Republic of the Philippines
SUPREME COURT
Manila

EN BANC

A.M. No. 07-09-13-SC             August 8, 2008

RE: IN THE MATTER OF THE ALLEGATIONS CONTAINED IN THE COLUMNS OF MR. AMADO A.P. MACASAET PUBLISHED IN MALAYA DATED SEPTEMBER 18, 19, 20, AND 21, 2007

DISSENTING OPINION

CARPIO, J.:

The Case

This resolves a contempt charge1 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 five3 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 "Ceciliaís" employment. The payoff was made allegedly in connection with a decision rendered by the Justice "acquitting" a Filipino-Chinese businessman. Macasaetís 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 website5 a news report that the Court is investigating a bribery incident based on facts substantially similar6 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 employees10 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 Courtís Security Division testified that while visitors to the Court are listed in the logbook at the Courtís 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 Newsbreakís11 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 Sandiganbayanís 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 Goís 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) Macasaetís publications were false, baseless,14 unbelievable,15 and malicious16 and (2) Macasaet was negligent in failing to ascertain the veracity of his story.17 The Committee concluded that Macasaetís publications generated public distrust in the administration of justice and thus, contumacious. The majority finds the Reportís 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 majorityís 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 Macasaetís liability for criminal contempt18 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 Macasaetís 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 Congress21 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 Macasaetís 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, Macasaetís 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 partiesí 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 staff26 and Delis27 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

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 Ė 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. Jurado31 (Jurado test), against which Macasaetís publications were measured: (1) whether Macasaetís 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 Macasaetís 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.

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 x

x 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.)

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 Macasaetís publications extremely serious? and (2) is the degree of its imminence extremely high? The facts of this case do not meet either criterion.

Although the majority, in adopting the Reportís findings, did not expressly so state, it appears that the substantive evil allegedly brought about by Macasaetís 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 Courtís reputation ("sagging" and "soiled"), the state of the courts ("dirty"), and the publicís 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 Delisí 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 Macasaetís 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 Courtís 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 Macasaetís 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 accused47 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 Ė 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 Punoís 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.

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)

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 Sotto57 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:

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 Reportís 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 preservative66 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 Courtís 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 ó only truth does but only to set us free.

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)

Accordingly, I vote NOT to hold Macasaet in contempt of court.

ANTONIO T. CARPIO
Associate Justice


Footnotes

1 Initiated by the Court motu proprio under Section 3(d), Rule 71 of the 1997 Rules of Civil Procedure.

2 Macasaetís 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 Macasaetís 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 Courtís 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 Macasaetís conflicting allegations about it. Macasaetís 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 Ceciliaís 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 Delisí 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).

Courtís 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 Macasaetís. "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 Macasaetís columns of September 18-21, 2007, and in Ms. Vitugís 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 Macasaetís tory about the bribery and of Ceciliaís 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. Ė 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 Committeeís 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 thatís 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 Newsbreakís 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 Newsbreakís publication which, while substantially echoing Macasaetís, 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 Ďreasonable tendencyí to obstruct justice, but also must constitute Ďa clear and present dangerí 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 publicís 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 judgeís 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 ó 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.


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