The Decano Law Firm - Dagupan City

Distinction between Direct and Indirect Contempt

Contributed by Thursday, 29 July 2010

Land Bank of the Philippines, complainant vs. Judge Ernesto P. Pagayetan, respondent, A.M. No. RTJ 07-089, September 8, 2009 (formerly OCA I.P.I No. 07-2659 RTJ) A.M. No. RTJ 0921-99, September, 2009, [Formerly OCA I.P.I No. 07-2698 RTJ] 598 SCRA 592 Distinction between Direct and Indirect Contempt An Annotation By: Judge Alicia G. Decano (ret.)*

In the above entitled case the respondent was charged by the complainant for gross ignorance of the Law or procedure among others for having: I. xxx II. xxx III. Issued the order dated 9 February 2007 FINDING MS. CAMARA AND MS. TENGCO GUILTY OF INDIRECT CONTEMPT AND DIRECTING THEIR ARREST, WITHOUT ANY HEARING; IV. xxx V. xxx VI. xxx In this connection, the writer centered her annotation on the distinction between Direct and Indirect Contempt and elucidation of the said distinctions by citing some cases. THE LAW: - The provisions of the law give us a better definition of both Direct and Indirect Contempt. Rule 71, Section 1 of the Rules of Court provides: “Section 1. Direct Contempt punished summarily. – a person guilty of misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings before the same, including disrespect toward the court, offensive personalities toward others, or refusal to be sworn _________________________ *Professorial Lecturer IV and Consultant (Law and Political Science Cluster, UST Graduate School) and Dean, College of Law & Law Professor, Pan Pacific University North Philippines (PUNP), Urdaneta City. or to answer as a witness, or to subscribe an affidavit, or deposition when lawfully required to do so, may be summarily adjudged in contempt by such court and punished by a fine not exceeding two thousand pesos or imprisonment not exceeding ten (10) days, or both, if it be a Regional Trial Court or a court of equivalent or higher rank, or by a fine not exceeding two hundred pesos or imprisonment not exceeding one (1) day, or both, if it be a lower court.” “xxx “Section 3. Indirect contempt to be punished after charge and hearing. – After a charge in writing has been filed, and an opportunity given to the respondent to comment thereon within such period as may be fixed by the Court and to be heard by himself or counsel, a person guilty of any of the following acts may be punished for indirect contempt (a) Misbehavior of an officer of a court in the performance of his official duties or in his official transactions; (b) Disobedience of or resistance to a lawful writ, process, order or judgment of a court, including the act of a person who having dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts or induces another to enter into or upon such real property, for the purpose of executing acts of
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ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto; (c) Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt under Section 1 of this Rule; (d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice; (e) Assuming to be an attorney or an officer of a court, and acting as such without authority; (f) Failure to obey a subpoena duly served; (g) The rescue, or attempted rescue, or a person, or property in the custody of an officer by virtue of an order or process of a court held by him. But nothing in this section shall be so construed as to prevent the court from issuing process to bring the respondent into court, or from holding him in custody pending such proceedings.”

As the forms connote, the word “direct” would relate to an act stemming immediately from a source, cause or reason and thus, the rule under the law that it be done in the presence of or so near a court or judge while “indirect” would signify an act done not straight to the point and thus, legally speaking would pertain to acts done out or not in the presence of the court. There must be a charge in writing, a hearing, and the judgment is appealable. (Guerrero vs. Villamor, G.R. No. 82238-42, November 18, 1989, 179 SCRA 355)

REMEDY IN DIRECT CONTEMPT. This is provided for by Section 2 of Rule 71 which states: “The person adjudged in direct contempt by any court may not appeal therefrom, but may avail himself of the remedies of certiorari or prohibition. The execution of the judgment shall be suspended pending resolution of such petition, provided such person files a bond fixed by the court which rendered the judgment and conditioned that he will abide by and perform the judgment should the petition be decided against him.”

MODES OF COMMENCING A PROCEEDING FOR INDIRECT CONTEMPT ARE: (1) An order or other formal charge by the Court requiring the respondent to show cause why he should not be punished for contempt. This procedure applies only where the indirect contempt is committed against a court or judge possessed and clothed with contempt powers; (2) The second procedure is a verified petition charging indirect contempt, with supporting particulars and certified true copies of the necessary documents and prayers. This mode applies if the contemptuous act was committed not against a court nor a judicial officer with authority to punish contemptuous acts. (Nazareno vs. Barnes, 136 SCRA 57 (1985); People vs. Godoy, 243 SCRA 64, (1995) CITED BY Justice Jose Y. Feria ( Ret.) and Maria Concepcion S. Noche, 2001 Edition) p.685

PUNISHMENT FOR INDIRECT CONTEMPT Section 7 of Rule 71 states: “If the respondent is adjudged guilty of indirect contempt committed against a Regional Trial Court or a court of equivalent or higher rank, he may be punished by a fine not exceeding thirty thousand pesos or imprisonment not exceeding six (6) months or both. If he is adjudged guilty of contempt committed against a lower court, he may be punished by a fine not exceeding five thousand pesos or imprisonment not exceeding one (1) month, or both. If the contempt consists in the violation a writ of injunction, temporary restraining order or status quo order, he may also be ordered to make complete restitution to the party injured by such violation of the property involved or such amount as may be alleged and proved. The writ of execution, as in the ordinary civil actions, shall issue for the enforcement of a judgment imposing a fine unless the court otherwise provides.” The fact that an act constituting a contempt is also criminal and constitutes an indictable libel against the judge of the court contemned does not prevent the outraged court from presiding the contempt. The judge may still prosecute for libel either before, during or after the institution of contempt proceedings. The defense of having once been in jeopardy, based on a conviction for the criminal offense, would not lie in bar of the contempt proceedings, on the proposition that a contempt may be an offense against the dignity of the court and, at the some time, an offense against the peace and dignity of the people of the State. (People vs. Godoy, 243 SCRA 64 (1995) cited by Feria & Noche, supra)

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POWER TO PUNISH FOR CONTEMPT DISTINGUISHED FROM POWER TO DISBAR The exercise of one does not exclude the exercise of the other. A contempt proceeding for misbehavior in court is designed to indicate the authority of the court; on the other hand, the object of a disciplinary proceeding is to deal with the fitness of the Court’s officer to continue in that office, to preserve and protect the court and the public from the official ministrations of person unfit or unworthy to hold such office. The principal purpose of the exercise of the power to cite for contempt is to safeguard the functions for the court and should thus be used sparingly on a preservative and not on the vindictive principle. The principal purpose of the exercise of disciplinary authority by the Supreme Court is to assure respect for orders of such court by attorneys who, as much as judges, are responsible for the orderly administration of justice. (ID. At 105-106) cited by Feria and Noche pp 690-691, supra.)

CONTEMPT AGAINST QUASI-JUDICIAL ENTITIES – Section 12 of Rule 71 provides: “Unless otherwise provided by law, this Rule shall apply to contempt committed against persons, entities, bodies or agencies exercising quasi-judicial functions, or shall have suppletory effect to authority granted to them by law to punish for contempt. The Regional Trial Court of the place wherein the contempt has been committed shall have jurisdiction over such charges as may be filed therefor. (n) This is a new provision. To gain a better outlook on the theoretical provisions of the law on contempt, the writter lifted some decided cases by the Supreme Court on the matter (Direct & Indirect Contempt).

RELEVANT CASES IN CONTEMPT 1. In the case of Andres vs. Judge Jose S. Majaducan, RTC, Br. 23, General Santos City, et. al, A.M. No. RTJ 03-1762, December 17, 2008, Formerly OCA I.P.I. No. 02-1422-RTJ) 574 SCRA 169, 180-181 the Supreme Court articulated: “xxx Contempt of Court is a defiance of the authority and dignity of the Court or a judge acting judicially, or such conduct as tends to bring the authority of the Court and the administration of justice into disrepute or disrespect. Here, respondent judge cited complainant in direct contempt of court for filing a complaint (Civil Case No. 7066) based on a quitclaim that his already been declared null and void, instead of having raffled declared the said case, where in he was one of the defendants, to the Court which could properly act on the case. While the power to punish in contempt is inherent in all courts so as to preserve order in judicial proceedings and to uphold due administration of justice, still judges must be slow to punish for direct contempt. This drastic power must be used judiciously and sparingly. A judge should never allow himself to be moved by pride, prejudice, passion, or petitioners in the performance of his duties. The statutory rule is that the power to punish for contempt must be exercised on the preservative, not vindictive principle, and on the corrective and not retaliatory use of punishment. The courts must exercise the power to punish for contempt for purposes that are impersonal because that power is intended as safeguard not for the judges as persons but for the functions that they exercise. (Caes vs. Castigador, G.R. No. 139844, December 15, 2000, 348 SCRA 425, 433) It has time and again been stressed that besides the basic equipment of possessing the requisite learning in the law, a magistrate must exhibit that hallmark judicial temperament of utmost sobriety and self-restraint which are indispensable qualities of every judge. A judge should be the last person to be perceived as a petty tyrant holding imperious sway on his domain. xxx” (Rodriguez v. Bonifacio, A.M. No. RTJ 995-5510, November 6, 2000, 344 SCRA 519, 535) 2. The case of Atty. Ernest A. Tabuyaran III complaint, vs. Judge Fatima Gonzales-Asdal, respondent –A.M. No. RTJ-08-2126, January 20, 2009, Formerly OCA I.P.I. No. 08-2896-RTJ, 576 SCRA 404, 413) explains the meaning of indirect contempt in this wise: “Indirect or constructive contempt is committed outside of the sitting of the court and may include misbehavior of an officer of the court in the performance of his official duties or in his official transactions, disobedience of or resistance to a lawful writ, process, order, judgment or command of a court or injunction granted by a court or a judge, any abuse or any unlawful interference with the process or proceedings of a court not constituting direct contempt, or any improper conduct tending directly or indirectly to impede , obstruct or degrade the administration of justice.” The Supreme Court continued: “The respondent also abused her contempt powers. If at all, complainant was guilty of indirect contempt and not direct contempt… Direct contempt is a contentious act done facie curiae and may be punished summarily at the very moment or at the very instance of the commission of the act contumely.” (Espaol vs. Formoso, G.R. No.
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150949, June 21, 2007, 525 SCRA 216, 225) 3. In the case of Judge Dolores Espaol, Presiding Judge, Regional Trial Court, Branch 90, Dasmarias, Cavite, petitioner, vs. Atty. Benjamin S. Formoso, et. al., G.R. No. 150949, June 21, 2007, 525 SCRA 216, 226, the Highest Court of the land stressed: “xxx We agree with petitioner that the use of falsified and forged documents is a contumacious act. However, it constitutes indirect contempt not direct contempt. Pursuant to the above provision, (Section 3, Rule 71 as cited by the Supreme Court on pages 225-226) such act is an improper conduct which degrades the administration of justice. In Santos v. Court of First Instance of Cebu, Branch VI, we ruled that the imputed use of a falsified document, more so where the falsity of the document is not apparent on its face, merely constitutes indirect contempt, and as such is subject to such defenses as the accused may raise in the proper proceedings. Thus, following Section 3, Rule 71, a contemner may be punished only after a charge in writing has been filed, and an opportunity has been given to the accused to be heard by himself and counsel. Moreover, settled is the rule that a contempt proceeding is not a civil action, but a separate proceeding of a criminal nature in which the court exercises limited jurisdiction. Thus, the modes of procedure and the rules of evidence in contempt proceedings are assimilated as far as practicable to those adapted to criminal prosecutions. Perforce, petitioner judge erred in declaring summarily that respondents are guilty of direct contempt and ordering their incarceration. She should have conducted a hearing with notice to respondents. xxx” 4. The case of Spouses Arleen and Lorna Oliveros, complainants vs. Hon. Dionisio C. Sison, Acting Presiding Judge, Regional Trial Court, Branch 74, Antipolo City, respondent, A.M. No. RTJ-07-2050, October 29, 2008, (Formerly OCA I.P.I No. 07-2563-P) 570 SCRA 148, 153-154, speaks of violations of the rules requiring the Certification against Forum Shopping and failing which, were accordingly held liable for contempt of this Court.” The Supreme Court decreed: “xxx In particular, non-compliance with any of the undertakings in the Certificate against Forum Shopping shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. xxx The act of complainants in not informing the Court of the filing of the case before the CA is no small thing that can be brushed aside simply because this Court has already meted Judge Sison with an appropriate sanction. Respondent’s error does not negate complainant culpability. Those who seek relief from the courts must not be allowed to ignore basic legal rules and abuse court processes in their efforts to vindicate their rights. The deleterious effects of complainants’ act become more apparent in light of this Court’s consistent ruling that disciplinary proceedings and criminal action against a judge are not complimentary or suppletory of, nor a substitute for these judicial remedies, ordinary or extra-ordinary. xxx Parties-litigants abuse court processes by prematurely resorting to administrative disciplinary action, even before the judicial issues involved have been finally resolved. Rules of procedure are required to be followed, except only when, for the most persuasive of reasons, they may be relaxed to relieve the litigant of an injustice not commensurate with the degree of his thoughtlessness in not complying with the procedure described. We find no reason in this case to relax the Rules in complainant’s favor. xxx.” 5. In the matter of the Contempt Orders against Lt. Gen. Jose M. Calimlim and Atty. Domingo A. Doctor, Jr. G.R. No. 141668, August 30, 2008, 562 SCRA 393, 399-402, the Supreme Court ruled: “xxx In contempt proceedings, the prescribed procedure must be followed. Sections 3 and 4 , rule 71 of the Rules of Court provides the procedure to be followed in cases of indirect contempt. First, there must be an order requiring the respondent to show cause why he should not be cited for contempt. Second, the respondent must be given the opportunity to comment on the charge against him. Third, there must be a hearing and the court must investigate the charge and consider respondents answer, finally, only if found guilty will respondent be punished accordingly. In this case, Judge Cruz-Avisado failed to observe the proper procedure in the exercise to punish for indirect contempt xxx However, since the proper procedure for indirect contempt was not followed, Judge Cruz-Avisado’s orders to reprimand Atty. Doctor, Jr. had no legal basis. On the other hand, admonition is not a penalty but merely a warning. Judge Cruz-Avisado may admonish Lt. Gen. Calimlim for failure to comply with the RTC’s 4 November 1999 order. Judge Cruz-Avisado may make such admonition even in the absence of contempt proceedings.

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