| CONTACT: |
| Supreme Court of the Philippines Library Services, Padre Faura, Ermita, Manila, Philippines 1000 |
| (632) 8524-2706 |
| libraryservices.sc@judiciary.gov.ph |
583 Phil. 391
EN BANC
[ A.M. No. 07-09-13-SC, August 08, 2008 ]
IN THE MATTER OF THE ALLEGATIONS CONTAINED IN THE COLUMNS OF MR PRESENT: AMADO P. MACASAET PUBLISHED IN MALAYA DATED SEPTEMBER 18, 19 , 20 AND 21, 2007
D E C I S I O N
REYES, R.T., J.:
FREEDOM of the press and judicial independence (kalayaan ng pamamahayag at kalayaang panghukuman) - two constitutional values which unfortunately clash in this case for indirect contempt of court - have to be weighed and balanced against each other.
The Antecedents
The case stemmed from certain articles that appeared in the "Business Circuit" column of Amado P. Macasaet in the Malaya, a newspaper of general circulation of which he is the publisher. The articles, containing statements and innuendoes about an alleged bribery incident in the Supreme Court, came out in four (4) issues of the newspaper on September 18, 19, 20 and 21, 2007, reproduced as follows:
The succeeding two articles, however, gave an indication that the supposed bribery happened in the Supreme Court. Respondent Macasaet, in his September 19, 2007 article, wrote, among others, that "I dare say that if her name is Cecilia, it is entirely possible that the lady justice is a member of the Supreme Court x x x. We are coming closer and closer to the truth. The lady justice shamed her court. She should resign or be impeached. That is the only way the soiled reputation of the Highest Court could be restored."
Similarly, in his September 20, 2007 article, respondent said that Cecilia had "a duty to save the sagging reputation of the Supreme Court."
Also on September 20, 2007, at around 6:00 p.m., Marites Dañguilan-Vitug, Editor in Chief of Newsbreak, faxed a letter to Supreme Court Associate Justice Consuelo Ynares-Santiago asking for three things -
That same evening, at around seven, Dañguilan-Vitug faxed "the corrected version of the earlier letter" -
From the foregoing series of articles, respondent Macasaet has painted a clear picture: a Chinese-Filipino businessman who was acquitted of a crime supposedly left P10 million in five different boxes with the security guard at the Supreme Court guardhouse, which was picked up by Cecilia Muñoz Delis who was forthwith fired for opening one of the boxes.
Upon the request of Mme. Justice Ynares-Santiago, the Chief Justice instructed ACA Marquez to have the 18th, 19th, 20th, and 21st September 2007 Business Circuit columns of respondent Macasaet included in the September 25, 2007 agenda of the Court En Banc,[7] which case was docketed as A.M. No. 07-09-13-SC. (Re: In the Matter of the Allegations Contained in the Columns of Mr. A.P. Macasaet Published in Malaya dated September 18, 19, 20, and 21, 2007).
On September 24, 2007, Daisy Cecilia Muñoz Delis, accompanied by the Clerk of Court En Banc, Hon. Ma. Luisa D. Villarama, went to see Mme. Justice Ynares-Santiago and gave the latter copies of her letter to respondent Macasaet and her affidavit. Delis, in her letter to respondent Macasaet, described his articles as "baseless reports." "In other words," she wrote respondent Macasaet, "the scenario you painted and continue to paint is improbable and could only have emanated from a polluted source, who, unfortunately, chose me to be a part of this fictional charge." She clarified that she was a Judicial Staff Officer, and not a secretary as the articles claimed she was; that she voluntarily resigned from office and was not fired; that as a matter of procedure, she would not have been tasked to receive boxes, as such was a duty assigned to their utility personnel; that it was "highly unlikely for something as blatant as [a] bribery attempt to have been done right in the doors of the Court."[8] Delis ended her letter to respondent Macasaet with a plea -
That same morning, too, despite the prior telephone conversation between ACA Marquez and Dañguilan-Vitug, Newsbreak posted an on-line article written by Danguilan-Vitug herself and Aries Rufo, which was regularly updated, entitled "Supreme Court Justice Suspected of Accepting Payoff (update)"[13] with the picture of Mme. Justice Ynares-Santiago -
In the afternoon of September 24, 2007, ACA Marquez held a press conference and released to the media copies of Delis' letter to respondent Macasaet, her affidavit, and the written statement of Mme. Justice Santiago.[17]
On September 25, 2007, the Court En Banc issued a resolution stating -
On October 16, 2007, the Court En Banc noted respondent Macasaet's Explanation dated October 1, 2007,[19] and directed the Clerk of Court to include in the records of the case the affidavit of Delis dated September 24, 2007. The High Court also created an investigating committee composed of retired Supreme Court justices, namely, Justice Carolina Griño-Aquino as Chairperson; and Justices Vicente V. Mendoza and Romeo J. Callejo, Sr., as members, "to receive the evidence from all parties concerned. The Committee may, on its own, call such persons who can shed light on the matter. It shall be endowed with all the powers necessary to discharge its duty." The Committee was likewise directed "to submit its report and recommendation within thirty (30) days from the start of its hearing."[20] Retired Justices Mendoza and Callejo, however, both begged off and were eventually replaced by retired Supreme Court Justices Jose C. Vitug[21] and Justo P. Torres.[22]
The Investigation
From October 30, 2007 to March 10, 2008, the Investigating Committee held hearings and gathered affidavits and testimonies from the parties concerned.
The Committee invited respondent Macasaet, Dañguilan-Vitug, Delis, and ACA Marquez to a preliminary meeting, in which they were requested to submit their respective affidavits which served as their testimonies on direct examination.[23] They were then later cross-examined on various dates: respondent Macasaet on January 10, 2008, Dañguilan-Vitug on January 17, 2008, Delis on January 24, 2008, and ACA Marquez on January 28, 2008. The Chief of the Security Services and the Cashier of the High Court likewise testified on January 22 and 24, 2008, respectively.
According to the Committee -
Our Ruling
IN view of respondent's invocation of his right to press freedom as a defense, it is essential to first examine the nature and evolution of this preferred liberty, together with the countervailing interest of judicial independence, which includes the right to due process of law, the right to a fair trial, and the preservation of public confidence in the courts for the proper administration of justice.
Nature and History of Press Freedom
Freedom of expression, which includes freedom of speech and of the press, is one of the hallmarks of a democratic society. It has been recognized as such for centuries.
The history of press freedom dates back to the English Magna Carta, promulgated in 1215, which established the principle that not even the lawmaker should be above the law. Through the years, many treatises on press freedom arose in reaction to various measures taken to curtail it.
In the 17th Century, John Milton wrote Areopagitica, a philosophical defense of the right to free speech. It was a reaction to the Licensing Order of June 14, 1643, which declared that no "book, pamphlet, paper, nor part of any such book, pamphlet, or paper, shall from henceforth be printed, bound, stitched or put to sale by any person or persons whatsoever, unless the same be first approved of and licensed under the hands of such person or persons as both, or either of the said Houses shall appoint for the licensing of the same." Milton advocated that a written work should not be suppressed before publication. Writers of treacherous, slanderous, or blasphemous materials should first be tried according to law. Only after it has been established that their writings are of a treacherous, slanderous, or blasphemous nature should they be subsequently punished for their wrongful acts.
Sir William Blackstone, 19th Century English jurist, in his still widely cited historical and analytical treatise on English common law, aptly described the twin aspects of press freedom:
Our Constitutions and jurisprudence are no different. Section 4, Article III, 1987 Constitution, which in part provides that "[n]o law shall be passed abridging the freedom of speech, of expression, or of the press x x x x," is a provision found in the 1935 and the 1973 Constitutions.[33]
Media and Its Multiplying Roles in Democracy
Due to their preferred position in the hierarchy of civil liberties, the freedoms of speech, of expression, and of the press have progressed dramatically. As early as 1942, even before the advent of television, the distinguished U.S. appellate court Judge Learned Hand had already observed that "[t]he hand that rules the press, the radio, the screen, and the far-spread magazine, rules the country." He concluded that media's power was an unchangeable fact of life: "Whether we like or not, we must learn to accept it." There is much truth today in those statements.
One of the notable features of recent years is the accelerated development of the media. They have grown from strength to strength, and have substantially influenced people, either favorably or unfavorably, towards those in government. The use of information technology has firmed up the media networks' hold on power. Traditional media for mass communication - newspapers, magazines, radio, and standard television - have been joined by satellite and cable television, electronic mail, short messaging and multi-media service, and the internet, giving rise to new opportunities for electronic news and information companies to even intensify their influence over the general public.
Studies show that people rely heavily on the media for their knowledge of events in the world and for impressions that form the basis for their own judgments. The media exert a strong influence on what people think and feel. Certainly, the power of Philippine media is of no small measure -
Members of Philippine media have assumed the role of a watchdog and have been protective and assertive of this role. They demand accountability of government officials and agencies. They have been adversarial when they relate with any of the three branches of government. They uphold the citizen's right to know, and make public officials, including judges and justices, responsible for their deeds or misdeeds. Through their watchdog function, the media motivate the public to be vigilant in exercising the citizens' right to an effective, efficient and corrupt-free government.
Open Justice and Judicial Independence
Closely linked with the right to freedom of speech and of the press is the public right to scrutinize and criticize government. The freedom to question the government has been a protected right of long-standing tradition throughout American history. There is no doubt that the fundamental freedom to criticize government necessarily includes the right to criticize the courts, their proceedings and decisions. Since the drafting of their Constitution over 200 years ago, American judges have anticipated and sometimes even encouraged public scrutiny of themselves, if not of the judiciary as a whole.[37]
This open justice principle, which is as fundamental to a democratic society as freedom of speech, has been an accepted doctrine in several jurisdictions. It is justified on the ground that if the determination of justice cannot be hidden from the public, this will provide: (1) a safeguard against judicial arbitrariness or idiosyncrasy, and (2) the maintenance of the public's confidence in the administration of justice.[38]
While most agree that the right to criticize the judiciary is critical to maintaining a free and democratic society, there is also a general consensus that healthy criticism only goes so far.[39] Many types of criticism leveled at the judiciary cross the line to become harmful and irresponsible attacks. These potentially devastating attacks and unjust criticism can threaten the independence of the judiciary.
The debate over the independence of the judiciary is nothing new. More than 200 years ago, the Founding Fathers of the American Constitution engaged in heated arguments, both before and after the Constitutional Convention, focusing on the extent and nature of the judiciary's role in the newly-formed government.[40] The signers of the Declaration of Independence, well aware of the oppressive results of the unchecked political power of the King of England who established absolute tyranny over American colonies, recognized the importance of creating a stable system of justice to protect the people.
Cognizant of the need to create a system of checks and balances to ensure that the rule of law shall rule, the resulting Constitution provided for a three-tiered system of government, so structured that no branch holds limitless power.
The judicial branch is described as the "least dangerous" branch of government.[41] But it holds a special place in the tripartite system, as it is primarily responsible for protecting basic human liberties from government encroachment. It completes the nation's system of checks and balances. It serves as an arbiter of disputes between factions and instruments of government.
In our constitutional scheme and democracy, our courts of justice are vested with judicial power, which "includes the duty x x x to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government."[42] The present judicial system allows the people to rely upon our courts with substantial certainty; it encourages the resolution of disputes in courtrooms rather than on the streets.
To accomplish these tasks, an independent judiciary is very vital. Judicial independence is the backbone of democracy. It is essential not only to the preservation of our justice system, but of government as well. Chief Justice Shirley Abrahamson of the Wisconsin Supreme Court has observed that judicial independence encompasses two distinct but related concepts of independence.[43]
One concept is individual judicial independence, which focuses on each particular judge and seeks to insure his or her ability to decide cases with autonomy within the constraints of the law. A judge has this kind of independence when he can do his job without having to hear - or at least without having to take it seriously if he does hear - criticisms of his personal morality and fitness for judicial office. The second concept is institutional judicial independence. It focuses on the independence of the judiciary as a branch of government and protects judges as a class.
A truly independent judiciary is possible only when both concepts of independence are preserved - wherein public confidence in the competence and integrity of the judiciary is maintained, and the public accepts the legitimacy of judicial authority. An erosion of this confidence threatens the maintenance of an independent Third Estate.
For sure, judicial criticism can be constructive, uncovering and addressing a problem that merits public attention. Public awareness, debate, and criticism of the courts ensure that people are informed of what they are doing that have broad implications for all citizens. Informed discussion, comment, debate and disagreement from lawyers, academics, and public officials have been hallmarks of a great legal tradition and have played a vital role in shaping the law.
But there is an important line between legitimate criticism and illegitimate attack upon the courts or their judges. Attacks upon the court or a judge not only risk the inhibition of all judges as they conscientiously endeavor to discharge their constitutional responsibilities; they also undermine the people's confidence in the courts.
Personal attacks, criticisms laden with political threats, those that misrepresent and distort the nature and context of judicial decisions, those that are misleading or without factual or legal basis, and those that blame the judges for the ills of society, damage the integrity of the judiciary and threaten the doctrine of judicial independence. These attacks do a grave disservice to the principle of an independent judiciary and mislead the public as to the role of judges in a constitutional democracy, shaking the very foundation of our democratic government.
Such attacks on the judiciary can result in two distinct - yet related - undesirable consequences.[44] First, the criticism will prevent judges from remaining insulated from the personal and political consequences of making an unpopular decision, thus placing judicial independence at risk. Second, unjust criticism of the judiciary will erode the public's trust and confidence in the judiciary as an institution. Both judicial independence and the public's trust and confidence in the judiciary as an institution are vital components in maintaining a healthy democracy.
Accordingly, it has been consistently held that, while freedom of speech, of expression, and of the press are at the core of civil liberties and have to be protected at all costs for the sake of democracy, these freedoms are not absolute. For, if left unbridled, they have the tendency to be abused and can translate to licenses, which could lead to disorder and anarchy.
Thus, in Gonzales v. Commission on Elections,[45] this Court ruled that "[f]rom the language of the specific constitutional provision, it would appear that the right (to free expression) 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 absolute. It would be too much to insist that, at all times and under all circumstances, it should remain unfettered and unrestrained. There are other societal values that press for recognition."[46]
In Lagunzad v. Vda. De Gonzales,[47] it was held that while the right of freedom of expression occupies a preferred position in the hierarchy of civil liberties, it is not without limitations. As the revered Holmes once said, the limitation on one's right to extend one's fist is when it hits the nose of another.
Indeed, freedom of speech cannot be absolute and unconditional. In legal, political, and philosophical contexts, it is always regarded as liable to be overridden by important countervailing interests, such as state security, public order, safety of individual citizens, protection of reputation, and due process of law, which encompasses not only the right to a fair trial, but also the preservation of public confidence in the proper administration of justice.
As early as 1930, this Court, speaking through Mr. Justice George Malcolm, declared that "[a]s important as is the maintenance of an unmuzzled press and the free exercise of the rights of the citizen is the maintenance of the independence of the judiciary."[48]
In Zaldivar v. Gonzalez,[49] the Court said that "freedom of speech and expression, like all constitutional freedoms, is not absolute and that freedom of expression needs on occasion to be adjusted to and accommodated with requirements of equally important public interests. One of these fundamental public interests is the maintenance of the integrity and orderly functioning of the administration of justice. There is no antinomy between free expression and the integrity of the system of administering justice. For the protection and maintenance of freedom of expression itself can be secured only within the context of a functioning and orderly system of dispensing justice, within the context, in other words, of viable independent institutions for delivery of justice which are accepted by the general community."
As Mr. Justice Felix Frankfurter put it:
x x x A free press is not to be preferred to an independent judiciary, nor an independent judiciary to a free press. Neither has primacy over the other; both are indispensable to a free society.
The freedom of the press in itself presupposes an independent judiciary through which that freedom may, if necessary, be vindicated. And one of the potent means for assuring judges their independence is a free press.[50]
Even the major international and regional human rights instruments of civil and political rights - the International Covenant on Civil and Political Rights (ICCPR),[51] the European Convention on Human Rights (ECHR),[52] the American Convention on Human Rights (ACHR),[53] and the African Charter on Human and People's Rights (ACHPR)[54] - protect both freedom of expression and the administration of justice. Freedom of expression is protected under Article 19 of the ICCPR -
Article 10(2) of the ECHR goes further by explicitly mentioning the maintenance of the authority and impartiality of the judiciary -
The very first case decided by the Supreme Court, In the matter of the proceedings against Marcelino Aguas for contempt of the Court of First Instance of Pampanga,
[56] was a contempt proceeding. Before, as it is now, this Court had to use this power to impress upon contemnors the legal theory and constitutional premises of judicial legitimacy complementing popular sovereignty and public interest. Writing for the Court, Mr. Justice James Smith stated that contempt proceedings against a contemnor were against someone who had done an act or was about to do such act which "was disrespectful to the court or offensive to its dignity."[57]
Through the years, the Court has punished contemnors for a variety of offenses that have attempted to degrade its dignity and impeded the administration of justice.
In 1916, Amzi B. Kelly was fined P1,000 and sentenced to six months in prison for contempt of court after he published a letter to the editor of The Independent criticizing the Court for its decision to hold him in contempt for having published a book stating that various government officials, including the members of the Supreme Court, were guilty of politically assassinating General Mariano Noriel, who was executed for the killing of a political rival in 1915.[58]
In 1949, Atty. Vicente Sotto was fined P1,000.00 for publishing a statement in the Manila Times objecting to one of the High Court's decisions, citing that such decision by the majority was but another evidence of "the incompetency or narrow-mindedness of the majority of its members" and called for the resignation of the Court's entire membership "in the wake of so many mindedness of the majority deliberately committed during these last years."[59]
In 1987, Eva Maravilla-Ilustre,[60] in almost identical letters dated October 20, 1986 sent to four (4) Justices of the Supreme Court (all members of the First Division), stated among others -
True to her threats, after having lost her case before the Supreme Court, Ilustre filed on December 16, 1986 an affidavit-complaint before the Tanodbayan, charging, among others, some Justices of both the Supreme Court and the CA with knowingly and deliberately rendering "unjust resolutions."
On January 29, 1987, the Supreme Court en banc required Ilustre to show cause why she should not be held in contempt for her foregoing statements, conduct, acts, and charges against the Supreme Court and/or official actions of the justices concerned which, unless satisfactorily explained, transcended the permissible bounds of propriety and undermined and degraded the administration of justice.
In her answer, Ilustre contended, inter alia, that she had no intention to affront the honor and dignity of the Court; that the letters to the individual justices were private in character; that the Court was estopped, having failed to immediately take disciplinary proceedings against her; and that the citation for contempt was a vindictive reprisal against her.
The Supreme Court found her explanation unsatisfactory. The claim of lack of evil intention was disbelieved in the face of attendant circumstances. Reliance on the privacy of communication was likewise held as misplaced. "Letters addressed to individual Justices in connection with the performance of their judicial functions become part of the judicial records and are a matter of public concern for the entire Court." (Underscoring supplied)
The Court likewise stated that it was only in the exercise of forbearance that it refrained from immediately issuing a show-cause order, expecting that she and her lawyer would realize the unjustness and unfairness of their accusations. Neither was there any vindictive reprisal involved. "The Court's authority and duty under the premises is unmistakable. It must act to preserve its honor and dignity from the scurrilous attacks of an irate lawyer, mouthed by his client, and to safeguard the morals and ethics of the legal profession."
In resumè, the Court found that Ilustre had transcended the permissible bounds of fair comment and criticism to the detriment of the orderly administration of justice: (a) in her letters addressed to the individual Justices, quoted in the show-cause Resolution, particularly the underlined portions thereof; (b) in the language of the charges she filed before the Tanodbayan quoted in the same Resolution; (c) in her statement, conduct, acts, and charges against the Supreme Court and/or official actions of the Justices concerned and her description of improper motives; and (d) in her unjustified outburst that she could no longer expect justice from the Court.
In Perkins v. Director of Prisons,[64] the Court had an occasion to examine the fundamental foundations of the power to punish for contempt: "The power to punish for contempt is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings and to the enforcement of judgments, orders, and mandates of the courts, and, consequently, to the due administration of justice."[65]
The Court there held that "the exercise of this power is as old as the English history itself, and has always been regarded as a necessary incident and attribute of courts. Being a common-law power, inherent in all courts, the moment the courts of the United States were called into existence they became vested with it. It is a power coming to us from the common law, and, so far as we know, has been universally admitted and recognized."[66]
After World War II, this Court reiterated it had an 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.[67] This power to punish for contempt is "necessary for its own protection against improper interference with the due administration of justice x x x. It is not dependent upon the complaint of any of the parties-litigant."[68] These twin principles were to be succinctly cited in the later case of Zaldivar v. Gonzales.[69]
Of course, the power to punish for contempt is exercised on the preservative principle. There must be caution and hesitancy on the part of the judge whenever the possible exercise of his awesome prerogative presents itself. "The power to punish for contempt," as was pointed out by Mr. Justice Malcolm in Villavicencio v. Lukban,[70] "should be exercised on the preservative and not on the vindictive principle. Only occasionally should the court invoke its inherent power to retain that respect without which the administration of justice must falter or fail." But when called for, most especially when needed to preserve the very existence and integrity of no less than the Highest Court, this principle bears importance.
In the 1995 case People v. Godoy,[71] the Court, citing In Re: Vicente Sotto,[72] had the opportunity to define the relations of the courts and of the press. Quoting the statements made by Judge Holmes in U.S. v. Sullen,[73] the Court said:
Application of Existing Jurisprudence to the Case at Bar
In determining the liability of the respondent in this contempt proceeding, we weigh the conflicting constitutional considerations - respondent's claim of his right to press freedom, on one hand; and, on the other hand, ensuring judicial independence by upholding public interest in maintaining the dignity of the judiciary and the orderly administration of justice - both indispensable to the preservation of democracy and the maintenance of a just society.
The apparently conflicting constitutional considerations summed up by a distinguished former Judge of the Supreme Court of India, Justice H.R. Khanna, bears a hand in resolving the issue -
Unfortunately, the published articles of respondent Macasaet are not of this genre. On the contrary, he has crossed the line, as his are baseless scurrilous attacks which demonstrate nothing but an abuse of press freedom. They leave no redeeming value in furtherance of freedom of the press. They do nothing but damage the integrity of the High Court, undermine the faith and confidence of the people in the judiciary, and threaten the doctrine of judicial independence.
A veteran journalist of many years and a president of a group of respectable media practitioners, respondent Macasaet has brilliantly sewn an incredible tale, adorned it with some facts to make it lifelike, but impregnated it as well with insinuations and innuendoes, which, when digested entirely by an unsuspecting soul, may make him throw up with seethe. Thus, he published his highly speculative articles that bribery occurred in the High Court, based on specious information, without any regard for the injury such would cause to the reputation of the judiciary and the effective administration of justice. Nor did he give any thought to the undue, irreparable damage such false accusations and thinly veiled allusions would have on a member of the Court.
The Investigating Committee could not have put it any better when it found respondent feigning his "highest respect for this Court" -
We cannot close our eyes to the comprehensive Report and Recommendation of the Investigating Committee. It enumerated the inconsistencies and assumptions of respondent which lacked veracity and showed the reckless disregard of whether the alleged bribery was false or not.[80]
Indeed, the confidential information allegedly received by respondent by which he swears with his "heart and soul"[81] was found by the Investigating Committee unbelievable. It was a story that reeked of urban legend, as it generated more questions than answers.[82]
Respondent Macasaet's wanton disregard for the truth was exhibited by his apathetic manner of verifying the veracity of the information he had gathered for his September 18, 19, 20, and 21, 2007 articles concerning the alleged bribery of a Lady Justice. His bases for the amount of money, the number of boxes, the date of delivery of the boxes, among other important details, were, by his own admission founded on personal assumptions. This nonchalant attitude extended to his very testimony before the investigating committee -
That he could not, through his extensive network of informants, confirm the approximate date when the alleged bribery took place, the identities of the persons involved, or any other important detail, before he began his series of articles only leads to the rational conclusion that he did not care whether or not the story he published was true. His aim, as he admits, was to go on a fishing expedition to see if someone would confirm or deny his now clearly baseless accusations. This practice of "fishing" for information by publishing unverified information in a manner that leads the reading public to believe such is true cannot be tolerated.
Aggravating respondent's affront to the dignity of the Court is his unwillingness to show any remorse or repentance for his contemptuous acts. In fact, as he made clear in his testimony before the Investigating Committee when asked what his thoughts were about his having published the instant articles, he replied that he was "happy in the sense that [he] did a job in [his] best lights and the effort ended up in the creation of [the investigating panel]."[85]
However, such assertions of having acted in the best interest of the Judiciary are belied by the fact that he could have caused the creation of an investigating panel to look into such allegations in a more rational and prudent manner. In the words of the Investigating Committee -
Respondent also asserts that the subject matter of his articles is within the exclusive jurisdiction of Congress. He cites Section 2, Article XI of the 1987 Constitution which partly states that "x x x members of the Supreme Court x x x may be removed from office, on impeachment for, and conviction of x x x bribery x x x" and Section 3(1), Article XI, which provides that "[t]he House of Representatives shall have the exclusive power to initiate all case of impeachment."
We cannot agree. What Macasaet conveniently forgets is that no impeachment complaint has been filed against Mme. Justice Ynares-Santiago. Thus, his cited constitutional provisions do not come into play.
Respondent claims that there is a violation of his right to due process. From the time his articles were published, no formal charge has been filed against him as required under Section 3, Rule 71 of the 1997 Rules of Civil Procedure.
Respondent fails to see, however, that under Section 4 of the same Rule, proceedings for indirect contempt may be initiated motu proprio by the court against which the contempt was committed, by an order or any other formal charge requiring respondent to show why he should not be punished for contempt. Our Resolution dated September 25, 2007 satisfies the Rule. He cannot validly claim that such resolution is vague. He cannot feign ignorance of the contents of his September 18, 19, 20, and 21, 2007 articles in the Malaya.
Rule 71 of the 1997 Rules of Civil Procedure pertinently provides:
In his Dissenting Opinion, Mr. Justice Carpio assails the Committee proceedings as "fatally defective for patent denial of due process"[89] because "when the witnesses the Committee summoned testified, the Committee monopolized the right to propound questions to the witnesses, denying to Macasaet such right."[90] He continues to say that "[w]ith the procedure the Committee adopted, Macasaet was reduced to a passive participant, unable to subject the testimonies of adverse witnesses to rigorous probing under cross-examination. As matters stand, Macasaet will be subjected to punitive sanctions based on evidence he had no opportunity to scrutinize."[91]
We disagree on triple grounds.
First , the proceedings of the Committee are presumed to be regular. Thus, the onus probandi to prove otherwise rests on Macasaet, not on the Committee. Suffice it to say that the Dissenting Opinion which cites People v. Godoy as to the "criminal" character of a contempt proceeding,[92] fails to state what Godoy likewise instructs -
The right of an accused to cross-examine the witnesses against him, although an adjunct of the Constitutional right "to meet the witnesses face to face,"[94] can be waived when not timely asserted. In the case of Macasaet, never did he assert his right to cross-examine the witnesses against him despite the opportunity to do so. During the entire course of the proceedings in the Committee, respondent was vigorously represented by counsel de parte. Respondent or his counsel could have moved to cross-examine the adverse witnesses. Respondent had every opportunity to do so. Lamentably, he failed to exercise the said right.
Interestingly, during the last hearing date, counsel for respondent requested that respondent be allowed to say something, which the Committee granted. Respondent then proceeded with a lengthy discourse, all of 45 pages, on everything and anything, except his right to cross-examination.[95] Verily, it cannot be validly claimed now that his right to cross-examine was violated.
Third , the Court is bereft of any power to invoke the right to cross-examine the witnesses against respondent, for and in his behalf. Otherwise, the Court will be acting as his counsel, which is absurd.
Just a Word More
A free press is regarded as a key pillar of democracy. Reporters must be free to report, expose, and hold government officials and agencies - including an independent judiciary - accountable. Press attention surrounding the judiciary ensures public accountability. Such publicity acts as a check on judicial competence and integrity, exposes inefficiencies and irregularities, keeps vigil over various public interest cases, and puts pressure on responsible judicial officials. This freedom has been used and has benefited the cause of justice. The press has become an important actor - a judicial watchdog - in the ongoing judicial transformation. When properly validated, its acts are protected speech from an accepted function.
Freedom, however, has not guaranteed quality journalism. The press has been vulnerable to a host of legitimate criticisms such as incompetence, commercialism, and even corruption. By disproportionately informing the public about specific court processes, or by spreading unsubstantiated allegations about corruption and other forms of judicial misconduct, the press dramatically undermines the public's faith in the courts and threatens the very foundation of our democratic government.
Oftentimes, journalists writing about the judiciary and court cases lack basic knowledge of the law and judicial procedures, on the basis of which they draw faulty conclusions which they pass on to their readers as gospel truths. Trial by publicity also influences the independence of judges as the public is fed with partial information and vocal opinions, and judges are pressured to decide in accordance with the public opinion. Faith in the judiciary is undermined when judges rule against the expectations of the public which has been brainwashed by dramatic reports and graphic comments. In some cases, unchecked rumors or allegations of irregularities are immediately published because journalists lack professional competence to verify the information, or are simply eager to break the news and attract a wider readership.
The role of the press in relation to the judiciary needs to be regulated. This can be done through voluntary codes of conduct on the part of the press and through judicial policies, such as the rule on sub judice and contempt of court rulings. The absence of clear voluntary codes developed by the press, as its self-regulator, strengthens the need for the Court to use its power in the meantime to cite critics for contempt. This is necessary in cases where such criticism is obviously malicious or in violation of the sub judice rule, or where there is an evident attempt to influence the outcome of a case. Judges have the duty to defend and uphold the integrity and independence of the judiciary. They should sanction those who obstruct or impede the judicial processes. The effective administration of justice may only be realized with the strong faith and confidence of the public in the competence and integrity of the judiciary, free from political and popular pressure.
Criticism at every level of government is certainly welcome. After all, it is an essential part of the checks and balances in our republican system of government. However, criticisms should not impede or obstruct an integral component of our republican institutions from discharging its constitutionally-mandated duties.
As the Court said in In Re: Almacen:[96]
Senator Ernesto Maceda, the seasoned politician who has graced both the executive and the legislative departments in various capacities, in a Privilege Speech, once appealed for voluntary self-restraint with respect to this Court -
Given the gravity of respondent Macasaet's improper conduct, coupled with the recalcitrant manner in which he responded when confronted with the reality of his wrongdoing, a penalty of fine in the amount of P20,000.00 would be right and reasonable.
Disposition
WHEREFORE, the Court declares respondent Amado P. Macasaet GUILTY of indirect contempt of court and sentences him to pay a fine of P20,000.00, in accordance with Sections 3(d) and 7, Rule 71 of the 1997 Rules of Civil Procedure.
SO ORDERED.
Puno, C.J., (respectfully reiterate my Dissent in the In re: Emil Jurado case. I vote to dismiss the contempt charge.)
Quisumbing, Austria-Martinez, Corona, Azcuna, Chico-Nazario, Velasco, Jr., Nachura, Leonardo-De Castro, and Brion. JJ., concur.
Ynares Santiago, J., no part.
Carpio, J., see Dissenting Opinion.
Carpio Morales, J., join the dissent opinion of J. Carpio.
Tinga, J., in the result.
* No part.
[1] Rollo, pp. 2-6.
[2] Id. at 138; affidavit of ACA Jose Midas P. Marquez, par. 4, p. 1.
[3] Id.
[4] Id. at 146; faxed letter of Marites Dañguilan-Vitug to Mme. Justice Consuelo Ynares-Santiago dated September 20, 2007.
[5] Id. at 139-140; affidavit of ACA Marquez, pars. 7-9, pp. 2-3.
[6] Id. at 147; corrected faxed letter of Marites Danguilan-Vitug to Mme. Justice Consuelo Ynares-Santiago dated September 20, 2007.
[7] Id. at 141; affidavit of ACA Jose Midas P. Marquez, par. 14, p. 4.
[8] Id. at 9-10; letter of Ms. Daisy Cecilia Muñoz Delis to Mr. Amado P. Macasaet, dated September 21, 2007, pp. 1-2.
[9] Id. at 10-11; id. at 2-3.
[10] Id. at 7; affidavit of Ms. Daisy Cecilia Muñoz Delis dated September 24, 2007, par. 8b, p. 1.
[11] Id.; id., par. 9, at 1.
[12] Id.; id., par. 10, at 10.
[13] Id. at 101-103; id. at 1-3.
[14] Id. at 101; id. at 1.
[15] Id. at 149.
[16] Id. at 141; Marquez, par. 15, p. 4.
[17] Id. at 141; Marquez, par. 14.
[18] Id. at 13; Min. Res. A.M. No. 07-09-13-SC (Re: In the Matter of the Allegations Contained in the Columns of Mr. A.P. Macasaet Published in Malaya Dated September 18, 19, 20, and 21, 2007), dated September 25, 2007.
[19] Id. at 14-43. In his sworn explanation, Macasaet, assisted by counsel, argued on the following points:
[20] Id. at 133.
[21] No known relation to Ms. Marites Dañguilan-Vitug.
[22] Rollo, pp. 223-229. Retired Supreme Court Associate Justice Vicente V. Mendoza resigned from the Committee upon finding out that the allegations of bribery involved an executive of PIATCO, a party to an international arbitration case in which he is an expert witness for the Philippine Government, and he did "not wish to burden the legal panel of the Philippine Government in the arbitration cases with the task of explaining or justifying his participation" in the Investigating Committee. Retired Justice Romeo J. Callejo, Sr., on the other hand, requested to be relieved, as he was the ponente of Go v. Sandiganbayan promulgated on April 13, 2007, while retired Justice Arturo Buena had likewise requested to be inhibited from the investigating committee. These requests were approved by the Court En Banc in a Resolution dated November 13, 2007. (Id. at 232.)
[23] TSN, October 30, 2007, p. 18.
[24] TSN, January 17, 2008, p. 6.
[25] Rollo, pp. 326-347; Report and Recommendation (Re: In the Matter of the Allegations Contained in the Columns of Mr. A.P. Macasaet Published in Malaya Dated September 18, 19, 20, and 21, 2007), pp. 1-22.
[26] Id. at 333; id. at 8.
[27] Id. at 340-341; id. at 15-16.
[28] Id. at 341-342; id. at 16-17.
[29] Id. at 342-343; id. at 17-18.
[30] Id. at 343-346; id. at 18-21.
[31] Id. at 346-347; id. at 21-22.
[32] Blackstone, W., Commentaries, 145 (1876).
[33] Record of the Constitutional Commission: Proceedings and Debates (1987), p. 758.
[34] De Jesus, M.Q., Overview, Press Freedom in the Philippines (2004).
[35] Teodoro, L.V., Survey of Media, Press Freedom in the Philippines (2004).
[36] Guidebook for Journalists Covering the Courts: Strengthening Judiciary-Media Relations, Asian Institute of Journalism and Communication (2004), p. 13.
[37] Jacobson, M.K., Assault on the Judiciary: Judicial Response to Criticism Post-Schiavo, 61 U. Miami L. Rev. 931 (2007).
[38] Attorney-General v. Leveller Magazine, Ltd., AC 440 (1979); Scott v. Scott, AC 417 (1913).
[39] Coker, H.C., Responding to Judicial Criticism, 73 Fla. B.J. 10 (1999).
[40] Blatz, K., The State of the Judiciary, 62 Bench & B. Minn 26, 27 (2005).
[41] The Federalist No. 78.
[42] Constitution (1987), Art. VIII, Sec. 1.
[43] See Abrahamson, S.S., Remarks of the Hon. Shirley S. Abrahamson before the American Bar Association Commission on the Separation of Powers and Judicial Independence, Washington, D.C., December 13, 1996, 12 St. John's J. Legal Comment. 71 (1996).
[44] Kelson, S., Judicial Independence and the Blame Game: The Easiest Target Is a Sitting One, 15 Utah B.J. 15-16 (2002).
[45] G.R. No. L-27833, April 18, 1969, 27 SCRA 835.
[46] Gonzales v. Commission on Elections, id. at 858.
[47] G.R. No. L-32066, August 6, 1979, 92 SCRA 476.
[48] In Re: Lozano, 54 Phil. 801 (1929).
[49] G.R. Nos. 79690-707 & L-80578, October 7, 1988, 166 SCRA 316.
[50] Zaldivar v. Gonzalez, id. at 354, citing the concurring opinion of Mr. Justice Frankfurter in Pennekamp v. Florida, 328 US 331, 354-356 (1946).
[51] Adopted and opened for signature, ratification and accession by the UN General Assembly Resolution 2200A (XXI), December 16, 1966, entered into force on January 3, 1976.
[52] E.T.S. No. 5, adopted November 4, 1950, entered into force on September 3, 1953.
[53] Adopted at San Jose, Costa Rica, November 22, 1969, entered into force on July 18, 1978.
[54] Adopted at Nairobi, Kenya, June 26, 1981, entered into force on October 21, 1986.
[55] Locke, J., Second Treatise of Government (1689), §§ 124-126, reprinted in Locke, J., Political Writings 325 (1985 ed.).
[56] 1 Phil. 1 (1901).
[57] In the matter of the proceedings against Marcelino Aguas for contempt of the Court of First Instance of Pampanga, id. at 2.
[58] In Re: Amzi B. Kelly, 35 Phil. 944 (1916).
[59] In Re: Vicente Sotto, 82 Phil. 595 (1949).
[60] In the Matter of Proceedings for Disciplinary Action Against Atty. Wenceslao Laureta and of Contempt Proceedings Against Eva Maravilla-Illustre in G.R. No. 68635, entitled "Eva Maravilla-Illustre vs. Hon. Intermediate Appellate Court, et al.," G.R. No. 68635, March 12, 1987, 148 SCRA 382.
[61] Id. at 390-391.
[62] Id. at 392-393.
[63] Id. at 421.
[64] 58 Phil. 271 (1933).
[65] Perkins v. Director of Prisons, id. at 274, citing Ex parte Terry, 128 US 225, 32 L Ed., 405; In re Kelly, 35 Phil. 944; State v. Magee Publishing Company, 38 ALR 142, 144.
[66] Id. at 274-275, citing 4 Lewis' Bl. Com., Sec. 286, p. 1675; Oswald, Contempt, Canadian ed., pp. 1-3, 6 RCL 489; State v. Morrill, 16 Ark. 390; State ex rel. Rodd v. Verage, 177 Wis. 295, 23 ALR 491, 187 NW 830; and People ex rel. Brundage v. Peters, 305 Ill. 223; 26 ALR 16, 137 NE 118.
[67] In Re: Vicente Sotto, supra note 59.
[68] Halili v. Court of Industrial Relations, G.R. No. L-24864, April 30, 1985, 136 SCRA 112.
[69] Supra note 49.
[70] 39 Phil. 778 (1919).
[71] 312 Phil. 977 (1995).
[72] Supra note 59.
[73] 36 F. 2d 220.
[74] People v. Godoy, supra note 71, at 1003.
[75] Id. at 1004.
[76] G.R. Nos. 152072 & 152104, July 12, 2007, 527 SCRA 446.
[77] Khanna, H.R., Freedom of Expression with Particular Reference to Freedom of the Media, 2 SCC (Jour) 1 (1982).
[78] Rollo, pp. 344-345; Report and Recommendation (Re: In the Matter of the Allegations Contained in the Columns of Mr. A.P. Macasaet Published in Malaya Dated September 18, 19, 20, and 21, 2007), pp. 19-20.
[79] Id. at 346; id. at 22.
[80] See notes 26 and 27.
[81] TSN, January 10, 2008, pp. 92-93, 113.
[82] See note 28.
[83] TSN, January 10, 2008, pp. 28-40.
[84] The five W's and one H: Who, What, When, Where, Why, and How are generally known as the basic information that all news stories should contain.
[85] Rollo, p. 103; TSN, January 10, 2008.
[86] Id. at 346.
[87] In Re: Emil P. Jurado, A.M. No. 93-2-037 SC, April 6, 1995, 243 SCRA 299.
[88] Then Associate Justice, now Chief Justice Puno was joined by Justice Padilla in his Dissenting Opinion in the Jurado case where the Court voted 10-3, with two justices taking no part.
[89] Dissenting Opinion, p. 8.
[90] Id.
[91] Id. at 9.
[92] Id. at 7.
[93] Supra note 71, at 1001.
[94] Constitution (1987), Art. III, Sec. 14 (2).
[95] TSN, February 1, 2008, pp. 84-129.
[96] G.R. No. 27654, February 18, 1970, 31 SCRA 562.
[97] In Re: Almacen, id. at 578-580.
[98] Maceda, E.M., In Defense of the Supreme Court, Privilege Speech delivered on the Senate Floor, February 2, 1993.
DISSENTING OPINION
CARPIO, J.:
The Case
This resolves a contempt charge[1] against respondent Amado A.P. Macasaet (Macasaet), a newspaper columnist, for authoring publications imputing bribery to a member of this Court.
Macasaet writes a daily column, "Business Circuit," in Malaya, a newspaper of general circulation. In the 18-21 September 2007 issues of Malaya, Macasaet ran a story, based on information obtained from confidential sources, of an alleged bribery in the Court committed as follows: on separate occasions in the second week of September 2007,[2] five[3] boxes containing cash worth P10 million were delivered to the Court and received by a certain "Cecilia," a staff of an unnamed lady Justice, who opened one of the boxes and saw its contents. Forthwith, the Justice terminated "Cecilia's" employment. The payoff was made allegedly in connection with a decision rendered by the Justice "acquitting" a Filipino-Chinese businessman. Macasaet's story, which carried commentaries on the state of the judiciary and reputation of judges,[4] exhorted "Cecilia" to divulge everything she knows about the alleged bribery and the Court to investigate the matter.
Subsequently, Newsbreak, an online magazine, posted on its website[5] a news report that the Court is investigating a bribery incident based on facts substantially similar[6] to what Macasaet wrote. Written by Marites Danguilan Vitug (Vitug), Newsbreak editor, and Aries Rufo (Rufo), Newsbreak reporter, the news report named Justice Consuelo Ynares-Santiago as the member of the Court involved in the alleged bribery and one Cecilia Delis (Delis)[7] as her staff whose employment she terminated.
On 24 September 2007, Justice Santiago issued a statement denying the "accusations and insinuations" published in Malaya and Newsbreak. Justice Santiago also asked the Court to investigate the matter.
In a Resolution dated 25 September 2007, the Court en banc required Macasaet to explain "why no sanction should be impose[d] on him for indirect contempt of court" under Section 3(d), Rule 71 of the 1997 Rules of Civil Procedure.[8] After Macasaet submitted his compliance and Delis her affidavit, the Court, in the Resolution of 16 October 2007, created a Committee, composed of former members of the Court,[9] to "receive evidence from all parties concerned" and submit its report and recommendation within 30 days from the start of its hearing. Macasaet, Vitug, Rufo, Delis and other Court employees[10] appeared and testified before the Committee.
Macasaet, Vitug and Rufo uniformly testified that they obtained the information on the alleged bribery from their respective confidential sources. Delis denied having received or opened any box containing cash intended for Justice Santiago. While admitting that she was a staff of Justice Santiago, Delis denied having been fired from service and claimed that she resigned effective 15 March 2007. Danilo Pablo of the Court's Security Division testified that while visitors to the Court are listed in the logbook at the Court's gate, the security personnel, as a matter of policy, do not open gifts or boxes intended for members of the Court.
It was determined during the hearings conducted by the Committee that the case referred to in Macasaet and Newsbreak's[11] publications is G.R. No. 172602 (Henry T. Go v. The Fifth Division, Sandiganbayan). The petition in G.R. No. 172602 sought the nullification of the Sandiganbayan's ruling denying quashal of the Information filed against petitioner Henry T. Go (Go) for violation of Section 3(g), Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act). In a Decision dated 13 April 2007, penned by Justice Romeo J. Callejo, Sr., the Third Division, by a divided vote,[12] dismissed the petition in G.R. No. 172602. Go sought reconsideration and while his motion was pending, Justice Callejo retired from the Court. In the Resolution dated 3 September 2007, penned by Justice Santiago, a Special Third Division, again by a divided vote,[13] granted Go's motion, reversed the Decision of 13 April 2007, and dismissed the Information filed against Go. The respondent sought reconsideration which awaits resolution.
In its Report and Recommendation dated 10 March 2008 (Report), the Committee found that "there exist valid grounds x x x to cite x x x Macasaet for indirect contempt x x x." The Report found that (1) Macasaet's publications were false, baseless,[14] unbelievable,[15] and malicious[16] and (2) Macasaet was negligent in failing to ascertain the veracity of his story.[17] The Committee concluded that Macasaet's publications generated public distrust in the administration of justice and thus, contumacious. The majority finds the Report's findings and conclusion well-taken and accordingly imposes a punitive fine on Macasaet.
I agree with the majority that Macasaet failed to substantiate his story. However, I disagree with the majority's conclusion that this suffices to hold Macasaet guilty of contempt of court.
Preliminary Observations
On the Nature of this Proceeding
As stated, this is a proceeding to determine Macasaet's liability for criminal contempt[18] under Section 3(d), Rule 71 of the 1997 Rules of Civil Procedure.[19] Thus, its scope is narrow and its purpose specific: to determine, using applicable standards, whether Macasaet's publications tend to impede, obstruct, or degrade the administration of justice. Care must be taken that, in undertaking this task, we do not tread beyond the limited confines of this proceeding and enter into the larger determination of whether bribery, as defined in our criminal statutes,[20] did or did not take place to remove a member of this Court from office. The Constitution has vested such power only on Congress[21] which, upon proper complaint and after due proceedings, determines whether a member of this Court can be impeached for, among others, bribery.[22] Observance of this jurisdictional delineation has a practical consequence: this proceeding terminates either in Macasaet's citation or non-citation for indirect contempt of court depending on whether his publications are deemed contumacious.
On Whether this Case Should be Decided
by the Court En Banc or by the Special Third
Division in G.R. No. 172602
While there may have been confusion at the start as to which case was involved in the reported bribery,[23] it is now settled that the case is G.R. No. 172602 pending with the Special Third Division (awaiting resolution of respondent's motion for reconsideration). Hence, it is but proper and logical that the Special Third Division resolve this matter which, after all, is but an incident to G.R. No. 172602. While this Court is a collegiate court, it is no less a court of law when it sits in a division than when it sits en banc, to resolve judicial matters, or, as here, a contempt charge. At any rate, whether it is the Court en banc or the Special Third Division in G.R. No. 172602 which resolves this matter, Macasaet's conduct is not contumacious.
The Resolution dated 16 October 2007 created the Committee to:
This procedure is fatally defective for patent denial of due process, rendering the testimonies in question inadmissible.
A proceeding for criminal contempt, as here, is adversarial.[25] At the heart of such adversarial process is the parties' right to test the veracity of the testimonies of adverse witnesses through cross-examination. With the procedure the Committee adopted, Macasaet was reduced to a passive participant, unable to subject the testimonies of adverse witnesses to rigorous probing under cross-examination. As matters stand, Macasaet will be subjected to punitive sanctions based on evidence he had no opportunity to scrutinize.
True, the Committee solicited the views of the parties, and the counsels for the Newsbreak staff[26] and Delis[27] agreed with the Committee's characterization of the proceedings as mere fact-finding.[28] However, this acquiescence is no more binding on the Court than the Committee's view. It is an erroneous conclusion of law which cannot transform the nature of a contempt proceeding from adversarial to non-adversarial.
Nor can it be said, as the ponencia holds, that Macasaet waived his right to conduct cross-examination for his failure to "timely assert" such right. This conclusion erroneously presupposes that Macasaet should have asserted such right at that point. The Committee stated at the outset that its investigation was merely "fact-finding," making Macasaet believe that there would be another occasion for a cross-examination of the witnesses. Thus, Macasaet did not insist on his right to cross-examine at that point. Having been denied the right to cross-examine from the start, there was nothing which Macasaet could have "timely asserted."
At any rate, the evidence at hand fails to meet the applicable standard in contempt-by-publication proceedings.
This matter comes on the heels of a small but growing line of jurisprudence on contempt-by-publication;[29] however, this is only the second incident to involve this Court on reports of corruption.[30] These cases implicate two competing but equally vital State interests: on the one hand, the right of journalists to be protected from contempt of court under the constitutional guarantees of free speech and of the press and, on the other hand, the right of the courts to maintain order, impartiality and dignity in the administration of justice. In resolving the matter, we are called upon to perform a task more commonly done in constitutional adjudication - the balancing of constitutional values using applicable standards. As ever, the result of this delicate task hinges on the liberality or stringency of the test used against which the two interests are weighed.
In concluding that "there exist valid grounds x x x to cite x x x Macasaet for indirect contempt x x x," the Report implicitly used two parameters, first applied in In Re: Emil P. Jurado[31] (Jurado test), against which Macasaet's publications were measured: (1) whether Macasaet's story was false and (2) whether Macasaet could have prevented the publication of the false story by exercising diligence in verifying its veracity.[32] As stated, the Report found Macasaet's publications wanting on both counts.
However, long before we adopted the Jurado test, this Court already laid down the two "theoretical formulas" to serve as the judicial scales upon which the competing interests in this proceeding are weighed. We held in Cabansag v. Fernandez:[33]
Although the majority, in adopting the Report's findings, did not expressly so state, it appears that the substantive evil allegedly brought about by Macasaet's publications is two-fold: (1) disrespect for the Court and (2) unfair administration of justice. To determine to what extent the substantive evil is likely to occur, we must turn to the particular utterances and the circumstances of their publication.[35] On the question of disrespect for the Court, the Report seemed to have cherry-picked words from Macasaet's publications describing the Court's reputation ("sagging" and "soiled"), the state of the courts ("dirty"), and the public's appraisal of judges ("thieves") and separated them from their context to arrive at its conclusion. Adopting the same approach, the majority holds that "[Macasaet] has absolutely no basis to call the Supreme Court a court of 'thieves' and a 'basket of rotten apples.'"[36]
A simple resort to the publications in question belies these findings. Macasaet used these terms to bring home his point that (1) the alleged bribery "proves" the less than a desirable state of affairs in the judiciary (that is, the courts are "dirty"); (2) which reflects on the entire judiciary (similar to a basket of apples where, if "there are a few which are rotten[;] [t]hat makes the whole basket rotten"); and (3) that the Court must investigate the reported bribery with Delis' aid to save the other members of the Court from "suspicions they are thieves."[37] Thus, taken in context of their actual use as they appeared in Macasaet's publications, the words the majority finds contumacious are no more disrespectful of courts than when a publication states that a reported pay-off "proves" that the judiciary is populated by "hoodlums in robes."[38]
On Macasaet's statement that the Justice in question "shamed her court" and that she should resign or be impeached, it needs no further elaboration that this statement is not directed at the Court but at one of its members. Without passing judgment on the nature of this statement, it is obvious that the remedy for any injury this may have caused lies not in this Court's exercise of its contempt power but in the resort by the Justice concerned to remedies available under our civil and criminal statutes to vindicate her rights.[39]
On the question of unfair administration of justice, neither has it been claimed nor suggested that this matter has or will adversely affect the disposition of the pending incident in G.R. No. 172602. If there is any party which stands to be directly prejudiced by the alleged bribery, it is the government whose case against Go was ordered dismissed in the Resolution of 3 September 2007. However, the government has not asked for Justice Santiago's inhibition from that case, indicating its continuing trust and confidence in her impartiality. With this backdrop, the Report's conclusion that Macasaet's publications "generate[d] public distrust in the administration of justice" and wrought "damage and injury" to the "institutional integrity, dignity, and honor"[40] of this Court rings hollow, rooted on assumptions bereft of factual basis. As well observed by then Associate Justice, now Chief Justice Reynato S. Puno, in Jurado which also involved a journalist who authored false reports of corruption in the Court:
The clear and present danger test, which this Court has been applying in contempt cases,[45] is most protective of free speech and of free press, basic rights which are necessary for the exercise of almost every other fundamental right.[46] That this case is a criminal contempt proceeding gives added protection to Macasaet who invokes freedom of the press. Indeed, Macasaet is afforded the basic rights granted to the accused[47] in a criminal case and as precondition for citing him in contempt, intent to commit contempt of court must be shown by proof beyond reasonable doubt. Good faith or absence of intent to harm the courts is a valid defense.[48] Macasaet did invoke good faith but the Report brushed it aside as "tongue in cheek protestation[]."[49]
The clear and present danger test is the most exacting and protective test in favor of free press. Before a journalist can be punished in a criminal contempt case, as in this case, there must be proof beyond reasonable doubt that his publication tends to obstruct the administration of justice, and such obstruction must be extremely serious, likely resulting in an unfair decision, and the degree of imminence of the obstruction actually happening extremely high.
Macasaet and Newsbreak based their reports on the alleged bribery from information obtained from their respective confidential sources. In short, it was a professional call on the part of Macasaet and Newsbreak to run the story. This Court should be the last to attribute negative motives for this judgment call.[50] Admittedly, Macasaet has failed to substantiate his story - spread over four issues of Malaya, divulging bits and pieces of vague information. This, however, does not serve to lessen the protection afforded to the publications which carried them under the constitutional guarantees of free speech and of free press. Journalists, "agents of the people"[51] who play a vital role in our polity by bringing to the public fora issues of common concern such as corruption, must be accorded the same "breathing space" for erroneous statements necessary for free expression to thrive in a democratic society.[52]
Further, failure to substantiate a story, or even the mere falsity of publications, had long ceased to suffice to hold journalists in contempt of court (unless there is a clear and present danger that such false reports will impair the administration of justice)[53] just as it had long ceased to suffice to hold journalists liable for libel for criticism of public officials under the actual malice standard.[54] Chief Justice Puno's discussion of this point in Jurado is most illuminating:
The "falsity and negligence test" compels the journalist to guarantee the veracity of what he writes on pain of criminal contempt of court. Obviously, this has a chilling effect on free speech and free press. This will lead to self-censorship, suppressing the publication of not only what is false but also of what is true. Critics of judges or the courts will be forced into silence, unless they are willing to face imprisonment or fine for criminal contempt. The "falsity and negligence test" is a dangerous throwback to the Dark Ages in the history of free speech and of free press.
By approving the Report's reliance on the Jurado test, the majority perpetuates a double-standard vis-a-vis publications critical of public officials. On the one hand, the majority applies the liberal "falsity and negligence test" in lieu of the exacting clear and present danger test to scrutinize publications critical of judges in contempt cases, and on the other hand, applies the stringent "actual malice test" for publications critical of all other public officials.
This Court has extended the constitutional protection of free speech to publications critical of a barangay official,[60] provincial governor (and concurrently a cabinet official),[61] and other public figures,[62] for lack of proof of knowledge that the publication was false or of reckless disregard of whether the publication was false or not. However, the Court today is imposing punitive sanctions on a journalist for authoring publications imputing malfeasance on a member of the Court because the journalist failed to substantiate his story, despite incontrovertible proof that he acted in good faith as shown by the parallel publication of the same story by another media outlet based on its own confidential sources (which, significantly, was never made to justify its conduct).
Supreme Court Justices, as public officials, and the Supreme Court, as an institution, are entitled to no greater immunity from criticism than other public officials and institutions.[63] Indeed, the dual-treatment that the majority tolerates turns on its head the purpose of the contempt power: instead of "protect[ing] immediate litigants and the public from the mischievous danger of an unfree or coerced tribunal" it "protects the court as a mystical entity or the judges x x x as anointed priests set apart from the community and spared the criticism to which in a democracy other public servants are exposed."[64] As the Highest Court of the land, the Court should be the first to resist the temptation to privilege its members with the shield of lese-majeste, through the liberal "falsity and negligence test," at the expense of diluting the essence of the free press guarantee indispensable in a democratic society. This Court diminishes itself if it diminishes the free press guarantee, for an independent judiciary needs a free press as much as a free press needs an independent judiciary.[65]
Courts must, as a matter of self-preservation, be able to defend themselves. But it is not against all attacks that they can employ the preservative[66] power of contempt. As this Court recognized more than half a century ago in Cabansag, it is only when the evil brought about by the attack is "extremely serious and the degree of imminence extremely high" so as to impede, obstruct, or degrade the administration of justice that courts must act. To apply this exacting test is not to deny a right inherent in courts but to recognize their place in a free society always accountable to the public whom they serve and for whom they exist. More than a decade ago, this Court was given the chance in Jurado, as the Court is again now, of applying to itself this rigorous test to an unsubstantiated publication imputing corruption to a member of this Court. The eloquent words of Chief Justice Puno explaining why a step towards such a direction serves the cause of press freedom and good government remain true today as they did then:
[1] Initiated by the Court motu proprio under Section 3(d), Rule 71 of the 1997 Rules of Civil Procedure.
[2] Macasaet's column of 18 September 2007 stated that the bribery took place a "week" before 18 September 2007. Macasaet later changed the date to coincide with the "acquittal" of a Chinese-Filipino litigant (subsequently identified as Henry Go in G.R. No. 172602 whose motion for reconsideration of the dismissal of his petition was granted on 3 September 2007). When he testified during the investigation of this case, Macasaet again changed the date of the pay-off, this time to cover the period November 2006 - 15 March 2007.
[3] Macasaet's column of 18 September 2007 mentioned only a single box.
[4] The relevant comments are: "the gift gives proof to the pernicious rumor that the courts are dirty" (18 September 2007 issue); "[t]he court is like a basket of apples. There are a few which are rotten[;] [t]hat makes the whole basket rotten" (18 September 2007 issue); "[t]he names and reputations of highly-respected jurists must be saved from suspicions they are thieves" (18 September 2007 issue); "[t]he lady justice shamed her court. She should resign or be impeached" (19 September 2007 issue); Cecilia has "a duty to save the sagging reputation of the Supreme Court" (20 September 2007 issue); and the resignation or impeachment of the justice involved "is the only way the soiled reputation of the Highest Court could be restored" (20 September 2007 issue).
[5] www.newsbreak.com.ph
[6] The Newsbreak story mentioned only a "gift-wrapped box" containing cash "estimated" at P10 million.
[7] Also referred to in other parts of the records as Daisy Cecilia Muñoz Delis.
[8] The Resolution reads in full:
Upon evaluation of the columns "Business Circuit" of Amado P. Macasaet in the September 18, 19, 20, and 21, 2007 issues of the Malaya, it appears that x x x certain statements and innuendos therein tend, directly or indirectly, to impede, obstruct, or degrade the administration of justice, within the purview of Section 3(d), Rule 71 of the 1997 Rules of Civil Procedure.
WHEREFORE, Amado P. Macasaet is ORDERED TO EXPLAIN why no sanction should be impose[d] on him for indirect contempt of court in accordance with Section 3(d), (Rule 71) of the 1997 Rules of Civil Procedure, within five (5) days from receipt hereof.
[9] Justice Carolina Griño-Aquino, as Chairperson, with Justices Vicente V. Mendoza and Romeo Callejo, Sr. as members. However, Justices Mendoza and Callejo recused themselves from the Committee and were replaced by Justices Jose C. Vitug (ret.) and Arturo Buena (ret.), respectively. Justice Buena also recused himself from the Committee and was replaced by Justice Justo Torres (ret.).
[10] Danilo Pablo, Judicial Staff Officer, Security Division; Araceli Bayuga, Cashier; and Midas P. Marquez, Public Information Officer and Chief of Staff, Office of the Chief Justice.
[11] In its report, Newsbreak also mentioned a second case involving a "341-hectare prime property in Quezon City."
[12] Justices Alicia Austria-Martinez and Minita Chico-Nazario concurred in the ruling. Justice Santiago, joined by Justice Antonio Eduardo Nachura, filed a dissenting opinion,
[13] Justices Adolfo Azcuna and Cancio Garcia concurred in the ruling. Justice Alicia Austria-Martinez, joined by Justice Minita Chico-Nazario, filed a dissenting opinion.
[14] The Report states (pp. 16-18):
The following inconsistencies and assumptions of Macasaet prove that the alleged bribery story lacks veracity:
1. For instance, he said that he could not get confirmation of the bribery story given to him by his source. Later, he said that his sources "told me they had personal knowledge" but would not reveal the name of the Lady Justice (65 tsn Jan. 10, 2008).
2. His allegation that the Lady Justice (later identified as Justice Santiago) did not report for work "last week", i.e., the week before his first columns came out on September 18, 2007, was refuted by the Court's Public Information Officer (PIO) Atty. Midas Marquez, who testified that no Lady Justice was absent that week.
3. The date when the gift-wrapped box of money was allegedly opened by Cecilia is also uncertain because of Macasaet's conflicting allegations about it. Macasaet's first column of September 18, 2007, stated that it happened "last week", i.e., sometime in the week of September 10-14, 2007.
The next day, September 19, 2007, he however wrote in his column that "the five boxes (not one) of money were delivered on the day (September 3, 2007) when the Lady Justice, acting as ponente, acquitted" the accused Henry T. Go.
But again, because his story about Cecilia's role in the discovery of the bribery in September 2007, was contradicted by the record of Cecilia's resignation from the Court on March 15, 2007 (Annexes "D" and "D-1", Cecilia Delis' Letter of Resignation & Clearance), Macasaet, after consulting his "source" again, changed his story when he testified on January 17, 2008. He said that, according to his source, the boxes of money were delivered, not any one time in September 2007, but on different dates in November 2006 up to March 2007, "before Cecilia resigned or was fired from the office of Justice Santiago." (5-6 tsn Jan. 17, 2008)
That allegation is, however, refuted by the logbooks of the Security Services for the period of November 2006 to March 2007 which contain no record of the alleged deliveries of boxes of money to the office of Justice Santiago. Danilo Pablo, head of the February 1, 2008, he denied that said he that, --"I never said carnation boxes; I said milk boxes that should make a lot of difference." (84 tsn Feb. 1, 2008).
Court's Security Services affirmed that in his [sic] ten (10) years of service in the Court he has not received any report of boxes of money being delivered to any of the Justices. (45-46 tsn Jan. 22, 2008)
[4.] Which of the five (5) boxes was opened and yielded money? In his column of September 21, 2007, Macasaet alleged that Cecilia picked up the five boxes of money "several times in March" ("not last week as I mistakenly reported"), and "she never opened the first four boxes.... she opened the last and saw the money because the Lady Justice was absent on that day."
But when he testified before the Committee on January 10, 2008, Macasaet alleged that it was "the first one that was opened" according to his source (71, 89, 92, 125 tsn Jan. 10, 2008)
Contradicting his published story that five (5) boxes of money were delivered "on the day" the Lady Justice acquitted Henry Go, Macasaet testified at the investigation that they were delivered "on different occasions according to my source" (70 tsn Jan. 10, 2008)
But no sooner had he attributed that information "to my source" than he admitted that it was only "my own conclusion x x x I assumed that the giver of the money is not so stupid as to have them delivered all in one trip. As a matter of fact I even wondered why said boxes were not delivered in the home of the Lady Justice." (72 tsn Jan. 10, 2008).
[5.] The amount of the bribe is also questionable. For while in his own column of September 18, 2007 Macasaet stated that the gift was "estimated at Php 10 million", he later testified on January 10, 2008, that "the amount was my own calculation because I talked to people, I said this kind of box how much money in One Thousand Pesos bills can it hold, he told me it is ten (million). So that was a calculation" (77 tsn Jan. 10, 2008).
He also merely "assumed that the money was in one thousand peso bills (78 tsn Jan. 10, 2008). No one really knows their denomination.
He said he was told that the size of the box where the money was placed was "this milk called carnation in carton." x x x But in the final hearing on February 1, 2008 he denied [such and stated] "I never said carnation boxes. I said milk boxes[.] [T]hat should make a lot of difference" (84 tsn Feb. 1, 2008).
[6.] Since only one gift-wrapped box of money was opened, Macasaet admitted that he has "no knowledge" of whether the four (4) other boxes were also opened, when and where they were opened, and by whom they were opened (90 tsn Jan. 10, 2008). Therefore, no one knows whether they also contained money.
That the five (5) boxes contained a total of ten million pesos, is just another assumption of Macasaet's. "It is a conclusion based on estimates obtained from friends and how much five boxes can hold in one thousand peso bills, more or less ten million," he explained (91 tsn Jan. 10, 2008). (Emphasis in the original)
[15] The Report states (p. 18):
In view of its tenuous underpinnings, we find the bribery story in Macasaet's columns of September 18-21, 2007, and in Ms. Vitug's Newsbreak issue of September 25, 2007, unbelievable. Why should five boxes supposedly containing a total of Php 10 million as bribe money be delivered to the office of a Lady Justice in the Supreme Court, where it would have to pass examination by the security guards and quizzical eyes of her own employees? Why not to her home? Or at some agreed meeting place outside the Court and her home? Or why not quietly deposit it in her bank account? And why was she absent from her office on the day of the presumably agreed date for the payment of the bribe? If the bribe was for dismissing the information against Henry Go in the Sandiganbayan, why was it paid prematurely in November 2006-March 2007 when the case of Henry Go was still up in the air and in fact was decided against him on April 13, 2007? The favorable resolution on his motion for reconsideration, penned by Justice Santiago, was promulgated on September 3, 2007, almost one year after the pay-off, if there was such a pay-off? (Emphasis in the original)
[16] The Report states (p. 20):
If he had no malice toward the Court, if, as he professes, the purpose of his columns was to save the integrity and honor of the Court, Macasaet should, and could, have reported the rumored bribery directly to the Chief Justice and asked for its investigation. He should have refrained from calling the Court names, before giving it a chance to act on his report and on his suggestion to investigate the matter. Since he knew the name of the Court employee who allegedly discovered the bribe money, the Court could have begun its investigation with her to ascertain the identity of the nameless Lady Justice and the veracity of the rumored bribery. His disparaging remarks about the Court and jurists in conjunction with his unverified report on the alleged bribery were totally uncalled for and unjustified.
[17] The Report states (p. 15):
The Committee observed that Macasaet's tory about the bribery and of Cecilia's role in supposedly discovering it, is full of holes, inconsistencies, and contradictions, indicating that he did not exercise due diligence, patience, and care in checking the veracity of the information fed to him, before giving it publicity in his columns. Nor was he bothered by the damage that his columns would inflict on the reputation of a member of the Highest Court and on the Court itself. In fact, he was "happy" that he wrote the columns (103 tsn Jan. 10, 2008). Even if he failed to get confirmation of the bribery," one day sooner or later, somebody would come up and admit or deny it. He did not care that he smeared the whole judiciary to fish her out, because "after she is fished out, the suspicion on the rest would be removed". (29-30 tsn Jan. 10, 2008).
[18] As distinguished from "civil contempt," criminal contempt is an act obstructing the administration of justice which tends to bring the court into disrepute or disrespect; it is also an offense against organized society and public. Civil contempt, on the other hand, consists in failing to do something ordered by the court in a civil action for the benefit of the opposing party (People v. Godoy, 312 Phil. 977 [1995]).
[19] Sec. 3. Indirect contempt to be punished after charge and hearing. - After a charge in writing has been filed and an opportunity to respondent to comment thereon within such period as may be fixed by the court and to be heard by himself or counsel, a person guilty of any of the following acts may be punished for indirect contempt:
x x x x
(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice.
[20] Article 210, Revised Penal Code.
[21] Section 3, Article XI, Constitution.
[22] Section 2, Article XI, Constitution.
[23] In her statement dated 24 September 2007, Justice Santiago adverted to "a big land dispute in Quezon City" as the possible reason for the bribery reports. See also note 11.
[24] The Committee chair, Justice Griño-Aquino, stated during the Committee's first hearing on 7 January 2008 (TSN, 7 January 2008, pp. 29-30):
Although in the hearing of 7 January 2008, Committee member Justice Vitug stated that "the Committee x x x would not be in a position to make any pre-judgment x x x on the scope of its authority but x x x shall act in accordance with what it believes to be the mandate of the Court" (TSN, 7 January 2008, p. 28), he later stated in the subsequent hearing of 24 January 2008 that "we are here only to make some findings and that's it x x x" (TSN, 24 January 2008, p. 90).
[25] See Soriano v. Court of Appeals (G.R. No. 128938, 4 June 2004, 431 SCRA 1, 7-8) where we held that "[t]he modes of procedure and rules of evidence adopted in contempt proceedings are similar in nature to those used in criminal proceedings."
[26] Atty. Fulgencio Factoran.
[27] Atty. Ricardo Pamintuan.
[28] TSN, 7 January 2008, pp. 15, 27. The counsel for Macasaet did not make any manifestation.
[29] For publications by journalists, see In re Lozano and Quevedo, 54 Phil. 801 (1930); In re Abistado, 57 Phil. 669 (1932); In Re Brillantes, 42 O.G. 59 (1945); Murillo v. Superable, 107 Phil. 322 (1960); People v. Castelo, No. L-11816, 23 April 1962, 4 SCRA 947. For publications of letters written, or interviews given, by citizens, see In re Kelly, 35 Phil. 944 (1916); People v. Alarcon, 69 Phil. 265 (1939); In re Sotto, 82 Phil. 595 (1949); Zaldivar v. Gonzalez, Nos. L-79690-707, 7 October 1988, 166 SCRA 316.
[30] The first is In Re: Emil P. Jurado, 313 Phil. 119 (1995).
[31] Id.
[32] While Jurado also mentioned other "postulates" to resolve the contempt charge in that case (namely, whether the publication is violative of the Philippine Journalist Code of Ethics and offensive to the dignity and reputation of a Court or a judge presiding over it), the Report made no mention of these "postulates." However, the Report did refer to Newsbreak's Guide to Ethical Journalistic Conduct which Macasaet allegedly "violated" for making several false assumptions.
[33] 102 Phil. 152, 161-164 (1957).
[34] See Cabansag v. Fernandez supra note 33 and People v. Godoy, 312 Phil. 977 (1995). This is also the prevailing test in the U.S. jurisdiction in contempt-by-publication cases (see Pennekamp v. State of Florida, 328 U.S. 331 [1946]; Craig v. Harney, 331 U.S. 367 [1947]; Bridges v. California, 314 U.S. 252 [1941]). For a discussion on the evolution of this test in that jurisdiction as used in contempt-by-publication cases, see Turkington v. Municipal Court, 85 Cal. App.2d 631, 193 P.2d 795 (1948). In this jurisdiction, the test has likewise been used to determine the constitutionality of regulations and official pronouncements amounting to censorship (e.g. Iglesia ni Cristo (INC) v. Court of Appeals, G.R. No. 119673, 26 July 1996, 259 SCRA 529; Chavez v. Gonzalez, G.R. No. 168338, 15 February 2008). As used in First Amendment cases in the U.S. jurisdiction, this test has been refined under the Brandenburg standard in Brandenburg v. Ohio, 395 U.S. 444 (1969) (see separate and concurring Opinion, Carpio, J. in Chavez v. Gonzales, G.R. No. 168338, 15 February 2008).
[35] Bridges v. California, 314 U.S. 252, 271 (1941).
[36] Majority Opinion, p. 39.
[37] See note 4.
[38] A term, made popular by a former Chief Executive, which has gained currency in public discourse on corruption in the judiciary.
[39] Significantly, in her statement dated 24 September 2007, Justice Santiago reserved "her right to file the appropriate criminal charges."
[40] Report, p. 19.
[41] In Re: Emil P. Jurado supra note 30.
[42] 40 A.L.R.3d 1204.
[43] See Pennekamp v. State of Florida, 328 U.S. 331 (1946); Craig v. Harney, 331 U.S. 367 (1947); Bridges v. California, 314 U.S. 252 (1941).
[44] Bridges v. California, 314 U.S. 252, 263 (1941).
[45] See Cabansag v. Fernandez supra note 33; People v. Godoy, 312 Phil. 977 (1995).
[46] Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills, No. L-31195, 5 June 1973, 51 SCRA 189 (1973). For an extensive discussion of the vital role of free expression in a democratic society, see Chavez v. Gonzalez, G.R. No. 168338, 15 February 2008, Carpio, J., concurring.
[47] Such as the presumption of innocence and the requirement of proof beyond reasonable doubt (People v. Godoy, 312 Phil. 977 [1995]).
[48] People v. Godoy, 312 Phil. 977 (1995).
[49] The Report states (p. 19):
Macasaet's diatribes against the Court generates public distrust in the administration of justice by the Supreme Court, instead of promoting respect for its integrity and honor. They derogate his avowal of "highest respect for this Court" (100 tsn Jan. 10, 2008); his declaration that he has "always upheld the majesty of the law as interpreted by the Court" (96 tsn Jan. 10, 2008); that his opinion of the Court has actually been "elevated ten miles up" because of its decisions in the cases involving Proclamation No. 1017, the CPR, EO 464, and the People's Initiative (97 tsn Jan. 10, 2008); that he has "done everything to preserve the integrity and majesty of the Court and its jurists" (84-85 tsn Feb. 1, 2008); that he wants "the integrity of the Court preserved because this is the last bastion of democracy" (32 tsn Jan. 10, 2008).
These tongue-in-cheek protestations do not repair or erase the damage and injury that his contemptuous remarks about the Court and the Justices have wrought upon the institutional integrity, dignity, and honor of the Supreme Court. As a matter of fact nowhere in his columns do we find a single word of respect for the Court or the integrity and honor of the Court. On the contrary, what we find are allegations of "pernicious rumor that the courts are dirty", suspicious that the jurists are "thieves"; that the Highest Court has a "soiled reputation", and that the Supreme Court has a "sagging reputation". (Emphasis supplied)
This finding loses sight of the import of Newsbreak's publication which, while substantially echoing Macasaet's, was indisputably based on information gathered from its own independent sources.
[50] Just as this Court should not tell Macasaet on what proper course of action to take vis-a-vis the confidential information he received or worse, categorize his decision to print the story as proof of malice as the Report does (Report, p. 20). To do so is to come dangerously close to telling journalists how to do their work, a function this Court is least qualified to undertake outside of its adjudicatory role.
[51] In Re: Emil P. Jurado supra note 30 at 367, Puno, J., dissenting.
[52] See New York Times v. Sullivan, 376 U.S. 254, 269 (1964).
[53] Pennekamp v. State of Florida, 328 U.S. 331 (1946). The rule is stated thus: "If a person, by false charges against a court, does directly interfere with the administration of justice he may be punished for a constructive contempt, and the constitutional guarantee will not protect him. But before he can be so punished the false charges must be of such a nature that they not only have a `reasonable tendency' to obstruct justice, but also must constitute `a clear and present danger' to the administration of justice. Intemperate language, false charges, and unfair criticism, no matter how strongly expressed, may be in bad taste, but they do not constitute a constructive contempt unless there is an immediate, clear and present danger imperiling the administration of justice." (Turkington v. Municipal Court, 193 P.2d 795, 802 [1948]; emphasis supplied). Of course, it does not follow that erring journalists and their publishers should not earn the public's ire for sloppy journalistic work. As a jurist in another jurisdiction well observed:
[54] As held in New York Times v. Sullivan (376 U.S. 254 [1964]), the actual malice standard is met upon proof of knowledge that the publication was false or with reckless disregard of whether the publication was false or not.
[55] In Re: Emil P. Jurado supra note 30 at 362-365. The ponencia sought to blunt the impact of Chief Justice Puno's observation by differentiating Jurado from this case, thus (Majority Opinion, p. 43):
"The critical issues [in Jurado] were the right of newsmen to refuse subpoenas, summons, or 'invitations' to appear in administrative investigations, and not to reveal their confidential sources of information under R.A. No. 53, as amended. None of these are the issues at hand."
A perfunctory scanning of Jurado reveals exactly the opposite and that, as in this case, the newsman in Jurado was cited for contempt for publishing false stories the veracity of which he failed to confirm, thus (id, note 30 at 188-189):
The issue therefore had nothing to do with any failure of Jurado's to obey a subpoena, none ever having been issued to him, and the Ad Hoc Committee having foreborne to take any action at all as regards his failure to accept its invitations. The issue, as set out in the opening sentence of this opinion, essentially concerns "(l)iability for published statements demonstrably false or misleading, and derogatory of the courts and individual judges."
Jurado is not being called to account for declining to identify the sources of his news stories, or for refusing to appear and give testimony before the Ad Hoc Committee. He is not being compelled to guarantee the truth of what he publishes, but to exercise honest and reasonable efforts to determine the truth of defamatory statements before publishing them. He is being meted the punishment appropriate to the publication of stories shown to be false and defamatory of the judiciary -- stories that he made no effort whatsoever to verify and which, after being denounced as lies, he has refused, or is unable, to substantiate. (Emphasis supplied)
[56] 35 Phil. 944 (1916)
[57] 82 Phil. 595 (1949
[58] The ponencia dwelt at length on the cases of In Re Laureta (G.R. No. 68635, 12 March 1987, 148 SCRA 382) and Roxas v. Zuazuarregui (G.R. No. 152072, 12 July 2007, 527 SCRA 446) where we cited in contempt of court parties and their counsel for writing letters to members of this Court tending to impair and degrade the administration of justice. These cases are not controlling as none of the respondents was a journalist who was sought to be punished for authoring publications critical of the Court.
[59] 312 Phil. 977, 997 (1995).
[60] Vasquez v. Court of Appeals, 373 Phil. 238 (1999).
[61] Flor v. People, G.R. No. 139987, 31 March 2005, 454 SCRA 440.
[62] "A civil engineer, businessman, business consultant and journalist" (Borjal v. Court of Appeals, 361 Phil. 1 [1999]) and a "broadcast journalist" (Guinguing v. Court of Appeals, G.R. No. 128959, 30 September 2005, 471 SCRA 196).
[63] See Bridges v. California, 314 U.S. 252, 271, 289 (1941), Frankfurter, J., dissenting.
[64] Id. at 292.
[65] A ruling well elucidates the interdependence between the press and the judiciary: "The freedom of the press in itself presupposes an independent judiciary through which that freedom may, if necessary, be vindicated. And one of the potent means for assuring judges their independence is a free press." (Pennekamp v. State of Florida, 328 U.S. 331, 335 [1946], Frankfurter, J., concurring; emphasis supplied).
[66] As distinguished from vindictive. The contempt power ought not to be utilized for the purpose of merely satisfying what is admittedly a natural inclination to strike back at a party who had shown less than full respect for the dignity of the Court (Royeca v. Animas, 162 Phil. 851, 858 (1976).
[67] In Re: Emil P. Jurado supra note 30 at 366-368.
The Antecedents
The case stemmed from certain articles that appeared in the "Business Circuit" column of Amado P. Macasaet in the Malaya, a newspaper of general circulation of which he is the publisher. The articles, containing statements and innuendoes about an alleged bribery incident in the Supreme Court, came out in four (4) issues of the newspaper on September 18, 19, 20 and 21, 2007, reproduced as follows:
September 18, 2007 -The September 18, 2007 article, the first of the series of articles, caught the attention of Assistant Court Administrator (ACA) Jose Midas P. Marquez, Chief of the Supreme Court Public Information Office, in the course of his monitoring the daily news reports and columns in major newspapers. However, since it was "vague about which `court' was being referred to, whether the Supreme Court, the Court of Appeals, the Sandiganbayan, or the Court of Tax Appeals,"[2] ACA Marquez opted to merely note it.[3]
Bribery in the Court
A lady justice (I have not been told whether she is from the Supreme Court or the Court of Appeals) did not report for a day last week.
Her secretary received a gift-wrapped box about the size of two dozen milk cans.
Believing that the "gift" might be something perishable, she opened the box. Indeed, it was a gift - estimated at P10 million. Posthaste, the secretary informed the magistrate about the gift. She thought she was doing her job. The lady justice fired her instead.
She would not have anybody catch her accepting a bribe. But she practically did.
The stupidity here is that the bribe-giver - what else would we call him or her - did not check whether the lady justice was in the office or not. Better still he or she could have the box full of money delivered to her home. But then her family would get to know about and ask who was the kind soul that was so liberal with money - a boxful of it.
The Supreme Court cannot let this pass. A full investigation should be conducted. The magistrate who was sent the bribe should be impeached.
The gift gives proof to the pernicious rumor that the courts are dirty. This time, the lady justice is with a higher court.
The court is like a basket of apples. There a few which are rotten that makes the whole basket rotten.
The names and reputation of highly-respected jurists must be saved from suspicions they are thieves.
Here's the clue
The Court employee who was fired by the lady jurist is a niece of another lady justice who earlier retired. The worker was inherited by the incumbent lady justice.
My problem with this report is that while my source is definite about the employee opening a gift-wrapped box that contained at least P10 million, he won't confide to me the identity of the jurist.
Unless the employee who was fired talks against her boss - and she should as a matter of duty - we will never know who this justice really is. The members of the Supreme Court, the Court of Appeals, the Sandiganbayan are all called justices.
The head of the Office of Government Corporate Counsel is also honored by being addressed as such. So is the head of the Court of Tax Appeals.
Since the employee was fired for opening the box which she thought contained perishable goods but turned out there was an estimated P10 million in it, she should be loyal to her duty of telling the truth.
That way, she would have rendered a great service to the justice system. Without her talking, every lady with the title of Justice is suspect. There are more than a dozen of them in different courts but only one was caught red-handed taking a bribe. Her name should be known so that the Supreme Court can act swiftly on a clear case of bribery.
Otherwise, this case becomes one where the pot calls the kettle black. Or is that the reason the employee would not talk, that her former boss could spill the beans on her peers?
September 19, 2007 -
The Bribe Giver
I learned from some lawyers that the bribe money given to a lady justice came from a Chinese-Filipino businessman who has been criminally charged.
It is funny that the delivery of five boxes of money (I said only one earlier) coincided on the day the lady justice, obviously acting as ponente, acquitted the prospect.
The secretary of the lady justice who took the bribe made five trips to the guardhouse to pick up the boxes.
Incidentally, this secretary is a namesake of her aunt, a deceased associate justice of the Supreme Court.
I dare say that if her name is Cecilia, it is entirely possible that the lady justice is a member of the Supreme Court. The late justice Cecilia Muñoz-Palma is the only lady justice I know who retired and died at a ripe old age and left behind a reputation of decency and integrity.
We are coming closer and closer to the truth. The lady justice shamed her court. She should resign or be impeached.
That is the only way the soiled reputation of the Highest Court could be restored.
September 20, 2007 -
Cecilia, please save the court
I have established the lady justice's secretary who opened one of the five milk boxes containing bribe money is a niece of the late, respected and honorable Associate Justice Cecilia Muñoz Palma from Batangas.
The secretary is a niece of the late justice and a namesake.
Cecilia, you have a duty to honor the memory of your aunt, who, during her stay in the court, was known for having balls.
More important than that, you have a duty to save the sagging reputation of the Supreme Court.
Cecilia, you must tell the Court en banc everything you know about the money that was sent in five boxes to your boss.
Not in retaliation for your dismissal, but for no other reason than as a duty to your country and, I must again say, to honor the memory of your late illustrious aunt, a legal luminary and staunch defender of the Constitution.
The other reason you must spill the beans is that if you do not, other lady justices are suspects. That is not fair to them.
September 21, 2007 -
Wrong date, same facts
On verification, I discovered that the secretary of a lady justice of the Supreme Court who was said to have accepted five milk boxes of money, was fired as early as March. Not last week as I mistakenly reported.
It turns out that Cecilia Muñoz-Delis from Bicol picked up the last five boxes several times in March.
She never opened the first four boxes which she picked up from the guardhouse of the Court.
She opened the last and saw the money because the lady justice was absent on that day. Forthwith, she was fired. Cecilia, who is from Bicol, never opened any of the first four boxes delivered on various dates (I have not been told when). She picked up all of them from the Supreme Court guardhouse and left them with the lady justice. She wouldn't dare open the first four because the lady justice was in her office. She opened the fifth one because the lady justice did not report for work on that day.
Cecilia thought that the gift-wrapped box contained some perishables like food. What she found was money instead. She was fired.
Whenever a gift for lady justice comes, she would order Cecilia to pick it up from the guardhouse. So the fifth she picked up was one of those errands.
Where is Cecilia?
I cannot get any information on the present whereabouts of Cecilia. However, if the Supreme Court has intentions to investigate what I have been saying, maybe the Chief Justice himself should find out where she could be sent an invitation to appear before an investigation group in the Court.
Better still, as I said, yesterday, Cecilia should disclose everything she knows regarding the box before the Court en banc.
Farthest thing from my mind is to embarrass the lady justice whose identity I do not know up to now.
It is my conviction that the Court should investigate reports of wrongdoing by any of its peers. Justice is served that way.
The Chief Justice and the rest of the justices should not have a problem finding out who she is.
It is a simple job of asking a clerk to go to personnel department of the Court and find out who Cecilia worked for.[1]
The succeeding two articles, however, gave an indication that the supposed bribery happened in the Supreme Court. Respondent Macasaet, in his September 19, 2007 article, wrote, among others, that "I dare say that if her name is Cecilia, it is entirely possible that the lady justice is a member of the Supreme Court x x x. We are coming closer and closer to the truth. The lady justice shamed her court. She should resign or be impeached. That is the only way the soiled reputation of the Highest Court could be restored."
Similarly, in his September 20, 2007 article, respondent said that Cecilia had "a duty to save the sagging reputation of the Supreme Court."
Also on September 20, 2007, at around 6:00 p.m., Marites Dañguilan-Vitug, Editor in Chief of Newsbreak, faxed a letter to Supreme Court Associate Justice Consuelo Ynares-Santiago asking for three things -
Upon receipt of the faxed letter, Mme. Justice Ynares-Santiago called for ACA Marquez, showed him the letter of Dañguilan-Vitug, and requested him to tell Dañguilan-Vitug that she (Mme. Justice Ynares-Santiago) had been consistent on her position in the Go case, that she never reversed herself, that she never received a cash gift, and that no secretary was terminated for opening a gift-wrapped box containing money. Accordingly, ACA Marquez went back to his office, called up Dañguilan-Vitug and told her what Mme. Justice Ynares-Santiago told him.[5]
- In (sic) April 13, 2007, you concurred with a decision penned by Justice Romeo Callejo, Sr. ruling that the Sandiganbayan Fifth Division did not commit a grave abuse of discretion by finding probable cause against Henry Go. However, five months later (September 3, 2007), acting on Go's motion for reconsideration, you reversed yourself and ordered the dismissal of the graft case against Go. Please explain the circumstances that led to this reversal.
- We have gathered from three sources that you received a cash gift of P10 million after you issued the decision early September. Please comment.
- We're checking if this is accurate. Your secretary, who opened the gift-wrapped box thinking that it contained perishable items, found cash instead. It was after this incident that you removed her.[4]
That same evening, at around seven, Dañguilan-Vitug faxed "the corrected version of the earlier letter" -
The following day, September 21, 2007, respondent Macasaet, in his column, named the supposed secretary who was "forthwith x x x fired" allegedly after opening the box of money: "It turns out that Cecilia Muñoz Delis from Bicol picked up the last five boxes several times in March."
- On April 13, 2007, you dissented against the decision penned by Justice Romeo Callejo, Sr. ruling that the Sandiganbayan Fifth Division did not commit a grave abuse of discretion by finding probable cause against Henry Go. The vote was 3-2 in favor of Calleja's (sic) decision. Five months later (September 3, 2007), acting on Go's motion for reconsideration (by that time, Callejo had already retired), you ordered the dismissal of the graft case against Go. I understand the exchanges were bitter and the deliberations long. Please explain the contentious issues.
- We have gathered from three sources that you received a cash gift of P10 million in March 2007 in the midst of deliberations on the case. Please comment.
- We're checking if this is accurate. Your secretary, who opened the gift-wrapped box thinking that it contained perishable items, found cash instead. It was after this incident that you removed her in March 2007.[6]
From the foregoing series of articles, respondent Macasaet has painted a clear picture: a Chinese-Filipino businessman who was acquitted of a crime supposedly left P10 million in five different boxes with the security guard at the Supreme Court guardhouse, which was picked up by Cecilia Muñoz Delis who was forthwith fired for opening one of the boxes.
Upon the request of Mme. Justice Ynares-Santiago, the Chief Justice instructed ACA Marquez to have the 18th, 19th, 20th, and 21st September 2007 Business Circuit columns of respondent Macasaet included in the September 25, 2007 agenda of the Court En Banc,[7] which case was docketed as A.M. No. 07-09-13-SC. (Re: In the Matter of the Allegations Contained in the Columns of Mr. A.P. Macasaet Published in Malaya dated September 18, 19, 20, and 21, 2007).
On September 24, 2007, Daisy Cecilia Muñoz Delis, accompanied by the Clerk of Court En Banc, Hon. Ma. Luisa D. Villarama, went to see Mme. Justice Ynares-Santiago and gave the latter copies of her letter to respondent Macasaet and her affidavit. Delis, in her letter to respondent Macasaet, described his articles as "baseless reports." "In other words," she wrote respondent Macasaet, "the scenario you painted and continue to paint is improbable and could only have emanated from a polluted source, who, unfortunately, chose me to be a part of this fictional charge." She clarified that she was a Judicial Staff Officer, and not a secretary as the articles claimed she was; that she voluntarily resigned from office and was not fired; that as a matter of procedure, she would not have been tasked to receive boxes, as such was a duty assigned to their utility personnel; that it was "highly unlikely for something as blatant as [a] bribery attempt to have been done right in the doors of the Court."[8] Delis ended her letter to respondent Macasaet with a plea -
My family and I have been suffering ever since your article came out last Tuesday, because I was being alluded to. This suffering has increased because the name of my beloved aunt x x x has been drawn into a controversy that should not have involved me or any member of my family in the first place.In her affidavit, Delis stated that she "had nothing to do with, nor did x x x have any knowledge of such alleged attempted bribery,"[10] and that she executed her affidavit "to allow Justice Consuelo Ynares-Santiago to defend her honor,"[11] and "for the purpose of correcting the erroneous information of Mr. Macasaet."[12]
And so, I ask you, Sir, to please cease from mentioning my name or any of my relatives, living or deceased, in order to promote your tabloid journalism. If your source is as reliable as you believe, I suggest you practice better judgment and journalistic responsibility by verifying your data before printing anything and affecting the lives of innocent people. If this is some kind of war you are waging against the lady justice, we do not want to be collateral damage.[9]
That same morning, too, despite the prior telephone conversation between ACA Marquez and Dañguilan-Vitug, Newsbreak posted an on-line article written by Danguilan-Vitug herself and Aries Rufo, which was regularly updated, entitled "Supreme Court Justice Suspected of Accepting Payoff (update)"[13] with the picture of Mme. Justice Ynares-Santiago -
We pieced the story of the alleged bribery from accounts of various sources within and outside the Supreme Court who have requested not to be named because of their sensitive disclosures.Later that morning, Mme. Justice Ynares-Santiago called ACA Marquez to her office and gave him copies of her written statement "categorically deny(ing) the accusations and insinuations, all malicious and unfounded, published in Malaya and in Newsbreak;" and underscoring "that these are blatant lies clearly aimed at smearing and maligning my character and person, and the integrity of the Judiciary which (she has) been faitfuly serving for 34 years now."[15] Mme. Justice Ynares-Santiago also gave ACA Marquez copies of Delis' letter to respondent Macasaet and her affidavit, which Delis herself had brought to Mme. Justice Ynares-Santiago earlier that morning.[16]
In March this year, Ynares-Santiago fired her staff member, Cecilia Delis, supposedly after the latter opened a gift-wrapped box delivered to their office, thinking that it contained perishable items. Delis, however, found wads of peso bills instead. The amount, two sources say, is estimated at P10 million.[14]
In the afternoon of September 24, 2007, ACA Marquez held a press conference and released to the media copies of Delis' letter to respondent Macasaet, her affidavit, and the written statement of Mme. Justice Santiago.[17]
On September 25, 2007, the Court En Banc issued a resolution stating -
Upon evaluation of the columns "Business Circuit" of Amado P. Macasaet in the September 18, 19, 20, and 21, 2007 issues of the Malaya, it appears that certain statements and innuendoes therein tend, directly or indirectly, to impede, obstruct, or degrade the administration of justice, within the purview of Section 3(d), Rule 71 of the 1997 Rules of Civil Procedure.The following day, September 26, 2007, Newsbreak posted its on-line article entitled "Supreme Court Orders Malaya Publisher to Explain Stories" with a banner headline, "This is not meant to chill the media."
WHEREFORE, Amado P. Macasaet is ORDERED to EXPLAIN why no sanction should be imposed on him for indirect contempt of court in accordance with Section 3(d), (Rule 71) of the 1997 Rules of Civil Procedure, within five (5) days from receipt hereof. Ynares-Santiago, J., no part.[18]
On October 16, 2007, the Court En Banc noted respondent Macasaet's Explanation dated October 1, 2007,[19] and directed the Clerk of Court to include in the records of the case the affidavit of Delis dated September 24, 2007. The High Court also created an investigating committee composed of retired Supreme Court justices, namely, Justice Carolina Griño-Aquino as Chairperson; and Justices Vicente V. Mendoza and Romeo J. Callejo, Sr., as members, "to receive the evidence from all parties concerned. The Committee may, on its own, call such persons who can shed light on the matter. It shall be endowed with all the powers necessary to discharge its duty." The Committee was likewise directed "to submit its report and recommendation within thirty (30) days from the start of its hearing."[20] Retired Justices Mendoza and Callejo, however, both begged off and were eventually replaced by retired Supreme Court Justices Jose C. Vitug[21] and Justo P. Torres.[22]
From October 30, 2007 to March 10, 2008, the Investigating Committee held hearings and gathered affidavits and testimonies from the parties concerned.
The Committee invited respondent Macasaet, Dañguilan-Vitug, Delis, and ACA Marquez to a preliminary meeting, in which they were requested to submit their respective affidavits which served as their testimonies on direct examination.[23] They were then later cross-examined on various dates: respondent Macasaet on January 10, 2008, Dañguilan-Vitug on January 17, 2008, Delis on January 24, 2008, and ACA Marquez on January 28, 2008. The Chief of the Security Services and the Cashier of the High Court likewise testified on January 22 and 24, 2008, respectively.
According to the Committee -
AMADO P. MACASAET testified on January 10, 2008 but, as expected, he invoked his right under R.A. No. 53, as amended by R.A. No. 1477 to refuse to disclose the source/s of his story regarding the rumored bribery of a Lady Justice (later identified as Justice Consuelo Ynares-Santiago) of a high court (later revealed as the Supreme Court) who allegedly received Php 10 million contained in a gift-wrapped Carnation carton box (later changed to five [5] gift-wrapped boxes), for deciding a criminal case in favor of a rich Chinese-Filipino businessman. (Pls. see columns of September 18 and 19, 2007)On March 11, 2008 the Investigating Committee submitted to the Office of the Chief Justice its March 10, 2008 Report and Recommendation,[25] with the following findings of facts on the subject columns -
The pay-off was allegedly discovered when Cecilia Muñoz-Delis (not the Lady Justice's secretary but a judicial staff officer V of the PET or Presidential Electoral Tribunal) who is a niece and namesake of retired Supreme Court Justice Cecilia Muñoz Palma, allegedly opened the "last" box (according to his column of September 21, 2007 titled "Wrong date same facts"); but the "first" (according to his testimony on January 10, 2008, pp. 71, 89, 92, 125, tsn).
By his "own conclusion," the boxes of money were delivered on different dates because "I don't think a bribe giver will deliver five boxes at the same time" (87, tsn, January 10, 2008).
Macasaet testified that his "source" is not a relative of his, nor a government employee, certainly not an employee of the judiciary, and, that he (Macasaet) has known him for some 10 to 15 years (12-20, tsn, January 10, 2008).
Significantly, in his column of September 19, 2007, Macasaet revealed that he did not have only one source, but several sources, i.e., "some lawyers," who told him "that the bribe money given to a lady justice came from a Chinese-Filipino businessman who has been criminally charged."
He emphatically declared on the witness chair that he trusts his source "with my heart and soul" and believes his word "as coming straight out of the Bible" (94, 113, tsn, January 10, 2008; 14, tsn, January 17, 2008). But because this source did not have direct knowledge of the bribery (26, tsn, January 10, 2008), he allegedly tried to verify from other sources the information he had received, but "I could not get confirmation" (29, tsn, January 10, 2008).
Notwithstanding the lack of confirmation and the paucity of details as to the identity of the Lady Justice and of the High Court where she sits, Macasaet believes that "the bribery had actually taken place" because "I trust my source with my heart and soul" (93-94, 113, tsn, January 10, 2008).
He decided to go ahead and publish the story because he "thought that eventually my effort at consistently x x x exposing the alleged bribery, one day sooner or later somebody will come up and admit or deny (it). And I think that (was) what really happened" (29, tsn, January 10, 2008).
He found out that the Lady Justice involved is Justice Consuelo Ynares-Santiago of the Supreme Court, after he received a letter dated September 21, 2007 from Cecilia Muñoz-Delis, the "Cecilia" mentioned in his columns, denying any knowledge of the alleged bribery or boxes of money for she had already resigned (not dismissed) from the Court on March 15, 2007, six (6) months before the alleged bribery supposedly occurred a week before Macasaet wrote about it in his column of September 18, 2007. (Annex "A," Letter dated September 21, 2007 of Cecilia Delis to Macasaet)
So, when did the bribery happen? The date was never made certain, for in his first column of September 18, 2007, Macasaet stated that the gift-wrapped box of money was delivered to the office of the Lady Justice, "a day last week" when the Lady Justice did not report for work. That must have been sometime on September 10-14, 2007 - the week before September 18, 2007.
However, the next day, September 19, 2007, he wrote in his column that the delivery of five boxes (not just one box) of money, "coincided on the day that the Lady Justice, acting as ponente, dismissed the criminal case against Chinese-Filipino businessman Henry T. Go in the Sandiganbayan. That must be September 3, 2007 because the Resolution in G.R. No. 172602 "Henry T. Go versus The Fifth Division, Sandiganbayan, et al." was promulgated on that date. This he affirmed when he testified on January 10, 2008 (46, 74, tsn, January 10, 2008).
However, when he returned to the witness chair on January 17, 2008, after going back to his informant (on his own request) to ascertain the dates when the boxes of money were delivered to the Office of Justice Santiago, so that the Investigating Committee could subpoena the relevant logbooks of the Security Services of the Court to verify the truth of the alleged deliveries, Macasaet again changed his earlier testimonies on date/dates of the deliveries. He informed the Committee that, according to his informant, the deliveries were made "between November 2006 and March 2007"; "before Cecilia Delis resigned or was dismissed from the Court."[24]
The following statements in Macasaet's columns appear to the Supreme Court to be "innuendoes (that) tend, directly or indirectly, to impede, obstruct, or degrade the administration of justice, within the purview of Section 3(d), Rule 71 of the 1997 Rules of Civil Procedure."Additional observations and conclusion were submitted, like the following -
1) From the column of Tuesday, September 18, 2007 -"The gift gives proof to the pernicious rumor that the courts are dirty. This time, the lady justice is with a higher court.2) From the column of Wednesday, September 19, 2007 -
The court is like a basket of apples. There (are) a few which are rotten. That makes the whole basket rotten.
The names and reputation of highly-respected jurists must be saved from suspicion that they are thieves.
Her name should be known so that the Supreme Court can act swiftly on a clear case of bribery. Otherwise, this case becomes one where the pot calls the kettle black. Or, is that the reason the employee would not talk, that her former boss could spill the beans on her peers?""The lady justice shamed her court. She should resign or be impeached. That is the only way the soiled reputation of the Highest Court could be restored."3) From the column of Thursday, September 20, 2007 -"Cecilia x x x you have a duty to save the sagging reputation of the Supreme Court."
Inasmuch as Macasaet's snide remarks about the courts, particularly the Highest Court, and about the justices being suspected as thieves, appear to have [been] provoked by the rumored bribery in the Court, the Investigating Committee was constrained to find out how true the accusations were and whether the columnist had exercised due care and diligence in checking out the credibility of his informant and the veracity of the derogatory information fed to him before he published it in his columns in the Malaya.[26]
The Committee finds that neither Macasaet's columns in Malaya, nor Ms. Vitug's story in Newsbreak, about the pay-off of Php 10 million to Justice Consuelo Ynares-Santiago for rendering a Resolution favorable to Henry T. Go in his petition against the Sandiganbayan (according to Macasaet), or, a decision favoring Barque against Manotok in a big land case (according to Ms. Vitug), have a leg to stand on. As Justice Vitug has observed during the last hearing before the Committee, everything that has been heard thus far would appear to be hearsay. Ms. Vitug admitted "there is no paper trail" to support the charge of bribery against Justice Santiago, for although her sources had pointed to Cecilia Muñoz Delis as the "root source" of the story, the information she received was "second-hand or may be third-hand" because none of her sources had talked with Delis herself (70, 72 tsn Jan. 17, 2008). Delis had refused to be interviewed by her, and had emphatically denied in her letter and affidavit any knowledge of the alleged bribery because she was no longer working in the Court when it supposedly happened.The Committee likewise noted the inconsistencies and assumptions of Macasaet, betraying lack of veracity of the alleged bribery -
Macasaet's sources likewise fed him double hearsay information from a source that refused to reveal the identity of the Lady Justice nor a high court but alleged that the Php 10 million bribe was discovered by her secretary named Cecilia, a niece and namesake of the late Justice Cecilia Muñoz Palma, who was fired from her job on account of it.
The Committee observed that Macasaet's story about the bribery and of Cecilia's role in supposedly discovering it, is full of holes, inconsistencies, and contradictions, indicating that he did not exercise due diligence, patience, and care in checking the veracity of the information fed to him, before giving it publicity in his columns. Nor was he bothered by the damage that his columns would inflict on the reputation of a member of the Highest Court and on the Court itself. In fact, he was "happy" that he wrote the columns (103 tsn Jan. 10, 2008). Even if he failed to get confirmation of the bribery, one day sooner or later, somebody would come up and admit or deny it. He did not care that he smeared the whole Judiciary to fish her out, because "after she is fished out, the suspicion on the rest would be removed" (29-30 tsn Jan. 10, 2008).[27] (Emphasis supplied)
The Committee further wondered which of the five (5) boxes was opened and yielded money. It foundThe next day, September 19, 2007, he, however, wrote in his column that "the five boxes (not one) of money were delivered on the day (September 3, 2007) when the Lady Justice, acting as ponente, acquitted" the accused Henry T. Go.
- For instance, he said that he could not get confirmation of the bribery story given to him by his source. Later, he said that his sources "told me they had personal knowledge" but would not reveal the name of the Lady Justice (65, tsn, January 10, 2008).
- His allegation that the Lady Justice (later identified as Justice Santiago) did not report for work "last week," i.e., the week before his first column came out on September 18, 2007, was refuted by the Court's Public Information Officer (PIO) Atty. Midas Marquez, who testified that no Lady Justice was absent that week.
- The date when the gift-wrapped box of money was allegedly opened by Cecilia is also uncertain because of Macasaet's conflicting allegations about it. Macasaet's first column of September 18, 2007, stated that it happened "last week," i.e., sometime in the week of September 10-14, 2007.
But again, because his story about Cecilia's role in the discovery of the bribery in September 2007, was contradicted by the record of Cecilia's resignation from the Court on March 15, 2007 (Annexes "D" and "D-1," Cecilia Delis' Letter of Resignation & Clearance), Macasaet, after consulting his "source" again, changed his story when he testified on January 17, 2008. He said that, according to his source, the boxes of money were delivered, not any one time in September 2007, but on different dates in November 2006 up to March 2007, "before Cecilia resigned or was fired from the office of Justice Santiago" (5-6, tsn, January 17, 2008).
That allegation is, however, refuted by the logbooks of the Security Services for the period of November 2006 to March 2007 which contain no record of the alleged deliveries of boxes of money to the office of Justice Santiago. Danilo Pablo, head of the Court's Security Services affirmed that in his ten (10) years of service in the Court, he has not received any report of boxes of money being delivered to any of the Justices (45-46, tsn, January 22, 2008).[28]
Consequently, the Committee concluded -
- x x x In his column of September 21, 2007, Macasaet alleged that Cecilia picked up the five boxes of money "several times in March" ("not last week as I mistakenly reported"), and "she never opened the first four boxes x x x she opened the last and saw the money because the Lady Justice was absent on that day."
But when he testified before the Committee on January 10, 2008, Macasaet alleged that it was "the first one that was opened" according to his source (71, 89, 92, 125, tsn, January 10, 2008).- Contradicting his published story that five (5) boxes of money were delivered "on the day" the Lady Justice acquitted Henry Go, Macasaet testified at the investigation that they were delivered "on different occasions according to my source" (70, tsn, January 10, 2008).
But no sooner had he attributed that information "to my source" than he admitted that it was only "my own conclusion x x x I assumed that the giver of the money is not so stupid as to have them delivered all in one trip. As a matter of fact, I even wondered why said boxes were not delivered in the home of the Lady Justice" (72, tsn, January 10, 2008).- The amount of the bribe is also questionable. For while in his own column of September 18, 2007, Macasaet stated that the gift was "estimated at Php 10 million," he later testified on January 10, 2008 that "the amount was my own calculation because I talked to people, I said this kind of box how much money in One Thousand Pesos bills can it hold, he told me it is ten (million). So that was a calculation" (77, tsn, January 10, 2008).
He also merely "assumed that the money was in one thousand pesos bills (78, tsn, January 10, 2008). No one really knows their denomination.
He said he was told that the size of the box where the money was placed was "this milk called carnation in carton" (79, tsn, January 10, 2008). But, at the final hearing on February 1, 2008, he denied that said that, - "I never said carnation boxes; I said milk boxes that should make a lot of difference" (84, tsn, February 1, 2008).- Since only one gift-wrapped box of money was opened, Macasaet admitted that he has "no knowledge" of whether the four (4) other boxes were also opened, when and where they were opened, and by whom they were opened (90, tsn, January 10, 2008). Therefore, no one knows whether they also contained money.
That the five (5) boxes contained a total of ten million pesos, is just another assumption of Macasaet's. "It is a calculation based on estimates obtained from friends and how much five boxes can hold in one thousand peso bills, more or less ten million," he explained (91, tsn, January 10, 2008).
The "sin of assumption" which is a cardinal sin in Newsbreak's Guide to Ethical Journalistic Conduct was repeatedly committed by Macasaet in writing his story about the bribery of a Lady Justice of the Supreme Court. (Annex "E," page 1, Newsbreak Guide to Ethical Journalistic Conduct).[29]
In view of its tenuous underpinnings, we find the bribery story in Macasaet's columns of September 18-21, 2007, and in Ms. Vitug's Newsbreak issue of September 25, 2007, unbelievable. Why should five boxes supposedly containing a total of Php 10 million as bribe money be delivered to the office of a Lady Justice in the Supreme Court, where it would have to pass examination by the security guards and the quizzical eyes of her own employees? Why not to her home? Or at some agreed meeting place outside the Court and her home? Or why not quietly deposit it in her bank account? And why was she absent from her office on the day of the presumably agreed date for the payment of the bribe? If the bribe was for dismissing the information against Henry Go in the Sandiganbayan, why was it paid prematurely in November 2006-March 2007 when the case of Henry Go was still up in the air and, in fact, was decided against him on April 13, 2007? The favorable resolution on his motion for reconsideration, penned by Justice Santiago, was promulgated on September 3, 2007, almost one year after the pay-off, if there was such a pay-off?Finding sufficient basis to hold respondent Macasaet in indirect contempt of court, the Committee recommended -x x x x
The Committee considers this case not just another event that should pass unnoticed for it has implications far beyond the allocated ramparts of free speech. Needless to say, that while we espouse the enjoyment of freedom of expression by media, particularly, it behooves it to observe great circumspection so as not to destroy reputations, integrity and character so dear to every individual, more so to a revered institution like the Supreme Court. Everyone deserves respect and dignity.[30]
The Committee finds that the statements of respondent Amado P. Macasaet about the Supreme Court in his "Business Circuit" columns in the September 18-21, 2007 issues of the newspaper Malaya, maligning and degrading the Supreme Court and tending directly or indirectly to impede, obstruct, or degrade the administration of justice, to be utterly unjustified.
WHEREFORE, the Committee believes there exist valid grounds for this Honorable Court, if it is so minded, to cite Amado P. Macasaet for indirect contempt within the purview of Section 3(d), Rule 71 of the 1997 Rules of Civil Procedure.[31] (Emphasis supplied)
IN view of respondent's invocation of his right to press freedom as a defense, it is essential to first examine the nature and evolution of this preferred liberty, together with the countervailing interest of judicial independence, which includes the right to due process of law, the right to a fair trial, and the preservation of public confidence in the courts for the proper administration of justice.
Nature and History of Press Freedom
Freedom of expression, which includes freedom of speech and of the press, is one of the hallmarks of a democratic society. It has been recognized as such for centuries.
The history of press freedom dates back to the English Magna Carta, promulgated in 1215, which established the principle that not even the lawmaker should be above the law. Through the years, many treatises on press freedom arose in reaction to various measures taken to curtail it.
In the 17th Century, John Milton wrote Areopagitica, a philosophical defense of the right to free speech. It was a reaction to the Licensing Order of June 14, 1643, which declared that no "book, pamphlet, paper, nor part of any such book, pamphlet, or paper, shall from henceforth be printed, bound, stitched or put to sale by any person or persons whatsoever, unless the same be first approved of and licensed under the hands of such person or persons as both, or either of the said Houses shall appoint for the licensing of the same." Milton advocated that a written work should not be suppressed before publication. Writers of treacherous, slanderous, or blasphemous materials should first be tried according to law. Only after it has been established that their writings are of a treacherous, slanderous, or blasphemous nature should they be subsequently punished for their wrongful acts.
Sir William Blackstone, 19th Century English jurist, in his still widely cited historical and analytical treatise on English common law, aptly described the twin aspects of press freedom:
x x x Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the Revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion and government. But to punish as the law does at present any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus, the will of individuals is still left free: the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry: liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments destructive to the ends of society, is the crime which society corrects.[32] (Emphasis supplied)In the United States, press freedom was first put into organic law with the First Amendment to its Constitution, declaring that "Congress shall make no law x x x abridging the freedom of speech, or of the press." This set in stone the basis for virtually all contemporary laws and jurisprudence on the subject of press freedom.
Our Constitutions and jurisprudence are no different. Section 4, Article III, 1987 Constitution, which in part provides that "[n]o law shall be passed abridging the freedom of speech, of expression, or of the press x x x x," is a provision found in the 1935 and the 1973 Constitutions.[33]
Media and Its Multiplying Roles in Democracy
Due to their preferred position in the hierarchy of civil liberties, the freedoms of speech, of expression, and of the press have progressed dramatically. As early as 1942, even before the advent of television, the distinguished U.S. appellate court Judge Learned Hand had already observed that "[t]he hand that rules the press, the radio, the screen, and the far-spread magazine, rules the country." He concluded that media's power was an unchangeable fact of life: "Whether we like or not, we must learn to accept it." There is much truth today in those statements.
One of the notable features of recent years is the accelerated development of the media. They have grown from strength to strength, and have substantially influenced people, either favorably or unfavorably, towards those in government. The use of information technology has firmed up the media networks' hold on power. Traditional media for mass communication - newspapers, magazines, radio, and standard television - have been joined by satellite and cable television, electronic mail, short messaging and multi-media service, and the internet, giving rise to new opportunities for electronic news and information companies to even intensify their influence over the general public.
Studies show that people rely heavily on the media for their knowledge of events in the world and for impressions that form the basis for their own judgments. The media exert a strong influence on what people think and feel. Certainly, the power of Philippine media is of no small measure -
The power of the press to influence politics is proven. Policy issues and the implementation of government programs requiring greater public discussion are sometimes displaced in the government agenda by matters that have been given more importance in the news. Public officials are obliged to attend to media queries even if these are not necessarily the most important questions of the day. Nowhere in Southeast Asia are government officials so accessible to the press. Cabinet ministers are available from the earliest hours to answer questions from radio show hosts on the news of the day involving their responsibilities.The reach of Philippine media is quite extensive -
Furthermore, television news programs have spawned media celebrities whose popularity with the masses has catapulted their entry into politics. Media's focus on celebrity has infected the political culture with exaggerated concern for personality and color, and the kind of impact associated with sports and entertainment. Political parties have tended to recruit popular figures from these fields to assure they have winners in the race for seats in Congress.[34]
In the Philippines radio has the biggest audience among all the mass media (85 percent), followed by television at 74 percent, and print, 32 percent. Print, however, has an 82 percent reach in Metropolitan Manila, which has a population of some 10 million and is the country's business, political, and cultural center. Print may thus be surmised to be as influential in the capital as television, which has a reach of 96 percent among residents.[35]The mass media in a free society uphold the democratic way of life. They provide citizens with relevant information to help them make informed decisions about public issues affecting their lives. Affirming the right of the public to know, they serve as vehicles for the necessary exchange of ideas through fair and open debate. As the Fourth Estate in our democracy, they vigorously exercise their independence and vigilantly guard against infringements. Over the years, the Philippine media have earned the reputation of being the "freest and liveliest" in Asia.[36]
Members of Philippine media have assumed the role of a watchdog and have been protective and assertive of this role. They demand accountability of government officials and agencies. They have been adversarial when they relate with any of the three branches of government. They uphold the citizen's right to know, and make public officials, including judges and justices, responsible for their deeds or misdeeds. Through their watchdog function, the media motivate the public to be vigilant in exercising the citizens' right to an effective, efficient and corrupt-free government.
Open Justice and Judicial Independence
Closely linked with the right to freedom of speech and of the press is the public right to scrutinize and criticize government. The freedom to question the government has been a protected right of long-standing tradition throughout American history. There is no doubt that the fundamental freedom to criticize government necessarily includes the right to criticize the courts, their proceedings and decisions. Since the drafting of their Constitution over 200 years ago, American judges have anticipated and sometimes even encouraged public scrutiny of themselves, if not of the judiciary as a whole.[37]
This open justice principle, which is as fundamental to a democratic society as freedom of speech, has been an accepted doctrine in several jurisdictions. It is justified on the ground that if the determination of justice cannot be hidden from the public, this will provide: (1) a safeguard against judicial arbitrariness or idiosyncrasy, and (2) the maintenance of the public's confidence in the administration of justice.[38]
While most agree that the right to criticize the judiciary is critical to maintaining a free and democratic society, there is also a general consensus that healthy criticism only goes so far.[39] Many types of criticism leveled at the judiciary cross the line to become harmful and irresponsible attacks. These potentially devastating attacks and unjust criticism can threaten the independence of the judiciary.
The debate over the independence of the judiciary is nothing new. More than 200 years ago, the Founding Fathers of the American Constitution engaged in heated arguments, both before and after the Constitutional Convention, focusing on the extent and nature of the judiciary's role in the newly-formed government.[40] The signers of the Declaration of Independence, well aware of the oppressive results of the unchecked political power of the King of England who established absolute tyranny over American colonies, recognized the importance of creating a stable system of justice to protect the people.
Cognizant of the need to create a system of checks and balances to ensure that the rule of law shall rule, the resulting Constitution provided for a three-tiered system of government, so structured that no branch holds limitless power.
The judicial branch is described as the "least dangerous" branch of government.[41] But it holds a special place in the tripartite system, as it is primarily responsible for protecting basic human liberties from government encroachment. It completes the nation's system of checks and balances. It serves as an arbiter of disputes between factions and instruments of government.
In our constitutional scheme and democracy, our courts of justice are vested with judicial power, which "includes the duty x x x to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government."[42] The present judicial system allows the people to rely upon our courts with substantial certainty; it encourages the resolution of disputes in courtrooms rather than on the streets.
To accomplish these tasks, an independent judiciary is very vital. Judicial independence is the backbone of democracy. It is essential not only to the preservation of our justice system, but of government as well. Chief Justice Shirley Abrahamson of the Wisconsin Supreme Court has observed that judicial independence encompasses two distinct but related concepts of independence.[43]
One concept is individual judicial independence, which focuses on each particular judge and seeks to insure his or her ability to decide cases with autonomy within the constraints of the law. A judge has this kind of independence when he can do his job without having to hear - or at least without having to take it seriously if he does hear - criticisms of his personal morality and fitness for judicial office. The second concept is institutional judicial independence. It focuses on the independence of the judiciary as a branch of government and protects judges as a class.
A truly independent judiciary is possible only when both concepts of independence are preserved - wherein public confidence in the competence and integrity of the judiciary is maintained, and the public accepts the legitimacy of judicial authority. An erosion of this confidence threatens the maintenance of an independent Third Estate.
For sure, judicial criticism can be constructive, uncovering and addressing a problem that merits public attention. Public awareness, debate, and criticism of the courts ensure that people are informed of what they are doing that have broad implications for all citizens. Informed discussion, comment, debate and disagreement from lawyers, academics, and public officials have been hallmarks of a great legal tradition and have played a vital role in shaping the law.
But there is an important line between legitimate criticism and illegitimate attack upon the courts or their judges. Attacks upon the court or a judge not only risk the inhibition of all judges as they conscientiously endeavor to discharge their constitutional responsibilities; they also undermine the people's confidence in the courts.
Personal attacks, criticisms laden with political threats, those that misrepresent and distort the nature and context of judicial decisions, those that are misleading or without factual or legal basis, and those that blame the judges for the ills of society, damage the integrity of the judiciary and threaten the doctrine of judicial independence. These attacks do a grave disservice to the principle of an independent judiciary and mislead the public as to the role of judges in a constitutional democracy, shaking the very foundation of our democratic government.
Such attacks on the judiciary can result in two distinct - yet related - undesirable consequences.[44] First, the criticism will prevent judges from remaining insulated from the personal and political consequences of making an unpopular decision, thus placing judicial independence at risk. Second, unjust criticism of the judiciary will erode the public's trust and confidence in the judiciary as an institution. Both judicial independence and the public's trust and confidence in the judiciary as an institution are vital components in maintaining a healthy democracy.
Accordingly, it has been consistently held that, while freedom of speech, of expression, and of the press are at the core of civil liberties and have to be protected at all costs for the sake of democracy, these freedoms are not absolute. For, if left unbridled, they have the tendency to be abused and can translate to licenses, which could lead to disorder and anarchy.
Thus, in Gonzales v. Commission on Elections,[45] this Court ruled that "[f]rom the language of the specific constitutional provision, it would appear that the right (to free expression) 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 absolute. It would be too much to insist that, at all times and under all circumstances, it should remain unfettered and unrestrained. There are other societal values that press for recognition."[46]
In Lagunzad v. Vda. De Gonzales,[47] it was held that while the right of freedom of expression occupies a preferred position in the hierarchy of civil liberties, it is not without limitations. As the revered Holmes once said, the limitation on one's right to extend one's fist is when it hits the nose of another.
Indeed, freedom of speech cannot be absolute and unconditional. In legal, political, and philosophical contexts, it is always regarded as liable to be overridden by important countervailing interests, such as state security, public order, safety of individual citizens, protection of reputation, and due process of law, which encompasses not only the right to a fair trial, but also the preservation of public confidence in the proper administration of justice.
As early as 1930, this Court, speaking through Mr. Justice George Malcolm, declared that "[a]s important as is the maintenance of an unmuzzled press and the free exercise of the rights of the citizen is the maintenance of the independence of the judiciary."[48]
In Zaldivar v. Gonzalez,[49] the Court said that "freedom of speech and expression, like all constitutional freedoms, is not absolute and that freedom of expression needs on occasion to be adjusted to and accommodated with requirements of equally important public interests. One of these fundamental public interests is the maintenance of the integrity and orderly functioning of the administration of justice. There is no antinomy between free expression and the integrity of the system of administering justice. For the protection and maintenance of freedom of expression itself can be secured only within the context of a functioning and orderly system of dispensing justice, within the context, in other words, of viable independent institutions for delivery of justice which are accepted by the general community."
As Mr. Justice Felix Frankfurter put it:
x x x A free press is not to be preferred to an independent judiciary, nor an independent judiciary to a free press. Neither has primacy over the other; both are indispensable to a free society.
The freedom of the press in itself presupposes an independent judiciary through which that freedom may, if necessary, be vindicated. And one of the potent means for assuring judges their independence is a free press.[50]
Even the major international and regional human rights instruments of civil and political rights - the International Covenant on Civil and Political Rights (ICCPR),[51] the European Convention on Human Rights (ECHR),[52] the American Convention on Human Rights (ACHR),[53] and the African Charter on Human and People's Rights (ACHPR)[54] - protect both freedom of expression and the administration of justice. Freedom of expression is protected under Article 19 of the ICCPR -
(1) Everyone shall have the right to hold opinions without interference.However, Article 19 of the ICCPR is made subject to Article 14(1), which guarantees the right of individuals to "be equal before the courts and tribunals" and "be entitled to a fair x x x hearing by a competent, independent and impartial tribunal," where "[t]he press and the public may be excluded from all or part of a trial for reasons of morals, public order (order public) or national security in a democratic society, or when the interest of the private lives of the Parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice x x x."
(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
Article 10(2) of the ECHR goes further by explicitly mentioning the maintenance of the authority and impartiality of the judiciary -
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health morals, for the protection of the reputation or rights of others, for preventing disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. (Emphasis supplied)Judges have an affirmative duty to defend and uphold the integrity and independence of the judiciary. The courts need to be able to sanction those who obstruct their processes. The judiciary itself must continue to be a voice that explains and preserves its own independence. The respect accorded to judges is an adjunct of the social-contract necessity for impartial judges in the creation of a civil society. In the words of the great political philosopher John Locke -
The great and chief end, therefore, for men's uniting into commonwealths, and putting themselves under government, is the preservation of their property, to which in the state of nature there are many things wanting x x x there wants an established, settled, known law x x x there wants a known and indifferent judge, with authority to determine all differences according to the established law x x x there often wants power to back and support the sentence when right, and to give it due execution.[55] (Emphasis supplied)A Survey of Philippine Jurisprudence
The very first case decided by the Supreme Court, In the matter of the proceedings against Marcelino Aguas for contempt of the Court of First Instance of Pampanga,
[56] was a contempt proceeding. Before, as it is now, this Court had to use this power to impress upon contemnors the legal theory and constitutional premises of judicial legitimacy complementing popular sovereignty and public interest. Writing for the Court, Mr. Justice James Smith stated that contempt proceedings against a contemnor were against someone who had done an act or was about to do such act which "was disrespectful to the court or offensive to its dignity."[57]
Through the years, the Court has punished contemnors for a variety of offenses that have attempted to degrade its dignity and impeded the administration of justice.
In 1916, Amzi B. Kelly was fined P1,000 and sentenced to six months in prison for contempt of court after he published a letter to the editor of The Independent criticizing the Court for its decision to hold him in contempt for having published a book stating that various government officials, including the members of the Supreme Court, were guilty of politically assassinating General Mariano Noriel, who was executed for the killing of a political rival in 1915.[58]
In 1949, Atty. Vicente Sotto was fined P1,000.00 for publishing a statement in the Manila Times objecting to one of the High Court's decisions, citing that such decision by the majority was but another evidence of "the incompetency or narrow-mindedness of the majority of its members" and called for the resignation of the Court's entire membership "in the wake of so many mindedness of the majority deliberately committed during these last years."[59]
In 1987, Eva Maravilla-Ilustre,[60] in almost identical letters dated October 20, 1986 sent to four (4) Justices of the Supreme Court (all members of the First Division), stated among others -
It is important to call your attention to the dismissal of (case cited) by an untenable minute-resolution x x x which we consider as an unjust resolution deliberately and knowingly promulgated by the First Division of the Supreme Court of which you are a member.The letter to one of the Justices further stated -
We consider the three minute-resolutions x x x railroaded with such hurry/promptitude unequalled in the entire history of the SC under circumstances that have gone beyond the limits of legal and judicial ethics.
There is nothing final in this world. We assure you that this case is far from finished by a long shot. For at the proper time, we shall so act and bring this case before another forum where the members of the Court can no longer deny action with minute resolutions that are not only unjust but are knowingly and deliberately promulgated x x x.
Please understand that we are pursuing further remedies in our quest for justice under the law. We intend to hold responsible members of the First Division who participated in the promulgation of these three minute-resolutions in question x x x.
In our quest for justice, we wish to avoid having injustice to anyone, particularly the members of the First Division, providing that they had no hand in the promulgation of the resolution in question. x x x If, however, we do not hear from you after a week, then we will consider your silence that you supported the dismissal of our petition. We will then be guided accordingly.[61]
We leave the next move to you by informing us your participation x x x. Please do not take this matter lightly. x x x The moment we take action in the plans we are completing, we will then call a press conference with TV and radio coverage. Arrangements in this regard are being done. The people should or ought to know why we were thwarted in our quest for plain justice.[62]These letters were referred by the First Division en consulta to the Court en banc.
True to her threats, after having lost her case before the Supreme Court, Ilustre filed on December 16, 1986 an affidavit-complaint before the Tanodbayan, charging, among others, some Justices of both the Supreme Court and the CA with knowingly and deliberately rendering "unjust resolutions."
On January 29, 1987, the Supreme Court en banc required Ilustre to show cause why she should not be held in contempt for her foregoing statements, conduct, acts, and charges against the Supreme Court and/or official actions of the justices concerned which, unless satisfactorily explained, transcended the permissible bounds of propriety and undermined and degraded the administration of justice.
In her answer, Ilustre contended, inter alia, that she had no intention to affront the honor and dignity of the Court; that the letters to the individual justices were private in character; that the Court was estopped, having failed to immediately take disciplinary proceedings against her; and that the citation for contempt was a vindictive reprisal against her.
The Supreme Court found her explanation unsatisfactory. The claim of lack of evil intention was disbelieved in the face of attendant circumstances. Reliance on the privacy of communication was likewise held as misplaced. "Letters addressed to individual Justices in connection with the performance of their judicial functions become part of the judicial records and are a matter of public concern for the entire Court." (Underscoring supplied)
The Court likewise stated that it was only in the exercise of forbearance that it refrained from immediately issuing a show-cause order, expecting that she and her lawyer would realize the unjustness and unfairness of their accusations. Neither was there any vindictive reprisal involved. "The Court's authority and duty under the premises is unmistakable. It must act to preserve its honor and dignity from the scurrilous attacks of an irate lawyer, mouthed by his client, and to safeguard the morals and ethics of the legal profession."
In resumè, the Court found that Ilustre had transcended the permissible bounds of fair comment and criticism to the detriment of the orderly administration of justice: (a) in her letters addressed to the individual Justices, quoted in the show-cause Resolution, particularly the underlined portions thereof; (b) in the language of the charges she filed before the Tanodbayan quoted in the same Resolution; (c) in her statement, conduct, acts, and charges against the Supreme Court and/or official actions of the Justices concerned and her description of improper motives; and (d) in her unjustified outburst that she could no longer expect justice from the Court.
The fact that said letter was not technically considered pleadings nor the fact that they were submitted after the main petition had been finally resolved does not detract from the gravity of the contempt committed. The constitutional right of freedom of speech or right to privacy cannot be used as a shield for contemptuous acts against the Court.[63]Ilustre was fined P1,000.00 "for contempt," evidently considered as indirect, taking into account the penalty imposed and the fact that the proceedings taken were not summary in nature.
In Perkins v. Director of Prisons,[64] the Court had an occasion to examine the fundamental foundations of the power to punish for contempt: "The power to punish for contempt is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings and to the enforcement of judgments, orders, and mandates of the courts, and, consequently, to the due administration of justice."[65]
The Court there held that "the exercise of this power is as old as the English history itself, and has always been regarded as a necessary incident and attribute of courts. Being a common-law power, inherent in all courts, the moment the courts of the United States were called into existence they became vested with it. It is a power coming to us from the common law, and, so far as we know, has been universally admitted and recognized."[66]
After World War II, this Court reiterated it had an 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.[67] This power to punish for contempt is "necessary for its own protection against improper interference with the due administration of justice x x x. It is not dependent upon the complaint of any of the parties-litigant."[68] These twin principles were to be succinctly cited in the later case of Zaldivar v. Gonzales.[69]
Of course, the power to punish for contempt is exercised on the preservative principle. There must be caution and hesitancy on the part of the judge whenever the possible exercise of his awesome prerogative presents itself. "The power to punish for contempt," as was pointed out by Mr. Justice Malcolm in Villavicencio v. Lukban,[70] "should be exercised on the preservative and not on the vindictive principle. Only occasionally should the court invoke its inherent power to retain that respect without which the administration of justice must falter or fail." But when called for, most especially when needed to preserve the very existence and integrity of no less than the Highest Court, this principle bears importance.
In the 1995 case People v. Godoy,[71] the Court, citing In Re: Vicente Sotto,[72] had the opportunity to define the relations of the courts and of the press. Quoting the statements made by Judge Holmes in U.S. v. Sullen,[73] the Court said:
The administration of justice and the freedom of the press, though separate and distinct, are equally sacred, and neither should be violated by the other. The press and the courts have correlative rights and duties and should cooperate to uphold the principles of the Constitution and laws, from which the former receives its prerogative and the latter its jurisdiction. x x x In a clear case where it is necessary in order to dispose of judicial business unhampered by publications which reasonably tend to impair the impartiality of verdicts, or otherwise obstruct the administration of justice, the Court will not hesitate to exercise undoubted power to punish for contempt. This Court must be permitted to proceed with the disposition of its business in an orderly manner free from outside interference obstructive of its constitutional functions. This right will be insisted upon as vital to an impartial court, and, as a last resort, as an individual exercises the right of self-defense, it will act to preserve its existence as an unprejudiced tribunal.[74] (Emphasis supplied)Thus, while the Court in Godoy agreed that our Constitution and our laws recognize the First Amendment rights of freedom of speech and of the press, these two constitutional guaranties "must not be confused with an abuse of such liberties." Quoting Godoy further -
Obstructing, by means of the spoken or written word, the administration of justice by the courts has been described as an abuse of the liberty of the speech or the press such as will subject the abuser to punishment for contempt of court.[75]Finally, in the more recent 2007 case Roxas v. Zuzuarregui,[76] the Court en banc in a unanimous per curiam resolution imposed a P30,000 fine on Atty. Romeo Roxas for making "unfair and unfounded accusations against a member of this Court, and mocking the Court for allegedly being part of the wrongdoing and being a dispenser of injustice." We found the letter of Atty. Roxas full of "contemptuous remarks that tended to degrade the dignity of the Court and erode public confidence that should be accorded to it." We also said that his invocation of free speech and privacy of communication "will not, however, free him from liability. As already stated, his letter contained defamatory statements that impaired public confidence in the integrity of the judiciary. The making of contemptuous statements directed against the Court is not an exercise of free speech; rather, it is an abuse of such right. Unwarranted attacks on the dignity of the courts cannot be disguised as free speech, for the exercise of said right cannot be used to impair the independence and efficiency of courts or public respect therefore and confidence therein. Free expression must not be used as a vehicle to satisfy one's irrational obsession to demean, ridicule, degrade and even destroy this Court and its magistrates." Accordingly, Atty. Roxas was found guilty of indirect contempt of court and fined P30,000.00, with a warning that a repetition of a similar act would warrant a more severe penalty.
Application of Existing Jurisprudence to the Case at Bar
In determining the liability of the respondent in this contempt proceeding, we weigh the conflicting constitutional considerations - respondent's claim of his right to press freedom, on one hand; and, on the other hand, ensuring judicial independence by upholding public interest in maintaining the dignity of the judiciary and the orderly administration of justice - both indispensable to the preservation of democracy and the maintenance of a just society.
The apparently conflicting constitutional considerations summed up by a distinguished former Judge of the Supreme Court of India, Justice H.R. Khanna, bears a hand in resolving the issue -
There are one or two matters to which I would like to make pointed reference in the context of the freedom of the press. One of them relates to the danger of trial by the press. Certain aspects of a case are so much highlighted by the press that the publicity gives rise to strong public emotions. The inevitable effect of that is to prejudice the case of one party or the other for a fair trial. We must consider the question as to what extent are restraints necessary and have to be exercised by the press with a view to preserving the purity of judicial process. At the same time, we have to guard against another danger. A person cannot x x x by starting some kind of judicial proceedings in respect of matter of vital public importance stifle all public discussions of that matter on pain of contempt of court. A line to balance the whole thing has to be drawn at some point. It also seems necessary in exercising the power of contempt of court x x x vis-à-vis the press that no hyper-sensitivity is shown and due account is taken of the proper functioning of a free press in a democratic society. This is vital for ensuring the health of democracy. At the same time, the press must also keep in view its responsibility and see that nothing is done as may bring the courts x x x into disrepute and make people lose faith in these institution(s). One other matter which must not be lost sight of is that while comment is free, facts are sacred.[77]We have no problems with legitimate criticisms pointing out flaws in our decisions, judicial reasoning, or even how we run our public offices or public affairs. They should even be constructive and should pave the way for a more responsive, effective and efficient judiciary.
Unfortunately, the published articles of respondent Macasaet are not of this genre. On the contrary, he has crossed the line, as his are baseless scurrilous attacks which demonstrate nothing but an abuse of press freedom. They leave no redeeming value in furtherance of freedom of the press. They do nothing but damage the integrity of the High Court, undermine the faith and confidence of the people in the judiciary, and threaten the doctrine of judicial independence.
A veteran journalist of many years and a president of a group of respectable media practitioners, respondent Macasaet has brilliantly sewn an incredible tale, adorned it with some facts to make it lifelike, but impregnated it as well with insinuations and innuendoes, which, when digested entirely by an unsuspecting soul, may make him throw up with seethe. Thus, he published his highly speculative articles that bribery occurred in the High Court, based on specious information, without any regard for the injury such would cause to the reputation of the judiciary and the effective administration of justice. Nor did he give any thought to the undue, irreparable damage such false accusations and thinly veiled allusions would have on a member of the Court.
The Investigating Committee could not have put it any better when it found respondent feigning his "highest respect for this Court" -
Macasaet's diatribes against the Court generate public distrust in the administration of Justice by the Supreme Court, instead of promoting respect for its integrity and honor. They derogate his avowal of "highest respect for this Court" (10, tsn, Jan. 10, 2008); his declaration that he has "always upheld the majesty of the law as interpreted by the Court" (96, tsn, Jan. 10, 2008); that his opinion of the Court has actually been "elevated ten miles up" because of its decisions in the cases involving Proclamation No. 1017, the CPR, EO 464, and the People's Initiative (97, tsn, Jan. 10, 2008); that he has "done everything to preserve the integrity and majesty of the Court and its jurists" (84-85, tsn, Feb. 1, 2008); that he wants "the integrity of the Court preserved because this is the last bastion of democracy" (32, tsn, Jan. 10, 2008).Respondent has absolutely no basis to call the Supreme Court a court of "thieves" and a "basket of rotten apples." These publications directly undermine the integrity of the justices and render suspect the Supreme Court as an institution. Without bases for his publications, purely resorting to speculation and "fishing expeditions" in the hope of striking - or creating - a story, with utter disregard for the institutional integrity of the Supreme Court, he has committed acts that degrade and impede the orderly administration of justice.
These tongue-in cheek protestations do not repair or erase the damage and injury that his contemptuous remarks about the Court and the Justices have wrought upon the institutional integrity, dignity, and honor of the Supreme Court. As a matter of fact, nowhere in his columns do we find a single word of respect for the Court or the integrity and honor of the Court. On the contrary, what we find are allegations of "pernicious rumor that the courts are dirty," suspicions that the jurists are "thieves," that the Highest Court has a "soiled reputation," and that the Supreme Court has a "sagging reputation."
He admitted that the rumor about the courts being "dirty" referred "specifically (to) the Supreme Court" (100, tsn, Feb. 1, 2008) and was "based on personal conclusion which (was), in turn, based on confidential information fed to me. It is in that respect that I thought that I have (a) duty to protect and keep the Honor of this Court" (98, tsn, Feb. 1, 2008).
He unburdened his heretofore hidden anger, if not disgust, with the Court when he clarified "that the word dirty x x x is not necessarily related to money" (101, tsn, Feb. 1, 2008). "It is my belief that lack of familiarity with the law is x x x kind of dirty" referring to then Associate Justice Artemio Panganiban's support for, and Chief Justice Hilario Davide, Jr.'s act of swearing into office then Vice-President Gloria Macapagal Arroyo as Acting President of the Philippines even while then President Joseph Estrada was still in Malacañang, which Macasaet believed to be "quite a bit of dirt" (102-106, tsn, Feb. 1, 2008).[78]
To reiterate the words of the Committee, this case is "not just another event that should pass unnoticed for it has implications far beyond the allocated ramparts of free speech."[79] To allow respondent to use press freedom as an excuse to capriciously disparage the reputation of the Court and that of innocent private individuals would be to make a mockery of this liberty.
We cannot close our eyes to the comprehensive Report and Recommendation of the Investigating Committee. It enumerated the inconsistencies and assumptions of respondent which lacked veracity and showed the reckless disregard of whether the alleged bribery was false or not.[80]
Indeed, the confidential information allegedly received by respondent by which he swears with his "heart and soul"[81] was found by the Investigating Committee unbelievable. It was a story that reeked of urban legend, as it generated more questions than answers.[82]
Respondent Macasaet's wanton disregard for the truth was exhibited by his apathetic manner of verifying the veracity of the information he had gathered for his September 18, 19, 20, and 21, 2007 articles concerning the alleged bribery of a Lady Justice. His bases for the amount of money, the number of boxes, the date of delivery of the boxes, among other important details, were, by his own admission founded on personal assumptions. This nonchalant attitude extended to his very testimony before the investigating committee -
Respondent thus admits to having written his articles as means to "fish out" the Lady Justice involved in an alleged bribery fed to him by his source, with reckless disregard of whether or not such bribery indeed took place. It defies reason why any responsible journalist would go on to publish any material in a newspaper of general circulation without having ascertained even the five W's and one H of the story.[84]
That he could not, through his extensive network of informants, confirm the approximate date when the alleged bribery took place, the identities of the persons involved, or any other important detail, before he began his series of articles only leads to the rational conclusion that he did not care whether or not the story he published was true. His aim, as he admits, was to go on a fishing expedition to see if someone would confirm or deny his now clearly baseless accusations. This practice of "fishing" for information by publishing unverified information in a manner that leads the reading public to believe such is true cannot be tolerated.
Aggravating respondent's affront to the dignity of the Court is his unwillingness to show any remorse or repentance for his contemptuous acts. In fact, as he made clear in his testimony before the Investigating Committee when asked what his thoughts were about his having published the instant articles, he replied that he was "happy in the sense that [he] did a job in [his] best lights and the effort ended up in the creation of [the investigating panel]."[85]
However, such assertions of having acted in the best interest of the Judiciary are belied by the fact that he could have caused the creation of an investigating panel to look into such allegations in a more rational and prudent manner. In the words of the Investigating Committee -
If he had no malice toward the Court, if, as he professes, the purpose of his columns was to save the integrity and honor of the Court, Macasaet should, and could, have reported the rumored bribery directly to the Chief Justice and asked for its investigation. He should have refrained from calling the Court names, before giving it a chance to act on his report and on his suggestion to investigate the matter. Since he knew the name of the Court employee who allegedly discovered the bribe money, the Court could have begun its investigation with her to ascertain the identity of the nameless Lady Justice and the veracity of the rumored bribery. His disparaging remarks about the Court and jurists in conjunction with his unverified report on the alleged bribery were totally uncalled for and unjustified.[86]It is precisely because of his failure to abide by the tenets of responsible journalism that we accept the findings of the Investigating Committee in holding respondent Macasaet guilty of indirect contempt of court. He must be made accountable for his complete failure to exercise even a single vestige of responsible journalism in publishing his unfounded and ill-thought diatribes against the Judiciary and the honorable people who serve it.
Respondent also asserts that the subject matter of his articles is within the exclusive jurisdiction of Congress. He cites Section 2, Article XI of the 1987 Constitution which partly states that "x x x members of the Supreme Court x x x may be removed from office, on impeachment for, and conviction of x x x bribery x x x" and Section 3(1), Article XI, which provides that "[t]he House of Representatives shall have the exclusive power to initiate all case of impeachment."
We cannot agree. What Macasaet conveniently forgets is that no impeachment complaint has been filed against Mme. Justice Ynares-Santiago. Thus, his cited constitutional provisions do not come into play.
Respondent claims that there is a violation of his right to due process. From the time his articles were published, no formal charge has been filed against him as required under Section 3, Rule 71 of the 1997 Rules of Civil Procedure.
Respondent fails to see, however, that under Section 4 of the same Rule, proceedings for indirect contempt may be initiated motu proprio by the court against which the contempt was committed, by an order or any other formal charge requiring respondent to show why he should not be punished for contempt. Our Resolution dated September 25, 2007 satisfies the Rule. He cannot validly claim that such resolution is vague. He cannot feign ignorance of the contents of his September 18, 19, 20, and 21, 2007 articles in the Malaya.
Rule 71 of the 1997 Rules of Civil Procedure pertinently provides:
SEC. 3. Indirect contempt to be punished after charge and hearing. - After a charge in writing has been filed, and an opportunity given to the respondent to comment thereon within such period as may be fixed by the court and to be heard by himself or counsel, a person guilty of any of the following acts may be punished for indirect contempt.We are not unaware of the vigorous dissent of then Associate Justice, now our Chief Justice, Reynato S. Puno, in an earlier case,[87] in which he so lucidly argued for the right to journalistic shield, behind which the Dissenting Opinion of an esteemed colleague, Mr. Justice Carpio, and respondent Macasaet, take full refuge. While we hold his thesis in high regard, the case at bar does not fall within his erudite defense of press freedom. The critical issues then were the right of newsmen to refuse subpoenas, summons, or "invitations" to appear in administrative investigations, and not to reveal their confidential sources of information under R.A. No. 53, as amended. None of these are the issues at hand. Be that as it may, elementary decision-making teaches that we cite the majority opinion as precedent, not lonely dissenting opinions.[88]
x x x x(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice;x x x x
SEC. 7. Punishment for indirect contempt. - If the respondent is adjudged guilty of indirect contempt committed against a Regional Trial Court or a court of equivalent or higher rank, he may be punished by a fine not exceeding thirty thousand pesos or imprisonment not exceeding six (6) months, or both. x x x (Underscoring supplied)
In his Dissenting Opinion, Mr. Justice Carpio assails the Committee proceedings as "fatally defective for patent denial of due process"[89] because "when the witnesses the Committee summoned testified, the Committee monopolized the right to propound questions to the witnesses, denying to Macasaet such right."[90] He continues to say that "[w]ith the procedure the Committee adopted, Macasaet was reduced to a passive participant, unable to subject the testimonies of adverse witnesses to rigorous probing under cross-examination. As matters stand, Macasaet will be subjected to punitive sanctions based on evidence he had no opportunity to scrutinize."[91]
We disagree on triple grounds.
First , the proceedings of the Committee are presumed to be regular. Thus, the onus probandi to prove otherwise rests on Macasaet, not on the Committee. Suffice it to say that the Dissenting Opinion which cites People v. Godoy as to the "criminal" character of a contempt proceeding,[92] fails to state what Godoy likewise instructs -
Strictly speaking however, they are not criminal proceedings or prosecutions, even though the contemptuous act involved is also a crime. The proceeding has been characterized as sui generis, partaking of some of the elements of both a civil and criminal proceeding, but really constituting neither. In general, criminal contempt proceedings should be conducted in accordance with the principles and rules applicable to criminal cases, in so far as such procedure is consistent with the summary nature of contempt proceedings. So it has been held that the strict rules that govern criminal prosecutions apply to a prosecution for criminal contempt, that the accused is to be afforded many of the protections provided in regular criminal cases, and that proceedings under statutes governing them are to be strictly construed. However, criminal proceedings are not required to take any particular form so long as the substantial rights of the accused are preserved.[93]Second , assuming arguendo that Macasaet was not able to cross-examine his witnesses, this does not necessarily mean that his right to due process of law was violated.
The right of an accused to cross-examine the witnesses against him, although an adjunct of the Constitutional right "to meet the witnesses face to face,"[94] can be waived when not timely asserted. In the case of Macasaet, never did he assert his right to cross-examine the witnesses against him despite the opportunity to do so. During the entire course of the proceedings in the Committee, respondent was vigorously represented by counsel de parte. Respondent or his counsel could have moved to cross-examine the adverse witnesses. Respondent had every opportunity to do so. Lamentably, he failed to exercise the said right.
Interestingly, during the last hearing date, counsel for respondent requested that respondent be allowed to say something, which the Committee granted. Respondent then proceeded with a lengthy discourse, all of 45 pages, on everything and anything, except his right to cross-examination.[95] Verily, it cannot be validly claimed now that his right to cross-examine was violated.
Third , the Court is bereft of any power to invoke the right to cross-examine the witnesses against respondent, for and in his behalf. Otherwise, the Court will be acting as his counsel, which is absurd.
Just a Word More
A free press is regarded as a key pillar of democracy. Reporters must be free to report, expose, and hold government officials and agencies - including an independent judiciary - accountable. Press attention surrounding the judiciary ensures public accountability. Such publicity acts as a check on judicial competence and integrity, exposes inefficiencies and irregularities, keeps vigil over various public interest cases, and puts pressure on responsible judicial officials. This freedom has been used and has benefited the cause of justice. The press has become an important actor - a judicial watchdog - in the ongoing judicial transformation. When properly validated, its acts are protected speech from an accepted function.
Freedom, however, has not guaranteed quality journalism. The press has been vulnerable to a host of legitimate criticisms such as incompetence, commercialism, and even corruption. By disproportionately informing the public about specific court processes, or by spreading unsubstantiated allegations about corruption and other forms of judicial misconduct, the press dramatically undermines the public's faith in the courts and threatens the very foundation of our democratic government.
Oftentimes, journalists writing about the judiciary and court cases lack basic knowledge of the law and judicial procedures, on the basis of which they draw faulty conclusions which they pass on to their readers as gospel truths. Trial by publicity also influences the independence of judges as the public is fed with partial information and vocal opinions, and judges are pressured to decide in accordance with the public opinion. Faith in the judiciary is undermined when judges rule against the expectations of the public which has been brainwashed by dramatic reports and graphic comments. In some cases, unchecked rumors or allegations of irregularities are immediately published because journalists lack professional competence to verify the information, or are simply eager to break the news and attract a wider readership.
The role of the press in relation to the judiciary needs to be regulated. This can be done through voluntary codes of conduct on the part of the press and through judicial policies, such as the rule on sub judice and contempt of court rulings. The absence of clear voluntary codes developed by the press, as its self-regulator, strengthens the need for the Court to use its power in the meantime to cite critics for contempt. This is necessary in cases where such criticism is obviously malicious or in violation of the sub judice rule, or where there is an evident attempt to influence the outcome of a case. Judges have the duty to defend and uphold the integrity and independence of the judiciary. They should sanction those who obstruct or impede the judicial processes. The effective administration of justice may only be realized with the strong faith and confidence of the public in the competence and integrity of the judiciary, free from political and popular pressure.
Criticism at every level of government is certainly welcome. After all, it is an essential part of the checks and balances in our republican system of government. However, criticisms should not impede or obstruct an integral component of our republican institutions from discharging its constitutionally-mandated duties.
As the Court said in In Re: Almacen:[96]
Courts and judges are not sacrosanct. They should and expect critical evaluation of their performance. For like the executive and the legislative branches, the judiciary is rooted in the soil of democratic society, nourished by the periodic appraisal of the citizen whom it is expected to serve.All told, illegitimate and uninformed criticisms against the courts and judges, those which cross the line and attempt to subvert the judicial process, must be avoided. They do a great disservice to the Constitution. They seriously mislead the public as to the proper functioning of the judiciary. While all citizens have a right to scrutinize and criticize the judiciary, they have an ethical and societal obligation not to cross that too important line.x x x x
But it is the cardinal condition of all such criticism that it shall be bona fide, and shall not spill over the walls of decency and propriety. A wide chasm exists between fair criticism, on the one hand, and abuse and slander of courts and the judges thereof, on the other. x x x[97]
Senator Ernesto Maceda, the seasoned politician who has graced both the executive and the legislative departments in various capacities, in a Privilege Speech, once appealed for voluntary self-restraint with respect to this Court -
There are proper procedures for dealing with instances of official misdemeanor without setting an entire institution on fire. Arson is not the best means for pest-control.During interpellation, he went on to say -
In case of possibility of corruption in the Supreme Court, one possible means is the initiation of impeachment proceedings against specifically identified justices. A move for impeachment, of course, requires much sobriety and solid evidence. Whatever charges are brought forward must be substantiated. Those who dare prosecute must come into the open and append their names to the accusations they make, with courage and conviction. This is the manner civil society conserves its civility x x x.
The ends of justice are not served by heckling nor by crude insinuation or by irresponsible reporting. The house of democracy is never strengthened by those who choose to throw rocks under the cover of darkness and anonymity. The institutions of our liberty are never enriched by the irresponsible accusations of the uninformed. The bedrocks of our Republic are not reinforced by those who evade responsibility under the veil of freedom.[98]
x x x And in the context of what I have just said, I think that all newspapers, all media are welcome to do their worse, criticize the members of the Executive Department, Members of the Senate, and any other agency of the Government. But I am just suggesting that when it comes to the judiciary, and specifically to the Supreme Court, that a different policy, one of more caution, should be adopted precisely because x x x people may lose faith in the Executive or the President; they may lose faith in Congress, the Congressmen and the Senators, but as long as they have their faith unshaken and complete in the last bulwark of democracy x x x which is the Supreme Court, then our democracy will survive.[99]Each of us has important responsibilities in a constitutional democracy. We, judges, will continue to discharge our judicial functions with fairness. We urge all and sundry to abide by theirs. We need to respect each other. As the golden rule goes - let us not do to others what we do not want others to do to us. Igalang natin ang isa't-isa. Huwag nating gawin sa iba ang ayaw nating gawin nila sa atin.
Given the gravity of respondent Macasaet's improper conduct, coupled with the recalcitrant manner in which he responded when confronted with the reality of his wrongdoing, a penalty of fine in the amount of P20,000.00 would be right and reasonable.
WHEREFORE, the Court declares respondent Amado P. Macasaet GUILTY of indirect contempt of court and sentences him to pay a fine of P20,000.00, in accordance with Sections 3(d) and 7, Rule 71 of the 1997 Rules of Civil Procedure.
SO ORDERED.
Puno, C.J., (respectfully reiterate my Dissent in the In re: Emil Jurado case. I vote to dismiss the contempt charge.)
Quisumbing, Austria-Martinez, Corona, Azcuna, Chico-Nazario, Velasco, Jr., Nachura, Leonardo-De Castro, and Brion. JJ., concur.
Ynares Santiago, J., no part.
Carpio, J., see Dissenting Opinion.
Carpio Morales, J., join the dissent opinion of J. Carpio.
Tinga, J., in the result.
* No part.
[1] Rollo, pp. 2-6.
[2] Id. at 138; affidavit of ACA Jose Midas P. Marquez, par. 4, p. 1.
[3] Id.
[4] Id. at 146; faxed letter of Marites Dañguilan-Vitug to Mme. Justice Consuelo Ynares-Santiago dated September 20, 2007.
[5] Id. at 139-140; affidavit of ACA Marquez, pars. 7-9, pp. 2-3.
[6] Id. at 147; corrected faxed letter of Marites Danguilan-Vitug to Mme. Justice Consuelo Ynares-Santiago dated September 20, 2007.
[7] Id. at 141; affidavit of ACA Jose Midas P. Marquez, par. 14, p. 4.
[8] Id. at 9-10; letter of Ms. Daisy Cecilia Muñoz Delis to Mr. Amado P. Macasaet, dated September 21, 2007, pp. 1-2.
[9] Id. at 10-11; id. at 2-3.
[10] Id. at 7; affidavit of Ms. Daisy Cecilia Muñoz Delis dated September 24, 2007, par. 8b, p. 1.
[11] Id.; id., par. 9, at 1.
[12] Id.; id., par. 10, at 10.
[13] Id. at 101-103; id. at 1-3.
[14] Id. at 101; id. at 1.
[15] Id. at 149.
[16] Id. at 141; Marquez, par. 15, p. 4.
[17] Id. at 141; Marquez, par. 14.
[18] Id. at 13; Min. Res. A.M. No. 07-09-13-SC (Re: In the Matter of the Allegations Contained in the Columns of Mr. A.P. Macasaet Published in Malaya Dated September 18, 19, 20, and 21, 2007), dated September 25, 2007.
[19] Id. at 14-43. In his sworn explanation, Macasaet, assisted by counsel, argued on the following points:
- His statements were precisely a call for an investigation to preserve the integrity of the Supreme Court and the administration of justice pursuant to the Court's crusade in curbing perceived corruption in the judiciary;
- n light of revelations not sourced from him, the subject of the statements is already demonstrably under the exclusive jurisdiction of Congress;
- The proceedings for indirect contempt stifles freedom of the press;
- There was no reckless disregard by the publication of the subject statements and he exerted bona fide efforts to ascertain the truth of such statements; and
- Under the circumstances, continuation of the proceedings constitutes an unconditional denial of his right to due process of law and equal protection.
[20] Id. at 133.
[21] No known relation to Ms. Marites Dañguilan-Vitug.
[22] Rollo, pp. 223-229. Retired Supreme Court Associate Justice Vicente V. Mendoza resigned from the Committee upon finding out that the allegations of bribery involved an executive of PIATCO, a party to an international arbitration case in which he is an expert witness for the Philippine Government, and he did "not wish to burden the legal panel of the Philippine Government in the arbitration cases with the task of explaining or justifying his participation" in the Investigating Committee. Retired Justice Romeo J. Callejo, Sr., on the other hand, requested to be relieved, as he was the ponente of Go v. Sandiganbayan promulgated on April 13, 2007, while retired Justice Arturo Buena had likewise requested to be inhibited from the investigating committee. These requests were approved by the Court En Banc in a Resolution dated November 13, 2007. (Id. at 232.)
[23] TSN, October 30, 2007, p. 18.
[24] TSN, January 17, 2008, p. 6.
[25] Rollo, pp. 326-347; Report and Recommendation (Re: In the Matter of the Allegations Contained in the Columns of Mr. A.P. Macasaet Published in Malaya Dated September 18, 19, 20, and 21, 2007), pp. 1-22.
[26] Id. at 333; id. at 8.
[27] Id. at 340-341; id. at 15-16.
[28] Id. at 341-342; id. at 16-17.
[29] Id. at 342-343; id. at 17-18.
[30] Id. at 343-346; id. at 18-21.
[31] Id. at 346-347; id. at 21-22.
[32] Blackstone, W., Commentaries, 145 (1876).
[33] Record of the Constitutional Commission: Proceedings and Debates (1987), p. 758.
[34] De Jesus, M.Q., Overview, Press Freedom in the Philippines (2004).
[35] Teodoro, L.V., Survey of Media, Press Freedom in the Philippines (2004).
[36] Guidebook for Journalists Covering the Courts: Strengthening Judiciary-Media Relations, Asian Institute of Journalism and Communication (2004), p. 13.
[37] Jacobson, M.K., Assault on the Judiciary: Judicial Response to Criticism Post-Schiavo, 61 U. Miami L. Rev. 931 (2007).
[38] Attorney-General v. Leveller Magazine, Ltd., AC 440 (1979); Scott v. Scott, AC 417 (1913).
[39] Coker, H.C., Responding to Judicial Criticism, 73 Fla. B.J. 10 (1999).
[40] Blatz, K., The State of the Judiciary, 62 Bench & B. Minn 26, 27 (2005).
[41] The Federalist No. 78.
[42] Constitution (1987), Art. VIII, Sec. 1.
[43] See Abrahamson, S.S., Remarks of the Hon. Shirley S. Abrahamson before the American Bar Association Commission on the Separation of Powers and Judicial Independence, Washington, D.C., December 13, 1996, 12 St. John's J. Legal Comment. 71 (1996).
[44] Kelson, S., Judicial Independence and the Blame Game: The Easiest Target Is a Sitting One, 15 Utah B.J. 15-16 (2002).
[45] G.R. No. L-27833, April 18, 1969, 27 SCRA 835.
[46] Gonzales v. Commission on Elections, id. at 858.
[47] G.R. No. L-32066, August 6, 1979, 92 SCRA 476.
[48] In Re: Lozano, 54 Phil. 801 (1929).
[49] G.R. Nos. 79690-707 & L-80578, October 7, 1988, 166 SCRA 316.
[50] Zaldivar v. Gonzalez, id. at 354, citing the concurring opinion of Mr. Justice Frankfurter in Pennekamp v. Florida, 328 US 331, 354-356 (1946).
[51] Adopted and opened for signature, ratification and accession by the UN General Assembly Resolution 2200A (XXI), December 16, 1966, entered into force on January 3, 1976.
[52] E.T.S. No. 5, adopted November 4, 1950, entered into force on September 3, 1953.
[53] Adopted at San Jose, Costa Rica, November 22, 1969, entered into force on July 18, 1978.
[54] Adopted at Nairobi, Kenya, June 26, 1981, entered into force on October 21, 1986.
[55] Locke, J., Second Treatise of Government (1689), §§ 124-126, reprinted in Locke, J., Political Writings 325 (1985 ed.).
[56] 1 Phil. 1 (1901).
[57] In the matter of the proceedings against Marcelino Aguas for contempt of the Court of First Instance of Pampanga, id. at 2.
[58] In Re: Amzi B. Kelly, 35 Phil. 944 (1916).
[59] In Re: Vicente Sotto, 82 Phil. 595 (1949).
[60] In the Matter of Proceedings for Disciplinary Action Against Atty. Wenceslao Laureta and of Contempt Proceedings Against Eva Maravilla-Illustre in G.R. No. 68635, entitled "Eva Maravilla-Illustre vs. Hon. Intermediate Appellate Court, et al.," G.R. No. 68635, March 12, 1987, 148 SCRA 382.
[61] Id. at 390-391.
[62] Id. at 392-393.
[63] Id. at 421.
[64] 58 Phil. 271 (1933).
[65] Perkins v. Director of Prisons, id. at 274, citing Ex parte Terry, 128 US 225, 32 L Ed., 405; In re Kelly, 35 Phil. 944; State v. Magee Publishing Company, 38 ALR 142, 144.
[66] Id. at 274-275, citing 4 Lewis' Bl. Com., Sec. 286, p. 1675; Oswald, Contempt, Canadian ed., pp. 1-3, 6 RCL 489; State v. Morrill, 16 Ark. 390; State ex rel. Rodd v. Verage, 177 Wis. 295, 23 ALR 491, 187 NW 830; and People ex rel. Brundage v. Peters, 305 Ill. 223; 26 ALR 16, 137 NE 118.
[67] In Re: Vicente Sotto, supra note 59.
[68] Halili v. Court of Industrial Relations, G.R. No. L-24864, April 30, 1985, 136 SCRA 112.
[69] Supra note 49.
[70] 39 Phil. 778 (1919).
[71] 312 Phil. 977 (1995).
[72] Supra note 59.
[73] 36 F. 2d 220.
[74] People v. Godoy, supra note 71, at 1003.
[75] Id. at 1004.
[76] G.R. Nos. 152072 & 152104, July 12, 2007, 527 SCRA 446.
[77] Khanna, H.R., Freedom of Expression with Particular Reference to Freedom of the Media, 2 SCC (Jour) 1 (1982).
[78] Rollo, pp. 344-345; Report and Recommendation (Re: In the Matter of the Allegations Contained in the Columns of Mr. A.P. Macasaet Published in Malaya Dated September 18, 19, 20, and 21, 2007), pp. 19-20.
[79] Id. at 346; id. at 22.
[80] See notes 26 and 27.
[81] TSN, January 10, 2008, pp. 92-93, 113.
[82] See note 28.
[83] TSN, January 10, 2008, pp. 28-40.
[84] The five W's and one H: Who, What, When, Where, Why, and How are generally known as the basic information that all news stories should contain.
[85] Rollo, p. 103; TSN, January 10, 2008.
[86] Id. at 346.
[87] In Re: Emil P. Jurado, A.M. No. 93-2-037 SC, April 6, 1995, 243 SCRA 299.
[88] Then Associate Justice, now Chief Justice Puno was joined by Justice Padilla in his Dissenting Opinion in the Jurado case where the Court voted 10-3, with two justices taking no part.
[89] Dissenting Opinion, p. 8.
[90] Id.
[91] Id. at 9.
[92] Id. at 7.
[93] Supra note 71, at 1001.
[94] Constitution (1987), Art. III, Sec. 14 (2).
[95] TSN, February 1, 2008, pp. 84-129.
[96] G.R. No. 27654, February 18, 1970, 31 SCRA 562.
[97] In Re: Almacen, id. at 578-580.
[98] Maceda, E.M., In Defense of the Supreme Court, Privilege Speech delivered on the Senate Floor, February 2, 1993.
DISSENTING OPINION
CARPIO, J.:
This resolves a contempt charge[1] against respondent Amado A.P. Macasaet (Macasaet), a newspaper columnist, for authoring publications imputing bribery to a member of this Court.
The Facts
Macasaet writes a daily column, "Business Circuit," in Malaya, a newspaper of general circulation. In the 18-21 September 2007 issues of Malaya, Macasaet ran a story, based on information obtained from confidential sources, of an alleged bribery in the Court committed as follows: on separate occasions in the second week of September 2007,[2] five[3] boxes containing cash worth P10 million were delivered to the Court and received by a certain "Cecilia," a staff of an unnamed lady Justice, who opened one of the boxes and saw its contents. Forthwith, the Justice terminated "Cecilia's" employment. The payoff was made allegedly in connection with a decision rendered by the Justice "acquitting" a Filipino-Chinese businessman. Macasaet's story, which carried commentaries on the state of the judiciary and reputation of judges,[4] exhorted "Cecilia" to divulge everything she knows about the alleged bribery and the Court to investigate the matter.
Subsequently, Newsbreak, an online magazine, posted on its website[5] a news report that the Court is investigating a bribery incident based on facts substantially similar[6] to what Macasaet wrote. Written by Marites Danguilan Vitug (Vitug), Newsbreak editor, and Aries Rufo (Rufo), Newsbreak reporter, the news report named Justice Consuelo Ynares-Santiago as the member of the Court involved in the alleged bribery and one Cecilia Delis (Delis)[7] as her staff whose employment she terminated.
On 24 September 2007, Justice Santiago issued a statement denying the "accusations and insinuations" published in Malaya and Newsbreak. Justice Santiago also asked the Court to investigate the matter.
In a Resolution dated 25 September 2007, the Court en banc required Macasaet to explain "why no sanction should be impose[d] on him for indirect contempt of court" under Section 3(d), Rule 71 of the 1997 Rules of Civil Procedure.[8] After Macasaet submitted his compliance and Delis her affidavit, the Court, in the Resolution of 16 October 2007, created a Committee, composed of former members of the Court,[9] to "receive evidence from all parties concerned" and submit its report and recommendation within 30 days from the start of its hearing. Macasaet, Vitug, Rufo, Delis and other Court employees[10] appeared and testified before the Committee.
Macasaet, Vitug and Rufo uniformly testified that they obtained the information on the alleged bribery from their respective confidential sources. Delis denied having received or opened any box containing cash intended for Justice Santiago. While admitting that she was a staff of Justice Santiago, Delis denied having been fired from service and claimed that she resigned effective 15 March 2007. Danilo Pablo of the Court's Security Division testified that while visitors to the Court are listed in the logbook at the Court's gate, the security personnel, as a matter of policy, do not open gifts or boxes intended for members of the Court.
It was determined during the hearings conducted by the Committee that the case referred to in Macasaet and Newsbreak's[11] publications is G.R. No. 172602 (Henry T. Go v. The Fifth Division, Sandiganbayan). The petition in G.R. No. 172602 sought the nullification of the Sandiganbayan's ruling denying quashal of the Information filed against petitioner Henry T. Go (Go) for violation of Section 3(g), Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act). In a Decision dated 13 April 2007, penned by Justice Romeo J. Callejo, Sr., the Third Division, by a divided vote,[12] dismissed the petition in G.R. No. 172602. Go sought reconsideration and while his motion was pending, Justice Callejo retired from the Court. In the Resolution dated 3 September 2007, penned by Justice Santiago, a Special Third Division, again by a divided vote,[13] granted Go's motion, reversed the Decision of 13 April 2007, and dismissed the Information filed against Go. The respondent sought reconsideration which awaits resolution.
In its Report and Recommendation dated 10 March 2008 (Report), the Committee found that "there exist valid grounds x x x to cite x x x Macasaet for indirect contempt x x x." The Report found that (1) Macasaet's publications were false, baseless,[14] unbelievable,[15] and malicious[16] and (2) Macasaet was negligent in failing to ascertain the veracity of his story.[17] The Committee concluded that Macasaet's publications generated public distrust in the administration of justice and thus, contumacious. The majority finds the Report's findings and conclusion well-taken and accordingly imposes a punitive fine on Macasaet.
I agree with the majority that Macasaet failed to substantiate his story. However, I disagree with the majority's conclusion that this suffices to hold Macasaet guilty of contempt of court.
On the Nature of this Proceeding
As stated, this is a proceeding to determine Macasaet's liability for criminal contempt[18] under Section 3(d), Rule 71 of the 1997 Rules of Civil Procedure.[19] Thus, its scope is narrow and its purpose specific: to determine, using applicable standards, whether Macasaet's publications tend to impede, obstruct, or degrade the administration of justice. Care must be taken that, in undertaking this task, we do not tread beyond the limited confines of this proceeding and enter into the larger determination of whether bribery, as defined in our criminal statutes,[20] did or did not take place to remove a member of this Court from office. The Constitution has vested such power only on Congress[21] which, upon proper complaint and after due proceedings, determines whether a member of this Court can be impeached for, among others, bribery.[22] Observance of this jurisdictional delineation has a practical consequence: this proceeding terminates either in Macasaet's citation or non-citation for indirect contempt of court depending on whether his publications are deemed contumacious.
On Whether this Case Should be Decided
by the Court En Banc or by the Special Third
Division in G.R. No. 172602
While there may have been confusion at the start as to which case was involved in the reported bribery,[23] it is now settled that the case is G.R. No. 172602 pending with the Special Third Division (awaiting resolution of respondent's motion for reconsideration). Hence, it is but proper and logical that the Special Third Division resolve this matter which, after all, is but an incident to G.R. No. 172602. While this Court is a collegiate court, it is no less a court of law when it sits in a division than when it sits en banc, to resolve judicial matters, or, as here, a contempt charge. At any rate, whether it is the Court en banc or the Special Third Division in G.R. No. 172602 which resolves this matter, Macasaet's conduct is not contumacious.
The Committee Proceedings were Fatally Defective
The Resolution dated 16 October 2007 created the Committee to:
[R]eceive x x x evidence from all the parties concerned [and] x x x, on its own, call such persons who can shed light on the matter. It shall be endowed with all the powers necessary to discharge its duty.The Committee read this Resolution as having granted it mere "fact-finding" powers.[24] Accordingly, when the witnesses the Committee summoned testified, the Committee monopolized the right to propound questions to the witnesses, denying to Macasaet such right.
This procedure is fatally defective for patent denial of due process, rendering the testimonies in question inadmissible.
A proceeding for criminal contempt, as here, is adversarial.[25] At the heart of such adversarial process is the parties' right to test the veracity of the testimonies of adverse witnesses through cross-examination. With the procedure the Committee adopted, Macasaet was reduced to a passive participant, unable to subject the testimonies of adverse witnesses to rigorous probing under cross-examination. As matters stand, Macasaet will be subjected to punitive sanctions based on evidence he had no opportunity to scrutinize.
True, the Committee solicited the views of the parties, and the counsels for the Newsbreak staff[26] and Delis[27] agreed with the Committee's characterization of the proceedings as mere fact-finding.[28] However, this acquiescence is no more binding on the Court than the Committee's view. It is an erroneous conclusion of law which cannot transform the nature of a contempt proceeding from adversarial to non-adversarial.
Nor can it be said, as the ponencia holds, that Macasaet waived his right to conduct cross-examination for his failure to "timely assert" such right. This conclusion erroneously presupposes that Macasaet should have asserted such right at that point. The Committee stated at the outset that its investigation was merely "fact-finding," making Macasaet believe that there would be another occasion for a cross-examination of the witnesses. Thus, Macasaet did not insist on his right to cross-examine at that point. Having been denied the right to cross-examine from the start, there was nothing which Macasaet could have "timely asserted."
The Applicable Standard in Contempt-by-Publication
Proceedings
Proceedings
At any rate, the evidence at hand fails to meet the applicable standard in contempt-by-publication proceedings.
This matter comes on the heels of a small but growing line of jurisprudence on contempt-by-publication;[29] however, this is only the second incident to involve this Court on reports of corruption.[30] These cases implicate two competing but equally vital State interests: on the one hand, the right of journalists to be protected from contempt of court under the constitutional guarantees of free speech and of the press and, on the other hand, the right of the courts to maintain order, impartiality and dignity in the administration of justice. In resolving the matter, we are called upon to perform a task more commonly done in constitutional adjudication - the balancing of constitutional values using applicable standards. As ever, the result of this delicate task hinges on the liberality or stringency of the test used against which the two interests are weighed.
In concluding that "there exist valid grounds x x x to cite x x x Macasaet for indirect contempt x x x," the Report implicitly used two parameters, first applied in In Re: Emil P. Jurado[31] (Jurado test), against which Macasaet's publications were measured: (1) whether Macasaet's story was false and (2) whether Macasaet could have prevented the publication of the false story by exercising diligence in verifying its veracity.[32] As stated, the Report found Macasaet's publications wanting on both counts.
However, long before we adopted the Jurado test, this Court already laid down the two "theoretical formulas" to serve as the judicial scales upon which the competing interests in this proceeding are weighed. We held in Cabansag v. Fernandez:[33]
Two theoretical formulas had been devised in the determination of conflicting rights of similar import in an attempt to draw the proper constitutional boundary between freedom of expression and independence of the judiciary. These are the [1] "clear and present danger" rule and the [2] "dangerous tendency" rule. The first, as interpreted in a number of cases, means that the evil consequence of the comment or utterance must be "extremely serious and the degree of imminence extremely high" before the utterance can be punished. The danger to be guarded against is the "substantive evil" sought to be prevented. And this evil is primarily the "disorderly and unfair administration of justice." This test establishes a definite rule in constitutional law. It provides the criterion as to what words may be published. Under this rule, the advocacy of ideas cannot constitutionally be abridged unless there is a clear and present danger that such advocacy will harm the administration of justice.Thus, in this jurisdiction, we have long ago applied the clear and present danger test in contempt cases.[34] We must scrutinize Macasaet's publications through the lens of the clear and present danger test guided by these queries: (1) is the evil consequence of Macasaet's publications extremely serious? and (2) is the degree of its imminence extremely high? The facts of this case do not meet either criterion.
x x x x
Thus, speaking of the extent and scope of the application of [the first] rule, the Supreme Court of the United States said "Clear and present danger of substantive evils as a result of indiscriminate publications regarding judicial proceedings justifies an impairment of the constitutional right of freedom of speech and press only if the evils are extremely serious and the degree of imminence extremely high. . . . A public utterance or publication is not to be denied the constitutional protection of freedom of speech and press merely because it concerns a judicial proceeding still pending in the courts, upon the theory that in such a case it must necessarily tend to obstruct the orderly and fair administration of justice.["] x x x xx x x x
The "dangerous tendency" rule, on the other hand, has been adopted in cases where extreme difficulty is confronted in determining where the freedom of expression ends and the right of courts to protect their independence begins. There must be a remedy to borderline cases and the basic principle of this rule lies in that the freedom of speech and of the press, as well as the right to petition for redress of grievance, while guaranteed by the constitution, are not absolute. They are subject to restrictions and limitations, one of them being the protection of the courts against contempt (Gilbert vs. Minnesota, 254 U. S. 325.)
This rule may be epitomized as follows: If the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable. It is not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite persons to acts of force, violence, or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil which the legislative body seeks to prevent. (Gitlow vs. New York, 268 U.S. 652.)
Although the majority, in adopting the Report's findings, did not expressly so state, it appears that the substantive evil allegedly brought about by Macasaet's publications is two-fold: (1) disrespect for the Court and (2) unfair administration of justice. To determine to what extent the substantive evil is likely to occur, we must turn to the particular utterances and the circumstances of their publication.[35] On the question of disrespect for the Court, the Report seemed to have cherry-picked words from Macasaet's publications describing the Court's reputation ("sagging" and "soiled"), the state of the courts ("dirty"), and the public's appraisal of judges ("thieves") and separated them from their context to arrive at its conclusion. Adopting the same approach, the majority holds that "[Macasaet] has absolutely no basis to call the Supreme Court a court of 'thieves' and a 'basket of rotten apples.'"[36]
A simple resort to the publications in question belies these findings. Macasaet used these terms to bring home his point that (1) the alleged bribery "proves" the less than a desirable state of affairs in the judiciary (that is, the courts are "dirty"); (2) which reflects on the entire judiciary (similar to a basket of apples where, if "there are a few which are rotten[;] [t]hat makes the whole basket rotten"); and (3) that the Court must investigate the reported bribery with Delis' aid to save the other members of the Court from "suspicions they are thieves."[37] Thus, taken in context of their actual use as they appeared in Macasaet's publications, the words the majority finds contumacious are no more disrespectful of courts than when a publication states that a reported pay-off "proves" that the judiciary is populated by "hoodlums in robes."[38]
On Macasaet's statement that the Justice in question "shamed her court" and that she should resign or be impeached, it needs no further elaboration that this statement is not directed at the Court but at one of its members. Without passing judgment on the nature of this statement, it is obvious that the remedy for any injury this may have caused lies not in this Court's exercise of its contempt power but in the resort by the Justice concerned to remedies available under our civil and criminal statutes to vindicate her rights.[39]
On the question of unfair administration of justice, neither has it been claimed nor suggested that this matter has or will adversely affect the disposition of the pending incident in G.R. No. 172602. If there is any party which stands to be directly prejudiced by the alleged bribery, it is the government whose case against Go was ordered dismissed in the Resolution of 3 September 2007. However, the government has not asked for Justice Santiago's inhibition from that case, indicating its continuing trust and confidence in her impartiality. With this backdrop, the Report's conclusion that Macasaet's publications "generate[d] public distrust in the administration of justice" and wrought "damage and injury" to the "institutional integrity, dignity, and honor"[40] of this Court rings hollow, rooted on assumptions bereft of factual basis. As well observed by then Associate Justice, now Chief Justice Reynato S. Puno, in Jurado which also involved a journalist who authored false reports of corruption in the Court:
There is nothing in the record, however, showing the degree how respondent's false report degraded the administration of justice. The evidence from which this conclusion can be deduced is nil. The standing of respondent as a journalist is not shown. The extent of readership of respondent is not known. His credibility has not been proved. Indeed, nothing in the record shows that any person lost faith in our system of justice because of his said report. Even the losing party x x x does not appear to have given any credence to the said false report.[41] (Emphasis supplied)These observations are consistent with the rule that the clear and present danger test is deemed met only upon showing that "the material would tend to cause the unfair disposition of pending cases"[42] or create an imminent and serious threat to the ability of the Court to decide the issues before it.[43] In sum, the facts of this case fall short of the stringent standard under the clear and present danger test that the substantive evil brought about by the publications be extremely serious and the degree of imminence extremely high.[44]
The clear and present danger test, which this Court has been applying in contempt cases,[45] is most protective of free speech and of free press, basic rights which are necessary for the exercise of almost every other fundamental right.[46] That this case is a criminal contempt proceeding gives added protection to Macasaet who invokes freedom of the press. Indeed, Macasaet is afforded the basic rights granted to the accused[47] in a criminal case and as precondition for citing him in contempt, intent to commit contempt of court must be shown by proof beyond reasonable doubt. Good faith or absence of intent to harm the courts is a valid defense.[48] Macasaet did invoke good faith but the Report brushed it aside as "tongue in cheek protestation[]."[49]
The clear and present danger test is the most exacting and protective test in favor of free press. Before a journalist can be punished in a criminal contempt case, as in this case, there must be proof beyond reasonable doubt that his publication tends to obstruct the administration of justice, and such obstruction must be extremely serious, likely resulting in an unfair decision, and the degree of imminence of the obstruction actually happening extremely high.
Macasaet and Newsbreak based their reports on the alleged bribery from information obtained from their respective confidential sources. In short, it was a professional call on the part of Macasaet and Newsbreak to run the story. This Court should be the last to attribute negative motives for this judgment call.[50] Admittedly, Macasaet has failed to substantiate his story - spread over four issues of Malaya, divulging bits and pieces of vague information. This, however, does not serve to lessen the protection afforded to the publications which carried them under the constitutional guarantees of free speech and of free press. Journalists, "agents of the people"[51] who play a vital role in our polity by bringing to the public fora issues of common concern such as corruption, must be accorded the same "breathing space" for erroneous statements necessary for free expression to thrive in a democratic society.[52]
Further, failure to substantiate a story, or even the mere falsity of publications, had long ceased to suffice to hold journalists in contempt of court (unless there is a clear and present danger that such false reports will impair the administration of justice)[53] just as it had long ceased to suffice to hold journalists liable for libel for criticism of public officials under the actual malice standard.[54] Chief Justice Puno's discussion of this point in Jurado is most illuminating:
[R]espondent [is punished] for publishing "stories shown to be false . . . stories that he made no effort whatsoever to verify and which, after being denounced as lies, he has refused, or is unable to substantiate." The undue weight given to the falsity alone of respondent's columns is unsettling. For after finding respondent's columns as false, the majority did not go any further to determine whether these falsehoods constitute a clear and present danger to the administration of justice.To support its conclusion finding Macasaet guilty of contempt of this Court, the majority made a selective survey of contempt of court jurisprudence and sought to apply them here. However, of the cases the majority cites, only three involved contempt by publication proceedings, two of which, In re Kelly[56] and In re Sotto[57] were decided long before we laid down the parameters of the clear and present danger test in Cabansag.[58] As for the third case of People v. Godoy,[59] the Court in fact applied the clear and present danger test in that case, thus:
x x x x
[T]he majority cites in support of its non-too-liberal stance the cases of New York Times Co. v. Sullivan and Garrison v. Louisiana. These cases, however, are ground breaking in importance for they expanded the protection given to freedom of speech and of the press. New York Times restricted the award of damages in favor of public officials in civil suits for damages arising out of libel precisely because of their chilling effects on the exercise of freedom of speech and of the press. To be entitled to damages, the public official concerned was imposed a very difficult, if not impossible, burden of proof. He was required to prove that the defamatory statement was not only false but was made with "actual malice." This means he has to prove that the defamatory statement was made with the "knowing falsity or with a reckless disregard for the truth." On the other hand, Garrison did not only reiterate but even extended the New York Times rule to apply to criminal cases. x x x x
x x x x
The majority opinion in the case at bench certainly did not follow the New York Times rule which was reiterated and even expanded in Garrison. The majority halted after finding that the respondent's columns are false or slanted.[55] (Boldfacing supplied)
Snide remarks or sarcastic innuendoes do not necessarily assume that level of contumely which is actionable under Rule 71 of the Rules of Court. Neither do we believe that the publication in question was intended to influence this Court for it could not conceivably be capable of doing so. The article has not transcended the legal limits for editorial comment and criticism. Besides, it has not been shown that there exists a substantive evil which is extremely serious and that the degree of its imminence is so exceptionally high as to warrant punishment for contempt and sufficient to disregard the constitutional guaranties of free speech and press. (Emphasis supplied)Thus, while ostensibly using relevant jurisprudence to arrive at its conclusion, the majority actually relied on the liberal parameters of the "falsity and negligence test" used in Jurado. The "falsity and negligence test" is a sharp dagger aimed at the heart of free speech and of free press. Applied for the first time in Jurado and nowhere else on this planet, this test does not consider the seriousness or imminence of the substantive evil sought to be prevented. Any kind of unflattering publication to a judge or court, whether or not putting at risk a fair trial or decision, becomes punishable for contempt if false and the journalist could have prevented the publication by exercising diligence to verify its veracity. Good faith is not a defense.
The "falsity and negligence test" compels the journalist to guarantee the veracity of what he writes on pain of criminal contempt of court. Obviously, this has a chilling effect on free speech and free press. This will lead to self-censorship, suppressing the publication of not only what is false but also of what is true. Critics of judges or the courts will be forced into silence, unless they are willing to face imprisonment or fine for criminal contempt. The "falsity and negligence test" is a dangerous throwback to the Dark Ages in the history of free speech and of free press.
By approving the Report's reliance on the Jurado test, the majority perpetuates a double-standard vis-a-vis publications critical of public officials. On the one hand, the majority applies the liberal "falsity and negligence test" in lieu of the exacting clear and present danger test to scrutinize publications critical of judges in contempt cases, and on the other hand, applies the stringent "actual malice test" for publications critical of all other public officials.
This Court has extended the constitutional protection of free speech to publications critical of a barangay official,[60] provincial governor (and concurrently a cabinet official),[61] and other public figures,[62] for lack of proof of knowledge that the publication was false or of reckless disregard of whether the publication was false or not. However, the Court today is imposing punitive sanctions on a journalist for authoring publications imputing malfeasance on a member of the Court because the journalist failed to substantiate his story, despite incontrovertible proof that he acted in good faith as shown by the parallel publication of the same story by another media outlet based on its own confidential sources (which, significantly, was never made to justify its conduct).
Supreme Court Justices, as public officials, and the Supreme Court, as an institution, are entitled to no greater immunity from criticism than other public officials and institutions.[63] Indeed, the dual-treatment that the majority tolerates turns on its head the purpose of the contempt power: instead of "protect[ing] immediate litigants and the public from the mischievous danger of an unfree or coerced tribunal" it "protects the court as a mystical entity or the judges x x x as anointed priests set apart from the community and spared the criticism to which in a democracy other public servants are exposed."[64] As the Highest Court of the land, the Court should be the first to resist the temptation to privilege its members with the shield of lese-majeste, through the liberal "falsity and negligence test," at the expense of diluting the essence of the free press guarantee indispensable in a democratic society. This Court diminishes itself if it diminishes the free press guarantee, for an independent judiciary needs a free press as much as a free press needs an independent judiciary.[65]
Courts must, as a matter of self-preservation, be able to defend themselves. But it is not against all attacks that they can employ the preservative[66] power of contempt. As this Court recognized more than half a century ago in Cabansag, it is only when the evil brought about by the attack is "extremely serious and the degree of imminence extremely high" so as to impede, obstruct, or degrade the administration of justice that courts must act. To apply this exacting test is not to deny a right inherent in courts but to recognize their place in a free society always accountable to the public whom they serve and for whom they exist. More than a decade ago, this Court was given the chance in Jurado, as the Court is again now, of applying to itself this rigorous test to an unsubstantiated publication imputing corruption to a member of this Court. The eloquent words of Chief Justice Puno explaining why a step towards such a direction serves the cause of press freedom and good government remain true today as they did then:
[I]t is not every falsehood that should incur the Court's ire, lest it runs out of righteous indignation. Indeed, gross falsehoods, vicious lies, and prevarications of paid hacks cannot deceive the public any more than can they cause this Court to crumble. If we adopt the dangerous rule that we should curtail speech to stop every falsehood we might as well abolish freedom of speech for there is yet to come a man whose tongue tells only the truth. In any event, we should take comfort in the thought that falsehoods cannot destroy -- only truth does but only to set us free.Accordingly, I vote NOT to hold Macasaet in contempt of court.x x x x
[T]he columns of respondent dealt with the sensitive subject of corruption in courts. It cannot be gainsaid that corruption in government is a matter of highest concern to our citizenry. Yet it is a problem that defies solution primarily because it is a subject where people in the know maintain the countenance of a claim. Thus, the prosecution of corruption in government has not hit a high note and that what now appears as the most effective restraint against corruption in government is the fear of the light of print. If the light of print continues to be a strong deterrent against government misdeeds, it is mainly because newsmen have an unimpeded access to information. On many an occasion, these confidential sources of information are the only leads to government malfeasance. To fashion a rule derogatory of the confidentiality of newsmen's sources will result in tremendous loss in the flow of this rare and valuable information to the press and will prejudice the State's policy to eliminate corruption in government. In the absence of clear and convincing evidence that respondent knowingly foisted a falsehood to degrade our administration of justice, we should be slow in citing him for contempt. The New York Times rule correctly warned us that occasional erroneous statements are "inevitable in free debate . . . and must be protected if the freedoms of expression are to have the 'breathing space' that they 'need, to survive.'"x x x x
[T]he abuses of some newsmen cannot justify an overarching rule eroding the freedom of all of them. Indeed, the framers of the Constitution knew that these abuses will be committed by some newsmen but still, they explicitly crafted section 4, Article III of the Constitution to read: "[No law shall be passed abridging the freedom of speech, of expression, or of the press . . . " Madison stressed that "some degree of abuse is inseparable from the proper use of everything, and in no instance is this more true than in that of the press." There is an appropriate remedy against abusive newsmen. I submit, however, that the remedy is not to be too quick in wielding the power of contempt for that will certainly chain the hands of many newsmen. Abusive newsmen are bad but laundered news is worse.
x x x x
[T]he Constitution did not conceive the press to act as the cheer leader of government, including the judiciary. Rather, the press is the agent of the people when it gathers news, especially news derogatory to those who hold the reins of government. The agency is necessary because the people must have all available information before they exercise their sovereign judgment. As well observed: "The newspapers, magazines, and other journals of the country, it is safe to say, have shed and continue to shed, more light on the public and business affairs of the nation than any other instrument of publicity; and since informed public opinion is the most potent of all restraints upon misgovernment, the suppression or abridgement of the publicity afforded by a free press cannot be regarded otherwise than with grave concern." As agent of the people, the most important function of the press in a free society is to inform and it cannot inform if it is uninformed. We should be wary when the independent sources of information of the press dry up, for then the press will end up printing "praise" releases and that is no way for the people to know the truth.[67] (Emphasis supplied)
(Sgd.) ANTONIO T. CARPIO
Associate Justice
Associate Justice
[1] Initiated by the Court motu proprio under Section 3(d), Rule 71 of the 1997 Rules of Civil Procedure.
[2] Macasaet's column of 18 September 2007 stated that the bribery took place a "week" before 18 September 2007. Macasaet later changed the date to coincide with the "acquittal" of a Chinese-Filipino litigant (subsequently identified as Henry Go in G.R. No. 172602 whose motion for reconsideration of the dismissal of his petition was granted on 3 September 2007). When he testified during the investigation of this case, Macasaet again changed the date of the pay-off, this time to cover the period November 2006 - 15 March 2007.
[3] Macasaet's column of 18 September 2007 mentioned only a single box.
[4] The relevant comments are: "the gift gives proof to the pernicious rumor that the courts are dirty" (18 September 2007 issue); "[t]he court is like a basket of apples. There are a few which are rotten[;] [t]hat makes the whole basket rotten" (18 September 2007 issue); "[t]he names and reputations of highly-respected jurists must be saved from suspicions they are thieves" (18 September 2007 issue); "[t]he lady justice shamed her court. She should resign or be impeached" (19 September 2007 issue); Cecilia has "a duty to save the sagging reputation of the Supreme Court" (20 September 2007 issue); and the resignation or impeachment of the justice involved "is the only way the soiled reputation of the Highest Court could be restored" (20 September 2007 issue).
[5] www.newsbreak.com.ph
[6] The Newsbreak story mentioned only a "gift-wrapped box" containing cash "estimated" at P10 million.
[7] Also referred to in other parts of the records as Daisy Cecilia Muñoz Delis.
[8] The Resolution reads in full:
Upon evaluation of the columns "Business Circuit" of Amado P. Macasaet in the September 18, 19, 20, and 21, 2007 issues of the Malaya, it appears that x x x certain statements and innuendos therein tend, directly or indirectly, to impede, obstruct, or degrade the administration of justice, within the purview of Section 3(d), Rule 71 of the 1997 Rules of Civil Procedure.
WHEREFORE, Amado P. Macasaet is ORDERED TO EXPLAIN why no sanction should be impose[d] on him for indirect contempt of court in accordance with Section 3(d), (Rule 71) of the 1997 Rules of Civil Procedure, within five (5) days from receipt hereof.
[9] Justice Carolina Griño-Aquino, as Chairperson, with Justices Vicente V. Mendoza and Romeo Callejo, Sr. as members. However, Justices Mendoza and Callejo recused themselves from the Committee and were replaced by Justices Jose C. Vitug (ret.) and Arturo Buena (ret.), respectively. Justice Buena also recused himself from the Committee and was replaced by Justice Justo Torres (ret.).
[10] Danilo Pablo, Judicial Staff Officer, Security Division; Araceli Bayuga, Cashier; and Midas P. Marquez, Public Information Officer and Chief of Staff, Office of the Chief Justice.
[11] In its report, Newsbreak also mentioned a second case involving a "341-hectare prime property in Quezon City."
[12] Justices Alicia Austria-Martinez and Minita Chico-Nazario concurred in the ruling. Justice Santiago, joined by Justice Antonio Eduardo Nachura, filed a dissenting opinion,
[13] Justices Adolfo Azcuna and Cancio Garcia concurred in the ruling. Justice Alicia Austria-Martinez, joined by Justice Minita Chico-Nazario, filed a dissenting opinion.
[14] The Report states (pp. 16-18):
The following inconsistencies and assumptions of Macasaet prove that the alleged bribery story lacks veracity:
1. For instance, he said that he could not get confirmation of the bribery story given to him by his source. Later, he said that his sources "told me they had personal knowledge" but would not reveal the name of the Lady Justice (65 tsn Jan. 10, 2008).
2. His allegation that the Lady Justice (later identified as Justice Santiago) did not report for work "last week", i.e., the week before his first columns came out on September 18, 2007, was refuted by the Court's Public Information Officer (PIO) Atty. Midas Marquez, who testified that no Lady Justice was absent that week.
3. The date when the gift-wrapped box of money was allegedly opened by Cecilia is also uncertain because of Macasaet's conflicting allegations about it. Macasaet's first column of September 18, 2007, stated that it happened "last week", i.e., sometime in the week of September 10-14, 2007.
The next day, September 19, 2007, he however wrote in his column that "the five boxes (not one) of money were delivered on the day (September 3, 2007) when the Lady Justice, acting as ponente, acquitted" the accused Henry T. Go.
But again, because his story about Cecilia's role in the discovery of the bribery in September 2007, was contradicted by the record of Cecilia's resignation from the Court on March 15, 2007 (Annexes "D" and "D-1", Cecilia Delis' Letter of Resignation & Clearance), Macasaet, after consulting his "source" again, changed his story when he testified on January 17, 2008. He said that, according to his source, the boxes of money were delivered, not any one time in September 2007, but on different dates in November 2006 up to March 2007, "before Cecilia resigned or was fired from the office of Justice Santiago." (5-6 tsn Jan. 17, 2008)
That allegation is, however, refuted by the logbooks of the Security Services for the period of November 2006 to March 2007 which contain no record of the alleged deliveries of boxes of money to the office of Justice Santiago. Danilo Pablo, head of the February 1, 2008, he denied that said he that, --"I never said carnation boxes; I said milk boxes that should make a lot of difference." (84 tsn Feb. 1, 2008).
Court's Security Services affirmed that in his [sic] ten (10) years of service in the Court he has not received any report of boxes of money being delivered to any of the Justices. (45-46 tsn Jan. 22, 2008)
[4.] Which of the five (5) boxes was opened and yielded money? In his column of September 21, 2007, Macasaet alleged that Cecilia picked up the five boxes of money "several times in March" ("not last week as I mistakenly reported"), and "she never opened the first four boxes.... she opened the last and saw the money because the Lady Justice was absent on that day."
But when he testified before the Committee on January 10, 2008, Macasaet alleged that it was "the first one that was opened" according to his source (71, 89, 92, 125 tsn Jan. 10, 2008)
Contradicting his published story that five (5) boxes of money were delivered "on the day" the Lady Justice acquitted Henry Go, Macasaet testified at the investigation that they were delivered "on different occasions according to my source" (70 tsn Jan. 10, 2008)
But no sooner had he attributed that information "to my source" than he admitted that it was only "my own conclusion x x x I assumed that the giver of the money is not so stupid as to have them delivered all in one trip. As a matter of fact I even wondered why said boxes were not delivered in the home of the Lady Justice." (72 tsn Jan. 10, 2008).
[5.] The amount of the bribe is also questionable. For while in his own column of September 18, 2007 Macasaet stated that the gift was "estimated at Php 10 million", he later testified on January 10, 2008, that "the amount was my own calculation because I talked to people, I said this kind of box how much money in One Thousand Pesos bills can it hold, he told me it is ten (million). So that was a calculation" (77 tsn Jan. 10, 2008).
He also merely "assumed that the money was in one thousand peso bills (78 tsn Jan. 10, 2008). No one really knows their denomination.
He said he was told that the size of the box where the money was placed was "this milk called carnation in carton." x x x But in the final hearing on February 1, 2008 he denied [such and stated] "I never said carnation boxes. I said milk boxes[.] [T]hat should make a lot of difference" (84 tsn Feb. 1, 2008).
[6.] Since only one gift-wrapped box of money was opened, Macasaet admitted that he has "no knowledge" of whether the four (4) other boxes were also opened, when and where they were opened, and by whom they were opened (90 tsn Jan. 10, 2008). Therefore, no one knows whether they also contained money.
That the five (5) boxes contained a total of ten million pesos, is just another assumption of Macasaet's. "It is a conclusion based on estimates obtained from friends and how much five boxes can hold in one thousand peso bills, more or less ten million," he explained (91 tsn Jan. 10, 2008). (Emphasis in the original)
[15] The Report states (p. 18):
In view of its tenuous underpinnings, we find the bribery story in Macasaet's columns of September 18-21, 2007, and in Ms. Vitug's Newsbreak issue of September 25, 2007, unbelievable. Why should five boxes supposedly containing a total of Php 10 million as bribe money be delivered to the office of a Lady Justice in the Supreme Court, where it would have to pass examination by the security guards and quizzical eyes of her own employees? Why not to her home? Or at some agreed meeting place outside the Court and her home? Or why not quietly deposit it in her bank account? And why was she absent from her office on the day of the presumably agreed date for the payment of the bribe? If the bribe was for dismissing the information against Henry Go in the Sandiganbayan, why was it paid prematurely in November 2006-March 2007 when the case of Henry Go was still up in the air and in fact was decided against him on April 13, 2007? The favorable resolution on his motion for reconsideration, penned by Justice Santiago, was promulgated on September 3, 2007, almost one year after the pay-off, if there was such a pay-off? (Emphasis in the original)
[16] The Report states (p. 20):
If he had no malice toward the Court, if, as he professes, the purpose of his columns was to save the integrity and honor of the Court, Macasaet should, and could, have reported the rumored bribery directly to the Chief Justice and asked for its investigation. He should have refrained from calling the Court names, before giving it a chance to act on his report and on his suggestion to investigate the matter. Since he knew the name of the Court employee who allegedly discovered the bribe money, the Court could have begun its investigation with her to ascertain the identity of the nameless Lady Justice and the veracity of the rumored bribery. His disparaging remarks about the Court and jurists in conjunction with his unverified report on the alleged bribery were totally uncalled for and unjustified.
[17] The Report states (p. 15):
The Committee observed that Macasaet's tory about the bribery and of Cecilia's role in supposedly discovering it, is full of holes, inconsistencies, and contradictions, indicating that he did not exercise due diligence, patience, and care in checking the veracity of the information fed to him, before giving it publicity in his columns. Nor was he bothered by the damage that his columns would inflict on the reputation of a member of the Highest Court and on the Court itself. In fact, he was "happy" that he wrote the columns (103 tsn Jan. 10, 2008). Even if he failed to get confirmation of the bribery," one day sooner or later, somebody would come up and admit or deny it. He did not care that he smeared the whole judiciary to fish her out, because "after she is fished out, the suspicion on the rest would be removed". (29-30 tsn Jan. 10, 2008).
[18] As distinguished from "civil contempt," criminal contempt is an act obstructing the administration of justice which tends to bring the court into disrepute or disrespect; it is also an offense against organized society and public. Civil contempt, on the other hand, consists in failing to do something ordered by the court in a civil action for the benefit of the opposing party (People v. Godoy, 312 Phil. 977 [1995]).
[19] Sec. 3. Indirect contempt to be punished after charge and hearing. - After a charge in writing has been filed and an opportunity to respondent to comment thereon within such period as may be fixed by the court and to be heard by himself or counsel, a person guilty of any of the following acts may be punished for indirect contempt:
x x x x
(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice.
[20] Article 210, Revised Penal Code.
[21] Section 3, Article XI, Constitution.
[22] Section 2, Article XI, Constitution.
[23] In her statement dated 24 September 2007, Justice Santiago adverted to "a big land dispute in Quezon City" as the possible reason for the bribery reports. See also note 11.
[24] The Committee chair, Justice Griño-Aquino, stated during the Committee's first hearing on 7 January 2008 (TSN, 7 January 2008, pp. 29-30):
It is clear from the Resolution of the Court that our task is fact finding[. W]e would like, the Court is interested to know the facts supporting what it refers to as the innuendos which are derogatory and degrading to the reputation of the Court itself, x x x. So, that is why the Supreme Court is interested to know the facts x x x.
Although in the hearing of 7 January 2008, Committee member Justice Vitug stated that "the Committee x x x would not be in a position to make any pre-judgment x x x on the scope of its authority but x x x shall act in accordance with what it believes to be the mandate of the Court" (TSN, 7 January 2008, p. 28), he later stated in the subsequent hearing of 24 January 2008 that "we are here only to make some findings and that's it x x x" (TSN, 24 January 2008, p. 90).
[25] See Soriano v. Court of Appeals (G.R. No. 128938, 4 June 2004, 431 SCRA 1, 7-8) where we held that "[t]he modes of procedure and rules of evidence adopted in contempt proceedings are similar in nature to those used in criminal proceedings."
[26] Atty. Fulgencio Factoran.
[27] Atty. Ricardo Pamintuan.
[28] TSN, 7 January 2008, pp. 15, 27. The counsel for Macasaet did not make any manifestation.
[29] For publications by journalists, see In re Lozano and Quevedo, 54 Phil. 801 (1930); In re Abistado, 57 Phil. 669 (1932); In Re Brillantes, 42 O.G. 59 (1945); Murillo v. Superable, 107 Phil. 322 (1960); People v. Castelo, No. L-11816, 23 April 1962, 4 SCRA 947. For publications of letters written, or interviews given, by citizens, see In re Kelly, 35 Phil. 944 (1916); People v. Alarcon, 69 Phil. 265 (1939); In re Sotto, 82 Phil. 595 (1949); Zaldivar v. Gonzalez, Nos. L-79690-707, 7 October 1988, 166 SCRA 316.
[30] The first is In Re: Emil P. Jurado, 313 Phil. 119 (1995).
[31] Id.
[32] While Jurado also mentioned other "postulates" to resolve the contempt charge in that case (namely, whether the publication is violative of the Philippine Journalist Code of Ethics and offensive to the dignity and reputation of a Court or a judge presiding over it), the Report made no mention of these "postulates." However, the Report did refer to Newsbreak's Guide to Ethical Journalistic Conduct which Macasaet allegedly "violated" for making several false assumptions.
[33] 102 Phil. 152, 161-164 (1957).
[34] See Cabansag v. Fernandez supra note 33 and People v. Godoy, 312 Phil. 977 (1995). This is also the prevailing test in the U.S. jurisdiction in contempt-by-publication cases (see Pennekamp v. State of Florida, 328 U.S. 331 [1946]; Craig v. Harney, 331 U.S. 367 [1947]; Bridges v. California, 314 U.S. 252 [1941]). For a discussion on the evolution of this test in that jurisdiction as used in contempt-by-publication cases, see Turkington v. Municipal Court, 85 Cal. App.2d 631, 193 P.2d 795 (1948). In this jurisdiction, the test has likewise been used to determine the constitutionality of regulations and official pronouncements amounting to censorship (e.g. Iglesia ni Cristo (INC) v. Court of Appeals, G.R. No. 119673, 26 July 1996, 259 SCRA 529; Chavez v. Gonzalez, G.R. No. 168338, 15 February 2008). As used in First Amendment cases in the U.S. jurisdiction, this test has been refined under the Brandenburg standard in Brandenburg v. Ohio, 395 U.S. 444 (1969) (see separate and concurring Opinion, Carpio, J. in Chavez v. Gonzales, G.R. No. 168338, 15 February 2008).
[35] Bridges v. California, 314 U.S. 252, 271 (1941).
[36] Majority Opinion, p. 39.
[37] See note 4.
[38] A term, made popular by a former Chief Executive, which has gained currency in public discourse on corruption in the judiciary.
[39] Significantly, in her statement dated 24 September 2007, Justice Santiago reserved "her right to file the appropriate criminal charges."
[40] Report, p. 19.
[41] In Re: Emil P. Jurado supra note 30.
[42] 40 A.L.R.3d 1204.
[43] See Pennekamp v. State of Florida, 328 U.S. 331 (1946); Craig v. Harney, 331 U.S. 367 (1947); Bridges v. California, 314 U.S. 252 (1941).
[44] Bridges v. California, 314 U.S. 252, 263 (1941).
[45] See Cabansag v. Fernandez supra note 33; People v. Godoy, 312 Phil. 977 (1995).
[46] Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills, No. L-31195, 5 June 1973, 51 SCRA 189 (1973). For an extensive discussion of the vital role of free expression in a democratic society, see Chavez v. Gonzalez, G.R. No. 168338, 15 February 2008, Carpio, J., concurring.
[47] Such as the presumption of innocence and the requirement of proof beyond reasonable doubt (People v. Godoy, 312 Phil. 977 [1995]).
[48] People v. Godoy, 312 Phil. 977 (1995).
[49] The Report states (p. 19):
Macasaet's diatribes against the Court generates public distrust in the administration of justice by the Supreme Court, instead of promoting respect for its integrity and honor. They derogate his avowal of "highest respect for this Court" (100 tsn Jan. 10, 2008); his declaration that he has "always upheld the majesty of the law as interpreted by the Court" (96 tsn Jan. 10, 2008); that his opinion of the Court has actually been "elevated ten miles up" because of its decisions in the cases involving Proclamation No. 1017, the CPR, EO 464, and the People's Initiative (97 tsn Jan. 10, 2008); that he has "done everything to preserve the integrity and majesty of the Court and its jurists" (84-85 tsn Feb. 1, 2008); that he wants "the integrity of the Court preserved because this is the last bastion of democracy" (32 tsn Jan. 10, 2008).
These tongue-in-cheek protestations do not repair or erase the damage and injury that his contemptuous remarks about the Court and the Justices have wrought upon the institutional integrity, dignity, and honor of the Supreme Court. As a matter of fact nowhere in his columns do we find a single word of respect for the Court or the integrity and honor of the Court. On the contrary, what we find are allegations of "pernicious rumor that the courts are dirty", suspicious that the jurists are "thieves"; that the Highest Court has a "soiled reputation", and that the Supreme Court has a "sagging reputation". (Emphasis supplied)
This finding loses sight of the import of Newsbreak's publication which, while substantially echoing Macasaet's, was indisputably based on information gathered from its own independent sources.
[50] Just as this Court should not tell Macasaet on what proper course of action to take vis-a-vis the confidential information he received or worse, categorize his decision to print the story as proof of malice as the Report does (Report, p. 20). To do so is to come dangerously close to telling journalists how to do their work, a function this Court is least qualified to undertake outside of its adjudicatory role.
[51] In Re: Emil P. Jurado supra note 30 at 367, Puno, J., dissenting.
[52] See New York Times v. Sullivan, 376 U.S. 254, 269 (1964).
[53] Pennekamp v. State of Florida, 328 U.S. 331 (1946). The rule is stated thus: "If a person, by false charges against a court, does directly interfere with the administration of justice he may be punished for a constructive contempt, and the constitutional guarantee will not protect him. But before he can be so punished the false charges must be of such a nature that they not only have a `reasonable tendency' to obstruct justice, but also must constitute `a clear and present danger' to the administration of justice. Intemperate language, false charges, and unfair criticism, no matter how strongly expressed, may be in bad taste, but they do not constitute a constructive contempt unless there is an immediate, clear and present danger imperiling the administration of justice." (Turkington v. Municipal Court, 193 P.2d 795, 802 [1948]; emphasis supplied). Of course, it does not follow that erring journalists and their publishers should not earn the public's ire for sloppy journalistic work. As a jurist in another jurisdiction well observed:
One can have no respect for a newspaper which is careless with facts and with insinuations founded in its carelessness. Such a disregard for the truth not only flouts standards of journalistic activity observed too often by breach, but in fact tends to bring the courts and those who administer them into undeserved public obloquy.
But if every newspaper which prints critical comment about courts without justifiable basis in fact, or withholds the full truth in reporting their proceedings or decisions, or goes even further and misstates what they have done, were subject on these accounts to punishment for contempt, there would be few not frequently involved in such proceedings. There is perhaps no area of news more inaccurately reported factually, on the whole, though with some notable exceptions, than legal news.
x x x x
Courts and judges therefore cannot be put altogether beyond the reach of misrepresentation and misstatement. x x x The question, and the standard, must be one of degree and effects. It cannot be placed at mere falsity, either in representation or in judgment. The statement, whether of fact or of opinion, must be of such a character, whether true or false, as to obstruct in some clear and substantial way the functioning of the judicial process in pending matters. It is not enough that the judge's sensibilities are affected or that in some way he is brought generally into obloquy. After all, it is to be remembered that it is judges who apply the law of contempt, and the offender is their critic. (Pennekamp v. State of Florida, 328 U.S. 331, 370-372 (1946), Rutledge, J., concurring; citations omitted).
But if every newspaper which prints critical comment about courts without justifiable basis in fact, or withholds the full truth in reporting their proceedings or decisions, or goes even further and misstates what they have done, were subject on these accounts to punishment for contempt, there would be few not frequently involved in such proceedings. There is perhaps no area of news more inaccurately reported factually, on the whole, though with some notable exceptions, than legal news.
x x x x
Courts and judges therefore cannot be put altogether beyond the reach of misrepresentation and misstatement. x x x The question, and the standard, must be one of degree and effects. It cannot be placed at mere falsity, either in representation or in judgment. The statement, whether of fact or of opinion, must be of such a character, whether true or false, as to obstruct in some clear and substantial way the functioning of the judicial process in pending matters. It is not enough that the judge's sensibilities are affected or that in some way he is brought generally into obloquy. After all, it is to be remembered that it is judges who apply the law of contempt, and the offender is their critic. (Pennekamp v. State of Florida, 328 U.S. 331, 370-372 (1946), Rutledge, J., concurring; citations omitted).
[54] As held in New York Times v. Sullivan (376 U.S. 254 [1964]), the actual malice standard is met upon proof of knowledge that the publication was false or with reckless disregard of whether the publication was false or not.
[55] In Re: Emil P. Jurado supra note 30 at 362-365. The ponencia sought to blunt the impact of Chief Justice Puno's observation by differentiating Jurado from this case, thus (Majority Opinion, p. 43):
"The critical issues [in Jurado] were the right of newsmen to refuse subpoenas, summons, or 'invitations' to appear in administrative investigations, and not to reveal their confidential sources of information under R.A. No. 53, as amended. None of these are the issues at hand."
A perfunctory scanning of Jurado reveals exactly the opposite and that, as in this case, the newsman in Jurado was cited for contempt for publishing false stories the veracity of which he failed to confirm, thus (id, note 30 at 188-189):
The Actual Issue
The issue therefore had nothing to do with any failure of Jurado's to obey a subpoena, none ever having been issued to him, and the Ad Hoc Committee having foreborne to take any action at all as regards his failure to accept its invitations. The issue, as set out in the opening sentence of this opinion, essentially concerns "(l)iability for published statements demonstrably false or misleading, and derogatory of the courts and individual judges."
Jurado is not being called to account for declining to identify the sources of his news stories, or for refusing to appear and give testimony before the Ad Hoc Committee. He is not being compelled to guarantee the truth of what he publishes, but to exercise honest and reasonable efforts to determine the truth of defamatory statements before publishing them. He is being meted the punishment appropriate to the publication of stories shown to be false and defamatory of the judiciary -- stories that he made no effort whatsoever to verify and which, after being denounced as lies, he has refused, or is unable, to substantiate. (Emphasis supplied)
[56] 35 Phil. 944 (1916)
[57] 82 Phil. 595 (1949
[58] The ponencia dwelt at length on the cases of In Re Laureta (G.R. No. 68635, 12 March 1987, 148 SCRA 382) and Roxas v. Zuazuarregui (G.R. No. 152072, 12 July 2007, 527 SCRA 446) where we cited in contempt of court parties and their counsel for writing letters to members of this Court tending to impair and degrade the administration of justice. These cases are not controlling as none of the respondents was a journalist who was sought to be punished for authoring publications critical of the Court.
[59] 312 Phil. 977, 997 (1995).
[60] Vasquez v. Court of Appeals, 373 Phil. 238 (1999).
[61] Flor v. People, G.R. No. 139987, 31 March 2005, 454 SCRA 440.
[62] "A civil engineer, businessman, business consultant and journalist" (Borjal v. Court of Appeals, 361 Phil. 1 [1999]) and a "broadcast journalist" (Guinguing v. Court of Appeals, G.R. No. 128959, 30 September 2005, 471 SCRA 196).
[63] See Bridges v. California, 314 U.S. 252, 271, 289 (1941), Frankfurter, J., dissenting.
[64] Id. at 292.
[65] A ruling well elucidates the interdependence between the press and the judiciary: "The freedom of the press in itself presupposes an independent judiciary through which that freedom may, if necessary, be vindicated. And one of the potent means for assuring judges their independence is a free press." (Pennekamp v. State of Florida, 328 U.S. 331, 335 [1946], Frankfurter, J., concurring; emphasis supplied).
[66] As distinguished from vindictive. The contempt power ought not to be utilized for the purpose of merely satisfying what is admittedly a natural inclination to strike back at a party who had shown less than full respect for the dignity of the Court (Royeca v. Animas, 162 Phil. 851, 858 (1976).
[67] In Re: Emil P. Jurado supra note 30 at 366-368.