 judicialinstitution and its claim to respectful behaviour on the part of all persons who appearsbefore it, and most especially from those who are officers of the court.

5. ID.; ID.; ID.; USE OF PHRASE "VISIBLE TENDENCY" EXPLAINED; "CLEARAND PRESENT DANGER RULE" AND "BALANCING OF INTERESTS TEST"CONSTRUED; CASE AT BAR. The Court did not purport to announce a newdoctrine 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 contumaciousconduct 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 allproblems and dispenses with analysis and judgment in the testing of the legitimacy ofclaims to free speech, and which compels a court to exonerate a defendant the momentthe doctrine is invoked, absent proof of impending apocalypse. The "clear and presentdanger" doctrine has been an accepted method for marking out the appropriate limits offreedom of speech and of assembly in certain contexts. It is not, however, the only testwhich has been recognized and applied by courts. In Lagunzad v. Vda. de Gonzales,this Court, speaking through Mme. Justice Melencio-Herrera said: ". . . The right offreedom of expression indeed, occupies a preferred position in the 'hierarchy of civilliberties' (Philippine Blooming Mills Employees Organization v. Philippine Blooming MillsCo., Inc., 51 SCRA 191 [1963]. It is not, however, without limitations. As held inGonzales v. Commission on Elections, 27 SCRA 835, 858 [1960]: 'From the language ofthe specific constitutional provision, it would appear that the right is not susceptible ofany 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

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and under all circumstances it should remain unfettered and unrestrained. There areother societal values that press for recognition.' The prevailing doctrine is that the clearand present danger rule is such a limitation. Another criterion for permissible limitationon freedom of speech and of the press, which includes such vehicles of the mass mediaas 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 acourt to take conscious and detailed consideration of the interplay of interestsobservable in a given situation or type of situation' (Separate Opinion of the late ChiefJustice Castro in Gonzales v. Commission on Elections, supra, p. 899)." Under eitherthe "clear and present danger" test or the "balancing-of-interest test" we believe that thestatements here made by respondent Gonzalez are of such a nature and were made insuch a manner and under such circumstances, as to transcend the permissible limits offree 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 hasa right and a duty to prevent does not, in the instant case, relate to threats of physicaldisorder or overt violence or similar disruptions of public order. 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 butalso the avoidance of the broader evil of the degradation of the judicial system of acountry and the destruction of the standards of professional conduct required frommembers of the bar and officers of the courts. The "substantive evil" here involved, inother words, is not as palpable as a threat of public disorder or rioting but is certainly noless deleterious and more far reaching in its implications for society.

6. ID.; ID.; ID.; DISCLAIMER OF INTENT TO ATTACK AND DENIGRATE THECOURT CANNOT PREVAIL OVER PLAIN IMPORT OF WHAT WAS SAID AND DONE. 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 areirrelevant so far as characterization of his conduct or misconduct is concerned. He willnot, 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 noapology in his two (2) explanations and exhibited no repentance. The actualsubjectivities of the respondent are irrelevant because such subjectivities (understoodas psychological phenomena) cannot be ascertained and reached by the processes ofthis Court. Human intent can only be shown derivatively and implied from anexamination of acts and statements. Thus, what the Court was saying was thatrespondent's disclaimer of an intent to attack and denigrate the Court, cannot prevailover the plain import of what he did say and do. Respondent cannot negate the clearimport of his acts and statements by simply pleading a secret intent or state of mindincompatible with those acts or statements. It is scarcely open to dispute that, e.g., oneaccused of homicide cannot successfully deny his criminal intent by simply assertingthat while he may have inserted a knife between the victim's ribs, he actually acted fromhigh motives and kind feelings for the latter.

R E S O L U T I O NPER CURIAM, p:

We have examined carefully the lengthy and vigorously written Motion forReconsideration 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. Wehave reviewed once more the Court's extended per curiam Resolution, in the light of theargument adduced in the Motion for Reconsideration, but must conclude that we find nosufficient basis for modifying the conclusions and rulings embodied in that Resolution.The Motion for Reconsideration sets forth copious quotations and references to foreigntexts which, however, whatever else they may depict, do not reflect the law in this

jurisdiction.

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

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

In the per curiam Resolution (page 50), the Court concluded that "respondentGonzalez is guilty both of contempt of court in facie curiae and of gross misconduct asan officer of the court and member of the bar." The Court did not use the phrase "infacie curiae" as a technical equivalent of "direct contempt," though we are aware thatcourts in the United States have sometimes used that phrase in speaking of "directcontempts" as "contempts in the face of the courts." Rather, the court sought to conveythat it regarded the contumacious acts or statements (which were made both in apleading 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 Courtand 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, inits Resolution dated 2 May 1988, to explain "why he should not be punished forcontempt 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 couldhave done under Section 1 of Rule 71 of the Revised Rules of Court had it chosen toconsider respondent's acts as constituting "direct contempt."

2. In his point C, respondent's counsel argues that it was "error for this Court tocharge 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 ofCourt pointing out that:

"[R]eference of complaints against attorneys either to the Integrated Bar of thePhilippines or to the Solicitor General is not mandatory upon the Supreme Court; suchreference to the Integrated Bar of the Philippines or to the Solicitor General is certainlynot an exclusive procedure under the terms of Rule 139 (b) of the Revised Rules ofCourt, 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 forreferral of this case either to the Solicitor General or to the Integrated Bar of thePhilippines under Rule 139 (b). Otherwise, there would have been no need to refer toRule 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 notthe only course of action open to the Supreme Court. It is well to recall that underSection 1 (entitled "Motion or complaint") of Rule 139, "Proceedings for the removal orsuspension 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). Theprocedure described in Sections 2 et seq. of Rule 139 is the procedure provided forsuspension or disbarment proceedings initiated upon sworn complaint of anotherperson, rather than a procedure required for proceedings initiated by the Supreme Courton 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 theprosecution of the respondent" (Section 3, Rule 139), where the Court itself has initiatedcharges against the respondent. The Court may, of course, refer a case to the SolicitorGeneral if it feels that, in a particular case, further factual investigation is needed. In thepresent case, as pointed out in the per curiam Resolution of the Court (page 18), there

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was "no need for further investigation of facts in the present case for it [was] notsubstantially disputed by respondent Gonzalez that he uttered or wrote certainstatements attributed to him" and that "in any case, respondent has had the amplestopportunity to present his defense: his defense is not that he did not make thestatements 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 thusneed to be resolved here are issues of law and of basic policy and the Court, not anyother agency, is compelled to resolve such issues."

In this connection, we note that the quotation in page 7 of the Motion forReconsideration is from a dissenting opinion of Mr. Justice Black in Green v. UnitedStates. 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 toimpose sentences in excess of one year for criminal contempt; that criminal contemptsare 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. LLjur

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 ofthe United States the constitutionality of the power to punish for contempt without theintervention of a jury has not been doubted. The First Judiciary Act conferred such apower on the federal courts in the very act of their establishment, 1 State 73, 83, and ofthe Judiciary Committee of eight that reported the bill to the Senate, five membersincluding the chairman, Senator, later to be Chief Justice, Ellsworth, had beendelegates to the Constitutional Convention (Oliver Ellswoth, Chairman, William

Paterson, Caleb Strong, Ricard Bassett, William Few. 1 Annals of Cong 17). In the FirstCongress itself no less than nineteen members, including Madison whocontemporaneously introduced the Bill of Rights, had been delegates to the Convention.

And when an abuse under this power manifested itself, and led Congress to definemore explicitly the summary power vested in the court, it did not remotely deny theexistence of the power but merely defined the conditions for its exercise more clearly, inan Act 'declaratory of the law concerning contempts of court.' Act of Mar. 2, 1831, 4 Stat487. LLprxxx xxx xxx

Nor has the constitutionality of the power been doubted by this Court throughoutits existence. In at least two score cases in this Court, not to mention the vast mass ofdecisions in the lower federal courts the power to punish summarily has been acceptedwithout question . . ." 2

To say that a judge who punishes a contemnor judges his own cause, issimplistic at best. The judge who finds himself compelled to exercise the power topunish 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 judicialinstitution and its claim to respectful behaviour on the part of all persons who appearsbefore 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 applythe 'visible tendency' rule rather than the 'clear and present danger' rule in disciplinaryand contempt charges."

The Court did not purport to announce a new doctrine of "visible tendency," itwas, more modestly, simply paraphrasing Section 3 (d) of Rule 71 of the Revised Rulesof Court which penalizes a variety of contumacious conduct including: "any improper

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conduct tending, directly or indirectly, to impede, obstruct or degrade the administrationof justice."

The "clear and present danger" doctrine invoked by respondent's counsel is not amagic 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 acourt to exonerate a defendant the moment the doctrine is invoked, absent proof ofimpending apocalypse. The "clear and present danger" doctrine has been an acceptedmethod for marking out the appropriate limits of freedom of speech and of assembly incertain contexts. It is not, however, the only test which has been recognized and appliedby courts. In Lagunzad v. Vda. de Gonzales, 3 this Court, speaking through Mme.Justice Melencio-Herrera said: Cdpr

". . . The right of freedom of expression indeed, occupied a preferredposition in the 'hierarchy of civil liberties' (Philippine Blooming Mills EmployeesOrganization v. Philippine Blooming Mills Co., Inc., 51 SCRA 191 [1963]). It isnot, 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 thatthe right is not susceptible of any limitation. No law may be passed abridging thefreedom of speech and of the press. The realities of life in a complex society precludehowever, a literal interpretation. Freedom of expression is not an absolute. It would betoo much to insist that all times and under all circumstances it should remain unfetteredand unrestrained. There are other societal values that press for recognition.'

The prevailing doctrine is that the clear and present danger rule is such alimitation. 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 themovies, is the 'balancing-of interests test' (Chief Justice Enrique M. Fernando on the Billof Rights, 1970 ed., p. 79). The principle requires a court to take conscious and detailedconsideration of the interplay of interests observable in a given situation or type ofsituation' (Separate Opinion of the late Chief Justice Castro in Gonzales v. Commissionon 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 natureand were made in such a manner and under such circumstances, as to transcend thepermissible 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 publicorder. 5 What is here at stake is the authority of the Supreme Court to confront andprevent a "substantive evil" consisting not only of the obstruction of a free and fairhearing of a particular case but also the avoidance of the broader evil of the degradationof the judicial system of a country and the destruction of the standards of professionalconduct required from members of the bar and officers of the courts. The "substantiveevil" here involved, in other words, is not as palpable as a threat of public disorder orrioting but is certainly no less deleterious and more far reaching in its implications forsociety. LexLib

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

"Respondent Gonzalez disclaims an intent to attack and denigrate the Court. Thesubjectivities of the respondent are irrelevant so far as characterization of his conduct ormisconduct is concerned. He will not, however, be allowed to disclaim the natural and

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plain import of his words and acts. It is, upon the other hand, not irrelevant to point outthat the respondent offered no apology in his two (2) explanations and exhibited norepentance. (Resolution, p. 7; footnotes omitted)."

The actual subjectivities of the respondent are irrelevant because such

subjectivities (understood as psychological phenomena) cannot be ascertained andreached by the processes of this Court. Human intent can only be shown derivativelyand implied from an examination of acts and statements. Thus, what the Court wassaying 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 cannotnegate the clear import of his acts and statements by simply pleading a secret intent orstate of mind incompatible with those acts or statements. It is scarcely open to disputethat, e.g., one accused of homicide cannot successfully deny his criminal intent bysimply asserting that while he may have inserted a knife between the victim's ribs, heactually 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 punishrespondent for contempt of court for out of court publications."

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

6. In his point J, respondent's counsel pleads that the imposition of indefinitesuspension from the practice of law constitutes "cruel, degrading or inhumanpunishment." The Court finds it difficult to consider this a substantial constitutionalargument. 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 restorationof his rights and privileges as a lawyer in his own hands. That sanction has the effect ofgiving respondent the chance to purge himself in his own good time of his contempt andmisconduct by acknowledging such misconduct, exhibiting appropriate repentance anddemonstrating his willingness and capacity to live up to the exacting standards ofconduct rightly demanded from every member of the bar and officer of the courts.

ACCORDINGLY, the Court Resolved to DENY the Motion for Reconsideration for lackof merit. The denial is FINAL.The Court also NOTED the Ex-Parte Manifestation and Motion, dated October 25, 1988and 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.Footnotes1. 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).

C o p y r i g h t 1 9 9 4 - 1 9 9 9 C D T e c h n o l o g i e s A s i a, I n c.

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Zaldivar vs. Gonzalez