EN BANC
A.M.
No. 07-09-13-SC – Re: In the Matter of the Allegations Contained in the Columns
of Mr. Amado A.P. Macasaet Published in
Promulgated: August 8, 2008
x-----------------------------------------------------------------------------------------x
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.
The Facts
Macasaet writes a daily
column, “Business Circuit,” in 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
In a Resolution dated
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
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
In its Report and Recommendation dated
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 Committee Proceedings
were Fatally Defective
The Resolution dated
[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
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.
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.
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.
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.
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
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.
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 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:
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.
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
[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 OR
[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 (
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” (
[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]
[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).
[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 S
[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.