TRANQUILINO O. CALO, JR., AND RODRIGO LIBARNES, PETITIONERS, VS. JUDGE LAURO TAPUCAR AS DISTRICT JUDGE OF THE COURT OF FIRST INSTANCE OF AGUSAN DEL NORTE AND BUTUAN CITY (BRANCH…

The sense of grievance felt by petitioner Tranquilino
O. Calo, Jr. arose from an order dated January 31, 1977 of respondent Judge
which would preclude him as counsel for his co-petitioner, plaintiff in a
pending civil case, to present his rebuttal evidence on a question of
accounting on the ground that there was a waiver.  In his motion of February 3, 1977, praying that such order be set aside,^[1]
there was this allegation which did not find favor with respondent Judge:  “This is not the kind of administration
of justice that should be made to prevail in this Court.  This is obnoxious to the principles of the
New Society, and abhorrent to the elementary principles of fair play.”^[2]
The result was an order of February 14,
1977, reprimanding petitioner Calo for
resorting to such language.^[3]
Then came a motion for reconsideration filed on March 24, 1977, petitioner Calo
alleging:  “That the plaintiff
merely attacked the order of this Honorable Court because it is unfair, unjust
and unconstitutional.  It is the right of
a person or party litigant to present his evidence.”^[4]
It stated further:  “That the
statement by the plaintiff’s counsel is not worthy of reprimand, censure or
punishment because it is an expression of plaintiff’s right to denounce before
any court of justice any unjust and unfair act being committed against him by
the Presiding Judge so that the Court can correct itself and if the Court
refuses to correct itself, it can be ventilated in the higher courts for proper
action if the same is reversible under our laws.  If the plaintiff went to the press to
denounce the actuations of this Honorable Court or in the public square or by
rumors, then it will be worthy of punishment. 
But when a litigant makes his utterances in a formal pleading in order
to give the Court a chance to correct itself, it is not worthy of any
punishment.  It is an exercise of his
constitutional right to seek redress of grievances in the means provided for by
law.  Any act which is tantamount to
partiality or unfairness is not only ‘obnoxious’ or ‘abhorrent.’ It is
scandalous.  It is not pleasant to be the
victim of unfairness or partiality. 
Anything unpleasant is malodorous. 
Any act that is malodorous cannot be swallowed and therefore abhorrent
to any man’s sense of fairness and justice. 
It shatters the hopes of the citizenry that the courts are the last
bulwark of democracy where the excesses of the executive and legislative
officials can be questioned.  Our charge
of partiality is based on the fact that during the absence of Mrs. Soledad Cagampong-Castro the Court cancelled the hearing of her
cases until her return.  But in the
present case, the Court is blaming the plaintiff for not presenting evidence even
while Mrs. Soledad Cagampong-Castro was in the United
States. 
What is worse is that the motion of Mrs. Castro was to set the case for
hearing.  That is why the plaintiff did
not bother to oppose the same, but instead the Court considered the case
submitted for decision without allowing the plaintiff to present his rebuttal
evidence.”^[5]

Respondent Judge at first did not take offense as shown by his
order of July 8, 1977:  “When this case was called for hearing
this morning to treat the [motion for reconsideration] and opposition thereto, the
Court inquired from the counsel for the plaintiff what matters on rebuttal he
has to present.  Meanwhile, the defendant
has already submitted his memorandum on the accounting of the properties,
subject matter of this case as decided by the Court of Appeals.  The plaintiff has not filed his memorandum on
the accounting because according to him there are matters he will present on
rebuttal on some of the claims of the defendant.  The Court, in the interest of justice, hereby
allows the plaintiff thru counsel to file his memorandum on the accounting,
together with the matters which he considers as his rebuttal evidence on some
of the claims of the defendant, copy of which will be furnished the defendant
thru counsel, who is hereby given the opportunity to comment and/or oppose whatever
matter the defendant may find proper for opposition, after which this incident
shall be deemed submitted for resolution.”^[6]
Petitioner Calo, therefore, could, in his petition,
rightfully assert:  “That when this
motion for reconsideration was heard the respondent judge merely required the
petitioners to file the memorandum and point out the matters which would have
been the subject of rebuttal evidence.  *
* * The matter on the contempt of petitioner Calo was
in effect denied sub silentio.  The respondent Judge did not bother to
raise it during the hearing.”^[7]

It came as a surprise to him, therefore, when in the hearing on October 17, 1977, called without
previous notice, in the civil case where the co-petitioner Libarnes
was plaintiff and private respondent Curato was
defendant, respondent Judge, according to petitioner Calo,
“said that the matter of the contempt proceedings has not yet been
resolved.  Petitioner Calo
manifested that it was denied sub silentio.  but the respondent judge insisted that it
should be discussed.  Petitioner Calo manifested that he had already explained why he should
not be declared in contempt of court. 
The respondent Judge began making statements, and in reply, petitioner Calo said that ‘if this honorable Court believes that the
language used by this representation are contemptuous, then it is up for the
Court to appreciate and rule and all that this representation could do in case
of an adverse order is to seek higher judicial relief.  Then the respondent Judge suddenly shouted
and banged his gavel and said ‘you are hereby declared in contempt of court,
you are suspended from the practice of law.’ Petitioner Calo
merely said:  ‘I believe this is
illegal.’ The Rules of Court prescribes the procedure for suspending a member
of the Integrated Bar.  But the
respondent Judge again shouted:  ‘I have
the authority to suspend you, I will issue the written order later.” All
the cases of petitioner Calo were postponed on the
ground that Atty. Calo was ordered suspended.”^[8]
Notwithstanding an ex parte motion for
reconsideration of such verbal order of suspension, the suspension was not
lifted, respondent Judge stating in his order of October 20, 1977 that
“the matter sought by the movant is connected
with Civil Case No. 368, Rodrigo Libarnes v. Eduardo Curato, and the [sic] cannot be treated independently as it
is not sanctioned by the Rules of Court. 
And so, strike out this pleading from the docket.”^[9] Then came the order of October 24, 1977, the dispositive portion of which reads as follows:  “1. 
Counsel Tranquilino O. Calo,
Jr. is hereby found guilty of direct contempt of this court and ordered
suspended from the practice of law. 
Until further orders of the Supreme Court, such suspension is to take
effect immediately.  2.  Pursuant to Section 9 of Rule 139, let
certified copies of this order be elevated to the Honorable Supreme Court.  3.  The
Clerk of Court is hereby ordered to cancel and/or suspend all scheduled cases
in which afore-mentioned suspended counsel appears as counsel of record, unless
and until the parties to such cases have made proper substitution of
counsel.”^[10]
Hence this petition.

In a resolution of November
11, 1977, respondents were required to comment within ten days from
notice.  Subsequently, on November 24,
there was an urgent ex parte motion for
the issuance of a restraining order by petitioner Calo,
Jr.  Accordingly, on December 7, 1977,
this Court ordered respondent Judge “to immediately suspend, upon notice
hereof, the effects of the impugned verbal order of suspension from the
practice of law of said petitioner, as confirmed in the written order of
October 24, 1977, until further orders of this Court.”^[11]
The comment of respondent Judge, wherein he explained why he acted the way he
did, was submitted on December 22,
1977.  As far as private
respondent Eduardo Curato is concerned, no comment
was forthcoming.  On April 19, 1978, there was filed with this Court
by De Castro and Cagampang Law Offices an appearance
for respondent Curato which was noted in a resolution
of May 10, 1978.  As of the date of this decision, no further
pleading had been filed.

The facts are undisputed. 
It does appear that while petitioner Calo, Jr.
could have been provoked by what he considered an unjust and unfair order,
there was no justification for him to resort to intemperate and highly
derogatory language.  Accordingly, it
cannot be considered an excess of jurisdiction on the part of respondent Judge
to find him in direct contempt of court. 
Nonetheless, under equally well-settled principles, the punishment
appears to be disproportionate to the offense. 
To that extent, the petitioners are entitled to the relief prayed for.

1. There is, in the recent case of Yangson
v. Salandanan,^[12]
the opinion being penned by Justice Aquino, a
reiteration of the authoritative doctrine that “offensive and
disrespectful observation [is] an act of direct contempt or contempt in facie
curiae and could, therefore, be summarily punished without hearing * *
*.”^[13]

In a 1932 decision, Lualhati v. Albert,^[14]
the opinion coming from Justice Malcolm, this Court held that an urgent motion
filed by counsel, where he sought to disqualify a judge to conduct the new
trial of a criminal case where he had previously found the accused guilty on
the ground that “a completely impartial trial to which her constitutional
right entitles her” and to protect her “against the prejudice
necessarily formed by the judge who had presided at the original trial [having
thus] formed in his mind a firm and irrevocable conviction as to her
guilt” could be punished as direct contempt.^[15]
Hence, as noted above, it was within the authority of respondent Judge to find
petitioner Calo, Jr. in direct contempt of court.

2. There was direct contempt committed by petitioner Calo, Jr..  The
punishment of suspension, however, under the circumstances, is characterized by
undue severity.  There is relevance to
this excerpt from People v. Estenzo:^[16]
“It cannot be denied either that unless exercised with restraint and
judiciousness, this power lends itself to manifestations of whim, caprice, and
arbitrariness.  There is a compelling and
exigent need therefore for judges to take the utmost care lest prejudice,
innate or covert hostility to personality of counsel, or previous incidents
lead them to characterize conduct susceptible of innocent explanation as
slights on the dignity of the court.  It
is ever timely to remember how easy it is to overstep the dividing line that
should separate the prosecutor from the judge, when both roles are merged in
the same person.  The infusion of
personal element may go unnoticed.  Even
if such were not the case, objectively viewed, such an impression may be
difficult to avoid by laymen.  That is a
consideration that cannot be overlooked. 
It is important that public confidence in judicial impartiality and
fairness be not impaired.  * * * ‘The power to punish for
contempt,’ as was pointed out by Justice Malcolm in Villavicencio v. Lukban, ‘should be exercised on the preservative and not on
the vindictive principle.  Only
occasionally should the court invoke its inherent power in order to retain that
respect without which the administration of justice must falter or fail.’ The
lower court, it clearly appears, failed to meet such a rigid but commendable
test.”^[17]
The last sentence is quite apropos. 
It does appear clearly that resentment at the epithets hurled against
him in the offending pleadings found its outlet in the penalty of
suspension.  It is true that such an emotional
reaction is a human failing.  It is, however,
the burden and the glory of a man on the bench that he can keep under check the
tendency to retaliate.  Never has the
constitutional concept of a public office being a public trust,^[18]
and not the vehicle for giving vent to one’s injured sensibilities, been more
meaningful than in contempt citations where the judge combines in himself the
dual and antagonistic roles of being offended party and arbiter.  Under the facts of this case, the suspension
of petitioner Calo, Jr. from October 17, 1977 to December 7, 1977, when the restraining order against its
enforcement was issued by this Court, more than sufficed to make him atone for
the direct contempt.

3. The other point raised in this petition is that the order of
July 8, 1977 of respondent Judge, which would deprive petitioner Libarnes as plaintiff in the pending civil case before his sala to present his rebuttal evidence and instead allowed
him only to file a memorandum on the accounting together with the matters
considered by him as rebuttal evidence, be nullified.  In the interest of regularity of procedure,
not to say for the purpose of avoiding any due process question as without such
an opportunity, petitioner Libarnes might not obtain
the justice to which he is entitled under the law, this Court is disposed to
grant the plea.

WHEREFORE, the suspension of petitioner Calo, Jr. is hereby lifted and the order of July 8, 1977 by respondent Judge
nullified, to enable petitioner Libarnes to present
his rebuttal evidence, at the earliest date that his calendar allows.  Costs against private respondent.

Antonio, Aquino, Concepcion,
Jr., and Santos,
JJ., concur.

Barredo, J., concur because he believes that the suspension of petitioner which has
lasted for a year and three months already is more than sufficient punishment.

^[1]
Petition, par. 3, Annex B.

^[2]
Ibid, par. 4, Annex C.

^[3]
Ibid, par. 5, Annex D.

^[4]
Ibid, par. 6, Annex D-1.

^[5]
Ibid, Annex D-1.

^[6]
Ibid, par. 8, Annex F.

^[7]
Ibid, par. 8.

^[8]
Ibid, par. 9.

^[9]
Ibid, Annex G-1.

^[10]
Ibid, par. 13, Annex I.

^[11]
Resolution of this Court dated December
7, 1977.

^[12]
Adm. Case No. 1347, November 12, 1975,
68 SCRA 42.

^[13]
Ibid, 43.  The opinion cited the
following cases:  Salcedo
v. Hernandez, 61 Phil. 724 (1935); De Joya v.
CFI of Rizal, 99
Phil. 907 (1956); Sison v. Sandejas, 105 Phil. 1279
(1959); Malolos v. Reyes, 111 Phil.
1113 (1961).

^[14]
57 Phil. 86.

^[15]
The offending words appear at 88 and the finding of contempt at 93.

^[16]
L-24522, May 29, 1975, 64
SCRA 211.

^[17]
Ibid, 214-215.  Villavicencio v. Lukban is reported in 39 Phil. 778 (1919).

^[18]
According to the first sentence of Article XIII, Section 1 of the
Constitution:  “Public office is a
public trust.”