Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. Nos. 79690-707 April 27, 1988

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. L-80578 April 27, 1988

ENRIQUE A. ZALDIVAR, petitioner,

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

Francisco Carreon and Nestor C. Lumba for petitioner.

The Solicitor General for respondent.

PER CURIAM:

In G.R. Nos. 79690-707 "Petition for Certiorari, Prohibition, and mandamus under Rule 65,"
petitioner Enrique A. Zaldivar, governor of the province of Antique, sought to restrain the
Sandiganbayan and Tanodbayan Raul Gonzalez from proceeding with the prosecution and
hearing of Criminal Cases Nos. 12159 to 12161 and 12163-12177 on the ground thatsaid
cases were filed by said Tanodbayan without legal and constitutional authority, since under
the 1987 Constitution which took effect on February 2, 1987, it is only the Ombudsman (not
the present or incumbent Tanodbayan) who has the authority to file cases with the
Sandiganbayan. The complete prayer of the petition reads:

WHEREFORE, it is respectfully prayed that pending the final disposition of this petition or
until further orders of the Honorable Court, a writ of preliminary injunction issue upon the
filing of a bond in such amount as may be fixed by the Honorable Court, restraining the
Honorable Sandiganbayan from hearing and trying Criminal Cases Nos. 12159 to 12161, and
12163 to 12177 insofar as petitioner Enrique A. Zaldivar is concerned and from hearing and
resolving the special prosecutor's motion to suspend (Annex J) and thereafter, final
judgment be rendered: —

(1) ordering that the amended informations in the above-mentioned crimininal cases be
or issuing a writ of mandamus commanding and ordering the respondent Sandiganbayan to
do so and, in consequence, prohibiting and restraining the respondent Sandigan-bayan from
proceeding to hear and try the abovementioned criminal cases or making the temporary
preliminary injunction permanent;
(2) declaring the acts of respondent Gonzalez as "Tanodbayan-Ombudsman" after 2
February 1987 relating to these cases as anullity and without legal effect, particularly, the
promulgation of Tanodbayan resolution of 5 February 1987, the filing of the original
informations on 3 March 1987 and the amended ones on 4 June 1987, and the filing of the
Motion for Suspension Pendente Lite.

PETITIONER prays for such other and further relief as may be deemed proper in the
premises, with costs against the respondents.

Manila, Philippines, September 9, 1987.

(pp. 45-47, Rollo)

In G.R. No. 80578, petitioner Enrique A. Zaldivar, on substantially the same ground as the
first petition, prays that Tanodbayan Gonzalez be restrained from conducting preliminary
investigations and similar cases with the Sandiganbayan. The prayer reads:

WHEREFORE, it is respectfully prayed that pending the final disposition of this petition or
until further orders of this Honorable court, a writ of preliminary injunction issue restraining
the respondent from further acting in TBP CASE NO. 87-01304 and, particularly, from filing
the criminal Information consequent thereof-, and from conducting preliminary
investigations in, and filing criminal informations for, such other complaints/ cases now
pending or which may hereafter be filed against petitioner with the Office of the
respondent.

It is likewise prayed that the present petition be consolidated with G.R.L-Nos. 79690-79707.

After proper proceedings, it is prayed that final judgment be rendered annulling the acts of
respondent Gonzalez as "Tanodbayan- Ombudsman" after 2 February 1987 relating to the
investigation of complaints against petitioner, particularly:

(1) Annulling, for absolute want of jurisdiction, the preliminary investigation conducted,
and the Resolution rendered, by respondent in TBP CASE NO. 87-01304;

(2) Prohibiting and restraining the respondent from filing any criminal Information as a
consequence of the void preliminary investigation he conducted in TBP CASE NO. 87-01304,
or annulling the criminal Information in the said case which may, in the meantime, have
already been filed;

(3) Prohibiting and restraining the respondent from conducting preliminary investigations in,
and filing criminal informations for, such other complaints/cases now pending or which may
hereafter be filed against petitioner with the Office of the respondent.

PETITIONER further prays for such other and further reliefs as may be deemed proper in the
proper with costs against the respondent.
Manila, Philippines, November 18,1987

(pp. 24-25, Rollo)

We issued the restraining orders prayed for.

After a study of the petitions, We have decided to give due course to the same; to consider
the comments of the Solicitor-General and of Tanodbayan Gonzalez as their Answers
thereto; and to forthwith decide the petitions.

We find the petitions impressed with merit.

Under the 1987 Constitution, the Ombudsman (as distinguished from theincumbent
Tanodbayan) is charged with the duty to:

Investigate on its own, or on complaint by any person, any act or omission of any public
official, employee, office or agency, when such act or commission appears to be illegal,
unjust, improper, or inefficient (Sec. 13, par. 1)

The Constitution likewise provides that:

The existing Tanodbayan shall hereafter be known as the office of the Special Prosecutor. It
shall continue to function and exercise its powers as now or hereafter may be provided by
law, contempt except those conferred on the office of the Ombudsman created under this
Constitution. (Art. XI, Section 7) (Emphasis ours).

Now then, inasmuch as the aforementioned duty is given to the Ombudsman, the
incumbent Tanodbayan (caged Special Prosecutor under the 1987 constitution and who is
supposed to retain powers and duties NOT GIVEN to the Ombudsman) is clearly without
authority to conduct preliminary investigations and to direct the filing of criminal cases with
the Sandiganbayan, except upon orders of the Ombudsman. This right to do so was lost
effective February 2, 1987. From that time, he has been divested of such authority.

Under the present Constitution, the Special Prosecutor (Raul Gonzalez) is a mere
subordinate of the Tanodbayan Ombudsman) and can investigate and prosecute cases only
upon the latter's authority or orders. The Special Prosecutor cannot initiate the prosecution
of cases but can only conduct the same if instructed to do so by the Ombudsman. Even his
original power to issue subpoena, which he still claims under Section 10(d) of PD 1630, is
now deemed transferred to the Ombudsman, who may, however, retain it in the Spedal
Prosecutor in connection with the cases he is ordered to investigate.

It is not correct either to suppose that the Special Prosecutor remains the Ombudsman as
long as he has not been replaced, for the fact is that he has never been the Ombudsman.
The Office of the Ombudsman is a new creation under Article XI of the Constitution
different from the Office of the Tanodbayan created under PD 1607 although concededly
some of the powers of the two offices are Identical or similar. The Special Prosecutor cannot
plead that he has a right to hold over the position of Ombudsman as he has never held it in
the first place.

WHEREFORE, We hereby:

(1) GRANT the consolidated petitions filed by petitioner Zaldivar and hereby NULLIFY the
criminal informations filed against him in the Sandiganbayan; and

(2) ORDER respondent Raul Gonzalez to cease and desist from conducting investigations
and filing criminal cases with the Sandiganbayan or otherwise exercising the powers and
function of the Ombudsman.

SO ORDERED.

Yap, C.J., Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco,
Padilla, Bidin and Cortes, and Griño-Aquino, JJ., concur.

Separate Opinions

SARMIENTO, J., concurring:

I maintain, however, consistent with my dissent in De Leon vs. Esguerra, G.R. No. 78059,
that the 1987 Constitution took effect on February 11, 1987.

Separate Opinions

SARMIENTO, J., concurring:

I maintain, however, consistent with my dissent in De Leon vs. Esguerra, G.R. No. 78059,
that the 1987 Constitution took effect on February 11, 1987.
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.

xxx xxxxxx

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, Griño-Aquino, Medialdea and Regalado, JJ., concur.

Footnotes