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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 by: CARPIO, J.
The Case:
This resolves a CONTEMPT CHARGE against respondent Amado A.P. Macasaet, a newspaper
columnist, for AUTHORING PUBLICATIONS IMPUTING BRIBERY TO A MEMBER OF
THIS COURT
Facts:
Macasaet writes a daily column, “Business Circuit” in Malaya, a newspaper of general
circulation. In September 18-21, 2007 issues, Macasaet ran a story based on information from
confidential sources, of an alleged bribery in the Court committed as follows: on separate
occasions in the 2nd week of September 2007, five boxes containing cash worth P10 million were
delivered to the court and receive by “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 because of the 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, 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 a news report based on the
facts substantially similar to what Macasaet wrote. Written by Marites Danguilan Vitug,
Newsbreak editor, and Aries 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 as her staff whose employment she terminated.
September 24, 2007 – Justice Santiage denied the acccusations and insinuations and demanded
an investigagtion
September 25, 2007 – The Court en banc required Macasaet to explain “why no sanction should
be imposed on him for indirect contempt of court under Section 3(d), Rule 71 of the 1997 Rules
of Civil Procedure.
October 16, 2007 – Macasaet submitted his compliance and Delis her affidavit. After then, the
Court created a committee composed of former members of the Curt to “receive evidence from
all parties concerned”
• Macasaet, Vitug and Rufo uniformly testified that they obtained information from their
respective confidential sources
• Delis denied having receiverd or opened any box containing cash intended for Justice
Santiago. She admitted that she was a staff of the said Justice but later denied that she
was fired, instead she resigned effective in March 15, 2007.
• Danilo Pablo, Court’s Security Division testified that they only list visitors in the logbook
of the Court’s gate but they do not open gifts or boxes intended for members of the Court
as a matter of policy.
The case referred by the Committee during the hearings is G.R. No. 172602 (Henry T. Go v. The
Fifth Divisio, Sandiganbayan). The petition in this case sought the nullification of the
Sandiganbayan’s ruling denying quashal of the information filed against petitioner Henry T. Go
for violation of Section 3(g), Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act).
• In this case, the decision dated 13 April 2007, Justice Romeo J. Callejo, Sr., the Third
Division, by a divided vote, dismissed the petition.
• Go sought reconsideration and while his motion is pending, Justice Callejo retired from
the court.
• Dated 3 Spetember 2007, Justice Santiago, a Special Third Division took the petition and
by a divided vote, granted Go’s petition, reversed the Decision dated 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, the Committee found that there exist
valid grounds to cite Macasaet for indirect contempt because:
1. Macasaet’s publications were false, baseless, unbelievable and malicious
2. Macasaet was negligent in falling to ascertain the veracity of his story
Therefore, Macasaet’s publications generated public distrust in the administration of justice, thus
contumacious. The majority finds the Report’s findings and conclusion well-taken and imposes a
punitive fine on Macasaet
Carpio agreed that Macasaet failed to substantiate his story but disagreed that this suffices to
hold Macasaet guilty of contempt of court
Preliminary Observations
On the Nature of this proceeding
• This proceeding is to determine Macasaet’s liability for criminal contempt under Section
3(d) Rule 71 of the 1997 Rules of Civil Procedure. The scope then, is narrow and its
purpose is specific: to determine, using applicable standards, whether Macasaet’s
publications tend to impede, obstruct or degrade the administration of justice
• The larger determination of bribery is not the issue here
On Whether this case should be decided by the Court en banc or by the Special Third
Division in G.R. No. 172602
• As this was an incident to G.R. No. 172602, it is deemed proper and logical that the
Special Third Division should decide in this case
The Committee Proceedings were fatally defective
• The Committee dated 16 October 2007 was granted by a resolution with a mere “fact-
finding powers”. Accordingly, when the witnesses were summoned by the Committee to
testify, 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.
• 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 punitive sanctions based on evidence he had
NO OPPORTUNITY TO SCRUTINIZE
• 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 causing his inability to assert his right to conduct cross-examination
The Applicable Standard in Contempt-by-Publication
• There are two competing but equally vital State interests involved:
1. The right of the journalists to be protected from contempt of court under the
constitutional guarantees of free speech and of the press, on the other hand;
2. The right of the courts to maintain order, impartiality and dignity in the
administration of justice
• In the Report, two parameters were applied based from In Re: Emil P, Jurado (Jurado test
or the falsity and negligence tests). Macasaet’s publications were measured: 1. Whether
his story was false and 2. Whether Macasaet could have prevented the publication of the
false story by exercising diligence in verifying its veracity
• But long before the adoption of the Jurado test, the Court formulated two
“theoretical formulas” to serve as judicial scales upon which competing interests in
this proceeding are weighed
1. Clear and present danger rule – evil consequence of the comment or utterance must
be “extremely serious and the degree of imminence extremely high
2. Dangerous tendency rule – if the words uttered create a dangerous tendency which
the state has a right to prevent, then such words are punishable.
Carpio believed that the Report’s findings against Macasaet’s publications are twofold: (1)
disrespect for the Court and (2) unfair administration of justice.
1. On the question of Disrespect for the court, the Report seemed to have cherry-picked
words that made Macasaet’s publications separated from its context.
2. The statement by Macasaet that the Justice in question “shamed her court” and that she
should resign or be impeached, is a statement not directed to the Court but at one of its
members. So, the remedy for any injury does not lie in the Court’s exercise of contempt
power but in the resort by the Justice concerned to remedies available under our civil and
criminal statutes to vindicate her rights.
3. On the question of unfair administration of justice, neither has it been claimed or
suggested that this matter has or will adversely affect the disposition of the pending
incident in G.R. 172602 as in this case, the government stands to be directly prejudiced
by the alleged bribery. With this backdrop, the Report that Macasaet’s publications
“generated public distrust in the administration of justice and wrought “damage and
injury” to the “institutional integrity, dignity and honor of this Court rings hollow, rooted
on assumptions bereft of factual basis.
The majority’s conclusion in finding Macasaet guilty of contempt was based on their selective
survey of contempt court jurisprudence. Only three cases involved contempt of by publication
proceedings. In Re Kelly, In Re Sotto, and People V. Godoy. The first two were decided long
before we laid down the parameters of the clear and present danger test in that case.
Carpio voted NOT TO HOLD Macasaet in contempt.
(additional insights ni Carpio at Puno na feeling ko mahalaga rin pero yung gist nung case
nasa taas)
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
reports will impair the administration of justice) just as it had long ceased to suffice to hold
journalists liable for libel for criticism of public officials under the actual malice standard.
Because of the expanded protection given to freedom of speech and of the press (New York
Times Co. vs Sullivan and Garrison v. Louisiana), to be entitled to damages, the public official
concerned was imposed a very difficult, if not impossible, burden of proof. He or she must prove
that a defamatory statement should be both false and contain actual malice.
The jurado test compels journalists to guarantee the veracity of what he writes causing a chilling
effect on free speech and free press. This will lead to self-censorship, suppressing 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 the consequences for criminal contempt.
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 pass guarantee indispensable in a democratic society. This Court diminishes
itself if it diminishes the free press guarantee for an independent judiciary needsd a free press as
much as free press needs and independent judiciary.
The clear and present danger rule does not 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 the exist.

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