Constitutional Law 2 CASES (III)

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2016 CONSTITUTIONAL LAW II CASES (2016)
I. FREEDOM OF EXPRESSION
Art. III, sec. 4
Id., sec. 18(1)
A. Philosophic Basis of Guarantee
1. For the discovery of political truth
2. For self government
3. For individual perfection
B. Prior restraints/Subsequent Punishment

CASES - CHAVEZ VS. GONZALES 545 SCRA 441 (2008)
FRANCISCO CHAVEZ, petitioner,vs.RAUL M. GONZALES, in his capacity as the Secretary

of the Department of Justice; and NATIONAL TELECOMMUNICATIONS COMMISSION
(NTC), respondents.
DECISION
PUNO, C.J p:
A. Precis
In this jurisdiction, it is established that freedom of the press is crucial and so inextricably
woven into the right to free speech and free expression, that any attempt to restrict it must be met
with an examination so critical that only a danger that is clear and present would be allowed to curtail
it.
Indeed, we have not wavered in the duty to uphold this cherished freedom. We have struck
down laws and issuances meant to curtail this right, as in Adiong v. COMELEC, 1 Burgos v. Chief of
Staff, 2 Social Weather Stations v. COMELEC, 3 and Bayan v. Executive Secretary Ermita. 4 When on
its face, it is clear that a governmental act is nothing more than a naked means to prevent the free
exercise of speech, it must be nullified.
B. The Facts
1. The case originates from events that occurred a year after the 2004 national and local
elections. On June 5, 2005, Press Secretary Ignacio Bunye told reporters that the opposition was
planning to destabilize the administration by releasing an audiotape of a mobile phone conversation
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allegedly between the President of the Philippines, Gloria Macapagal Arroyo, and a high-ranking
official of the Commission on Elections (COMELEC). The conversation was audiotaped allegedly
through wire-tapping. 5 Later, in a Malacaang press briefing, Secretary Bunye produced two
versions of the tape, one supposedly the complete version, and the other, a spliced, "doctored" or
altered version, which would suggest that the President had instructed the COMELEC official to
manipulate the election results in the President's favor. 6 It seems that Secretary Bunye admitted that
the voice was that of President Arroyo, but subsequently made a retraction. 7
2. On June 7, 2005, former counsel of deposed President Joseph Estrada, Atty. Alan Paguia,
subsequently released an alleged authentic tape recording of the wiretap. Included in the tapes were
purported conversations of the President, the First Gentleman Jose Miguel Arroyo, COMELEC
Commissioner Garcillano, and the late Senator Barbers. 8
3. On June 8, 2005, respondent Department of Justice (DOJ) Secretary Raul Gonzales warned
reporters that those who had copies of the compact disc (CD) and those broadcasting or publishing
its contents could be held liable under the Anti-Wiretapping Act. These persons included Secretary
Bunye and Atty. Paguia. He also stated that persons possessing or airing said tapes were committing
a continuing offense, subject to arrest by anybody who had personal knowledge if the crime was
committed or was being committed in their presence. 9
4. On June 9, 2005, in another press briefing, Secretary Gonzales ordered the National Bureau
of Investigation (NBI) to go after media organizations "found to have caused the spread, the playing
and the printing of the contents of a tape" of an alleged wiretapped conversation involving the
President about fixing votes in the 2004 national elections. Gonzales said that he was going to start
with Inq7.net,a joint venture between the Philippine Daily Inquirer and GMA7 television network,
because by the very nature of the Internet medium, it was able to disseminate the contents of the
tape more widely. He then expressed his intention of inviting the editors and managers of Inq7.net
and GMA7 to a probe, and supposedly declared, "I [have] asked the NBI to conduct a tactical
interrogation of all concerned." 10
5. On June 11, 2005, the NTC issued this press release: 11
NTC GIVES FAIR WARNING TO RADIO AND TELEVISION OWNERS/OPERATORS TO
OBSERVE ANTI-WIRETAPPING LAW AND PERTINENT CIRCULARS ON PROGRAM
STANDARDS
xxx xxx xxx
Taking into consideration the country's unusual situation, and in order not to
unnecessarily aggravate the same, the NTC warns all radio stations and television
network owners/operators that the conditions of the authorization and permits issued
to them by Government like the Provisional Authority and/or Certificate of Authority
explicitly provides that said companies shall not use [their] stations for the broadcasting
or telecasting of false information or willful misrepresentation. Relative thereto, it has
come to the attention of the [NTC] that certain personalities are in possession of alleged
taped conversations which they claim involve the President of the Philippines and a
Commissioner of the COMELEC regarding supposed violation of election laws.
These personalities have admitted that the taped conversations are products of illegal
wiretapping operations.
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Considering that these taped conversations have not been duly authenticated nor could
it be said at this time that the tapes contain an accurate or truthful representation of
what was recorded therein, it is the position of the [NTC] that the continuous airing or
broadcast of the said taped conversations by radio and television stations is a
continuing violation of the Anti-Wiretapping Law and the conditions of the Provisional
Authority and/or Certificate of Authority issued to these radio and television stations.
It has been subsequently established that the said tapes are false and/or fraudulent
after a prosecution or appropriate investigation, the concerned radio and television
companies are hereby warned that their broadcast/airing of such false information
and/or willful misrepresentation shall be just cause for the suspension, revocation
and/or cancellation of the licenses or authorizations issued to the said companies.
In addition to the above, the [NTC] reiterates the pertinent NTC circulars on program
standards to be observed by radio and television stations. NTC Memorandum Circular
111-12-85 explicitly states, among others, that "all radio broadcasting and television
stations shall, during any broadcast or telecast, cut off from the air the speech, play, act
or scene or other matters being broadcast or telecast the tendency thereof is to
disseminate false information or such other willful misrepresentation, or to propose
and/or incite treason, rebellion or sedition." The foregoing directive had been
reiterated by NTC Memorandum Circular No. 22-89, which, in addition thereto,
prohibited radio, broadcasting and television stations from using their stations to
broadcast or telecast any speech, language or scene disseminating false information or
willful misrepresentation, or inciting, encouraging or assisting in subversive or
treasonable acts.
The [NTC] will not hesitate, after observing the requirements of due process, to apply
with full force the provisions of said Circulars and their accompanying sanctions on
erring radio and television stations and their owners/operators.
6. On June 14, 2005, NTC held a dialogue with the Board of Directors of the Kapisanan ng mga
Brodkaster sa Pilipinas (KBP).NTC allegedly assured the KBP that the press release did not violate the
constitutional freedom of speech, of expression, and of the press, and the right to information.
Accordingly, NTC and KBP issued a Joint Press Statement which states, among others, that: 12
NTC respects and will not hinder freedom of the press and the right to information
on matters of public concern. KBP & its members have always been committed
to the exercise of press freedom with high sense of responsibility and discerning
judgment of fairness and honesty.
NTC did not issue any MC [Memorandum Circular] or Order constituting a restraint
of press freedom or censorship. The NTC further denies and does not intend to
limit or restrict the interview of members of the opposition or free expression
of views.
What is being asked by NTC is that the exercise of press freedom [be] done
responsibly.
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KBP has program standards that KBP members will observe in the treatment of news
and public affairs programs. These include verification of sources, non-airing of
materials that would constitute inciting to sedition and/or rebellion.
The KBP Codes also require that no false statement or willful misrepresentation is
made in the treatment of news or commentaries.
The supposed wiretapped tapes should be treated with sensitivity and handled
responsibly giving due consideration to the process being undertaken to verify
and validate the authenticity and actual content of the same."
C. The Petition
Petitioner Chavez filed a petition under Rule 65 of the Rules of Court against respondents
Secretary Gonzales and the NTC, "praying for the issuance of the writs of certiorari and prohibition,
as extraordinary legal remedies, to annul void proceedings, and to prevent the unlawful,
unconstitutional and oppressive exercise of authority by the respondents." 13
Alleging that the acts of respondents are violations of the freedom on expression and of the
press, and the right of the people to information on matters of public concern, 14 petitioner
specifically asked this Court:
[F]or [the] nullification of acts, issuances, and orders of respondents committed or
made since June 6, 2005 until the present that curtail the public's rights to freedom of
expression and of the press, and to information on matters of public concern specifically
in relation to information regarding the controversial taped conversion of President
Arroyo and for prohibition of the further commission of such acts, and making of such
issuances, and orders by respondents. 15
Respondents 16 denied that the acts transgress the Constitution, and questioned petitioner's
legal standing to file the petition. Among the arguments they raised as to the validity of the "fair
warning" issued by respondent NTC, is that broadcast media enjoy lesser constitutional guarantees
compared to print media, and the warning was issued pursuant to the NTC's mandate to regulate the
telecommunications industry. 17 It was also stressed that "most of the [television] and radio stations
continue, even to this date, to air the tapes, but of late within the parameters agreed upon between
the NTC and KBP." 18
D. THE PROCEDURAL THRESHOLD: LEGAL STANDING

To be sure, the circumstances of this case make the constitutional challenge peculiar.
Petitioner, who is not a member of the broadcast media, prays that we strike down the acts and
statements made by respondents as violations of the right to free speech, free expression and a free
press. For another, the recipients of the press statements have not come forward neither
intervening nor joining petitioner in this action. Indeed, as a group, they issued a joint statement with
respondent NTC that does not complain about restraints on freedom of the press.
It would seem, then, that petitioner has not met the requisite legal standing, having failed to
allege "such a personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the Court so largely depends for
illumination of difficult constitutional questions." 19
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But as early as half a century ago, we have already held that where serious constitutional
questions are involved, "the transcendental importance to the public of these cases demands that
they be settled promptly and definitely, brushing aside if we must, technicalities of
procedure." 20 Subsequently, this Court has repeatedly and consistently refused to wield procedural
barriers as impediments to its addressing and resolving serious legal questions that greatly impact on
public interest, 21 in keeping with the Court's duty under the 1987 Constitution to determine whether
or not other branches of government have kept themselves within the limits of the Constitution and
the laws and that they have not abused the discretion given to them.
Thus, in line with the liberal policy of this Court on locus standi when a case involves an issue of
overarching significance to our society, 22 we therefore brush aside technicalities of procedure and
take cognizance of this petition, 23 seeing as it involves a challenge to the most exalted of all the civil
rights, the freedom of expression. The petition raises other issues like the extent of the right to
information of the public. It is fundamental, however, that we need not address all issues but only
the most decisive one which in the case at bar is whether the acts of the respondents abridge
freedom of speech and of the press.
But aside from the primordial issue of determining whether free speech and freedom of the
press have been infringed, the case at bar also gives this Court the opportunity: (1) to distill the
essence of freedom of speech and of the press now beclouded by the vagaries of motherhood
statements; (2) to clarify the types of speeches and their differing restraints allowed by law; (3) to
discuss the core concepts of prior restraint, content-neutral and content-based regulations and
their constitutional standard of review; (4) to examine the historical difference in the treatment of
restraints between print and broadcast media and stress the standard of review governing both;
and (5) to call attention to the ongoing blurring of the lines of distinction between print and
broadcast media.
E. RE-EXAMINING THE LAW ON FREEDOM OF SPEECH,
OF EXPRESSION AND OF THE PRESS
No law shall be passed abridging the freedom of speech, of expression, or of the press,
or the right of the people peaceably to assemble and petition the government for redress of
grievances. 24
Freedom of expression has gained recognition as a fundamental principle of every democratic
government, and given a preferred right that stands on a higher level than substantive economic
freedom or other liberties. The cognate rights codified by Article III, Section 4 of the Constitution,
copied almost verbatim from the First Amendment of the U.S. Bill of Rights, 25 were considered the
necessary consequence of republican institutions and the complement of free speech. 26 This
preferred status of free speech has also been codified at the international level, its recognition now
enshrined in international law as a customary norm that binds all nations. 27
In the Philippines, the primacy and high esteem accorded freedom of expression is a
fundamental postulate of our constitutional system. 28 This right was elevated to constitutional
status in the 1935, the 1973 and the 1987 Constitutions, reflecting our own lesson of history, both
political and legal, that freedom of speech is an indispensable condition for nearly every other form
of freedom. 29 Moreover, our history shows that the struggle to protect the freedom of speech,
expression and the press was, at bottom, the struggle for the indispensable preconditions for the
exercise of other freedoms. 30 For it is only when the people have unbridled access to information
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and the press that they will be capable of rendering enlightened judgments. In the oft-quoted words
of Thomas Jefferson, we cannot both be free and ignorant.
E.1. ABSTRACTION OF FREE SPEECH
Surrounding the freedom of speech clause are various concepts that we have adopted as part
and parcel of our own Bill of Rights provision on this basic freedom. 31 What is embraced under this
provision was discussed exhaustively by the Court in Gonzales v. Commission on Elections, 32 in which
it was held:
...At the very least, free speech and free press may be identified with the liberty to
discuss publicly and truthfully any matter of public interest without censorship and
punishment. There is to be no previous restraint on the communication of views or
subsequent liability whether in libel suits, prosecution for sedition, or action for
damages, or contempt proceedings unless there be a clear and present danger of
substantive evil that Congress has a right to prevent. 33
Gonzales further explained that the vital need of a constitutional democracy for freedom of
expression is undeniable, whether as a means of assuring individual self-fulfillment; of attaining the
truth; of assuring participation by the people in social, including political, decision-making; and of
maintaining the balance between stability and change. 34 As early as the 1920s, the trend as reflected
in Philippine and American decisions was to recognize the broadest scope and assure the widest
latitude for this constitutional guarantee. The trend represents a profound commitment to the
principle that debate on public issue should be uninhibited, robust, and wide-open. 35
Freedom of speech and of the press means something more than the right to approve existing
political beliefs or economic arrangements, to lend support to official measures, and to take refuge in
the existing climate of opinion on any matter of public consequence. 36 When atrophied, the right
becomes meaningless. 37The right belongs as well if not more to those who question, who do
not conform, who differ. 38 The ideas that may be expressed under this freedom are confined not
only to those that are conventional or acceptable to the majority. To be truly meaningful, freedom of
speech and of the press should allow and even encourage the articulation of the unorthodox view,
though it be hostile to or derided by others; or though such view "induces a condition of unrest,
creates dissatisfaction with conditions as they are, or even stirs people to anger." 39 To paraphrase
Justice Holmes, it is freedom for the thought that we hate, no less than for the thought that agrees
with us. 40
The scope of freedom of expression is so broad that it extends protection to nearly all forms
of communication. It protects speech, print and assembly regarding secular as well as political causes,
and is not confined to any particular field of human interest. The protection covers myriad matters of
public interest or concern embracing all issues, about which information is needed or appropriate, so
as to enable members of society to cope with the exigencies of their period. The constitutional
protection assures the broadest possible exercise of free speech and free press for religious, political,
economic, scientific, news, or informational ends, inasmuch as the Constitution's basic guarantee of
freedom to advocate ideas is not confined to the expression of ideas that are conventional or shared
by a majority.
The constitutional protection is not limited to the exposition of ideas. The protection afforded
free speech extends to speech or publications that are entertaining as well as instructive or
informative. Specifically, in Eastern Broadcasting Corporation (DYRE) v. Dans, 41 this Court stated that
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all forms of media, whether print or broadcast, are entitled to the broad protection of the clause on
freedom of speech and of expression.
While all forms of communication are entitled to the broad protection of freedom of
expression clause, the freedom of film, television and radio broadcasting is somewhat lesser in
scope than the freedom accorded to newspapers and other print media, as will be subsequently
discussed.
E.2. DIFFERENTIATION: THE LIMITS & RESTRAINTS OF FREE SPEECH
From the language of the specific constitutional provision, it would appear that the right to
free speech and a free press is not susceptible of any limitation. But the realities of life in a complex
society preclude a literal interpretation of the provision prohibiting the passage of a law that would
abridge such freedom. For freedom of expression is not an absolute, 42 nor is it an "unbridled license
that gives immunity for every possible use of language and prevents the punishment of those who
abuse this freedom."
Thus, all speech are not treated the same. Some types of speech may be subjected to some
regulation by the State under its pervasive police power, in order that it may not be injurious to the
equal right of others or those of the community or society. 43 The difference in treatment is expected
because the relevant interests of one type of speech, e.g., political speech, may vary from those of
another, e.g., obscene speech. Distinctions have therefore been made in the treatment, analysis, and
evaluation of the permissible scope of restrictions on various categories of speech. 44 We have ruled,
for example, that in our jurisdiction slander or libel, lewd and obscene speech, as well as "fighting
words" are not entitled to constitutional protection and may be penalized. 45
Moreover, the techniques of reviewing alleged restrictions on speech (overbreadth,
vagueness, and so on) have been applied differently to each category, either consciously or
unconsciously. 46 A study of free speech jurisprudence whether here or abroad will reveal that
courts have developed different tests as to specific types or categories of speech in concrete
situations; i.e., subversive speech; obscene speech; the speech of the broadcast media and of the
traditional print media; libelous speech; speech affecting associational rights; speech before hostile
audiences; symbolic speech; speech that affects the right to a fair trial; and speech associated with
rights of assembly and petition. 47
Generally, restraints on freedom of speech and expression are evaluated by either or a
combination of three tests, i.e.,(a) the dangerous tendency doctrinewhich permits limitations on
speech once a rational connection has been established between the speech restrained and the
danger contemplated; 48 (b) thebalancing of interests tests, used as a standard when courts need to
balance conflicting social values and individual interests, and requires a conscious and detailed
consideration of the interplay of interests observable in a given situation of type of situation; 49 and
(c) the clear and present danger rule which rests on the premise that speech may be restrained
because there is substantial danger that the speech will likely lead to an evil the government has a
right to prevent. This rule requires that the evil consequences sought to be prevented must be
substantive, "extremely serious and the degree of imminence extremely high." 50
As articulated in our jurisprudence, we have applied either the dangerous tendency
doctrine or clear and present danger testto resolve free speech challenges. More recently, we have
concluded that we have generally adhered to the clear and present danger test. 51
E.3. IN FOCUS: FREEDOM OF THE PRESS
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Much has been written on the philosophical basis of press freedom as part of the larger right
of free discussion and expression. Its practical importance, though, is more easily grasped. It is the
chief source of information on current affairs. It is the most pervasive and perhaps most powerful
vehicle of opinion on public questions. It is the instrument by which citizens keep their government
informed of their needs, their aspirations and their grievances. It is the sharpest weapon in the fight
to keep government responsible and efficient. Without a vigilant press, the mistakes of every
administration would go uncorrected and its abuses unexposed. As Justice Malcolm wrote in United
States v. Bustos: 52
The interest of society and the maintenance of good government demand a full
discussion of public affairs. Complete liberty to comment on the conduct of public men
is a scalpel in the case of free speech. The sharp incision of its probe relieves the
abscesses of officialdom. Men in public life may suffer under a hostile and unjust
accusation; the wound can be assuaged with the balm of clear conscience.
Its contribution to the public weal makes freedom of the press deserving of extra protection.
Indeed, the press benefits from certain ancillary rights. The productions of writers are classified as
intellectual and proprietary. Persons who interfere or defeat the freedom to write for the press or to
maintain a periodical publication are liable for damages, be they private individuals or public officials.
E.4. ANATOMY OF RESTRICTIONS: PRIOR RESTRAINT, CONTENT-NEUTRAL AND CONTENT-BASED
REGULATIONS
Philippine jurisprudence, even as early as the period under the 1935 Constitution, has
recognized four aspects of freedom of the press. These are (1) freedom from prior restraint; (2)
freedom from punishment subsequent to publication; 53 (3) freedom of access to
information; 54 and (4) freedom of circulation. 55
Considering that petitioner has argued that respondents' press statement constitutes a form
of impermissible prior restraint, a closer scrutiny of this principle is in order, as well as its sub-specie
of content-based (as distinguished from content-neutral) regulations.
At this point, it should be noted that respondents in this case deny that their acts constitute
prior restraints. This presents a unique tinge to the present challenge, considering that the cases in
our jurisdiction involving prior restrictions on speech never had any issue of whether the
governmental act or issuanceactually constituted prior restraint. Rather, the determinations were
always about whether the restraint was justified by the Constitution.
Be that as it may, the determination in every case of whether there is an impermissible
restraint on the freedom of speech has always been based on the circumstances of each case,
including the nature of the restraint. And in its application in our jurisdiction, the parameters of this
principle have been etched on a case-to-case basis, always tested by scrutinizing the governmental
issuance or act against the circumstances in which they operate, and then determining the
appropriate test with which to evaluate.
Prior restraint refers to official governmental restrictions on the press or other forms of
expression in advance of actual publication or dissemination. 56Freedom from prior restraint is largely
freedom from government censorship of publications, whatever the form of censorship, and
regardless of whether it is wielded by the executive, legislative or judicial branch of the government.
Thus, it precludes governmental acts that required approval of a proposal to publish; licensing or
permits as prerequisites to publication including the payment of license taxes for the privilege to
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publish; and even injunctions against publication. Even the closure of the business and printing offices
of certain newspapers, resulting in the discontinuation of their printing and publication, are deemed
as previous restraint or censorship. 57 Any law or official that requires some form of permission to be
had before publication can be made, commits an infringement of the constitutional right, and remedy
can be had at the courts.
Given that deeply ensconced in our fundamental law is the hostility against all prior restraints
on speech, and any act that restrains speech is presumed invalid,58 and "any act that restrains speech
is hobbled by the presumption of invalidity and should be greeted with furrowed brows," 59 it is
important to stress not all prior restraints on speech are invalid. Certain previous restraints may be
permitted by the Constitution,but determined only upon a careful evaluation of the challenged act
as against the appropriate test by which it should be measured against.
Hence, it is not enough to determine whether the challenged act constitutes some form of
restraint on freedom of speech. A distinction has to be made whether the restraint is (1) a content-
neutral regulation, i.e., merely concerned with the incidents of the speech, or one that merely
controls the time, place or manner, and under well defined standards; 60 or (2) a content-
based restraint or censorship, i.e., the restriction is based on the subject matter of the utterance or
speech. 61 The cast of the restriction determines the test by which the challenged act is assayed with.
When the speech restraints take the form of a content-neutral regulation, only a substantial
governmental interest is required for its validity. 62 Because regulations of this type are not designed
to suppress any particular message, they are not subject to the strictest form of judicial scrutiny but
an intermediate approach somewhere between the mere rationality that is required of any other
law and the compelling interest standard applied to content-based restrictions.63 The test is
called intermediate because the Court will not merely rubberstamp the validity of a law but also
require that the restrictions be narrowly-tailored to promote an important or significant
governmental interest that is unrelated to the suppression of expression. The intermediate approach
has been formulated in this manner:
A governmental regulation is sufficiently justified if it is within the constitutional power
of the Government, if it furthers an important or substantial governmental interest; if
the governmental interest is unrelated to the suppression of free expression; and if the
incident restriction on alleged [freedom of speech & expression] is no greater than is
essential to the furtherance of that interest. 64
On the other hand, a governmental action that restricts freedom of speech or of the
press based on content is given the strictest scrutiny in light of its inherent and invasive impact. Only
when the challenged act has overcome the clear and present danger rule will it pass constitutional
muster, 65 with the government having the burden of overcoming the presumed unconstitutionality.
Unless the government can overthrow this presumption, the content-based restraint will be
struck down. 66
With respect to content-based restrictions, the government must also show the type of harm
the speech sought to be restrained would bring about especially the gravity and the imminence of
the threatened harm otherwise the prior restraint will be invalid. Prior restraint on speech based
on its content cannot be justified by hypothetical fears, "but only by showing a substantive and
imminent evil that has taken the life of a reality already on ground." 67 As formulated, "the question
in every case is whether the words used are used in such circumstances and are of such a nature as
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to create a clear and present danger that they will bring about the substantive evils that Congress has
a right to prevent. It is a question of proximity and degree." 68
The regulation which restricts the speech content must also serve an important or substantial
government interest, which is unrelated to the suppression of free expression. 69
Also, the incidental restriction on speech must be no greater than what is essential to the
furtherance of that interest. 70 A restriction that is so broad that it encompasses more than what is
required to satisfy the governmental interest will be invalidated. 71 The regulation, therefore, must
be reasonable and narrowly drawn to fit the regulatory purpose, with the least restrictive means
undertaken. 72
Thus, when the prior restraint partakes of a content-neutral regulation,it is subjected to an
intermediate review. A content-based regulation, 73 however, bears a heavy presumption of
invalidity and is measured against the clear and present danger rule. The latter will pass constitutional
muster only if justified by a compelling reason, and the restrictions imposed are neither overbroad
nor vague. 74
Applying the foregoing, it is clear that the challenged acts in the case at bar need to be
subjected to the clear and present danger rule,as they are content-based restrictions.The acts of
respondents focused solely on but one object a specific content fixed as these were on the
alleged taped conversations between the President and a COMELEC official. Undoubtedly these did
not merely provide regulations as to the time, place or manner of the dissemination of speech or
expression.
E.5. Dichotomy of Free Press: Print v. Broadcast Media
Finally, comes respondents' argument that the challenged act is valid on the ground that
broadcast media enjoys free speech rights that are lesser in scope to that of print media. We next
explore and test the validity of this argument, insofar as it has been invoked to validate a content-
based restriction on broadcast media.
The regimes presently in place for each type of media differ from one other.Contrasted with
the regime in respect of books, newspapers, magazines and traditional printed matter, broadcasting,
film and video have been subjected to regulatory schemes.
The dichotomy between print and broadcast media traces its origins in the United States.
There, broadcast radio and television have been held to have limitedFirst Amendment
protection, 75 and U.S. Courts have excluded broadcast media from the application of the "strict
scrutiny" standard that they would otherwise apply to content-based restrictions. 76 According to
U.S. Courts, the three major reasons why broadcast media stands apart from print media are: (a) the
scarcity of the frequencies by which the medium operates [i.e.,airwaves are physically limited while
print medium may be limitless]; 77 (b) its "pervasiveness" as a medium; and (c) its unique accessibility
to children. 78 Because cases involving broadcast media need not follow "precisely the same
approach that [U.S. courts] have applied to other media," nor go "so far as to demand that such
regulations serve 'compelling' government interests," 79 they are decided on whether the
"governmental restriction" is narrowly tailored to further a substantial governmental
interest," 80 or the intermediate test.
As pointed out by respondents, Philippine jurisprudence has also echoed a differentiation in
treatment between broadcast and print media. Nevertheless, a review of Philippine case law on
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broadcast media will show that as we have deviated with the American conception of the Bill of
Rights 81 we likewise did not adopt en masse the U.S. conception of free speech as it relates to
broadcast media, particularly as to which test would govern content-based prior restraints.
Our cases show two distinct features of this dichotomy. First, the difference in treatment, in
the main, is in the regulatory scheme applied to broadcast media that is not imposed on traditional
print media, and narrowly confined to unprotected speech (e.g., obscenity, pornography, seditious
and inciting speech),or is based on a compelling government interest that also has constitutional
protection, such as national security or the electoral process.
Second, regardless of the regulatory schemes that broadcast media is subjected to, the Court
has consistently held that the clear and present danger test applies to content-based restrictions on
media, without making a distinction as to traditional print or broadcast media.
The distinction between broadcast and traditional print media was first enunciated in Eastern
Broadcasting Corporation (DYRE) v. Dans, 82 wherein it was held that "[a]ll forms of media, whether
print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause.
The test for limitations on freedom of expression continues to be the clear and present danger rule
..." 83
Dans was a case filed to compel the reopening of a radio station which had been summarily
closed on grounds of national security. Although the issue had become moot and academic because
the owners were no longer interested to reopen, the Court still proceeded to do an analysis of the
case and made formulations to serve as guidelines for all inferior courts and bodies exercising quasi-
judicial functions. Particularly, the Court made a detailed exposition as to what needs be considered
in cases involving broadcast media. Thus: 84
xxx xxx xxx
(3) All forms of media, whether print or broadcast, are entitled to the broad protection
of the freedom of speech and expression clause. The test for limitations on freedom of
expression continues to be the clear and present danger rule,that words are used in
such circumstances and are of such a nature as to create a clear and present danger
that they will bring about the substantive evils that the lawmaker has a right to prevent,
In his Constitution of the Philippines (2nd Edition, pp. 569-570) Chief Justice Enrique M.
Fernando cites at least nine of our decisions which apply the test. More recently, the
clear and present danger test was applied in J.B.L. Reyes in behalf of the Anti-Bases
Coalition v. Bagatsing.(4) The clear and present danger test, however, does not lend
itself to a simplistic and all embracing interpretation applicable to all utterances in all
forums.
Broadcasting has to be licensed. Airwave frequencies have to be allocated among
qualified users. A broadcast corporation cannot simply appropriate a certain frequency
without regard for government regulation or for the rights of others.
All forms of communication are entitled to the broad protection of the freedom of
expression clause. Necessarily, however, the freedom of television and radio
broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and
print media.
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The American Court in Federal Communications Commission v. Pacifica Foundation (438

U.S. 726),confronted with a patently offensive and indecent regular radio program,
explained why radio broadcasting, more than other forms of communications, receives
the most limited protection from the free expression clause. First, broadcast media
have established a uniquely pervasive presence in the lives of all citizens, Material
presented over the airwaves confronts the citizen, not only in public, but in the privacy
of his home. Second, broadcasting is uniquely accessible to children. Bookstores and
motion picture theaters may be prohibited from making certain material available to
children, but the same selectivity cannot be done in radio or television, where the
listener or viewer is constantly tuning in and out.
Similar considerations apply in the area of national security.
The broadcast media have also established a uniquely pervasive presence in the lives of
all Filipinos. Newspapers and current books are found only in metropolitan areas and in
the poblaciones of municipalities accessible to fast and regular transportation. Even
here, there are low income masses who find the cost of books, newspapers, and
magazines beyond their humble means. Basic needs like food and shelter perforce
enjoy high priorities.
On the other hand, the transistor radio is found everywhere. The television set is also
becoming universal. Their message may be simultaneously received by a national or
regional audience of listeners including the indifferent or unwilling who happen to be
within reach of a blaring radio or television set. The materials broadcast over the
airwaves reach every person of every age, persons of varying susceptibilities to
persuasion, persons of different I.Q.s and mental capabilities, persons whose reactions
to inflammatory or offensive speech would be difficult to monitor or predict. The impact
of the vibrant speech is forceful and immediate. Unlike readers of the printed work, the
radio audience has lesser opportunity to cogitate analyze, and reject the utterance.
(5) The clear and present danger test, therefore, must take the particular circumstances
of broadcast media into account. The supervision of radio stations-whether by
government or through self-regulation by the industry itself calls for thoughtful,
intelligent and sophisticated handling.
The government has a right to be protected against broadcasts which incite the listeners
to violently overthrow it. Radio and television may not be used to organize a rebellion
or to signal the start of widespread uprising. At the same time, the people have a right
to be informed. Radio and television would have little reason for existence if broadcasts
are limited to bland, obsequious, or pleasantly entertaining utterances. Since they are
the most convenient and popular means of disseminating varying views on public
issues, they also deserve special protection.
(6) The freedom to comment on public affairs is essential to the vitality of a
representative democracy. In the 1918 case of United States v. Bustos (37 Phil. 731) this
Court was already stressing that.
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abscesses of officialdom. Men in public life may suffer under a hostile and an unjust
accusation; the wound can be assuaged with the balm of a clear conscience. A public
officer must not be too thin-skinned with reference to comment upon his official acts.
Only thus can the intelligence and dignity of the individual be exalted.
(7) Broadcast stations deserve the special protection given to all forms of media by the
due process and freedom of expression clauses of the Constitution. [Citations omitted]
It is interesting to note that the Court in Dans adopted the arguments found in U.S.
jurisprudence to justify differentiation of treatment (i.e.,the scarcity, pervasiveness and accessibility
to children),but only after categorically declaring that "the test for limitations on freedom of
expression continues to be the clear and present danger rule," for all forms of media, whether print
or broadcast. Indeed, a close reading of the above-quoted provisions would show that the
differentiation that the Court in Dans referred to was narrowly restricted to what is otherwise
deemed as "unprotected speech" (e.g.,obscenity, national security, seditious and inciting speech),or
to validate a licensing or regulatory scheme necessary to allocate the limited broadcast frequencies,
which is absent in print media. Thus, when this Court declared in Dans that the freedom given to
broadcast media was "somewhat lesser in scope than the freedom accorded to newspaper and print
media," it was not as to what test should be applied, but the context by which requirements of
licensing, allocation of airwaves, and application of norms to unprotected speech. 85
In the same year that the Dans case was decided, it was reiterated in Gonzales v.
Katigbak, 86 that the test to determine free expression challenges was the clear and present danger,
again without distinguishing the media. 87 Katigbak, strictly speaking, does not treat of broadcast
media but motion pictures. Although the issue involved obscenity standards as applied to
movies, 88 the Court concluded its decision with the following obiter dictum that a less liberal
approach would be used to resolve obscenity issues in television as opposed to motion pictures:
All that remains to be said is that the ruling is to be limited to the concept of obscenity
applicable to motion pictures. It is the consensus of this Court that where television is
concerned, a less liberal approach calls for observance. This is so because unlike motion
pictures where the patrons have to pay their way, television reaches every home where
there is a set. Children then will likely be among the avid viewers of the programs
therein shown. ....It cannot be denied though that the State as parens patriae is called
upon to manifest an attitude of caring for the welfare of the young.
More recently, in resolving a case involving the conduct of exit polls and dissemination of the
results by a broadcast company, we reiterated that the clear and present danger rule is the test we
unquestionably adhere to issues that involve freedoms of speech and of the press. 89
This is not to suggest, however, that the clear and present danger rule has been applied to
all cases that involve the broadcast media.The rule applies to all media, including broadcast, but only
when the challenged act is a content-based regulation that infringes on free speech, expression and
the press. Indeed, inOsmena v. COMELEC, 90 which also involved broadcast media, the Court refused
to apply the clear and present danger rule to a COMELEC regulation of time and manner of advertising
of political advertisements because the challenged restriction was content-neutral. 91 And in a case
involving due process and equal protection issues, the Court in Telecommunications and Broadcast
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Attorneys of the Philippines v. COMELEC 92 treated a restriction imposed on a broadcast media as a

reasonable condition for the grant of the media's franchise, without going into which test would apply.
That broadcast media is subject to a regulatory regime absent in print media is observed also
in other jurisdictions, where the statutory regimes in place over broadcast media include elements of
licensing, regulation by administrative bodies, and censorship. As explained by a British author:
The reasons behind treating broadcast and films differently from the print media differ
in a number of respects, but have a common historical basis. The stricter system of
controls seems to have been adopted in answer to the view that owing to
their particular impact on audiences, films, videos and broadcasting require a system
of prior restraints, whereas it is now accepted that books and other printed media do
not. These media are viewed as beneficial to the public in a number of respects, but are
also seen as possible sources of harm. 93
Parenthetically, these justifications are now the subject of debate. Historically,the scarcity of
frequencies was thought to provide a rationale. However, cable and satellite television have
enormously increased the number of actual and potential channels. Digital technology will further
increase the number of channels available. But still, the argument persists that broadcasting is the
most influential means of communication, since it comes into the home, and so much time is spent
watching television. Since it has a unique impact on people and affects children in a way that the print
media normally does not, that regulation is said to be necessary in order to preserve pluralism. It has
been argued further that a significant main threat to free expression in terms of diversity comes
not from government, but from private corporate bodies. These developments show a need for a
reexamination of the traditional notions of the scope and extent of broadcast media regulation. 94
The emergence of digital technology which has led to the convergence of broadcasting,
telecommunications and the computer industry has likewise led to the question of whether the
regulatory model for broadcasting will continue to be appropriate in the converged
environment. 95 Internet, for example, remains largely unregulated, yet the Internet and the
broadcast media share similarities, 96 and the rationales used to support broadcast regulation apply
equally to the Internet. 97 Thus, it has been argued that courts, legislative bodies and the government
agencies regulating media must agree to regulate both, regulate neither or develop a new regulatory
framework and rationale to justify the differential treatment. 98
F. The Case At Bar
Having settled the applicable standard to content-based restrictions on broadcast media, let
us go to its application to the case at bar. To recapitulate, a governmental action that restricts freedom
of speech or of the press based on content is given the strictest scrutiny, with the government
having the burden of overcoming the presumed unconstitutionality by the clear and present danger
rule. This rule applies equally to all kinds of media, including broadcast media.
This outlines the procedural map to follow in cases like the one at bar as it spells out the
following: (a) the test; (b) the presumption; (c) the burden of proof; (d) the party to discharge the
burden; and (e) the quantum of evidence necessary. On the basis of the records of the case at bar,
respondents who have the burden to show that these acts do not abridge freedom of speech and of
the press failed to hurdle the clear and present danger test. It appears that the great evil which
government wants to prevent is the airing of a tape recording in alleged violation of the anti-
wiretapping law. The records of the case at bar, however, are confused and confusing, and
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respondents' evidence falls short of satisfying the clear and present danger test. Firstly,the various
statements of the Press Secretary obfuscate the identity of the voices in the tape
recording. Secondly,the integrity of the taped conversation is also suspect. The Press Secretary
showed to the public two versions, one supposed to be a "complete" version and the other, an
"altered" version. Thirdly,the evidence of the respondents on the who's and the how's of the
wiretapping act is ambivalent, especially considering the tape's different versions. The identity of the
wire-tappers, the manner of its commission and other related and relevant proofs are some of the
invisibles of this case. Fourthly,given all these unsettled facets of the tape, it is even arguable whether
its airing would violate the anti-wiretapping law.
We rule that not every violation of a law will justify straitjacketing the exercise of freedom
of speech and of the press.Our laws are of different kindsand doubtless, some of them provide norms
of conduct which even if violated have only an adverse effect on a person's private comfort but does
not endanger national security. There are laws of great significance but their violation, by itself and
without more,cannot support suppression of free speech and free press. In fine, violation of law is
just a factor,a vital one to be sure, which should be weighed in adjudging whether to restrain freedom
of speech and of the press. Thetotality of the injurious effects of the violation to private and public
interest must be calibrated in light of the preferred status accorded by the Constitution and by related
international covenants protecting freedom of speech and of the press. In calling for a careful and
calibrated measurement of the circumference of all these factors to determine compliance with the
clear and present danger test, the Court should not be misinterpreted as devaluing violations of
law.By all means, violations of law should be vigorously prosecuted by the State for they breed their
own evil consequence. But to repeat, the need to prevent their violation cannot per se trump the
exercise of free speech and free press, a preferred right whose breach can lead to greater evils.For
this failure of the respondents alone to offer proof to satisfy the clear and present danger test, the
Court has no option but to uphold the exercise of free speech and free press. There is no showing that
the feared violation of the anti-wiretapping law clearly endangers the national security of the State.
This is not all the faultline in the stance of the respondents. We slide to the issue of whether
the mere press statements of the Secretary of Justice and of the NTC in question constitute a form of
content-based prior restraint that has transgressed the Constitution. In resolving this issue, we hold
that it is not decisive that the press statements made by respondents were not reduced in or
followed up with formal orders or circulars. It is sufficient that the press statements were made by
respondents while in the exercise of their official functions.Undoubtedly, respondent Gonzales
made his statements as Secretary of Justice, while the NTC issued its statement as the regulatory body
of media. Any act done, such as a speech uttered, for and on behalf of the government in an official
capacity is covered by the rule on prior restraint. The concept of an "act" does not limit itself to acts
already converted to a formal order or official circular. Otherwise, the non formalization of an act
into an official order or circular will result in the easy circumvention of the prohibition on prior
restraint.The press statements at bar are acts that should be struck down as they constitute
impermissible forms of prior restraints on the right to free speech and press.
There is enough evidence of chilling effect of the complained acts on record.
The warnings given to media came from no less the NTC, a regulatory agency that can cancel the
Certificate of Authority of the radio and broadcast media. They also came from the Secretary of
Justice, the alter ego of the Executive, who wields the awesome power to prosecute those perceived
to be violating the laws of the land. After the warnings,the KBP inexplicably joined the NTC in issuing
an ambivalent Joint Press Statement. After the warnings, petitioner Chavez was left alone to fight this
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battle for freedom of speech and of the press. This silence on the sidelines on the part of some media
practitioners is too deafening to be the subject of misinterpretation.
The constitutional imperative for us to strike down unconstitutional acts should always be
exercised with care and in light of the distinct facts of each case. For there are no hard and fast rules
when it comes to slippery constitutional questions, and the limits and construct of relative freedoms
are never set in stone. Issues revolving on their construct must be decided on a case to case basis,
always based on the peculiar shapes and shadows of each case. But in cases where the challenged
acts are patent invasions of a constitutionally protected right, we should be swift in striking them
down as nullities per se. A blow too soon struck for freedom is preferred than a blow too late.
In VIEW WHEREOF, the petition is GRANTED. The writs of certiorari and prohibition are hereby
issued, nullifying the official statements made by respondents on June 8, and 11, 2005 warning the
media on airing the alleged wiretapped conversation between the President and other personalities,
for constituting unconstitutional prior restraint on the exercise of freedom of speech and of the press
SO ORDERED.
||| (Chavez v. Gonzales, G.R. No. 168338, [February 15, 2008], 569 PHIL 155-297)
NEWSOUND BROADCASTING VS. DY 583 SCRA 333 (2009)
NEWSOUNDS BROADCASTING NETWORK INC. and CONSOLIDATED BROADCASTING

SYSTEM, INC., petitioners, vs. HON. CEASAR G. DY, FELICISIMO G. MEER, BAGNOS
MAXIMO, RACMA FERNANDEZ-GARCIA and THE CITY OF CAUAYAN, respondents.
DECISION
TINGA, J p:
Whenever the force of government or any of its political subdivisions bears upon to close
down a private broadcasting station, the issue of free speech infringement cannot be minimized, no
matter the legal justifications offered for the closure. In many respects, the present petitions offer a
textbook example of how the constitutional guarantee of freedom of speech, expression and of the
press may be unlawfully compromised. Tragically, the lower courts involved in this case failed to
recognize or assert the fundamental dimensions, and it is our duty to reverse, and to affirm the
Constitution and the most sacred rights it guarantees. AHDaET
Before us are two petitions for review involving the same parties, the cases having been
consolidated by virtue of the Resolution of this Court dated 16 June 2008. 1 Both petitions emanated
from a petition for mandamus 2 filed with the Regional Trial Court (RTC) of Cauayan City docketed as
Special Civil Action No. Br. 20-171, the petition having been dismissed in a Decision dated 14
September 2004 by the Cauayan City RTC, Branch 20. 3 Consequently, petitioners filed with the Court
of Appeals a petition for certiorari under Rule 65 and an appeal to the RTC decision. The appellate
court ruled against petitioners in both instances. The petition in G.R. No. 170270 assails the 27
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October 2005 decision of the Court of Appeals in CA-G.R. SP No. 87815, 4 while the petition in G.R.
179411 assails the 30 May 2007 decision of the Court of Appeals in C.A.-G.R. SP No. 88283. 5
I.
Bombo Radyo Philippines ("Bombo Radyo") operates several radio stations under the AM and
FM band throughout the Philippines. These stations are operated by corporations organized and
incorporated by Bombo Radyo, particularly petitioners Newsounds Broadcasting Network, Inc.
("Newsounds") and Consolidated Broadcasting System, Inc. ("CBS"). Among the stations run by
Newsounds is Bombo Radyo DZNC Cauayan (DZNC), an AM radio broadcast station operating out of
Cauayan City, Isabela. CBS, in turn, runs Star FM DWIT Cauayan ("Star FM"), also operating out of
Cauayan City, airing on the FM band. The service areas of DZNC and Star FM extend from the province
of Isabela to throughout Region II and the Cordillera region. 6
In 1996, Newsounds commenced relocation of its broadcasting stations, management office
and transmitters on property located in Minante 2, Cauayan City, Isabela. The property is owned by
CBS Development Corporation (CDC), an affiliate corporation under the Bombo Radyo network which
holds title over the properties used by Bombo Radyo stations throughout the country. 7 On 28 June
1996, CDC was issued by the then municipal government of Cauayan a building permit authorizing the
construction of a commercial establishment on the property. 8 On 5 July 1996, the Housing and Land
Use Regulatory Board (HLURB) issued a Zoning Decision certifying the property as commercial. 9 That
same day, the Office of the Municipal Planning and Development Coordinator (OMPDC) of Cauayan
affirmed that the commercial structure to be constructed by CDC conformed to local zoning
regulations, noting as well that the location "is classified as a Commercial area". 10 Similar
certifications would be issued by OMPDC from 1997 to 2001. 11
A building was consequently erected on the property, and therefrom, DZNC and Star FM
operated as radio stations. Both stations successfully secured all necessary operating documents,
including mayor's permits from 1997 to 2001. 12 During that period, CDC paid real property taxes on
the property based on the classification of the land as commercial. 13
All that changed beginning in 2002. On 15 January of that year, petitioners applied for the
renewal of the mayor's permit. The following day, the City Assessor's Office in Cauayan City noted on
CDC's Declaration of Real Property filed for 2002 confirmed that based on the existing file, CDC's
property was classified as "commercial". 14 On 28 January, representatives of petitioners formally
requested then City Zoning Administrator-Designate Bagnos Maximo (Maximo) to issue a zoning
clearance for the property. 15 Maximo, however, required petitioners to submit "either an approved
land conversion papers from the Department of Agrarian Reform (DAR) showing that the property
was converted from prime agricultural land to commercial land, or an approved resolution from
the Sangguniang Bayan orSangguniang Panglungsod authorizing the re-classification of the property
from agricultural to commercial land". 16 Petitioners had never been required to submit such papers
before, and from 1996 to 2001, the OMPDC had consistently certified that the property had been
classified as commercial.
Due to this refusal by Maximo to issue the zoning clearance, petitioners were unable to secure
a mayor's permit. Petitioners filed a petition for mandamus 17with the Regional Trial Court (RTC) of
Cauayan City to compel the issuance of the 2002 mayor's permit. The case was raffled to Branch 19
of the Cauayan City RTC. When the RTC of Cauayan denied petitioners' accompanying application for
injunctive relief, they filed a special civil action for certiorari with the Court of Appeals, 18but this
would be dismissed by the appellate court due to the availability of other speedy remedies with the
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trial court. In February of 2003, the RTC dismissed themandamus action for being moot and
academic. 19 caIACE
In the meantime, petitioners sought to obtain from the DAR Region II Office a formal
recognition of the conversion of the CDC property from agricultural to commercial. The matter was
docketed as Adm. Case No. A-0200A-07B-002. Then DAR Region II Director Abrino L. Aydinan (Director
Aydinan) granted the application and issued an Order that stated that "there remains no doubt on the
part of this Office of the non-agricultural classification of subject land before the effectivity ofRepublic
Act No. 6657 otherwise known as the Comprehensive Agrarian Reform Law of
1988". 20 Consequently, the DAR Region II Office ordered the formal exclusion of the property from
the Comprehensive Agrarian Reform Program, and the waiver of any requirement for formal
clearance of the conversion of the subject land from agricultural to non-agricultural use". 21
On 16 January 2003, petitioners filed their applications for renewal of mayor's permit for the
year 2003, attaching therein the DAR Order. Their application was approved. However, on 4 March
2003, respondent Felicisimo Meer, Acting City Administrator of Cauayan City, wrote to petitioners
claiming that the DAR Order was spurious or void, as the Regional Center for Land Use Policy Planning
and Implementation (RCLUPPI) supposedly reported that it did not have any record of the DAR Order.
A series of correspondences followed wherein petitioners defended the authenticity of the DAR Order
and the commercial character of the property, while respondent Meer demanded independent proof
showing the authenticity of the Aydinan Order. It does not appear though that any action was taken
against petitioners by respondents in 2003, and petitioners that year paid realty taxes on the property
based on the classification that said property is commercial. 22
The controversy continued into 2004. In January of that year, petitioners filed their respective
applications for their 2004 mayor's permit, again with the DAR Order attached to the same. A zonal
clearance was issued in favor of petitioners. Yet in a letter dated 13 January 2004, respondent Meer
claimed that no record existed of DAR Adm. Case No. A-0200A-07B-002 with the Office of the Regional
Director of the DAR or with the RCLUPPI. 23 As a result, petitioners were informed that there was no
basis for the issuance in their favor of the requisite zoning clearance needed for the issuance of the
mayor's permit. 24
Another series of correspondences ensued between Meer and the station manager of DZNC,
Charmy Sabigan (Sabigan). Sabigan reiterated the authenticity of the DAR Order and the commercial
character of the property, while Meer twice extended the period for application of the mayor's
permit, while reminding them of the need to submit the certifications from the DAR or
the Sangguniang Panlalawigan that the property had been duly converted for commercial use.
The deadline for application for the mayor's permit lapsed on 15 February 2004, despite
petitioners' plea for another extension. On 17 February 2004, respondents Meer and Racma
Fernandez-Garcia, City Legal Officer of Cauayan City, arrived at the property and closed the radio
stations. Petitioners proceeded to file a petition with the Commission on Elections (COMELEC) seeking
enforcement of the Omnibus Election Code, which prohibited the closure of radio stations during the
then-pendency of the election period. On 23 March 2004, the COMELEC issued an order directing the
parties to maintain the status prevailing before 17 February 2004, thus allowing the operation of the
radio stations, and petitioners proceeded to operate the stations the following day. Within hours,
respondent Mayor Ceasar Dy issued a Closure Order dated 24 March 2004, stating therein that since
petitioners did not have the requisite permits before 17 February 2004, the status quomeant that the
stations were not in fact allowed to operate. 25 Through the intervention of the COMELEC, petitioners
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were able to resume operation of the stations on 30 March 2004. On 9 May 2004, or two days before
the general elections of that year, the COMELEC denied the petition filed by petitioners and set aside
thestatus quo order. 26 However, this Resolution was reconsidered just 9 days later, or on 16 May
2004, and the COMELEC directed the maintenance of the status quountil 9 June 2004, the date of the
end of the election period. CTaSEI
Petitioners were thus able to continue operations until 10 June 2004, the day when
respondents yet again closed the radio stations. This closure proved to be more permanent.
By this time, the instant legal battle over the sought-after mayor's permits had already been
well under way. On 15 April 2004, petitioners filed a petition formandamus, docketed as SCA No. 20-
171, with the RTC of Cauayan City, Branch 20. The petition was accompanied by an application for the
issuance of temporary restraining order and writ of preliminary prohibitory injunction, both
provisional reliefs being denied by the RTC through an Order dated 20 April 2004. Respondents duly
filed an Answer with Counterclaims on 3 May 2004. Due to the aforementioned closure of the radio
stations on 10 June 2004, petitioners filed with the RTC a Motion for the Issuance of a Writ of
Preliminary Mandatory Injunction dated 15 June 2004, praying that said writ be issued to allow
petitioners to resume operations of the radio stations. No hearing would be conducted on the motion,
nor would it be formally ruled on by the RTC.
On 14 September 2004, the RTC rendered a Decision denying the petition
for mandamus. 27 The RTC upheld all the arguments of the respondents, including their right to deny
the sought after mayor's permit unless they were duly satisfied that the subject property has been
classified as commercial in nature. The Decision made no reference to the application for a writ of
preliminary mandatory injunction. Petitioners filed a motion for reconsideration, 28 citing the trial
court's failure to hear and act on the motion for preliminary mandatory injunction as a violation of
the right to due process, and disputing the RTC's conclusions with respect to their right to secure the
mayor's permit. This motion was denied in an Order dated 1 December 2004.
Petitioners initiated two separate actions with the Court of Appeals following the rulings of
the RTC. On 13 December 2004, they filed a Petition for Certiorariunder Rule 65, docketed as CA G.R.
No. 87815, raffled to the Fourteenth Division. 29 This petition imputed grave abuse of discretion on
the part of the RTC for denying their application for preliminary mandatory injunction. On the same
day, petitioners also filed a Notice of Appeal with the RTC, this time in connection with the denial of
their petition for mandamus. This appeal was docketed as CA G.R. SP No. 88283 and raffled to the
Eleventh Division.
Petitioners lost both of their cases with the Court of Appeals. On 27 October 2005, the Court
of Appeals in CA G.R. No. 87815 dismissed the Petition forCertiorari, ruling that the RTC did not
commit any grave abuse of discretion in impliedly denying the application for preliminary mandatory
injunction. On 30 May 2007, the Court of Appeals in CA-G.R. SP No. 88283 denied the appeal
by certiorari, affirming the right of the respondents to deny petitioners their mayor's permits. On both
occasions, petitioners filed with this Court respective petitions for review under Rule 45 the instant
petitions, now docketed as G.R. Nos. 170270 and 179411. ASIETa
On 23 January 2006, the Court in G.R. No. 170270 issued a writ of preliminary injunction,
"enjoining respondents from implementing the closure order dated March 24, 2005, or otherwise
interfering with the operations of Bombo Radyo DZNC Cauayan (NBN) and STAR FM DWIT Cauayan
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(CBS) in Cauayan City until final orders from this Court". 30 On 21 January 2008, the Court resolved to
consolidate G.R. No. 170270 with G.R. No. 179411, which had been initially dismissed outright but
was reinstated on even date. 31
Certiorari lies in both instances.
II.
The fundamental constitutional principle that informs our analysis of both petitions is the
freedom of speech, of expression or the press. 32 Free speech and free press may be identified with
the liberty to discuss publicly and truthfully any matter of public interest without censorship and
punishment. There is to be no previous restraint on the communication of views or subsequent
liability whether in libel suits, prosecution for sedition, or action for damages, or contempt
proceedings unless there be a clear and present danger of substantive evil that Congress has a right
to prevent. 33
Petitioners have taken great pains to depict their struggle as a textbook case of denial of the
right to free speech and of the press. In their tale, there is undeniable political color. They admit that
in 2001, Bombo Radyo "was aggressive in exposing the widespread election irregularities in Isabela
that appear to have favored respondent Dy and other members of the Dy political
dynasty". 34 Respondent Ceasar Dy is the brother of Faustino Dy, Jr., governor of Isabela from 2001
until he was defeated in his re-election bid in 2004 by Grace Padaca, a former assistant station
manager at petitioners' own DZNC Bombo Radyo. 35 A rival AM radio station in Cauayan City, DWDY,
is owned and operated by the Dy family. 36 Petitioners likewise direct our attention to a 20 February
2004 article printed in the Philippine Daily Inquirer where Dy is quoted as intending "to file
disenfranchisement proceedings against DZNC-AM". 37
The partisan component of this dispute will no doubt sway many observers towards one
opinion or the other, but not us. The comfort offered by the constitutional shelter of free expression
is neutral as to personality, affinity, ideology and popularity. The judges tasked to enforce
constitutional order are expected to rule accordingly from the comfort of that neutral shelter.
Still, it cannot be denied that our Constitution has a systemic bias towards free speech. The
absolutist tenor of Section 4, Article III testifies to that fact. The individual discomforts to particular
people or enterprises engendered by the exercise of the right, for which at times remedies may be
due, do not diminish the indispensable nature of free expression to the democratic way of
life. CcTHaD
The following undisputed facts bring the issue of free expression to fore. Petitioners are
authorized by law to operate radio stations in Cauayan City, and had been doing so for some years
undisturbed by local authorities. Beginning in 2002, respondents in their official capacities have taken
actions, whatever may be the motive, that have impeded the ability of petitioners to freely broadcast,
if not broadcast at all. These actions have ranged from withholding permits to operate to the physical
closure of those stations under color of legal authority. While once petitioners were able to broadcast
freely, the weight of government has since bore down upon them to silence their voices on the
airwaves. An elementary school child with a basic understanding of civics lessons will recognize that
free speech animates these cases.
Without taking into account any extenuating circumstances that may favor the respondents,
we can identify the bare acts of closing the radio stations or preventing their operations as an act of
prior restraint against speech, expression or of the press. Prior restraint refers to official governmental
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restrictions on the press or other forms of expression in advance of actual publication or

dissemination. 38 While any system of prior restraint comes to court bearing a heavy burden against
its constitutionality, 39 not all prior restraints on speech are invalid. 40
Nonetheless, there are added legal complexities to these cases which may not be necessarily
accessible to the layperson. The actions taken by respondents are colored with legal authority, under
the powers of local governments vested in the Local Government Code (LGC), or more generally, the
police powers of the State. We do not doubt that Local Government Units (LGU) are capacitated to
enact ordinances requiring the obtention of licenses or permits by businesses, a term defined
elsewhere in the LGC as "trade or commercial activity regularly engaged in as a means of livelihood or
with a view to profit".
And there is the fact that the mode of expression restrained in these cases broadcast is
not one which petitioners are physically able to accomplish without interacting with the regulatory
arm of the government. Expression in media such as print or the Internet is not burdened by such
requirements as congressional franchises or administrative licenses which bear upon broadcast
media. Broadcast is hampered by its utilization of the finite resources of the electromagnetic
spectrum, which long ago necessitated government intervention and administration to allow for the
orderly allocation of bandwidth, with broadcasters agreeing in turn to be subjected to regulation.
There is no issue herein that calls into question the authority under law of petitioners to engage in
broadcasting activity, yet these circumstances are well worth pointing out if only to provide the
correct perspective that broadcast media enjoys a somewhat lesser degree of constitutional
protection than print media or the Internet. aIcTCS
It emerges then that there exists tension between petitioners' right to free expression, and
respondents' authority by law to regulate local enterprises. What are the rules of adjudication that
govern the judicial resolution of this controversy?
B.
That the acts imputed against respondents constitute a prior restraint on the freedom of
expression of respondents who happen to be members of the press is clear enough. There is a long-
standing tradition of special judicial solicitude for free speech, meaning that governmental action
directed at expression must satisfy a greater burden of justification than governmental action directed
at most other forms of behavior. 41 We had said in SWS v. COMELEC: "Because of the preferred status
of the constitutional rights of speech, expression, and the press, such a measure is vitiated by a
weighty presumption of invalidity. Indeed, any system of prior restraints of expression comes to this
Court bearing a heavy presumption against its constitutional validity. . . . The Government 'thus carries
a heavy burden of showing justification for the enforcement of such restraint'. There is thus a reversal
of the normal presumption of validity that inheres in every legislation". 42
At the same time, jurisprudence distinguishes between a content-neutral regulation, i.e.,

merely concerned with the incidents of the speech, or one that merely controls the time, place or
manner, and under well defined standards; and a content-based restraint or censorship, i.e., the
restriction is based on the subject matter of the utterance or speech. 43 Content-based laws are
generally treated as more suspect than content-neutral laws because of judicial concern with
discrimination in the regulation of expression. 44 Content-neutral regulations of speech or of conduct
that may amount to speech, are subject to lesser but still heightened scrutiny. 45
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Ostensibly, the act of an LGU requiring a business of proof that the property from which it
operates has been zoned for commercial use can be argued, when applied to a radio station, as
content-neutral since such a regulation would presumably apply to any other radio station or business
enterprise within the LGU.
However, the circumstances of this case dictate that we view the action of the respondents
as a content-based restraint. In their petition for mandamus filed with the RTC, petitioners make the
following relevant allegations: CIDcHA
6.1. With specific reference to DZNC, Newsounds, to this date, is engaged in discussing
public issues that include, among others, the conduct of public officials that are
detrimental to the constituents of Isabela, including Cauayan City. In view of its wide
coverage, DZNC has been a primary medium for the exercise of the people of Isabela of
their constitutional right to free speech. Corollarily, DZNC has always been at the
forefront of the struggle to maintain and uphold freedom of the press, and the people's
corollary right to freedom of speech, expression and petition the government for
redress of grievances.
6.2. Newsound's only rival AM station in Cauayan and the rest of Isabela, DWDY, is
owned and operated by the family of respondent Dy. 46
xxx xxx xxx
35. Respondents closure of petitioners' radio stations is clearly tainted with ill motives.
35.1. It must be pointed out that in the 2001 elections, Bombo Radyo was
aggressive in exposing the widespread election irregularities in Isabela that
appear to have favored respondent Dy and other members of the Dy political
dynasty. It is just too coincidental that it was only after the 2001 elections (i.e.,
2002) that the Mayor's Office started questioning petitioners' applications for
renewal of their mayor's permits.
35.2. In an article found in the Philippine Daily inquirer dated 20 February 2004,
respondent Dy was quoted as saying that he will "disenfranchise the radio
station". Such statement manifests and confirms that respondents' denial of
petitioners' renewal applications on the ground that the Property is commercial
is merely a pretext and that their real agenda is to remove petitioners from
Cauayan City and suppress the latter's voice. This is a blatant violation of the
petitioners' constitutional right to press freedom.
A copy of the newspaper article is attached hereto as Annex "JJ". ECTIHa
35.3. The timing of respondents' closure of petitioners' radio stations is also
very telling. The closure comes at a most critical time when the people are set
to exercise their right of suffrage. Such timing emphasizes the ill motives of
respondents. 47
In their Answer with Comment 48 to the petition for mandamus, respondents admitted that
petitioners had made such exposes during the 2001 elections, though they denied the nature and
truthfulness of such reports. 49 They conceded that the Philippine Daily Inquirer story reported that
"Dy said he planned to file disenfranchisement proceedings against [DZNC]-AM". 50 While
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respondents assert that there are other AM radio stations in Isabela, they do not specifically refute
that station DWDY was owned by the Dy family, or that DZNC and DWDY are the two only stations
that operate out of Cauayan. 51
Prior to 2002, petitioners had not been frustrated in securing the various local government
requirements for the operation of their stations. It was only in the beginning of 2002, after the election
of respondent Ceasar Dy as mayor of Cauayan, that the local government started to impose these
new requirements substantiating the conversion of CDC's property for commercial use. Petitioners
admit that during the 2001 elections, Bombo Radyo "was aggressive in exposing the widespread
election irregularities in Isabela that appear to have favored Respondent Dy and other members of
the Dy political dynasty". 52 Respondents' efforts to close petitioners' radio station clearly intensified
immediately before the May 2004 elections, where a former employee of DZNC Bombo Radyo, Grace
Padaca, was mounting a credible and ultimately successful challenge against the incumbent Isabela
governor, who happened to be the brother of respondent Dy. It also bears notice that the
requirements required of petitioners by the Cauayan City government are frankly beyond the pale
and not conventionally adopted by local governments throughout the Philippines.
All those circumstances lead us to believe that the steps employed by respondents to
ultimately shut down petitioner's radio station were ultimately content-based. The United States
Supreme Court generally treats restriction of the expression of a particular point of view as the
paradigm violation of the First Amendment.53 The facts confronting us now could have easily been
drawn up by a constitutional law professor eager to provide a plain example on how free speech may
be violated.
The Court is of the position that the actions of the respondents warrant heightened or strict
scrutiny from the Court, the test which we have deemed appropriate in assessing content-based
restrictions on free speech, as well as for laws dealing with freedom of the mind or restricting the
political process, of laws dealing with the regulation of speech, gender, or race as well as other
fundamental rights as expansion from its earlier applications to equal protection. 54 The immediate
implication of the application of the "strict scrutiny" test is that the burden falls upon respondents as
agents of government to prove that their actions do not infringe upon petitioners' constitutional
rights. As content regulation cannot be done in the absence of any compelling reason, 55 the burden
lies with the government to establish such compelling reason to infringe the right to free
expression. TaEIcS
III.
We first turn to whether the implicit denial of the application for preliminary mandatory
injunction by the RTC was in fact attended with grave abuse of discretion. This is the main issue raised
in G.R. No. 170270.
To recall, the RTC on 20 April 2004 issued an order denying the prayer for the issuance of a
writ of preliminary injunction, claiming that "[t]here is insufficiency of allegation . . . [t]here is no
certainty that after the election period, the respondents will interfere with the operation of the radio
stations . . . which are now operating by virtue of the order of the COMELEC". 56 Petitioners filed a
motion for reconsideration, which the RTC denied on 13 May 2004. The refusal of the RTC to grant
provisional relief gave way to the closure of petitioners' radio stations on 10 June 2004, leading for
them to file a motion for the issuance of a writ of preliminary mandatory injunction on 25 June 2004.
This motion had not yet been acted upon when on 14 September 2004, the RTC promulgated its
decision denying the petition for mandamus.
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Among the arguments raised by petitioners in their motion for reconsideration before the
RTC was against the implied denial of their motion for the issuance of a writ of preliminary mandatory
injunction, claiming in particular that such implicit denial violated petitioners' right to due process of
law since no hearing was conducted thereupon. However, when the RTC denied the motion for
reconsideration in its 1 December 2004 Order, it noted that its implied denial of the motion for a writ
of preliminary mandatory injunction was not a ground for reconsideration of its decision.
Petitioners maintain that the RTC acted with grave abuse of discretion when it impliedly
denied their motion for the issuance of a writ of preliminary mandatory injunction without any
hearing. The Court of Appeals pointed out that under Section 5 of Rule 58 of the 1997 Rules of Civil
Procedure, it is the granting of a writ of preliminary injunction that mandatorily requires a hearing.
The interpretation of the appellate court is supported by the language of the rule itself:
SEC. 5. Preliminary injunction not granted without notice; exception. No preliminary
injunction shall be granted without hearing and prior notice to the party or person
sought to be enjoined. If it shall appear from facts shown by affidavits or by the verified
application that great or irreparable injury would result to the applicant before the
matter can be heard on notice, the court to which the application for preliminary
injunction was made, may issue ex parte a temporary restraining order to be effective
only for a period of twenty (20) days from service on the party or person sought to be
enjoined, except as herein provided. . . . acCETD
Section 5 of Rule 58 prescribes a mandatory hearing and prior notice to the party or person
sought to be enjoined if preliminary injunction should be granted. It imposes no similar requirement
if such provisional relief were to be denied. We in fact agree with the Court of Appeals that "if on the
face of the pleadings, the applicant for preliminary injunction is not entitled thereto, courts may
outrightly deny the motion without conducting a hearing for the purpose". 57The Court is disinclined
to impose a mandatory hearing requirement on applications for injunction even if on its face,
injunctive relief is palpably without merit or impossible to grant. Otherwise, our trial courts will be
forced to hear out the sort of litigation-happy attention-deprived miscreants who abuse the judicial
processes by filing complaints against real or imaginary persons based on trivial or inexistent slights.
We do not wish though to dwell on this point, as there is an even more fundamental point to
consider. Even as we decline to agree to a general * that the denial of an application for injunction
requires a prior hearing, we believe in this case that petitioners deserved not only a hearing on their
motion, but the very writ itself.
As earlier stated, the burden of presuming valid the actions of respondents sought, fraught as
they were with alleged violations on petitioners' constitutional right to expression, fell on respondents
themselves. This was true from the very moment the petition for mandamus was filed. It was evident
from the petition that the threat against petitioners was not wildly imagined, or speculative in any
way. Attached to the petition itself was the Closure Order dated 13 February 2004 issued by
respondents against petitioners. 58 There was no better evidence to substantiate the claim that
petitioners faced the live threat of their closure.Moreover, respondents in their Answer admitted to
issuing the Closure Order. 59
At the moment the petition was filed, there was no basis for the RTC to assume that there
was no actual threat hovering over petitioners for the closure of their radio stations. The trial court
should have been cognizant of the constitutional implications of the case, and appreciated that the
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burden now fell on respondents to defend the constitutionality of their actions. From that mindset,
the trial court could not have properly denied provisional relief without any hearing since absent any
extenuating defense offered by the respondents, their actions remained presumptively
invalid. DAEICc
Our conclusions hold true not only with respect to the implied denial of the motion for
preliminary injunction, but also with the initial denial without hearing on 20 April 2004 of the prayer
for a writ of preliminary injunction and temporary restraining order. Admittedly, such initial denial is
not the object of these petitions, yet we can observe that such action of the RTC was attended with
grave abuse of discretion, the trial court betraying ignorance of the constitutional implications of the
petition. With respect to the subsequent "implied denial" of the writ of preliminary mandatory
injunction, the grave abuse of discretion on the part of the trial court is even more glaring. At that
point, petitioners' radio stations were not merely under threat of closure, they were already
actually closed. Petitioners' constitutional rights were not merely under threat of infringement,
they were already definitely infringed.
The application of the strict scrutiny analysis to petitioners' claims for provisional relief
warrants the inevitable conclusion that the trial court cannot deny provisional relief to the party
alleging a prima facie case alleging government infringement on the right to free expression without
hearing from the infringer the cause why its actions should be sustained provisionally. Such acts of
infringement are presumptively unconstitutional, thus the trial court cannot deny provisional relief
outright since to do so would lead to the sustention of a presumptively unconstitutional act. It would
be necessary for the infringer to appear in court and somehow rebut against the presumption of
unconstitutionality for the trial court to deny the injunctive relief sought for in cases where there is
a prima facie case establishing the infringement of the right to free expression.
Those above-stated guidelines, which pertain most particularly to the ex parte denial of
provisional relief in free expression cases, stand independently of the established requisites for a party
to be entitled to such provisional reliefs. With respect to writs of preliminary injunction, the requisite
grounds are spelled out in Section 3 of Rule 58 of the Rules of Court.
It may be pointed out that the application for preliminary mandatory injunction after
petitioners' radio stations had been closed was mooted by the RTC decision denying the petition
for mandamus. Ideally, the RTC should have acted on the motion asking for the issuance of the writ
before rendering its decision. Given the circumstances, petitioners were entitled to immediate relief
after they filed their motion on 25 June 2004, some two and a half months before the RTC decision
was promulgated on 14 September 2004. It is not immediately clear why the motion, which had been
set for hearing on 2 July 2004, had not been heard by the RTC, so we have no basis for imputing bad
faith on the part of the trial court in purposely delaying the hearing to render it moot with the
forthcoming rendition of the decision. Nonetheless, given the gravity of the constitutional question
involved, and the fact that the radio stations had already been actually closed, a prudent judge would
have strived to hear the motion and act on it accordingly independent of the ultimate
decision. HEDaTA
Since the prayer for the issuance of a writ of mandatory injunction in this case was impliedly
denied through the decision denying the main action, we have no choice but to presume that the
prayer for injunction was denied on the same bases as the denial of the petition for mandamus itself.
The time has come for us to review such denial, the main issue raised in G.R. No. 179411.
IV.
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The perspective from which the parties present the matter for resolution in G.R. No. 179411
is whether the property of CDC had been duly converted or classified for commercial use, with
petitioners arguing that it was while respondents claiming that the property remains agricultural in
character. This perspective, to our mind, is highly myopic and implicitly assumes that the
requirements imposed on petitioners by the Cauayan City government are in fact legitimate.
The LGC authorizes local legislative bodies to enact ordinances authorizing the issuance of
permits or licenses upon such conditions and for such purposes intended to promote the general
welfare of the inhabitants of the LGU. 60 A municipal or city mayor is likewise authorized under the
LGC to "issue licenses and permits and suspend or revoke the same for any violation of the conditions
upon which said licenses or permits had been issued, pursuant to law or ordinance". 61Generally,
LGUs have exercised its authority to require permits or licenses from business enterprises operating
within its territorial jurisdiction.
A municipal license is essentially a governmental restriction upon private rights and is valid
only if based upon an exercise by the municipality of its police or taxing powers. 62 The LGC subjects
the power of sanggunians to enact ordinances requiring licenses or permits within the parameters of
Book II of the Code, concerning "Local Taxation and Fiscal Matters". It also necessarily follows that the
exercise of this power should also be consistent with the Constitution as well as the other laws of the
land.
Nothing in national law exempts media entities that also operate as businesses such as
newspapers and broadcast stations such as petitioners from being required to obtain permits or
licenses from local governments in the same manner as other businesses are expected to do so. While
this may lead to some concern that requiring media entities to secure licenses or permits from local
government units infringes on the constitutional right to a free press, we see no concern so long as
such requirement has been duly ordained through local legislation and content-neutral in
character, i.e., applicable to all other similarly situated businesses.
Indeed, there are safeguards within the LGC against the arbitrary or unwarranted exercise of
the authority to issue licenses and permits. As earlier noted, the power of sanggunians to enact
ordinances authorizing the issuance of permits or licenses is subject to the provisions of Book Two of
the LGC. The power of the mayor to issue license and permits and suspend or revoke the same must
be exercised pursuant to law or ordinance. 63
In the case of Cauayan City, the authority to require a mayor's permit was enacted through
Ordinance No. 92-004, enacted in 1993 when Cauayan was still a municipality. We quote therefrom:
Sec. 3A.01. Imposition of Fee. There shall be imposed and collected an annual fee at
the rates provided hereunder for the issuance of Mayor's Permit to every person that
shall conduct business, trade or activity within the Municipality of Cauayan.
The permit fee is payable for every separate or distinct establishment or place where
the business trade or activity is conducted. One line of business or activity does not
become exempt by being conducted with some other business or activity for which the
permit fee has been paid.
xxx xxx xxx
Sec. 3A.03. Application for Mayor's Permit; False Statements. A written application
for a permit to operate a business shall be filed with the Office of the Mayor in three
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copies. The application form shall set forth the name and address of the applicant, the
description or style of business, the place where the business shall be conducted and
such other pertinent information or data as may be required. AEHTIC
Upon submission of the application, it shall be the duty of the proper authorities to
verify if the other Municipal requirements regarding the operation of the business or
activity are complied with. The permit to operate shall be issued only upon such
compliance and after the payment of the corresponding taxes and fees as required by
this revenue code and other municipal tax ordinances.
Any false statement deliberately made by the applicant shall constitute sufficient
ground for denying or revoking the permit issued by the Mayor, and the applicant or
licensee may further be prosecuted in accordance with the penalties provided in this
article.
A Mayor's Permit shall be refused to any person:
(1) Whose business establishment or undertaking does not conform with zoning
regulations and safety, health and other requirements of the Municipality; (2) that has
an unsettled tax obligations, debt or other liability to the Municipal Government; and
(3) that is disqualified under any provision of law or ordinance to establish, or operate
the business for which a permit is being applied. 64
Petitioners do not challenge the validity of Ordinance No. 92-004. On its face, it operates as a
content-neutral regulation that does not impose any special impediment to the exercise of the
constitutional right to free expression. Still, it can be seen how under the veil of Ordinance No. 92-
004 or any other similarly oriented ordinance, a local government unit such as Cauayan City may
attempt to infringe on such constitutional rights.
A local government can quite easily cite any of its regulatory ordinances to impose retaliatory
measures against persons who run afoul it, such as a business owned by an opponent of the
government, or a crusading newspaper or radio station. While the ill-motives of a local government
do not exempt the injured regulatory subject from complying with the municipal laws, such laws
themselves do not insulate those ill-motives if they are attended with infringements of constitutional
rights, such as due process, equal protection and the right to free expression. Our system of laws
especially frown upon violations of the guarantee to free speech, expression and a free press, vital as
these are to our democratic regime.
Nothing in Ordinance No. 92-004 requires, as respondents did, that an applicant for a mayor's
permit submit "either an approved land conversion papers from the DAR showing that its property
was converted from prime agricultural land to commercial land, or an approved resolution from
the Sangguniang Bayan orSangguniang Panglungsod authorizing the re-classification of the property
from agricultural to commercial land". 65 The aforecited provision which details the procedure for
applying for a mayor's permit does not require any accompanying documents to the application, much
less those sought from petitioners by respondents. Moreover, Ordinance No. 92-004 does not impose
on the applicant any burden to establish that the property from where the business was to operate
had been duly classified as commercial in nature. TcICEA
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According to respondents, it was only in 2002 that "the more diligent Respondent Bagnos
Maximo" discovered "the mistake committed by his predecessor in the issuance of the Petitioners'
Zoning Certifications from 1996 to 2001". 66 Assuming that were true, it would perhaps have given
cause for the local government in requiring the business so affected to submit additional
requirements not required of other applicants related to the classification of its property. Still, there
are multitude of circumstances that belie the claim that the previous certifications issued by the
OMPDC as to the commercial character of CDC's property was incorrect.
On 5 July 1996, the HLURB issued a Zoning Decision that classified the property as
Commercial. 67 The HLURB is vested with authority to "review, evaluate and approve or disapprove .
. . the zoning component of . . . subdivisions, condominiums or estate development projects including
industrial estates, of both the public and private sectors". 68 In exercising such power, the HLURB is
required to use Development Plans and Zoning Ordinances of local governments herein. 69 There is
no reason to doubt that when the HLURB acknowledged in 1996 that the property in question was
commercial, it had consulted the development plans and zoning ordinances of Cauayan.
Assuming that respondents are correct that the property was belatedly revealed as non-
commercial, it could only mean that even the HLURB, and not just the local government of Cauayan
erred when in 1996 it classified the property as commercial. Or, that between 1996 to 2002, the
property somehow was reclassified from commercial to agricultural. There is neither evidence nor
suggestion from respondents that the latter circumstance obtained.
Petitioners are also armed with six certifications issued by the OMPDC for the consecutive
years 1996 to 2001, all of which certify that the property is "classified as commercial area . . . in
conformity with the Land Use Plan of this municipality and does not in any way violate the existing
Zoning Ordinance of Cauayan, Isabela".70 In addition, from 1997 to 2004, petitioners paid real
property taxes on the property based on the classification of the property as commercial, without any
objections raised by respondents. 71 These facts again tend to confirm that contrary to respondents'
assertions, the property has long been classified as commercial.
Petitioners persuasively argue that this consistent recognition by the local government of
Cauayan of the commercial character of the property constitutes estoppel against respondents from
denying that fact before the courts. The lower courts had ruled that "the government of Cauayan City
is not bound by estoppel", but petitioners point out our holding in Republic v.
Sandiganbayan 72 where it was clarified that "this concept is understood to refer to acts and mistakes
of its officials especially those which are irregular". 73 Indeed, despite the general rule that the State
cannot be put in estoppel by the mistake or errors of its officials or agents, we have also recognized,
thus: cCSEaA
Estoppels against the public are little favored. They should not be invoked except in
a rare and unusual circumstances, and may not be invoked where they would operate
to defeat the effective operation of a policy adopted to protect the public. They must
be applied with circumspection and should be applied only in those special cases
where the interests of justice clearly require it. Nevertheless, the government must
not be allowed to deal dishonorably or capriciously with its citizens, and must not
play an ignoble part or do a shabby thing; and subject to limitations . . ., the doctrine
of equitable estoppel may be invoked against public authorities as well as against
private individuals. 74
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Thus, when there is no convincing evidence to prove irregularity or negligence on the part of
the government official whose acts are being disowned other than the bare assertion on the part of
the State, we have declined to apply State immunity from estoppel. 75 Herein, there is absolutely no
evidence other than the bare assertions of the respondents that the Cauayan City government had
previously erred when it certified that the property had been zoned for commercial use. One would
assume that if respondents were correct, they would have adduced the factual or legal basis for their
contention, such as the local government's land use plan or zoning ordinance that would indicate that
the property was not commercial. Respondents did not do so, and the absence of any evidence other
than bare assertions that the 1996 to 2001 certifications were incorrect lead to the ineluctable
conclusion that respondents are estopped from asserting that the previous recognition of the
property as commercial was wrong.
The RTC nonetheless asserted that the previous certifications, issued by Deputy Zoning
Administrator Romeo N. Perez (Perez), were incorrect as "he had no authority to make the conversion
or reclassification of the land from agricultural to commercial". 76 Yet contrary to the premise of the
RTC, the certifications issued by Perez did no such thing. Nowhere in the certifications did it state that
Perez was exercising the power to reclassify the land from agricultural to commercial. What Perez
attested to in those documents was that the property "is classified as Commercial area", "in
conformity with the Land Use Plan of this municipality and does not in any way violate the existing
Zoning Ordinance of Cauayan, Isabela". What these certifications confirm is that according to the Land
Use Plan and existing zoning ordinances of Cauayan, the property in question is commercial.
Compounding its error, the RTC also stated that following Section 65 77 of Rep. Act No. 6657,
or the Comprehensive Agrarian Reform Law, "only the DAR, upon proper application . . . can authorize
the reclassification or conversion of the use of the land from agricultural to residential, commercial
or industrial". The citation is misleading. Section 4 of the same law provides for the scope of the
agrarian reform program under the CARL as covering "all public and private agricultural lands, as
provided in Proclamation No. 131 and Executive Order No. 229, including other lands of the public
domain suitable for agriculture". 78 Section 3 (c) defines agricultural lands as "land devoted to
agricultural activity as defined in this Act and not classified as mineral, forest, residential, commercial
or industrial land". 79Obviously, if the property had already been classified as commercial land at the
time of the enactment of the CARL, it does not fall within the class of agricultural lands which may be
subject of conversion under Section 65 of that law. Section 65, as relied upon by the trial court, would
have been of relevance only if it had been demonstrated by respondents that the property was still
classified as agricultural when the CARL was enacted. THAICD
It is worth emphasizing that because the acts complained of the respondents led to the
closure of petitioners' radio stations, at the height of election season no less, respondents' actions
warrant strict scrutiny from the courts, and there can be no presumption that their acts are
constitutional or valid. In discharging the burden of establishing the validity of their actions, it is
expected that respondents, as a condition sine qua non, present the legal basis for their claim that the
property was not zoned commercially the proclaimed reason for the closure of the radio stations.
The lower courts should have known better than to have swallowed respondents' unsubstantiated
assertion hook, line and sinker.
We can also point out that aside from the evidence we have cited, petitioners' contention
that the property had been duly classified for commercial use finds corroboration from the Order
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dated 14 March 2002 issued by DAR Region II Director Aydinan in Adm. Case No. A-0200A-07B-002.
The Order stated, viz.:
Official records examined by this Office indicate continued use of subject land for
purposes other than agricultural since 1986. Back when Cauayan was still a
municipality, the Office of the Planning and Development Coordinator documented
subject land under a commercial classification. The Zoning Administrator deputized by
the Housing and Land Use Regulatory Board certified in 1998 that subject land's
attribution to the Commercial Zone "is in conformity with the Land Use Plan of this
municipality and does not in any way violate any existing Zoning Ordinance of Cauayan,
Isabela" adding the stipulation that a 15-meter setback from the centerline of the
National Road has to be observed.
If the area in which subject land is found was already classified non-agricultural even
before urban growth saw Cauayan became a city in 2001, assuming its reversion to the
agricultural zone now taxes logic. In any case, such a dubious assumption can find no
support in any current land use plan for Cauayan approved by the National Economic
Development Authority. 80
Petitioners' citation of this Order has been viciously attacked by respondents, with approval
from the lower courts. Yet their challenges are quite off-base, and ultimately irrelevant.
The Order has been characterized by respondents as a forgery, based on a certification issued
by the Head of the RCLUPPI Secretariat that his office "has no official record nor case docketed of the
petition filed by CBS Development Corporation, represented by Charmy Sabigan and the order issued
bearing Docket No. ADM. Case No. A-02200A-07B-002 of the subject case, did not emanate from
RCLUPPI which has its own docketing system to applications for conversion/exemption under DOJ
Opinion No. 44, Series of 1990". 81 Respondents thus hint at a scenario where petitioners scrambled
to create the Order out of nowhere in order to comply with the sought-after requirements. However,
an examination of the Order reveals an explanation that attests to the veracity of the Order without
denigrating from the truthfulness of the RCLUPPI certification. DcaCSE
The Order notes that the petition had been filed by CDC with the DAR Region II "to, in effect,
officially remove from the agrarian reform sub-zone, in particular, and the broad agricultural, in
general, Petitioner's land holding embraced by Transfer Certificate of Title No. T-254786 which is
located in [B]arangay Minante II of Cauayan City . . .". 82 It goes on to state:
Herein petition can go through the normal procedure and, after the submission of
certain documentary supports that have to be gathered yet from various agencies,
should be granted as a matter of course. However, a new dimension has been
introduced when the unformalized conversion of the use of subject land from an
agricultural to a non-agricultural mode has provided an excuse to some official quarters
to disallow existing commercial operation, nay, the broadcast activities of Petitioner
and, thus, perhaps threaten an essential freedom in our democratic setting, the liberty
of mass media organizations to dispense legitimate information to the public
unhampered by any extraneous obstacles. Hence, overarching public interest has made
an official declaration of subject landholding's removal from the agricultural zone most
urgent and, thus immediate action on the case imperative.
[1461]
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BOLD BUT FAITHFUL
To the extent that legitimate social interest are unnecessarily prejudiced otherwise,
procedural rules laid down by Government must yield to the living reason and to
common sense in the concrete world as long as the underlying principles of effective
social-justice administration and good governance are not unduly sacrificed. Thus, it is
incumbent upon the Department of Agrarian Reform, or DAR for brevity, to take into
account in decision-making with respect to the case at hand more basic principles in
order to uphold the cause of conscientious and timely public service.
Needless to say, this Office, given the latitude of discretion inherent to it, can
simultaneously address the Petition and the procedural concerns collateral to it when
subordinate offices tend to treat such concerns as factors complicating the essential
question or questions and view the Petition as one that it is not amenable to ready
problem-solving and immediate decision-making. To forestall a cycle of helpless
inaction or indecisive actions on the part of the subordinate offices as customarily
happens in cases of this nature, this Office shall proceed to treat the petition at hand as
a matter of original jurisdiction in line with its order of Assumption of Direct Jurisdiction
of 03 December 2001, a prior action taken, in general, by this Office over cases of Land-
Tenure Improvement, Failure, Problematic Coverage, Land-Owners' and Special
Concerns, Other Potential Flash Points of Agrarian Conflict, and Long-Standing
Problems Calling for Discretionary Decision Making. 83 aDHCAE
In so many words, DAR Region II Director Aydinan manifested that he was assuming direct
jurisdiction over the petition, to the exclusion of subordinate offices such as that which issued the
certification at the behest of the respondents, the RCLUPPI of the DAR Region II Office. Thus, the
RCLUPPI could have validly attested that "the subject case did not emanate from the RCLUPPI which
has its own docketing system to applications for conversion/exemption under DOJ Opinion No. 44,
Series of 1990". One could quibble over whether Director Aydinan had authority to assume direct
jurisdiction over CDC's petition to the exclusion of the RCLUPPI, but it would not detract from the
apparent fact that the Director of the DAR Region II Office did issue the challenged Order. Assuming
that the Order was issued without or in excess of jurisdiction, it does not mean that the Order was
forged or spurious, it would mean that the Order is void.
How necessary is it for us to delve into the validity or efficacy of the Aydinan Order? Certainly,
any conclusions we draw from the said Order are ultimately irrelevant to the resolution of these
petitions. The evidence is compelling enough that the property had already been duly classified for
commercial use long before the Aydinan Order was issued. Respondents, who had the burden of
proving that they were warranted in ordering the closure of the radio stations, failed to present any
evidence to dispute the long-standing commercial character of the property. The inevitable
conclusion is that respondents very well knew that the property, was commercial in character, yet still
proceeded without valid reason and on false pretenses, to refuse to issue the mayor's permit and
subsequently close the radio stations. There is circumstantial evidence that these actions were
animated by naked political motive, by plain dislike by the Cauayan City powers-that-be of the content
of the broadcast emanating in particular from DZNC, which had ties to political opponents of the
respondents. Respondents were further estopped from disclaiming the previous consistent
recognition by the Cauayan City government that the property was commercially zoned unless they
had evidence, which they had none, that the local officials who issued such certifications acted
irregularly in doing so.
[1462]
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It is thus evident that respondents had no valid cause at all to even require petitioners to
secure "approved land conversion papers from the DAR showing that the property was converted
from prime agricultural land to commercial land". That requirement, assuming that it can be
demanded by a local government in the context of approving mayor's permits, should only obtain
upon clear proof that the property from where the business would operate was classified as
agricultural under the LGU's land use plan or zoning ordinances and other relevant laws. No evidence
to that effect was presented by the respondents either to the petitioners, or to the courts.
V.
Having established that respondents had violated petitioners' legal and constitutional rights,
let us now turn to the appropriate reliefs that should be granted.
At the time petitioners filed their special civil action for mandamus on 15 April 2004, their
radio stations remained in operation despite an earlier attempt by respondents to close the same, by
virtue of an order rendered by the COMELEC. The mandamus action sought to compel respondents
to immediately issue petitioners' zoning clearances and mayor's permit for 2004. During the pendency
of the action for mandamus, respondents finally succeeded in closing the radio stations, and it was
possible at that stage for petitioners to have likewise sought the writs of prohibition and/or certiorari.
Petitioners instead opted to seek for a writ or preliminary mandatory injunction from the trial court,
a viable recourse albeit one that remains ancillary to the main action for mandamus. ECaSIT
We had previously acknowledged that petitioners are entitled to a writ of preliminary
mandatory injunction that would have prevented the closure of the radio stations. In addition, we
hold that the writ of mandamus lies. Mandamus lies as the proper relief whenever a public officer
unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting
from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right
or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in
the ordinary course of law. 84 For the year 2004, petitioners had duly complied with the requirements
for the issuance of the same mayor's permit they had obtained without issue in years prior. There was
no basis for respondents to have withheld the zoning clearances, and consequently the mayor's
permit, thereby depriving petitioners of the right to broadcast as certified by the Constitution and
their particular legislative franchise.
We turn to the issue of damages. Petitioners had sought to recover from respondents P8
Million in temperate damages, P1 Million in exemplary damages, and P1 Million in attorney's fees.
Given respondents' clear violation of petitioners' constitutional guarantee of free expression, the right
to damages from respondents is squarely assured by Article 32 (2) of the Civil Code, which provides:
Art. 32. Any public officer or employee, or any private individual, who directly or
indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the
following rights and liberties of another person shall be liable to the latter for damages:
xxx xxx xxx
(2) Freedom of speech;
We noted in Lim v. Ponce de Leon that "[p]ublic officials in the past have abused their powers
on the pretext of justifiable motives or good faith in the performance of their duties . . . [and] the
[1463]
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BOLD BUT FAITHFUL
object of [Article 32 of the Civil Code] is to put an end to official abuse by plea of the good
faith". 85 The application of Article 32 not only serves as a measure of pecuniary recovery to mitigate
the injury to constitutional rights, it likewise serves notice to public officers and employees that any
violation on their part of any person's guarantees under the Bill of Rights will meet with final
reckoning.
The present prayer for temperate damages is premised on the existence of pecuniary injury
to petitioner due to the actions of respondents, the amount of which nevertheless being difficult to
prove. 86 Temperate damages avail when the court finds that some pecuniary loss has been suffered
but its amount can not, from the nature of the case, be proved with certainty. 87 The existence of
pecuniary injury at bar cannot be denied. Petitioners had no way of knowing it when they filed their
petition, but the actions of respondents led to the closure of their radio stations from June 2004 until
this Court issued a writ of preliminary injunction in January 2006. 88 The lost potential income during
that one and a half year of closure can only be presumed as substantial enough. Still, despite that fact,
possibly unanticipated when the original amount for claimed temperate damages was calculated,
petitioners have maintained before this Court the same amount, P8 Million, for temperate damages.
We deem the amount of P4 Million "reasonable under the circumstances". 89 AEIHCS
Exemplary damages can be awarded herein, since temperate damages are available. Public
officers who violate the Constitution they are sworn to uphold embody "a poison of wickedness that
may not run through the body politic". 90 Respondents, by purposely denying the commercial
character of the property in order to deny petitioners' the exercise of their constitutional rights and
their business, manifested bad faith in a wanton, fraudulent, oppressive and malevolent
manner. 91 The amount of exemplary damages need not be proved where it is shown that plaintiff is
entitled to temperate damages, 92 and the sought for amount of P1 Million is more than appropriate.
We likewise deem the amount of P500 Thousand in attorney's fees as suitable under the
circumstances.
WHEREFORE, the petitions are GRANTED. The assailed decisions of the Court of Appeals and
the Regional Trial Court of Cauayan City, Branch 24, are hereby REVERSED and SET ASIDE. The instant
petition for mandamus is hereby GRANTED and respondents are directed to immediately issue
petitioners' zoning clearances and mayor's permits for 2004 to petitioners.
Respondents Caesar G. Dy, Felicisimo G. Meer, Bagnos Maximo, and Racma Fernandez-Garcia
are hereby ORDERED to pay petitioners JOINTLY AND SEVERALLY the following amounts in damages:
(1) FOUR MILLION PESOS (P4,000,000.00) as TEMPERATE DAMAGES; 93
(2) ONE MILLION PESOS (P1,000,000.00) as EXEMPLARY DAMAGES;
(3) FIVE HUNDRED THOUSAND PESOS (P500,000.00) as ATTORNEY'S FEES.
Costs against respondents.
SO ORDERED. ESCcaT
Quisumbing, Carpio Morales, Velasco, Jr. and Peralta, * JJ., concur.
||| (Newsounds Broadcasting Network, Inc. v. Dy, G.R. Nos. 170270 & 179411, [April 2, 2009], 602 PHIL
255-293)
SORIANO VS. LAGUARDIA 587 SCRA 79 (2009)
[1464]
AUDAX AT FIDELIS
BOLD BUT FAITHFUL
ELISEO F. SORIANO, petitioner,vs.MA. CONSOLIZA P. LAGUARDIA, in her capacity as

Chairperson of the Movie and Television Review and Classification Board, MOVIE AND
TELEVISION REVIEW AND CLASSIFICATION BOARD, JESSIE L. GALAPON, ANABEL M.
DELA CRUZ, MANUEL M. HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE
S. YARIA, JR.,MICHAEL M. SANDOVAL, and ROLDAN A. GAVINO, respondents.
[G.R. No. 165636. April 29, 2009.]
ELISEO F. SORIANO,petitioner, vs. MOVIE AND TELEVISION REVIEW AND

CLASSIFICATION BOARD, ZOSIMO G. ALEGRE, JACKIE AQUINO-GAVINO, NOEL R. DEL
PRADO, EMMANUEL BORLAZA, JOSE E. ROMERO IV, and FLORIMONDO C. ROUS, in
their capacity as members of the Hearing and Adjudication Committee of the MTRCB,
JESSIE L. GALAPON, ANABEL M. DELA CRUZ, MANUEL M. HERNANDEZ, JOSE L. LOPEZ,
CRISANTO SORIANO, BERNABE S. YARIA, JR.,MICHAEL M. SANDOVAL, and ROLDAN A.
GAVINO, in their capacity as complainants before the MTRCB,respondents.
DECISION
VELASCO, JR.,J p:
In these two petitions for certiorari and prohibition under Rule 65, petitioner Eliseo F. Soriano
seeks to nullify and set aside an order and a decision of the Movie and Television Review and
Classification Board (MTRCB) in connection with certain utterances he made in his television
show, Ang Dating Daan.
Facts of the Case
On August 10, 2004, at around 10:00 p.m.,petitioner, as host of the program Ang Dating
Daan, aired on UNTV 37, made the following remarks:
Lehitimong anak ng demonyo; sinungaling;
Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung putang babae ang
gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba!
O, masahol pa sa putang babae yan. Sabi ng lola ko masahol pa sa putang babae yan.
Sobra ang kasinungalingan ng mga demonyong ito. 1 ...
Two days after, before the MTRCB, separate but almost identical affidavit-complaints were
lodged by Jessie L. Galapon and seven other private respondents, all members of the Iglesia ni Cristo
(INC), 2 against petitioner in connection with the above broadcast. Respondent Michael M. Sandoval,
who felt directly alluded to in petitioner's remark, was then a minister of INC and a regular host of the
TV program Ang Tamang Daan. 3 Forthwith, the MTRCB sent petitioner a notice of the hearing on
August 16, 2004 in relation to the alleged use of some cuss words in the August 10, 2004 episode
of Ang Dating Daan. 4 cDAISC
[1465]
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BOLD BUT FAITHFUL
After a preliminary conference in which petitioner appeared, the MTRCB, by Order of August
16, 2004, preventively suspended the showing of Ang Dating Daanprogram for 20 days, in accordance
with Section 3 (d) of Presidential Decree No. (PD) 1986, creating the MTRCB, in relation to Sec. 3,
Chapter XIII of the 2004 Implementing Rules and Regulations (IRR) of PD 1986 and Sec. 7, Rule VII of
the MTRCB Rules of Procedure. 5 The same order also set the case for preliminary investigation.
The following day, petitioner sought reconsideration of the preventive suspension order,
praying that Chairperson Consoliza P. Laguardia and two other members of the adjudication board
recuse themselves from hearing the case. 6 Two days after, however, petitioner sought to
withdraw 7 his motion for reconsideration, followed by the filing with this Court of a petition
for certiorari and prohibition, 8 docketed as G.R. No. 164785, to nullify the preventive suspension
order thus issued.
On September 27, 2004, in Adm. Case No. 01-04, the MTRCB issued a decision, disposing as
follows:
WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, finding
respondent Soriano liable for his utterances and thereby imposing on him a penalty of
three (3) months suspension from his program, "Ang Dating Daan".
Co-respondents Joselito Mallari, Luzviminda Cruz and UNTV Channel 37 and its owner,
PBC, are hereby exonerated for lack of evidence.
SO ORDERED. 9
Petitioner then filed this petition for certiorari and prohibition with prayer for injunctive
relief, docketed as G.R. No. 165636.
In a Resolution dated April 4, 2005, the Court consolidated G.R. No. 164785 with G.R. No.
165636.
In G.R. No. 164785, petitioner raises the following issues:
THE ORDER OF PREVENTIVE SUSPENSION PROMULGATED BY RESPONDENT [MTRCB]
DATED 16 AUGUST 2004 AGAINST THE TELEVISION PROGRAM ANG DATING
DAAN...IS NULL AND VOID FOR BEING ISSUED WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION
(A) BY REASON THAT THE [IRR] IS INVALID INSOFAR AS IT PROVIDES FOR THE ISSUANCE
OF PREVENTIVE SUSPENSION ORDERS;
(B) BY REASON OF LACK OF DUE HEARING IN THE CASE AT BENCH;
(C) FOR BEING VIOLATIVE OF EQUAL PROTECTION UNDER THE LAW;
(D) FOR BEING VIOLATIVE OF FREEDOM OF RELIGION; AND
(E) FOR BEING VIOLATIVE OF FREEDOM OF SPEECH AND EXPRESSION. 10
In G.R. No. 165636, petitioner relies on the following grounds:
SECTION 3(C) OF [PD] 1986, IS PATENTLY UNCONSTITUTIONAL AND ENACTED WITHOUT
OR IN EXCESS OF JURISDICTION ...CONSIDERING THAT:
I
[1466]
AUDAX AT FIDELIS
BOLD BUT FAITHFUL
SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE

CONSTITUTIONAL GUARANTEE OF FREEDOM OF RELIGION, SPEECH, AND EXPRESSION
AS IT PARTAKES OF THE NATURE OF A SUBSEQUENT PUNISHMENT CURTAILING THE
SAME; CONSEQUENTLY, THE IMPLEMENTING RULES AND REGULATIONS, RULES OF
PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E. DECISION
DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE
CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH; SEcADa
II
SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE
CONSTITUTIONAL GUARANTEE OF DUE PROCESS OF LAW AND EQUAL PROTECTION
UNDER THE LAW; CONSEQUENTLY, THE [IRR],RULES OF PROCEDURE, AND OFFICIAL
ACTS OF THE MTRCB PURSUANT THERETO, I.E.,DECISION DATED 27 SEPTEMBER 2004
AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS
APPLIED IN THE CASE AT BENCH; AND
III
[PD] 1986 IS NOT COMPLETE IN ITSELF AND DOES NOT PROVIDE FOR A SUFFICIENT
STANDARD FOR ITS IMPLEMENTATION THEREBY RESULTING IN AN UNDUE
DELEGATION OF LEGISLATIVE POWER BY REASON THAT IT DOES NOT PROVIDE FOR THE
PENALTIES FOR VIOLATIONS OF ITS PROVISIONS. CONSEQUENTLY, THE [IRR],RULES OF
PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E. DECISION
DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE
CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH 11
G.R. No. 164785
We shall first dispose of the issues in G.R. No. 164785, regarding the assailed order of
preventive suspension, although its implementability had already been overtaken and veritably been
rendered moot by the equally assailed September 27, 2004 decision.
It is petitioner's threshold posture that the preventive suspension imposed against him and
the relevant IRR provision authorizing it are invalid inasmuch as PD 1986 does not expressly authorize
the MTRCB to issue preventive suspension.
Petitioner's contention is untenable.
Administrative agencies have powers and functions which may be administrative,
investigatory, regulatory, quasi-legislative, or quasi-judicial, or a mix of the five, as may be conferred
by the Constitution or by statute. 12 They have in fine only such powers or authority as are granted
or delegated, expressly or impliedly, by law. 13 And in determining whether an agency has certain
powers, the inquiry should be from the law itself. But once ascertained as existing, the authority given
should be liberally construed. 14
A perusal of the MTRCB's basic mandate under PD 1986 reveals the possession by the agency
of the authority, albeit impliedly, to issue the challenged order of preventive suspension. And this
authority stems naturally from, and is necessary for the exercise of, its power of regulation and
supervision.
Sec. 3 of PD 1986 pertinently provides the following:
[1467]
AUDAX AT FIDELIS
BOLD BUT FAITHFUL
Section 3. Powers and Functions. The BOARD shall have the following functions,
powers and duties:
xxx xxx xxx
c) To approve or disapprove, delete objectionable portions from and/or prohibit the
...production, ...exhibition and/or television broadcast of the motion pictures, television
programs and publicity materials subject of the preceding paragraph, which, in the
judgment of the board applying contemporary Filipino cultural values as standard, are
objectionable for being immoral, indecent, contrary to law and/or good customs,
injurious to the prestige of the Republic of the Philippines or its people, or with a
dangerous tendency to encourage the commission of violence or of wrong or crime such
as but not limited to:
xxx xxx xxx
vi) Those which are libelous or defamatory to the good name and reputation of
any person, whether living or dead;
xxx xxx xxx
(d) To supervise, regulate, and grant, deny or cancel, permits for the ...production,
copying, distribution, sale, lease, exhibition, and/or television broadcast of all motion
pictures, television programs and publicity materials, to the end that no such pictures,
programs and materials as are determined by the BOARD to be objectionable in
accordance with paragraph (c) hereof shall be ...produced, copied, reproduced,
distributed, sold, leased, exhibited and/or broadcast by television;
xxx xxx xxx
k) To exercise such powers and functions as may be necessary or incidental to the
attainment of the purposes and objectives of this Act ....(Emphasis added.)
The issuance of a preventive suspension comes well within the scope of the MTRCB's
authority and functions expressly set forth in PD 1986, more particularly under its Sec. 3 (d), as quoted
above, which empowers the MTRCB to "supervise, regulate, and grant, deny or cancel, permits for
the . . . exhibition, and/or television broadcast of all motion pictures, television programs and publicity
materials, to the end that no such pictures, programs and materials as are determined by the BOARD
to be objectionable in accordance with paragraph (c) hereof shall be . . . exhibited and/or broadcast
by television".
Surely, the power to issue preventive suspension forms part of the MTRCB's express
regulatory and supervisory statutory mandate and its investigatory and disciplinary authority
subsumed in or implied from such mandate. Any other construal would render its power to regulate,
supervise, or discipline illusory.
Preventive suspension, it ought to be noted, is not a penalty by itself, being merely a
preliminary step in an administrative investigation. 15 And the power to discipline and impose
penalties, if granted, carries with it the power to investigate administrative complaints and, during
such investigation, to preventively suspend the person subject of the complaint. 16 ECaTDc
[1468]
AUDAX AT FIDELIS
BOLD BUT FAITHFUL
To reiterate, preventive suspension authority of the MTRCB springs from its powers conferred
under PD 1986. The MTRCB did not, as petitioner insinuates, empower itself to impose preventive
suspension through the medium of the IRR of PD 1986. It is true that the matter of imposing
preventive suspension is embodied only in the IRR of PD 1986. Sec. 3, Chapter XIII of the IRR provides:
Sec. 3. PREVENTIVE SUSPENSION ORDER. Any time during the pendency of the case,
and in order to prevent or stop further violations or for the interest and welfare of the
public, the Chairman of the Board may issue a Preventive Suspension Order mandating
the preventive ...suspension of the permit/permits involved, and/or closure of the
...television network, cable TV station ...provided that the temporary/preventive order
thus issued shall have a life of not more than twenty (20) days from the date of issuance.
But the mere absence of a provision on preventive suspension in PD 1986, without more,
would not work to deprive the MTRCB a basic disciplinary tool, such as preventive suspension. Recall
that the MTRCB is expressly empowered by statute to regulate and supervise television programs to
obviate the exhibition or broadcast of, among others, indecent or immoral materials and to impose
sanctions for violations and, corollarily, to prevent further violations as it investigates. Contrary to
petitioner's assertion, the aforequoted Sec. 3 of the IRR neither amended PD 1986 nor extended the
effect of the law. Neither did the MTRCB, by imposing the assailed preventive suspension, outrun its
authority under the law. Far from it. The preventive suspension was actually done in furtherance of
the law, imposed pursuant, to repeat, to the MTRCB's duty of regulating or supervising television
programs, pending a determination of whether or not there has actually been a violation. In the final
analysis, Sec. 3, Chapter XIII of the 2004 IRR merely formalized a power which PD 1986 bestowed,
albeit impliedly, on MTRCB.
Sec. 3 (c) and (d) of PD 1986 finds application to the present case, sufficient to authorize the
MTRCB's assailed action. Petitioner's restrictive reading of PD 1986, limiting the MTRCB to functions
within the literal confines of the law, would give the agency little leeway to operate, stifling and
rendering it inutile, when Sec. 3 (k) ofPD 1986 clearly intends to grant the MTRCB a wide room for
flexibility in its operation. Sec. 3 (k), we reiterate, provides, "To exercise such powers and functions as
may be necessary or incidental to the attainment of the purposes and objectives of this Act . . .."
Indeed, the power to impose preventive suspension is one of the implied powers of MTRCB. As
distinguished from express powers, implied powers are those that can be inferred or are implicit in
the wordings or conferred by necessary or fair implication of the enabling act. 17 As we held in Angara
v. Electoral Commission, when a general grant of power is conferred or a duty enjoined, every
particular power necessary for the exercise of one or the performance of the other is also conferred
by necessary implication. 18 Clearly, the power to impose preventive suspension pending
investigation is one of the implied or inherent powers of MTRCB.
We cannot agree with petitioner's assertion that the aforequoted IRR provision on preventive
suspension is applicable only to motion pictures and publicity materials. The scope of the MTRCB's
authority extends beyond motion pictures. What the acronym MTRCB stands for would suggest as
much. And while the law makes specific reference to the closure of a television network, the
suspension of a television program is a far less punitive measure that can be undertaken, with the
purpose of stopping further violations of PD 1986. Again, the MTRCB would regretfully be rendered
ineffective should it be subject to the restrictions petitioner envisages.
Just as untenable is petitioner's argument on the nullity of the preventive suspension order
on the ground of lack of hearing. As it were, the MTRCB handed out the assailed order after petitioner,
[1469]
AUDAX AT FIDELIS
BOLD BUT FAITHFUL
in response to a written notice, appeared before that Board for a hearing on private respondents'
complaint. No less than petitioner admitted that the order was issued after the adjournment of the
hearing, 19 proving that he had already appeared before the MTRCB. Under Sec. 3, Chapter XIII of the
IRR of PD 1986, preventive suspension shall issue "[a]ny time during the pendency of the case". In this
particular case, it was done after MTRCB duly apprised petitioner of his having possibly violated PD
1986 20 and of administrative complaints that had been filed against him for such violation. 21
At any event, that preventive suspension can validly be meted out even without a hearing. 22
Petitioner next faults the MTRCB for denying him his right to the equal protection of the law,
arguing that, owing to the preventive suspension order, he was unable to answer the criticisms
coming from the INC ministers.
Petitioner's position does not persuade. The equal protection clause demands that "all
persons subject to legislation should be treated alike, under like circumstances and conditions both
in the privileges conferred and liabilities imposed". 23 It guards against undue favor and individual
privilege as well as hostile discrimination. 24 Surely, petitioner cannot, under the premises, place
himself in the same shoes as the INC ministers, who, for one, are not facing administrative complaints
before the MTRCB. For another, he offers no proof that the said ministers, in their TV programs, use
language similar to that which he used in his own, necessitating the MTRCB's disciplinary action. If the
immediate result of the preventive suspension order is that petitioner remains temporarily gagged
and is unable to answer his critics, this does not become a deprivation of the equal protection
guarantee. The Court need not belabor the fact that the circumstances of petitioner, as host of Ang
Dating Daan, on one hand, and the INC ministers, as hosts of Ang Tamang Daan, on the other, are,
within the purview of this case, simply too different to even consider whether or not there is a prima
facie indication of oppressive inequality.
Petitioner next injects the notion of religious freedom, submitting that what he uttered was
religious speech, adding that words like "putang babae" were said in exercise of his religious freedom.
The argument has no merit.
The Court is at a loss to understand how petitioners utterances in question can come within
the pale of Sec. 5, Article III of the 1987 Constitution on religious freedom. The section reads as
follows:
No law shall be made respecting the establishment of a religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship,
without discrimination or preference, shall forever be allowed. No religious test shall
be required for the exercise of civil or political rights. TcEaDS
There is nothing in petitioner's statements subject of the complaints expressing any particular
religious belief, nothing furthering his avowed evangelical mission. The fact that he came out with his
statements in a televised bible exposition program does not automatically accord them the character
of a religious discourse. Plain and simple insults directed at another person cannot be elevated to the
status of religious speech. Even petitioner's attempts to place his words in context show that he was
moved by anger and the need to seek retribution, not by any religious conviction. His claim, assuming
its veracity, that some INC ministers distorted his statements respecting amounts Ang Dating
Daan owed to a TV station does not convert the foul language used in retaliation as religious speech.
We cannot accept that petitioner made his statements in defense of his reputation and religion, as
they constitute no intelligible defense or refutation of the alleged lies being spread by a rival religious
[1470]
AUDAX AT FIDELIS
BOLD BUT FAITHFUL
group. They simply illustrate that petitioner had descended to the level of name-calling and foul-
language discourse. Petitioner could have chosen to contradict and disprove his detractors, but opted
for the low road.
Petitioner, as a final point in G.R. No. 164785, would have the Court nullify the 20-day
preventive suspension order, being, as insisted, an unconstitutional abridgement of the freedom of
speech and expression and an impermissible prior restraint. The main issue tendered respecting the
adverted violation and the arguments holding such issue dovetails with those challenging the three-
month suspension imposed under the assailed September 27, 2004 MTRCB decision subject of review
under G.R. No. 165636. Both overlapping issues and arguments shall be jointly addressed.
G.R. No. 165636
Petitioner urges the striking down of the decision suspending him from hosting Ang Dating
Daan for three months on the main ground that the decision violates, apart from his religious
freedom, his freedom of speech and expression guaranteed under Sec. 4, Art. III of the Constitution,
which reads:
No law shall be passed abridging the freedom of speech, of expression, or of the press,
or the right of the people peaceably to assemble and petition the government for
redress of grievance.
He would also have the Court declare PD 1986, its Sec. 3 (c) in particular, unconstitutional for
reasons articulated in this petition.
We are not persuaded as shall be explained shortly. But first, we restate certain general
concepts and principles underlying the freedom of speech and expression.
It is settled that expressions by means of newspapers, radio, television, and motion pictures
come within the broad protection of the free speech and expression clause. 25 Each method though,
because of its dissimilar presence in the lives of people and accessibility to children, tends to present
its own problems in the area of free speech protection, with broadcast media, of all forms of
communication, enjoying a lesser degree of protection. 26 Just as settled is the rule that restrictions,
be it in the form of prior restraint, e.g., judicial injunction against publication or threat of cancellation
of license/franchise, or subsequent liability, whether in libel and damage suits, prosecution for
sedition, or contempt proceedings, are anathema to the freedom of expression. Prior restraint means
official government restrictions on the press or other forms of expression in advance of actual
publication or dissemination. 27 The freedom of expression, as with the other freedoms encased in
the Bill of Rights, is, however, not absolute. It may be regulated to some extent to serve important
public interests, some forms of speech not being protected. As has been held, the limits of the
freedom of expression are reached when the expression touches upon matters of essentially private
concern. 28In the oft-quoted expression of Justice Holmes, the constitutional guarantee "obviously
was not intended to give immunity for every possible use of language". 29From Lucas v. Royo comes
this line: "[T]he freedom to express one's sentiments and belief does not grant one the license to vilify
in public the honor and integrity of another. Any sentiments must be expressed within the proper
forum and with proper regard for the rights of others". 30
Indeed, as noted in Chaplinsky v. State of New Hampshire, 31 "there are certain well-defined
and narrowly limited classes of speech that are harmful, the prevention and punishment of which has
never been thought to raise any Constitutional problems". In net effect, some forms of speech are not
protected by theConstitution, meaning that restrictions on unprotected speech may be decreed
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without running afoul of the freedom of speech clause. 32 A speech would fall under the unprotected
type if the utterances involved are "no essential part of any exposition of ideas, and are of such slight
social value as a step of truth that any benefit that may be derived from them is clearly outweighed
by the social interest in order and morality". 33 Being of little or no value, there is, in dealing with or
regulating them, no imperative call for the application of the clear and present danger rule or the
balancing-of-interest test, they being essentially modes of weighing competing values, 34 or, with like
effect, determining which of the clashing interests should be advanced.
Petitioner asserts that his utterance in question is a protected form of speech.
The Court rules otherwise. It has been established in this jurisdiction that unprotected speech
or low-value expression refers to libelous statements, obscenity or pornography, false or misleading
advertisement, insulting or "fighting words",i.e.,those which by their very utterance inflict injury or
tend to incite an immediate breach of peace and expression endangering national security.
The Court finds that petitioner's statement can be treated as obscene, at least with respect
to the average child. Hence, it is, in that context, unprotected speech. In Fernando v. Court of
Appeals, the Court expressed difficulty in formulating a definition of obscenity that would apply to all
cases, but nonetheless stated the ensuing observations on the matter:
There is no perfect definition of "obscenity" but the latest word is that of Miller v.
California which established basic guidelines, to wit: (a) whether to the average person,
applying contemporary standards would find the work, taken as a whole, appeals to the
prurient interest; (b) whether the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state law; and (c) whether the
work, taken as a whole, lacks serious literary, artistic, political, or scientific value. But,
it would be a serious misreading of Miller to conclude that the trier of facts has the
unbridled discretion in determining what is "patently offensive"....What remains clear
is that obscenity is an issue proper for judicial determination and should be treated on
a case to case basis and on the judge's sound discretion. 35
Following the contextual lessons of the cited case of Miller v. California, 36 a patently
offensive utterance would come within the pale of the term obscenityshould it appeal to the prurient
interest of an average listener applying contemporary standards. HAaDTE
A cursory examination of the utterances complained of and the circumstances of the case
reveal that to an average adult, the utterances "Gago ka talaga ...,masahol ka pa sa putang babae
....Yung putang babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang
itaas, o di ba!" may not constitute obscene but merely indecent utterances. They can be viewed as
figures of speech or merely a play on words. In the context they were used, they may not appeal to
the prurient interests of an adult. The problem with the challenged statements is that they were
uttered in a TV program that is rated "G" or for general viewership, and in a time slot that would likely
reach even the eyes and ears of children.
While adults may have understood that the terms thus used were not to be taken literally,
children could hardly be expected to have the same discernment. Without parental guidance, the
unbridled use of such language as that of petitioner in a television broadcast could corrupt
impressionable young minds. The term"putang babae" means "a female prostitute",a term wholly
inappropriate for children, who could look it up in a dictionary and just get the literal meaning, missing
the context within which it was used. Petitioner further used the terms, "ang gumagana lang doon
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yung ibaba", making reference to the female sexual organ and how a female prostitute uses it in her
trade, then stating that Sandoval was worse than that by using his mouth in a similar manner. Children
could be motivated by curiosity and ask the meaning of what petitioner said, also without placing the
phrase in context. They may be inquisitive as to why Sandoval is different from a female prostitute
and the reasons for the dissimilarity. And upon learning the meanings of the words used, young minds,
without the guidance of an adult, may, from their end, view this kind of indecent speech as obscene,
if they take these words literally and use them in their own speech or form their own ideas on the
matter. In this particular case, where children had the opportunity to hear petitioner's words, when
speaking of the average person in the test for obscenity, we are speaking of the average child, not the
average adult. The average child may not have the adult's grasp of figures of speech, and may lack the
understanding that language may be colorful, and words may convey more than the literal meaning.
Undeniably the subject speech is very suggestive of a female sexual organ and its function as such. In
this sense, we find petitioner's utterances obscene and not entitled to protection under the umbrella
of freedom of speech.
Even if we concede that petitioner's remarks are not obscene but merely indecent speech,
still the Court rules that petitioner cannot avail himself of the constitutional protection of free speech.
Said statements were made in a medium easily accessible to children. With respect to the young
minds, said utterances are to be treated as unprotected speech.
No doubt what petitioner said constitutes indecent or offensive utterances. But while a
jurisprudential pattern involving certain offensive utterances conveyed in different mediums has
emerged, this case is veritably one of first impression, it being the first time that indecent speech
communicated via television and the applicable norm for its regulation are, in this jurisdiction, made
the focal point. Federal Communications Commission (FCC) v. Pacifica Foundation, 37 a 1978
American landmark case cited in Eastern Broadcasting Corporation v. Dans, Jr. 38 and Chavez v.
Gonzales, 39 is a rich source of persuasive lessons. Foremost of these relates to indecent speech
without prurient appeal component coming under the category of protected speech depending on
the context within which it was made, irresistibly suggesting that, within a particular context, such
indecent speech may validly be categorized as unprotected, ergo, susceptible to restriction.
In FCC, seven of what were considered "filthy" words 40 earlier recorded in a monologue by
a satiric humorist later aired in the afternoon over a radio station owned by Pacifica Foundation. Upon
the complaint of a man who heard the pre-recorded monologue while driving with his son, FCC
declared the language used as"patently offensive" and "indecent" under a prohibiting law, though
not necessarily obscene. FCC added, however, that its declaratory order was issued in a "special
factual context",referring, in gist, to an afternoon radio broadcast when children were undoubtedly
in the audience. Acting on the question of whether the FCC could regulate the subject utterance, the
US Supreme Court ruled in the affirmative, owing to two special features of the broadcast medium,
to wit: (1) radio is a pervasive medium and (2) broadcasting is uniquely accessible to children. The US
Court, however, hastened to add that the monologue would be protected speech in other contexts,
albeit it did not expound and identify a compelling state interest in putting FCC's content-based
regulatory action under scrutiny.
The Court in Chavez 41 elucidated on the distinction between regulation or restriction of
protected speech that is content-based and that which is content-neutral. A content-based restraint
is aimed at the contents or idea of the expression, whereas a content-neutral restraint intends to
regulate the time, place, and manner of the expression under well-defined standards tailored to serve
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a compelling state interest, without restraint on the message of the expression. Courts subject
content-based restraint to strict scrutiny.
With the view we take of the case, the suspension MTRCB imposed under the premises was,
in one perspective, permissible restriction. We make this disposition against the backdrop of the
following interplaying factors: First, the indecent speech was made via television, a pervasive medium
that, to borrow fromGonzales v. Kalaw Katigbak, 42 easily "reaches every home where there is a set
[and where] [c]hildren will likely be among the avid viewers of the programs therein
shown";second, the broadcast was aired at the time of the day when there was a reasonable risk that
children might be in the audience; and third, petitioner uttered his speech on a "G" or "for general
patronage" rated program. Under Sec. 2 (A) of Chapter IV of the IRR of the MTRCB, a show for general
patronage is "[s]uitable for all ages",meaning that the "material for television ...in the judgment of
the BOARD, does not contain anything unsuitable for children and minors, and may be viewed without
adult guidance or supervision".The words petitioner used were, by any civilized norm, clearly not
suitable for children. Where a language is categorized as indecent, as in petitioner's utterances on a
general-patronage rated TV program, it may be readily proscribed as unprotected speech. aEcTDI
A view has been advanced that unprotected speech refers only to pornography, 43 false or
misleading advertisement, 44 advocacy of imminent lawless action, and expression endangering
national security. But this list is not, as some members of the Court would submit, exclusive or carved
in stone. Without going into specifics, it may be stated without fear of contradiction that US decisional
law goes beyond the aforesaid general exceptions. As the Court has been impelled to recognize
exceptions to the rule against censorship in the past, this particular case constitutes yet another
exception, another instance of unprotected speech, created by the necessity of protecting the welfare
of our children. As unprotected speech, petitioners utterances can be subjected to restraint or
regulation.
Despite the settled ruling in FCC which has remained undisturbed since 1978, petitioner
asserts that his utterances must present a clear and present danger of bringing about a substantive
evil the State has a right and duty to prevent and such danger must be grave and imminent. 45
Petitioner's invocation of the clear and present danger doctrine, arguably the most permissive
of speech tests, would not avail him any relief, for the application of said test is uncalled for under the
premises. The doctrine, first formulated by Justice Holmes, accords protection for utterances so that
the printed or spoken words may not be subject to prior restraint or subsequent punishment unless
its expression creates a clear and present danger of bringing about a substantial evil which the
government has the power to prohibit. 46 Under the doctrine, freedom of speech and of press is
susceptible of restriction when and only when necessary to prevent grave and immediate danger to
interests which the government may lawfully protect. As it were, said doctrine evolved in the context
of prosecutions for rebellion and other crimes involving the overthrow of government. 47 It was
originally designed to determine the latitude which should be given to speech that espouses anti-
government action, or to have serious and substantial deleterious consequences on the security and
public order of the community. 48The clear and present danger rule has been applied to this
jurisdiction. 49 As a standard of limitation on free speech and press, however, the clear and present
danger test is not a magic incantation that wipes out all problems and does away with analysis and
judgment in the testing of the legitimacy of claims to free speech and which compels a court to release
a defendant from liability the moment the doctrine is invoked, absent proof of imminent catastrophic
disaster. 50 As we observed in Eastern Broadcasting Corporation, the clear and present danger test
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"does not lend itself to a simplistic and all embracing interpretation applicable to all utterances in all
forums". 51
To be sure, the clear and present danger doctrine is not the only test which has been applied
by the courts. Generally, said doctrine is applied to cases involving the overthrow of the government
and even other evils which do not clearly undermine national security. Since not all evils can be
measured in terms of "proximity and degree" the Court, however, in several cases Ayer Productions
v. Capulong 52 and Gonzales v. COMELEC, 53 applied the balancing of interests test. Former Chief
Justice Fred Ruiz Castro, in Gonzales v. COMELEC, elucidated in his Separate Opinion that "where the
legislation under constitutional attack interferes with the freedom of speech and assembly in a more
generalized way and where the effect of the speech and assembly in terms of the probability of
realization of a specific danger is not susceptible even of impressionistic calculation", 54 then the
"balancing of interests" test can be applied.
The Court explained also in Gonzales v. COMELEC the "balancing of interests" test:
When particular conduct is regulated in the interest of public order, and the regulation
results in an indirect, conditional, partial abridgment of speech, the duty of the courts
is to determine which of the two conflicting interests demands the greater protection
under the particular circumstances presented. ...We must, therefore, undertake the
"delicate and difficult task ...to weigh the circumstances and to appraise the
substantiality of the reasons advanced in support of the regulation of the free
enjoyment of rights ....
In enunciating standard premised on a judicial balancing of the conflicting social values
and individual interests competing for ascendancy in legislation which restricts
expression, the court in Douds laid the basis for what has been called the "balancing-
of-interests" test which has found application in more recent decisions of the U.S.
Supreme Court. Briefly stated, the "balancing" test requires a court to take conscious
and detailed consideration of the interplay of interests observable in a given situation
or type of situation.
xxx xxx xxx
Although the urgency of the public interest sought to be secured by Congressional
power restricting the individual's freedom, and the social importance and value of the
freedom so restricted, "are to be judged in the concrete, not on the basis of
abstractions",a wide range of factors are necessarily relevant in ascertaining the point
or line of equilibrium. Among these are (a) the social value and importance of the
specific aspect of the particular freedom restricted by the legislation; (b) the specific
thrust of the restriction, i.e.,whether the restriction is direct or indirect, whether or not
the persons affected are few; (c) the value and importance of the public interest sought
to be secured by the legislation the reference here is to the nature and gravity of the
evil which Congress seeks to prevent; (d) whether the specific restriction decreed by
Congress is reasonably appropriate and necessary for the protection of such public
interest; and (e) whether the necessary safeguarding of the public interest involved may
be achieved by some other measure less restrictive of the protected freedom. 55
This balancing of interest test, to borrow from Professor Kauper, 56 rests on the theory that
it is the court's function in a case before it when it finds public interests served by legislation, on the
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one hand, and the free expression clause affected by it, on the other, to balance one against the other
and arrive at a judgment where the greater weight shall be placed. If, on balance, it appears that the
public interest served by restrictive legislation is of such nature that it outweighs the abridgment of
freedom, then the court will find the legislation valid. In short, the balance-of-interests theory rests
on the basis that constitutional freedoms are not absolute, not even those stated in the free speech
and expression clause, and that they may be abridged to some extent to serve appropriate and
important interests. 57 To the mind of the Court, the balancing of interest doctrine is the more
appropriate test to follow. ASIDTa
In the case at bar, petitioner used indecent and obscene language and a three (3)-month
suspension was slapped on him for breach of MTRCB rules. In this setting, the assertion by petitioner
of his enjoyment of his freedom of speech is ranged against the duty of the government to protect
and promote the development and welfare of the youth.
After a careful examination of the factual milieu and the arguments raised by petitioner in
support of his claim to free speech, the Court rules that the government's interest to protect and
promote the interests and welfare of the children adequately buttresses the reasonable curtailment
and valid restraint on petitioner's prayer to continue as program host of Ang Dating Daan during the
suspension period.
No doubt, one of the fundamental and most vital rights granted to citizens of a State is the
freedom of speech or expression, for without the enjoyment of such right, a free, stable, effective,
and progressive democratic state would be difficult to attain. Arrayed against the freedom of speech
is the right of the youth to their moral, spiritual, intellectual, and social being which the State is
constitutionally tasked to promote and protect. Moreover, the State is also mandated to recognize
and support the vital role of the youth in nation building as laid down in Sec. 13, Art. II of the 1987
Constitution.
The Constitution has, therefore, imposed the sacred obligation and responsibility on the State
to provide protection to the youth against illegal or improper activities which may prejudice their
general well-being. The Article on youth, approved on second reading by the Constitutional
Commission, explained that the State shall "extend social protection to minors against all forms of
neglect, cruelty, exploitation, immorality, and practices which may foster racial, religious or other
forms of discrimination". 58
Indisputably, the State has a compelling interest in extending social protection to minors
against all forms of neglect, exploitation, and immorality which may pollute innocent minds. It has a
compelling interest in helping parents, through regulatory mechanisms, protect their children's minds
from exposure to undesirable materials and corrupting experiences. The Constitution, no less, in fact
enjoins the State, as earlier indicated, to promote and protect the physical, moral, spiritual,
intellectual, and social well-being of the youth to better prepare them fulfill their role in the field of
nation-building. 59 In the same way, the State is mandated to support parents in the rearing of the
youth for civic efficiency and the development of moral character. 60
Petitioner's offensive and obscene language uttered in a television broadcast, without doubt,
was easily accessible to the children. His statements could have exposed children to a language that
is unacceptable in everyday use. As such, the welfare of children and the State's mandate to protect
and care for them, asparens patriae, 61 constitute a substantial and compelling government interest
in regulating petitioner's utterances in TV broadcast as provided in PD 1986.
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FCC explains the duty of the government to act as parens patriae to protect the children who,
because of age or interest capacity, are susceptible of being corrupted or prejudiced by offensive
language, thus:
[B]roadcasting is uniquely accessible to children, even those too young to read.
Although Cohen's written message, ["Fuck the Draft"],might have been
incomprehensible to a first grader, Pacifica's broadcast could have enlarged a child's
vocabulary in an instant. Other forms of offensive expression may be withheld from the
young without restricting the expression at its source. Bookstores and motion picture
theaters, for example, may be prohibited from making indecent material available to
children. We held in Ginsberg v. New York that the government's interest in the "well-
being of its youth" and in supporting "parents' claim to authority in their own
household" justified the regulation of otherwise protected expression. The ease with
which children may obtain access to broadcast material, coupled with the concerns
recognized in Ginsberg, amply justify special treatment of indecent broadcasting.
Moreover, Gonzales v. Kalaw Katigbak likewise stressed the duty of the State to attend to the
welfare of the young:
...It is the consensus of this Court that where television is concerned, a less liberal
approach calls for observance. This is so because unlike motion pictures where the
patrons have to pay their way, television reaches every home where there is a set.
Children then will likely will be among the avid viewers of the programs therein shown.
As was observed by Circuit Court of Appeals Judge Jerome Frank, it is hardly the concern
of the law to deal with the sexual fantasies of the adult population. It cannot be denied
though that the State as parens patriae is called upon to manifest an attitude of caring
for the welfare of the young. 62
The compelling need to protect the young impels us to sustain the regulatory action MTRCB
took in the narrow confines of the case. To reiterate, FCC justified the restraint on the TV broadcast
grounded on the following considerations: (1) the use of television with its unique accessibility to
children, as a medium of broadcast of a patently offensive speech; (2) the time of broadcast; and (3)
the "G" rating of the Ang Dating Daan program. And in agreeing with MTRCB, the court takes stock of
and cites with approval the following excerpts from FCC:
It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case
does not involve a two-way radio conversation between a cab driver and a dispatcher,
or a telecast of an Elizabethan comedy. We have not decided that an occasional
expletive in either setting would justify any sanction. ...The [FFC's] decision rested
entirely on a nuisance rationale under which context is all important. The concept
requires consideration of a host of variables. The time of day was emphasized by the
[FFC].The content of the program in which the language is used will affect the
composition of the audience ....As Mr. Justice Sutherland wrote a 'nuisance may be
merely a right thing in the wrong place, like a pig in the parlor instead of the
barnyard'.We simply hold that when the [FCC] finds that a pig has entered the parlor,
the exercise of its regulatory power does not depend on proof that the pig is obscene.
(Citation omitted.)
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There can be no quibbling that the remarks in question petitioner uttered on prime-time
television are blatantly indecent if not outright obscene. It is the kind of speech that PD
1986 proscribes necessitating the exercise by MTRCB of statutory disciplinary powers. It is the kind of
speech that the State has the inherent prerogative, nay duty, to regulate and prevent should such
action served and further compelling state interests. One who utters indecent, insulting, or offensive
words on television when unsuspecting children are in the audience is, in the graphic language
of FCC, a "pig in the parlor".Public interest would be served if the "pig" is reasonably restrained or
even removed from the "parlor".ADEacC
Ergo, petitioner's offensive and indecent language can be subjected to prior restraint.
Petitioner theorizes that the three (3)-month suspension is either prior restraint or
subsequent punishment that, however, includes prior restraint, albeit indirectly.
After a review of the facts, the Court finds that what MTRCB imposed on petitioner is an
administrative sanction or subsequent punishment for his offensive and obscene language in Ang
Dating Daan.
To clarify, statutes imposing prior restraints on speech are generally illegal and presumed
unconstitutional breaches of the freedom of speech. The exceptions to prior restraint are movies,
television, and radio broadcast censorship in view of its access to numerous people, including the
young who must be insulated from the prejudicial effects of unprotected speech. PD 1986 was passed
creating the Board of Review for Motion Pictures and Television (now MTRCB) and which requires
prior permit or license before showing a motion picture or broadcasting a TV program. The Board can
classify movies and television programs and can cancel permits for exhibition of films or television
broadcast.
The power of MTRCB to regulate and even impose some prior restraint on radio and television
shows, even religious programs, was upheld in Iglesia Ni Cristo v. Court of Appeals. Speaking through
Chief Justice Reynato S. Puno, the Court wrote:
We thus reject petitioner's postulate that its religious program is per se beyond review
by the respondent Board. Its public broadcast on TV of its religious program brings it
out of the bosom of internal belief. Television is a medium that reaches even the eyes
and ears of children. The Court iterates the rule that the exercise of religious freedom
can be regulated by the State when it will bring about the clear and present danger of
some substantive evil which the State is duty bound to prevent, i.e.,serious detriment
to the more overriding interest of public health, public morals, or public welfare. ...
xxx xxx xxx
While the thesis has a lot to commend itself, we are not ready to hold that [PD 1986] is
unconstitutional for Congress to grant an administrative body quasi-judicial power to
preview and classify TV programs and enforce its decision subject to review by our
courts. As far back as 1921, we upheld this setup in Sotto vs. Ruiz, viz.:
"The use of the mails by private persons is in the nature of a privilege which can
be regulated in order to avoid its abuse. Persons possess no absolute right to
put into the mail anything they please, regardless of its character." 63
Bernas adds:
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Under the decree a movie classification board is made the arbiter of what movies and
television programs or parts of either are fit for public consumption. It decides what
movies are "immoral, indecent, contrary to law and/or good customs, injurious to the
prestige of the Republic of the Philippines or its people",and what "tend to incite
subversion, insurrection, rebellion or sedition",or "tend to undermine the faith and
confidence of the people in their government and/or duly constituted authorities",etc.
Moreover, its decisions are executory unless stopped by a court. 64
Moreover, in MTRCB v. ABS-CBN Broadcasting Corporation, 65 it was held that the power of
review and prior approval of MTRCB extends to all television programs and is valid despite the
freedom of speech guaranteed by the Constitution. Thus, all broadcast networks are regulated by the
MTRCB since they are required to get a permit before they air their television programs.
Consequently, their right to enjoy their freedom of speech is subject to that requirement. As lucidly
explained by Justice Dante O. Tinga, government regulations through the MTRCB became "a necessary
evil" with the government taking the role of assigning bandwidth to individual broadcasters. The
stations explicitly agreed to this regulatory scheme; otherwise, chaos would result in the television
broadcast industry as competing broadcasters will interfere or co-opt each other's signals. In this
scheme, station owners and broadcasters in effect waived their right to the full enjoyment of their
right to freedom of speech in radio and television programs and impliedly agreed that said right may
be subject to prior restraint denial of permit or subsequent punishment, like suspension or
cancellation of permit, among others.
The three (3) months suspension in this case is not a prior restraint on the right of petitioner
to continue with the broadcast of Ang Dating Daan as a permit was already issued to him by MTRCB
for such broadcast. Rather, the suspension is in the form of permissible administrative sanction or
subsequent punishment for the offensive and obscene remarks he uttered on the evening of August
10, 2004 in his television program, Ang Dating Daan. It is a sanction that the MTRCB may validly
impose under its charter without running afoul of the free speech clause. And the imposition is
separate and distinct from the criminal action the Board may take pursuant to Sec. 3 (i) of PD 1986 and
the remedies that may be availed of by the aggrieved private party under the provisions on libel or
tort, if applicable. AsFCC teaches, the imposition of sanctions on broadcasters who indulge in profane
or indecent broadcasting does not constitute forbidden censorship. Lest it be overlooked, the sanction
imposed is not per se for petitioner's exercise of his freedom of speech via television, but for the
indecent contents of his utterances in a "G" rated TV program.
More importantly, petitioner is deemed to have yielded his right to his full enjoyment of his
freedom of speech to regulation under PD 1986 and its IRR as television station owners, program
producers, and hosts have impliedly accepted the power of MTRCB to regulate the broadcast industry.
Neither can petitioner's virtual inability to speak in his program during the period of
suspension be plausibly treated as prior restraint on future speech. For viewed in its proper
perspective, the suspension is in the nature of an intermediate penalty for uttering an unprotected
form of speech. It is definitely a lesser punishment than the permissible cancellation of exhibition or
broadcast permit or license. In fine, the suspension meted was simply part of the duties of the MTRCB
in the enforcement and administration of the law which it is tasked to implement. Viewed in its proper
context, the suspension sought to penalize past speech made on prime-time "G" rated TV program; it
does not bar future speech of petitioner in other television programs; it is a permissible subsequent
administrative sanction; it should not be confused with a prior restraint on speech. While not on all
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fours, the Court, in MTRCB, 66 sustained the power of the MTRCB to penalize a broadcast company
for exhibiting/airing a pre-taped TV episode without Board authorization in violation of Sec. 7 of PD
1986. IcDHaT
Any simplistic suggestion, however, that the MTRCB would be crossing the limits of its
authority were it to regulate and even restrain the prime-time television broadcast of indecent or
obscene speech in a "G" rated program is not acceptable. As made clear in Eastern Broadcasting
Corporation, "the freedom of television and radio broadcasting is somewhat lesser in scope than the
freedom accorded to newspaper and print media".The MTRCB, as a regulatory agency, must have the
wherewithal to enforce its mandate, which would not be effective if its punitive actions would be
limited to mere fines. Television broadcasts should be subject to some form of regulation, considering
the ease with which they can be accessed, and violations of the regulations must be met with
appropriate and proportional disciplinary action. The suspension of a violating television program
would be a sufficient punishment and serve as a deterrent for those responsible. The prevention of
the broadcast of petitioner's television program is justified, and does not constitute prohibited prior
restraint. It behooves the Court to respond to the needs of the changing times, and craft jurisprudence
to reflect these times.
Petitioner, in questioning the three-month suspension, also tags as unconstitutional the very
law creating the MTRCB, arguing that PD 1986, as applied to him, infringes also upon his freedom of
religion. The Court has earlier adequately explained why petitioner's undue reliance on the religious
freedom cannot lend justification, let alone an exempting dimension to his licentious utterances in his
program. The Court sees no need to address anew the repetitive arguments on religious freedom. As
earlier discussed in the disposition of the petition in G.R. No. 164785, what was uttered was in no way
a religious speech. Parenthetically, petitioner's attempt to characterize his speech as a legitimate
defense of his religion fails miserably. He tries to place his words in perspective, arguing evidently as
an afterthought that this was his method of refuting the alleged distortion of his statements by the
INC hosts of Ang Tamang Daan. But on the night he uttered them in his television program, the word
simply came out as profane language, without any warning or guidance for undiscerning ears.
As to petitioner's other argument about having been denied due process and equal protection
of the law, suffice it to state that we have at length debunked similar arguments in G.R. No. 164785.
There is no need to further delve into the fact that petitioner was afforded due process when he
attended the hearing of the MTRCB, and that he was unable to demonstrate that he was unjustly
discriminated against in the MTRCB proceedings.
Finally, petitioner argues that there has been undue delegation of legislative power, as PD
1986 does not provide for the range of imposable penalties that may be applied with respect to
violations of the provisions of the law.
The argument is without merit.
In Edu v. Ericta, the Court discussed the matter of undue delegation of legislative power in
the following wise:
It is a fundamental principle flowing from the doctrine of separation of powers that
Congress may not delegate its legislative power to the two other branches of the
government, subject to the exception that local governments may over local affairs
participate in its exercise. What cannot be delegated is the authority under
theConstitution to make laws and to alter and repeal them; the test is the completeness
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of the statute in all its term and provisions when it leaves the hands of the legislature.
To determine whether or not there is an undue delegation of legislative power, the
inquiry must be directed to the scope and definiteness of the measure enacted. The
legislature does not abdicate its functions when it describes what job must be done,
who is to do it, and what is the scope of his authority. For a complex economy, that may
indeed be the only way in which the legislative process can go forward. A distinction
has rightfully been made between delegation of power to make laws which necessarily
involves a discretion as to what it shall be, which constitutionally may not be done, and
delegation of authority or discretion as to its execution to be exercised under and in
pursuance of the law, to which no valid objection can be made. The Constitution is thus
not to be regarded as denying the legislature the necessary resources of flexibility and
practicability.
To avoid the taint of unlawful delegation, there must be a standard, which implies at
the very least that the legislature itself determines matters of principle and lays down
fundamental policy. Otherwise, the charge of complete abdication may be hard to
repel. A standard thus defines legislative policy, marks its limits, maps out its boundaries
and specifies the public agency to apply it. It indicates the circumstances under which
the legislative command is to be effected. It is the criterion by which legislative purpose
may be carried out. Thereafter, the executive or administrative office designated may
in pursuance of the above guidelines promulgate supplemental rules and
regulations. 67
Based on the foregoing pronouncements and analyzing the law in question, petitioner's
protestation about undue delegation of legislative power for the sole reason that PD 1986 does not
provide for a range of penalties for violation of the law is untenable. His thesis is that MTRCB, in
promulgating the IRR of PD 1986, prescribing a schedule of penalties for violation of the provisions of
the decree, went beyond the terms of the law.
Petitioner's posture is flawed by the erroneous assumptions holding it together, the first assumption being
that PD 1986 does not prescribe the imposition of, or authorize the MTRCB to impose, penalties for
violators of PD 1986. As earlier indicated, however, the MTRCB, by express and direct conferment of
power and functions, is charged with supervising and regulating, granting, denying, or canceling permits
for the exhibition and/or television broadcast of all motion pictures, television programs, and publicity
materials to the end that no such objectionable pictures, programs, and materials shall be exhibited
and/or broadcast by television. Complementing this provision is Sec. 3 (k) of the decree authorizing the
MTRCB "to exercise such powers and functions as may be necessary or incidental to the attainment of the
purpose and objectives of [the law]". As earlier explained, the investiture of supervisory, regulatory, and
disciplinary power would surely be a meaningless grant if it did not carry with it the power to penalize the
supervised or the regulated as may be proportionate to the offense committed, charged, and proved. As
the Court said in Chavez v. National Housing Authority: cDSAEI
...[W]hen a general grant of power is conferred or duty enjoined, every particular power
necessary for the exercise of the one or the performance of the other is also conferred.
...[W]hen the statute does not specify the particular method to be followed or used by
a government agency in the exercise of the power vested in it by law, said agency has
the authority to adopt any reasonable method to carry out its function. 68
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Given the foregoing perspective, it stands to reason that the power of the MTRCB to regulate and
supervise the exhibition of TV programs carries with it or necessarily implies the authority to take effective
punitive action for violation of the law sought to be enforced. And would it not be logical too to say that
the power to deny or cancel a permit for the exhibition of a TV program or broadcast necessarily includes
the lesser power to suspend?
The MTRCB promulgated the IRR of PD 1986 in accordance with Sec. 3(a) which, for reference,
provides that agency with the power "[to] promulgate such rules and regulations as are necessary or
proper for the implementation of this Act, and the accomplishment of its purposes and objectives . .
. ". And Chapter XIII, Sec. 1 of the IRR providing:
Section 1.VIOLATIONS AND ADMINISTRATIVE SANCTIONS. Without prejudice to the
immediate filing of the appropriate criminal action and the immediate seizure of the
pertinent articles pursuant to Section 13, any violation of PD 1986 and its
Implementing Rules and Regulations governing motion pictures, television programs,
and related promotional materials shall be penalized with suspension or cancellation
of permits and/or licenses issued by the Board and/or with the imposition of fines and
other administrative penalty/penalties. The Board recognizes the existing Table of
Administrative Penalties attached without prejudice to the power of the Board to
amend it when the need arises. In the meantime the existing revised Table of
Administrative Penalties shall be enforced. (Emphasis added.)
This is, in the final analysis, no more than a measure to specifically implement the aforequoted
provisions of Sec. 3 (d) and (k).Contrary to what petitioner implies, the IRR does not expand the
mandate of the MTRCB under the law or partake of the nature of an unauthorized administrative
legislation. The MTRCB cannot shirk its responsibility to regulate the public airwaves and employ such
means as it can as a guardian of the public.
In Sec. 3 (c), one can already find the permissible actions of the MTRCB, along with the
standards to be applied to determine whether there have been statutory breaches. The MTRCB may
evaluate motion pictures, television programs, and publicity materials "applying contemporary
Filipino cultural values as standard", and, from there, determine whether these audio and video
materials "are objectionable for being immoral, indecent, contrary to law and/or good customs, [etc.]
. . ." and apply the sanctions it deems proper. The lawmaking body cannot possibly provide for all the
details in the enforcement of a particular statute. 69 The grant of the rule-making power to
administrative agencies is a relaxation of the principle of separation of powers and is an exception to
the non-delegation of legislative powers.70 Administrative regulations or "subordinate legislation"
calculated to promote the public interest are necessary because of "the growing complexity of
modern life, the multiplication of the subjects of governmental regulations, and the increased
difficulty of administering the law". 71 Allowing the MTRCB some reasonable elbow-room in its
operations and, in the exercise of its statutory disciplinary functions, according it ample latitude in
fixing, by way of an appropriate issuance, administrative penalties with due regard for the severity of
the offense and attending mitigating or aggravating circumstances, as the case may be, would be
consistent with its mandate to effectively and efficiently regulate the movie and television industry.
But even as we uphold the power of the MTRCB to review and impose sanctions for violations
of PD 1986, its decision to suspend petitioner must be modified, for nowhere in that issuance,
particularly the power-defining Sec. 3 nor in the MTRCB Schedule of Administrative Penalties effective
January 1, 1999 is the Board empowered to suspend the program host or even to prevent certain
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people from appearing in television programs. The MTRCB, to be sure, may prohibit the broadcast of
such television programs or cancel permits for exhibition, but it may not suspend television
personalities, for such would be beyond its jurisdiction. The MTRCB cannot extend its exercise of
regulation beyond what the law provides. Only persons, offenses, and penalties clearly falling clearly
within the letter and spirit of PD 1986 will be considered to be within the decree's penal or disciplinary
operation. And when it exists, the reasonable doubt must be resolved in favor of the person charged
with violating the statute and for whom the penalty is sought. Thus, the MTRCB's decision in
Administrative Case No. 01-04 dated September 27, 2004 and the subsequent order issued pursuant
to said decision must be modified. The suspension should cover only the television program on which
petitioner appeared and uttered the offensive and obscene language, which sanction is what the law
and the facts obtaining call for.
In ending, what petitioner obviously advocates is an unrestricted speech paradigm in which
absolute permissiveness is the norm. Petitioner's flawed belief that he may simply utter gutter
profanity on television without adverse consequences, under the guise of free speech, does not lend
itself to acceptance in this jurisdiction. We repeat: freedoms of speech and expression are not
absolute freedoms. To say "any act that restrains speech should be greeted with furrowed brows" is
not to say that any act that restrains or regulates speech or expression is per se invalid. This only
recognizes the importance of freedoms of speech and expression, and indicates the necessity to
carefully scrutinize acts that may restrain or regulate speech.
WHEREFORE, the decision of the MTRCB in Adm. Case No. 01-04 dated September 27, 2004
is hereby AFFIRMED with the MODIFICATION of limiting the suspension to the program Ang Dating
Daan. As thus modified, the fallo of the MTRCB shall read as follows:
WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, imposing a
penalty of THREE (3) MONTHS SUSPENSION on the television program, Ang Dating
Daan, subject of the instant petition.
Co-respondents Joselito Mallari, Luzviminda Cruz, and UNTV Channel 37 and its owner,
PBC, are hereby exonerated for lack of evidence. DIEAHc
Costs against petitioner.
SO ORDERED.
||| (Soriano v. Laguardia, G.R. No. 164785, 165636, [April 29, 2009], 605 PHIL 43-193)
SORIANO VS. LAGUARDIA 615 SCRA 254 (2010)
ELISEO F. SORIANO, petitioner, vs. MA. CONSOLIZA P. LAGUARDIA, in her capacity as

Chairperson of the Movie and Television Review and Classification Board, MOVIE AND
TELEVISION REVIEW AND CLASSIFICATION BOARD, JESSIE L. GALAPON, ANABEL M.
DELA CRUZ, MANUEL M. HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE
S. YARIA, JR., MICHAEL M. SANDOVAL, and ROLDAN A. GAVINO, respondents.
[G.R. No. 165636. March 15, 2010.]
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ELISEO F. SORIANO, petitioner, vs. MOVIE AND TELEVISION REVIEW AND

CLASSIFICATION BOARD, ZOSIMO G. ALEGRE, JACKIE AQUINO-GAVINO, NOEL R. DEL
PRADO, EMMANUEL BORLAZA, JOSE E. ROMERO IV, and FLORIMONDO C. ROUS, in
their capacity as members of the Hearing and Adjudication Committee of the MTRCB,
JESSIE L. GALAPON, ANABEL M. DELA CRUZ, MANUEL M. HERNANDEZ, JOSE L. LOPEZ,
CRISANTO SORIANO, BERNABE S. YARIA, JR., MICHAEL M. SANDOVAL, and ROLDAN
A. GAVINO, in their capacity as complainants before the MTRCB, respondents.
RESOLUTION
VELASCO, JR., J p:
Before us is this motion of petitioner Eliseo F. Soriano for reconsideration of the Decision of
the Court dated April 29, 2009, modifying that of the Movie and Television Review and Classification
Board (MTRCB) by imposing the penalty of three-month suspension on the television show Ang Dating
Daan, instead of on petitioner Soriano, as host of that program.
Petitioner seeks reconsideration on the following grounds or issues: (1) the suspension thus
meted out to the program constitutes prior restraint; (2) the Court erred in ruling that his
utterances 1 did not constitute exercise of religion; (3) the Court erred in finding the language used
as offensive and obscene; (4) the Court should have applied its policy of non-interference in cases of
conflict between religious groups; and (5) the Court erred in penalizing the television program for the
acts of petitioner.
The motion has no merit.
Petitioner's threshold posture that the suspension thus imposed constitutes prior restraint
and an abridgement of his exercise of religion and freedom of expression is a mere rehash of the
position he articulated in the underlying petitions for certiorari and expounded in his
memorandum. 2 So are the supportive arguments and some of the citations of decisional law,
Philippine and American, holding it together. They have been considered, sufficiently discussed in
some detail, and found to be without merit in our Decision. It would, thus, make little sense to embark
on another lengthy discussion of the same issues and arguments.
Suffice it to reiterate that the sanction imposed on the TV program in question does not,
under the factual milieu of the case, constitute prior restraint, but partakes of the nature of
subsequent punishment for past violation committed by petitioner in the course of the broadcast of
the program on August 10, 2004. To be sure, petitioner has not contested the fact of his having made
statements on the air that were contextually violative of the program's "G" rating. To merit a "G"
rating, the program must be "suitable for all ages," which, in turn, means that the "material for
television [does not], in the judgment of the [MTRCB], . . . contain anything unsuitable for children
and minors, and may be viewed without adult guidance or supervision." 3 As previously discussed by
the Court, the vulgar language petitioner used on prime-time television can in no way be
characterized as suitable for all ages, and is wholly inappropriate for children. cAEaSC
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Petitioner next harps on the primacy of his freedoms, referring particularly to the exercise of
his religious beliefs and profession, as presiding minister of his flock, over the right and duty of the
state as parens patriae. Petitioner's position may be accorded some cogency, but for the fact that it
fails to consider that the medium he used to make his statements was a television broadcast, which
is accessible to children of virtually all ages. As already laid down in the Decision subject of this
recourse, the interest of the government in protecting children who may be subjected to petitioner's
invectives must take precedence over his desire to air publicly his dirty laundry. The public soapbox
that is television must be guarded by the state, which purpose the MTRCB serves, and has served, in
suspending Ang Dating Daan for petitioner's statements. As emphasized in Gonzalez v. Kalaw
Katigbak, 4 the freedom of broadcast media is, in terms of degree of protection it deserves, lesser in
scope, especially as regards television, which reaches every home where there is a set, and where
children will likely be among the avid viewers of the programs shown. The same case also laid the
basis for the classification system of the MTRCB when it stated, "It cannot be denied though that the
State asparens patriae is called upon to manifest an attitude of caring for the welfare of the young." 5
The penalty of suspension imposed on petitioner has driven him to liken the Court to "a blind
man who was asked to describe an elephant, and by his description he stubbornly believed that an
elephant is just the same as a Meralco post after touching one if its legs." 6 Petitioner makes this
comparison with the view that the factual backdrop against which his statements were made was
purportedly not considered by the Court. As he presently argues:
The Honorable Court should have rendered its decision in light of the surrounding
circumstances why and what prompted herein petitioner to utter those words. Clearly,
he was provoked because of the malicious and blatant splicing by the INC ministers of
his recorded voice. Verily, Petitioner submits that the choice of words he used has been
harsh but strongly maintains that the same was consistent with his constitutional right
of freedom of speech and religion.
Contrary to petitioner's impression, the Court has, in fact, considered the factual antecedents
of and his motive in making his utterances, and has found those circumstances wanting as defense
for violating the program's "G" rating. Consider the following excerpts from the Court's Decision:
There is nothing in petitioner's statements subject of the complaints expressing any
particular religious belief, nothing furthering his avowed evangelical mission. The fact
that he came out with his statements in a televised bible exposition program does not
automatically accord them the character of a religious discourse. Plain and simple
insults directed at another person cannot be elevated to the status of religious speech.
Even petitioner's attempts to place his words in context show that he was moved by
anger and the need to seek retribution, not by any religious conviction. His claim,
assuming its veracity, that some INC ministers distorted his statements respecting
amounts Ang Dating Daan owed to a TV station does not convert the foul language
used in retaliation as religious speech. We cannot accept that petitioner made his
statements in defense of his reputation and religion, as they constitute no intelligible
defense or refutation of the alleged lies being spread by a rival religious group. They
simply illustrate that petitioner had descended to the level of name-calling and foul-
language discourse. Petitioner could have chosen to contradict and disprove his
detractors, but opted for the low road. THESAD
And just to set things straight, the penalty imposed is on the program, not on petitioner.
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Petitioner would next have the Court adopt a hands-off approach to the conflict between him
and the Iglesia ni Cristo. In support of his urging, he cites Iglesia ni Cristo v. Court of Appeals. 7
Petitioner's invocation of Iglesia ni Cristo to support his hands-off thesis is erroneous.
Obviously, he fails to appreciate what the Court stated in that particular case when it rejected the
argument that a religious program is beyond MTRCB's review and regulatory authority. We reproduce
what the Court pertinently wrote inIglesia ni Cristo:
We thus reject petitioner's postulate that its religious program is per se beyond review
by the respondent [MTRCB]. Its public broadcast on TV of its religious program brings it
out of the bosom of internal belief. Television is a medium that reaches even the eyes
and ears of children. The Court iterates the rule that the exercise of religious freedom
can be regulated by the State when it will bring about the clear and present danger of
some substantive evil which the State is duty bound to prevent, i.e., serious detriment
to the more overriding interest of public health, public morals, or public welfare.
A laissez faire policy on the exercise of religion can be seductive to the liberal mind but
history counsels the Court against its blind adoption as religion is and continues to be a
volatile area of concern in our country today. Across the sea and in our shore, the
bloodiest and bitterest wars fought by men were caused by irreconcilable religious
differences. Our country is still not safe from the recurrence of this stultifying strife
considering our warring religious beliefs and the fanaticism with which some of us cling
and claw to these beliefs. . . . For when religion divides and its exercise destroys, the
State should not stand still. 8 (Emphasis added.) ATcaHS
Lastly, petitioner claims that there was violation of due process of law, alleging that the
registered producer of the program is not a party to the proceedings. Hence, the program cannot, so
petitioner asserts, be penalized.
We will let the records speak for themselves to refute that argument.
As per petitioner's admission in his petition for certiorari filed with the Court, he is "the
Executive Producer of Ang Dating Daan, a televised bible exposition program produced by the
Philippine-based religious organization, Church of God International." 9 It is unclear, then, which
producer the movant is referring to in claiming that there was no representation before the MTRCB.
He was and is the representative of Ang Dating Daan, and the claim that there was no due process of
law is simply bereft of merit.
Even as the foregoing disquisitions would suffice to write finis to the instant motion, certain
relevant issues have been raised by some members of the Court that ought to be addressed if only to
put things in their proper perspective. We refer to the matter of obscenity.
As stressed at every possible turn in the challenged Court's Decision, the defining standards
to be employed in judging the harmful effects of the statements petitioner used would be those for
the average child, not those for the average adult. We note that the ratings and regulation of
television broadcasts take into account the protection of the child, and it is from the child's narrow
viewpoint that the utterances must be considered, if not measured. The ratings "G," "PG" (parental
guidance), "PG-13," and "R" (restricted or for adults only) suggest as much. The concern was then, as
now, that the program petitioner hosted and produced would reach an unintended audience, the
average child, and so it is how this audience would view his words that matters. The average child
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would not be concerned with colorful speech, but, instead, focus on the literal, everyday meaning of
words used. It was this literal approach that rendered petitioner's utterances obscene.
The Court has taken stock of Action for Children's Television v. FCC, 10 but finds this U.S. case
not to be of governing application to this jurisdiction under the present state of things. The so-called
"safe harbor"' of 10:00 p.m. to 6:00 a.m., adverted to in Action for Children's Television as the time
wherein broadcast of indecent material may be permitted, is believed inapplicable here. As it were,
there is no legislative enactment or executive issuance setting a similar period in the Philippines
wherein indecent material may be broadcast. Rather than fix a period for allowing indecent
programming, what is used in this jurisdiction is the system of classification of television programs,
which the petitioner violated. His program was rated "G," purported to be suitable for all ages. We
cannot lose sight of the violation of his program's classification that carried with it the producer's
implied assurance that the program did not contain anything unsuitable for children and minors. The
hour at which it was broadcasted was of little moment in light of the guarantee that the program was
safe for children's viewing.
The suspension of the program has not been arrived at lightly. Taking into account all the
factors involved and the arguments pressed on the Court, the suspension of the program is a
sufficiently limited disciplinary action, both to address the violation and to serve as an object lesson
for the future. The likelihood is great that any disciplinary action imposed on petitioner would be met
with an equally energetic defense as has been put up here. The simple but stubborn fact is that there
has been a violation of government regulations that have been put in place with a laudable purpose,
and this violation must accordingly be dealt with. We are not unmindful of the concerns on the
restriction of freedoms that may occur in imposing sanctions upon erring individuals and institutions,
but it cannot be over-emphasized that the freedoms encased in the Bill of Rights are far from absolute.
Each has its own limits, responsibilities, and obligations. Everyone is expected to bear the burden
implicit in the exercise of these freedoms. So it must be here. CSHEAI
WHEREFORE, petitioner's motion for reconsideration is hereby DENIED.
No further pleadings shall be entertained in this case. Let entry of judgment be made in due
course.
SO ORDERED.
||| (Soriano v. Laguardia, G.R. No. 164785, 165636, [March 15, 2010], 629 PHIL 262-304)
ANG LADLAD VS. COMELEC 618 SCRA 32 (2010)
ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON

REMOTO, petitioner,vs.COMMISSION ON ELECTIONS, respondent.
DECISION
DEL CASTILLO, J p:
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...[F]reedom to differ is not limited to things that do not matter much. That would be a
mere shadow of freedom. The test of its substance is the right to differ as to things that
touch the heart of the existing order.
Justice Robert A. Jackson
West Virginia State Board of Education v. Barnette 1
One unavoidable consequence of everyone having the freedom to choose is that others may
make different choices choices we would not make for ourselves, choices we may disapprove of,
even choices that may shock or offend or anger us. However, choices are not to be legally prohibited
merely because they are different, and the right to disagree and debate about important questions of
public policy is a core value protected by our Bill of Rights. Indeed, our democracy is built on genuine
recognition of, and respect for, diversity and difference in opinion.
Since ancient times, society has grappled with deep disagreements about the definitions and
demands of morality. In many cases, where moral convictions are concerned, harmony among those
theoretically opposed is an insurmountable goal. Yet herein lies the paradox philosophical
justifications about what is moral are indispensable and yet at the same time powerless to create
agreement. This Court recognizes, however, that practical solutions are preferable to ideological
stalemates; accommodation is better than intransigence; reason more worthy than rhetoric. This will
allow persons of diverse viewpoints to live together, if not harmoniously, then, at least, civilly.
Factual Background
This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application for a
writ of preliminary mandatory injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad) against the
Resolutions of the Commission on Elections (COMELEC) dated November 11, 2009 2 (the First
Assailed Resolution) and December 16, 2009 3 (the Second Assailed Resolution) in SPP No. 09-228 (PL)
(collectively, the Assailed Resolutions). The case has its roots in the COMELEC's refusal to
accredit AngLadlad as a party-list organization under Republic Act (RA) No. 7941, otherwise known as
the Party-List System Act. 4 CDAHaE
Ang Ladlad is an organization composed of men and women who identify themselves as
lesbians, gays, bisexuals, or trans-gendered individuals (LGBTs).Incorporated in 2003, Ang Ladlad first
applied for registration with the COMELEC in 2006. The application for accreditation was
denied on the ground that the organization had no substantial membership base. On August 17,
2009, Ang Ladlad again filed a Petition 5 for registration with the COMELEC.
Before the COMELEC, petitioner argued that the LGBT community is a marginalized and
under-represented sector that is particularly disadvantaged because of their sexual orientation and
gender identity; that LGBTs are victims of exclusion, discrimination, and violence; that because of
negative societal attitudes, LGBTs are constrained to hide their sexual orientation; and
that Ang Ladlad complied with the 8-point guidelines enunciated by this Court in Ang Bagong Bayani-
OFW Labor Party v. Commission on Elections. 6 Ang Ladlad laid out its national membership base
consisting of individual members and organizational supporters, and outlined its platform of
governance. 7
On November 11, 2009, after admitting the petitioner's evidence, the COMELEC (Second
Division) dismissed the Petition on moral grounds, stating that:
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...This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian,
Gay, Bisexual and Transgender (LGBT) Community, thus:
...a marginalized and under-represented sector that is particularly
disadvantaged because of their sexual orientation and gender identity.
and proceeded to define sexual orientation as that which:
...refers to a person's capacity for profound emotional, affectional and sexual
attraction to, and intimate and sexual relations with, individuals of a different
gender, of the same gender, or more than one gender."
This definition of the LGBT sector makes it crystal clear that petitioner tolerates
immorality which offends religious beliefs. In Romans 1:26, 27, Paul wrote:
For this cause God gave them up into vile affections, for even their women did
change the natural use into that which is against nature: And likewise also the
men, leaving the natural use of the woman, burned in their lust one toward
another; men with men working that which is unseemly, and receiving in
themselves that recompense of their error which was meet.
In the Koran, the hereunder verses are pertinent:
For ye practice your lusts on men in preference to women "ye are indeed a
people transgressing beyond bounds." (7.81) "And we rained down on them a
shower (of brimstone):Then see what was the end of those who indulged in sin
and crime!" (7:84) "He said: "O my Lord! Help Thou me against people who do
mischief" (29:30).
As correctly pointed out by the Law Department in its Comment dated October 2,
2008: CcADHI
The ANG LADLAD apparently advocates sexual immorality as indicated in the
Petition's par. 6F: 'Consensual partnerships or relationships by gays and
lesbians who are already of age'.It is further indicated in par. 24 of the Petition
which waves for the record: 'In 2007, Men Having Sex with Men or MSMs in the
Philippines were estimated as 670,000 (Genesis 19 is the history of Sodom and
Gomorrah).
Laws are deemed incorporated in every contract, permit, license, relationship,
or accreditation. Hence, pertinent provisions of the Civil Code and the Revised
Penal Code are deemed part of the requirement to be complied with for
accreditation.
ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance
as 'Any act, omission, establishment, business, condition of property, or
anything else which . . . (3) shocks, defies; or disregards decency or morality ...
It also collides with Article 1306 of the Civil Code: 'The contracting parties may
establish such stipulations, clauses, terms and conditions as they may deem
convenient, provided they are not contrary to law, morals, good customs,
public order or public policy. Art. 1409 of the Civil Code provides that 'Contracts
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whose cause, object or purpose is contrary to law, morals, good customs,public

order or public policy' are inexistent and void from the beginning.
Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as
amended, penalizes 'Immoral doctrines, obscene publications and exhibitions and
indecent shows' as follows:
Art. 201. Immoral doctrines, obscene publications and exhibitions, and
indecent shows. The penalty of prision mayor or a fine ranging from six
thousand to twelve thousand pesos, or both such imprisonment and fine, shall
be imposed upon:
1. Those who shall publicly expound or proclaim doctrines openly contrary to
public morals;
2. (a) The authors of obscene literature, published with their knowledge in any
form; the editors publishing such literature; and the owners/operators of the
establishment selling the same;
(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit
indecent or immoral plays, scenes, acts or shows, it being understood that the
obscene literature or indecent or immoral plays, scenes, acts or shows, whether
live or in film, which are prescribed by virtue hereof, shall include those which:
(1) glorify criminals or condone crimes; (2) serve no other purpose but to satisfy
the market for violence, lust or pornography;(3) offend any race or religion; (4)
tend to abet traffic in and use of prohibited drugs; and (5) are contrary to law,
public order, morals, good customs,established policies, lawful orders, decrees
and edicts.
3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture
or literature which are offensive to morals. THADEI
Petitioner should likewise be denied accreditation not only for advocating immoral
doctrines but likewise for not being truthful when it said that it "or any of its
nominees/party-list representatives have not violated or failed to comply with laws,
rules, or regulations relating to the elections."
Furthermore, should this Commission grant the petition, we will be exposing our youth
to an environment that does not conform to the teachings of our faith. Lehman Strauss,
a famous bible teacher and writer in the U.S.A. said in one article that "older practicing
homosexuals are a threat to the youth." As an agency of the government, ours too is
the State's avowed duty under Section 13, Article II of the Constitution to protect our
youth from moral and spiritual degradation. 8
When Ang Ladlad sought reconsideration, 9 three commissioners voted to overturn the First
Assailed Resolution (Commissioners Gregorio Y. Larrazabal, ReneV. Sarmiento, and Armando Velasco),
while three commissioners voted to deny Ang Ladlad's Motion for Reconsideration (Commissioners
Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias R. Yusoph).The COMELEC Chairman, breaking the tie
and speaking for the majority in his Separate Opinion, upheld the First Assailed Resolution, stating
that:
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I. The Spirit of Republic Act No. 7941

Ladlad is applying for accreditation as a sectoral party in the party-list system. Even
assuming that it has properly proven its under-representation and marginalization, it
cannot be said that Ladlad's expressed sexual orientations per se would benefit the
nation as a whole.
Section 2 of the party-list law unequivocally states that the purpose of the party-list
system of electing congressional representatives is to enable Filipino citizens belonging
to marginalized and under-represented sectors, organizations and parties, and who lack
well-defined political constituencies but who could contribute to the formulation and
enactment of appropriate legislation that will benefit the nation as a whole, to become
members of the House of Representatives.
If entry into the party-list system would depend only on the ability of an organization
to represent its constituencies, then all representative organizations would have found
themselves into the party-list race. But that is not the intention of the framers of the
law. The party-list system is not a tool to advocate tolerance and acceptance of
misunderstood persons or groups of persons. Rather, the party-list system is a tool for
the realization of aspirations of marginalized individuals whose interests are also the
nation's only that their interests have not been brought to the attention of the
nation because of their under representation. Until the time comes when Ladlad is
able to justify that having mixed sexual orientations and transgender identities is
beneficial to the nation, its application for accreditation under the party-list system
will remain just that.
II. No substantial differentiation
In the United States, whose equal protection doctrine pervades Philippine
jurisprudence, courts do not recognize lesbians, gays, homosexuals, and bisexuals
(LGBT) as a "special class" of individuals. . . . Significantly, it has also been held that
homosexuality is not a constitutionally protected fundamental right, and that "nothing
in the U.S. Constitution discloses a comparable intent to protect or promote the social
or legal equality of homosexual relations," as in the case of race or religion or
belief. EcHTCD
xxx xxx xxx
Thus, even if society's understanding, tolerance, and acceptance of LGBT's is elevated,
there can be no denying that Ladlad constituencies are still males and females,
and they will remain either male or female protected by the same Bill of Rights that
applies to all citizens alike.
xxx xxx xxx
IV. Public Morals
...There is no question about not imposing on Ladlad Christian or Muslim religious
practices. Neither is there any attempt to any particular religious group's moral
ruleson Ladlad. Rather, what are being adopted as moral parameters and precepts are
generally accepted public morals. They are possibly religious-based, but as a society,
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the Philippines cannot ignore its more than 500 years of Muslim and Christian
upbringing, such that some moral precepts espoused by said religions have sipped
[sic] into society and these are not publicly accepted moral norms.
V.Legal Provisions
But above morality and social norms, they have become part of the law of the land.
Article 201 of the Revised Penal Code imposes the penalty of prision mayor upon "Those
who shall publicly expound or proclaim doctrines openly contrary to public morals." It
penalizes "immoral doctrines, obscene publications and exhibition and indecent
shows." "Ang Ladlad" apparently falls under these legal provisions. This is clear from its
Petition's paragraph 6F: "Consensual partnerships or relationships by gays and lesbians
who are already of age. It is further indicated in par. 24 of the Petition which waves for
the record: 'In 2007, Men Having Sex with Men or MSMs in the Philippines were
estimated as 670,000. Moreoever, * Article 694 of the Civil Code defines "nuisance" as
any act, omission . . . or anything else . . . which shocks, defies or disregards decency or
morality . . . ." These are all unlawful. 10
On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed
Resolutions and direct the COMELEC to grant Ang Ladlad'sapplication for
accreditation. Ang Ladlad also sought the issuance ex parte of a preliminary mandatory injunction
against the COMELEC, which had previously announced that it would begin printing the final ballots
for the May 2010 elections by January 25, 2010.
On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its
Comment on behalf of COMELEC not later than 12:00 noon of January 11, 2010. 11 Instead of filing a
Comment, however, the OSG filed a Motion for Extension, requesting that it be given until January
16, 2010 to Comment. 12 Somewhat surprisingly, the OSG later filed a Comment in support of
petitioner's application. 13 Thus, in order to give COMELEC the opportunity to fully ventilate its
position, we required it to file its own comment. 14 The COMELEC, through its Law Department, filed
its Comment on February 2, 2010. 15
In the meantime, due to the urgency of the petition, we issued a temporary restraining
order on January 12, 2010, effective immediately and continuing until further orders from this Court,
directing the COMELEC to cease and desist from implementing the Assailed Resolutions. 16
Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to
Intervene or to Appear as Amicus Curiae, attaching thereto its Comment-in-Intervention. 17 The CHR
opined that the denial of Ang Ladlad's petition on moral grounds violated the standards and
principles of the Constitution, the Universal Declaration of Human Rights (UDHR), and the
International Covenant on Civil and Political Rights (ICCPR). On January 19, 2010, we granted the
CHR's motion to intervene. DcaECT
On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene 18 which motion
was granted on February 2, 2010. 19
The Parties' Arguments
Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by using
religious dogma, violated the constitutional guarantees against the establishment of religion.
Petitioner also claimed that the Assailed Resolutions contravened its constitutional rights to privacy,
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freedom of speech and assembly, and equal protection of laws, as well as constituted violations of
the Philippines' international obligations against discrimination based on sexual orientation.
The OSG concurred with Ang Ladlad's petition and argued that the COMELEC erred in denying
petitioner's application for registration since there was no basis for COMELEC's allegations of
immorality. It also opined that LGBTs have their own special interests and concerns which should have
been recognized by theCOMELEC as a separate classification. However, insofar as the purported
violations of petitioner's freedom of speech, expression, and assembly were concerned, the OSG
maintained that there had been no restrictions on these rights.
In its Comment, the COMELEC reiterated that petitioner does not have a concrete and
genuine national political agenda to benefit the nation and that the petition was validly
dismissed on moral grounds. It also argued for the first time that the LGBT sector is not among the
sectors enumerated by the Constitution andRA 7941, and that petitioner made untruthful statements
in its petition when it alleged its national existence contrary to actual verification reports
by COMELEC's field personnel.
Our Ruling
We grant the petition.
Compliance with the Requirements of
the Constitution and Republic Act No.
7941
The COMELEC denied Ang Ladlad's application for registration on the ground that the LGBT
sector is neither enumerated in the Constitution and RA 7941, nor is it associated with or related to
any of the sectors in the enumeration.
Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the
proposition that only those sectors specifically enumerated in the law or related to said sectors (labor,
peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women,
youth, veterans, overseas workers, and professionals) may be registered under the party-list system.
As we explicitly ruled in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections, 20 "the
enumeration of marginalized and under-represented sectors is not exclusive". The crucial element is
not whether a sector is specifically enumerated, but whether a particular organization complies with
the requirements of the Constitution and RA 7941.
Respondent also argues that Ang Ladlad made untruthful statements in its petition when it
alleged that it had nationwide existence through its members and affiliate organizations.
The COMELEC claims that upon verification by its field personnel, it was shown that "save for a few
isolated places in the country, petitioner does not exist in almost all provinces in the
country." 21 EaISTD
This argument that "petitioner made untruthful statements in its petition when it alleged its
national existence" is a new one; previously, the COMELEC claimed that petitioner was "not being
truthful when it said that it or any of its nominees/party-list representatives have not violated or failed
to comply with laws, rules, or regulations relating to the elections." Nowhere was this ground for
denial of petitioner's accreditation mentioned or even alluded to in the Assailed Resolutions. This, in
itself, is quite curious, considering that the reports of petitioner's alleged non-existence were already
available to the COMELEC prior to the issuance of the First Assailed Resolution. At best, this is irregular
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procedure; at worst, a belated afterthought, a change in respondent's theory, and a serious violation
of petitioner's right to procedural due process.
Nonetheless, we find that there has been no misrepresentation. A cursory perusal
of Ang Ladlad's initial petition shows that it never claimed to exist in each province of the Philippines.
Rather, petitioner alleged that the LGBT community in the Philippines was estimated to constitute at
least 670,000 persons; that it had 16,100 affiliates and members around the country, and 4,044
members in its electronic discussion group. 22 Ang Ladlad also represented itself to be "a national
LGBT umbrella organization with affiliates around the Philippines composed of the following LGBT
networks:"
Abra Gay Association
Aklan Butterfly Brigade (ABB)-Aklan
Albay Gay Association
Arts Center of Cabanatuan City-Nueva Ecija
Boys Legion-Metro Manila
Cagayan de Oro People Like Us (CDO PLUS)
Can't Live in the Closet, Inc. (CLIC)-Metro Manila
Cebu Pride-Cebu City
Circle of Friends
Dipolog Gay Association-Zamboanga del Norte
Gay, Bisexual, & Transgender Youth Association (GABAY)
Gay and Lesbian Activists Network for Gender Equality (GALANG)-Metro Manila
Gay Men's Support Group (GMSG)-Metro Manila
Gay United for Peace and Solidarity (GUPS)-Lanao del Norte
Iloilo City Gay Association-Iloilo City
Kabulig Writer's Group-Camarines Sur
Lesbian Advocates Philippines, Inc. (LEAP)
LUMINA-Baguio City
Marikina Gay Association-Metro Manila
Metropolitan Community Church (MCC)-Metro Manila
Naga City Gay Association-Naga City
ONE BACARDI AaITCS
Order of St. Aelred (OSAe)-Metro Manila
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PUP LAKAN
RADAR PRIDEWEAR
Rainbow Rights Project (R-Rights),Inc.-Metro Manila
San Jose del Monte Gay Association-Bulacan
Sining Kayumanggi Royal Family-Rizal
Society of Transexual Women of the Philippines (STRAP)-Metro Manila
Soul Jive-Antipolo, Rizal
The Link-Davao City
Tayabas Gay Association-Quezon
Women's Bisexual Network-Metro Manila
Zamboanga Gay Association-Zamboanga City 23
Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD LGBT, it is no
surprise that they found that petitioner had no presence in any of these regions. In fact, if COMELEC's
findings are to be believed, petitioner does not even exist in Quezon City, which is registered
as Ang Ladlad's principal place of business.
Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its compliance
with the legal requirements for accreditation. Indeed, aside fromCOMELEC's moral objection and the
belated allegation of non-existence, nowhere in the records has the respondent ever found/ruled
that Ang Ladlad is not qualified to register as a party-list organization under any of the requisites
under RA 7941 or the guidelines in Ang Bagong Bayani. The difference, COMELEC claims, lies
in Ang Ladlad's morality, or lack thereof.
Religion as the Basis for Refusal to
Accept Ang Ladlad's Petition for
Registration
Our Constitution provides in Article III, Section 5 that "[n]o law shall be made respecting an
establishment of religion, or prohibiting the free exercise thereof." At bottom, what our non-
establishment clause calls for is "government neutrality in religious matters." 24 Clearly,
"governmental reliance on religious justification is inconsistent with this policy of neutrality." 25 We
thus find that it was grave violation of the non-establishment clause for the COMELEC to utilize the
Bible and the Koran to justify the exclusion of Ang Ladlad.
Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should
depend, instead, on whether the COMELEC is able to advance some justification for its rulings beyond
mere conformity to religious doctrine. Otherwise stated, government must act for secular purposes
and in ways that have primarily secular effects. As we held in Estrada v. Escritor: 26
...The morality referred to in the law is public and necessarily secular, not religious as
the dissent of Mr. Justice Carpio holds. "Religious teachings as expressed in public
debate may influence the civil public order but public moral disputes may be resolved
only on grounds articulable in secular terms." Otherwise, if government relies upon
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religious beliefs in formulating public policies and morals, the resulting policies and
morals would require conformity to what some might regard as religious programs or
agenda. The non-believers would therefore be compelled to conform to a standard of
conduct buttressed by a religious belief, i.e., to a "compelled religion," anathema to
religious freedom. Likewise, if government based its actions upon religious beliefs, it
would tacitly approve or endorse that belief and thereby also tacitly disapprove
contrary religious or non-religious views that would not support the policy. As a result,
government will not provide full religious freedom for all its citizens, or even make it
appear that those whose beliefs are disapproved are second-class citizens.
In other words, government action, including its proscription of immorality as
expressed in criminal law like concubinage, must have a secular purpose. That is, the
government proscribes this conduct because it is "detrimental (or dangerous) to those
conditions upon which depend the existence and progress of human society" and not
because the conduct is proscribed by the beliefs of one religion or the other. Although
admittedly, moral judgments based on religion might have a compelling
influence on those engaged in public deliberations over what actions would be
considered a moral disapprobation punishable by law. After all, they might also be
adherents of a religion and thus have religious opinions and moral codes with a
compelling influence on them; the human mind endeavors to regulate the temporal
and spiritual institutions of society in a uniform manner, harmonizing earth with
heaven. Succinctly put, a law could be religious or Kantian or Aquinian or utilitarian in
its deepest roots, but it must have an articulable and discernible secular purpose and
justification to pass scrutiny of the religion clauses. . . . Recognizing the religious nature
of the Filipinos and the elevating influence of religion in society, however, the Philippine
constitution's religion clauses prescribe not a strict but a benevolent neutrality.
Benevolent neutrality recognizes that government must pursue its secular goals and
interests but at the same time strive to uphold religious liberty to the greatest extent
possible within flexible constitutional limits. Thus, although the morality contemplated
by laws is secular, benevolent neutrality could allow for accommodation of morality
based on religion, provided it does not offend compelling state interests. 27
Public Morals as a Ground to Deny
Ang Ladlad's Petition for Registration
Respondent suggests that although the moral condemnation of homosexuality and
homosexual conduct may be religion-based, it has long been transplanted into generally accepted
public morals. The COMELEC argues: aIcCTA
Petitioner's accreditation was denied not necessarily because their group consists of
LGBTs but because of the danger it poses to the people especially the youth. Once it is
recognized by the government, a sector which believes that there is nothing wrong in
having sexual relations with individuals of the same gender is a bad example. It will bring
down the standard of morals we cherish in our civilized society. Any society without a
set of moral precepts is in danger of losing its own existence. 28
We are not blind to the fact that, through the years, homosexual conduct, and perhaps
homosexuals themselves, have borne the brunt of societal disapproval. It is not difficult to imagine
the reasons behind this censure religious beliefs, convictions about the preservation of marriage,
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family, and procreation, even dislike or distrust of homosexuals themselves and their perceived
lifestyle. Nonetheless, we recall that the Philippines has not seen fit to criminalize homosexual
conduct. Evidently, therefore, these "generally accepted public morals" have not been convincingly
transplanted into the realm of law. 29
The Assailed Resolutions have not identified any specific overt immoral act performed
by Ang Ladlad. Even the OSG agrees that "there should have been a finding by the COMELEC that the
group's members have committed or are committing immoral acts." 30 The OSG argues:
...A person may be sexually attracted to a person of the same gender, of a different
gender, or more than one gender, but mere attraction does not translate to immoral
acts. There is a great divide between thought and action. Reduction ad absurdum. If
immoral thoughts could be penalized, COMELEC would have its hands full of
disqualification cases against both the "straights" and the gays." Certainly this is not the
intendment of the law. 31
Respondent has failed to explain what societal ills are sought to be prevented, or why special
protection is required for the youth. Neither has the COMELECcondescended to justify its position
that petitioner's admission into the party-list system would be so harmful as to irreparably damage
the moral fabric of society. We, of course, do not suggest that the state is wholly without authority to
regulate matters concerning morality, sexuality, and sexual relations, and we recognize that the
government will and should continue to restrict behavior considered detrimental to society.
Nonetheless, we cannot countenance advocates who, undoubtedly with the loftiest of intentions,
situate morality on one end of an argument or another, without bothering to go through the rigors of
legal reasoning and explanation. In this, the notion of morality is robbed of all value. Clearly then, the
bare invocation of morality will not remove an issue from our scrutiny.
We also find the COMELEC's reference to purported violations of our penal and civil laws
flimsy, at best; disingenuous, at worst. Article 694 of the Civil Codedefines a nuisance as "any act,
omission, establishment, condition of property, or anything else which shocks, defies, or disregards
decency or morality," the remedies for which are a prosecution under the Revised Penal Code or any
local ordinance, a civil action, or abatement without judicial proceedings. 32 A violation of Article 201
of the Revised Penal Code, on the other hand, requires proof beyond reasonable doubt to support a
criminal conviction. It hardly needs to be emphasized that mere allegation of violation of laws is not
proof, and a mere blanket invocation of public morals cannot replace the institution of civil or criminal
proceedings and a judicial determination of liability or culpability. SDIaCT
As such, we hold that moral disapproval, without more, is not a sufficient governmental
interest to justify exclusion of homosexuals from participation in the party-list system. The denial
of Ang Ladlad's registration on purely moral grounds amounts more to a statement of dislike and
disapproval of homosexuals, rather than a tool to further any substantial public interest. Respondent's
blanket justifications give rise to the inevitable conclusion that the COMELEC targets homosexuals
themselves as a class, not because of any particular morally reprehensible act. It is this selective
targeting that implicates our equal protection clause.
Equal Protection
Despite the absolutism of Article III, Section 1 of our Constitution, which provides "nor shall
any person be denied equal protection of the laws," courts have never interpreted the provision as an
absolute prohibition on classification. "Equality," said Aristotle, "consists in the same treatment of
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similar persons." 33 The equal protection clause guarantees that no person or class of persons shall
be deprived of the same protection of laws which is enjoyed by other persons or other classes in the
same place and in like circumstances. 34
Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor
targets a suspect class, we will uphold the classification as long as it bears a rational relationship to
some legitimate government end. 35 In Central Bank Employees Association, Inc. v. Banko Sentral ng
Pilipinas, 36 we declared that "[i]n our jurisdiction, the standard of analysis of equal protection
challenges . . . have followed the 'rational basis' test, coupled with a deferential attitude to legislative
classifications and a reluctance to invalidate a law unless there is a showing of a clear and unequivocal
breach of the Constitution." 37
The COMELEC posits that the majority of the Philippine population considers homosexual
conduct as immoral and unacceptable, and this constitutes sufficient reason to disqualify the
petitioner. Unfortunately for the respondent, the Philippine electorate has expressed no such belief.
No law exists to criminalize homosexual behavior or expressions or parties about homosexual
behavior. Indeed, even if we were to assume that public opinion is as the COMELEC describes it, the
asserted state interest here that is, moral disapproval of an unpopular minority is not a
legitimate state interest that is sufficient to satisfy rational basis review under the equal protection
clause. The COMELEC's differentiation, and its unsubstantiated claim that Ang Ladlad cannot
contribute to the formulation of legislation that would benefit the nation, furthers no legitimate state
interest other than disapproval of or dislike for a disfavored group.
From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have
the same interest in participating in the party-list system on the same basis as other political parties
similarly situated. State intrusion in this case is equally burdensome. Hence, laws of general
application should apply with equal force to LGBTs, and they deserve to participate in the party-list
system on the same basis as other marginalized and under-represented sectors.
It bears stressing that our finding that COMELEC's act of differentiating LGBTs from
heterosexuals insofar as the party-list system is concerned does not imply that any other law
distinguishing between heterosexuals and homosexuals under different circumstances would
similarly fail. We disagree with the OSG's position that homosexuals are a class in themselves for the
purposes of the equal protection clause. 38 We are not prepared to single out homosexuals as a
separate class meriting special or differentiated treatment. We have not received sufficient evidence
to this effect, and it is simply unnecessary to make such a ruling today. Petitioner itself has merely
demanded that it be recognized under the same basis as all other groups similarly situated, and that
the COMELEC made "an unwarranted and impermissible classification not justified by the
circumstances of the case."
Freedom of Expression and
Association
Under our system of laws, every group has the right to promote its agenda and attempt to
persuade society of the validity of its position through normal democratic means. 39 It is in the public
square that deeply held convictions and differing opinions should be distilled and deliberated upon.
As we held in Estrada v. Escritor: 40
In a democracy, this common agreement on political and moral ideas is distilled in the
public square. Where citizens are free, every opinion, every prejudice, every aspiration,
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and every moral discernment has access to the public square where people deliberate
the order of their life together. Citizens are the bearers of opinion, including opinion
shaped by, or espousing religious belief, and these citizens have equal access to the
public square. In this representative democracy, the state is prohibited from
determining which convictions and moral judgments may be proposed for public
deliberation. Through a constitutionally designed process, the people deliberate and
decide. Majority rule is a necessary principle in this democratic governance. Thus, when
public deliberation on moral judgments is finally crystallized into law, the laws will
largely reflect the beliefs and preferences of the majority, i.e., the mainstream or
median groups. Nevertheless, in the very act of adopting and accepting
a constitution and the limits it specifies including protection of religious freedom
"not only for a minority, however small not only for a majority, however large but
for each of us" the majority imposes upon itself a self-denying ordinance. It promises
not to do what it otherwise could do: to ride roughshod over the dissenting minorities.
Freedom of expression constitutes one of the essential foundations of a democratic society,
and this freedom applies not only to those that are favorably received but also to those that offend,
shock, or disturb. Any restriction imposed in this sphere must be proportionate to the legitimate aim
pursued. Absent any compelling state interest, it is not for the COMELEC or this Court to impose its
views on the populace. Otherwise stated, the COMELEC is certainly not free to interfere with speech
for no better reason than promoting an approved message or discouraging a disfavored one. aAcDSC
This position gains even more force if one considers that homosexual conduct is not illegal in
this country. It follows that both expressions concerning one's homosexuality and the activity of
forming a political association that supports LGBT individuals are protected as well.
Other jurisdictions have gone so far as to categorically rule that even overwhelming public
perception that homosexual conduct violates public morality does not justify criminalizing same-sex
conduct. 41 European and United Nations judicial decisions have ruled in favor of gay rights
claimants on both privacy and equality grounds, citing general privacy and equal protection provisions
in foreign and international texts. 42 To the extent that there is much to learn from other jurisdictions
that have reflected on the issues we face here, such jurisprudence is certainly illuminating. These
foreign authorities, while not formally binding on Philippine courts, may nevertheless have persuasive
influence on the Court's analysis.
In the area of freedom of expression, for instance, United States courts have ruled that
existing free speech doctrines protect gay and lesbian rights to expressive conduct. In order to justify
the prohibition of a particular expression of opinion, public institutions must show that their actions
were caused by "something more than a mere desire to avoid the discomfort and unpleasantness that
always accompany an unpopular viewpoint." 43
With respect to freedom of association for the advancement of ideas and beliefs, in Europe,
with its vibrant human rights tradition, the European Court of Human Rights (ECHR) has repeatedly
stated that a political party may campaign for a change in the law or the constitutional structures of
a state if it uses legal and democratic means and the changes it proposes are consistent with
democratic principles. The ECHR has emphasized that political ideas that challenge the existing order
and whose realization is advocated by peaceful means must be afforded a proper opportunity of
expression through the exercise of the right of association, even if such ideas may seem shocking or
unacceptable to the authorities or the majority of the population. 44 A political group should not be
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hindered solely because it seeks to publicly debate controversial political issues in order to find
solutions capable of satisfying everyone concerned. 45 Only if a political party incites violence or puts
forward policies that are incompatible with democracy does it fall outside the protection of the
freedom of association guarantee. 46
We do not doubt that a number of our citizens may believe that homosexual conduct is
distasteful, offensive, or even defiant. They are entitled to hold and express that view. On the other
hand, LGBTs and their supporters, in all likelihood, believe with equal fervor that relationships
between individuals of the same sex are morally equivalent to heterosexual relationships. They, too,
are entitled to hold and express that view. However, as far as this Court is concerned, our democracy
precludes using the religious or moral views of one part of the community to exclude from
consideration the values of other members of the community.
Of course, none of this suggests the impending arrival of a golden age for gay rights litigants.
It well may be that this Decision will only serve to highlight the discrepancy between the rigid
constitutional analysis of this Court and the more complex moral sentiments of Filipinos. We do not
suggest that public opinion, even at its most liberal, reflect a clear-cut strong consensus favorable to
gay rights claims and we neither attempt nor expect to affect individual perceptions of homosexuality
through this Decision.
The OSG argues that since there has been neither prior restraint nor subsequent punishment
imposed on Ang Ladlad, and its members have not been deprived of their right to voluntarily
associate, then there has been no restriction on their freedom of expression or association. The OSG
argues that:
There was no utterance restricted, no publication censored, or any assembly denied.
[COMELEC] simply exercised its authority to review and verify the qualifications of
petitioner as a sectoral party applying to participate in the party-list system. This lawful
exercise of duty cannot be said to be a transgression of Section 4, Article III of
the Constitution.
xxx xxx xxx
A denial of the petition for registration ...does not deprive the members of the
petitioner to freely take part in the conduct of elections. Their right to vote will not be
hampered by said denial. In fact, the right to vote is a constitutionally-guaranteed right
which cannot be limited.
As to its right to be elected in a genuine periodic election, petitioner contends that the
denial of Ang Ladlad's petition has the clear and immediate effect of limiting, if not
outrightly nullifying the capacity of its members to fully and equally participate in public
life through engagement in the party list elections.
This argument is puerile. The holding of a public office is not a right but a privilege
subject to limitations imposed by law. ...47
The OSG fails to recall that petitioner has, in fact, established its qualifications to participate
in the party-list system, and as advanced by the OSG itself the moral objection offered by
the COMELEC was not a limitation imposed by law. To the extent, therefore, that the petitioner has
been precluded, because ofCOMELEC's action, from publicly expressing its views as a political party
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and participating on an equal basis in the political process with other equally-qualified party-list
candidates, we find that there has, indeed, been a transgression of petitioner's fundamental rights.
Non-Discrimination and International
Law
In an age that has seen international law evolve geometrically in scope and promise,
international human rights law, in particular, has grown dynamically in its attempt to bring about a
more just and humane world order. For individuals and groups struggling with inadequate structural
and governmental support, international human rights norms are particularly significant, and should
be effectively enforced in domestic legal systems so that such norms may become actual, rather than
ideal, standards of conduct.
Our Decision today is fully in accord with our international obligations to protect and promote
human rights. In particular, we explicitly recognize the principle of non-discrimination as it relates to
the right to electoral participation, enunciated in the UDHR and the ICCPR. SIaHDA
The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows:
Article 26
All persons are equal before the law and are entitled without any discrimination to the
equal protection of the law. In this respect, the law shall prohibit any discrimination and
guarantee to all persons equal and effective protection against discrimination on any
ground such as race, colour, sex, language, religion, political or other opinion, national
or social origin, property, birth or other status.
In this context, the principle of non-discrimination requires that laws of general application
relating to elections be applied equally to all persons, regardless of sexual orientation. Although
sexual orientation is not specifically enumerated as a status or ratio for discrimination in Article 26 of
the ICCPR, the ICCPR Human Rights Committee has opined that the reference to "sex" in Article 26
should be construed to include "sexual orientation." 48 Additionally, a variety of United Nations
bodies have declared discrimination on the basis of sexual orientation to be prohibited under various
international agreements. 49
The UDHR provides:
Article 21.
(1) Everyone has the right to take part in the government of his country, directly or
through freely chosen representatives.
Likewise, the ICCPR states:
Article 25
Every citizen shall have the right and the opportunity, without any of the distinctions
mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen
representatives;
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(b) To vote and to be elected at genuine periodic elections which shall be by universal
and equal suffrage and shall be held by secret ballot, guaranteeing the free expression
of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.
As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral
participation is elaborated by the Human Rights Committee in its General Comment No. 25
(Participation in Public Affairs and the Right to Vote) as follows:
1. Article 25 of the Covenant recognizes and protects the right of every citizen to take
part in the conduct of public affairs, the right to vote and to be elected and the right to
have access to public service. Whatever form of constitution or government is in force,
the Covenant requires States to adopt such legislative and other measures as may be
necessary to ensure that citizens have an effective opportunity to enjoy the rights it
protects. Article 25 lies at the core of democratic government based on the consent of
the people and in conformity with the principles of the Covenant.
xxx xxx xxx
15. The effective implementation of the right and the opportunity to stand for elective
office ensures that persons entitled to vote have a free choice of candidates. Any
restrictions on the right to stand for election, such as minimum age, must be
justifiable on objective and reasonable criteria. Persons who are otherwise eligible to
stand for election should not be excluded by unreasonable or discriminatory
requirements such as education, residence or descent, or by reason of political
affiliation. No person should suffer discrimination or disadvantage of any kind because
of that person's candidacy. States parties should indicate and explain the legislative
provisions which exclude any group or category of persons from elective office. 50
We stress, however, that although this Court stands willing to assume the responsibility of
giving effect to the Philippines' international law obligations, the blanket invocation of international
law is not the panacea for all social ills. We refer now to the petitioner's invocation of the Yogyakarta
Principles (the Application of International Human Rights Law In Relation to Sexual Orientation and
Gender Identity), 51 which petitioner declares to reflect binding principles of international law.
At this time, we are not prepared to declare that these Yogyakarta Principles contain norms
that are obligatory on the Philippines. There are declarations and obligations outlined in said
Principles which are not reflective of the current state of international law, and do not find basis in
any of the sources of international law enumerated under Article 38 (1) of the Statute of the
International Court of Justice. 52 Petitioner has not undertaken any objective and rigorous analysis of
these alleged principles of international law to ascertain their true status. ATDHSC
We also hasten to add that not everything that society or a certain segment of society
wants or demands is automatically a human right. This is not an arbitrary human intervention that
may be added to or subtracted from at will. It is unfortunate that much of what passes for human
rights today is a much broader context of needs that identifies many social desires as rights in order
to further claims that international law obliges states to sanction these innovations. This has the effect
of diluting real human rights, and is a result of the notion that if "wants" are couched in "rights"
language, then they are no longer controversial.
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Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration
formulated by various international law professors, are at best de lege ferenda and do not
constitute binding obligations on the Philippines. Indeed, so much of contemporary international law
is characterized by the "soft law" nomenclature, i.e., international law is full of principles that
promote international cooperation, harmony, and respect for human rights, most of which amount
to no more than well-meaning desires, without the support of either State practice or opinio juris. 53
As a final note, we cannot help but observe that the social issues presented by this case are
emotionally charged, societal attitudes are in flux, even the psychiatric and religious communities are
divided in opinion. This Court's role is not to impose its own view of acceptable behavior. Rather, it is
to apply theConstitution and laws as best as it can, uninfluenced by public opinion, and confident in
the knowledge that our democracy is resilient enough to withstand vigorous debate.
WHEREFORE,the Petition is hereby GRANTED.The Resolutions of
the Commission on Elections dated November 11, 2009 and December 16, 2009 in SPP No. 09-228
(PL) are hereby SET ASIDE.The Commission on Elections is directed to GRANT petitioner's application
for party-list accreditation.
SO ORDERED.
||| (Ang Ladlad LGBT Party v. Commission on Elections, G.R. No. 190582, [April 8, 2010], 632 PHIL 32-142)
GARCIA VS. MANRIQUE 683 SCRA 491 (2012)
GOVERNOR ENRIQUE T. GARCIA, JR., AURELIO C. ANGELES, JR., EMERLINDA S.

TALENTO, and RODOLFO H. DE MESA, petitioners, vs. LEO RUBEN C.
MANRIQUE, respondent.
DECISION
REYES, J p:
This is a Petition for Indirect Contempt under Rule 71 of the Rules of Court filed against respondent Leo
Ruben C. Manrique (Manrique) for allegedly publishing statements which tend to directly impede,
obstruct or degrade the administration of justice.
Factual Antecedents
The instant case stemmed from an article in Luzon Tribune, a newspaper of general circulation wherein
respondent Manrique is the publisher/editor, which allegedly contained disparaging statements against
the Supreme Court.
The petitioners, namely: Governor Enrique T. Garcia, Jr. (Gov. Garcia), Aurelio C. Angeles, Jr. (Angeles),
Emerlinda S. Talento (Talento) and Rodolfo H. De Mesa (De Mesa) alleged that the subject article
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undermines the people's faith in the Supreme Court due to blunt allusion that they employed bribery in
order to obtain relief from the Court, particularly in obtaining a temporary restraining order (TRO) in G.R.
No. 185132. The pertinent portions of the article which was entitled, "TRO ng Korte Suprema binayaran
ng P20-M?" and published in the January 14 to 20, 2009 issue of the Luzon Tribune, are reproduced as
follows: 1
Bukod sa mga kontrobersiya na bumabalot ngayon sa Korte Suprema dahil sa isyu ng
umano'y pagpapatalsik kay Chief Justice Renato Puno, hindi maalis sa isip ng ilang
Bataeo ang pagtatanong kung totoo nga kayang binayaran ng kampo ni Bataan
Governor Enrique Garcia, Jr. ang isa o ilang Mahestrado ng Korte upang mag-isyu
ng Temporary Restraining Order ang Korte na humarang sa implementasyon ng anim
na buwang suspensyon ng Punong Lalawigan.
Marami umano ang nagdududa kung papaano nakakuha ng TRO si Garcia gayung
malinaw na ang kaso ay kasalukuyang dinidinig noon ng Court of Appeals. Ito umano
ay paglabag sa tinatawag na Forum Shopping.
xxx xxx xxx
Dalawang Division ng Court of Appeals ang tumanggi na dinggin ang petisyon ni Garcia
para sa TRO hanggang sa dininig ito ng isang division. Nagpadala ng liham angCourt of
Appeals sa mga magkakatunggaling partido upang simulang dinggin ang kaso.
Nakapagtataka umano kung bakit hindi ito binigyang galang ng Korte Suprema.aCITEH
Nang inilabas ng Korte ang TRO, malinaw na naihain na ang suspension order kay
Garcia ng DILG kaya't opisyal ng epektibo ang suspensyon. Ano pa ba kaya ng na-TRO
gayung sinisimulan na ni Garcia ang kanyang suspensyon.
May mga nagsasabing binayaran umano ng hanggang sa [P]20-Milyon ang isang
mahestrado ng Korte upang pagbigyan ang kahilingan ni Garcia.
Madiin naman itong itinanggi ni Garcia at nagsabing hindi dapat bahiran ng dumi ang
Korte Suprema at dapat igalang ang desisyon nito.
Gayunpaman, marami ang nagtataka at laging nakakakuha ng TRO sa Korte Suprema
si Garcia lalu na sa mga mahahalagang kasong kanyang hinaharap.
xxx xxx xxx
Ang kompiyansa ni Garcia umano ay kitang-kita sa mga miting kung saan siya ay
nagsasalita na kayang-kaya niyang lusutan ang lahat ng mga kaso niya at maging kung
mayroon pang kasunod na mga kaso na isasampa sa kanya.
Kaya naman hindi maalis ng ilan ang magduda na ang taong gipit sa kaso ay maaaring
magbayad ng milyung-milyon piso upang upuan ng Korte Suprema ang kaso at
manatiling habang buhay ang TRO.
Prior to the publication of the foregoing article, two (2) interrelated petitions were filed before this Court,
docketed as G.R. Nos. 185132 and 181311, entitled Governor Enrique T. Garcia, Jr. v. Court of Appeals, et
al. and Province of Bataan v. Hon. Remigio M. Escalada, respectively.
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In G.R. No. 185132, the Provincial Government of Bataan ordered for the conduct of a tax delinquency
sale of all the properties of Sunrise Paper Products Industries, Inc. (Sunrise) situated in Orani, Bataan.
When no public bidder participated in the delinquency sale, the provincial government acquired all the
properties of Sunrise which consisted of machineries and equipment, including the parcel of land where
the factory stood. Subsequently, Sunrise filed a petition for injunction which was docketed as Civil Case
No. 8164, to annul the auction sale and prevent the provincial government from consolidating its title
over the properties. Two (2) other creditors of Sunrise intervened in the proceedings. The provincial
government entered into a compromise agreement with Sunrise and the intervening creditors and
thereafter filed a motion to dismiss Civil Case No. 8164. However, the trial court refused to dismiss the
case and proceeded to hear the same on the merits. Subsequently, it rendered a Decision dated June 15,
2007, which was thereafter challenged in another petition docketed as G.R. No. 181311.
Meanwhile, former workers of Sunrise, namely: Josechito B. Gonzaga (Gonzaga), Ruel A. Magsino
(Magsino) and Alfredo B. Santos (Santos), filed criminal and administrative charges against petitioners
Gov. Garcia, Angeles, Talento and De Mesa, among others, before the Office of the Ombudsman, docketed
as OMB-L-A-08-0039-A. Subsequently, Deputy Ombudsman Orlando S. Casimiro (Ombudsman Casimiro)
issued an Order dated October 28, 2008, preventively suspending the petitioners.
Unyielding, the petitioners filed a petition for certiorari with the Court of Appeals (CA), assailing the Order
dated October 28, 2008 of Ombudsman Casimiro, with an urgent prayer for the issuance of a TRO and a
writ of preliminary injunction. The CA, however, deferred the resolution of the prayer for the issuance of
TRO and instead issued Resolution dated November 14, 2008, requiring Gonzaga, Magsino and Santos to
file a comment. Dissatisfied with the action of the CA, the petitioners filed a petition for certiorari,
prohibition and mandamus with urgent prayer for the issuance of a TRO and writ of preliminary injunction
with this Court, which was docketed as G.R. No. 185132. On November 19, 2008, this Court issued a TRO
enjoining the public respondents in OMB-L-A-08-0039-A from implementing the Order dated October 28,
2008 of Ombudsman Casimiro, specifically the order for the petitioners' preventive suspension, until
further orders of the Court. The issuance of this TRO is the incident mentioned in Manrique's
article. ACTIcS
In his Comment, 2 Manrique alleged that there was nothing malicious or defamatory in his article since
he only stated the facts or circumstances which attended the issuance of the TRO. He likewise denied that
he made any degrading remarks against the Supreme Court and claimed that the article simply posed
academic questions. If the article ever had a critical undertone, it was directed against the actions of the
petitioners, who are public officers, and never against the Supreme Court. At any rate, he asseverated
that whatever was stated in his article is protected by the constitutional guaranties of free speech and
press.
The subject article falls under the
second type of contemptuous
publication.
The pivotal issue in this case is whether the contents of Manrique's article would constitute indirect
contempt under Section 3 (d), Rule 71 of the Rules of Court which reads: IcDCaT
(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or
degrade the administration of justice[.]
The power to punish for contempt is inherent in all courts as it is indispensable to their right of self-
preservation, to the execution of their powers, and to the maintenance of their authority; and
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consequently to the due administration of justice. 3 It must however be exercised on the preservative not
vindictive principle, and on the corrective not retaliatory idea of punishment. The courts must exercise
the power to punish for contempt for purposes that are impersonal, because that power is intended as a
safeguard not for the judges as persons but for the functions that they exercise. 4
The power to punish for contempt does not, however, render the courts impenetrable to public scrutiny
nor does it place them beyond the scope of legitimate criticism. Every citizen has the right to comment
upon and criticize the actuations of public officers and such right is not diminished by the fact that the
criticism is aimed at judicial authority. 5 It is the cardinal condition of all such criticisms however that it
shall be bona fide, and shall not spill the walls of decency and propriety. A wide chasm exists between fair
criticism, on the one hand; and abuse and slander of courts and the judges thereof, on the other.
Intemperate and unfair criticism is a gross violation of the duty to respect courts 6 and therefore warrants
the wielding of the power to punish for contempt.
In his erudite dissenting opinion in People v. Alarcon, 7 which was impliedly adopted in subsequent cases
dealing with contempt, 8 Justice Manuel V. Moran noted the two kinds of publication which are
punishable with contempt, to wit:
Contempt, by reason of publications relating to court and to court proceedings, are of
two kinds. A publication which tends to impede, obstruct, embarrass or influence the
courts in administering justice in a pending suit or proceeding, constitutes criminal
contempt which is summarily punishable by courts. This is the rule announced in the
cases relied upon by the majority. A publication which tends to degrade the courts and
to destroy public confidence in them or that which tends to bring them in any way into
disrepute, constitutes likewise criminal contempt, and is equally punishable by courts.
In the language of the majority, what is sought, in the first kind of contempt, to be
shielded against the influence of newspaper comments, is the all-important duty of the
courts to administer justice in the decision of a pending case. In the second kind of
contempt, the punitive hand of justice is extended to vindicate the courts from any act
or conduct calculated to bring them into disfavor or to destroy public confidence in
them. In the first, there is no contempt where there is no action pending, as there is no
decision which might in any way be influenced by the newspaper publication. In the
second, the contempt exists, with or without a pending case, as what is sought to be
protected is the court itself and its dignity. . . . Courts would lose their utility if public
confidence in them is destroyed. 9 (Italics ours) CTSAaH
Succinctly, there are two kinds of publications relating to court and to court proceedings which can
warrant the exercise of the power to punish for contempt: (1) that which tends to impede, obstruct,
embarrass or influence the courts in administering justice in a pending suit or proceeding; and (2) that
which tends to degrade the courts and to destroy public confidence in them or that which tends to bring
them in any way into disrepute.
We find the subject article illustrative of the second kind of contemptuous publication for insinuating that
this Court's issuance of TRO in G.R. No. 185132 was founded on an illegal cause. The glaring innuendos of
illegality in the article is denigrating to the dignity of this Court and the ideals of fairness and justice that
it represents. It is demonstrative of disrespect not only for this Court, but also for the judicial system as a
whole, tends to promote distrust and undermines public confidence in the judiciary by creating the
impression that the Court cannot be trusted to resolve cases impartially. 10
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This Court has always exercised utmost restraint and tolerance against criticisms on its decisions and
issuances, bearing in mind that official actions are subject to public opinion as a means of ensuring
accountability. Manrique's article, however, has transgressed the ambit of fair criticism and depicted a
legitimate action of this Court as a reciprocated accommodation of the petitioners' interest. Contrary to
Manrique's claim of objectivity, his article contained nothing but baseless suspicion and aspersion on the
integrity of this Court, calculated to incite doubt on the mind of its readers on the legality of the issuance.
It did not simply dwell on the propriety of the issuance on the basis of some sound legal criteria nor did it
simply blame this Court of an irregularity in the discharge of duties but of committing the crime of bribery.
The article insinuated that processes from this Court may be obtained for reasons other than that their
issuance is necessary to the administration of justice. Judging from the title alone, "TRO ng Korte Suprema
binayaran ng P20M?" the article does not aim for an academic discussion of the propriety of the issuance
of the TRO but seeks to sow mistrust in the dispositions of this Court. To suggest that the processes of this
Court can be obtained through underhand means or that their issuance is subject to negotiation and that
members of this Court are easily swayed by money is a serious affront to the integrity of the highest court
of the land. Such imputation smacks of utter disrespect to this Court and such temerity is deserving of
contempt.
Manrique claims that he was only being critical of the actions of the petitioners as public officers and that
no disrespect was meant to the Court. While he claims good faith, the contents of his article bespeak
otherwise. A person's intent, however good it maybe, cannot prevail over the plain import of his speech
or writing. It is gathered from what is apparent, not on supposed or veiled objectives.
The truth is we consider public scrutiny of our decisions and official acts as a healthy component of
democracy. However, such must not transcend the wall of tolerable criticism and its end must always be
to uphold the dignity and integrity of the justice system and not to destroy public confidence in them.
In People v. Godoy, 11 we stressed:
Generally, criticism of a court's rulings or decisions is not improper, and may not be
restricted after a case has been finally disposed of and has ceased to be pending. So
long as critics confine their criticisms to facts and base them on the decisions of the
court, they commit no contempt no matter how severe the criticism may be; but when
they pass beyond that line and charge that judicial conduct was influenced by improper,
corrupt, or selfish motives, or that such conduct was affected by political prejudice or
interest, the tendency is to create distrust and destroy the confidence of the people in
their courts. 12 cEaTHD
There is thus a need to distinguish between adverse criticism of the court's decision after the case has
ended and scandalizing the court itself. The latter is not criticism; it is personal and scurrilous abuse of a
judge as such, in which case it shall be dealt with as a case for contempt. 13
A reading of the subject article shows that Manrique was not simply passing judgment on an official act
of the Court. He was actually intimating that the petitioners were able to obtain a TRO through illicit
means, with the complicity of this Court. As he hurls accusation of corruption against petitioners, he also
unfairly smeared the reputation of this Court by stirring the idea that one or some members of this Court
yield to said illegal act. By no means can such an imputation be justified by mere curiosity or suspicion.
That he was only mulling on the thought that such an illegal act transpired does not make his insinuation
any less contemptuous. Manrique's article no longer partakes of an adverse criticism of an official act but
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an indecent attempt to malign the petitioners which ultimately brought equal harm to the reputation of
this Court.
It bears stressing that the Supreme Court of the Philippines is, under the Constitution, the last bulwark to
which the Filipino people may repair to obtain relief for their grievances or protection of their rights when
these are trampled upon, and if the people lose their confidence in the honesty and integrity of the
members of this Court and believe that they cannot expect justice therefrom, they might be driven to take
the law into their own hands, and disorder and perhaps chaos might be the result. 14Thus, the inflexible
demand to adhere to the highest tenets of judicial conduct is imposed upon all members of the judiciary.
They are required to keep their private as well as official conduct at all times free from all appearances of
impropriety and be beyond reproach. 15
Malicious publications cannot seek
the protection of the constitutional
guaranties of free speech and press.
Manrique tries to invoke the protection of the constitutional guaranties of free speech and press, albeit
unpersuasively, to extricate himself from liability. However, said constitutional protection is not a shield
against scurrilous publications, which are heaved against the courts with no apparent reason but to trigger
doubt on their integrity based on some imagined possibilities. Contrary to nourishing democracy and
strengthening judicial independence, which are the expected products of the guaranties of free speech
and press, the irresponsible exercise of these rights wounds democracy and leads to division. aEHTSc
In Alarcon, we emphasized:
It is true that the Constitution guarantees the freedom of speech and of the press. But
license or abuse of that freedom should not be confused with freedom in its true sense.
Well-ordered liberty demands no less unrelaxing vigilance against abuse of the sacred
guaranties of the Constitution than the fullest protection of their legitimate exercise.
As important as is the maintenance of a judiciary unhampered in its administration of
justice and secure in its continuous enjoyment of public confidence. . . . . 16
Freedom of speech is not absolute, and must occasionally be balanced with the requirements of equally
important public interests, such as the maintenance of the integrity of the courts and orderly functioning
of the administration of justice. 17 For the protection and maintenance of freedom of expression itself
can be secured only within the context of a functioning and orderly system of dispensing justice, within
the context, of viable independent institutions for delivery of justice which are accepted by the general
community. 18
Certainly, the making of contemptuous statements directed against the Court is not an exercise of free
speech; rather, it is an abuse of such right. Unwarranted attacks on the dignity of the courts cannot be
disguised as free speech, for the exercise of said right cannot be used to impair the independence and
efficiency of courts or public respect therefore and confidence therein. 19 Therefore, Manrique's article,
lacking in social value and aimed solely at besmirching the reputation of the Court, is undeserving of the
protection of the guaranties of free speech and press.
The critical role of the Supreme Court as the court of last resort renders it imperative that it maintains the
ideals of neutrality, integrity and independence, the characteristics in which the people's trust and
confidence are built, alive and unscathed. Thus, justices and judges alike are constantly reminded to live
up to the stringent standards of the profession or else suffer the consequences. In return, the people are
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expected to respect and abide by the rulings of this Court and must not be instrumental to its
disrepute. HCTAEc
WHEREFORE, in view of the foregoing disquisitions, respondent Leo Ruben C. Manrique is hereby
adjudged GUILTY of INDIRECT CONTEMPT and is ordered to pay a fine of Twenty Thousand Pesos
(P20,000.00).
SO ORDERED.
||| (Garcia, Jr. v. Manrique, G.R. No. 186592, [October 10, 2012], 697 PHIL 157-170)
C. Content-based Restrictions
1. Some Tests of Validity of content-based restrictions
Dangerous tendency: When the legislative body has determined

generally that utterances of a certain kind involve such danger of
substantive evil that t hey may be punished, the question whether
any specific utterance coming within the prohibited class is
likely, in and of itself, to bring about the substantive evil is not open
to consideration. In such cases the general provision of the
statute may be constitutionally applied to the specific utterance if its
natural and probable effect was to bring about the substantive evil
that the legislative body might prohibit. (Gitlow vs. New York, 268
U.S. 652 [1952])
Clear-and-present danger: The question in every case is whether

the words are used in such circumstances and are of such a nature
as to create a clear and present danger that they will bring about
the substantive evil that the state has a right to prevent. (Schenck
vs. United States, 249 U.S. 47 [1919])
Balancing of interest: The court must undertake the delicate and

difficult task of weighing the circumstances and appraising the
substantiality of the reasons advanced in support of the regulation
of the free enjoyment of rights. (American Communication
Assn vs. Doubs, 339 U.S. 383, cited in Gonzales vs. COMELEC,
27 SCRA 835 (1969)
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Direct incitement: The guarantees of free speech and free press

do not permit a state to forbid or prescribe the advocacy of the use
of force or of law violation except where such advocacy is directed
to inciting or producing imminent lawless action and is likely to incite
or produce such action. (Brandenburg vs. Ohio, 395 U.S. 444
(1969); cited in Salonga vs. Cruz Pano, 134 SCRA 438 [1985])
Grave-but-improbable danger: Whether the gravity of the evil,

discounted by its improbability, justifies such an invasion of speech
as is necessary to avoid the danger. (Dennis vs. United States, 341
U.S. 494 [1951])
2. Applications of tests in various contexts
a. Freedom of expression and national security
b. Freedom of expression and criticism of official conduct: The Test of Actual

Malice Read Rev. Penal Code, Arts., 353-354 and 361-362
Compare Act No. 2928, March 26, 1920 Com. Act No. 382, Sept. 6, 1938
CASES - SOLIVEN VS. MAKASIAR; BELTRAN VS. MAKASIAR,

167 SCRA 393 (1988)
MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOILI, and GODOFREDO

L. MANZANAS, petitioners, vs. THE HON. RAMON P. MAKASIAR, Presiding Judge of the
Regional Trial Court of Manila, Branch 35, UNDERSECRETARY SILVESTRE BELLO III, of
the Department of Justice, LUIS C. VICTOR, THE CITY FISCAL OF MANILA AND
PRESIDENT CORAZON C. AQUINO, respondents.
[G.R. No. 82827. November 14, 1988.]
LUIS D. BELTRAN, petitioner, vs. THE HON. RAMON P. MAKASIAR, Presiding Judge of
Branch 35 of the Regional Trial Court, at Manila, THE HON. LUIS VICTOR CITY FISCAL
OF MANILA, PEOPLE OF THE PHILIPPINES, SUPERINTENDENT OF THE WESTERN POLICE
DISTRICT, AND THE MEMBERS OF THE PROCESS SERVING UNIT AT THE REGIONAL
TRIAL COURT OF MANILA, respondents.
[G.R. No. 83979. November 14, 1988.]
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LUIS D. BELTRAN, petitioner, vs. EXECUTIVE SECRETARY CATALINO MACARAIG,

SECRETARY OF JUSTICE SEDFREY ORDOEZ, UNDERSECRETARY OF JUSTICE SILVESTRE
BELLO III, THE FISCAL OF MANILA JESUS F. GUERRERO, AND JUDGE RAMON P.
MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at
Manila, respondents.
Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No. 82585.
Perfecto V . Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for petitioner in G.R. No. 82827 and
83979.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS OF LAW; RESPONDENT IN A CRIMINAL CASE
NEED NOT FILE HIS COUNTER-AFFIDAVITS BEFORE PRELIMINARY INVESTIGATION IS DEEMED COMPLETED.
Due process of law does not require that the respondent in a criminal case actually file his counter-
affidavits before the preliminary investigation is deemed completed. All that is required is that the
respondent be given the opportunity to submit counter-affidavits if he is so minded.
2. ID.; ID.; RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES, PAPERS AND EFFECTS;
ISSUANCE OF WARRANT OF ARREST; PROBABLE CAUSE; THE JUDGE HAS EXCLUSIVE AND PERSONAL
RESPONSIBILITY TO DETERMINE EXISTENCE OF; THE PRESIDENT. This case is not a simple prosecution
for libel. We have as complainant a powerful and popular President who heads the investigation and
prosecution service and appoints members of appellate courts but who feels so terribly maligned that she
has taken the unorthodox step of going to court inspite of the invocations of freedom of the press which
would inevitably follow.
3. ID.; ID.; ID.; ID.; HARASSMENT INHERENT IN ANY CRIMINAL PROSECUTION; SUPREME COURT SHOULD
DRAW THE DEMARCATION LINE WHERE HARASSMENT GOES BEYOND USUAL DIFFICULTIES
ENCOUNTERED BY ANY ACCUSED. There is always bound to be harassment inherent in any criminal
prosecution. Where the harassment goes beyond the usual difficulties encountered by any accused and
results in an unwillingness of media to freely criticize government or to question government handling of
sensitive issues and public affairs, this Court and not a lower tribunal should draw the demarcation line.
4. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF SPEECH; WHILE DEFAMATION IS NOT
AUTHORIZED, CRITICISM IS TO BE EXPECTED AND SHOULD BE BORNE FOR THE COMMON GOOD. As
early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated that "(c)omplete liberty
to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its
probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust
accusation; the wound can be assuaged with the balm of a clear conscience." The Court pointed out that
while defamation is not authorized, criticism is to be expected and should be borne for the common good.
5. REMEDIAL LAW; CRIMINAL PROCEDURE; PROSECUTION OF OFFENSES; LIBEL; RULES THEREON SHOULD
BE EXAMINED FROM VARIOUS PERSPECTIVES IF DIRECTED AT A HIGH GOVERNMENT OFFICIAL; THE
SUPREME COURT SHOULD DRAW A FINE LINE INSTEAD OF LEAVING IT TO A LOWER TRIBUNAL. In fact,
the Court observed that high official position, instead of affording immunity from slanderous and libelous
charges would actually invite attacks by those who desire to create sensation. It would seem that what
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would ordinarily be slander if directed at the typical person should be examined from various perspectives
if directed at a high government official. Again, the Supreme Court should draw this fine line instead of
leaving it to lower tribunals.
6. ID.; ID.; FREEDOM OF EXPRESSION; SAFEGUARDS IN THE NAME THEREOF SHOULD BE FAITHFULLY
APPLIED IN TRIAL OF LIBEL CASE. In the trial of the libel case against the petitioners, the safeguards in
the name of freedom of expression should be faithfully applied.
GUTIERREZ, JR., J., concurring:
1. REMEDIAL LAW; CRIMINAL PROCEDURE; MOTION TO QUASH; COURT SHOULD NOT HESITATE TO
QUASH A CRIMINAL PROSECUTION IN INTEREST OF MORE ENLIGHTENED AND SUBSTANTIAL JUSTICE.
Consistent with our decision in Salonga v. Cruz Pao (134 SCRA 438 [1985]), the Court should not hesitate
to quash a criminal prosecution in the interest of more enlightened and substantial justice where it is not
alone the criminal liability of an accused in a seemingly minor libel case which is involved but broader
considerations of governmental power versus a preferred freedom.
2. ID.; ID.; PROSECUTION OF OFFENSES; LIBEL; CASE NOT A SIMPLE PROSECUTION THEREFOR WHERE
COMPLAINANT IS THE PRESIDENT; JUDGE NOT REQUIRED TO PERSONALLY EXAMINE COMPLAINANT AND
HIS WITNESSES. What the Constitution underscores is the exclusive and personal responsibility of the
issuing judge to satisfy himself the existence of probable cause. In satisfying himself of the existence of
probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the
complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally
evaluate the report and the supporting documents submitted by the fiscal regarding the existence of
probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he
findsno probable cause, he may disregard the fiscal's report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.
3. ID.; EXECUTIVE DEPARTMENT; PRESIDENT; IMMUNITY FROM SUIT; RATIONALE. The rationale for the
grant to the President of the privilege of immunity from suit is to assure the exercise of Presidential duties
and functions free from any hindrance or distraction, considering that being the Chief Executive of the
Government is a job that, aside from requiring all of the office-holder's time, also demands undivided
attention.
4. ID.; ID.; ID.; ID.; PRIVILEGE PERTAINS TO PRESIDENT BY VIRTUE OF THE OFFICE AND MAY BE INVOKED
ONLY BY HOLDER OF OFFICE. But this privilege of immunity from suit, pertains to the President by virtue
of the office and may be invoked only by the holder of the office; not by any other person in the President's
behalf. Thus, an accused in a criminal case in which the President is complainant cannot raise the
presidential privilege as a defense to prevent the case from proceeding against such accused.
5. ID.; ID.; ID.; ID.; EXERCISE OF PRIVILEGE IS SOLELY THE PRESIDENT'S PREROGATIVE. Moreover, there
is nothing in our laws that would prevent the President from waiving the privilege. Thus, if so minded the
President may shed the protection afforded by the privilege and submit to the court's jurisdiction. The
choice of whether to exercise the privilege or to waive it is solely the President's prerogative. It is a
decision that cannot be assumed and imposed by any other person.
RESOLUTION
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PER CURIAM p:
In these consolidated cases, three principal issues were raised: (1) whether or not petitioners were denied
due process when informations for libel were filed against them although the finding of the existence of
a prima facie case was still under review by the Secretary of Justice and, subsequently, by the President;
(2) whether or not the constitutional rights of Beltran were violated when respondent RTC judge issued a
warrant for his arrest without personally examining the complainant and the witnesses, if any, to
determine probable cause; and (3) whether or not the President of the Philippines, under
the Constitution, may initiate criminal proceedings against the petitioners through the filing of a
complaint-affidavit.
Subsequent events have rendered the first issue moot and academic. On March 30, 1988, the Secretary
of Justice denied petitioners' motion for reconsideration and upheld the resolution of the Undersecretary
of Justice sustaining the City Fiscal's finding of a prima facie case against petitioners. A second motion for
reconsideration filed by petitioner Beltran was denied by the Secretary of Justice on April 7, 1988. On
appeal, the President, through the Executive Secretary, affirmed the resolution of the Secretary of Justice
on May 2, 1988. The motion for reconsideration was denied by the Executive Secretary on May 16, 1988.
With these developments, petitioner's contention that they have been denied the administrative
remedies available under the law has lost factual support.
It may also be added that with respect to petitioner Beltran, the allegation of denial of due process of law
in the preliminary investigation is negated by the fact that instead of submitting his counter-affidavits, he
filed a "Motion to Declare Proceeding Closed", in effect waiving his right to refute the complaint by filing
counter-affidavits. Due process of law does not require that the respondent in a criminal case actually file
his counter-affidavits before the preliminary investigation completed. All that is required is that the
respondent be given the opportunity to submit counter-affidavits if he is so minded.
The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional provision
on the issuance of warrants of arrest. The pertinent provision reads:
Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or things
to be seized.
The addition of the word "personally" after the word "determined" and the deletion of the grant of
authority by the 1973 Constitution to issue warrants to "other responsible officers as may be authorized
by law", has apparently convinced petitioner Beltran that the Constitution now requires the judge to
personally examine the complainant and his witnesses determination of probable cause for the issuance
of warrants of arrest. This is not an accurate interpretation.
What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to
satisfy himself the existence of probable cause. In satisfying himself of the existence of probable cause for
the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and
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his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report
and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on
the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he
may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid
him in arriving at a conclusion as to the existence of probable cause.
Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary
examination and investigation of criminal complaints instead of concentrating on hearing and deciding
cases filed before their courts.
On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12, setting down guidelines for
the issuance of warrants of arrest. The procedure therein provided is reiterated and clarified in this
resolution.
It has not been shown that respondent judge has deviated from the prescribed procedure. Thus, with
regard to the issuance of the warrants of arrest, a finding of grave abuse of discretion amounting to lack
or excess of jurisdiction cannot be sustained.
Anent the third issue, petitioner Beltran argues that "the reasons which necessitate presidential immunity
from suit impose a correlative disability to file suit". He contends that if criminal proceedings ensue by
virtue of the President's filing of her complaint-affidavit, she may subsequently have to be a witness for
the prosecution, bringing her under the trial court's jurisdiction. This, continues Beltran, would in an
indirect way defeat her privilege of immunity from suit, as by testifying on the witness stand, she would
be exposing herself to possible contempt of court or perjury.
The rationale for the grant to the President of the privilege of immunity from suit is to assure the exercise
of Presidential duties and functions free from any hindrance or distraction, considering that being the
Chief Executive of the Government is a job that, aside from requiring all of the office-holder's time, also
demands undivided attention.
But this privilege of immunity from suit, pertains to the President by virtue of the office and may be
invoked only by the holder of the office; not by any other person in the President's behalf Thus, an accused
in a criminal case in which the President is complainant cannot raise the presidential privilege as a defense
to prevent the case from proceeding against such accused.
Moreover, there is nothing in our laws that would prevent the President from waiving the privilege. Thus,
if so minded the President may shed the protection afforded by the privilege and submit to the court's
jurisdiction. The choice of whether to exercise the privilege or to waive it is solely the President's
prerogative. It is a decision that cannot be assumed and imposed by any other person.
As regards the contention of petitioner Beltran that he could not be held liable for libel because of the
privileged character or the publication, the Court reiterates that it is not a trier of facts and that such a
defense is best left to the trial court to appreciate after receiving the evidence of the parties.
As to petitioner Beltran's claim that to allow the libel case to proceed would produce a "chilling effect" on
press freedom, the Court finds no basis at this stage to rule on the point.
The petitions fail to establish that public respondents, through their separate acts, gravely abused their
discretion as to amount to lack of jurisdiction. Hence, the writs of certiorari and prohibition prayed for
cannot issue.
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WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of jurisdiction on the part
of the public respondents, the Court Resolved to DISMISS the petitions in G. R. Nos. 82585, 82827 and
83979. The Order to maintain status quo contained in the Resolution of the Court en banc dated April 7,
1988 and reiterated in the Resolution dated April 26, 1988 is LIFTED.
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento,
Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur.
||| (Soliven v. Makasiar, G.R. No. 82585, 82827, 83979 (Resolution), [November 14, 1988], 249 PHIL 394-
406)
BORJAL VS. CA 301 SCRA 1 (1999)
ARTURO BORJAL a.k.a. ART BORJAL and MAXIMO SOLIVEN, petitioners, vs. COURT OF
APPEALS and FRANCISCO WENCESLAO,respondents.
Angara Abello Concepcion Regala & Cruz for petitioners.

Cenon C. Sorreta for private respondent.
SYNOPSIS
The case under consideration is a petition for review filed by petitioners Arturo Borjal and Maximo Soliven
seeking the reversal of the Court of Appeals decision in "Francisco Wenceslao vs. Arturo Borjal and
Maximo Soliven," CA-GR No. 40496, holding on March 25, 1996 that petitioners are solidarily liable for
damages for writing and publishing certain articles claimed to be derogatory and offensive to private
respondent Francisco Wenceslao. SEcADa
The petition was impressed with merit. The Court ruled that in order to maintain a libel suit, it is essential
that the victim be identifiable although it is not necessary that he be named. It is also not sufficient that
the offended party recognized himself as the person attacked or defamed, but is must be shown that at
least a third person could identify him as the object of the libelous publication. Regrettably, these
requisites have not been complied with in the case at bar. Moreover, the Court said that even assuming
that the contents of these articles are false, mere error, inaccuracy or even falsity alone does not prove
actual malice. Errors or misstatement are inevitable in any scheme of truly free expression and debate.
Consistent with good faith and reasonable care, the press should not be held to account, to a point of
suppression, for honest mistakes or imperfections in the choice of language. There must be some room
for misstatement of fact as well as for misjudgment. Only by giving them much leeway and tolerance can
they courageously and effectively function as critical agencies in our democracy. Accordingly, the petition
is granted and the decision of the Court of Appeals and its resolution are reversed and set aside. CcEHaI
SYLLABUS
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1. CRIMINAL LAW; LIBEL; TO MAINTAIN A LIBEL SUIT, IT IS ESSENTIAL THAT THE VICTIM BE IDENTIFIABLE
ALTHOUGH IT IS NOT NECESSARY THAT HE BE NAMED. In order to maintain a libel suit, it is essential
that the victim be identifiable although it is not necessary that he be named. It is also not sufficient that
the offended party recognized himself as the person attacked or defamed, but it must be shown that at
least a third person could identify him as the object of the libelous publication. Regrettably, these
requisites have not been complied within the case at bar.
2. ID.; ID.; PUBLICATIONS WHICH ARE PRIVILEGED FOR REASONS OF PUBLIC POLICY ARE PROTECTED BY
THE CONSTITUTIONAL GUARANTY OF FREEDOM OF SPEECH. Indisputably, petitioner Borjal's
questioned writings are not within the exceptions of Art. 354 of the Revised Penal Code for, as correctly
observed by the appellate court, they are neither private communications nor fair and true report without
any comments or remarks. However this does not necessarily mean that they are not privileged. To be
sure, the enumeration under Art. 354 is not an exclusive list of qualifiedly privileged communications since
fair commentaries on matters of public interest are likewise privileged. The rule on privileged
communications had its genesis not in the nation's penal code but in the Bill of Rights of the
Constitutionguaranteeing freedom of speech and of the press. As early as 1918, in United States vs.
Caete (38 Phil. 253), this Court ruled that publications which are privileged for reasons of public policy
are protected by the constitutional guaranty of freedom of speech. This constitutional right cannot be
abolished by the mere failure of the legislature to give it express recognition in the statute punishing
libels. IDTHcA
3. ID.; ID.; PRIVILEGED COMMUNICATION; IMPLICIT IN FREEDOM OF SPEECH. The concept of privileged
communications is implicit in the freedom of the press. As held in Elizalde v. Gutierrez (76 SCRA 448) and
reiterated in Santos v. Court of Appeals (203 SCRA 110) To be more specific, no culpability could be
imputed to petitioners for the alleged offending publication without doing violence to the concept of
privileged communications implicit in the freedom of the press. As was so well put by Justice Malcolm
in Bustos: 'Public Policy, the welfare of society, and the orderly administration of government have
demanded protection of public opinion. The inevitable and incontestable result has been the
development and adoption of the doctrine of privilege.' The doctrine formulated in these two (2) cases
resonates the rule that privileged communications must, sui generis, be protective of public opinion. This
closely adheres to the democratic theory of free speech as essential to collective self-determination and
eschews the strictly libertarian view that it is protective solely of self-expression which, in the words of
Yale Sterling Professor Owen Fiss, makes its appeal to the individualistic ethos that so dominates our
popular and political culture. It is therefore clear that the restrictive interpretation vested by the Court of
Appeals on the penal provision exempting from liability only private communications and fair and true
report without comments or remarks defeats, rather than promotes, the objective of the rule on
privileged communications, sadly contriving as it does, to suppress the healthy efflorescence of public
debate and opinion as shining linchpins of truly democratic societies.
4. ID.; ID.; PUBLIC FIGURE; DEFINED. We deem private respondent a public figure within the purview
of the New York Times ruling. At any rate, we have also defined "public figure" in Ayers Production Pty.,
Ltd. v. Capulong (160 SCRA 861) as . . . a person who, by his accomplishments, fame, mode of living, or
by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs and
his character, has become a public personage. He is, in other words, a celebrity. Obviously, to be included
in his category are those who have achieved some degree of reputation by appearing before the public,
as in the case of an actor, a professional baseball player, a pugilist, or any other entertainer. The list is,
however, broader than this. It includes public officers, famous inventors and explorers, war heroes and
even ordinary soldiers, infant prodigy, and no less a personage than the Great Exalted Ruler of the lodge.
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It includes, in short, anyone who has arrived at a position where the public attention is focused upon him
as a person.
5. ID; ID; FAIR COMMENTARIES ON MATTERS OF PUBLIC INTEREST ARE PRIVILEGED AND CONSTITUTE
VALID DEFENSE IN AN ACTION FOR LIBEL OR SLANDER. To reiterate, fair commentaries on matters of
public interest are privileged and constitute a valid defense in an action for libel or slander. The doctrine
of fair comment means that while in general every discreditable imputation publicly made is deemed
false, because every man is presumed innocent until his guilt is judicially proved, and every false
imputation is deemed, malicious, nevertheless, when the discreditable imputation is directed against a
public person in his public capacity, it is not necessarily actionable. In order that such discreditable
imputation to a public official may be actionable, it must either be a false allegation of fact or a comment
based on a false supposition. If the comment is an expression of opinion, based on established facts, then
it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from
the facts. cCSDTI
6. ID.; ID.; MALICE; DEFINED; ABSENT IN CASE AT BAR. Malice connotes ill will or spite and speaks not
in response to duty but merely to injure the reputation of the person defamed, and implies an intention
to do ulterior and unjustifiable harm. Malice is bad faith or bad motive. It is the essence of the crime of
libel. In the milieu obtaining, can it be reasonably inferred that in writing and publishing the articles in
question petitioner Borjal acted with malice? Primarily, private respondent failed to substantiate by
preponderant evidence that petitioner was animated by a desire to inflict unjustifiable harm on his
reputation, or that the articles were written and published without good motives or justifiable ends. On
the other hand, we find petitioner Borjal to have acted in good faith. Moved by a sense of civic duty and
prodded by his responsibility as a newspaperman, he proceeded to expose and denounce what he
perceived to be a public deception. Surely, we cannot begrudge him for that. Every citizen has the right
to enjoy a good name and reputation, but we do not consider that petitioner Borjal has violated that right
in this case nor abused his press freedom. Furthermore, to be considered malicious, the libelous
statements must be shown to have been written or published with the knowledge that they are false or
in reckless disregard or whether they are false or not. "Reckless disregard of what is false or not" means
that the defendant entertains serious doubt as to the truth of the publication, or that he possesses a high
degree of awareness of their probable falsity.
7. ID.; ID.; PUBLIC OFFICIAL MUST NOT BE TOO THIN-SKINNED WITH REFERENCE TO COMMENTS UPON
HIS OFFICIAL ACTS. Even assuming that the contents of the articles are false, mere error, inaccuracy or
even falsity alone does not prove actual malice. Errors or misstatements are inevitable in any scheme of
truly free expression and debate. Consistent with good faith and reasonable care, the press should not be
held to account, to a point of suppression, for honest mistakes or imperfections in the choice of language.
There must be some room for misstatement of fact as well as for misjudgment. Only by giving them much
leeway and tolerance can they courageously and effectively function as critical agencies in our democracy.
In Bulletin Publishing Corp. v. Noel (167 SCRA 255) we held A newspaper especially one national in reach
and coverage, should be free to report on events and developments in which the public has a legitimate
interest with minimum fear of being hauled to court by one group or another on criminal or civil charges
for libel, so long as the newspaper respects and keeps within the standards of morality and civility
prevailing within the general community. To avoid the self-censorship that would necessarily accompany
strict liability for erroneous statements, rules governing liability for injury to reputation are required to
allow an adequate margin of error by protecting some inaccuracies. It is for the same reason that the New
York Times doctrine requires that liability for defamation of a public official or public figure may not be
imposed in the absence of proof of "actual malice" on the part of the person making the libelous
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statement. At any rate, it may be salutary for private respondent to ponder upon the advice of Mr. Justice
Malcolm expressed in U.S. vs. Bustos (37 Phil. 731 [1918]), that "the interest of society and the
maintenance of good government demand a full discussion of public affairs. Complete liberty to comment
on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves
the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the
wound may be assuaged by the balm of a clear conscience. A public official must not be too thin-skinned
with reference to comments upon his official acts." EASCDH
DECISION
"The question is not so much as who was aimed at as who was hit." (Pound, J.,
in Corrigan v. Bobbs-Merill Co., 228 N .Y . 58 [1920]).
BELLOSILLO, J p:
PERPETUALLY HAGRIDDEN as the public is about losing one of the most basic yet oft hotly
contested freedoms of man, the issue of the right of free expression bestirs and presents itself time
and again, in cyclic occurrence, to inveigle, nay, challenge the courts to re-survey its ever shifting
terrain, explore and furrow its heretofore uncharted moors and valleys and finally redefine the metes
and bounds of its controversial domain. This, prominently, is one such case. LLphil
Perhaps, never in jurisprudential history has any freedom of man undergone radical doctrinal
metamorphoses than his right to freely and openly express his views. Blackstone's pontifical comment
that "where blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels are
punished by English law . . . the liberty of the press, properly understood, is by no means infringed or
violated," found kindred expression in the landmark opinion of England's Star Chamber in the Libelis
Famosis case in 1603. 1 That case established two major propositions in the prosecution of
defamatory remarks: first, that libel against a public person is a greater offense than one directed
against an ordinary man, and second, that it is immaterial that the libel be true.
Until republicanism caught fire in early America, the view from the top on libel was no less
dismal. Even the venerable Justice Holmes appeared to waffle as he swayed from the concept of
criminal libel liability under the clear and present danger rule, to the other end of the spectrum in
defense of the constitutionally protected status of unpopular opinion in free society.
Viewed in modern times and the current revolution in information and communication
technology, libel principles formulated at one time or another have waxed and waned through the
years in the constant ebb and flow of judicial review. At the very least, these principles have lost much
of their flavor, drowned and swamped as they have been by the ceaseless cacophony and din of
thought and discourse emanating from just about every source and direction, aided no less by an
increasingly powerful and irrepressible mass media. Public discourse, laments Knight, has been
devalued by its utter commonality; and we agree, for its logical effect is to benumb thought and
sensibility on what may be considered as criminal illegitimate encroachments on the right of persons
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to enjoy a good, honorable and reputable name. This may explain the imperceptible demise of
criminal prosecutions for libel and the trend to rely instead on indemnity suits to repair any damage
on one's reputation.
In this petition for review, we are asked to reverse the Court of Appeals in "Francisco
Wenceslao v. Arturo Borjal and Maximo Soliven," CA-G.R. No. 40496, holding on 25 March 1996 that
petitioners Arturo Borjal and Maximo Soliven are solidarily liable for damages for writing and
publishing certain articles claimed to be derogatory and offensive to private respondent Francisco
Wenceslao.
Petitioners Arturo Borjal and Maximo Soliven are among the incorporators of Philippines
Today, Inc. (PTI), now PhilSTAR Daily, Inc., owner of The Philippine Star, a daily newspaper. At the time
the complaint was filed, petitioner Borjal was its President while Soliven was (and still is) Publisher
and Chairman of its Editorial Board. Among the regular writers of The Philippine Star is Borjal who
runs the column Jaywalker.
Private respondent Francisco Wenceslao, on the other hand, is a civil engineer, businessman,
business consultant and journalist by profession. In 1988 he served as a technical adviser of
Congressman Fabian Sison, then Chairman of the House of Representatives Sub-Committee on
Industrial Policy.
During the congressional hearings on the transport crisis sometime in September 1988
undertaken by the House Sub-Committee on Industrial Policy, those who attended agreed to organize
the First National Conference on Land Transportation (FNCLT) to be participated in by the private
sector in the transport industry and government agencies concerned in order to find ways and means
to solve the transportation crisis. More importantly, the objective of the FNCLT was to draft an
omnibus bill that would embody a long-term land transportation policy for presentation to Congress.
The conference which, according to private respondent, was estimated to cost around P1,815,000.00
would be funded through solicitations from various sponsors such as government agencies, private
organizations, transport firms, and individual delegates or participants. 2
On 28 February 1989, at the organizational meeting of the FNCLT, private respondent
Francisco Wenceslao was elected Executive Director. As such, he wrote numerous solicitation letters
to the business community for the support of the conference.
Between May and July 1989 a series of articles written by petitioner Borjal was published on
different dates in his column Jaywalker. The articles dealt with the alleged anomalous activities of an
"organizer of a conference" without naming or identifying private respondent. Neither did it refer to
the FNCLT as the conference therein mentioned. Quoted hereunder are excerpts from the articles of
petitioner together with the dates they were published 3
31 May 1989
Another self-proclaimed 'hero' of the EDSA Revolution goes around organizing 'seminars
and conferences' for a huge fee. This is a simple ploy coated in jazzy letterheads and
slick prose. The 'hero' has the gall to solicit fees from anybody with bucks to spare.
Recently, in his usual straightforward style, Transportation Secretary Rainerio 'Ray'
Reyes, asked that his name be stricken off from the letterheads the 'hero' has been using
to implement one of his pet 'seminars.' Reyes said: 'I would like to reiterate my request
that you delete my name.' Note that Ray Reyes is an honest man who would confront
anybody eyeball to eyeball without blinking.
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9 June 1989
Another questionable portion of the so-called conference is its unauthorized use of the
names of President Aquino and Secretary Ray Reyes. The conference program being
circulated claims that President Aquino and Reyes will be main speakers in the
conference. Yet, the word is that Cory and Reyes have not accepted the invitation to
appear in this confab. Ray Reyes even says that the conference should be unmasked as
a moneymaking gimmick.
19 June 1989
. . . some 3,000 fund solicitation letters were sent by the organizer to every Tom, Dick
and Harry and to almost all government agencies. And the letterheads carried the
names of Reyes and Periquet. Agrarian Reform Secretary on leave Philip Juico received
one, but he decided to find out from Reyes himself what the project was all about. Ray
Reyes, in effect, advised Juico to put the fund solicitation letter in the waste basket. Now,
if the 3,000 persons and agencies approached by the organizer shelled out 1,000 each,
that's easily P3 million to a project that seems so unsophisticated. But note that one
garment company gave P100,000, after which the Garments Regulatory Board headed
by Trade and Industry Undersecretary Gloria Macapagal-Arroyo was approached by the
organizer to expedite the garment license application of the P100,000 donor.
21 June 1989
A 'conference organizer' associated with shady deals seems to have a lot of trash tucked
inside his closet. The Jaywalker continues to receive information about the man's
dubious deals. His notoriety, according to reliable sources, has reached the Premier
Guest House where his name is spoken like dung.
xxx xxx xxx
The first information says that the 'organizer' tried to mulct half a million pesos from a
garment producer and exporter who was being investigated for violation of the rules of
the Garments, Textile, Embroidery and Apparel Board. The 'organizer' told the garment
exporter that the case could be fixed for a sum of P500,000.00. The organizer got the
shock of his life when the exporter told him: 'If I have that amount, I will hire the best
lawyers, not you.' The organizer left in a huff, his thick face very pale.
xxx xxx xxx
Friends in government and the private sector have promised the Jaywalker more 'dope'
on the 'organizer.' It seems that he was not only indiscreet; he even failed to cover his
tracks. You will be hearing more of the 'organizer's' exploits from this corner soon.
22 June 1989
The scheming 'organizer' we have been writing about seems to have been spreading his
wings too far. A congressional source has informed the Jaywalker that the schemer once
worked for a congressman from the North as some sort of a consultant on economic
affairs. The first thing the "organizer" did was to initiate hearings and round-the-table
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discussions with people from the business, export and his favorite the garments
sector.
xxx xxx xxx
The 'organizer's' principal gamely went along, thinking that his 'consultant' had nothing
but the good of these sectors in mind. It was only later that he realized that the
'consultant' was acting with a burst of energy 'in aid of extortion.' The 'consultant' was
fired.
xxx xxx xxx
There seems to be no end to what a man could do to pursue his dubious ways. He has
tried to operate under a guise of a well-meaning reformist. He has intellectual
pretensions and sometimes he succeeds in getting his thoughts in the inside pages of
some newspapers, with the aid of some naive newspaper people. He has been turning
out a lot of funny-looking advice on investments, export growth, and the like.
xxx xxx xxx
A cabinet secretary has one big wish. He is hoping for a broad power to ban crooks and
influence-peddlers from entering the premises of his department. But the Cabinet man
might not get his wish. There is one 'organizer' who, even if physically banned, can still
concoct ways of doing his thing. Without a tinge of remorse, the 'organizer' could fill up
his letterheads with names of Cabinet members, congressmen, and reputable people
from the private sector to shore up his shady reputation and cover up his notoriety.
3 July 1989
A supposed conference on transportation was a big failure. The attendance was very
poor and the few who participated in the affair were mostly leaders of jeepney drivers'
groups. None of the government officials involved in regulating public transportation
was there. The big names in the industry also did not participate. With such a poor
attendance, one wonders why the conference organizers went ahead with the affair and
tried so hard to convince 3,000 companies and individuals to contribute to the affair.
xxx xxx xxx
The conference was doomed from the start. It was bound to fail. The personalities who
count in the field of transportation refused to attend the affair or withdrew their support
after finding out the background of the organizer of the conference. How could a
conference on transportation succeed without the participation of the big names in the
industry and government policy-makers?
Private respondent reacted to the articles. He sent a letter to The Philippine Star insisting that
he was the "organizer" alluded to in petitioner Borjal's columns. 4In a subsequent letter to The
Philippine Star, private respondent refuted the matters contained in petitioner Borjal's columns and
openly challenged him in this manner
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To test if Borjal has the guts to back up his holier than thou attitude, I am prepared to
relinquish this position in case it is found that I have misappropriated even one peso of
FNCLT money. On the other hand, if I can prove that Borjal has used his column as a
'hammer' to get clients for his PR Firm, AA Borjal Associates, he should resign from the
STAR and never again write a column. Is it a deal? 5
Thereafter, private respondent filed a complaint with the National Press Club (NPC) against
petitioner Borjal for unethical conduct. He accused petitioner Borjal of using his column as a form of
leverage to obtain contracts for his public relations firm, AA Borjal Associates. 6 In turn, petitioner
Borjal published a rejoinder to the challenge of private respondent not only to protect his name and
honor but also to refute the claim that he was using his column for character assassination. 7
Apparently not satisfied with his complaint with the NPC, private respondent filed a criminal
case for libel against petitioners Borjal and Soliven, among others. However, in a Resolution dated 7
August 1990, the Assistant Prosecutor handling the case dismissed the complaint for insufficiency of
evidence. The dismissal was sustained by the Department of Justice and later by the Office of the
President.
On 31 October 1990 private respondent instituted against petitioners a civil action for
damages based on libel subject of the instant case. 8 In their answer, petitioners interposed
compulsory counterclaims for actual, moral and exemplary damages, plus attorney's fees and costs.
After due consideration, the trial court decided in favor of private respondent Wenceslao and ordered
petitioners Borjal and Soliven to indemnify private respondent P1,000,000.00 for actual and
compensatory damages, in addition to P200,000.00 for moral damages, P100,000.00 for exemplary
damages, P200,000.00 for attorney's fees, and to pay the costs of suit.
The Court of Appeals affirmed the decision of the court a quo but reduced the amount of the
monetary award to P110,000.00 actual damages, P200,000.00 moral damages and P75,000.00
attorney's fees plus costs. In a 20-page Decision promulgated 25 March 1996, the appellate court
ruled inter alia that private respondent was sufficiently identifiable, although not named, in the
questioned articles; that private respondent was in fact defamed by petitioner Borjal by describing
him variously as a "self-proclaimed hero," "a conference organizer associated with shady deals who
has a lot of trash tucked inside his closet," "thick face," and "a person with dubious ways;" that
petitioner's claim of privilege communication was unavailing since the privileged character of the
articles was lost by their publication in a newspaper of general circulation; that petitioner could have
performed his office as a newspaperman without necessarily transgressing the rights of Wenceslao
by calling the attention of the government offices concerned to examine the authority by which
Wenceslao acted, warning the public against contributing to a conference that, according to his
perception, lacked the univocal indorsement of the responsible government officials, or simply
informing the public of the letters Wenceslao wrote and the favors he requested or demanded; and,
that when he imputed dishonesty, falsehood and misrepresentation, shamelessness and intellectual
pretensions to Wenceslao, petitioner Borjal crossed the thin but clear line that separated fair
comment from actionable defamation.
Private respondent manifested his desire to appeal that portion of the appellate court's
decision which reduced the amount of damages awarded him by filing with this Court a Petition for
Extension of Time to File Petition and a Motion for Suspension of Time to File Petition. 9 However, in
a Resolution dated 27 May 1996, the Second Division denied both motions: the first, for being
premature, and the second, for being a wrong remedy.
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On 20 November 1996 when the First Division consolidated and transferred the present case
to the Second Division, there was no longer any case thereat with which to consolidate this case
since G.R. No. 124396 had already been disposed of by the Second Division almost six (6) months
earlier.
On their part, petitioners filed a motion for reconsideration but the Court of Appeals denied
the motion in its Resolution of 12 September 1996. Hence the instant petition for review. The
petitioners contend that the Court of Appeals erred: (a) in ruling that private respondent Wenceslao
was sufficiently identified by petitioner Borjal in the questioned articles; (b) in refusing to accord
serious consideration to the findings of the Department of Justice and the Office of the President that
private respondent Wenceslao was not sufficiently identified in the questioned articles, this
notwithstanding that the degree of proof required in a preliminary investigation is merely prima
facie evidence which is significantly less than the preponderance of evidence required in civil cases;
(c) in ruling that the subject articles do not constitute qualifiedly privileged communication; (d) in
refusing to apply the "public official doctrine" laid down in New York Times v. Sullivan; (e) in ruling
that the questioned articles lost their privileged character because of their publication in a newspaper
of general circulation; (f) in ruling that private respondent has a valid cause of action for libel against
petitioners although he failed to prove actual malice on their part, and that the prosecutors of the
City of Manila, the Department of Justice, and eventually, the Office of the President, had already
resolved that there was no sufficient evidence to prove the existence of libel; and, (g)
assuming arguendo that Borjal should be held liable, in adjudging petitioner Soliven solidarily liable
with him. Thus, petitioners pray for the reversal of the appellate court's ruling, the dismissal of the
complaint against them for lack of merit, and the award of damages on their counterclaim.
The petition is impressed with merit. In order to maintain a libel suit, it is essential that the
victim be identifiable although it is not necessary that he be named. It is also not sufficient that the
offended party recognized himself as the person attacked or defamed, but it must be shown that at
least a third person could identify him as the object of the libelous publication. 10 Regrettably, these
requisites have not been complied with in the case at bar.
In ruling for private respondent, the Court of Appeals found that Borjal's column writings
sufficiently identified Wenceslao as the "conference organizer." It cited the First National Conference
on Land Transportation, the letterheads used listing different telephone numbers, the donation of
P100,000.00 from Juliano Lim and the reference to the "organizer of the conference" the very same
appellation employed in all the column items as having sufficiently established the identity of
private respondent Wenceslao for those who knew about the FNCLT who were present at its
inception, and who had pledged their assistance to it. cdasia
We hold otherwise. These conclusions are at variance with the evidence at hand. The
questioned articles written by Borjal do not identify private respondent Wenceslao as the organizer
of the conference. The first of the Jaywalker articles which appeared in the 31 May 1989 issue of The
Philippine Star yielded nothing to indicate that private respondent was the person referred to therein.
Surely, as observed by petitioners, there were millions of "heroes" of the EDSA Revolution and anyone
of them could be "self-proclaimed" or an "organizer of seminars and conferences." As a matter of fact,
in his 9 June 1989 column petitioner Borjal wrote about the "so-called First National Conference on
Land Transportation whose principal organizers are not specified" (italics supplied). 11 Neither did the
FNCLT letterheads 12 disclose the identity of the conference organizer since these contained only an
enumeration of names where private respondent Francisco Wenceslao was described as Executive
Director and Spokesman and not as a conference organizer. 13 The printout 14 and tentative
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program 15 of the conference were devoid of any indication of Wenceslao as organizer. The printout
which contained an article entitled "Who Organized the NCLT ?" did not even mention private
respondent's name, while the tentative program only denominated private respondent as "Vice
Chairman and Executive Director," and not as organizer.
No less than private respondent himself admitted that the FNCLT had several organizers and
that he was only a part of the organization, thus
I would like to clarify for the record that I was only a part of the organization. I was
invited then because I was the head of the technical panel of the House of
Representatives Sub-Committee on Industrial Policy that took care of congressional
hearings. 16
Significantly, private respondent himself entertained doubt that he was the person spoken of
in Borjal's columns. The former even called up columnist Borjal to inquire if he (Wenceslao) was the
one referred to in the subject articles. 17 His letter to the editor published in the 4 June 1989 issue
of The Philippine Star even showed private respondent Wenceslao's uncertainty
Although he used a subterfuge, I was almost certain that Art Borjal referred to the First
National Conference on Land Transportation (June 29-30) and me in the second
paragraph of his May 31 column . . . 18
Identification is grossly inadequate when even the alleged offended party is himself unsure
that he was the object of the verbal attack. It is well to note that the revelation of the identity of the
person alluded to came not from petitioner Borjal but from private respondent himself when he
supplied the information through his 4 June 1989 letter to the editor. Had private respondent not
revealed that he was the "organizer" of the FNCLT referred to in the Borjal articles, the public would
have remained in blissful ignorance of his identity. It is therefore clear that on the element of
identifiability alone the case falls.
The above disquisitions notwithstanding, and on the assumption arguendo that private
respondent has been sufficiently identified as the subject of Borjal's disputed comments, we now
proceed to resolve the other issues and pass upon the pertinent findings of the courts a quo.
The third, fourth, fifth and sixth assigned errors all revolve around the primary question of
whether the disputed articles constitute privileged communications as to exempt the author from
liability.
The trial court ruled that petitioner Borjal cannot hide behind the proposition that his articles
are privileged in character under the provisions of Art. 354 of The Revised Penal Code which state
Art. 354. Requirement for publicity. Every defamatory imputation is presumed to be
malicious, even if it be true, if no good intention and justifiable motive for making it is
shown, except in the following cases:
1) A private communication made by any person to another in the performance of any
legal, moral or social duty; and,
2) A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative or other official proceedings which are not of confidential nature, or
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of any statement, report or speech delivered in said proceedings, or of any other act
performed by public officers in the exercise of their functions.
Respondent court explained that the writings in question did not fall under any of the
exceptions described in the above-quoted article since these were neither "private communications"
nor "fair and true report . . . without any comments or remarks." But this is incorrect.
A privileged communication may be either absolutely privileged or qualifiedly privileged.
Absolutely privileged communications are those which are not actionable even if the author has acted
in bad faith. An example is found in Sec. 11, Art. VI, of the 1987 Constitution which exempts a member
of Congress from liability for any speech or debate in the Congress or in any Committee thereof. Upon
the other hand, qualifiedly privileged communications containing defamatory imputations are not
actionable unless found to have been made without good intention or justifiable motive. To this genre
belong "private communications" and "fair and true report without any comments or remarks."
Indisputably, petitioner Borjal's questioned writings are not within the exceptions of Art. 354
of The Revised Penal Code for, as correctly observed by the appellate court, they are neither private
communications nor fair and true report without any comments or remarks. However this does not
necessarily mean that they are not privileged. To be sure, the enumeration under Art. 354 is not an
exclusive list of qualifiedly privileged communications since fair commentaries on matters of public
interest are likewise privileged. The rule on privileged communications had its genesis not in the
nation's penal code but in the Bill of Rights of the Constitution guaranteeing freedom of speech and
of the press. 19 As early as 1918, in United States v. Caete, 20 this Court ruled that publications
which are privileged for reasons of public policy are protected by the constitutional guaranty of
freedom of speech. This constitutional right cannot be abolished by the mere failure of the legislature
to give it express recognition in the statute punishing libels.
The concept of privileged communications is implicit in the freedom of the press. As held
in Elizalde v. Gutierrez 21 and reiterated in Santos v. Court of Appeals22
To be more specific, no culpability could be imputed to petitioners for the alleged
offending publication without doing violence to the concept of privileged
communications implicit in the freedom of the press. As was so well put by Justice
Malcolm in Bustos: 'Public policy, the welfare of society, and the orderly administration
of government have demanded protection of public opinion. The inevitable and
incontestable result has been the development and adoption of the doctrine of
privilege.'
The doctrine formulated in these two (2) cases resonates the rule that privileged
communications must, sui generis, be protective of public opinion. This closely adheres to the
democratic theory of free speech as essential to collective self-determination and eschews the strictly
libertarian view that it is protective solely of self-expression which, in the words of Yale Sterling
Professor Owen Fiss, 23 makes its appeal to the individualistic ethos that so dominates our popular
and political culture. It is therefore clear that the restrictive interpretation vested by the Court of
Appeals on the penal provision exempting from liability only private communications and fair and true
report without comments or remarks defeats, rather than promotes, the objective of the rule on
privileged communications, sadly contriving as it does, to suppress the healthy efflorescence of public
debate and opinion as shining linchpins of truly democratic societies.
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To reiterate, fair commentaries on matters of public interest are privileged and constitute a
valid defense in an action for libel or slander. The doctrine of fair comment means that while in general
every discreditable imputation publicly made is deemed false, because every man is presumed
innocent until his guilt is judicially proved, and every false imputation is deemed malicious,
nevertheless, when the discreditable imputation is directed against a public person in his public
capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official
may be actionable, it must either be a false allegation of fact or a comment based on a false
supposition. If the comment is an expression of opinion, based on established facts, then it is
immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from
the facts. 24
There is no denying that the questioned articles dealt with matters of public interest. In his
testimony, private respondent spelled out the objectives of the conference thus
. . . The principal conference objective is to come up with a draft of an Omnibus Bill that
will embody a long term land transportation policy for presentation to Congress in its
next regular session in July. Since last January, the National Conference on Land
Transportation (NCLT), the conference secretariat, has been enlisting support from all
sectors to ensure the success of the project. 25
Private respondent likewise testified that the FNCLT was raising funds through solicitation
from the public
Q: Now, in this first letter, you have attached a budget and it says here that in this
seminar of the First National Conference on Land Transportation, you will need
around One million eight hundred fifteen thousand pesos, is that right?
A: That was the budget estimate, sir.
Q: How do you intend as executive officer, to raise this fund of your seminar?
A: Well, from sponsors such as government agencies and private sectors or
organizations as well as individual transport firms and from individual
delegates/participants. 26
The declared objective of the conference, the composition of its members and participants,
and the manner by which it was intended to be funded no doubt lend to its activities as being
genuinely imbued with public interest. An organization such as the FNCLT aiming to reinvent and
reshape the transportation laws of the country and seeking to source its funds for the project from
the public at large cannot dissociate itself from the public character of its mission. As such, it cannot
but invite close scrutiny by the media obliged to inform the public of the legitimacy of the purpose of
the activity and of the qualifications and integrity of the personalities behind it.
This in effect is the strong message in New York Times v. Sullivan 27 which the appellate court
failed to consider or, for that matter, to heed. It insisted that private respondent was not, properly
speaking, a "public official" nor a "public figure," which is why the defamatory imputations against
him had nothing to do with his task of organizing the FNCLT.
New York Times v. Sullivan was decided by the U. S. Supreme Court in the 1960s at the height
of the bloody rioting in the American South over racial segregation. The then City Commissioner L. B.
Sullivan of Montgomery, Alabama, sued New York Times for publishing a paid political advertisement
espousing racial equality and describing police atrocities committed against students inside a college
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campus. As commissioner having charge over police actions Sullivan felt that he was sufficiently
identified in the ad as the perpetrator of the outrage; consequently, he sued New York Times on the
basis of what he believed were libelous utterances against him.
The U.S. Supreme Court speaking through Mr. Justice William J. Brennan Jr. ruled against
Sullivan holding that honest criticisms on the conduct of public officials and public figures are insulated
from libel judgments. The guarantees of freedom of speech and press prohibit a public official or
public figure from recovering damages for a defamatory falsehood relating to his official conduct
unless he proves that the statement was made with actual malice, i.e., with knowledge that it was
false or with reckless disregard of whether it was false or not.
The raison d'etre for the New York Times doctrine was that to require critics of official conduct
to guarantee the truth of all their factual assertions on pain of libel judgments would lead to self-
censorship, since would-be critics would be deterred from voicing out their criticisms even if such
were believed to be true, or were in fact true, because of doubt whether it could be proved or because
of fear of the expense of having to prove it. 28
In the present case, we deem private respondent a public figure within the purview of
the New York Times ruling. At any rate, we have also defined "public figure" in Ayers Production Pty.,
Ltd. v. Capulong 29 as
. . . a person who, by his accomplishments, fame, mode of living, or by adopting a
profession or calling which gives the public a legitimate interest in his doings, his affairs
and his character, has become a 'public personage.' He is, in other words, a celebrity.
Obviously, to be included in this category are those who have achieved some degree of
reputation by appearing before the public, as in the case of an actor, a professional
baseball player, a pugilist, or any other entertainer. The list is, however, broader than
this. It includes public officers, famous inventors and explorers, war heroes and even
ordinary soldiers, infant prodigy, and no less a personage than the Great Exalted Ruler
of the lodge. It includes, in short, anyone who has arrived at a position where the public
attention is focused upon him as a person.
The FNCLT was an undertaking infused with public interest. It was promoted as a joint project
of the government and the private sector, and organized by top government officials and prominent
businessmen. For this reason, it attracted media mileage and drew public attention not only to the
conference itself but to the personalities behind as well. As its Executive Director and spokesman,
private respondent consequently assumed the status of a public figure.
But even assuming ex-gratia argumenti that private respondent, despite the position he
occupied in the FNCLT, would not qualify as a public figure, it does not necessarily follow that he could
not validly be the subject of a public comment even if he was not a public official or at least a public
figure, for he could be, as long as he was involved in a public issue. If a matter is a subject of public or
general interest, it cannot suddenly become less so merely because a private individual is involved or
because in some sense the individual did not voluntarily choose to become involved. The public's
primary interest is in the event; the public focus is on the conduct of the participant and the content,
effect and significance of the conduct, not the participant's prior anonymity or notoriety. 30
There is no denying that the questioned articles dealt with matters of public interest. A
reading of the imputations of petitioner Borjal against respondent Wenceslao shows that all these
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necessarily bore upon the latter's official conduct and his moral and mental fitness as Executive
Director of the FNCLT. The nature and functions of his position which included solicitation of funds,
dissemination of information about the FNCLT in order to generate interest in the conference, and
the management and coordination of the various activities of the conference demanded from him
utmost honesty, integrity and competence. These are matters about which the public has the right to
be informed, taking into account the very public character of the conference itself.
Concededly, petitioner Borjal may have gone overboard in the language employed describing
the "organizer of the conference." One is tempted to wonder if it was by some mischievous gambit
that he would also dare test the limits of the "wild blue yonder" of free speech in this jurisdiction.
But no matter how intemperate or deprecatory the utterances appear to be, the privilege is not to be
defeated nor rendered inutile for, as succinctly expressed by Mr. Justice Brennan in New York Times
v. Sullivan, "[D]ebate on public issues should be uninhibited, robust and wide open, and that it may
well include vehement, caustic and sometimes unpleasantly sharp attacks on the government and
public officials." 31
The Court of Appeals concluded that since malice is always presumed in the publication of
defamatory matters in the absence of proof to the contrary, the question of privilege is immaterial.
We reject this postulate. While, generally, malice can be presumed from defamatory words,
the privileged character of a communication destroys the presumption of malice. 32 The onus of
proving actual malice then lies on plaintiff, private respondent Wenceslao herein. He must bring home
to the defendant, petitioner Borjal herein, the existence of malice as the true motive of his conduct. 33
Malice connotes ill will or spite and speaks not in response to duty but merely to injure the
reputation of the person defamed, and implies an intention to do ulterior and unjustifiable
harm. 34 Malice is bad faith or bad motive. 35 It is the essence of the crime of libel. 36
In the milieu obtaining, can it be reasonably inferred that in writing and publishing the articles
in question petitioner Borjal acted with malice?
Primarily, private respondent failed to substantiate by preponderant evidence that petitioner
was animated by a desire to inflict unjustifiable harm on his reputation, or that the articles were
written and published without good motives or justifiable ends. On the other hand, we find petitioner
Borjal to have acted in good faith. Moved by a sense of civic duty and prodded by his responsibility as
a newspaperman, he proceeded to expose and denounce what he perceived to be a public deception.
Surely, we cannot begrudge him for that. Every citizen has the right to enjoy a good name and
reputation, but we do not consider that petitioner Borjal has violated that right in this case nor abused
his press freedom. LLphil
Furthermore, to be considered malicious, the libelous statements must be shown to have
been written or published with the knowledge that they are false or in reckless disregard of whether
they are false or not. 37 "Reckless disregard of what is false or not" means that the defendant
entertains serious doubt as to the truth of the publication, 38 or that he possesses a high degree of
awareness of their probable falsity. 39
The articles subject of the instant case can hardly be said to have been written with knowledge
that these are false or in reckless disregard of what is false or not. This is not to say however that the
very serious allegations of petitioner Borjal assumed by private respondent to be directed against him
are true. But we nevertheless find these at least to have been based on reasonable grounds formed
after the columnist conducted several personal interviews and after considering the varied
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documentary evidence provided him by his sources. Thus, the following are supported by
documentary evidence: (a) that private respondent requested Gloria Macapagal-Arroyo, then head of
the Garments and Textile Export Board (GTEB), to expedite the processing and release of the import
approval and certificate of availability of a garment firm in exchange for the monetary contribution of
Juliano Lim, which necessitated a reply from the office of Gloria Macapagal-Arroyo explaining the
procedure of the GTEB in processing applications and clarifying that all applicants were treated
equally; 40 (b) that Antonio Periquet was designated Chairman of the Executive Committee of the
FNCLT notwithstanding that he had previously declined the offer; 41 and, (c) that despite the fact that
then President Aquino and her Secretary of Transportation Rainerio Reyes declined the invitation to
be guest speakers in the conference, their names were still included in the printout of the
FNCLT. 42 Added to these are the admissions of private respondent that: (a) he assisted Juliano Lim
in his application for a quota allocation with the GTEB in exchange for monetary contributions to the
FNCLT; 43 (b) he included the name of then Secretary of Transportation Rainerio Reyes in the
promotional materials of the conference notwithstanding the latter's refusal to lend his name to and
participate in the FNCLT; 44 and, (c) he used different letterheads and telephone numbers. 45
Even assuming that the contents of the articles are false, mere error, inaccuracy or even falsity
alone does not prove actual malice. Errors or misstatements are inevitable in any scheme of truly free
expression and debate. Consistent with good faith and reasonable care, the press should not be held
to account, to a point of suppression, for honest mistakes or imperfections in the choice of language.
There must be some room for misstatement of fact as well as for misjudgment. Only by giving them
much leeway and tolerance can they courageously and effectively function as critical agencies in our
democracy. 46 In Bulletin Publishing Corp. v. Noel 47we held
A newspaper especially one national in reach and coverage, should be free to report on
events and developments in which the public has a legitimate interest with minimum
fear of being hauled to court by one group or another on criminal or civil charges for
libel, so long as the newspaper respects and keeps within the standards of morality and
civility prevailing within the general community.
To avoid the self-censorship that would necessarily accompany strict liability for erroneous
statements, rules governing liability for injury to reputation are required to allow an adequate margin
of error by protecting some inaccuracies. It is for the same reason that the New York Times doctrine
requires that liability for defamation of a public official or public figure may not be imposed in the
absence of proof of "actual malice" on the part of the person making the libelous statement.
At any rate, it may be salutary for private respondent to ponder upon the advice of Mr. Justice
Malcolm expressed in U.S. v. Bustos, 48 that "the interest of society and the maintenance of good
government demand a full discussion of public affairs. Complete liberty to comment on the conduct
of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the
abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the
wound may be assuaged by the balm of a clear conscience. A public official must not be too thin-
skinned with reference to comments upon his official acts."
The foregoing disposition renders the second and seventh assigned errors moot and
academic, hence, we find no necessity to pass upon them.
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We must however take this opportunity to likewise remind media practitioners of the high
ethical standards attached to and demanded by their noble profession. The danger of an unbridled
irrational exercise of the right of free speech and press, that is, in utter contempt of the rights of
others and in willful disregard of the cumbrous responsibilities inherent in it, is the eventual self-
destruction of the right and the regression of human society into a veritable Hobbesian state of nature
where life is short, nasty and brutish. Therefore, to recognize that there can be no absolute
"unrestraint" in speech is to truly comprehend the quintessence of freedom in the marketplace of
social thought and action, genuine freedom being that which is limned by the freedom of others. If
there is freedomof the press, ought there not also be freedom from the press? It is in this sense
that self-regulation as distinguished from self-censorship becomes the ideal mean for, as Mr. Justice
Frankfurter has warned, "[W]ithout . . . a lively sense of responsibility, a free press may readily become
a powerful instrument of injustice." 49
Lest we be misconstrued, this is not to diminish nor constrict that space in which expression
freely flourishes and operates. For we have always strongly maintained, as we do now, that freedom
of expression is man's birthright constitutionally protected and guaranteed, and that it has become
the singular role of the press to act as its "defensor fidei" in a democratic society such as ours. But it
is also worth keeping in mind that the press is the servant, not the master, of the citizenry, and its
freedom does not carry with it an unrestricted hunting license to prey on the ordinary citizen. 50
On petitioners' counterclaim for damages, we find the evidence too meager to sustain any
award. Indeed, private respondent cannot be said to have instituted the present suit in abuse of the
legal processes and with hostility to the press; or that he acted maliciously, wantonly, oppressively,
fraudulently and for the sole purpose of harassing petitioners, thereby entitling the latter to damages.
On the contrary, private respondent acted within his rights to protect his honor from what he
perceived to be malicious imputations against him. Proof and motive that the institution of the action
was prompted by a sinister design to vex and humiliate a person must be clearly and preponderantly
established to entitle the victim to damages. The law could not have meant to impose a penalty on
the right to litigate, nor should counsel's fees be awarded every time a party wins a suit. 51
For, concluding with the wisdom in Warren v. Pulitzer Publishing Co. 52
Every man has a right to discuss matters of public interest. A clergyman with his flock,
an admiral with his fleet, a general with his army, a judge with his jury, we are, all of us,
the subject of public discussion. The view of our court has been thus stated: 'It is only
in despotisms that one must speak sub rosa, or in whispers, with bated breath, around
the corner, or in the dark on a subject touching the common welfare. It is the brightest
jewel in the crown of the law to speak and maintain the golden mean between
defamation, on one hand, and a healthy and robust right of free public discussion, on
the other.'
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals of 25 March 1996
and its Resolution of 12 September 1996 denying reconsideration are REVERSED and SET ASIDE, and
the complaint for damages against petitioners is DISMISSED. Petitioners' counterclaim for damages is
likewise DISMISSED for lack of merit. No costs. cda
SO ORDERED.
||| (Borjal v. Court of Appeals, G.R. No. 126466, [January 14, 1999], 361 PHIL 1-29)
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VASQUEZ VS. CA 314 SCRA 460 (2000)
RODOLFO R. VASQUEZ, petitioner, vs. COURT OF APPEALS, THE REGIONAL TRIAL

COURT OF MANILA, BRANCH 40, and THE PEOPLE OF THE PHILIPPINES, respondents.
Free Legal Assistance Group for petitioner.

Tumaru Guerrero and Tumaru Law Office for private respondent.
SYNOPSIS
In an information filed in the Regional Trial Court of Manila, Rodolfo R. Vasquez was charged with libel for
allegedly having made false and malicious imputations that Barangay Chairman Jaime Olmedo was
engaged in land grabbing and was involved in illegal gambling and stealing of chicken at the Tondo
Foreshore Area, Tondo Manila. The trial court found Vasquez guilty of libel as charged. On appeal, the
Court of Appeals affirmed in toto. Hence, this petition.
Even if the defamatory statement is false, no liability can attach if it relates to official conduct, unless the
public official concerned proves that the statement was made with actual malice that is, with
knowledge that it was false or with reckless disregard of whatever it was false or not. In this case, the
prosecution failed to prove not only that the charges made by petitioner were false but also that petitioner
made them with knowledge of their falsity or with reckless disregard of whether they were false or not.
A rule placing on the accused the burden of showing the truth of allegations of official misconduct and/or
good motives and justifiable ends for making such allegations would, above all, infringe on the
constitutionally guaranteed freedom of expression. Without free speech and assembly, discussions of our
most abiding concerns as a nation would be stifled.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; INFORMATION FOR LIBEL; MUST GENERALLY SET OUT
PARTICULAR DEFAMATORY WORDS VERBATIM AS PUBLISHED; CASE AT BAR. While the general rule is
that the information must set out the particular defamatory words verbatim and as published and that a
statement of their substance is insufficient, a defect in this regard may be cured by evidence. In this case,
the article was presented in evidence, but petitioner failed to object to its introduction. Instead, he
engaged in the trial of the entire article, not only of the portions quoted in the information, and sought
to prove it to be true. In doing so, he waived objection based on the defect in the information.
Consequently, he cannot raise this issue at this late stage.
2. CRIMINAL LAW; LIBEL; ELEMENTS. To find a person guilty of libel under Art. 353 of the Revised Penal
Code, the following elements must be proved: (a) the allegation of a discreditable act or condition
concerning another; (b) publication of the charge; (c) identity of the person defamed; and (d) existence of
malice. HaDEIc
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3. ID.; ID.; WHEN IS AN ALLEGATION DEFAMATORY. An allegation is considered defamatory if it ascribes

to a person the commission of a crime, the possession of a vice or defect, real or imaginary, or any act,
omission, condition, status or circumstance which tends to dishonor or discredit or put him in contempt,
or which tends to blacken the memory of one who is dead.
4. ID.; ID.; PUBLICATION; LIBELOUS STATEMENT COMMUNICATED TO A THIRD PERSON. There is
publication if the material is communicated to a third person. It is not required that the person defamed
has read or heard about the libelous remark. What is material is that a third person has read or heard the
libelous statement, for "a man's reputation is the estimate in which others hold him, not the good opinion
which he has of himself."
5. ID.; ID.; IDENTIFIABILITY. On the other hand, to satisfy the element of identifiability, it must be shown
that at least a third person or a stranger was able to identify him as the object of the defamatory
statement.
6. ID.; ID.; MALICE; WHEN PRESENT. Finally, malice or ill will must be present. Art. 354 of the Revised
Penal Code provides: Every defamatory imputation is presumed to be malicious, even if it be true, if no
good intention and justifiable motive for making it is shown, except in the following cases: 1. A private
communication made by any person to another in the performance of any legal, moral or security duty;
and 2. A fair and true report, made in good faith, without any comments or remarks, of any judicial,
legislative or other official proceedings which are not of confidential nature, or of any statement, report
or speech delivered in said proceedings, or of any other act performed by public officers in the exercise
of their functions.
7. ID.; ID.; DEFAMATION AGAINST PUBLIC OFFICIAL; ACCUSED SHOULD BE ACQUITTED WHERE TRUTH OF
ALLEGATION PROVED. Under Art. 361 of the Revised Penal Code, if the defamatory statement is made
against a public official with respect to the discharge of his official duties and functions and the truth of
the allegation is shown, the accused will be entitled to an acquittal even though he does not prove that
the imputation was published with good motives and for justifiable ends.
8. ID.; ID.; ID.; CASE AT BAR. In this case, contrary to the findings of the trial court, on which the Court
of Appeals relied, petitioner was able to prove the truth of his charges against the barangay official. In
denouncing the barangay chairman in this case, petitioner and the other residents of the Tondo
Foreshore Area were not only acting in their self-interest but engaging in the performance of a civic duty
to see to it that public duty is discharged faithfully and well by those on whom such duty is incumbent.
The recognition of this right and duty of every citizen in a democracy is inconsistent with any requirement
placing on him the burden of proving that he acted with good motives and for justifiable ends. For that
matter, even if the defamatory statement is false, no liability can attach if it relates to official conduct,
unless the public official concerned proves that the statement was made with actual malice that is,
with knowledge that it was false or with reckless disregard of whether it was false or not. This is the gist
of the ruling in the landmark case of New York Times v. Sullivan, which this Court has cited with approval
in several of its own decisions. This is the rule of "actual malice." In this case, the prosecution failed to
prove not only that the charges made by petitioner were false but also that petitioner made them with
knowledge of their falsity or with reckless disregard of whether they were false or not. As already stated,
however, in accordance with Art. 361, if the defamatory matter either constitutes a crime or concerns the
performance of official duties, and the accused proves the truth of his charge, he should be acquitted.
9. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF EXPRESSION; EMBRACES RIGHT TO DENOUNCE
OFFICIAL MISCONDUCT. A rule placing on the accused the burden of showing the truth of allegations
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of official misconduct and/or good motives and justifiable ends for making such allegations would not only
be contrary to Art. 361 of the Revised Penal Code. It would, above all, infringe on the constitutionally
guaranteed freedom of expression. Such a rule would deter citizens from performing their duties as
members of a self-governing community. Without free speech and assembly, discussions of our most
abiding concerns as a nation would be stifled. As Justice Brandeis has said, "public discussion is a political
duty" and "the greatest menace to freedom is an inert people."
DECISION
MENDOZA, J p:
The question for determination in this case is the liability for libel of a citizen who denounces a barangay
official for misconduct in office. The Regional Trial Court of Manila, Branch 40, found petitioner guilty and
fined him P1,000.00 on the ground that petitioner failed to prove the truth of the charges and that he was
"motivated by vengeance in uttering the defamatory statement." On appeal, the Court of Appeals, in a
decision 1 dated February 1, 1995, affirmed. Hence, this petition for review. The decision appealed from
should be reversed. cdphil
The facts are not in dispute. Petitioner Rodolfo R. Vasquez is a resident of the Tondo Foreshore Area.
Sometime in April 1986, he and some 37 families from the area went to see then National Housing
Authority (NHA) General Manager Lito Atienza regarding their complaint against their Barangay Chairman,
Jaime Olmedo. After their meeting with Atienza and other NHA officials, petitioner and his companions
were met and interviewed by newspaper reporters at the NHA compound concerning their complaint.
The next day, April 22, 1986, the following news article 2 appeared in the newspaper Ang Tinig ng Masa:
Nananawagan kahapon kay pangulong Corazon Aquino ang 38 mahihirap na pamilya sa
Tondo Foreshore Area na umano'y inagawan ng lupa ng kanilang barangay chairman sa
pakikipagsabwatan sa ilang pinuno ng National Housing Authority sapul 1980.
Sinabi nila na nakipagsabwatan umano si Chairman Jaime Olmedo ng barangay 66, Zone
6, Tondo Foreshore Area, sa mga project manager ng NHA upang makamkam ang may
14 na lote ng lupa sa naturang lugar.
Binanggit ni Rodolfo R. Vasquez, 40, Tagapagsalita ng (mga) pamilyang apektado, na
umaabot lang sa 487.87 metro kuwadrado ang kabuuan ng mga lupa na kinatitirikan ng
mga barung-barung ng 38 pamilya.
"Naninirahan na kami sa mga lupang nabanggit sapul 1950 at pinatunayan sa mga
survey ng NHA noong nakalipas na taon na may karapatan kami sa mga lupang ito ng
pamahalaan," ani Vasquez.
"Pawang lupa ng gobyerno ang mga lupa at ilegal man na patituluhan, nagawa ito ni
Olmedo sa pakikipagsabwatan sa mga project manager at legal officers ng NHA," sabi
ni Vasquez.
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Sinabi rin ng mga pamilya na protektado ng dating pinuno ng city hall ng Maynila, MHS
Minister Conrado Benitez, at ilang pinuno ng pulisya ang barangay chairman kaya
"nakalusot" ang mga ginawa nitong katiwalian.
Bukod sa pagkamkam ng mga lupaing gobyerno, kasangkot din umano si Olmedo sa
mga ilegal na pasugalan sa naturang lugar at maging sa mga nakawan ng manok.
"Sapin-sapin na ang mga kaso na idinulog namin noong nakalipas na mga taon, pero
pinawalang saysay ang lahat ng iyon, kabilang na ang tangkang pagpatay sa akin
kaugnay ng pagrereklamo sa pangangamkam ng lupa noong 1984," sabi pa ni Vasquez.
Based on the newspaper article, Olmedo filed a complaint for libel against petitioner alleging that the
latter's statements cast aspersions on him and damaged his reputation. After conducting preliminary
investigation, the city prosecutor filed the following information in the Regional Trial Court of Manila,
Branch 40: LibLex
The undersigned accuses RODOLFO R. VASQUEZ of the crime of libel committed as
follows:
That on or about April 22, 1986, in the city of Manila, Philippines, the said accused, with
malicious intent of impeaching the reputation and character of one Jaime Olmedo,
chairman of Barangay 66, Zone 6 in Tondo, Manila, and with evident intent of exposing
him to public hatred, contempt, ridicule, did then and there willfully, unlawfully,
feloniously and maliciously caused the publication of an article entitled "38 Pamilya
Inagawan ng Lupa" in Ang Tinig ng Masa, a daily newspaper sold to the public and of
general circulation in the Philippines in its April 22, 1986 issue, which portion of the said
article reads as follows:
Nananawagan kahapon kay pangulong Corazon Aquino ang 38 mahihirap na
pamilya sa Tondo Foreshore Area na umano'y inagawan ng lupa ng kanilang
barangay chairman sa pakikipagsabwatan sa ilang pinuno ng National Housing
Authority sapul 1980.
Sinabi nila na nakipagsabwatan umano si Chairman Jaime Olmedo ng barangay
66, Zone 6, Tondo Foreshore Area sa mga project manager ng NHA upang
makamkam ang may 14 na lote ng lupa sa naturang lugar.
. . . "Pawang lupa ng gobyerno ang mga lupa at ilegal man na patituluhan,
nagawa ito ni Olmedo sa pakikipagsabwatan sa mga project manager at legal
officers ng NHA," sabi ni Vasquez.
Sinabi rin ng mga pamilya na protektado ng dating pinuno ng city hall ng
Maynila, MHS Minister Conrado Benitez, at ilang pinuno ng pulisya ang
barangay chairman kaya "nakalusot" ang mga ginawa nitong katiwalian.
Bukod sa pagkamkam ng mga lupaing gobyerno, kasangkot din umano si
Olmedo sa mga ilegal na pasugalan sa naturang lugar at maging sa mga
nakawan ng manok. . . .
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with which statements, the said accused meant and intended to convey, as in fact he
did mean and convey false and malicious imputations that said Jaime Olmedo is
engaged in landgrabbing and involved in illegal gambling and stealing of chickens at the
Tondo Foreshore Area, Tondo, Manila, which statements, as he well knew, were
entirely false and malicious, offensive and derogatory to the good name, character and
reputation of said Jaime Olmedo, thereby tending to impeach, besmirch and destroy
the honor, character and reputation of Jaime Olmedo, as in fact, the latter was exposed
to dishonor, discredit, public hatred, contempt and ridicule.
Contrary to law.
Upon being arraigned, petitioner entered a plea of not guilty, whereupon the case was tried. The
prosecution presented Barangay Chairman Olmedo and his neighbor, Florentina Calayag, as witnesses. On
the other hand, the defense presented Ciriaco Cabuhat, Nicasio Agustin, Estrelita Felix, Fernando
Rodriguez all residents of the Tondo Foreshore Area and petitioner as its witnesses.
On May 28, 1992, the trial court rendered judgment finding petitioner guilty of libel and sentencing him
to pay a fine of P1,000.00. On appeal, the Court of Appeals affirmed in toto. Hence, this petition for review.
Petitioner contends that
I. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL COURT
PINPOINTING PETITIONER AS THE SOURCE OF THE ALLEGED LIBELOUS ARTICLE.
II. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL COURT
THAT PETITIONER IMPUTED THE QUESTIONED ACTS TO COMPLAINANT.
III. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL COURT
THAT THE ALLEGED IMPUTATIONS WERE MADE MALICIOUSLY.
IV. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL COURT
WHICH FAILED TO APPRECIATE PETITIONER'S DEFENSE OF TRUTH.
V. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL COURT
THAT ALL THE ELEMENTS OF LIBEL WERE PROVEN.
We will deal with these contentions in the order in which they are made.
First. Petitioner claims he was "unfairly singled out" as the source of the statements in the article when
any member of the 38 complainant-families could have been the source of the alleged libelous
statements. 3 The reference is to the following portion of the decision of the Court of Appeals: cdasia
. . . In his sworn statement, appellant admitted he was the source of the libelous article
(Exh. "B"). He affirmed this fact when he testified in open court as follows: That his
allegation on the act of landgrabbing by Olmedo was based on the alleged report and
pronouncements of the NHA representatives (p. 5, tsn, Oct. 18, 1989); that said
allegations were made by him before the local press people in the pursuit of fairness
and truthfulness and not in bad faith (pp. 8-9, id.); that the only inaccurate account in
the published article of "Ang Tinig ng Masa" is the reference to the 487.87 sq.m. lot, on
which Olmedo's residence now stands, attributed by the reporter as the lot currently
occupied by appellants and his fellow complainants (pp. 4-5, tsn, Nov. 15, 1989; pp. 4-
5, tsn, January 15, 1990); and that after the interview, he never expected that his
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statement would be the cause of the much-publicized libelous article (pp. 4-6, tsn, Nov.
15, 1989). 4
It is true petitioner did not directly admit that he was the source of the statements in the questioned
article. What he said in his sworn statement 5 was that the contents of the article are true in almost all
respects, thus:
9. Tama ang nakalathala sa pahayagang "Ang Masa" maliban na lang sa tinutukoy na
ako at ang mga kasamahang maralitang taga-lungsod ay nakatira sa humigit kumulang
487.87 square meters sapagkat ang nabanggit na 487.87 square meters ay siyang
kinatitirikan ng bahay ni Barangay Chairman Olmedo kung saan nakaloob ang anim na
lote isang paglabag sa batas o regulasyon ng NHA;
10. Ang ginawa kong pahayag na nailathala sa "Ang Masa" ay sanhi ng aking nais na
maging mabuting mamamayan at upang maituwid ang mga katiwaliang nagaganap sa
Tondo Foreshore Area kung saan ako at sampu ng aking mga kasamang maralitang taga-
lungsod ay apektado at naaapi.
This was likewise what he stated in his testimony in court both on direct 6 and on cross-
examination. 7 However, by claiming that what he had told the reporter was made by him in the
performance of a civic duty, petitioner in effect admitted authorship of the article and not only of the
statements attributed to him therein, to wit:
"Pawang lupa ng gobyerno ang mga lupa at ilegal man na patituluhan, nagawa ito ni
Olmedo sa pakikipagsabwatan sa mga project manager at legal officers ng NHA," sabi
ni Vasquez.
xxx xxx xxx
"Sapin-sapin na ang mga kaso na idinulog namin noong nakalipas na mga taon, pero
pinawalang saysay ang lahat ng iyon, kabilang na ang tangkang pagpatay sa akin
kaugnay ng pagrereklamo sa pangangamkam ng lupa noong 1984," sabi pa ni Vasquez.
Petitioner cannot claim to have been the source of only a few statements in the article in question and
point to the other parties as the source of the rest, when he admits that he was correctly identified as the
spokesperson of the families during the interview.
Second. Petitioner points out that the information did not set out the entire news article as published. In
fact, the second statement attributed to petitioner was not included in the information. But, while the
general rule is that the information must set out the particular defamatory words verbatim and as
published and that a statement of their substance is insufficient, 8 a defect in this regard may be cured by
evidence. 9 In this case, the article was presented in evidence, but petitioner failed to object to its
introduction. Instead, he engaged in the trial of the entire article, not only of the portions quoted in the
information, and sought to prove it to be true. In doing so, he waived objection based on the defect in the
information. Consequently, he cannot raise this issue at this late stage. 10
Third. On the main issue whether petitioner is guilty of libel, petitioner contends that what he said was
true and was made with good motives and for justifiable ends.
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To find a person guilty of libel under Art. 353 of the Revised Penal Code, the following elements must be
proved: (a) the allegation of a discreditable act or condition concerning another; (b) publication of the
charge; (c) identity of the person defamed; and (d) existence of malice. 11
An allegation is considered defamatory if it ascribes to a person the commission of a crime, the possession
of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance which tends
to dishonor or discredit or put him in contempt, or which tends to blacken the memory of one who is
dead. 12
There is publication if the material is communicated to a third person. 13 It is not required that the person
defamed has read or heard about the libelous remark. What is material is that a third person has read or
heard the libelous statement, for "a man's reputation is the estimate in which others hold him, not the
good opinion which he has of himself." 14
On the other hand, to satisfy the element of identifiability, it must be shown that at least a third person
or a stranger was able to identify him as the object of the defamatory statement. 15
Finally, malice or ill will must be present. Art. 354 of the Revised Penal Code provides: LLphil
Every defamatory imputation is presumed to be malicious, even if it be true, if no good
intention and justifiable motive for making it is shown, except in the following cases:
1. A private communication made by any person to another in the performance of any

legal, moral or security duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative or other official proceedings which are not of confidential
nature, or of any statement, report or speech delivered in said proceedings, or
of any other act performed by public officers in the exercise of their functions.
In this case, there is no doubt that the first three elements are present. The statements that Olmedo,
through connivance with NHA officials, was able to obtain title to several lots in the area and that he was
involved in a number of illegal activities (attempted murder, gambling and theft of fighting cocks) were
clearly defamatory. There is no merit in his contention that "landgrabbing," as charged in the information,
has a technical meaning in law. 16 Such act is so alleged and proven in this case in the popular sense in
which it is understood by ordinary people. As held in United States v. Sotto: 17
. . . [F]or the purpose of determining the meaning of any publication alleged to be
libelous "that construction must be adopted which will give to the matter such a
meaning as is natural and obvious in the plain and ordinary sense in which the public
would naturally understand what was uttered. The published matter alleged to be
libelous must be construed as a whole. In applying these rules to the language of an
alleged libel, the court will disregard any subtle or ingenious explanation offered by the
publisher on being called to account. The whole question being the effect the
publication had upon the minds of the readers, and they not having been assisted by
the offered explanation in reading the article, it comes too late to have the effect of
removing the sting, if any there be, from the words used in the publication."
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Nor is there any doubt that the defamatory remarks referred to complainant and were published.
Petitioner caused the publication of the defamatory remarks when he made the statements to the
reporters who interviewed him. 18
The question is whether from the fact that the statements were defamatory, malice can be presumed so
that it was incumbent upon petitioner to overcome such presumption. Under Art. 361 of the Revised
Penal Code, if the defamatory statement is made against a public official with respect to the discharge of
his official duties and functions and the truth of the allegation is shown, the accused will be entitled to an
acquittal even though he does not prove that the imputation was published with good motives and for
justifiable ends. 19
In this case, contrary to the findings of the trial court, on which the Court of Appeals relied, petitioner was
able to prove the truth of his charges against the barangay official. His allegation that, through connivance
with NHA officials, complainant was able to obtain title to several lots at the Tondo Foreshore Area was
based on the letter 20 of NHA Inspector General Hermogenes Fernandez to petitioner's counsel which
reads:
09 August 1983
Atty. Rene V. Sarmiento
Free Legal Assistance Group (FLAG)
55 Third Street
New Manila, Quezon City
Dear Atty. Sarmiento:
In connection with your request that you be furnished with a copy of the results of the
investigation regarding the complaints of some Tondo residents against Chairman Jaime
Olmedo, we are providing you a summary of the findings based on the investigation
conducted by our Office which are as follows:
1. Based on the subdivision plan of Block 260, SB 8, Area III, Jaime Olmedo's present
structure is constructed on six lots which were awarded before by the defunct Land
Tenure Administration to different persons as follows: Cdpr
Lot 4 Juana Buenaventura 79.76 sq. m.
Lot 6 Servando Simbulan 48.50 sq. m.
Lot 7 Alfredo Vasquez 78.07 sq. m.
Lot 8 Martin Gallardo 78.13 sq. m.
Lot 9 Daniel Bayan 70.87 sq. m.
Lot 1 Fortunato de Jesus 85.08 sq. m. (OIT No. 7800)
The above-mentioned lots were not yet titled, except for Lot 1. Fortunato de Jesus sold
the said lot to a certain Jovita Bercasi, a sister-in-law of Jaime Olmedo. The other
remaining lots were either sold to Mr. Olmedo and/or to his immediate relatives.
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Lot 14 is also titled in the name of Mariano Bercasi, father-in-law of Jaime Olmedo, with
an area of 47.40 sq. m.
The lot assigned to Chairman Olmedo has a total area of 487.87 sq. m.
2. Block 261, SB 8, Area III
Lot No. 7 is titled in the name of Jaime Olmedo, consisting an area of 151.67 sq. m. A
four-door apartment owned by Mr. Olmedo is being rented to uncensused residents.
Lot No. 13 is allocated to Delfin Olmedo, nephew of Jaime Olmedo, but this lot is not
yet titled.
Victoria Olmedo, uncensused, is a daughter of Jaime Olmedo. Her structure is erected
on a non-titled lot. The adjacent lot is titled in the name of Victoria. It was issued OCT
No. 10217 with an area of 202.23 sq. m. Inside this compound is another structure
owned and occupied by Amelia Dofredo, a censused houseowner. The titled lot of
Victoria now has an area of 338.20 sq. m.
For your information.
(s/t) HERMOGENES C. FERNANDEZ
Inspector General
Public Assistance & Action Office
In addition, petitioner acted on the basis of two memoranda, 21 both dated November 29, 1983, of
then NHA General Manager Gaudencio Tobias recommending the filing of administrative charges
against the NHA officials "responsible for the alleged irregular consolidation of lots [in Tondo to Jaime
and Victoria Olmedo.]"
With regard to the other imputations made by petitioner against complainant, it must be noted that what
petitioner stated was that various charges (for attempted murder against petitioner, gambling, theft of
fighting cocks) had been filed by the residents against their barangay chairman but these had all been
dismissed. Petitioner was able to show that Olmedo's involvement in the theft of fighting cocks was the
subject of an affidavit-complaint, 22 dated October 19, 1983, signed by Fernando Rodriguez and Ben
Lareza, former barangay tanods of Barangay 66, Zone 6, Tondo. Likewise, petitioner presented a
resolution, 23 dated March 10, 1988, of the Office of the Special Prosecutor in TBP-87-03694, stating that
charges of malversation and corrupt practices had been filed against Olmedo and nine (9) other barangay
officials but the same were dismissed. Indeed, the prosecution's own evidence bears out petitioner's
statements. The prosecution presented the resolution 24in TBP Case No. 84-01854 dismissing the charge
of attempted murder filed by petitioner against Jaime Olmedo and his son-in-law, Jaime Reyes. The
allegation concerning this matter is thus true.
It was error for the trial court to hold that petitioner "only tried to prove that the complainant [barangay
chairman] is guilty of the crimes alluded to; accused, however, has not proven that the complainant
committed the crimes." For that is not what petitioner said as reported in the Ang Tinig ng Masa. The fact
that charges had been filed against the barangay official, not the truth of such charges, was the issue.
[1539]
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In denouncing the barangay chairman in this case, petitioner and the other residents of the Tondo
Foreshore Area were not only acting in their self-interest but engaging in the performance of a civic duty
to see to it that public duty is discharged faithfully and well by those on whom such duty is incumbent.
The recognition of this right and duty of every citizen in a democracy is inconsistent with any requirement
placing on him the burden of proving that he acted with good motives and for justifiable ends. cda
For that matter, even if the defamatory statement is false, no liability can attach if it relates to official
conduct, unless the public official concerned proves that the statement was made with actual malice
that is, with knowledge that it was false or with reckless disregard of whether it was false or not. This is
the gist of the ruling in the landmark case of New York Times v. Sullivan, 25 which this Court has cited with
approval in several of its own decisions. 26 This is the rule of "actual malice." In this case, the prosecution
failed to prove not only that the charges made by petitioner were false but also that petitioner made them
with knowledge of their falsity or with reckless disregard of whether they were false or not.
A rule placing on the accused the burden of showing the truth of allegations of official misconduct and/or
good motives and justifiable ends for making such allegations would not only be contrary to Art. 361 of
the Revised Penal Code. It would, above all, infringe on the constitutionally guaranteed freedom of
expression. Such a rule would deter citizens from performing their duties as members of a self-governing
community. Without free speech and assembly, discussions of our most abiding concerns as a nation
would be stifled. As Justice Brandeis has said, "public discussion is a political duty" and the "greatest
menace to freedom is an inert people." 27
Complainant contends that petitioner was actuated by vengeful political motive rather than by his firm
conviction that he and his fellow residents had been deprived of a property right because of acts
attributable to their barangay chairman. The Court of Appeals, sustaining complainant's contention, held:
That the said imputations were malicious may be inferred from the facts that appellant
and complainant are enemies, hence, accused was motivated by vengeance in uttering
said defamatory statements and that accused is a leader of Ciriaco Cabuhat who was
defeated by complainant when they ran for the position of barangay captain. . . . 28
As already stated, however, in accordance with Art. 361, if the defamatory matter either constitutes
a crime or concerns the performance of official duties, and the accused proves the truth of his charge,
he should be acquitted. 29
Instead of the claim that petitioner was politically motivated in making the charges against complainant,
it would appear that complainant filed this case to harass petitioner. Art. 360 of the Revised Penal Code
provides:
Persons responsible. Any person who shall publish, exhibit, or cause the publication
or exhibition of any defamation in writing or by similar means, shall be responsible for
the same.
The author or editor of a book or pamphlet, or the editor or business manager of a daily
newspaper, magazine or serial publication, shall be responsible for the defamations
contained therein to the same extent as if he were the author thereof. . . .
Yet, in this case, neither the reporter, editor, nor the publisher of the newspaper was charged in court.
What was said in an analogous case 30 may be applied mutatis mutandis to the case at bar:
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It is curious that the ones most obviously responsible for the publication of the allegedly
offensive news report, namely, the editorial staff and the periodical itself, were not at
all impleaded. The charge was leveled against the petitioner and, "curiouser" still, his
clients who have nothing to do with the editorial policies of the newspaper. There is
here a manifest effort to persecute and intimidate the petitioner for his temerity in
accusing the ASAC agents who apparently enjoyed special privileges and perhaps also
immunities during those oppressive times. The non-inclusion of the periodicals was
a transparent hypocrisy, an ostensibly pious if not at all convincing pretense of respect
for freedom of expression that was in fact one of the most desecrated liberties during
the past despotism. 31
WHEREFORE, the decision of the Court of Appeals is REVERSED and the petitioner is ACQUITTED of the
crime charged.
SO ORDERED. LLjur
||| (Vasquez v. Court of Appeals, G.R. No. 118971, [September 15, 1999], 373 PHIL 238-256)
TULFO VS. PEOPLE 565 SCRA 283 (2008)
ERWIN TULFO, petitioner, vs. PEOPLE OF THE PHILIPPINES and ATTY. CARLOS T.
SO, respondents.
[G.R. No. 161176. September 16, 2008.]
SUSAN CAMBRI, REY SALAO, JOCELYN BARLIZO, and PHILIP PICHAY, petitioners, vs.
COURT OF APPEALS, PEOPLE OF THE PHILIPPINES, and CARLOS SO, respondents.
DECISION
VELASCO, JR., J p:
The freedom of the press is one of the cherished hallmarks of our democracy; but even as we strive to
protect and respect the fourth estate, the freedom it enjoys must be balanced with responsibility. There
is a fine line between freedom of expression and libel, and it falls on the courts to determine whether or
not that line has been crossed. TAIEcS
The Facts
On the complaint of Atty. Carlos "Ding" So of the Bureau of Customs, four (4) separate informations were
filed on September 8, 1999 with the Regional Trial Court in (RTC) Pasay City. These were assigned to
Branch 112 and docketed as Criminal Case Nos. 99-1597 to 99-1600, and charged petitioners Erwin Tulfo,
as author/writer, Susan Cambri, as managing editor, Rey Salao, as national editor, Jocelyn Barlizo, as city
editor, and Philip Pichay, as president of the Carlo Publishing House, Inc., of the daily tabloid Remate, with
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the crime of libel in connection with the publication of the articles in the column "Direct Hit" in the issues
of May 11, 1999; May 12, 1999; May 19, 1999; and June 25, 1999. 1 The four informations read as follows:
Criminal Case No. 99-1598
That on or about the 11th day of May, 1999 in Pasay City, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring
and confederating together and mutually helping one another, being then the
columnist, publisher and managing editor, respectively of "REMATE", a tabloid
published daily and of general circulation in the Philippines, did then and there willfully,
unlawfully and feloniously and with malicious intent to discredit or dishonor
complainant, ATTY. CARLOS "DING" SO, and with the malicious intent of injuring and
exposing said complainant to public hatred, contempt and ridicule, write and publish in
the regular issue of said publication on May 11, 1999, its daily column "DIRECT HIT",
quoted hereunder, to wit:
PINAKAMAYAMAN SA CUSTOMS
Ito palang si Atty. Ding So ng Intelligence Division ng Bureau of Customs
and [sic] pinakamayaman na yata na government official sa buong bansa sa
pangungurakot lamang diyan sa South Harbor.
Hindi matibag ang gagong attorney dahil malakas daw ito sa Iglesia ni Kristo.
Hoy, So! . . nakakahiya ka sa mga INC, ikaw na yata ang pinakagago at
magnanakaw na miyembro nito.
Balita ko, malapit ka nang itiwalag ng nasabing simbahan dahil sa mga
kalokohan mo.
Abangan bukas ang mga raket ni So sa BOC.
WHEREIN said complainant was indicated as an extortionist, a corrupt public official,
smuggler and having illegally acquired wealth, all as already stated, with the object of
destroying his reputation, discrediting and ridiculing him before the bar of public
opinion. 2
That on or about the 12th day of May, 1999 in Pasay City, Metro Manila, Philippines and
the regular issue of said publication on May 12, 1999, in daily column "DIRECT HIT",
SI ATTY. SO NG BOC
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"LINTEK" din sa pangungurakot itong Ding So ng Bureau of Customs Intelligence

Unit sa South Harbor.
Daan-daang libong piso ang kinikita ng masiba at matakaw na si So sa mga
importer na ayaw ideklara ang totoong laman ng mga container para makaiwas
sa pagbayad ng malaking customs duties at taxes.
Si So ang nagpapadrino sa mga pag-inspection ng mga container na ito.
Siyempre-binibigyan din niya ng salapi yung ibang mga ahensiya para pumikit
na lang at itikom ang kanilang nga [sic] bibig diyan sa mga buwayang taga BOC.
Awang-awa ako sa ating gobyerno. Bankrupt na nga, ninanakawan pa ng mga
kawatan tulad ni So.
Ewan ko ba rito kay Atty. So, bakit hindi na lang tumayo ng sarili niyang robbery-
hold-up gang para kumita ng mas mabilis. TEDHaA
Hoy So.. hindi bagay sa iyo ang pagiging attorney . . . Mas bagay sa iyo ang
pagiging buwayang naka korbata at holdaper. Magnanakaw ka So!!"
opinion. 3
That on or about 19th day of May, 1999 in Pasay City, Metro Manila, Philippines and
the regular issue of said publication on May 19, 1999, in daily column "DIRECT HIT",
xxx xxx xxx
"Tulad ni Atty. Ding So ng Bureau of Customs Intelligence Division, saksakan din
ng lakas itong si Daniel Aquino ng Presidential Anti-Smuggling Unit na
nakatalaga sa South Harbor.
Tulad ni So, magnanakaw na tunay itong si Aquino.
Panghihingi ng pera sa mga brokers, ang lakad nito.
Pag hindi nagbigay ng pera ang mga brokers, maiipit ang pagre-release ng
kanilang kargamento."
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opinion. 4
That on or about 25th day of June, 1999 in Pasay City, Metro Manila, Philippines and
complainant, ATTY. CARLOS "DING" T. SO, and with the malicious intent of injuring and
the regular issue of said publication on June 25, 1999, its daily column "DIRECT HIT",
xxx xxx xxx
Nagfile ng P10 M na libel suit itong si Atty. Carlos So ng Bureau of Customs laban
sa inyong lingkod at ilang opisyales ng Remate sa Pasay City Court. Nagalit itong
tarantadong si Atty. So dahil binanatan ko siya at inexpose ang kagaguhan niya
sa BOC.
Hoy, So . . . dagdagan mo pa ang pagnanakaw mo dahil hindi kita tatantanan.
Buhay ka pa sinusunog na ang iyong kaluluwa sa impyerno.
opinion. 5
On November 3, 1999, Tulfo, Salao, and Cambri were arraigned, while Barlizo and Pichay were arraigned
on December 15, 1999. They all pleaded not guilty to the offenses charged.
At pre-trial, the following were admitted by petitioners: (1) that during the four dates of the publication
of the questioned articles, the complaining witness was not assigned at South Harbor; (2) that the accused
and complaining witness did not know each other during all the time material to the four dates of
publication; (3) thatRemate is a newspaper/tabloid of general circulation in the Philippines; (4) the
existence and genuineness of the Remate newspaper; (5) the column therein and its authorship and the
alleged libelous statement as well as the editorial post containing the designated positions of the other
accused; and (6) the prosecution's qualified admission that it is the duty of media persons to expose
corruption. 6 IHCSTE
The prosecution presented four witnesses, namely: Oscar M. Ablan, Atty. James Fortes, Jr., Gladys
Fontanilla, and complainant Atty. So. The prosecution presented documentary evidence as well.
Ablan testified that he had read the four columns written by Tulfo, and that the articles were untrue
because he had known Atty. So since 1992 and had worked with him in the Customs Intelligence and
Investigation Service Division of the Bureau of Customs. He further testified that upon reading the articles
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written by Tulfo, he concluded that they referred to Atty. So because the subject articles identified "Atty.
Carlos" as "Atty. 'Ding' So" of the Customs Intelligence and Investigation Service Division, Bureau of
Customs and there was only one Atty. Carlos "Ding" So of the Bureau of Customs. 7
Fontanilla, Records Officer I of the Bureau of Customs, testified that she issued a certification in
connection with these cases upon the request of Atty. So. 8 This certification stated that as per records
available in her office, there was only one employee by the name of "Atty. Carlos T. So" who was also
known as "Atty. Ding So" in the Intelligence Division of the Customs Intelligence and Investigation Service
or in the entire Bureau of Customs. 9
Atty. Fortes testified that he knew Atty. So as a fellow member of the Iglesia Ni Kristo and as a lawyer, and
that having read the articles of Tulfo, he believed that these were untrue, as he knew Atty. Carlos "Ding"
So. 10
Atty. So testified that he was the private complainant in these consolidated cases. He further testified that
he is also known as Atty. "Ding" So, that he had been connected with the Bureau of Customs since October
1981, and that he was assigned as Officer-in-Charge (OIC) of the Customs Intelligence and Investigation
Service Division at the Manila International Container Port since December 27, 1999. He executed two
complaint-affidavits, one dated June 4, 1999 and the other dated July 5, 1999, for Criminal Case Nos. 99-
1598 to 99-1600. Prior to this, he also filed 14 cases of libel against Raffy Tulfo, brother of petitioner Erwin
Tulfo. He testified that petitioner Tulfo's act of imputing upon him criminality, assailing his honesty and
integrity, caused him dishonor, discredit, and contempt among his co-members in the legal profession,
co-officers of the Armed Forces of the Philippines, co-members and peers in the Iglesia ni Kristo, his co-
officers and employees and superior officers in the Bureau of Customs, and among ordinary persons who
had read said articles. He said it also caused him and his family sleepless nights, mental anguish, wounded
feelings, intrigues, and embarrassment. He further testified that he included in his complaint for libel the
officers of Remate such as the publisher, managing editor, city editor, and national editor because under
Article 360 of the Revised Penal Code (RPC), they are equally responsible and liable to the same extent as
if they were the author of the articles. He also testified that "Ding" is his nickname and that he is the only
person in the entire Bureau of Customs who goes by the name of Atty. Carlos T. So or Atty. Carlos "Ding"
So. 11
In his defense, petitioner Tulfo testified that he did not write the subject articles with malice, that he
neither knew Atty. So nor met him before the publication of the articles. He testified that his criticism of
a certain Atty. So of the South Harbor was not directed against the complainant, but against a person by
the name of Atty. "Ding" So at the South Harbor. Tulfo claimed that it was the practice of certain people
to use other people's names to advance their corrupt practices. He also claimed that his articles had
neither discredited nor dishonored the complainant because as per his source in the Bureau of Customs,
Atty. So had been promoted. He further testified that he did not do any research on Atty. So before the
subject articles, because as a columnist, he had to rely on his source, and that he had several sources in
the Bureau of Customs, particularly in the South Harbor. 12
Petitioner Salao testified that he came to know Atty. Carlos "Ding" So when the latter filed a case against
them. He testified that he is an employee of Carlo Publishing House, Inc.; that he was designated as the
national editor of the newspaper Remate since December 1999; that the duties of the position are to edit,
evaluate, encode, and supervise layout of the news from the provinces; and that Tulfo was under the
supervision of Rey Briones, Vice President for Editorial and Head of the Editorial Division. Salao further
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testified that he had no participation in the subject articles of Tulfo, nor had he anything to do with the
latter's column. 13
Petitioner Cambri, managing editor of Remate, testified that she classifies the news articles written by the
reporters, and that in the Editorial Division, the officers are herself; Briones, her supervisor; Lydia Bueno,
as news and city editor; and Salao as national editor. She testified that petitioner Barlizo is her
subordinate, whose duties and responsibilities are the typesetting, editing, and layout of the page
assigned to her, the Metro page. She further testified that she had no participation in the writing, editing,
or publication of the column of Tulfo because the column was not edited. She claimed that none among
her co-accused from the Remate newspaper edited the columns of Tulfo, that the publication and editing
of the subject articles were the responsibility of Tulfo, and that he was given blanket authority to write
what he wanted to write. She also testified that the page wherein Tulfo's column appeared was supervised
by Bueno as news editor. 14 cSEDTC
Petitioner Pichay testified that he had been the president of Carlo Publishing House, Inc. since December
1998. He testified that the company practice was to have the columnists report directly to the vice-
president of editorials, that the columnists were given autonomy on their columns, and that the vice-
president for editorials is the one who would decide what articles are to be published and what are not.
He further testified that Tulfo was already a regular contributor. 15
The Ruling of the RTC
In a Decision dated November 17, 2000, the RTC found petitioners guilty of the crime of Libel. The
dispositive portion reads as follows:
WHEREFORE, the Court finds the accused ERWIN TULFO, SUSAN CAMBRI, REY SALAO,
JOCELYN BARLIZO and PHILIP PICHAY guilty beyond reasonable doubt of four (4) counts
of the crime of LIBEL, as defined in Article 353 of the Revised Penal Code, and penalized
by prision correccional in its minimum and medium periods, or a fine ranging from
P200.00 Pesos to P6,000.00 Pesos or both, under Article 355 of the same Code.
Applying the Indeterminate Sentence Law, the Court hereby sentences EACH of the
accused to suffer imprisonment of SIX (6) MONTHS of arresto mayor, as minimum, to
FOUR (4) YEARS and TWO (2) MONTHS of prision correccional, as maximum, for EACH
count with accessory penalties provided by law.
Considering that the accused Erwin Tulfo, Susan Cambri, Rey Salao, Jocelyn Barlizo and
Philip Pichay wrote and published the four (4) defamatory articles with reckless
disregard, being, in the mind of the Court, of whether it was false or not, the said articles
libelous per se, they are hereby ordered to pay, jointly and severally, the sum of EIGHT
HUNDRED THOUSAND (P800,000.00) PESOS, as actual damages, the sum of ONE
MILLION PESOS (P1,000,000.00), as moral damages, and an additional amount of FIVE
HUNDRED THOUSAND PESOS (P500,000.00), by way of exemplary damages, all with
subsidiary imprisonment, in case of insolvency, and to pay the costs.
SO ORDERED. 16
The Ruling of the Court of Appeals
Before the Court of Appeals (CA), Tulfo assigned the following errors:
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1. THE LOWER COURT ERRED IN IGNORING THE UNREBUTTED TESTIMONY OF THE

APPELLANT THAT HE DID NOT CRITICIZE THE PRIVATE COMPLAINANT WORKING
AT THE NAIA. HE CRITICIZED ANOTHER PERSON WORKING AT THE SOUTH
HARBOR. HENCE, THE ELEMENT OF IDENTITY IS LACKING.
2. THE LOWER COURT ERRED IN IGNORING THE LACK OF THE ESSENTIAL ELEMENT OF
DISCREDIT OR DISHONOR, AS DEFINED BY JURISPRUDENCE.
3. THERE WAS NO MALICE AGAINST THE PRIVATE COMPLAINANT ATTY. CARLOS "DING"
SO. 17
His co-accused assigned the following errors:
A
The trial court seriously erred in holding accused Susan Cambri, Rey Salao, Jocelyn
Barlizo and Philip Pichay liable for the defamations contained in the questioned articles
despite the fact that the trial court did not have any finding as to their participation in
the writing, editing and/or publication of the questioned articles.
B
The trial court seriously erred in concluding that libel was committed by all of the
accused on the basis of its finding that the elements of libel have been satisfactorily
established by evidence on record.
C
The trial court seriously erred in considering complainant to be the one referred to by
Erwin Tulfo in his articles in question. 18
In a Decision 19 dated June 17, 2003, the Eighth Division of the CA dismissed the appeal and affirmed the
judgment of the trial court. A motion for reconsideration dated June 30, 2003 was filed by Tulfo, while the
rest of his co-accused filed a motion for reconsideration dated July 2, 2003. In a Resolution dated
December 11, 2003, both motions were denied for lack of merit. 20 AHECcT
Petitions for Review on Certiorari under Rule 45
Tulfo brought this petition docketed as G.R. No. 161032, seeking to reverse the Decision of the CA in CA-
G.R. CR No. 25318 which affirmed the decision of the RTC. Petitioners Cambri, Salao, Barlizo, and Pichay
brought a similar petition docketed as G.R. No. 161176, seeking the nullification of the same CA decision.
In a Resolution dated March 15, 2004, the two cases were consolidated since both cases arise from the
same set of facts, involve the same parties, assail the same decision of the CA, and seek identical reliefs. 21
Assignment of Errors
Petitioner Tulfo submitted the following assignment of errors:
I
Assuming that the Prosecution presented credible and relevant evidence, the
Honorable CA erred in not declaring the assailed articles as privileged; the CA erred in
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concluding that malice in law exists by the court's having incorrectly reasoned out that
malice was presumed in the instant case.
II
Even assuming arguendo that the articles complained of are not privileged, the lower
court, nonetheless, committed gross error as defined by the provisions of Section 6 of
Rule 45 by its misappreciation of the evidence presented on matters substantial and
material to the guilt or innocence of the petitioner. 22
Petitioners Cambri, Salao, Barlizo, and Pichay submitted their own assignment of errors, as follows:
A The Court of Appeals Seriously Erred In Its Application of Article 360 Of The Revised
Penal Code By Holding Cambri, Salao And Barlizo Liable For The Defamatory Articles In
The May 11, 12, 19 And June 25, 1999 Issues Of Remate Simply Because They Were
Managing Editor, National Editor And City Editor Respectively Of Remate And By
Holding Pichay Also Liable For Libel Merely Because He Was The President Of Carlo
Publishing House, Inc. Without Taking Into Account The Unrebutted Evidence That
Petitioners Had No Participation In The Editing Or Publication Of The Defamatory
Articles In Question.
B The Court Of Appeals Committed Grave Abuse Of Discretion In Manifestly

Disregarding The Unrebutted Evidence That Petitioners Had No Participation In The
Editing Or Publication Of The Defamatory Articles In Question.
C The Court Of Appeals Seriously Misappreciated The Evidence In Holding That The
Person Referred To In The Published Articles Was Private Complainant Atty. Carlos
So. 23
Our Ruling
The petitions must be dismissed.
The assignment of errors of petitioner Tulfo shall be discussed first.
In his appeal, Tulfo claims that the CA erred in not applying the ruling in Borjal v. Court of Appeals. 24 In
essence, he argues that the subject articles fall under "qualifiedly privileged communication"
under Borjal and that the presumption of malice in Art. 354 of the RPC does not apply. He argues that it
is the burden of the prosecution to prove malice in fact.
This case must be distinguished from Borjal on several points, the first being that Borjal stemmed from a
civil action for damages based on libel, and was not a criminal case. Second, the ruling in Borjal was that
there was no sufficient identification of the complainant, which shall be differentiated from the present
case in discussing the second assignment of error of Tulfo. Third, the subject in Borjal was a private citizen,
whereas in the present case, the subject is a public official. Finally, it was held inBorjal that the articles
written by Art Borjal were "fair commentaries on matters of public interest". 25 It shall be discussed and
has yet to be determined whether or not the articles fall under the category of "fair commentaries".
In passing, it must be noted that the defense of Tulfo's articles being qualifiedly privileged communication
is raised for the first time in the present petition, and this particular issue was never brought before either
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the RTC or the CA. Thus, neither the RTC nor the CA had a chance to properly consider and evaluate this
defense. Tulfo now draws parallels between his case and that of Art Borjal, and argues that the
prosecution should have proved malice in fact, and it was error on the part of the trial and appellate courts
to use the presumption of malice in law in Art. 354 of the RPC. This lays an unusual burden on the part of
the prosecution, the RTC, and the CA to refute a defense that Tulfo had never raised before them.
Whether or not the subject articles are privileged communications must first be established by the
defense, which it failed to do at the level of the RTC and the CA. Even so, it shall be dealt with now,
considering that an appeal in a criminal proceeding throws the whole case open for review. ITSacC
There is no question of the status of Atty. So as a public official, who served as the OIC of the Bureau of
Customs Intelligence and Investigation Service at the Ninoy Aquino International Airport (NAIA) at the
time of the printing of the allegedly libelous articles. Likewise, it cannot be refuted that the goings-on at
the Bureau of Customs, a government agency, are matters of public interest. It is now a matter of
establishing whether the articles of Tulfo are protected as qualified privileged communication or are
defamatory and written with malice, for which he would be liable.
Freedom of the Press v. Responsibility of the Press
The Court has long respected the freedom of the press, and upheld the same when it came to
commentaries made on public figures and matters of public interest. Even in cases wherein the freedom
of the press was given greater weight over the rights of individuals, the Court, however, has stressed that
such freedom is not absolute and unbounded. The exercise of this right or any right enshrined in the Bill
of Rights, indeed, comes with an equal burden of responsible exercise of that right. The recognition of a
right is not free license for the one claiming it to run roughshod over the rights of others.
The Journalist's Code of Ethics adopted by the National Union of Journalists of the Philippines shows that
the press recognizes that it has standards to follow in the exercise of press freedom; that this freedom
carries duties and responsibilities. Art. I of said code states that journalists "recognize the duty to air the
other side and the duty to correct substantive errors promptly". Art. VIII states that journalists "shall
presume persons accused of crime of being innocent until proven otherwise".
In the present case, it cannot be said that Tulfo followed the Journalist's Code of Ethics and exercised his
journalistic freedom responsibly.
In his series of articles, he targeted one Atty. "Ding" So of the Bureau of Customs as being involved in
criminal activities, and was using his public position for personal gain. He went even further than that, and
called Atty. So an embarrassment to his religion, saying "ikaw na yata ang pinakagago at magnanakaw
sa miyembro nito". 26He accused Atty. So of stealing from the government with his alleged corrupt
activities. 27 And when Atty. So filed a libel suit against him, Tulfo wrote another article, challenging Atty.
So, saying, "Nagalit itong tarantadong si Atty. So dahil binabantayan ko siya at in-expose ang kagaguhan
niya sa [Bureau of Customs]." 28
In his testimony, Tulfo admitted that he did not personally know Atty. So, and had neither met nor known
him prior to the publication of the subject articles. He also admitted that he did not conduct a more in-
depth research of his allegations before he published them, and relied only on his source at the Bureau of
Customs.
In his defense before the trial court, Tulfo claimed knowledge of people using the names of others for
personal gain, and even stated that he had been the victim of such a practice. He argued then that it may
have been someone else using the name of Atty. So for corrupt practices at the South Harbor, and this
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person was the target of his articles. This argument weakens his case further, for even with the knowledge
that he may be in error, even knowing of the possibility that someone else may have used Atty. So's name,
as Tulfo surmised, he made no effort to verify the information given by his source or even to ascertain the
identity of the person he was accusing.
The trial court found Tulfo's accusations against Atty. So to be false, but Tulfo argues that the falsity of
contents of articles does not affect their privileged character. It may be that the falsity of the articles does
not prove malice. Neither did Borjal give journalists carte blanche with regard to their publications. It
cannot be said that a false article accusing a public figure would always be covered by the mantle of
qualified privileged communication. The portion of Borjal cited by Tulfo must be scrutinized further:
Even assuming that the contents of the articles are false, mere error, inaccuracy or even
falsity alone does not prove actual malice. Errors or misstatements are inevitable in any
scheme of truly free expression and debate. Consistent with good faith and reasonable
care, the press should not be held to account, to a point of suppression, for honest
mistakes or imperfections in the choice of language. There must be some room for
misstatement of fact as well as for misjudgment. Only by giving them much leeway and
tolerance can they courageously and effectively function as critical agencies in our
democracy. In Bulletin Publishing Corp. v. Noel we held
A newspaper especially one national in reach and coverage, should be free to
report on events and developments in which the public has a legitimate interest
with minimum fear of being hauled to court by one group or another on
criminal or civil charges for libel, so long as the newspaper respects and keeps
within the standards of morality and civility prevailing within the general
community.
To avoid the self-censorship that would necessarily accompany strict liability for
erroneous statements, rules governing liability for injury to reputation are required to
allow an adequate margin of error by protecting some inaccuracies. It is for the same
reason that the New York Times doctrine requires that liability for defamation of a
public official or public figure may not be imposed in the absence of proof of "actual
malice" on the part of the person making the libelous statement. 29 (Emphasis
supplied.) TADaCH
Reading more deeply into the case, the exercise of press freedom must be done "consistent with good
faith and reasonable care". This was clearly abandoned by Tulfo when he wrote the subject articles. This
is no case of mere error or honest mistake, but a case of a journalist abdicating his responsibility to verify
his story and instead misinforming the public. Journalists may be allowed an adequate margin of error in
the exercise of their profession, but this margin does not expand to cover every defamatory or injurious
statement they may make in the furtherance of their profession, nor does this margin cover total
abandonment of responsibility.
Borjal may have expanded the protection of qualified privileged communication beyond the instances
given in Art. 354 of the RPC, but this expansion does not cover Tulfo. The addition to the instances of
qualified privileged communications is reproduced as follows:
To reiterate, fair commentaries on matters of public interest are privileged and
constitute a valid defense in an action for libel or slander. The doctrine of fair comment
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means that while in general every discreditable imputation publicly made is deemed
false, because every man is presumed innocent until his guilt is judicially proved, and
every false imputation is deemed malicious, nevertheless, when the discreditable
imputation is directed against a public person in his public capacity, it is not necessarily
actionable. In order that such discreditable imputation to a public official may be
actionable, it must either be a false allegation of fact or a comment based on a false
supposition. If the comment is an expression of opinion, based on established facts,
then it is immaterial that the opinion happens to be mistaken, as long as it might
reasonably be inferred from the facts. 30 (Emphasis supplied.)
The expansion speaks of "fair commentaries on matters of public interest". While Borjal places fair
commentaries within the scope of qualified privileged communication, the mere fact that the subject of
the article is a public figure or a matter of public interest does not automatically exclude the author from
liability.Borjal allows that for a discreditable imputation to a public official to be actionable, it must be a
false allegation of fact or a comment based on a false supposition. As previously mentioned, the trial court
found that the allegations against Atty. So were false and that Tulfo did not exert effort to verify the
information before publishing his articles.
Tulfo offered no proof for his accusations. He claimed to have a source in the Bureau of Customs and
relied only on this source for his columns, but did no further research on his story. The records of the case
are bereft of any showing that Atty. So was indeed the villain Tulfo pictured him to be. Tulfo's articles
related no specific details or acts committed to prove Atty. So was indeed a corrupt public official. These
columns were unsubstantiated attacks on Atty. So, and cannot be countenanced as being privileged simply
because the target was a public official. Although wider latitude is given to defamatory utterances against
public officials in connection with or relevant to their performance of official duties, or against public
officials in relation to matters of public interest involving them, such defamatory utterances do not
automatically fall within the ambit of constitutionally protected speech. 31 Journalists still bear the
burden of writing responsibly when practicing their profession, even when writing about public figures or
matters of public interest. As held in In Re: Emil P. Jurado:
Surely it cannot be postulated that the law protects a journalist who deliberately prints
lies or distorts the truth; or that a newsman may ecape liability who publishes
derogatory or defamatory allegations against a person or entity, but recognizes no
obligation bona fide to establish beforehand the factual basis of such imputations and
refuses to submit proof thereof when challenged to do so. It outrages all notions of fair
play and due process, and reduces to uselessness all the injunctions of the Journalists'
Code of Ethics to allow a newsman, with all the potential of his profession to influence
popular belief and shape public opinion, to make shameful and offensive charges
destructive of personal or institutional honor and repute, and when called upon to
justify the same, cavalierly beg off by claiming that to do so would compromise his
sources and demanding acceptance of his word for the reliability of those sources. 32
The prosecution showed that Tulfo could present no proof of his allegations against Atty. So, only citing
his one unnamed source. It is not demanded of him that he name his source. The confidentiality of sources
and their importance to journalists are accepted and respected. What cannot be accepted are journalists
making no efforts to verify the information given by a source, and using that unverified information to
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throw wild accusations and besmirch the name of possibly an innocent person. Journalists have a
responsibility to report the truth, and in doing so must at least investigate their stories before publication,
and be able to back up their stories with proof. The rumors and gossips spread by unnamed sources are
not truth. Journalists are not storytellers or novelists who may just spin tales out of fevered imaginings,
and pass them off as reality. There must be some foundation to their reports; these reports must be
warranted by facts. HEScID
Jurado also established that the journalist should exercise some degree of care even when writing about
public officials. The case stated:
Clearly, the public interest involved in freedom of speech and the individual interest of
judges (and for that matter, all other public officials) in the maintenance of private
honor and reputation need to be accommodated one to the other. And the point of
adjustment or accommodation between these two legitimate interests is precisely
found in the norm which requires those who, invoking freedom of speech, publish
statements which are clearly defamatory to identifiable judges or other public officials
to exercise bona fide care in ascertaining the truth of the statements they publish. The
norm does not require that a journalist guarantee the truth of what he says or
publishes. But the norm does prohibit the reckless disregard of private reputation by
publishing or circulating defamatory statements without anybona fide effort to
ascertain the truth thereof. That this norm represents the generally accepted point of
balance or adjustment between the two interests involved is clear from a consideration
of both the pertinent civil law norms and the Code of Ethics adopted by the journalism
profession in the Philippines. 33
Tulfo has clearly failed in this regard. His articles cannot even be considered as qualified privileged
communication under the second paragraph of Art. 354 of the RPC which exempts from the presumption
of malice "a fair and true report, made in good faith, without any comments or remarks, of any judicial,
legislative, or other official proceedings which are not of confidential nature, or any statement, report, or
speech delivered in said proceedings, or of any other act performed by public officers in the exercise of
their functions." This particular provision has several elements which must be present in order for the
report to be exempt from the presumption of malice. The provision can be dissected as follows:
In order that the publication of a report of an official proceeding may be considered
privileged, the following conditions must exist:
(a) That it is a fair and true report of a judicial, legislative, or other
official proceedings which are not of confidential nature, or of
a statement, report orspeech delivered in said proceedings, or of any
other act performed by a public officer in the exercise of his
functions; cHAIES
(b) That it is made in good faith; and
(c) That it is without any comments or remarks. 34
The articles clearly are not the fair and true reports contemplated by the provision. They provide no details
of the acts committed by the subject, Atty. So. They are plain and simple baseless accusations, backed up
by the word of one unnamed source. Good faith is lacking, as Tulfo failed to substantiate or even attempt
to verify his story before publication. Tulfo goes even further to attack the character of the subject, Atty.
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So, even calling him a disgrace to his religion and the legal profession. As none of the elements of the
second paragraph of Art. 354 of the RPC is present in Tulfo's articles, it cannot thus be argued that they
are qualified privileged communications under the RPC.
Breaking down the provision further, looking at the terms "fair" and "true", Tulfo's articles do not meet
the standard. "Fair" is defined as "having the qualities of impartiality and honesty". 35 "True" is defined
as "conformable to fact; correct; exact; actual; genuine; honest." 36 Tulfo failed to satisfy these
requirements, as he did not do research before making his allegations, and it has been shown that these
allegations were baseless. The articles are not "fair and true reports", but merely wild accusations.
Even assuming arguendo that the subject articles are covered by the shield of qualified privileged
communication, this would still not protect Tulfo.
In claiming that his articles were covered by qualified privileged communication, Tulfo argues that the
presumption of malice in law under Art. 354 of the RPC is no longer present, placing upon the prosecution
the burden of proving malice in fact. He then argues that for him to be liable, there should have been
evidence that he was motivated by ill will or spite in writing the subject articles.
The test to be followed is that laid down in New York Times Co. v. Sullivan, 37 and reiterated in Flor v.
People, which should be to determine whether the defamatory statement was made with actual malice,
that is, with knowledge that it was false or with reckless disregard of whether it was false or not. 38
The trial court found that Tulfo had in fact written and published the subject articles with reckless
disregard of whether the same were false or not, as proven by the prosecution. There was the finding that
Tulfo failed to verify the information on which he based his writings, and that the defense presented no
evidence to show that the accusations against Atty. So were true. Tulfo cannot argue that because he did
not know the subject, Atty. So, personally, there was no malice attendant in his articles. The test laid down
is the "reckless disregard" test, and Tulfo has failed to meet that test.
The fact that Tulfo published another article lambasting respondent Atty. So can be considered as further
evidence of malice, as held in U.S. vs. Montalvo, 39 wherein publication after the commencement of an
action was taken as further evidence of a malicious design to injure the victim. Tulfo did not relent nor did
he pause to consider his actions, but went on to continue defaming respondent Atty. So. This is a clear
indication of his intent to malign Atty. So, no matter the cost, and is proof of malice.
Leaving the discussion of qualified privileged communication, Tulfo also argues that the lower court
misappreciated the evidence presented as to the identity of the complainant: that Tulfo wrote about Atty.
"Ding" So, an official of the Bureau of Customs who worked at the South Harbor, whereas the complainant
was Atty. Carlos So who worked at the NAIA. He claims that there has arisen a cloud of doubt as to the
identity of the real party referred to in the articles.
This argument is patently without merit.
The prosecution was able to present the testimonies of two other witnesses who identified Atty. So from
Tulfo's articles. There is the certification that there is only one Atty. So in the Bureau of Customs. And
most damning to Tulfo's case is the last column he wrote on the matter, referring to the libel suit against
him by Atty. So of the Bureau of Customs. In this article, Tulfo launched further attacks against Atty. So,
stating that the libel case was due to the exposs Tulfo had written on the corrupt acts committed by Atty.
So in the Bureau of Customs. This last article is an admission on the part of Tulfo that Atty. So was in fact
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the target of his attacks. He cannot now point to a putative "Atty. Ding So" at South Harbor, or someone
else using the name of Atty. So as the real subject of his attacks, when he did not investigate the existence
or non-existence of an Atty. So at South Harbor, nor investigate the alleged corrupt acts of Atty. So of the
Bureau of Customs. Tulfo cannot say that there is doubt as to the identity of the Atty. So referred to in his
articles, when all the evidence points to one Atty. So, the complainant in the present case.
Having discussed the issue of qualified privileged communication and the matter of the identity of the
person referred to in the subject articles, there remains the petition of the editors and president
of Remate, the paper on which the subject articles appeared.
In sum, petitioners Cambri, Salao, Barlizo, and Pichay all claim that they had no participation in the editing
or writing of the subject articles, and are thus not liable.
The argument must fail.
The language of Art. 360 of the RPC is plain. It lists the persons responsible for libel:
Art. 360. Persons responsible. Any person who shall publish, exhibit, or cause the
publication or exhibition of any defamation in writing or by similar means, shall be
responsible for the same.
The author or editor of a book or pamphlet, or the editor or business manager of a daily
newspaper, magazine or serial publication, shall be responsible for the defamations
contained therein to the same extent as if he were the author thereof.
The claim that they had no participation does not shield them from liability. The provision in the RPC does
not provide absence of participation as a defense, but rather plainly and specifically states the
responsibility of those involved in publishing newspapers and other periodicals. It is not a matter of
whether or not they conspired in preparing and publishing the subject articles, because the law simply so
states that they are liable as they were the author.
Neither the publisher nor the editors can disclaim liability for libelous articles that appear on their paper
by simply saying they had no participation in the preparation of the same. They cannot say that Tulfo was
all alone in the publication of Remate, on which the subject articles appeared, when they themselves
clearly hold positions of authority in the newspaper, or in the case of Pichay, as the president in the
publishing company.
As Tulfo cannot simply say that he is not liable because he did not fulfill his responsibility as a journalist,
the other petitioners cannot simply say that they are not liable because they did not fulfill their
responsibilities as editors and publishers. An editor or manager of a newspaper, who has active charge
and control of its management, conduct, and policy, generally is held to be equally liable with the owner
for the publication therein of a libelous article. 40 On the theory that it is the duty of the editor or manager
to know and control the contents of the paper, 41 it is held that said person cannot evade responsibility
by abandoning the duties to employees, 42 so that it is immaterial whether or not the editor or manager
knew the contents of the publication. 43 In Fermin v. People of the Philippines, 44 the Court held that the
publisher could not escape liability by claiming lack of participation in the preparation and publication of
a libelous article. The Court cited U.S. v. Ocampo, stating the rationale for holding the persons
enumerated in Art. 360 of the RPC criminally liable, and it is worth reiterating: IDCHTE
According to the legal doctrines and jurisprudence of the United States, the printer of
a publication containing libelous matter is liable for the same by reason of his direct
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connection therewith and his cognizance of the contents thereof. With regard to a
publication in which a libel is printed, not only is the publisher but also all other persons
who in any way participate in or have any connection with its publication are liable as
publishers.
xxx xxx xxx
In the case of State vs. Mason (26 L.R.A., 779; 26 Oreg., 273, 46 Am. St. Rep., 629), the
question of the responsibility of the manager or proprietor of a newspaper was
discussed. The court said, among other things (pp. 782, 783):
"The question then recurs as to whether the manager or proprietor of a newspaper can
escape criminal responsibility solely on the ground that the libelous article was
published without his knowledge or consent. When a libel is published in a newspaper,
such fact alone is sufficient evidence prima facie to charge the manager or proprietor
with the guilt of its publication.
"The manager and proprietor of a newspaper, we think ought to be held prima facie
criminally for whatever appears in his paper; and it should be no defense that the
publication was made without his knowledge or consent, . . . .
"One who furnishes the means for carrying on the publication of a newspaper and
entrusts its management to servants or employees whom he selects and controls may
be said to cause to be published what actually appears, and should be held responsible
therefore, whether he was individually concerned in the publication or not, . . . .
Criminal responsibility for the acts of an agent or servant in the course of his
employment necessarily implies some degree of guilt or delinquency on the part of the
publisher; . . . .
"We think, therefore, the mere fact that the libelous article was published in the
newspaper without the knowledge or consent of its proprietor or manager is no
defense to a criminal prosecution against such proprietor or manager." CaTcSA
In the case of Commonwealth vs. Morgan (107 Mass., 197), this same question was
considered and the court held that in the criminal prosecution of a publisher of a
newspaper in which a libel appears, he is prima facie presumed to have published the
libel, and that the exclusion of an offer by the defendant to prove that he never saw the
libel and was not aware of its publication until it was pointed out to him and that an
apology and retraction were afterwards published in the same paper, gave him no
ground for exception. In this same case, Mr. Justice Colt, speaking for the court, said:
"It is the duty of the proprietor of a public paper, which may be used for the publication
of improper communications, to use reasonable caution in the conduct of his business
that no libels be published." (Wharton's Criminal Law, secs. 1627, 1649; 1 Bishop's
Criminal Law, secs. 219, 221; People vs. Wilson, 64 Ill., 195; Commonwealth vs.
Damon, 136 Mass., 441.)
The above doctrine is also the doctrine established by the English courts. In the case
of Rex vs. Walter (3 Esp., 21) Lord Kenyon said that he was "clearly of the opinion that
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the proprietor of a newspaper was answerable criminally as well as civilly for the acts
of his servants or agents for misconduct in the management of the paper."
This was also the opinion of Lord Hale, Mr. Justice Powell, and Mr. Justice Foster.
Lofft, an English author, in his work on Libel and Slander, said:
"An information for libel will lie against the publisher of a papers, although he did not
know of its being put into the paper and stopped the sale as soon as he discovered it."
In the case of People vs. Clay (86 Ill., 147) the court held that
"A person who makes a defamatory statement to the agent of a newspaper for
publication, is liable both civilly and criminally, and his liability is shared by the agent
and all others who aid in publishing it." 45
Under Art. 360 of the RPC, as Tulfo, the author of the subject articles, has been found guilty of libel, so
too must Cambri, Salao, Barlizo, and Pichay.
Though we find petitioners guilty of the crime charged, the punishment must still be tempered with
justice. Petitioners are to be punished for libel for the first time. They did not apply for probation to avoid
service of sentence possibly in the belief that they have not committed any crime. In Buatis, Jr. v.
People, 46 the Court, in a criminal case for libel, removed the penalty of imprisonment and instead
imposed a fine as penalty. In Sazon v. Court of Appeals, 47 the accused was merely fined in lieu of the
original penalty of imprisonment and fine. Freedom of expression as well as freedom of the press may not
be unrestrained, but neither must it be reined in too harshly. In light of this, considering the necessity of
a free press balanced with the necessity of a responsible press, the penalty of a fine of PhP 6,000 for each
count of libel, with subsidiary imprisonment in case of insolvency, should suffice. 48 Lastly, the
responsibilities of the members of the press notwithstanding, the difficulties and hazards they encounter
in their line of work must also be taken into consideration.
The award of damages by the lower court must be modified. Art. 2199 of the Civil Code provides, "Except
as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary
loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory
damages." There was no showing of any pecuniary loss suffered by the complainant Atty. So. Without
proof of actual loss that can be measured, the award of actual damages cannot stand.
In Del Mundo v. Court of Appeals, it was held, as regards actual and moral damages:
A party is entitled to an adequate compensation for such pecuniary loss actually
suffered by him as he has duly proved. Such damages, to be recoverable, must not only
be capable of proof, but must actually be proved with a reasonable degree of certainty.
We have emphasized that these damages cannot be presumed, and courts, in making
an award must point out specific facts which could afford a basis for measuring
whatever compensatory or actual damages are borne.
Moral damages, upon the other hand, may be awarded to compensate one for manifold
injuries such as physical suffering, mental anguish, serious anxiety, besmirched
reputation, wounded feelings and social humiliation. These damages must be
understood to be in the concept of grants, not punitive or corrective in nature,
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BOLD BUT FAITHFUL
calculated to compensate the claimant for the injury suffered. Although incapable of
exactness and no proof of pecuniary loss is necessary in order that moral damages may
be awarded, the amount of indemnity being left to the sound discretion of the court, it
is imperative, nevertheless, that (1) injury must have been suffered by the claimant,
and (2) such injury must have sprung from any of the cases expressed in Article 2219
and Article 2220 of the Civil Code. A causal relation, in fine, must exist between the act
or omission referred to in the Code which underlies, or gives rise to, the case or
proceeding on the one hand, and the resulting injury, on the other hand; i.e. the first
must be the proximate cause and the latter the direct consequence thereof. 49 HIaTDS
It was the articles of Tulfo that caused injury to Atty. So, and for that Atty. So deserves the award of moral
damages. Justification for the award of moral damages is found in Art. 2219 (7) of the Civil Code, which
states that moral damages may be recovered in cases of libel, slander, or any other form of defamation.
As the cases involved are criminal cases of libel, they fall squarely within the ambit of Art. 2219 (7).
Moral damages can be awarded even in the absence of actual or compensatory damages. The fact that
no actual or compensatory damage was proven before the trial court does not adversely affect the
offended party's right to recover moral damages. 50
And while on the subject of moral damages, it may not be amiss to state at this juncture that Tulfo's
libelous articles are abhorrent not only because of its vilifying and demeaning effect on Atty. So himself,
but also because of their impact on members of his family, especially on the children and possibly even
the children's children.
The Court can perhaps take judicial notice that the sense of kinship runs deeply in a typical Filipino family,
such that the whole family usually suffers or rejoices at the misfortune or good fortune, as the case may
be, of any of its member. Accordingly, any attempt to dishonor or besmirch the name and reputation of
the head of the family, as here, invariably puts the other members in a state of disrepute, distress, or
anxiety. This reality adds an imperative dimension to the award of moral damages to the defamed party.
The award of exemplary damages, however, cannot be justified. Under Art. 2230 of the Civil Code, "In
criminal offenses, exemplary damages as a part of the civil liability may be imposed when the crime was
committed with one or more aggravating circumstances. Such damages are separate and distinct from
fines and shall be paid to the offended party." No aggravating circumstances accompanied the
commission of the libelous acts; thus, no exemplary damages can be awarded.
Conclusion
The press wields enormous power. Through its widespread reach and the information it imparts, it can
mold and shape thoughts and opinions of the people. It can turn the tide of public opinion for or against
someone, it can build up heroes or create villains.
It is in the interest of society to have a free press, to have liberal discussion and dissemination of ideas,
and to encourage people to engage in healthy debate. It is through this that society can progress and
develop.
Those who would publish under the aegis of freedom of the press must also acknowledge the corollary
duty to publish responsibly. To show that they have exercised their freedom responsibly, they must go
beyond merely relying on unfounded rumors or shadowy anonymous sources. There must be further
investigation conducted, some shred of proof found to support allegations of misconduct or even criminal
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activity. It is in fact too easy for journalists to destroy the reputation and honor of public officials, if they
are not required to make the slightest effort to verify their accusations. Journalists are supposed to be
reporters of facts, not fiction, and must be able to back up their stories with solid research. The power of
the press and the corresponding duty to exercise that power judiciously cannot be understated.
But even with the need for a free press, the necessity that it be free does not mean that it be totally
unfettered. It is still acknowledged that the freedom can be abused, and for the abuse of the freedom,
there must be a corresponding sanction. It falls on the press to wield such enormous power responsibly.
It may be a clich that the pen is mightier than the sword, but in this particular case, the lesson to be
learned is that such a mighty weapon should not be wielded recklessly or thoughtlessly, but always guided
by conscience and careful thought.
A robust and independently free press is doubtless one of the most effective checks on government power
and abuses. Hence, it behooves government functionaries to respect the value of openness and refrain
from concealing from media corruption and other anomalous practices occurring within their backyard.
On the other hand, public officials also deserve respect and protection against false innuendoes and
unfounded accusation of official wrongdoing from an abusive press. As it were, the law and jurisprudence
on libel heavily tilt in favor of press freedom. The common but most unkind perception is that government
institutions and their officers and employees are fair game to official and personal attacks and even
ridicule. And the practice on the ground is just as disconcerting. Reports and accusation of official
misconduct often times merit front page or primetime treatment, while defenses set up, retraction issued,
or acquittal rendered get no more, if ever, perfunctory coverage. The unfairness needs no belaboring. The
balm of clear conscience is sometimes not enough.
Perhaps lost in the traditional press freedom versus government impasse is the fact that a maliciously
false imputation of corruption and dishonesty against a public official, as here, leaves a stigmatizing mark
not only on the person but also the office to which he belongs. In the ultimate analysis, public service also
unduly suffers. EcHIAC
WHEREFORE, in view of the foregoing, the petitions in G.R. Nos. 161032 and 161176 are DISMISSED. The
CA Decision dated June 17, 2003 in CA-G.R. CR No. 25318 is hereby AFFIRMED with the MODIFICATIONS
that in lieu of imprisonment, the penalty to be imposed upon petitioners shall be a fine of six thousand
pesos (PhP6,000) for each count of libel, with subsidiary imprisonment in case of insolvency, while the
award of actual damages and exemplary damages is DELETED. The Decision dated November 17, 2000 of
the RTC, Branch 112 in Pasay City in Criminal Case Nos. 99-1597 to 99-1600 is modified to read as follows:
WHEREFORE, the Court finds the accused ERWIN TULFO, SUSAN CAMBRI, REY SALAO,
JOCELYN BARLIZO, and PHILIP PICHAY guilty beyond reasonable doubt of four (4) counts
of the crime of LIBEL, as defined in Article 353 of the Revised Penal Code, and sentences
EACH of the accused to pay a fine of SIX THOUSAND PESOS (PhP6,000) per count of
libel with subsidiary imprisonment, in case of insolvency.
Considering that the accused Erwin Tulfo, Susan Cambri, Rey Salao, Jocelyn Barlizo, and
Philip Pichay wrote and published the four (4) defamatory articles with reckless
disregard whether it was false or not, the said articles being libelous per se, they are
hereby ordered to pay complainant Atty. Carlos T. So, jointly and severally, the sum
of ONE MILLION PESOS (PhP1,000,000) as moral damages. The claim of actual and
exemplary damages is denied for lack of merit.
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Costs against petitioners.

SO ORDERED
||| (Tulfo v. People, G.R. No. 161032, 161176, [September 16, 2008], 587 PHIL 64-100)
ANNOTATION - 301 SCRA 34
c. Freedom of expression and the right of privacy

CASES - AYER PRODUCTIONS VS. CAPULONG, 160 SCRA 861 (1988)
AYER PRODUCTIONS PTY. LTD. and McELROY & McELROY FILM

PRODUCTIONS, petitioners, vs. HON. IGNACIO M. CAPULONG and JUAN PONCE
ENRILE,respondents.
[G.R. No. 82398. April 29, 1988.]
HAL McELROY, petitioner, vs. HON. IGNACIO M. CAPULONG, in his capacity as Presiding
Judge of the Regional Trial Court of Makati, Branch 134 and JUAN PONCE
ENRILE, respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF SPEECH AND EXPRESSION; SCOPE. The
freedom of speech and of expression, includes the freedom to film and produce motion pictures and to
exhibit such motion pictures in theaters or to diffuse them through television. In our day and age, motion
pictures are a universally utilized vehicle of communication and medium of expression. Along with the
press, radio and television, motion pictures constitute a principal medium of mass communication for
information, education and entertainment.
2. ID.; ID.; ID.; AVAILABLE TO FOREIGN-OWNED MOTION PICTURE COMPANIES. This freedom is
available in our country both to locally-owned and to foreign-owned motion picture companies.
Furthermore, the circumstance that the production of motion picture films is a commercial activity
expected to yield monetary profit, is not a disqualification for availing of freedom of speech and of
expression.
3. ID.; ID.; ID.; COMMERCIAL MEDIA NOT EXCLUDED FROM THE EXERCISE THEREOF. The circumstance
that the production of motion picture films is a commercial activity expected to yield monetary profit, is
not a disqualification for availing of freedom of speech and of expression. In our community as in many
other countries, media facilities are owned either by the government or the private sector but the private
sector-owned media facilities commonly require to be sustained by being devoted in whole or in part to
revenue producing activities. Indeed, commercial media constitute the bulk of such facilities available in
our country and hence to exclude commercially owned and operated media from the exercise of
constitutionally protected freedom of speech and of expression can only result in the drastic contraction
of such constitutional liberties in our country.
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BOLD BUT FAITHFUL
4. ID.; ID.; ID.; RIGHT OF PRIVACY, INCLUDED IN OUR LAW; SCOPE AND CONTENT MARKED OUT BY
CASELAW. It was demonstrated sometime ago by the then Dean Irene R. Corts that our law,
constitutional and statutory, does include a right of privacy. It is left to case law, however, to mark out
the precise scope and content of this right in differing types of particular situations.
5. ID.; ID.; ID.; ID.; NOT AN ABSOLUTE RIGHT AND CANNOT BE INVOKED TO RESIST PUBLICATION AND
DISSEMINATION OF MATTERS OF PUBLIC INTEREST. The right of privacy or "the right to be let alone,"
like the right of free expression, is not an absolute right. A limited intrusion into a person's privacy has
long been regarded as permissible where that person is a public figure and the information sought to be
elicited from him or to be published about him constitute matters of a public character. Succinctly put,
the right of privacy cannot be invoked to resist publication and dissemination of matters of public interest.
The interest sought to be protected by the right of privacy is the right to be free from
"unwarranted publicity, from the wrongful publicizing of the private affairs and activities of an
individual which are outside the realm of legitimate public concern."
6. ID.; ID.; ID.; ID.; PRIOR RESTRAINT UPON THE EXERCISE THEREOF PRESUMED INVALID; PREFERRED
CHARACTER OF FREEDOM OF SPEECH AND EXPRESSION. The respondent Judge has restrained
petitioners from filming and producing the entire proposed motion picture. It is important to note that
in Lagunzad, there was no prior restrain of any kind imposed upon the movie producer who in fact
completed and exhibited the film biography of Moises Padilla. Because of the preferred character of the
constitutional rights of freedom of speech and of expression, a weighty presumption of invalidity vitiates
measures of prior restraint upon the exercise of such freedoms.
7. ID.; ID.; ID.; ID.; FILMING OF PROJECTED MOTION PICTURE "THE FOUR DAY REVOLUTION," NOT AN
UNLAWFUL INTRUSION THEREOF; DOCTRINE OF CLEAR AND PRESENT DANGER UNAVAILING AS FILMING
WAS AS YET UNCOMPLETED. The production and filming by petitioners of the projected motion picture
"The Four Day Revolution" does not, in the circumstances of this case, constitute an unlawful intrusion
upon private respondent's "right of privacy." The respondent Judge should have stayed his hand, instead
of issuing an ex-parte Temporary Restraining Order one day after filing of a complaint by the private
respondent and issuing a Preliminary Injunction twenty (20) days later; for the projected motion picture
was as yet uncompleted and hence not exhibited to any audience. Neither private respondent nor the
respondent trial Judge knew what the completed film would precisely look like. There was, in other words,
no "clear and present danger" of any violation of any right to privacy that private respondent could
lawfully assert.
8. ID.; ID.; ID.; ID.; ID.; SUBJECT MATTER OF FILM IS ONE OF PUBLIC INTEREST AND DOES NOT RELATE TO
THE INDIVIDUAL AND PRIVATE LIFE OF PRIVATE RESPONDENT ENRILE. The subject matter of "The Four
Day Revolution" relates to the non-bloody change of government that took place at Epifanio de los Sentos
Avenue in February 1986, and the train of events which led up to that denouement. Clearly, such subject
matter is one of public interest and concern. Indeed, it is, petitioners' argue, of international interest. The
subject thus relates to a highly critical stage in the history of this country and as such, must be regarded
as having passed into the public domain and as an appropriate subject for speech and expression and
coverage by any form of mass media. The subject matter, as set out in the synopsis provided by the
petitioners and quoted above, does not relate to the individual life and certainly not to the private life of
private respondent Ponce Enrile. Unlike in Lagunzad, which concerned the life story of Moises Padilla
necessarily including at least his immediate family, what we have here is not a film biography, more or
less fictionalized, of private respondent Ponce Enrile. "The Four Day Revolution" is not principally about,
nor is it focused upon, the man Juan Ponce Enrile; but it is compelled, if it is to be historical, to refer to
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the role played by Juan Ponce Enrile in the precipitating and the constituent events of the change of
government in February 1986.
9. ID.; ID.; ID.; ID.; ID.; INTRUSION IS REASONABLY NECESSARY TO KEEP THE FILM A TRUTHFUL HISTORICAL
ACCOUNT. The extent of the intrusion upon the life of private respondent Juan Ponce Enrile that would
be entailed by the production and exhibition of "The Four Day Revolution" would, therefore, be limited in
character. The extent of that intrusion, as this Court understands the synopsis of the proposed film, may
be generally described as such intrusion as is reasonably necessary to keep that film a truthful historical
account. Private respondent does not claim that petitioners threatened to depict in "The Four Day
Revolution" any part of the private life of private respondent or that of any member of his family.
10. ID.; ID.; ID.; ID.; ID.; PUBLIC FIGURE, DEFINED. "A public figure has been defined as a person who, by
his accomplishments, fame, or mode of living, or by adopting a profession or calling which gives the public
a legitimate interest in his doings, his affairs, and his character, has become a 'public personage.' He is, in
other words, a celebrity. Obviously to be included in this category are those who have achieved some
degree of reputation by appearing before the public, as in the case of an actor, a professional baseball
player, a pugilist, or any other entertainer. The list is, however, broader than this. It includes public
officers, famous inventors and explorers, war heroes and even ordinary soldiers, an infant prodigy, and no
less a personage than the Grand Exalted Ruler of a lodge. It includes, in short, anyone who has arrived at
a position where public attention is focused upon him as a person.
11. ID.; ID.; ID.; ID.; ID.; ID.; PRIVATE RESPONDENT ENRILE IS A PUBLIC FIGURE. Private respondent is a
"public figure" precisely because, inter alia, of his participation as a principal actor in the culminating
events of the change of government in February 1986. Because his participation therein was major in
character, a film reenactment of the peaceful revolution that fails to make reference to the role played
by private respondent would be grossly unhistorical. The right of privacy of a "public figure" is necessarily
narrower than that of an ordinary citizen. Private respondent has not retired into the seclusion of simple
private citizenship. He continues to be a "public figure." After a successful political campaign during which
his participation in the EDSA Revolution was directly or indirectly referred to in the press, radio and
television, he sits in a very public place, the Senate of the Philippines.
12. ID.; ID.; ID.; ID.; ID.; PORTRAYAL OF PRIVATE RESPONDENT MUST BE RELATED TO PUBLIC FACTS.
The line of equilibrium in the specific context of the instant case between the constitutional freedom of
speech and of expression and the right of privacy, may be marked out in terms of a requirement that the
proposed motion picture must be fairly truthful and historical in its presentation of events. There must,
in other words, be no knowing or reckless disregard of truth in depicting the participation of private
respondent in the EDSA Revolution. There must, further, be no presentation of the private life of the
unwilling private respondent and certainly no revelation of intimate or embarrassing personal facts. The
proposed motion picture should not enter into what Mme. Justice Melencio-Herrera in Lagunzad referred
to as "matters of essentially private concern." To the extent that "The Four Day Revolution" limits itself in
portraying the participation of private respondent in the EDSA Revolution to those events which are
directly and reasonably related to the public facts of the EDSA Revolution, the intrusion into private
respondent's privacy cannot be regarded as unreasonable and actionable. Such portrayal may be carried
out even without a license from private respondent.
13. REMEDIAL LAW; CIVIL PROCEDURE; COMPLAINT; DISMISSAL; A FUGITIVE FOREFEITS HIS RIGHT TO
PRIVACY THROUGH COURT PROCESSES. It is, however, important to dispose of the complaint filed by
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former Colonel Honasan who, having refused to subject himself to the legal processes of the Republic and
having become once again a fugitive from justice, must be deemed to have forfeited any right he might
have had to protect his privacy through court processes.
DECISION
FELICIANO, J p:
Petitioner Hal McElroy, an Australian film maker, and his movie production company,
petitioner Ayer Productions Pty. Ltd. ("Ayer Productions), 1 envisioned, sometime in 1987, the filming for
commercial viewing and for Philippine and international release, the historic peaceful struggle of the
Filipinos at EDSA (Epifanio de los Santos Avenue). Petitioners discussed this project with local movie
producer Lope V. Juban, who suggested that they consult with the appropriate government agencies and
also with General Fidel V. Ramos and Senator Juan Ponce Enrile, who had played major roles in the events
proposed to be filmed.
The proposed motion picture entitled "The Four Day Revolution" was endorsed by the Movie Television
Review and Classification Board as well as the other government agencies consulted. General Fidel Ramos
also signified his approval of the intended film production.
In a letter dated 16 December 1987, petitioner Hal McElroy, informed private respondent Juan Ponce
Enrile about the projected motion picture enclosing a synopsis of it, the full text of which is set out below:
"The Four Day Revolution is a six hour mini-series about People Power a unique event
in modern history that made possible the peaceful revolution in the Philippines in
1986.
Faced with the task of dramatising these remarkable events, screenwriter David
Williamson and history Prof. Al McCoy have chosen a 'docu-drama' style and created
[four] fictitious characters to trace the revolution from the death of Senator Aquino, to
the February revolution and the fleeing of Marcos from the country.
These characters' stories have been woven through the real events to help our huge
international audience understand this extraordinary period in Filipino history.
First, there's Tony O'Neil, an American television journalist working for a major network
Tony reflects the average American attitude to the Philippines once a colony, now
the home of crucially important military bases. Although Tony is aware of the
corruption and of Marcos' megalomania, for him, there appears to be no alternative to
Marcos except the Communists.
Next, Angie Fox, a fiery Australian photo-journalist. A 'new girl in town,' she is quickly
caught up in the events as it becomes clear that the time has come for a change.
Through Angie and her relationship with one of the Reform Army Movement Colonels
(a fictitious character), we follow the developing discontent in the armed forces. Their
dislike for General Ver, their strong loyalty to Defense Minister Enrile, and ultimately
their defection from Marcos. LLjur
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The fourth fictitious character is Ben Balano, a middle-aged editor of a Manila

newspaper who despises the Marcos regime and is a supporter and promoter of Cory
Aquino. Ben has two daughters, Celie a left-wing lawyer who is a secret member of
the New People's Army, and Eva a P.R. girl, politically moderate and very much in
love with Tony. Ultimately, she must choose between her love and the revolution.
Through the interviews and experiences of these central characters, we show the
complex nature of Filipino society, and the intertwining series of events and characters
that triggered these remarkable changes.
Through them also, we meet all of the principal characters and experience directly
dramatic recreation of the revolution. The story incorporates actual documentary
footage filmed during the period which we hope will capture the unique atmosphere
and forces that combined to overthrow President Marcos.
David Williamson is Australia's leading playwright with some 14 hugely successful plays
to his credit ('Don's Party,' 'The Club, 'Travelling North') and 11 feature films ('The Year
of Living Dangerously,' 'Gallipoli,' 'Phar Lap').
Professor McCoy (University of New South Wales) is an American historian with a deep
understanding of the Philippines, who has worked on the research for this project for
some 18 months. Together with David Williamson they have developed a script we
believe accurately depicts the complex issues and events that occurred during the
period.
The six-hour mini-series is a McElroy and McElroy co-production with Home Box Office
in America, the Australian Broadcasting Corporation in Australia and Zenith Productions
in the United Kingdom."
The proposed motion picture would be essentially a reenactment of the events that made possible the
EDSA revolution; it is designed to be viewed in a six-hour mini-series television play, presented in a "docu-
drama" style, creating four (4) fictional characters interwoven with real events, and utilizing actual
documentary footage as background.
On 21 December 1987, private respondent Enrile replied that "[he] would not and will not approve of the
use, appropriation, reproduction and/or exhibition of his name, or picture, or that of any member of his
family in any cinema or television production, film or other medium for advertising or commercial
exploitation" and further advised petitioners that "in the production, airing, showing, distribution or
exhibition of said or similar film, no reference whatsoever (whether written, verbal or visual) should be
made to [him] or any member of his family, much less to any matter purely personal to them."
It appears that petitioners acceded to this demand and the name of private respondent Enrile was deleted
from the movie script, and petitioners proceeded to film the projected motion picture.
On 23 February 1988, private respondent filed a Complaint with application for Temporary Restraining
Order and Writ of Preliminary Injunction with the Regional Trial Court of Makati, docketed as Civil Case
No. 88-151 in Branch 134 thereof, seeking to enjoin petitioners from producing the movie "The Four Day
Revolution." The complaint alleged that petitioners' production of the mini-series without private
respondent's consent and over his objection, constitutes an obvious violation of his right of privacy. On
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24 February 1988, the trial court issued ex-parte a Temporary Restraining Order and set for hearing the
application for preliminary injunction.
On 9 March 1988, Hal McElroy filed a Motion to Dismiss with Opposition to the Petition for Preliminary
Injunction contending that the mini-series film would not involve the private life of Juan Ponce Enrile nor
that of his family and that a preliminary injunction would amount to a prior restraint on their right of free
expression. PetitionerAyer Productions also filed its own Motion to Dismiss alleging lack of cause of action
as the mini-series had not yet been completed.
In an Order 2 dated 16 March 1988, respondent court issued a writ of Preliminary Injunction against the
petitioners, the dispositive portion of which reads thus:
WHEREFORE, let a writ of preliminary injunction be issued, ordering defendants, and all
persons and entities employed or under contract with them, including actors, actresses
and members of the production staff and crew, as well as all persons and entities acting
on defendants' behalf, to cease and desist from producing and filming the mini-series
entitled "The Four Day Revolution" and from making any reference whatsoever to
plaintiff or his family and from creating any fictitious character in lieu of plaintiff which
nevertheless is based on, or bears remote, substantial or marked resemblance or
similarity to, or is otherwise identifiable with, plaintiff in the production and filming any
similar film or photoplay, until further orders from this Court, upon plaintiff's filing of a
bond in the amount of P2,000,000.00, to answer for whatever damages defendants
may suffer by reason of the injunction if the Court should finally decide that plaintiff
was not entitled thereto. LibLex
xxx xxx xxx
(Emphasis supplied)
On 22 March 1988, petitioner Ayer Productions came to this Court by a Petition for Certiorari dated 21
March 1988 with an urgent prayer for Preliminary Injunction or Restraining Order, which petition was
docketed as G.R. No. L-82380.
A day later, or on 23 March 1988, petitioner Hal McElroy also filed a separate Petition for Certiorari with
Urgent Prayer for a Restraining Order or Preliminary Injunction, dated 22 March 1988, docketed as G.R.
No. L-82398.
By a Resolution dated 24 March 1988, the petitions were consolidated and private respondent was
required to file a consolidated Answer. Further, in the same Resolution, the Court granted a limited
Temporary Restraining Order partially enjoining the implementation of the respondent Judge's Order of
16 March 1988 and the Writ of Preliminary Injunction issued therein, and allowing the petitioners to
resume producing and filming those portions of the projected mini-series which do not make any
reference to private respondent or his family or to any fictitious character based on or bearing substantial
resemblance or similarity to or identifiable as private respondent.
Private respondent seasonably filed his Consolidated Answer on 6 April 1988 invoking in the main a right
of privacy.
I
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The constitutional and legal issues raised by the present Petitions are sharply drawn. Petitioners' claim
that in producing and filming "The Four Day Revolution," they are exercising their freedom of speech and
of expression protected under our Constitution. Private respondent, upon the other hand, asserts a right
of privacy and claims that the production and filming of the projected mini-series would constitute an
unlawful intrusion into his privacy which he is entitled to enjoy.
Considering first petitioners' claim to freedom of speech and of expression, the Court would once more
stress that this freedom includes the freedom to film and produce motion pictures and to exhibit such
motion pictures in theaters or to diffuse them through television. In our day and age, motion pictures are
a universally utilized vehicle of communication and medium of expression. Along with the press, radio and
television, motion pictures constitute a principal medium of mass communication for information,
education and entertainment. In Gonzales v. Katigbak, 3 former Chief Justice Fernando, speaking for the
Court, explained:
"1. Motion pictures are important both as a medium for the communication of ideas
and the expression of the artistic impulse. Their effects on the perception by our people
of issues and public officials or public figures as well as the prevailing cultural traits is
considerable. Nor as pointed out in Burstyn v. Wilson (343 US 495 [1942]) is the
'importance of motion pictures as an organ of public opinion lessened by the fact that
they are designed to entertain as well as to inform' (Ibid, 501). There is no clear dividing
line between what involves knowledge and what affords pleasure. If such a distinction
were sustained, there is a diminution of the basic right to free expression. . . . " 4
This freedom is available in our country both to locally-owned and to foreign-owned motion picture
companies. Furthermore, the circumstance that the production of motion picture films is a commercial
activity expected to yield monetary profit, is not a disqualification for availing of freedom of speech and
of expression. In our community as in many other countries, media facilities are owned either by the
government or the private sector but the private sector-owned media facilities commonly require to be
sustained by being devoted in whole or in part to revenue producing activities. Indeed, commercial media
constitute the bulk of such facilities available in our country and hence to exclude commercially owned
and operated media from the exercise of constitutionally protected freedom of speech and of expression
can only result in the drastic contraction of such constitutional liberties in our country.
The counter-balancing claim of private respondent is to a right of privacy. It was demonstrated sometime
ago by the then Dean Irene R. Cortes that our law, constitutional and statutory, does include a right of
privacy. 5 It is left to case law, however, to mark out the precise scope and content of this right in differing
types of particular situations. The right of privacy or "the right to be let alone," 6 like the right of free
expression, is not an absolute right. A limited intrusion into a person's privacy has long been regarded as
permissible where that person is a public figure and the information sought to be elicited from him or to
be published about him constitute matters of a public character. 7 Succinctly put, the right of privacy
cannot be invoked to resist publication and dissemination of matters of public interest. 8The interest
sought to be protected by the right of privacy is the right to be free from "unwarranted publicity, from
the wrongful publicizing of the private affairs and activities of an individual which are outside the realm of
legitimate public concern." 9
Lagunzad v. Vda. de Gonzales, 10 on which private respondent relies heavily, recognized a right to privacy
in a context which included a claim to freedom of speech and of expression. Lagunzad involved a suit for
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enforcement of a licensing agreement between a motion picture producer as licensee and the widow and
family of the late Moises Padilla as licensors. This agreement gave the licensee the right to produce a
motion picture portraying the life of Moises Padilla, a mayoralty candidate of the Nacionalista Party for
the Municipality of Magallon, Negros Occidental during the November 1951 elections and for whose
murder, Governor Rafael Lacson, a member of the Liberal Party then in power and his men were tried and
convicted. 11 In affirming the judgment of the lower court enforcing the licensing agreement against the
licensee who had produced the motion picture and exhibited it but refused to pay the stipulated royalties,
the Court, through Mme. Justice Melencio-Herrera, said:
"Neither do we agree with petitioner's submission that the Licensing Agreement is null
and void for lack of, or for having an illegal cause or consideration, while it is true that
petitioner had purchased the rights to the book entitled 'The Moises Padilla Story,' that
did not dispense with the need for prior consent and authority from the deceased heirs
to portray publicly episodes in said deceased's life and in that of his mother and the
members of his family. As held in Schuyler v. Curtis, ([1895], 147 NY 434, 42 NE, 31 LRA
286. 49 Am St Rep 671), 'a privilege may be given the surviving relatives of a deceased
person to protect his memory, but the privilege exists for the benefit of the living, to
protect their feelings and to prevent a violation of their own rights in the character and
memory of the deceased.'
Petitioner's averment that private respondent did not have any property right over the
life of Moises Padilla since the latter was a public figure, is neither well taken. Being a
public figure ipso facto does not automatically destroy in toto a person's right to
privacy. The right to invade a person's privacy to disseminate public information does
not extend to a fictional or novelized representation of a person, no matter how public
a figure he or she may be (Garner v. Triangle Publications, DCNY, 97 F. Supp., 564, 549
[1951]). In the case at bar, while it is true that petitioner exerted efforts to present a
true-to-life story of Moises Padilla, petitioner admits that he included a little romance
in the film because without it, it would be a drab story of torture and brutality." 12
In Lagunzad, the Court had need, as we have in the instant case, to deal with contraposed claims to
freedom of speech and of expression and to privacy. Lagunzad the licensee in effect claimed, in the name
of freedom of speech and expression, a right to produce a motion picture biography at least partly
"fictionalized" of Moises Padilla without the consent of and without paying pre-agreed royalties to the
widow and family of Padilla. In rejecting the licensee's claim, the Court said:
Lastly, neither do we find merit in petitioner's contention that the Licensing Agreement
infringes on the constitutional right of freedom of speech and of the press, in that, as a
citizen and as a newspaperman, he had the right to express his thoughts in film on the
public life of Moises Padilla without prior restraint. The right of freedom of expression,
indeed, occupies a preferred position in the 'hierarchy of civil liberties' (Philippine
Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., 51 SCRA
191 [1963]). It is not, however, without limitations. As held in Gonzales v. Commission
on Elections, 27 SCRA 835, 858 [1960]:
xxx xxx xxx
The prevailing doctrine is that the clear and present danger rule is such a limitation.
Another criterion for permissible limitation on freedom of speech and of the press,
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which includes such vehicles of the mass media as radio, television and the movies, is
the 'balancing-of-interests test' (Chief Justice Enrique M. Fernando on the Bill of Rights,
1970 ed., p. 79). The principle 'requires a court to take conscious and detailed
consideration of the interplay of interests observable in a given situation or type of
situation' (Separation Opinion of the late Chief Justice Castro in Gonzales v. Commission
on Elections, supra, p. 899). cdphil
In the case at bar, the interests observable are the right to privacy asserted by
respondent and the right of freedom of expression invoked by petitioner. Taking into
account the interplay of those interests, we hold that under the particular
circumstances presented and considering the obligations assumed in the Licensing
Agreement entered into by petitioner, the validity of such agreement will have to be
upheld particularly because the limits of freedom of expression are reached when
expression touches upon matters of essentially private concern. 13
Whether the "balancing of interests test" or the "clear and present danger test" be applied in respect of
the instant Petitions, the Court believes that a different conclusion must here be reached: The production
and filming by petitioners of the projected motion picture "The Four Day Revolution" does not, in the
circumstances of this case, constitute an unlawful intrusion upon private respondent's "right of privacy."
1. It may be observed at the outset that what is involved in the instant case is a prior and direct restraint
on the part of the respondent Judge upon the exercise of speech and of expression by petitioners. The
respondent Judge has restrained petitioners from filming and producing the entire proposed motion
picture. It is important to note that in Lagunzad, there was no prior restrain of any kind imposed upon the
movie producer who in fact completed and exhibited the film biography of Moises Padilla. Because of the
preferred character of the constitutional rights of freedom of speech and of expression, a weighty
presumption of invalidity vitiates measures of prior restraint upon the exercise of such freedoms. 14 The
invalidity of a measure of prior restraint does not, of course, mean that no subsequent liability may
lawfully be imposed upon a person claiming to exercise such constitutional freedoms. The respondent
Judge should have stayed his hand, instead of issuing an ex-parte Temporary Restraining Order one day
after filing of a complaint by the private respondent and issuing a Preliminary Injunction twenty (20) days
later; for the projected motion picture was as yet uncompleted and hence not exhibited to any audience.
Neither private respondent nor the respondent trial Judge knew what the completed film would precisely
look like. There was, in other words, no "clear and present danger" of any violation of any right to privacy
that private respondent could lawfully assert.
2. The subject matter of "The Four Day Revolution" relates to the non-bloody change of government that
took place at Epifanio de los Santos Avenue in February 1986, and the train of events which led up to
that denouement. Clearly, such subject matter is one of public interest and concern. Indeed, it is,
petitioners' argue, of international interest. The subject thus relates to a highly critical stage in the history
of this country and as such, must be regarded as having passed into the public domain and as an
appropriate subject for speech and expression and coverage by any form of mass media. The subject
matter, as set out in the synopsis provided by the petitioners and quoted above, does not relate to the
individual life and certainly not to the private life of private respondent Ponce Enrile. Unlike in Lagunzad,
which concerned the life story of Moises Padilla necessarily including at least his immediate family, what
we have here is not a film biography, more or less fictionalized, of private respondent Ponce Enrile. "The
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Four Day Revolution" is not principally about, nor is it focused upon, the man Juan Ponce Enrile; but it is
compelled, if it is to be historical, to refer to the role played by Juan Ponce Enrile in the precipitating and
the constituent events of the change of government in February 1986.
3. The extent of the intrusion upon the life of private respondent Juan Ponce Enrile that would be entailed
by the production and exhibition of "The Four Day Revolution" would, therefore, be limited in character.
The extent of that intrusion, as this Court understands the synopsis of the proposed film, may be generally
described as such intrusion as is reasonably necessary to keep that film a truthful historical account.
Private respondent does not claim that petitioners threatened to depict in "The Four Day Revolution" any
part of the private life of private respondent or that of any member of his family.
4. At all relevant times, during which the momentous events, clearly of public concern, that petitioners
propose to film were taking place, private respondent was what Profs. Prosser and Keeton have referred
to as a "public figure:"
"A public figure has been defined as a person who, by his accomplishments, fame, or
mode of living, or by adopting a profession or calling which gives the public a legitimate
interest in his doings, his affairs, and his character, has become a 'public personage.' He
is, in other words, a celebrity. Obviously to be included in this category are those who
have achieved some degree of reputation by appearing before the public, as in the case
of an actor, a professional baseball player, a pugilist, or any other entertainer. The list
is, however, broader than this. It includes public officers, famous inventors and
explorers, war heroes and even ordinary soldiers, an infant prodigy, and no less a
personage than the Grand Exalted Ruler of a lodge. It includes, in short, anyone who has
arrived at a position where public attention is focused upon him as a person. LexLib
Such public figures were held to have lost, to some extent at least, their right of privacy.
Three reasons were given, more or less indiscrimately, in the decisions that they had
sought publicity and consented to it, and so could not complain when they received it;
that their personalities and their affairs had already become public, and could no longer
be regarded as their own private business; and that the press had a privilege, under the
Constitution, to inform the public about those who have become legitimate matters of
public interest. On one or another of these grounds, and sometimes all, it was held that
there was no liability when they were given additional publicity, as to matters
legitimately within the scope of the public interest they had aroused.
The privilege of giving publicity to news, and other matters of public interest, was held
to arise out of the desire and the right of the public to know what is going on in the
world, and the freedom of the press and other agencies of information to tell it. 'News'
includes all events and items of information which are out of the ordinary humdrum
routine, and which have 'that indefinable quality of information which arouses public
attention.' To a very great extent the press, with its experience or instinct as to what its
readers will want, has succeeded in making its own definition of news, as a glance at
any morning newspaper will sufficiently indicate. It includes homicide and other crimes,
arrests and police raides, suicides, marriages and divorces, accidents, a death from the
use of narcotics, a woman with a rare disease, the birth of a child to a twelve year old
girl, the reappearance of one supposed to have been murdered years ago, and
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undoubtedly many other similar matters of genuine, if more or less deplorable, popular
appeal.
The privilege of enlightening the public was not, however, limited to the dissemination
of news in the sense of current events. It extended also to information or education, or
even entertainment and amusement, by books, articles, pictures, films and broadcasts
concerning interesting phases of human activity in general, as well as the reproduction
of the public scene in newsreels and travelogues. In determining where to draw the line,
the courts were invited to exercise a species of censorship over what the public may be
permitted to read; and they were understandably liberal in allowing the benefit of the
doubt." 15
Private respondent is a "public figure" precisely because, inter alia, of his participation as a principal actor
in the culminating events of the change of government in February 1986. Because his participation therein
was major in character, a film reenactment of the peaceful revolution that fails to make reference to the
role played by private respondent would be grossly unhistorical. The right of privacy of a "public figure" is
necessarily narrower than that of an ordinary citizen. Private respondent has not retired into the seclusion
of simple private citizenship. He continues to be a "public figure." After a successful political campaign
during which his participation in the EDSA Revolution was directly or indirectly referred to in the press,
radio and television, he sits in a very public place, the Senate of the Philippines.
5. The line of equilibrium in the specific context of the instant case between the constitutional freedom
of speech and of expression and the right of privacy, may be marked out in terms of a requirement that
the proposed motion picture must be fairly truthful and historical in its presentation of events. There
must, in other words, be no knowing or reckless disregard of truth in depicting the participation of private
respondent in the EDSA Revolution. 16 There must, further, be no presentation of the private life of the
unwilling private respondent and certainly no revelation of intimate or embarrassing personal
facts. 17 The proposed motion picture should not enter into what Mme. Justice Melencio-Herrera
in Lagunzad referred to as "matters of essentially private concern." 18 To the extent that "The Four Day
Revolution" limits itself in portraying the participation of private respondent in the EDSA Revolution to
those events which are directly and reasonably related to the public facts of the EDSA Revolution, the
intrusion into private respondent's privacy cannot be regarded as unreasonable and actionable. Such
portrayal may be carried out even without a license from private respondent.
II
In a Manifestation dated 30 March 1988, petitioner Hal McElroy informed this Court that a Temporary
Restraining Order dated 25 March 1988, was issued by Judge Teofilo Guadiz of the Regional Trial Court of
Makati, Branch 147, in Civil Case No. 88-413, entitled "Gregorio B. Honasan vs. Ayer Productions Pty. Ltd.,
McElroy and McElroy Film Productions, Hal McElroy, Lope Juban and PMP Motion for Pictures Production"
enjoining him and his production company from further filming any scene of the projected mini-series
film. Petitioner alleged that Honasan's complaint was a "scissors and paste" pleading, cut out straight from
the complaint of private respondent Ponce Enrile in Civil Case No. 88-151. Petitioner Ayer Productions, in
a separate Manifestation dated 4 April 1988, brought to the attention of the Court the same information
given by petitioner Hal McElroy, reiterating that the complaint of Gregorio B. Honasan was substantially
identical to that filed by private respondent herein and stating that in refusing to join Honasan in Civil
Case No. 88-151, counsel for private respondent, with whom counsel for Gregorio Honasan are apparently
associated, deliberately engaged in "forum shopping."
[1569]
AUDAX AT FIDELIS
BOLD BUT FAITHFUL
Private respondent filed a Counter-Manifestation on 13 April 1988 stating that the "slight similarity"
between private respondent's complaint and that of Honasan in the construction of their legal basis of
the right to privacy as a component of the cause of action is understandable considering that court
pleadings are public records; that private respondent's cause of action for invasion of privacy is separate
and distinct from that of Honasan's although they arose from the same tortious act of petitioners; that
the rule on permissive joinder of parties is not mandatory and that, the cited cases on "forum shopping"
were not in point because the parties here and those in Civil Case No. 88-413 are not identical. LLpr
For reasons that by now have become clear, it is not necessary for the Court to deal with the question of
whether or not the lawyers of private respondent Ponce Enrile have engaged in "forum shopping." It is,
however, important to dispose of the complaint filed by former Colonel Honasan who, having refused to
subject himself to the legal processes of the Republic and having become once again a fugitive from
justice, must be deemed to have forfeited any right he might have had to protect his privacy through court
processes.
WHEREFORE,
a) the Petitions for Certiorari are GRANTED DUE COURSE, and the Order dated 16 March 1988 of
respondent trial court granting a Writ of Preliminary Injunction is hereby SET ASIDE. The limited
Temporary Restraining Order granted by this Court on 24 March 1988 is hereby MODIFIED by enjoining
unqualifiedly the implementation of respondent Judge's Order of 16 March 1988 and made PERMANENT,
and
b) Treating the Manifestations of petitioners dated 30 March 1988 and 4 April 1988 as separate Petitions
for Certiorari with Prayer for Preliminary Injunction or Restraining Order, the Court, in the exercise of its
plenary and supervisory jurisdiction, hereby REQUIRES Judge Teofilo Guadiz of the Regional Trial Court of
Makati, Branch 147, forthwith to DISMISS Civil Case No. 88-413 and accordingly to SET ASIDE and
DISSOLVE his Temporary Restraining Order dated 25 March 1988 and any Preliminary Injunction that may
have been issued by him. LLphil
No pronouncement as to costs.
SO ORDERED.
||| (Ayer Productions Pty. Ltd. v. Capulong, G.R. No. 82380, 82398, [April 29, 1988], 243 PHIL 1007-1027)
PHILIPPINE JOURNALISTS, INC. VS. THEONEN 477 SCRA 482 (2005)
PHILIPPINE JOURNALISTS, INC. (PEOPLE'S JOURNAL),ZACARIAS NUGUID, JR. and

CRISTINA LEE, petitioners,vs.FRANCIS THOENEN, respondent.
DECISION
CHICO-NAZARIO, J p:
[1570]
AUDAX AT FIDELIS
BOLD BUT FAITHFUL
For almost a century, this Court has sought that elusive equilibrium between the law on defamation on
one hand, and the constitutionally guaranteed freedoms of speech and press on the other. This case
revisits that search.
On 30 September 1990, the following news item appeared in the People's Journal, a tabloid of general
circulation:
Swiss Shoots Neighbors' Pets
RESIDENTS of a subdivision in Paraaque have asked the Bureau of Immigration to
deport a Swiss who allegedly shoots wayward neighbors' pets that he finds in his
domain.
The BF Homes residents through lawyer Atty. Efren Angara complained that the
deportation of Francis Thoenen, of 10 Calcutta BF Homes Phase III, could help "prevent
the recurrence of such incident in the future."
Angara explained that house owners could not control their dogs and cats when they
slip out of their dwellings unnoticed.
An alleged confrontation between Thoenen and the owner of a pet he shot recently
threatens to exacerbate the problem, Angara said.
Cristina Lee 1
The subject of this article, Francis Thoenen, is a retired engineer permanently residing in this country with
his Filipina wife and their children. Claiming that the report was false and defamatory, and that the
petitioners acted irresponsibly in failing to verify the truth of the same prior to publication, he filed a civil
case for damages against herein petitioners Philippine Journalists, Inc.,Zacarias Nuguid, Jr.,its publisher,
and reporter Cristina Lee.
Thoenen claimed that the article destroyed the respect and admiration he enjoyed in the community, and
that since it had been published, he and his wife received several queries and angry calls from friends,
neighbors and relatives. For the impairment of his reputation and standing in the community, and his
mental anguish, Thoenen sought P200,000.00 in moral damages, P100,000.00 in exemplary damages, and
P50,000.00 in attorney's fees.
The petitioners admitted publication of the news item, ostensibly out of a "social and moral duty to inform
the public on matters of general interest, promote the public good and protect the moral public (sic) of
the people," and that the story was published in good faith and without malice. 2
The principal source of the article was a letter 3 by a certain Atty. Efren Angara addressed to
Commissioner Andrea Domingo of the Commission on Immigration and Deportation (CID, now Bureau of
Immigration),which states: acCTIS
Dear Madame:
We would like to request your office to verify the true status/authenticity of the
residency in the Philippines of a foreign national (a Swiss) by the name of Francis
Thoenen who is presently residing at No. 10 Calcuta cor. Beirut Street, BF Homes (PH.
III),Paraaque, Metro Manila. I received (sic) complaint from my clients residing around
his vicinity that this foreigner had (sic) been causing troubles ever since he showed up.
[1571]
AUDAX AT FIDELIS
BOLD BUT FAITHFUL
He is too meticulous and had (sic) been shooting dogs and cats passing his house wall
everytime.
Such act which (sic) is unacceptable to the owners especially if inspite (sic) of control
their pets slips (sic) out unnoticed. A confrontation between him and the owner of the
dog he shoot, (sic) already occurred last time. In some instances this guy had been
always driving his car barbarously inside the subdivision with children playing around
(sic) the street. Before my clients petitioned themselves with the endorsement of the
Homeowners Association and filed to your office for deportation we're respectfully
seeking your assistance to investigate this alien to prevent further incident occurrence
(sic) in the future. He should not be allowed to dominate the citizens of this country.
Very truly yours,
Atty. Efren B. Angara
The petitioners claim that Lee, as the reporter assigned to cover news events in the CID, acquired a copy
of the above letter from a trusted source in the CID's Intelligence Division. They claimed to "have
reasonable grounds to believe in the truth and veracity of the information derived (from their) sources." 4
It was proven at trial that the news article contained several inaccuracies. The headline, which
categorically stated that the subject of the article engaged in the practice of shooting pets, was
untrue. 5 Moreover, it is immediately apparent from a comparison between the above letter and the
news item in question that while the letter is a mere request for verification of Thoenen's status, Lee
wrote that residents of BF Homes had "asked the Bureau of Immigration to deport a Swiss who allegedly
shoots neighbors' pets." No complaints had in fact been lodged against him by any of the BF
Homeowners, 6 nor had any pending deportation proceedings been initiated against him in the Bureau of
Immigration. 7
Thoenen also submitted a Certification 8 from the Office of the Bar Confidant that there was no lawyer in
its rolls by the name of Efren Angara, earlier cited by petitioner Lee as the author of the letter on which
she based her article. Finally, the trial also showed that despite the fact that respondent's address was
indicated in the letter, Cristina Lee made no efforts to contact either him or the purported letter-writer,
Atty. Angara. 9
The petitioners claim that Lee sought confirmation of the story from the newspaper's correspondent in
Paraaque, who told her that a woman who refused to identify herself confirmed that there had indeed
been an incident of pet-shooting in the neighborhood involving the respondent. 10 However, the
correspondent in question was never presented in court to verify the truth of this allegation. Neither was
the alleged CID source presented to verify that the above letter had indeed come from the Department,
nor even that the same was a certified true copy of a letter on file in their office.
On 31 August 1994, the Regional Trial Court, Branch 62, Makati City, rendered a Decision 11 in favor of
the petitioners, which reads in part:
There is no malice on the part of the defendants in publishing the news item done in
the exercise of their profession as journalists reporting to the people on matters of
public interest. The news report was based on an official communication filed with the
Bureau of Immigration and Deportation.
[1572]
AUDAX AT FIDELIS
BOLD BUT FAITHFUL
As noted by the Court of Appeals in Marti(r)ez vs. Alanao, CA-G.R No. 27086, September
30, 1991, which is similar to the present case:
While indeed, the news item subject of the present case might have ruffled the
sensitivities of plaintiff, this Court however believes that the alleged
defamatory articles falls within the purview of a qualifiedly privileged matter,
and that therefore, it cannot be presumed to be malicious. The onus of proving
malice is accordingly shifted to the plaintiff, that is, that he must prove that the
defendants were actuated by ill-will in what they caused to be printed and
published, with a design to carelessly or wantonly injure the plaintiff. (US vs.
Bustos, et al.,37 Phil. 731)
This, plaintiff failed to do, consequently, his case must fall.
The publication in question is a privileged communication protected by the freedom of
the press.
WHEREFORE, the Complaint is hereby ordered DISMISSED WITHOUT
PRONOUNCEMENT AS TO COSTS. 12
On appeal, the court a quo reversed 13 the trial court. It held that although freedom of expression and
the right of speech and of the press are among the most zealously guarded in the Constitution, still, in the
exercise of these rights, Article 19 of the Civil Code requires everyone to "act with justice, give everyone
his due, and observe honesty and good faith." The appellate court emphasized that Thoenen was neither
a public official nor a public figure, and thus,
...[E]ven without malice on the part of defendants-appellees, the news item published
in the 30 September 1990 edition of People's Journal had been done in violation of the
principle of abuse of right under Article 19 of the Civil Code, in the absence of a bona
fide effort to ascertain the truth thereof, i.e.,"to observe honesty and good faith," which
makes their act a wrongful omission. Neither did they "act with justice and give
everyone his due," because without ascertaining the veracity of the information given
them by the Intelligence Bureau of the Bureau of Immigration, they published a news
article which they were aware would bring the person specifically named therein, viz,
Francis Thoenen, the plaintiff-appellant in this case, into disrepute.
xxx xxx xxx
WHEREFORE, the foregoing considered, the Decision appealed from is hereby
REVERSED and SET ASIDE. In its stead, We find for the appellant and award him moral
damages of P200,000.00; exemplary damages of P50,000.00, and legal fees to
P30,000.00; all of which shall be borne jointly and severally by appellees. 14
Petitioners' motion for reconsideration having been denied, 15 this petition for certiorari under Rule 45
of the 1997 Rules of Civil Procedure was filed on the following grounds:
1. The Court of Appeals erred in finding the petitioners Cristina Lee, Nuguid and PJI
liable under Article 19 of the Civil Code.
[1573]
AUDAX AT FIDELIS
BOLD BUT FAITHFUL
2. The Court of Appeals erred in finding the petitioners liable for libel even if the article
was based on a letter released by the Bureau of Immigration, hence a qualified
privilege communication.
3. The Court of Appeals erred in concluding that petitioners did not ascertain the truth
of the subject news item.
4. The Court of Appeals erred in awarding damages notwithstanding that the same was
excessive unconscionable and devoid of any basis.
The petitioners argue that this case is one for damages arising from libel, and not one for abuse of rights
under the New Civil Code. They further claim the constitutional protections extended by the freedom of
speech and of the press clause of the 1987 Constitution against liability for libel, claiming that the article
was published in fulfillment of its social and moral duty to inform the public "on matters of general
interest, promote the public good and protect the moral [fabric] of the people." 16They insist that the
news article was based on a letter released by the Bureau of Immigration, and is thus a qualifiedly
privileged communication. To recover damages, the respondent must prove its publication was attended
by actual malice that is, with knowledge that it was false or with reckless disregard of whether it was
false or not. 17
For the reasons stated below, we hold that the constitutional privilege granted under the freedom of
speech and the press against liability for damages does not extend to the petitioners in this case.
The freedom of speech and of the press is not absolute.The freedom of speech and press and assembly,
first laid down by President McKinley in the Instruction to the Second Philippine Commission of 07 April
1900, is an almost verbatim restatement of the first amendment of the Constitution of the United
States. 18 Enshrined in Section 4, Article III of the Bill of Rights of the 1987 Constitution, it states, "No law
shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people
peaceably to assemble and petition the government for redress of grievances." IaAEHD
But not all speech is protected. "The right of free speech is not absolute at all times and under all
circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and
punishment of which has never been thought to raise any Constitutional problem. These include the lewd
and obscene, the profane, the libelous, and the insulting or 'fighting' words those which by their very
utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that
such utterances are no essential part of any exposition of ideas, and are of such slight social value as a
step to truth that any benefit that may be derived from them is clearly outweighed by the social interest
in order and morality." 19
Libel is not protected speech.Article 353 of the Revised Penal Code defines libel as "a public and malicious
imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or
circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to
blacken the memory of one who is dead."
For an imputation to be libelous, the following requisites must be met: (a) the allegation of a discreditable
act or condition concerning another; (b) publication of the charge; (c) identity of the person defamed; and
(d) existence of malice. 20 In Vasquez v. Court of Appeals, 21 we had occasion to further explain. Thus:
[1574]
AUDAX AT FIDELIS
BOLD BUT FAITHFUL
An allegation is considered defamatory if it ascribes to a person the commission of a

crime, the possession of a vice or defect, real or imaginary, or any act, omission,
condition, status or circumstance which tends to dishonor or discredit or put him in
contempt, or which tends to blacken the memory of one who is dead.
There is publication if the material is communicated to a third person. It is not required
that the person defamed has read or heard about the libelous remark. What is material
is that a third person has read or heard the libelous statement, for "a man's reputation
is the estimate in which others hold him, not the good opinion which he has of himself."
On the other hand, to satisfy the element of identifiability,it must be shown that at least
a third person or a stranger was able to identify him as the object of the defamatory
statement.
Finally, malice or ill will must be present. Art. 354 of the Revised Penal Code provides:
Every defamatory imputation is presumed to be malicious, even if it be true, if
no good intention and justifiable motive for making it is shown, except in the
following cases:
1. A private communication made by any person to another in the performance
of any legal, moral or security duty; and
2. A fair and true report, made in good faith, without any comments or remarks,
of any judicial, legislative or other official proceedings which are not of
confidential nature, or of any statement, report or speech delivered in
said proceedings, or of any other act performed by public officers in the
exercise of their functions. (citations omitted, emphasis supplied)
In this case, there is no controversy as to the existence of the three elements. The respondent's name and
address were clearly indicated in the article ascribing to him the questionable practice of shooting the
wayward pets of his neighbors. The backlash caused by the publication of the article was in fact such that
stones had been thrown at their house, breaking several flower pots, and daily and nightly calls compelled
him to request a change of their telephone number. 22 These facts are not contested by the petitioners.
What the petitioners claim is the absence of proof of the fourth element malice.
As a general rule, malice is presumed.Article 354 of the Revised Penal Code states:
ART. 354. Requirement of Publicity. Every defamatory imputation is presumed to be
malicious,even if it be true, if no good intention and justifiable motive for making it is
shown, except in the following cases:
1. A private communication made by any person to another in the performance of any
legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative or other official proceedings which are not of confidential
nature, or of any statement, report or speech delivered in said proceedings, or
of any other act performed by public officers in the exercise of their functions.
[1575]
AUDAX AT FIDELIS
BOLD BUT FAITHFUL
The article is not a privileged communication.We first discussed the freedom of speech and press and
assembly vis-a-vis the laws on libel and slander in the groundbreaking case of US v. Bustos, 23 where we
applied the prevailing English and American jurisprudence to the effect that:
Only thus can the intelligence and dignity of the individual be exalted. Of course,
criticism does not authorize defamation. Nevertheless, as the individual is less than the
State, so must expected criticism be born for the common good? Rising superior to any
official, or set of officials, to the Chief Executive, to the Legislature, to the Judiciary
to any or all the agencies of Government public opinion should be the constant
source of liberty and democracy. (citations omitted)
The demand to protect public opinion for the welfare of society and the orderly administration of
government inevitably lead to the adoption of the doctrine of privileged communication. "A privileged
communication may be either absolutely privileged or qualifiedly privileged. Absolutely privileged
communications are those which are not actionable even if the author has acted in bad faith. An example
is found in Sec. 11, Art. VI of the 1987 Constitution which exempts a member of Congress from liability for
any speech or debate in the Congress or in any Committee thereof. Upon the other hand, qualifiedly
privileged communications containing defamatory imputations are not actionable unless found to have
been made without good intention or justifiable motive. To this genre belong 'private communications'
and 'fair and true report without any comments or remarks.'" 24
The appellate court correctly ruled that the petitioners' story is not privileged in character, for it is neither
"private communication" nor a fair and true report without any comments or remarks.
US v. Bustos defined the concept of private communication thus: "A communication made bona fide upon
any subject-matter in which the party communicating has an interest, or in reference to which he has a
duty, is privileged, if made to a person having a corresponding interest or duty, although it contained
criminatory matter which without this privilege would be slanderous and actionable. A pertinent
illustration of the application of qualified privilege is a complaint made in good faith and without malice
in regard to the character or conduct of a public official when addressed to an officer or a board having
some interest or duty in the matter." 25
This defense is unavailing to petitioners. In Daez v. Court of Appeals 26 we held that:
As a rule, it is the right and duty of a citizen to make a complaint of any misconduct on
the part of public officials, which comes to his notice, to those charged with supervision
over them. Such a communication is qualifiedly privileged and the author is not guilty
of libel. The rule on privilege, however, imposes an additional requirement. Such
complaints should be addressed solely to some official having jurisdiction to inquire into
the charges, or power to redress the grievance or has some duty to perform or interest
in connection therewith.(emphasis supplied)
[1576]
AUDAX AT FIDELIS
BOLD BUT FAITHFUL
In the instant case, even if we assume that the letter written by the spurious Atty. Angara is privileged
communication, it lost its character as such when the matter was published in the newspaper and
circulated among the general population. A written letter containing libelous matter cannot be classified
as privileged when it is published and circulated in public, 27 which was what the petitioners did in this
case.
Neither is the news item a fair and true report without any comments or remarks of any judicial, legislative
or other official proceedings; there is in fact no proceeding to speak of. Nor is the article related to any
act performed by public officers in the exercise of their functions, for it concerns only false imputations
against Thoenen, a private individual seeking a quiet life.
The petitioners also claim to have made the report out of a "social and moral duty to inform the public on
matters of general interest."
In Borjal v. Court of Appeals,we stated that "the enumeration under Art. 354 is not an exclusive list of
qualifiedly privileged communications since fair commentaries on matters of public interest are likewise
privileged. We stated that the doctrine of fair commentaries means "that while in general every
discreditable imputation publicly made is deemed false, because every man is presumed innocent until
his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the
discreditable imputation is directed against a public person in his public capacity, it is not necessarily
actionable. In order that such discreditable imputation to a public official may be actionable, it must either
be a false allegation of fact or a comment based on a false supposition." 28
Again, this argument is unavailing to the petitioners. As we said, the respondent is a private individual,
and not a public official or public figure. We are persuaded by the reasoning of the United States Supreme
Court in Gertz v. Robert Welch, Inc., 29 that a newspaper or broadcaster publishing defamatory
falsehoods about an individual who is neither a public official nor a public figure may not claim a
constitutional privilege against liability, for injury inflicted, even if the falsehood arose in a discussion of
public interest. 30
Having established that the article cannot be considered as privileged communication, malice is therefore
presumed, and the fourth requisite for the imputation of libel to attach to the petitioners in this case is
met. The news article is therefore defamatory and is not within the realm of protected speech. There is
no longer a need to discuss the other assignment of errors, save for the amount of damages to which
respondent is entitled.
In Policarpio v. Manila Times Publishing Co.,Inc., 31 we awarded damages where the defendants
deliberately presented a private individual in a worse light that what she actually was, and where other
factual errors were not prevented although defendants had the means to ascertain the veracity of their
report. Such are the facts obtaining here.
We must point out that Lee's brief news item contained falsehoods on two levels. On its face, her
statement that residents of BF Homes had "asked the Bureau of Immigration to deport a Swiss who
allegedly shoots neighbors' pets" is patently untrue since the letter of the spurious Atty. Angara was a
mere request for verification of Thoenen's status as a foreign resident. Lee's article, moreover, is also
untrue, in that the events she reported never happened. The respondent had never shot any of his
neighbors' pets, no complaints had been lodged against him by his neighbors, and no deportation
proceedings had been initiated against him. Worse, the author of Lee's main source of information, Atty.
[1577]
AUDAX AT FIDELIS
BOLD BUT FAITHFUL
Efren Angara, apparently either does not exist, or is not a lawyer. Petitioner Lee would have been
enlightened on substantially all these matters had she but tried to contact either Angara or Thoenen.
Although it has been stressed that a newspaper "should not be held to account to a point of suppression
for honest mistakes, or imperfection in the choice of words," 32even the most liberal view of free speech
has never countenanced the publication of falsehoods, especially the persistent and unmitigated
dissemination of patent lies.33 "There is no constitutional value in false statements of fact. Neither the
intentional lie nor the careless error materially advances society's interest in 'uninhibited, robust, and
wide-open' debate." 34 The use of the known lie as a tool is at once at odds with the premises of
democratic government and with the orderly manner in which economic, social, or political change is to
be effected. Calculated falsehood falls into that class of utterances which "are no essential part of any
exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be
derived from them is clearly outweighed by the social interest in order and morality. ..The knowingly false
statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional
protection" (citations omitted).35
The legitimate state interest underlying the law of libel is the compensation of the individuals for the harm
inflicted upon them by defamatory falsehood. After all, the individual's right to protection of his own good
name "reflects no more than our basic concept of the essential dignity and worth of every human being
a concept at the root of any decent system of ordered liberty." 36
The appellate court awarded Thoenen moral damages of P200,000.00, exemplary damages of P50,000.00
and legal fees of P30,000.00, to be borne jointly and severally by the herein petitioners. In Guevarra v.
Almario, 37 we noted that the damages in a libel case must depend upon the facts of the particular case
and the sound discretion of the court, although appellate courts were "more likely to reduce damages for
libel than to increase them." 38 So it is in this case.
WHEREFORE, the Decision of the Court of Appeals of 17 January 2000 reversing the Decision of the
Regional Trial Court, Branch 62, Makati City, of 31 August 1994 is hereby AFFIRMED, subject to the
modification that petitioners are ordered to pay, jointly and severally, moral damages in the sum of
P100,000.00, exemplary damages of P30,000.00, and legal fees of P20,000.00. No costs.
SO ORDERED.
||| (Philippine Journalists Inc. v. Thoenen, G.R. No. 143372, [December 13, 2005], 513 PHIL 607-625)
a. Freedom of expression and the administration of

justice (contempt of court)
CASES - IN RE PUBLISHED . . . 385 SCRA 285 (2002)
IN RE: PUBLISHED ALLEGED THREATS AGAINST MEMBERS OF THE COURT IN THE

PLUNDER LAW CASE HURLED BY ATTY. LEONARD DE VERA.
Cruz Durian Alday & Cruz-Matters for Atty. De Vera.
SYNOPSIS
[1578]
AUDAX AT FIDELIS
BOLD BUT FAITHFUL
The Court En Banc found the respondent guilty of indirect contempt of court for uttering statements
aimed at influencing the Court to decide the case involving the constitutionality of the Plunder Law in
favor of its constitutionality and in threatening the Court because to declare the Plunder Law
unconstitutional "would trigger mass actions, probably more massive than those that led to People Power
II."
In holding respondent liable for indirect contempt, the Supreme Court ruled that respondent's
contemptuous statements cannot be disguised as free speech, for the exercise of said right cannot be
used to impair the independence and efficiency of courts or public respect therefor and confidence
therein.
SYLLABUS
CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF SPEECH; RIGHT TO FREE SPEECH CANNOT BE USED
TO IMPAIR THE INDEPENDENCE OF COURTS OR PUBLIC RESPECT THEREFOR; CASE AT BAR. Respondent
cannot justify his contemptuous statements asking the Court to dispel rumors that it would declare the
Plunder Law unconstitutional, and stating that a decision declaring it as such was basically wrong and
would not be accepted by the people as utterances protected by his right to freedom of speech. Indeed,
freedom of speech includes the right to know and discuss judicial proceedings, but such right does not
cover statements aimed at undermining the Court's integrity and authority, and interfering with the
administration of justice. Freedom of speech is not absolute, and must occasionally be balanced with the
requirements of equally important public interests, such as the maintenance of the integrity of the courts
and orderly functioning of the administration of justice. Thus, the making of contemptuous statements
directed against the Court is not an exercise of free speech; rather, it is an abuse of such right.
Unwarranted attacks on the dignity of the courts cannot be disguised as free speech, for the exercise of
said right cannot be used to impair the independence and efficiency of courts or public respect therefor
and confidence therein. It is a traditional conviction of civilized society everywhere that courts should be
immune from every extraneous influence as they resolve the issues presented before them. EIASDT
DECISION
KAPUNAN, J p:
On December 11, 2001, the Court En Banc issued the following Resolution directing respondent Atty.
Leonard De Vera to explain why he should not be cited for indirect contempt of court for uttering some
allegedly contemptuous statements in relation to the case involving the constitutionality of the Plunder
Law (Republic Act No. 7080)1 which was then pending resolution: DAHSaT
Quoted hereunder are newspaper articles with contemptuous statements attributed to
Atty. Leonard De Vera concerning the Plunder Law case while the same was still pending
before the Court. The statements are italicized for ready identification:
PHILIPPINE DAILY INQUIRER
[1579]
AUDAX AT FIDELIS
BOLD BUT FAITHFUL
Tuesday, November 6, 2001

Erap camp blamed for oust-Badoy maneuvers
Plunder Law
De Vera asked the Supreme Court to dispel rumors that it would vote in favor of
a petition filed by Estrada's lawyers to declare the plunder law unconstitutional
for its supposed vagueness.
De Vera said he and his group were "greatly disturbed" by the rumors from
Supreme Court insiders.
Reports said that Supreme Court justices were tied 6-6 over the
constitutionality of the Plunder Law, with two other justices still undecided and
uttered most likely to inhibit, said Plunder Watch, a coalition formed by civil
society and militant groups to monitor the prosecution of Estrada.
"We are afraid that the Estrada camp's effort to coerce, bribe, or influence the
justices considering that it has a P500 million slush fund from the aborted
power grab that May will most likely result in a pro-Estrada decision
declaring the Plunder Law either unconstitutional or vague," the group said.
PHILIPPINE DAILY INQUIRER
Monday, November 19, 2001
SC under pressure from Erap pals, foes
xxx xxx xxx
"People are getting dangerously passionate . . . emotionally charged." said
lawyer Leonard de Vera of the Equal Justice for All Movement and a leading
member of the Estrada Resign movement.
He voiced his concern that a decision by the high tribunal rendering the plunder
law unconstitutional would trigger mass actions, probably more massive than
those that led to People Power II.
xxx xxx xxx
De Vera warned of a crisis far worse than the "jueteng" scandal that led to
People Power II if the rumor turned out to be true.
"People wouldn't just swallow any Supreme Court decision that is basically
wrong. Sovereignty must prevail."
WHEREFORE, the court resolved to direct Atty. Leonard De Vera to explain within a non-
extendible period of ten (10) days from notice why he should not be punished for
contempt of court.
SO ORDERED. 2
In his Answer, respondent admitted the report in the November 6, 2002 issue of the Inquirer that he
"suggested that the Court must take steps to dispel once and for all these ugly rumors and reports" that
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"the Court would vote in favor of or against the validity of the Plunder Law" to protect the credibility of
the Court. 3 He explained therein:
(4) In short, the integrity of the Court, including the names of the Honorable Members
who were being unfairly dragged and maliciously rumored to be in favor or against one
side of the issue, was being viciously attacked. To remain silent at this time when the
Honorable Court was under siege by what appeared to be an organized effort to
influence the court in their decision would and could lend credence to these reports
coming from anonymous sources. 4
Respondent admitted further to "having appealed to the Supreme Court to dispel rumors that it would
vote in favor of a petition by [former President Joseph] Estrada's lawyers to declare the plunder [law]
unconstitutional for its supposed vagueness" because he and his group were "greatly disturbed" by such
rumors. 5
Anent the November 19, 2001 report in the Inquirer quoting respondent as having said that the people
were "getting dangerously passionate . . . emotionally charged," pending the court's resolution on the
petition filed by former President Estrada assailing the validity of the Plunder Law, respondent claimed
that such statement was "factually accurate." 6 He also argued that he was merely exercising his
constitutionally guaranteed right to freedom of speech when he said that a decision by the Court declaring
the Plunder Law unconstitutional "would trigger mass actions, probably more massive than those that led
to People Power II." 7
Furthermore, respondent justified his statement and said that "the people wouldn't just swallow any
Supreme Court decision that is basically wrong" as an expression of his opinion and as "historically
correct," citing the ouster of former President Ferdinand E. Marcos through people power in 1986, and
the resignation of former President Estrada from office as a result of pressure from the people who
gathered at EDSA to demand that the impeachment process be stopped for being a farce, and that Estrada
step down because he no longer had the mandate of the Filipino people. 8
While he admitted to having uttered the aforecited statements, respondent denied having made the same
to degrade the Court, to destroy public confidence in it and to bring it into disrepute. 9
After a careful consideration of respondent's arguments, the Court finds his explanation unsatisfactory
and hereby finds him guilty of indirect contempt of court for uttering statements aimed at influencing and
threatening the Court in deciding in favor of the constitutionality of the Plunder Law.
The judiciary, as the branch of government tasked to administer justice, to settle justiciable controversies
or disputes involving enforceable and demandable rights, and to afford redress of wrongs for the violation
of said rights 10 must be allowed to decide cases independently, free of outside influence or pressure. An
independent judiciary is essential to the maintenance of democracy, as well as of peace and order in
society. Further, maintaining the dignity of courts and enforcing the duty of citizens to respect them are
necessary adjuncts to the administration of justice. 11
Thus, Rule 71, Section 3 (d) of the Revised Rules of Court authorizes the courts to hold liable for criminal
contempt a person guilty of conduct that is directed against the dignity or authority of the court, or of an
act obstructing the administration of justice which tends to bring the court into disrepute or disrespect. 12
Respondent cannot justify his contemptuous statements asking the Court to dispel rumors that it would
declare the Plunder Law unconstitutional, and stating that a decision declaring it as such was basically
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wrong and would not be accepted by the people as utterances protected by his right to freedom of
speech.
Indeed, freedom of speech includes the right to know and discuss judicial proceedings, but such right does
not cover statements aimed at undermining the Court's integrity and authority, and interfering with the
administration of justice. Freedom of speech is not absolute, and must occasionally be balanced with the
requirements of equally important public interests, such as the maintenance of the integrity of the courts
and orderly functioning of the administration of justice. 13
Thus, the making of contemptuous statements directed against the Court is not an exercise of free speech;
rather, it is an abuse of such right. Unwarranted attacks on the dignity of the courts cannot be disguised
as free speech, for the exercise of said right cannot be used to impair the independence and efficiency of
courts or public respect therefor and confidence therein. 14 It is a traditional conviction of civilized society
everywhere that courts should be immune from every extraneous influence as they resolve the issues
presented before them. 15 The court has previously held that
. . . As important as the maintenance of an unmuzzled press and the free exercise of the
right of the citizen, is the maintenance of the independence of the judiciary. . . . This
Court must be permitted to proceed with the disposition of its business in an orderly
manner free from outside interference obstructive of its constitutional functions. This
right will be insisted upon as vital to an impartial court, and, as a last resort, as an
individual exercises the right of self-defense, it will act to preserve its existence as an
unprejudiced tribunal. 16
In People vs. Godoy, 17 this Court explained that while a citizen may comment upon the proceedings and
decisions of the court and discuss their correctness, and even express his opinions on the fitness or
unfitness of the judges for their stations, and the fidelity with which they perform the important public
trusts reposed in them, he has no right to attempt to degrade the court, destroy public confidence in it,
and encourage the people to disregard and set naught its orders, judgments and decrees. Such
publications are said to be an abuse of the liberty of speech and of the press, for they tend to destroy the
very foundation of good order and well-being in society by obstructing the course of justice. 18
Clearly, respondent's utterances pressuring the Court to rule in favor of the constitutionality of the
Plunder Law or risk another series of mass actions by the public cannot be construed as falling within the
ambit of constitutionally-protected speech, because such statements are not fair criticisms of any decision
of the Court, but obviously are threats made against it to force the Court to decide the issue in a particular
manner, or risk earning the ire of the public. Such statements show disrespect not only for the Court but
also for the judicial system as a whole, tend to promote distrust and undermine public confidence in the
judiciary, by creating the impression that the Court cannot be trusted to resolve cases impartially and
violate the right of the parties to have their case tried fairly by an independent tribunal, uninfluenced by
public clamor and other extraneous influences. 19
It is respondent's duty as an officer of the court, to uphold the dignity and authority of the courts and to
promote confidence in the fair administration of justice 20 and in the Supreme Court as the last bulwark
of justice and democracy. Respondent's utterances as quoted above, while the case of Estrada vs.
Sandiganbayan was pending consideration by this Court, belies his protestation of good faith but were
clearly made to mobilize public opinion and bring pressure on the Court.
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WHEREFORE, Atty. Leonard De Vera is found GUILTY of indirect contempt of court and is hereby FINED in
the amount of Twenty Thousand Pesos (P20,000.00) to be paid within ten (10) days from receipt of this
Decision.
SO ORDERED.
||| (In re De Vera, A.M. No. 01-12-03-SC, [July 29, 2002], 434 PHIL 503-510)
IN THE MATTER MACASAET 561 SCRA 395 (2008)
IN THE MATTER OF THE ALLEGATIONS CONTAINED IN THE COLUMNS OF MR. AMADO

P. MACASAET PUBLISHED IN MALAYA DATED SEPTEMBER 18, 19, 20 AND 21, 2007
DECISION
REYES, R.T., J p:
FREEDOM of the press and judicial independence (kalayaan ng pamamahayag at kalayaang

panghukuman) two constitutional values which unfortunately clash in this case for indirect contempt
of court have to be weighed and balanced against each other. HIaAED
The Antecedents
The case stemmed from certain articles that appeared in the "Business Circuit" column of Amado P.
Macasaet in the Malaya, a newspaper of general circulation of which he is the publisher. The articles,
containing statements and innuendoes about an alleged bribery incident in the Supreme Court, came out
in four (4) issues of the newspaper on September 18, 19, 20 and 21, 2007, reproduced as follows:
September 18, 2007
Bribery in the Court
A lady justice (I have not been told whether she is from the Supreme Court or the Court
of Appeals) did not report for a day last week.
Her secretary received a gift-wrapped box about the size of two dozen milk cans.
Believing that the "gift" might be something perishable, she opened the box. Indeed, it
was a gift estimated at P10 million. Posthaste, the secretary informed the magistrate
about the gift. She thought she was doing her job. The lady justice fired her instead.
She would not have anybody catch her accepting a bribe. But she practically did.
The stupidity here is that the bribe-giver what else would we call him or her did
not check whether the lady justice was in the office or not. Better still he or she could
have the box full of money delivered to her home. But then her family would get to
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know about and ask who was the kind soul that was so liberal with money a boxful
of it.
The Supreme Court cannot let this pass. A full investigation should be conducted. The
magistrate who was sent the bribe should be impeached.
The gift gives proof to the pernicious rumor that the courts are dirty. This time, the lady
justice is with a higher court.
The court is like a basket of apples. There a few which are rotten that makes the whole
basket rotten. IDSaTE
The names and reputation of highly-respected jurists must be saved from suspicions
they are thieves.
Here's the clue
The Court employee who was fired by the lady jurist is a niece of another lady justice
who earlier retired. The worker was inherited by the incumbent lady justice.
My problem with this report is that while my source is definite about the employee
opening a gift-wrapped box that contained at least P10 million, he won't confide to me
the identity of the jurist.
Unless the employee who was fired talks against her boss and she should as a matter
of duty we will never know who this justice really is. The members of the Supreme
Court, the Court of Appeals, the Sandiganbayan are all called justices.
The head of the Office of Government Corporate Counsel is also honored by being
addressed as such. So is the head of the Court of Tax Appeals.
Since the employee was fired for opening the box which she thought contained
perishable goods but turned out there was an estimated P10 million in it, she should be
loyal to her duty of telling the truth.
That way, she would have rendered a great service to the justice system. Without her
talking, every lady with the title of Justice is suspect. There are more than a dozen of
them in different courts but only one was caught red-handed taking a bribe. Her name
should be known so that the Supreme Court can act swiftly on a clear case of bribery.
Otherwise, this case becomes one where the pot calls the kettle black. Or is that the
reason the employee would not talk, that her former boss could spill the beans on her
peers?
September 19, 2007
The Bribe Giver
I learned from some lawyers that the bribe money given to a lady justice came from a
Chinese-Filipino businessman who has been criminally charged. CSTHca
It is funny that the delivery of five boxes of money (I said only one earlier) coincided on
the day the lady justice, obviously acting as ponente, acquitted the prospect.
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The secretary of the lady justice who took the bribe made five trips to the guardhouse
to pick up the boxes.
Incidentally, this secretary is a namesake of her aunt, a deceased associate justice of
the Supreme Court.
I dare say that if her name is Cecilia, it is entirely possible that the lady justice is a
member of the Supreme Court. The late justice Cecilia Muoz-Palma is the only lady
justice I know who retired and died at a ripe old age and left behind a reputation of
decency and integrity.
We are coming closer and closer to the truth. The lady justice shamed her court. She
should resign or be impeached.
That is the only way the soiled reputation of the Highest Court could be restored.
September 20, 2007
Cecilia, please save the court
I have established the lady justice's secretary who opened one of the five milk boxes
containing bribe money is a niece of the late, respected and honorable Associate Justice
Cecilia Muoz Palma from Batangas.
The secretary is a niece of the late justice and a namesake.
Cecilia, you have a duty to honor the memory of your aunt, who, during her stay in the
court, was known for having balls.
More important than that, you have a duty to save the sagging reputation of the
Supreme Court.
Cecilia, you must tell the Court en banc everything you know about the money that was
sent in five boxes to your boss.
Not in retaliation for your dismissal, but for no other reason than as a duty to your
country and, I must again say, to honor the memory of your late illustrious aunt, a legal
luminary and staunch defender of the Constitution. CHIScD
The other reason you must spill the beans is that if you do not, other lady justices are
suspects. That is not fair to them.
September 21, 2007
Wrong date, same facts
On verification, I discovered that the secretary of a lady justice of the Supreme Court
who was said to have accepted five milk boxes of money, was fired as early as March.
Not last week as I mistakenly reported.
It turns out that Cecilia Muoz-Delis from Bicol picked up the last five boxes several
times in March.
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She never opened the first four boxes which she picked up from the guardhouse of the
Court.
She opened the last and saw the money because the lady justice was absent on that
day. Forthwith, she was fired. Cecilia, who is from Bicol, never opened any of the first
four boxes delivered on various dates (I have not been told when). She picked up all of
them from the Supreme Court guardhouse and left them with the lady justice. She
wouldn't dare open the first four because the lady justice was in her office. She opened
the fifth one because the lady justice did not report for work on that day.
Cecilia thought that the gift-wrapped box contained some perishables like food. What
she found was money instead. She was fired.
Whenever a gift for lady justice comes, she would order Cecilia to pick it up from the
guardhouse. So the fifth she picked up was one of those errands.
Where is Cecilia?
I cannot get any information on the present whereabouts of Cecilia. However, if the
Supreme Court has intentions to investigate what I have been saying, maybe the Chief
Justice himself should find out where she could be sent an invitation to appear before
an investigation group in the Court.
Better still, as I said, yesterday, Cecilia should disclose everything she knows regarding
the box before the Court en banc.
Farthest thing from my mind is to embarrass the lady justice whose identity I do not
know up to now.
It is my conviction that the Court should investigate reports of wrongdoing by any of its
peers. Justice is served that way.
The Chief Justice and the rest of the justices should not have a problem finding out who
she is. ACcTDS
It is a simple job of asking a clerk to go to personnel department of the Court and find
out who Cecilia worked for. 1
The September 18, 2007 article, the first of the series of articles, caught the attention of Assistant Court
Administrator (ACA) Jose Midas P. Marquez, Chief of the Supreme Court Public Information Office, in the
course of his monitoring the daily news reports and columns in major newspapers. However, since it was
"vague about which 'court' was being referred to, whether the Supreme Court, the Court of Appeals, the
Sandiganbayan, or the Court of Tax Appeals", 2 ACA Marquez opted to merely note it. 3
The succeeding two articles, however, gave an indication that the supposed bribery happened in the
Supreme Court. Respondent Macasaet, in his September 19, 2007 article, wrote, among others, that "I
dare say that if her name is Cecilia, it is entirely possible that the lady justice is a member of the Supreme
Court . . . . We are coming closer and closer to the truth. The lady justice shamed her court. She should
resign or be impeached. That is the only way the soiled reputation of the Highest Court could be restored".
Similarly, in his September 20, 2007 article, respondent said that Cecilia had "a duty to save the sagging
reputation of the Supreme Court".
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Also on September 20, 2007, at around 6:00 p.m., Marites Daguilan-Vitug, Editor in Chief
of Newsbreak, faxed a letter to Supreme Court Associate Justice Consuelo Ynares-Santiago asking for
three things
1.In (sic) April 13, 2007, you concurred with a decision penned by Justice Romeo Callejo,
Sr. ruling that the Sandiganbayan Fifth Division did not commit a grave abuse
of discretion by finding probable cause against Henry Go. However, five months
later (September 3, 2007), acting on Go's motion for reconsideration, you
reversed yourself and ordered the dismissal of the graft case against Go. Please
explain the circumstances that led to this reversal.
2.We have gathered from three sources that you received a cash gift of P10 million after
you issued the decision early September. Please comment.
3.We're checking if this is accurate. Your secretary, who opened the gift-wrapped box
thinking that it contained perishable items, found cash instead. It was after this
incident that you removed her. 4 HDcaAI
Upon receipt of the faxed letter, Mme. Justice Ynares-Santiago called for ACA Marquez, showed him the
letter of Daguilan-Vitug, and requested him to tell Daguilan-Vitug that she (Mme. Justice Ynares-
Santiago) had been consistent on her position in the Go case, that she never reversed herself, that she
never received a cash gift, and that no secretary was terminated for opening a gift-wrapped box
containing money. Accordingly, ACA Marquez went back to his office, called up Daguilan-Vitug and told
her what Mme. Justice Ynares-Santiago told him. 5
That same evening, at around seven, Daguilan-Vitug faxed "the corrected version of the earlier letter"
1.On April 13, 2007, you dissented against the decision penned by Justice Romeo
Callejo, Sr. ruling that the Sandiganbayan Fifth Division did not commit a grave
abuse of discretion by finding probable cause against Henry Go. The vote was
3-2 in favor of Calleja's (sic) decision. Five months later (September 3, 2007),
acting on Go's motion for reconsideration (by that time, Callejo had already
retired), you ordered the dismissal of the graft case against Go. I understand
the exchanges were bitter and the deliberations long. Please explain the
contentious issues.
2.We have gathered from three sources that you received a cash gift of P10 million in
March 2007 in the midst of deliberations on the case. Please comment.
3.We're checking if this is accurate. Your secretary, who opened the gift-wrapped box
thinking that it contained perishable items, found cash instead. It was after this
incident that you removed her in March 2007. 6
The following day, September 21, 2007, respondent Macasaet, in his column, named the supposed
secretary who was "forthwith . . . fired" allegedly after opening the box of money: "It turns out that Cecilia
Muoz Delis from Bicol picked up the last five boxes several times in March".
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From the foregoing series of articles, respondent Macasaet has painted a clear picture: a Chinese-Filipino
businessman who was acquitted of a crime supposedly left P10 million in five different boxes with the
security guard at the Supreme Court guardhouse, which was picked up by Cecilia Muoz Delis who was
forthwith fired for opening one of the boxes. cSCADE
Upon the request of Mme. Justice Ynares-Santiago, the Chief Justice instructed ACA Marquez to have the
18th, 19th, 20th, and 21st September 2007 Business Circuit columns of respondent Macasaet included in
the September 25, 2007 agenda of the Court En Banc, 7 which case was docketed as A.M. No. 07-09-13-
SC. (Re: In the Matter of the Allegations Contained in the Columns of Mr. A.P. Macasaet Published
in Malaya dated September 18, 19, 20, and 21, 2007).
On September 24, 2007, Daisy Cecilia Muoz Delis, accompanied by the Clerk of Court En Banc, Hon. Ma.
Luisa D. Villarama, went to see Mme. Justice Ynares-Santiago and gave the latter copies of her letter to
respondent Macasaet and her affidavit. Delis, in her letter to respondent Macasaet, described his articles
as "baseless reports". "In other words", she wrote respondent Macasaet, "the scenario you painted and
continue to paint is improbable and could only have emanated from a polluted source, who,
unfortunately, chose me to be a part of this fictional charge". She clarified that she was a Judicial Staff
Officer, and not a secretary as the articles claimed she was; that she voluntarily resigned from office and
was not fired; that as a matter of procedure, she would not have been tasked to receive boxes, as such
was a duty assigned to their utility personnel; that it was "highly unlikely for something as blatant as [a]
bribery attempt to have been done right in the doors of the Court". 8 Delis ended her letter to respondent
Macasaet with a plea
My family and I have been suffering ever since your article came out last Tuesday,
because I was being alluded to. This suffering has increased because the name of my
beloved aunt . . . has been drawn into a controversy that should not have involved me
or any member of my family in the first place.
And so, I ask you, Sir, to please cease from mentioning my name or any of my relatives,
living or deceased, in order to promote your tabloid journalism. If your source is as
reliable as you believe, I suggest you practice better judgment and journalistic
responsibility by verifying your data before printing anything and affecting the lives of
innocent people. If this is some kind of war you are waging against the lady justice, we
do not want to be collateral damage. 9
In her affidavit, Delis stated that she "had nothing to do with, nor did . . . have any knowledge of such
alleged attempted bribery", 10 and that she executed her affidavit "to allow Justice Consuelo Ynares-
Santiago to defend her honor", 11 and "for the purpose of correcting the erroneous information of Mr.
Macasaet". 12
That same morning, too, despite the prior telephone conversation between ACA Marquez and Daguilan-
Vitug, Newsbreak posted an on-line article written by Danguilan-Vitug herself and Aries Rufo, which was
regularly updated, entitled "Supreme Court Justice Suspected of Accepting Payoff (update)" 13 with the
picture of Mme. Justice Ynares-Santiago aEDCSI
We pieced the story of the alleged bribery from accounts of various sources within and
outside the Supreme Court who have requested not to be named because of their
sensitive disclosures.
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In March this year, Ynares-Santiago fired her staff member, Cecilia Delis, supposedly
after the latter opened a gift-wrapped box delivered to their office, thinking that it
contained perishable items. Delis, however, found wads of peso bills instead. The
amount, two sources say, is estimated at P10 million. 14
Later that morning, Mme. Justice Ynares-Santiago called ACA Marquez to her office and gave him copies
of her written statement "categorically deny(ing) the accusations and insinuations, all malicious and
unfounded, published in Malaya and in Newsbreak"; and underscoring "that these are blatant lies clearly
aimed at smearing and maligning my character and person, and the integrity of the Judiciary which (she
has) been faithfully serving for 34 years now." 15 Mme. Justice Ynares-Santiago also gave ACA Marquez
copies of Delis' letter to respondent Macasaet and her affidavit, which Delis herself had brought to Mme.
Justice Ynares-Santiago earlier that morning. 16
In the afternoon of September 24, 2007, ACA Marquez held a press conference and released to the media
copies of Delis' letter to respondent Macasaet, her affidavit, and the written statement of Mme. Justice
Santiago. 17
On September 25, 2007, the Court En Banc issued a resolution stating
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 certain
statements and innuendoes therein tend, directly or indirectly, to impede, obstruct, or
degrade the administration of justice, within the purview of Section 3(d), Rule 71 of the
1997 Rules of Civil Procedure.
WHEREFORE, Amado P. Macasaet is ORDERED to EXPLAIN why no sanction should be
imposed on him for indirect contempt of court in accordance with Section 3(d), (Rule
71) of the 1997 Rules of Civil Procedure, within five (5) days from receipt
hereof. Ynares-Santiago, J., no part. 18 SECcAI
The following day, September 26, 2007, Newsbreak posted its on-line article entitled "Supreme Court
Orders Malaya Publisher to Explain Stories" with a banner headline, "This is not meant to chill the media".
On October 16, 2007, the Court En Banc noted respondent Macasaet's Explanation dated October 1,
2007, 19 and directed the Clerk of Court to include in the records of the case the affidavit of Delis dated
September 24, 2007. The High Court also created an investigating committee composed of retired
Supreme Court justices, namely, Justice Carolina Grio-Aquino as Chairperson; and Justices Vicente V.
Mendoza and Romeo J. Callejo, Sr., as members, "to receive the evidence from all parties concerned. The
Committee may, 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 was likewise directed "to submit its report
and recommendation within thirty (30) days from the start of its hearing". 20 Retired Justices Mendoza
and Callejo, however, both begged off and were eventually replaced by retired Supreme Court Justices
Jose C. Vitug 21 and Justo P. Torres. 22
The Investigation
From October 30, 2007 to March 10, 2008, the Investigating Committee held hearings and gathered
affidavits and testimonies from the parties concerned.
The Committee invited respondent Macasaet, Daguilan-Vitug, Delis, and ACA Marquez to a preliminary
meeting, in which they were requested to submit their respective affidavits which served as their
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testimonies on direct examination. 23 They were then later cross-examined on various dates: respondent
Macasaet on January 10, 2008, Daguilan-Vitug on January 17, 2008, Delis on January 24, 2008, and ACA
Marquez on January 28, 2008. The Chief of the Security Services and the Cashier of the High Court likewise
testified on January 22 and 24, 2008, respectively.
According to the Committee
AMADO P. MACASAET testified on January 10, 2008 but, as expected, he invoked his
right under R.A. No. 53, as amended by R.A. No. 1477 to refuse to disclose the source/s
of his story regarding the rumored bribery of a Lady Justice (later identified as Justice
Consuelo Ynares-Santiago) of a high court (later revealed as the Supreme Court) who
allegedly received Php10 million contained in a gift-wrapped Carnation carton
box (later changed to five [5] gift-wrapped boxes), for deciding a criminal case in favor
of a rich Chinese-Filipino businessman. (Pls. see columns of September 18 and 19,
2007) cSIACD
The pay-off was allegedly discovered when Cecilia Muoz-Delis (not the Lady Justice's
secretary but a judicial staff officer V of the PET or Presidential Electoral Tribunal) who
is a niece and namesake of retired Supreme Court Justice Cecilia Muoz Palma,
allegedly opened the "last" box (according to his column of September 21, 2007 titled
"Wrong date same facts"); but the "first" (according to his testimony on January 10,
2008, pp. 71, 89, 92, 125, tsn).
By his "own conclusion", the boxes of money were delivered on different
dates because "I don't think a bribe giver will deliver five boxes at the same time" (87,
tsn, January 10, 2008).
Macasaet testified that his "source" is not a relative of his, nor a government employee,
certainly not an employee of the judiciary, and, that he (Macasaet) has known him for
some 10 to 15 years (12-20, tsn, January 10, 2008).
Significantly, in his column of September 19, 2007, Macasaet revealed that he did not
have only one source, but several sources, i.e., "some lawyers", who told him "that the
bribe money given to a lady justice came from a Chinese-Filipino businessman who has
been criminally charged".
He emphatically declared on the witness chair that he trusts his source "with my heart
and soul" and believes his word "as coming straight out of the Bible" (94, 113, tsn,
January 10, 2008; 14, tsn, January 17, 2008). But because this source did not have direct
knowledge of the bribery (26, tsn, January 10, 2008), he allegedly tried to verify from
other sources the information he had received, but "I could not get confirmation" (29,
Notwithstanding the lack of confirmation and the paucity of details as to the identity of
the Lady Justice and of the High Court where she sits, Macasaet believes that "the
bribery had actually taken place" because "I trust my source with my heart and soul"
(93-94, 113, tsn, January 10, 2008).
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He decided to go ahead and publish the story because he "thought that eventually my
effort at consistently . . . exposing the alleged bribery, one day sooner or later
somebody will come up and admit or deny (it). And I think that (was) what really
happened" (29, tsn, January 10, 2008).
He found out that the Lady Justice involved is Justice Consuelo Ynares-Santiago of the
Supreme Court, after he received a letter dated September 21, 2007 from Cecilia
Muoz-Delis, the "Cecilia" mentioned in his columns, denying any knowledge of the
alleged bribery or boxes of money for she had already resigned (not dismissed) from
the Court on March 15, 2007, six (6) months before the alleged bribery supposedly
occurred a week before Macasaet wrote about it in his column of September 18, 2007.
(Annex "A", Letter dated September 21, 2007 of Cecilia Delis to Macasaet) aTEAHc
So, when did the bribery happen? The date was never made certain, for in his first
column of September 18, 2007, Macasaet stated that the gift-wrapped box of money
was delivered to the office of the Lady Justice, "a day last week" when the Lady Justice
did not report for work. That must have been sometime on September 10-14, 2007
the week before September 18, 2007.
However, the next day, September 19, 2007, he wrote in his column that the delivery
of five boxes (not just one box) of money, "coincided on the day that the Lady Justice,
acting as ponente, dismissed the criminal case against Chinese-Filipino businessman
Henry T. Go in the Sandiganbayan. That must be September 3, 2007 because the
Resolution in G.R. No. 172602 "Henry T. Go versus The Fifth Division, Sandiganbayan, et
al." was promulgated on that date. This he affirmed when he testified on January 10,
2008 (46, 74, tsn, January 10, 2008).
However, when he returned to the witness chair on January 17, 2008, after going back
to his informant (on his own request) to ascertain the dates when the boxes of money
were delivered to the Office of Justice Santiago, so that the Investigating Committee
could subpoena the relevant logbooks of the Security Services of the Court to verify the
truth of the alleged deliveries, Macasaet again changed his earlier testimonies on
date/dates of the deliveries. He informed the Committee that, according to his
informant, the deliveries were made "between November 2006 and March 2007";
"before Cecilia Delis resigned or was dismissed from the Court". 24
On March 11, 2008 the Investigating Committee submitted to the Office of the Chief Justice its March 10,
2008 Report and Recommendation, 25 with the followingfindings of facts on the subject columns
The following statements in Macasaet's columns appear to the Supreme Court to
be "innuendoes (that) 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".
1)From the column of Tuesday, September 18, 2007
"The gift gives proof to the pernicious rumor that the courts are dirty. This
time, the lady justice is with a higher court.
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The court is like a basket of apples. There (are) a few which are rotten. That
makes the whole basket rotten.
The names and reputation of highly-respected jurists must be saved
from suspicion that they are thieves. DCESaI
Her name should be known so that the Supreme Court can act swiftly on a clear
case of bribery. Otherwise, this case becomes one where the pot calls the kettle
black. Or, is that the reason the employee would not talk, that her former boss
could spill the beans on her peers?"
2)From the column of Wednesday, September 19, 2007
"The lady justice shamed her court. She should resign or be impeached. That is
the only way the soiled reputation of the Highest Court could be restored".
3)From the column of Thursday, September 20, 2007
"Cecilia . . . you have a duty to save the sagging reputation of the Supreme
Court".
Inasmuch as Macasaet's snide remarks about the courts, particularly the
Highest Court, and about the justices being suspected as thieves, appear to
have [been] provoked by the rumored bribery in the Court, the Investigating
Committee was constrained to find out how true the accusations were and
whether the columnist had exercised due care and diligence in checking out the
credibility of his informant and the veracity of the derogatory information fed
to him before he published it in his columns in the Malaya. 26
Additional observations and conclusion were submitted, like the following
The Committee finds that neither Macasaet's columns in Malaya, nor Ms. Vitug's
story in Newsbreak, about the pay-off of Php10 million to Justice Consuelo Ynares-
Santiago for rendering a Resolution favorable to Henry T. Go in his petition against the
Sandiganbayan (according to Macasaet), or, a decision favoring Barque against
Manotok in a big land case (according to Ms. Vitug), have a leg to stand on. As Justice
Vitug has observed during the last hearing before the Committee,everything that has
been heard thus far would appear to be hearsay. Ms. Vitug admitted "there is no paper
trail" to support the charge of bribery against Justice Santiago, for although her sources
had pointed to Cecilia Muoz Delis as the "root source" of the story, the information
she received was "second-hand or may be third-hand" because none of her sources had
talked with Delis herself (70, 72 tsn Jan. 17, 2008). Delis had refused to be interviewed
by her, and had emphatically denied in her letter and affidavit any knowledge of the
alleged bribery because she was no longer working in the Court when it supposedly
happened.
Macasaet's sources likewise fed him double hearsay information from a source that
refused to reveal the identity of the Lady Justice nor a high court but alleged that the
Php10 million bribe was discovered by her secretary named Cecilia, a niece and
namesake of the late Justice Cecilia Muoz Palma, who was fired from her job on
account of it. HCEcaT
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The Committee observed that Macasaet's story 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). 27 (Emphasis supplied)
The Committee likewise noted the inconsistencies and assumptions of Macasaet, betraying lack of
veracity of the alleged bribery
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, January
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 column 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. IEDHAT
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,
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 Court's Security Services affirmed that in his ten (10) years of
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service in the Court, he has not received any report of boxes of money being
delivered to any of the Justices (45-46, tsn, January 22, 2008). 28 cDEICH
The Committee further wondered which of the five (5) boxes was opened and yielded money. It found
1.. . . 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, January 10, 2008).
2.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, January 10, 2008).
But no sooner had he attributed that information "to my source" than he admitted that
it was only "my own conclusion . . . 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, January 10, 2008). SDHAcI
3.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 Php10
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, January 10, 2008).
He also merely "assumed that the money was in one thousand pesos bills (78, tsn,
January 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" (79, tsn, January 10, 2008). But, at the final hearing
on February 1, 2008, he denied that said that, "I never said carnation boxes;
I said milk boxes that should make a lot of difference" (84, tsn, February 1,
2008).
4.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,
January 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 calculation 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, January 10, 2008).
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The "sin of assumption" which is a cardinal sin in Newsbreak's Guide to Ethical

Journalistic Conduct was repeatedly committed by Macasaet in writing his story
about the bribery of a Lady Justice of the Supreme Court. (Annex "E", page 1,
Newsbreak Guide to Ethical Journalistic Conduct). 29 HSEcTC
Consequently, the Committee concluded
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 Php10
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 the 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?
xxx xxx xxx
The Committee considers this case not just another event that should pass unnoticed
for it has implications far beyond the allocated ramparts of free speech. Needless to
say, that while we espouse the enjoyment of freedom of expression by media,
particularly, it behooves it to observe great circumspection so as not to destroy
reputations, integrity and character so dear to every individual, more so to a revered
institution like the Supreme Court. Everyone deserves respect and dignity. 30
Finding sufficient basis to hold respondent Macasaet in indirect contempt of court, the
Committee recommended
The Committee finds that the statements of respondent Amado P. Macasaet about the
Supreme Court in his "Business Circuit" columns in the September 18-21, 2007 issues
of the newspaper Malaya, maligning and degrading the Supreme Court and tending
directly or indirectly to impede, obstruct, or degrade the administration of justice, to
be utterly unjustified.
WHEREFORE, the Committee believes there exist valid grounds for this Honorable
Court, if it is so minded, to cite Amado P. Macasaet for indirect contempt within the
purview of Section 3 (d), Rule 71 of the 1997 Rules of Civil Procedure. 31 (Emphasis
supplied)
Our Ruling
IN view of respondent's invocation of his right to press freedom as a defense, it is essential to first examine
the nature and evolution of this preferred liberty, together with the countervailing interest of judicial
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independence, which includes the right to due process of law, the right to a fair trial, and the preservation
of public confidence in the courts for the proper administration of justice. AaEcDS
Nature and History of Press Freedom
Freedom of expression, which includes freedom of speech and of the press, is one of the hallmarks of a
democratic society. It has been recognized as such for centuries.
The history of press freedom dates back to the English Magna Carta, promulgated in 1215, which
established the principle that not even the lawmaker should be above the law. Through the years, many
treatises on press freedom arose in reaction to various measures taken to curtail it.
In the 17th Century, John Milton wrote Areopagitica, a philosophical defense of the right to free speech.
It was a reaction to the Licensing Order of June 14, 1643, which declared that no "book, pamphlet, paper,
nor part of any such book, pamphlet, or paper, shall from henceforth be printed, bound, stitched or put
to sale by any person or persons whatsoever, unless the same be first approved of and licensed under the
hands of such person or persons as both, or either of the said Houses shall appoint for the licensing of the
same". Milton advocated that a written work should not be suppressed before publication. Writers of
treacherous, slanderous, or blasphemous materials should first be tried according to law. Only after it has
been established that their writings are of a treacherous, slanderous, or blasphemous nature should they
be subsequently punished for their wrongful acts.
Sir William Blackstone, 19th Century English jurist, in his still widely cited historical and analytical treatise
on English common law, aptly described the twin aspects of press freedom:
. . . Every freeman has an undoubted right to lay what sentiments he pleases before the
public: to forbid this is to destroy the freedom of the press: but if he publishes what is
improper, mischievous, or illegal, he must take the consequences of his own temerity.
To subject the press to the restrictive power of a licenser, as was formerly done, both
before and since the Revolution, is to subject all freedom of sentiment to the prejudices
of one man, and make him the arbitrary and infallible judge of all controverted points
in learning, religion and government. But to punish as the law does at present any
dangerous or offensive writings, which, when published, shall on a fair and impartial
trial be adjudged of a pernicious tendency, is necessary for the preservation of peace
and good order, of government and religion, the only solid foundations of civil
liberty. Thus, the will of individuals is still left free: the abuse only of that free will is the
object of legal punishment. Neither is any restraint hereby laid upon freedom of
thought or inquiry: liberty of private sentiment is still left; the disseminating, or making
public, of bad sentiments destructive to the ends of society, is the crime which society
corrects. 32 (Emphasis supplied) HTaIAC
In the United States, press freedom was first put into organic law with the First Amendment to
its Constitution,declaring that "Congress shall make no law . . . abridging the freedom of speech, or of the
press". This set in stone the basis for virtually all contemporary laws and jurisprudence on the subject of
press freedom.
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Our Constitutions and jurisprudence are no different. Section 4, Article III, 1987 Constitution, which in
part provides that "[n]o law shall be passed abridging the freedom of speech, of expression, or of the
press . . .," is a provision found in the 1935 and the 1973 Constitutions. 33
Media and Its Multiplying
Roles in Democracy
Due to their preferred position in the hierarchy of civil liberties, the freedoms of speech, of expression,
and of the press have progressed dramatically. As early as 1942, even before the advent of television, the
distinguished U.S. appellate court Judge Learned Hand had already observed that "[t]he hand that rules
the press, the radio, the screen, and the far-spread magazine, rules the country". He concluded that
media's power was an unchangeable fact of life: "Whether we like or not, we must learn to accept it".
There is much truth today in those statements. DCcHIS
One of the notable features of recent years is the accelerated development of the media. They have grown
from strength to strength, and have substantially influenced people, either favorably or unfavorably,
towards those in government. The use of information technology has firmed up the media networks' hold
on power. Traditional media for mass communication newspapers, magazines, radio, and standard
television have been joined by satellite and cable television, electronic mail, short messaging and multi-
media service, and the internet, giving rise to new opportunities for electronic news and information
companies to even intensify their influence over the general public.
Studies show that people rely heavily on the media for their knowledge of events in the world and for
impressions that form the basis for their own judgments. The media exert a strong influence on what
people think and feel. Certainly, the power of Philippine media is of no small measure
The power of the press to influence politics is proven. Policy issues and the
implementation of government programs requiring greater public discussion are
sometimes displaced in the government agenda by matters that have been given more
importance in the news. Public officials are obliged to attend to media queries even if
these are not necessarily the most important questions of the day. Nowhere in
Southeast Asia are government officials so accessible to the press. Cabinet ministers are
available from the earliest hours to answer questions from radio show hosts on the
news of the day involving their responsibilities.
Furthermore, television news programs have spawned media celebrities whose
popularity with the masses has catapulted their entry into politics. Media's focus on
celebrity has infected the political culture with exaggerated concern for personality and
color, and the kind of impact associated with sports and entertainment. Political parties
have tended to recruit popular figures from these fields to assure they have winners in
the race for seats in Congress. 34
The reach of Philippine media is quite extensive
In the Philippines radio has the biggest audience among all the mass media (85 percent),
followed by television at 74 percent, and print, 32 percent. Print, however, has an 82
percent reach in Metropolitan Manila, which has a population of some 10 million and
is the country's business, political, and cultural center. Print may thus be surmised to
be as influential in the capital as television, which has a reach of 96 percent among
residents. 35
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The mass media in a free society uphold the democratic way of life. They provide citizens with relevant
information to help them make informed decisions about public issues affecting their lives. Affirming the
right of the public to know, they serve as vehicles for the necessary exchange of ideas through fair and
open debate. As the Fourth Estate in our democracy, they vigorously exercise their independence and
vigilantly guard against infringements. Over the years, the Philippine media have earned the reputation
of being the "freest and liveliest" in Asia. 36 SCHIcT
Members of Philippine media have assumed the role of a watchdog and have been protective and
assertive of this role. They demand accountability of government officials and agencies. They have been
adversarial when they relate with any of the three branches of government. They uphold the citizen's
right to know, and make public officials, including judges and justices, responsible for their deeds or
misdeeds. Through their watchdog function, the media motivate the public to be vigilant in exercising the
citizens' right to an effective, efficient and corrupt-free government.
Open Justice and Judicial Independence
Closely linked with the right to freedom of speech and of the press is the public right to scrutinize and
criticize government. The freedom to question the government has been a protected right of long-
standing tradition throughout American history. There is no doubt that the fundamental freedom to
criticize government necessarily includes the right to criticize the courts, their proceedings and decisions.
Since the drafting of their Constitution over 200 years ago, American judges have anticipated and
sometimes even encouraged public scrutiny of themselves, if not of the judiciary as a whole. 37
This open justice principle, which is as fundamental to a democratic society as freedom of speech, has
been an accepted doctrine in several jurisdictions. It is justified on the ground that if the determination of
justice cannot be hidden from the public, this will provide: (1) a safeguard against judicial arbitrariness or
idiosyncrasy, and (2) the maintenance of the public's confidence in the administration of justice. 38
While most agree that the right to criticize the judiciary is critical to maintaining a free and democratic
society, there is also a general consensus that healthy criticism only goes so far. 39 Many types of criticism
leveled at the judiciary cross the line to become harmful and irresponsible attacks. These potentially
devastating attacks and unjust criticism can threaten the independence of the judiciary.
The debate over the independence of the judiciary is nothing new. More than 200 years ago, the Founding
Fathers of the American Constitution engaged in heated arguments, both before and after the
Constitutional Convention, focusing on the extent and nature of the judiciary's role in the newly-formed
government. 40 The signers of the Declaration of Independence, well aware of the oppressive results of
the unchecked political power of the King of England who established absolute tyranny over American
colonies, recognized the importance of creating a stable system of justice to protect the people.
Cognizant of the need to create a system of checks and balances to ensure that the rule of law shall rule,
the resulting Constitution provided for a three-tiered system of government, so structured that no branch
holds limitless power. cSCTEH
The judicial branch is described as the "least dangerous" branch of government. 41 But it holds a special
place in the tripartite system, as it is primarily responsible for protecting basic human liberties from
government encroachment. It completes the nation's system of checks and balances. It serves as an
arbiter of disputes between factions and instruments of government.
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In our constitutional scheme and democracy, our courts of justice are vested with judicial power, which
"includes the duty . . . to settle actual controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the government." 42 The
present judicial system allows the people to rely upon our courts with substantial certainty; it encourages
the resolution of disputes in courtrooms rather than on the streets.
To accomplish these tasks, an independent judiciary is very vital. Judicial independence is the backbone
of democracy. It is essential not only to the preservation of our justice system, but of government as well.
Chief Justice Shirley Abrahamson of the Wisconsin Supreme Court has observed that judicial
independence encompasses twodistinct but related concepts of independence. 43 cDAISC
One concept is individual judicial independence, which focuses on each particular judge and seeks to
insure his or her ability to decide cases with autonomy within the constraints of the law. A judge has this
kind of independence when he can do his job without having to hear or at least without having to take
it seriously if he does hear criticisms of his personal morality and fitness for judicial office. The second
concept is institutional judicial independence. It focuses on the independence of the judiciary as a branch
of government and protects judges as a class.
A truly independent judiciary is possible only when both concepts of independence are preserved
wherein public confidence in the competence and integrity of the judiciary is maintained, and the public
accepts the legitimacy of judicial authority. An erosion of this confidence threatens the maintenance of
an independent Third Estate.
For sure, judicial criticism can be constructive, uncovering and addressing a problem that merits public
attention. Public awareness, debate, and criticism of the courts ensure that people are informed of what
they are doing that have broad implications for all citizens. Informed discussion, comment, debate and
disagreement from lawyers, academics, and public officials have been hallmarks of a great legal tradition
and have played a vital role in shaping the law.
But there is an important line between legitimate criticism and illegitimate attack upon the courts or their
judges. Attacks upon the court or a judge not only risk the inhibition of all judges as they conscientiously
endeavor to discharge their constitutional responsibilities; they also undermine the people's confidence
in the courts.
Personal attacks, criticisms laden with political threats, those that misrepresent and distort the nature
and context of judicial decisions, those that are misleading or without factual or legal basis, and those that
blame the judges for the ills of society, damage the integrity of the judiciary and threaten the doctrine of
judicial independence. These attacks do a grave disservice to the principle of an independent judiciary
and mislead the public as to the role of judges in a constitutional democracy, shaking the very foundation
of our democratic government.
Such attacks on the judiciary can result in two distinct yet related undesirable
consequences. 44 First, the criticism will prevent judges from remaining insulated from the personal and
political consequences of making an unpopular decision, thus placing judicial independence at
risk. Second, unjust criticism of the judiciary will erode the public's trust and confidence in the judiciary as
an institution. Both judicial independence and the public's trust and confidence in the judiciary as an
institution are vital components in maintaining a healthy democracy. jur2005
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Accordingly, it has been consistently held that, while freedom of speech, of expression, and of the press
are at the core of civil liberties and have to be protected at all costs for the sake of democracy, these
freedoms are not absolute. For, if left unbridled, they have the tendency to be abused and can translate
to licenses, which could lead to disorder and anarchy.
Thus, in Gonzales v. Commission on Elections, 45 this Court ruled that "[f]rom the language of the specific
constitutional provision, it would appear that the right (to free expression) is not susceptible of any
limitation. No law may be passed abridging the freedom of speech and of the press. The realities of life in
a complex society preclude, however, a literal interpretation. Freedom of expression is not absolute. It
would be too much to insist that, at all times and under all circumstances, it should remain unfettered
and unrestrained. There are other societal values that press for recognition." 46
In Lagunzad v. Vda. De Gonzales, 47 it was held that while the right of freedom of expression occupies a
preferred position in the hierarchy of civil liberties, it is not without limitations. As the revered Holmes
once said, the limitation on one's right to extend one's fist is when it hits the nose of another.
Indeed, freedom of speech cannot be absolute and unconditional. In legal, political, and philosophical
contexts, it is always regarded as liable to be overridden by important countervailing interests, such as
state security, public order, safety of individual citizens, protection of reputation, and due process of law,
which encompasses not only the right to a fair trial, but also the preservation of public confidence in the
proper administration of justice.
As early as 1930, this Court, speaking through Mr. Justice George Malcolm, declared that "[a]s important
as is the maintenance of an unmuzzled press and the free exercise of the rights of the citizen is the
maintenance of the independence of the judiciary". 48
In Zaldivar v. Gonzalez, 49 the Court said that "freedom of speech and expression, like all constitutional
freedoms, is not absolute and that freedom of expression needs on occasion to be adjusted to and
accommodated with requirements of equally important public interests. One of these fundamental public
interests is the maintenance of the integrity and orderly functioning of the administration of justice. There
is no antinomy between free expression and the integrity of the system of administering justice. For the
protection and maintenance of freedom of expression itself can be secured only within the context of a
functioning and orderly system of dispensing justice, within the context, in other words, of viable
independent institutions for delivery of justice which are accepted by the general community". DSEaHT
As Mr. Justice Felix Frankfurter put it:
. . . A free press is not to be preferred to an independent judiciary, nor an independent
judiciary to a free press. Neither has primacy over the other; both are indispensable to
a free society.
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. 50
Even the major international and regional human rights instruments of civil and political rights the
International Covenant on Civil and Political Rights (ICCPR), 51 the European Convention on Human Rights
(ECHR), 52 the American Convention on Human Rights (ACHR), 53 and the African Charter on Human and
People's Rights (ACHPR)54 protect both freedom of expression and the administration of justice.
Freedom of expression is protected under Article 19 of the ICCPR
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(1)Everyone shall have the right to hold opinions without interference.

(2)Everyone shall have the right to freedom of expression; this right shall include
freedom to seek, receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or in print, in the form of art, or
through any other media of his choice.
However, Article 19 of the ICCPR is made subject to Article 14 (1), which guarantees the right of individuals
to "be equal before the courts and tribunals" and "be entitled to a fair . . . hearing by a competent,
independent and impartial tribunal", where "[t]he press and the public may be excluded from all or part
of a trial for reasons of morals, public order (order public) or national security in a democratic society, or
when the interest of the private lives of the Parties so requires, or to the extent strictly necessary in the
opinion of the court in special circumstances where publicity would prejudice the interests of justice . . .
."
Article 10 (2) of the ECHR goes further by explicitly mentioning the maintenance of the authority and
impartiality of the judiciary
The exercise of these freedoms, since it carries with it duties and responsibilities, may
be subject to such formalities, conditions, restrictions or penalties as are prescribed by
law and necessary in a democratic society, in the interests of national security,
territorial integrity or public safety, for the prevention of disorder or crime, for the
protection of health morals, for the protection of the reputation or rights of others, for
preventing disclosure of information received in confidence, or for maintaining the
authority and impartiality of the judiciary. (Emphasis supplied) ESCTIA
Judges have an affirmative duty to defend and uphold the integrity and independence of the judiciary.
The courts need to be able to sanction those who obstruct their processes. The judiciary itself must
continue to be a voice that explains and preserves its own independence. The respect accorded to judges
is an adjunct of the social-contract necessity for impartial judges in the creation of a civil society. In the
words of the great political philosopher John Locke
The great and chief end, therefore, for men's uniting into commonwealths, and putting
themselves under government, is the preservation of their property, to which in the
state of nature there are many things wanting . . . there wants an established, settled,
known law . . . there wants a known and indifferent judge, with authority to
determine all differences according to the established law . . . there often wants power
to back and support the sentence when right, and to give it due execution. 55 (Emphasis
supplied)
A Survey of Philippine Jurisprudence
The very first case decided by the Supreme Court, In the matter of the proceedings against Marcelino
Aguas for contempt of the Court of First Instance of Pampanga, 56was a contempt proceeding. Before, as
it is now, this Court had to use this power to impress upon contemnors the legal theory and constitutional
premises of judicial legitimacy complementing popular sovereignty and public interest. Writing for the
Court, Mr. Justice James Smith stated that contempt proceedings against a contemnor were against
someone who had done an act or was about to do such act which "was disrespectful to the court or
offensive to its dignity". 57 AcEIHC
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Through the years, the Court has punished contemnors for a variety of offenses that have attempted to
degrade its dignity and impeded the administration of justice.
In 1916, Amzi B. Kelly was fined P1,000 and sentenced to six months in prison for contempt of court after
he published a letter to the editor of The Independentcriticizing the Court for its decision to hold him in
contempt for having published a book stating that various government officials, including the members
of the Supreme Court, were guilty of politically assassinating General Mariano Noriel, who was executed
for the killing of a political rival in 1915. 58
In 1949, Atty. Vicente Sotto was fined P1,000.00 for publishing a statement in the Manila Times objecting
to one of the High Court's decisions, citing that such decision by the majority was but another evidence
of "the incompetency or narrow-mindedness of the majority of its members" and called for the
resignation of the Court's entire membership "in the wake of so many mindedness of the majority
deliberately committed during these last years". 59
In 1987, Eva Maravilla-Ilustre, 60 in almost identical letters dated October 20, 1986 sent to four (4) Justices
of the Supreme Court (all members of the First Division), stated among others
It is important to call your attention to the dismissal of (case cited) by
an untenable minute-resolution . . . which we consider as
an unjust resolution deliberately andknowingly promulgated by the First Division of the
Supreme Court of which you are a member.
We consider the three minute-resolutions . . . railroaded with such hurry/promptitude

unequalled in the entire history of the SC under circumstances that have gone beyond
the limits of legal and judicial ethics.
There is nothing final in this world. We assure you that this case is far from finished by
a long shot. For at the proper time, we shall so act and bring this case before another
forum where the members of the Court can no longer deny action with minute
resolutions that are not only unjust but are knowingly and deliberately promulgated . .
..
Please understand that we are pursuing further remedies in our quest for justice under
the law. We intend to hold responsible members of the First Division who participated
in the promulgation of these three minute-resolutions in question . . . . aCHDST
In our quest for justice, we wish to avoid having injustice to anyone, particularly the
members of the First Division, providing that they had no hand in the promulgation of
the resolution in question. . . . If, however, we do not hear from you after a week, then
we will consider your silence that you supported the dismissal of our petition. We will
then be guided accordingly. 61
The letter to one of the Justices further stated
We leave the next move to you by informing us your participation . . . . Please do not
take this matter lightly. . . . The moment we take action in the plans we are completing,
we will then call a press conference with TV and radio coverage. Arrangements in this
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regard are being done. The people should or ought to know why we were thwarted in
our quest for plain justice. 62
These letters were referred by the First Division en consulta to the Court en banc.
True to her threats, after having lost her case before the Supreme Court, Ilustre filed on December 16,
1986 an affidavit-complaint before the Tanodbayan, charging, among others, some Justices of both the
Supreme Court and the CA with knowingly and deliberately rendering "unjust resolutions".
On January 29, 1987, the Supreme Court en banc required Ilustre to show cause why she should not be
held in contempt for her foregoing statements, conduct, acts, and charges against the Supreme Court
and/or official actions of the justices concerned which, unless satisfactorily explained, transcended the
permissible bounds of propriety and undermined and degraded the administration of justice.
In her answer, Ilustre contended, inter alia, that she had no intention to affront the honor and dignity of
the Court; that the letters to the individual justices were private in character; that the Court was estopped,
having failed to immediately take disciplinary proceedings against her; and that the citation for contempt
was a vindictive reprisal against her. THaAEC
The Supreme Court found her explanation unsatisfactory. The claim of lack of evil intention was
disbelieved in the face of attendant circumstances. Reliance on the privacy of communication was likewise
held as misplaced. "Letters addressed to individual Justices in connection with the performance of their
judicial functions become part of the judicial records and are a matter of public concern for the entire
Court". (Underscoring supplied)
The Court likewise stated that it was only in the exercise of forbearance that it refrained from immediately
issuing a show-cause order, expecting that she and her lawyer would realize the unjustness and unfairness
of their accusations. Neither was there any vindictive reprisal involved. "The Court's authority and duty
under the premises is unmistakable. It must act to preserve its honor and dignity from the scurrilous
attacks of an irate lawyer, mouthed by his client, and to safeguard the morals and ethics of the legal
profession".
In resum, the Court found that Ilustre had transcended the permissible bounds of fair comment and
criticism to the detriment of the orderly administration of justice: (a) in her letters addressed to the
individual Justices, quoted in the show-cause Resolution, particularly the underlined portions thereof; (b)
in the language of the charges she filed before the Tanodbayan quoted in the same Resolution; (c) in her
statement, conduct, acts, and charges against the Supreme Court and/or official actions of the Justices
concerned and her description of improper motives; and (d) in her unjustified outburst that she could no
longer expect justice from the Court.
The fact that said letter was not technically considered pleadings nor the fact that they
were submitted after the main petition had been finally resolved does not detract from
the gravity of the contempt committed. The constitutional right of freedom of speech
or right to privacy cannot be used as a shield for contemptuous acts against the
Court. 63
Ilustre was fined P1,000.00 "for contempt", evidently considered as indirect, taking into account the
penalty imposed and the fact that the proceedings taken were not summary in nature.
In Perkins v. Director of Prisons, 64 the Court had an occasion to examine the fundamental foundations of
the power to punish for contempt: "The power to punish for contempt is inherent in all courts; its
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existence is essential to the preservation of order in judicial proceedings and to the enforcement of
judgments, orders, and mandates of the courts, and, consequently, to the due administration of
justice". 65 CIDTcH
The Court there held that "the exercise of this power is as old as the English history itself, and has always
been regarded as a necessary incident and attribute of courts. Being a common-law power, inherent in all
courts, the moment the courts of the United States were called into existence they became vested with
it. It is a power coming to us from the common law, and, so far as we know, has been universally admitted
and recognized." 66
After World War II, this Court reiterated it had an inherent power to punish for contempt, to control in
the furtherance of justice the conduct of ministerial officers of the Court including lawyers and all other
persons connected in any manner with a case before the Court. 67 This power to punish for contempt is
"necessary for its own protection against improper interference with the due administration of justice . .
. . It is not dependent upon the complaint of any of the parties-litigant". 68 These twin principles were to
be succinctly cited in the later case of Zaldivar v. Gonzales. 69
Of course, the power to punish for contempt is exercised on the preservative principle. There must be
caution and hesitancy on the part of the judge whenever the possible exercise of his awesome prerogative
presents itself. "The power to punish for contempt", as was pointed out by Mr. Justice Malcolm
in Villavicencio v. Lukban,70 "should be exercised on the preservative and not on the vindictive principle.
Only occasionally should the court invoke its inherent power to retain that respect without which the
administration of justice must falter or fail". But when called for, most especially when needed to preserve
the very existence and integrity of no less than the Highest Court, this principle bears importance. DHEaTS
In the 1995 case People v. Godoy, 71 the Court, citing In Re: Vicente Sotto, 72 had the opportunity to
define the relations of the courts and of the press. Quoting the statements made by Judge Holmes in U.S.
v. Sullen, 73 the Court said:
The administration of justice and the freedom of the press, though separate and
distinct, are equally sacred, and neither should be violated by the other. The press and
the courts have correlative rights and duties and should cooperate to uphold the
principles of the Constitution and laws, from which the former receives its prerogative
and the latter its jurisdiction. . . . In a clear case where it is necessary in order to dispose
of judicial business unhampered by publications which reasonably tend to impair the
impartiality of verdicts, or otherwise obstruct the administration of justice, the Court
will not hesitate to exercise undoubted power to punish for contempt. This Court must
be permitted to proceed with the disposition of its business in an orderly manner free
from outside interference obstructive of its constitutional functions. This right will be
insisted upon as vital to an impartial court, and, as a last resort, as an individual
exercises the right of self-defense, it will act to preserve its existence as an unprejudiced
tribunal. 74 (Emphasis supplied)
Thus, while the Court in Godoy agreed that our Constitution and our laws recognize the First Amendment
rights of freedom of speech and of the press, these two constitutional guaranties "must not be confused
with an abuse of such liberties". Quoting Godoy further
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Obstructing, by means of the spoken or written word, the administration of justice by

the courts has been described as an abuse of the liberty of the speech or the press such
as will subject the abuser to punishment for contempt of court. 75
Finally, in the more recent 2007 case Roxas v. Zuzuarregui, 76 the Court en banc in a unanimous per
curiam resolution imposed a P30,000 fine on Atty. Romeo Roxas for making "unfair and unfounded
accusations against a member of this Court, and mocking the Court for allegedly being part of the
wrongdoing and being a dispenser of injustice". We found the letter of Atty. Roxas full of "contemptuous
remarks that tended to degrade the dignity of the Court and erode public confidence that should be
accorded to it". We also said that his invocation of free speech and privacy of communication "will not,
however, free him from liability. As already stated, his letter contained defamatory statements that
impaired public confidence in the integrity of the judiciary. The making of contemptuous statements
directed against the Court is not an exercise of free speech; rather, it is an abuse of such right.
Unwarranted attacks on the dignity of the courts cannot be disguised as free speech, for the exercise of
said right cannot be used to impair the independence and efficiency of courts or public respect therefore
and confidence therein. Free expression must not be used as a vehicle to satisfy one's irrational obsession
to demean, ridicule, degrade and even destroy this Court and its magistrates." Accordingly, Atty. Roxas
was found guilty of indirect contempt of court and fined P30,000.00, with a warning that a repetition of a
similar act would warrant a more severe penalty. AIHECa
Application of Existing Jurisprudence

to the Case at Bar
In determining the liability of the respondent in this contempt proceeding, we weigh the conflicting
constitutional considerations respondent's claim of his right to press freedom, on one hand; and, on
the other hand, ensuring judicial independence by upholding public interest in maintaining the dignity of
the judiciary and the orderly administration of justice both indispensable to the preservation of
democracy and the maintenance of a just society.
The apparently conflicting constitutional considerations summed up by a distinguished former Judge of
the Supreme Court of India, Justice H.R. Khanna, bears a hand in resolving the issue
There are one or two matters to which I would like to make pointed reference in the
context of the freedom of the press. One of them relates to the danger of trial by the
press. Certain aspects of a case are so much highlighted by the press that the publicity
gives rise to strong public emotions. The inevitable effect of that is to prejudice the case
of one party or the other for a fair trial. We must consider the question as to what
extent are restraints necessary and have to be exercised by the press with a view to
preserving the purity of judicial process. At the same time, we have to guard against
another danger. A person cannot . . . by starting some kind of judicial proceedings in
respect of matter of vital public importance stifle all public discussions of that matter
on pain of contempt of court. A line to balance the whole thing has to be drawn at some
point. It also seems necessary in exercising the power of contempt of court . . . vis- -
vis the press that no hyper-sensitivity is shown and due account is taken of the proper
functioning of a free press in a democratic society. This is vital for ensuring the health
of democracy. At the same time, the press must also keep in view its responsibility and
see that nothing is done as may bring the courts . . . into disrepute and make people
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lose faith in these institution(s). One other matter which must not be lost sight of is that
while comment is free, facts are sacred. 77
We have no problems with legitimate criticisms pointing out flaws in our decisions, judicial reasoning, or
even how we run our public offices or public affairs. They should even be constructive and should pave
the way for a more responsive, effective and efficient judiciary.
Unfortunately, the published articles of respondent Macasaet are not of this genre. On the contrary, he
has crossed the line, as his are baseless scurrilous attacks which demonstrate nothing but an abuse of
press freedom. They leave no redeeming value in furtherance of freedom of the press. They do nothing
but damage the integrity of the High Court, undermine the faith and confidence of the people in the
judiciary, and threaten the doctrine of judicial independence.
A veteran journalist of many years and a president of a group of respectable media practitioners,
respondent Macasaet has brilliantly sewn an incredible tale, adorned it with some facts to make it lifelike,
but impregnated it as well with insinuations and innuendoes, which, when digested entirely by an
unsuspecting soul, may make him throw up with seethe. Thus, he published his highly speculative articles
that bribery occurred in the High Court, based on specious information, without any regard for the injury
such would cause to the reputation of the judiciary and the effective administration of justice. Nor did he
give any thought to the undue, irreparable damage such false accusations and thinly veiled allusions would
have on a member of the Court. EACTSH
The Investigating Committee could not have put it any better when it found respondent feigning his
"highest respect for this Court"
Macasaet's diatribes against the Court generate 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" (10, 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 involvingProclamation No. 1017, the
CPR, E.O. 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", suspicions that the jurists are "thieves",
that the Highest Court has a "soiled reputation", and that the Supreme Court has
a "sagging reputation".
He admitted that the rumor about the courts being "dirty" referred "specifically (to) the
Supreme Court" (100, tsn, Feb. 1, 2008) and was "based on personal conclusion which
(was), in turn, based on confidential information fed to me. It is in that respect that I
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thought that I have (a) duty to protect and keep the Honor of this Court" (98, tsn, Feb.
1, 2008).
He unburdened his heretofore hidden anger, if not disgust, with the Court when he
clarified "that the word dirty . . . is not necessarily related to money" (101, tsn, Feb. 1,
2008). "It is my belief that lack of familiarity with the law is . . . kind of dirty" referring
to then Associate Justice Artemio Panganiban's support for, and Chief Justice Hilario
Davide, Jr.'s act of swearing into office then Vice-President Gloria Macapagal Arroyo as
Acting President of the Philippines even while then President Joseph Estrada was still in
Malacaang, which Macasaet believed to be "quite a bit of dirt" (102-106, tsn, Feb. 1,
2008). 78
To reiterate the words of the Committee, this case is "not just another event that should pass unnoticed
for it has implications far beyond the allocated ramparts of free speech". 79 To allow respondent to use
press freedom as an excuse to capriciously disparage the reputation of the Court and that of innocent
private individuals would be to make a mockery of this liberty.
Respondent has absolutely no basis to call the Supreme Court a court of "thieves" and a "basket of rotten
apples". These publications directly undermine the integrity of the justices and render suspect the
Supreme Court as an institution. Without bases for his publications, purely resorting to speculation and
"fishing expeditions" in the hope of striking or creating a story, with utter disregard for the
institutional integrity of the Supreme Court, he has committed acts that degrade and impede the orderly
administration of justice.
We cannot close our eyes to the comprehensive Report and Recommendation of the Investigating
Committee. It enumerated the inconsistencies and assumptions of respondent which lacked veracity and
showed the reckless disregard of whether the alleged bribery was false or not. 80 HCEcAa
Indeed, the confidential information allegedly received by respondent by which he swears with his "heart
and soul" 81 was found by the Investigating Committeeunbelievable. It was a story that reeked of urban
legend, as it generated more questions than answers. 82
Respondent Macasaet's wanton disregard for the truth was exhibited by his apathetic manner of verifying
the veracity of the information he had gathered for his September 18, 19, 20, and 21, 2007 articles
concerning the alleged bribery of a Lady Justice. His bases for the amount of money, the number of boxes,
the date of delivery of the boxes, among other important details, were, by his own admission founded on
personal assumptions. This nonchalant attitude extended to his very testimony before the investigating
committee
Justice Aquino:
You did not endeavor to verify the information given by your source before publishing
the story about the bribery? ICaDHT
Mr. Macasaet:
I tried, I could not get confirmation, I thought that eventually my effort at consistently
trying or exposing the alleged bribery one day sooner or later somebody will
come up and admit or deny.
xxx xxx xxx
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Justice Vitug:
Do you confirm the fact of authorship of the columns of September 18, 19, 20, and 21,
2007?
Mr. Macasaet:
On a stack of Bible, I confirm it.
Justice Vitug:
Does that mean that you also confirm the accuracy of those information that were said?
Mr. Macasaet:
I am not confirming the accuracy of the information and I think that is precisely the
reason for this hearing, I must repeat that the purpose is to fish [the Lady
Justice] out so that the rest of the Lady Justices in all the Courts suspicion can
be removed from them. I failed in the sense that one denied, she felt alluded
to and said she is not involved. 83
Respondent thus admits to having written his articles as means to "fish out" the Lady Justice involved in
an alleged bribery fed to him by his source, with reckless disregard of whether or not such bribery indeed
took place. It defies reason why any responsible journalist would go on to publish any material in a
newspaper of general circulation without having ascertained even the five W's and one H of the story. 84
That he could not, through his extensive network of informants, confirm the approximate date when the
alleged bribery took place, the identities of the persons involved, or any other important detail, before he
began his series of articles only leads to the rational conclusion that he did not care whether or not the
story he published was true. His aim, as he admits, was to go on a fishing expedition to see if someone
would confirm or deny his now clearly baseless accusations. This practice of "fishing" for information by
publishing unverified information in a manner that leads the reading public to believe such is true cannot
be tolerated. aECSHI
Aggravating respondent's affront to the dignity of the Court is his unwillingness to show any remorse or
repentance for his contemptuous acts. In fact, as he made clear in his testimony before the Investigating
Committee when asked what his thoughts were about his having published the instant articles, he replied
that he was "happy in the sense that [he] did a job in [his] best lights and the effort ended up in the
creation of [the investigating panel]." 85
However, such assertions of having acted in the best interest of the Judiciary are belied by the fact that
he could have caused the creation of an investigating panel to look into such allegations in a more rational
and prudent manner. In the words of the Investigating Committee
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
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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. 86
It is precisely because of his failure to abide by the tenets of responsible journalism that we accept the
findings of the Investigating Committee in holding respondent Macasaet guilty of indirect contempt of
court. He must be made accountable for his complete failure to exercise even a single vestige of
responsible journalism in publishing his unfounded and ill-thought diatribes against the Judiciary and the
honorable people who serve it.
Respondent also asserts that the subject matter of his articles is within the exclusive jurisdiction of
Congress. He cites Section 2, Article XI of the 1987 Constitution which partly states that ". . . members of
the Supreme Court . . . may be removed from office, on impeachment for, and conviction of . . . bribery .
. ." and Section 3 (1), Article XI, which provides that "[t]he House of Representatives shall have the
exclusive power to initiate all case of impeachment".
We cannot agree. What Macasaet conveniently forgets is that no impeachment complaint has been filed
against Mme. Justice Ynares-Santiago. Thus, his cited constitutional provisions do not come into
play. EAcHCI
Respondent claims that there is a violation of his right to due process. From the time his articles were
published, no formal charge has been filed against him as required under Section 3, Rule 71 of the 1997
Rules of Civil Procedure.
Respondent fails to see, however, that under Section 4 of the same Rule, proceedings for indirect
contempt may be initiated motu proprio by the court against which the contempt was committed, by an
order or any other formal charge requiring respondent to show why he should not be punished for
contempt. Our Resolution dated September 25, 2007 satisfies the Rule. He cannot validly claim that such
resolution is vague. He cannot feign ignorance of the contents of his September 18, 19, 20, and 21, 2007
articles in the Malaya.
Rule 71 of the 1997 Rules of Civil Procedure pertinently provides:
SEC. 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.
xxx xxx xxx
(d)Any improper conduct tending, directly or indirectly, to impede, obstruct, or
degrade the administration of justice;
xxx xxx xxx
SEC. 7.Punishment for indirect contempt. If the respondent is adjudged guilty of
indirect contempt committed against a Regional Trial Court or a court of equivalentor
higher rank, he may be punished by a fine not exceeding thirty thousand pesos or
imprisonment not exceeding six (6) months, or both. . . . (Underscoring supplied)
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We are not unaware of the vigorous dissent of then Associate Justice, now our Chief Justice, Reynato S.
Puno, in an earlier case, 87 in which he so lucidly argued for the right to journalistic shield, behind which
the Dissenting Opinion of an esteemed colleague, Mr. Justice Carpio, and respondent Macasaet, take full
refuge. While we hold his thesis in high regard, the case at bar does not fall within his erudite defense of
press freedom. The critical issues then 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. Be that as it may,
elementary decision-making teaches that we cite the majority opinion as precedent, not lonely dissenting
opinions. 88 aSCHcA
In his Dissenting Opinion, Mr. Justice Carpio assails the Committee proceedings as "fatally defective for
patent denial of due process" 89 because "when the witnesses the Committee summoned testified, the
Committee monopolized the right to propound questions to the witnesses, denying to Macasaet such
right". 90 He continues to say that "[w]ith 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."91
We disagree on triple grounds.
First, the proceedings of the Committee are presumed to be regular. Thus, the onus probandi to prove
otherwise rests on Macasaet, not on the Committee. Suffice it to say that the Dissenting Opinion which
cites People v. Godoy as to the "criminal" character of a contempt proceeding, 92 fails to state
what Godoy likewise instructs
Strictly speaking however, they are not criminal proceedings or prosecutions, even
though the contemptuous act involved is also a crime. The proceeding has been
characterized as sui generis, partaking of some of the elements of both a civil and
criminal proceeding, but really constituting neither. In general, criminal contempt
proceedings should be conducted in accordance with the principles and rules applicable
to criminal cases, in so far as such procedure is consistent with the summary nature of
contempt proceedings. So it has been held that the strict rules that govern criminal
prosecutions apply to a prosecution for criminal contempt, that the accused is to be
afforded many of the protections provided in regular criminal cases, and that
proceedings under statutes governing them are to be strictly construed. However,
criminal proceedings are not required to take any particular form so long as the
substantial rights of the accused are preserved. 93
Second, assuming arguendo that Macasaet was not able to cross-examine his witnesses, this does not
necessarily mean that his right to due process of law was violated.
The right of an accused to cross-examine the witnesses against him, although an adjunct of the
Constitutional right "to meet the witnesses face to face," 94 can be waived when not timely asserted. In
the case of Macasaet, never did he assert his right to cross-examine the witnesses against him despite the
opportunity to do so. During the entire course of the proceedings in the Committee, respondent was
vigorously represented by counsel de parte. Respondent or his counsel could have moved to cross-
examine the adverse witnesses. Respondent had every opportunity to do so. Lamentably, he failed to
exercise the said right.
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Interestingly, during the last hearing date, counsel for respondent requested that respondent be allowed
to say something, which the Committee granted. Respondent then proceeded with a lengthy discourse,
all of 45 pages, on everything and anything, except his right to cross-examination. 95 Verily, it cannot be
validly claimed now that his right to cross-examine was violated. EaCDAT
Third, the Court is bereft of any power to invoke the right to cross-examine the witnesses against
respondent, for and in his behalf. Otherwise, the Court will be acting as his counsel, which is absurd.
Just a Word More
A free press is regarded as a key pillar of democracy. Reporters must be free to report, expose, and hold
government officials and agencies including an independent judiciary accountable. Press attention
surrounding the judiciary ensures public accountability. Such publicity acts as a check on judicial
competence and integrity, exposes inefficiencies and irregularities, keeps vigil over various public interest
cases, and puts pressure on responsible judicial officials. This freedom has been used and has benefited
the cause of justice. The press has become an important actor a judicial watchdog in the ongoing
judicial transformation. When properly validated, its acts are protected speech from an accepted
function. aIcDCT
Freedom, however, has not guaranteed quality journalism. The press has been vulnerable to a host of
legitimate criticisms such as incompetence, commercialism, and even corruption. By disproportionately
informing the public about specific court processes, or by spreading unsubstantiated allegations about
corruption and other forms of judicial misconduct, the press dramatically undermines the public's faith in
the courts and threatens the very foundation of our democratic government.
Oftentimes, journalists writing about the judiciary and court cases lack basic knowledge of the law and
judicial procedures, on the basis of which they draw faulty conclusions which they pass on to their readers
as gospel truths. Trial by publicity also influences the independence of judges as the public is fed with
partial information and vocal opinions, and judges are pressured to decide in accordance with the public
opinion. Faith in the judiciary is undermined when judges rule against the expectations of the public which
has been brainwashed by dramatic reports and graphic comments. In some cases, unchecked rumors or
allegations of irregularities are immediately published because journalists lack professional competence
to verify the information, or are simply eager to break the news and attract a wider readership.
The role of the press in relation to the judiciary needs to be regulated. This can be done through voluntary
codes of conduct on the part of the press and through judicial policies, such as the rule on sub judice and
contempt of court rulings. The absence of clear voluntary codes developed by the press, as its self-
regulator, strengthens the need for the Court to use its power in the meantime to cite critics for contempt.
This is necessary in cases where such criticism is obviously malicious or in violation of the sub judice rule,
or where there is an evident attempt to influence the outcome of a case. Judges have the duty to defend
and uphold the integrity and independence of the judiciary. They should sanction those who obstruct or
impede the judicial processes. The effective administration of justice may only be realized with the strong
faith and confidence of the public in the competence and integrity of the judiciary, free from political and
popular pressure.
Criticism at every level of government is certainly welcome. After all, it is an essential part of the checks
and balances in our republican system of government. However, criticisms should not impede or obstruct
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an integral component of our republican institutions from discharging its constitutionally-mandated

duties. ACcEHI
As the Court said in In Re: Almacen: 96
Courts and judges are not sacrosanct. They should and expect critical evaluation of their
performance. For like the executive and the legislative branches, the judiciary is rooted
in the soil of democratic society, nourished by the periodic appraisal of the citizen
whom it is expected to serve.
xxx xxx xxx
But it is the cardinal condition of all such criticism that it shall be bona fide, and shall
not spill over the walls of decency and propriety. A wide chasm exists between fair
criticism, on the one hand, and abuse and slander of courts and the judges thereof, on
the other. . . . 97
All told, illegitimate and uninformed criticisms against the courts and judges, those which cross the line
and attempt to subvert the judicial process, must be avoided. They do a great disservice to the
Constitution. They seriously mislead the public as to the proper functioning of the judiciary. While all
citizens have a right to scrutinize and criticize the judiciary, they have an ethical and societal obligation
not to cross that too important line.
Senator Ernesto Maceda, the seasoned politician who has graced both the executive and the legislative
departments in various capacities, in a Privilege Speech, once appealed for voluntary self-restraint with
respect to this Court
There are proper procedures for dealing with instances of official misdemeanor without
setting an entire institution on fire. Arson is not the best means for pest-control.
In case of possibility of corruption in the Supreme Court, one possible means is the
initiation of impeachment proceedings against specifically identified justices. A move
for impeachment, of course, requires much sobriety and solid evidence. Whatever
charges are brought forward must be substantiated. Those who dare prosecute must
come into the open and append their names to the accusations they make, with
courage and conviction. This is the manner civil society conserves its civility . . . . aEcADH
The ends of justice are not served by heckling nor by crude insinuation or by
irresponsible reporting. The house of democracy is never strengthened by those who
choose to throw rocks under the cover of darkness and anonymity. The institutions of
our liberty are never enriched by the irresponsible accusations of the uninformed. The
bedrocks of our Republic are not reinforced by those who evade responsibility under
the veil of freedom. 98
During interpellation, he went on to say
. . . And in the context of what I have just said, I think that all newspapers, all media are
welcome to do their worse, criticize the members of the Executive Department,
Members of the Senate, and any other agency of the Government. But I am just
suggesting that when it comes to the judiciary, and specifically to the Supreme Court,
that a different policy, one of more caution, should be adopted precisely because . . .
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people may lose faith in the Executive or the President; they may lose faith in Congress,
the Congressmen and the Senators, but as long as they have their faith unshaken and
complete in the last bulwark of democracy . . . which is the Supreme Court, then our
democracy will survive. 99
Each of us has important responsibilities in a constitutional democracy. We, judges, will continue to
discharge our judicial functions with fairness. We urge all and sundry to abide by theirs. We need to
respect each other. As the golden rule goes let us not do to others what we do not want others to do
to us. Igalang natin ang isa't-isa. Huwag nating gawin sa iba ang ayaw nating gawin nila sa atin.
Given the gravity of respondent Macasaet's improper conduct, coupled with the recalcitrant manner in
which he responded when confronted with the reality of his wrongdoing, a penalty of fine in the amount
of P20,000.00 would be right and reasonable.
Disposition
WHEREFORE, the Court declares respondent Amado P. Macasaet GUILTY of indirect contempt of court
and sentences him to pay a fine of P20,000.00, in accordance with Sections 3 (d) and 7, Rule 71 of the
1997 Rules of Civil Procedure. HaSEcA
SO ORDERED.
||| (In re Macasaet, A.M. No. 07-09-13-SC, [August 8, 2008], 583 PHIL 391-487)
LEJANO VS. PEOPLE 638 SCRA 104 (2010)
BRION, J., supplemental opinion:
In addition to my vote and independently of the merits of the present case, I write this opinion
to point out the growing disregard and non-observance of the sub judice rule, to the detriment of the
rights of the accused, the integrity of the courts, and, ultimately, the administration of justice. I seize
this opportunity fully aware that the present case dubbed in the news media as the Vizconde
Massacre is one of the most sensational criminal cases in Philippine history in terms of the mode
of commission of the crime and the personalities involved. From the time the charges were filed, the
case has captured the public's interest that an unusual amount of air time and print space have been
devoted to it. Of late, with the public's renewed interest after the case was submitted for decision,
key personalities have again been unabashedly publicizing their opinions and commenting even on
the merits of the case before various forms of media. A Senior Justice of this Court, who was a witness
in the case (while he was in private law practice) and who consequently inhibited himself from
participation, was even publicly maligned in the print and broadcast media through unsupported
speculations about his intervention in the case. That was how bad and how low comments about the
case had been.
In essence, the sub judice rule restricts comments and disclosures pertaining to pending
judicial proceedings. The restriction applies not only to participants in the pending case,i.e., to
members of the bar and bench, and to litigants and witnesses, but also to the public in general, which
necessarily includes the media. Although the Rules of Court does not contain a specific provision
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imposing the sub judice rule, it supports the observance of the restriction by punishing its violation
as indirect contempt under Section 3 (d) of Rule 71:
Section 3. Indirect contempt to be punished after charge and hearing. . . . a person
guilty of any of the following acts may be punished for indirect contempt:
xxx xxx xxx
(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or
degrade the administration of justice[.]
Persons facing charges for indirect contempt for violation of the sub judice rule often invoke
as defense their right to free speech and claim that the citation for contempt constitutes a form of
impermissible subsequent punishment.
We have long recognized in this jurisdiction that the freedom of speech under Section 4,
Article III of the Constitution is not absolute. A very literal construction of the provision, as espoused
by US Supreme Court Justice Hugo Black, 1 may lead to the disregard of other equally compelling
constitutional rights and principles. In Vicente v. Majaducon, 2 this Court declared that "[the freedom
of speech] needs on occasion to be adjusted to and accommodated with the requirements of equally
important public interests such as the maintenance of the integrity of courts and orderly functioning
of the administration of justice." Courts, both within and outside this jurisdiction, have long grappled
with the dilemma of balancing the public's right to free speech and the government's duty to
administer fair and impartial justice. While the sub judice rule may be considered as a curtailment of
the right to free speech, it is "necessary to ensure the proper administration of justice and the right
of an accused to a fair trial." 3 Both these latter concerns are equally paramount and cannot lightly
be disregarded. HSCcTD
Before proceeding with this line of thought, however, let me clarify that the sub judice rule is
not imposed on all forms of speech. In so far as criminal proceedings are concerned,two classes
of publicized speech made during the pendency of the proceedings can be considered as
contemptuous: first, comments on the merits of the case, and second,intemperate and unreasonable
comments on the conduct of the courts with respect to the case. Publicized speech should be
understood to be limited to those aired or printed in the various forms of media such as television,
radio, newspapers, magazines, and internet, and excludes discussions, in public or in private, between
and among ordinary citizens. TheConstitution simply gives the citizens the right to speech, not the
right to unrestricted publicized speech.
Comments on the merits of the case may refer to the credibility of witnesses, the character
of the accused, the soundness of the alibis offered, the relevance of the evidence presented, and
generally any other comment bearing on the guilt or innocence of the accused. 4 The danger posed
by this class of speech is the undue influence it may directly exert on the court in the resolution of the
criminal case, or indirectly through the public opinion it may generate against the accused and the
adverse impact this public opinion may have during the trial. The significance of the sub judice rule is
highlighted in criminal cases, as the possibility of undue influence prejudices the accused's right to a
fair trial. "The principal purpose of the sub judice rule is to preserve the impartiality of the judicial
system by protecting it from undue influence." 5 Public opinion has no place in a criminal trial. We
ruled that
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it is a traditional conviction of civilized society everywhere that courts and juries, in the
decision of issues of fact and law should be immune from every extraneous
influence; that facts should be decided upon evidence produced in court; and that the
determination of such facts should be uninfluenced by bias, prejudice or
sympathies. 6
The right to a fair trial is an adjunct of the accused's right to due process which "guarantees [him] a
presumption of innocence until the contrary is proved in a trial . . . where the conclusions reached are
induced not by any outside force or influence but only by evidence and argument given in open court,
where fitting dignity and calm ambiance is demanded." 7
In foreign jurisdictions, the courts do not hesitate to exercise their power to punish for
contempt where necessary to dispose of judicial business unhampered by publications that tend to
impair the impartiality of verdicts. 8
If the media publish prejudicial material, they can appear to urge, or may in fact be
urging, a particular finding: the media can "wage a campaign" against one of the parties
to proceedings. If the jury decides in accordance with an outcome promoted by the
media, it will appear as if the jurors were swayed by the media. By the same token, if
the jury's decision does not accord with media opinion, it may appear as if they were
deliberately reacting against it. Either way, it may appear that the jury's decision was
not impartial and based on the evidence presented in court, even if it was. 9 ECTIcS
The accused must be assured of a fair trial notwithstanding the prejudicial publicity; 10 he has a
constitutional right to have his cause tried fairly by an impartial tribunal, uninfluenced by publication
or public clamor. 11 "The sub judice doctrine protects against the appearance of decisions having
been influenced by published material." 12
As may be observed from the cited material, the sub judice rule is used by foreign courts to
insulate members of the jury from being influenced by prejudicial publicity. But the fact that the jury
system is not adopted in this jurisdiction is not an argument against our observance of the sub
judice rule; justices and judges are no different from members of the jury, they are not immune from
the pervasive effects of media. "It might be farcical to build around them an impregnable armor
against the influence of the most powerful media of public opinion." 13 As I said in another case, in a
slightly different context, even those who are determined, in their conscious minds, to avoid bias may
be affected. 14
Also, it is not necessary that the publicity actually influenced the court's disposition of the
case; "the actual impact of prejudicial publicity is not relevant to liability for sub
judicecontempt." 15 In several cases, the Court has noted the
enormous effect of media in stirring public sentience . . . Even while it may be difficult
to quantify the influence, or pressure that media can bring to bear on [witnesses and
judges] directly and through the shaping of public opinion, it is a fact, nonetheless, that,
indeed, it does so in so many ways and in varying degrees. The conscious or unconscious
effect that such a coverage may have on the testimony of witnesses and the decision of
judges cannot be evaluated but, it can likewise be said, it is not at all unlikely for a vote
of guilt or innocence to yield to it. 16
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Comment on the conduct of the courts with respect to the case becomes subject to a
contempt proceeding when it is intemperate, is contumacious, and unduly impairs upon the dignity
of the court. A comment that impairs of the dignity of the court "excites in the mind of the people a
general dissatisfaction with all judicial determinations, and indisposes their minds to obey
them[.]" 17 If the speech tends to undermine the confidence of the people in the honesty and
integrity of the court and its members, and lowers or degrades the administration of justice, then the
speech constitutes contempt. 18 "Unwarranted attacks on the dignity of the courts cannot be
disguised as free speech, for the exercise of said right cannot be used to impair the independence and
efficiency of courts or public respect therefore and confidence therein." 19 Without the sub
judice rule and the contempt power, the courts will be powerless to protect their integrity and
independence that are essential in the orderly and effective dispensation and administration of
justice. HacADE
This, of course, is not meant to stifle all forms of criticism against the court. As the third branch
of the government, the courts remain accountable to the people. The people's freedom to criticize
the government includes the right to criticize the courts, their proceedings and decisions. This is the
principle of open justice, which is fundamental to our democratic society and ensures that (a) there
is a safeguard against judicial arbitrariness or idiosyncrasy, and that (b) the public's confidence in the
administration of justice is maintained. 20 The criticism must, however, be fair, made in good faith,
and "not spill over the walls of decency and propriety." 21 And to enhance the open court principle
and allow the people to make fair and reasoned criticism of the courts, the sub judice rule excludes
from its coverage fair and accurate reports (without comment) of what have actually taken place in
open court.
In sum, the court, in a pending litigation, must be shielded from embarrassment or influence
in its all-important duty of deciding the case. 22 Any publication pending a suit, reflecting upon the
court, the parties, the officers of the court, the counsel, etc., with reference to the suit, or tending to
influence the decision of the controversy, is contempt of court and is punishable. The resulting (but
temporary) curtailment of speech because of the sub judice rule is necessary and justified by the more
compelling interests to uphold the rights of the accused and promote the fair and orderly
administration of justice.
If we do not apply at all the sub judice rule to the present case, the reason is obvious to those
who have followed the case in the media both parties are in pari delicto as both have apparently
gone to the media to campaign for the merits of their respective causes. Thus, the egregious action
of one has been cancelled by a similar action by the other. It is in this sense that this Supplemental
Opinion is independent of the merits of the case. Their common action, however, cannot have their
prejudicial effects on both; whatever the results may be, doubts will linger about the real merits of
the case due to the inordinate media campaign that transpired.
Lest we be misunderstood, our application of the sub judice rule to this case cannot serve as
a precedent for similar future violations. Precisely, this Supplemental Opinion is a signal to all that this
Court has not forgotten, and is in fact keenly aware of, the limits of what can be publicly ventilated
on the merits of a case while sub judice, and on the comments on the conduct of the courts with
respect to the case. This Court will not standby idly and helplessly as its integrity as an institution and
its processes are shamelessly brought to disrepute.
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||| (Lejano v. People, G.R. Nos. 176389, 176864, [December 14, 2010], 652 PHIL 512-
756)
RE: LETTER OF THE UP FACULTY 644 SCRA 543 (2011)
RE: LETTER OF THE UP LAW FACULTY ENTITLED "RESTORING INTEGRITY: A

STATEMENT BY THE FACULTY OF THE UNIVERSITY OF THE PHILIPPINES COLLEGE OF
LAW ON THE ALLEGATIONS OF PLAGIARISM AND MISREPRESENTATION IN THE
SUPREME COURT"
DECISION
LEONARDO-DE CASTRO, J p:
For disposition of the Court are the various submissions of the 37 respondent law
professors 1 in response to the Resolution dated October 19, 2010 (the Show Cause Resolution),
directing them to show cause why they should not be disciplined as members of the Bar for violation
of specific provisions of the Code of Professional Responsibility enumerated therein.
At the outset, it must be stressed that the Show Cause Resolution clearly dockets this as an
administrative matter, not a special civil action for indirect contempt under Rule 71 of the Rules of
Court, contrary to the dissenting opinion of Associate Justice Maria Lourdes P. A. Sereno (Justice
Sereno) to the said October 19, 2010 Show Cause Resolution. Neither is this a disciplinary proceeding
grounded on an allegedly irregularly concluded finding of indirect contempt as intimated by Associate
Justice Conchita Carpio Morales (Justice Morales) in her dissenting opinions to both the October 19,
2010 Show Cause Resolution and the present decision.
With the nature of this case as purely a bar disciplinary proceeding firmly in mind, the Court
finds that with the exception of one respondent whose compliance was adequate and another who
manifested he was not a member of the Philippine Bar, the submitted explanations, being mere
denials and/or tangential to the issues at hand, are decidedly unsatisfactory. The proffered defenses
even more urgently behoove this Court to call the attention of respondent law professors, who are
members of the Bar, to the relationship of their duties as such under the Code of Professional
Responsibility to their civil rights as citizens and academics in our free and democratic republic.
The provisions of the Code of Professional Responsibility involved in this case are as
follows: EDSHcT
CANON 1 A lawyer shall uphold the constitution, obey the laws of the land and
promote respect for law and legal processes.
RULE 1.02 A lawyer shall not counsel or abet activities aimed at defiance of
the law or at lessening confidence in the legal system.
CANON 10 A lawyer owes candor, fairness and good faith to the court.
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Rule 10.01 A lawyer shall not do any falsehood, nor consent to the doing of
any in court; nor shall he mislead, or allow the Court to be misled by any artifice.
Rule 10.02 A lawyer shall not knowingly misquote or misrepresent the
contents of paper, the language or the argument of opposing counsel, or the
text of a decision or authority, or knowingly cite as law a provision already
rendered inoperative by repeal or amendment, or assert as a fact that which
has not been proved.
Rule 10.03 A lawyer shall observe the rules of procedure and shall not misuse
them to defeat the ends of justice.
CANON 11 A lawyer shall observe and maintain the respect due to the courts and to
judicial officers and should insist on similar conduct by others.
RULE 11.05 A lawyer shall submit grievances against a Judge to the proper
authorities only.
CANON 13 A lawyer shall rely upon the merits of his cause and refrain from any
impropriety which tends to influence, or gives the appearance of influencing the court.
Established jurisprudence will undeniably support our view that when lawyers speak their
minds, they must ever be mindful of their sworn oath to observe ethical standards of their profession,
and in particular, avoid foul and abusive language to condemn the Supreme Court, or any court for
that matter, for a decision it has rendered, especially during the pendency of a motion for such
decision's reconsideration. The accusation of plagiarism against a member of this Court is not the real
issue here but rather this plagiarism issue has been used to deflect everyone's attention from the
actual concern of this Court to determine by respondents' explanations whether or not respondent
members of the Bar have crossed the line of decency and acceptable professional conduct and speech
and violated the Rules of Court through improper intervention or interference as third parties to a
pending case. Preliminarily, it should be stressed that it was respondents themselves who called upon
the Supreme Court to act on their Statement, 2 which they formally submitted, through Dean Marvic
M.V.F. Leonen (Dean Leonen), for the Court's proper disposition. Considering the defenses of freedom
of speech and academic freedom invoked by the respondents, it is worth discussing here that the legal
reasoning used in the past by this Court to rule that freedom of expression is not a defense in
administrative cases against lawyers for using intemperate speech in open court or in court
submissions can similarly be applied to respondents' invocation of academic freedom. Indeed, it is
precisely because respondents are not merely lawyers but lawyers who teach law and mould the
minds of young aspiring attorneys that respondents' own non-observance of the Code of Professional
Responsibility, even if purportedly motivated by the purest of intentions, cannot be ignored nor
glossed over by this Court. acHTIC
To fully appreciate the grave repercussions of respondents' actuations, it is apropos to revisit
the factual antecedents of this case.
BACKGROUND OF THE CASE
Antecedent Facts and Proceedings
On April 28, 2010, the ponencia of Associate Justice Mariano del Castillo (Justice Del Castillo)
in Vinuya, et al. v. Executive Secretary (G.R. No. 162230) was promulgated. On May 31, 2010, the
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counsel 3 for Vinuya, et al. (the "Malaya Lolas"), filed a Motion for Reconsideration of
the Vinuya decision, raising solely the following grounds:
I. OUR OWN CONSTITUTIONAL AND JURISPRUDENTIAL HISTORIES REJECT THIS
HONORABLE COURTS' (SIC) ASSERTION THAT THE EXECUTIVE'S FOREIGN POLICY
PREROGATIVES ARE VIRTUALLY UNLIMITED; PRECISELY, UNDER THE RELEVANT
JURISPRUDENCE AND CONSTITUTIONAL PROVISIONS, SUCH PREROGATIVES ARE
PROSCRIBED BY INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN STANDARDS,
INCLUDING THOSE PROVIDED FOR IN THE RELEVANT INTERNATIONAL CONVENTIONS
OF WHICH THE PHILIPPINES IS A PARTY. 4
II. THIS HONORABLE COURT HAS CONFUSED DIPLOMATIC PROTECTION WITH THE
BROADER, IF FUNDAMENTAL, RESPONSIBILITY OF STATES TO PROTECT THE HUMAN
RIGHTS OF ITS CITIZENS ESPECIALLY WHERE THE RIGHTS ASSERTED ARE SUBJECT
OF ERGA OMNES OBLIGATIONS AND PERTAIN TO JUS COGENS NORMS. 5
On July 19, 2010, 6 counsel for the Malaya Lolas, Attys. H. Harry L. Roque, Jr. (Atty. Roque)
and Romel Regalado Bagares (Atty. Bagares), filed a Supplemental Motion for Reconsideration in G.R.
No. 162230, where they posited for the first time their charge of plagiarism as one of the grounds for
reconsideration of the Vinuya decision. Among other arguments, Attys. Roque and Bagares asserted
that:
I.
IN THE FIRST PLACE, IT IS HIGHLY IMPROPER FOR THIS HONORABLE COURT'S
JUDGMENT OF APRIL 28, 2010 TO PLAGIARIZE AT LEAST THREE SOURCES AN ARTICLE
PUBLISHED IN 2009 IN THE YALE LAW JOURNAL OF INTERNATIONAL LAW, A BOOK
PUBLISHED BY THE CAMBRIDGE UNIVERSITY PRESS IN 2005 AND AN ARTICLE
PUBLISHED IN 2006 IN THE CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW
AND MAKE IT APPEAR THAT THESE SOURCES SUPPORT THE JUDGMENT'S
ARGUMENTS FOR DISMISSING THE INSTANT PETITION WHEN IN TRUTH, THE
PLAGIARIZED SOURCES EVEN MAKE A STRONG CASE FOR THE PETITION'S CLAIMS. 7
They also claimed that "[i]n this controversy, the evidence bears out the fact not only of extensive
plagiarism but of (sic) also of twisting the true intents of the plagiarized sources by the ponencia to
suit the arguments of the assailed Judgment for denying the Petition." 8 HEDCAS
According to Attys. Roque and Bagares, the works allegedly plagiarized in the Vinuya decision
were namely: (1) Evan J. Criddle and Evan Fox-Decent's article "A Fiduciary Theory of Jus Cogens;" 9 (2)
Christian J. Tams' book Enforcing Erga Omnes Obligations in International Law; 10 and (3) Mark Ellis'
article "Breaking the Silence: On Rape as an International Crime." 11
On the same day as the filing of the Supplemental Motion for Reconsideration on July 19,
2010, journalists Aries C. Rufo and Purple S. Romero posted an article, entitled "SC justice plagiarized
parts of ruling on comfort women," on the Newsbreak website. 12 The same article appeared on the
GMA News TV website also on July 19, 2010. 13
On July 22, 2010, Atty. Roque's column, entitled "Plagiarized and Twisted," appeared in the
Manila Standard Today. 14 In the said column, Atty. Roque claimed that Prof. Evan Criddle, one of the
authors purportedly not properly acknowledged in the Vinuya decision, confirmed that his work, co-
authored with Prof. Evan Fox-Decent, had been plagiarized. Atty. Roque quoted Prof. Criddle's
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response to the post by Julian Ku regarding the news report 15 on the alleged plagiarism in the
international law blog, Opinio Juris. Prof. Criddle responded to Ku's blog entry in this wise:
The newspaper's 16 [plagiarism] claims are based on a motion for reconsideration filed
yesterday with the Philippine Supreme Court yesterday. The motion is available here:
http://harryroque.com/2010/07/18/supplemental-motion-alleging-plagiarism-in-the-
supreme-court/
The motion suggests that the Court's decision contains thirty-four sentences and
citations that are identical to sentences and citations in my 2009 YJIL article (co-
authored with Evan Fox-Decent). Professor Fox-Decent and I were unaware of the
petitioners' [plagiarism] allegations until after the motion was filed today.
Speaking for myself, the most troubling aspect of the court's jus cogens discussion is
that it implies that the prohibitions against crimes against humanity, sexual slavery, and
torture are not jus cogens norms. Our article emphatically asserts the opposite. The
Supreme Court's decision is available
here: http://sc.judiciary.gov.ph/jurisprudence/2010/april2010/162230.htm 17
On even date, July 22, 2010, Justice Del Castillo wrote to his colleagues on the Court in reply
to the charge of plagiarism contained in the Supplemental Motion for Reconsideration. 18
In a letter dated July 23, 2010, another purportedly plagiarized author in the Vinuya decision,
Dr. Mark Ellis, wrote the Court, to wit:
Your Honours: SEcTHA
I write concerning a most delicate issue that has come to my attention in the last few
days.
Much as I regret to raise this matter before your esteemed Court, I am compelled, as a
question of the integrity of my work as an academic and as an advocate of human rights
and humanitarian law, to take exception to the possible unauthorized use of my law
review article on rape as an international crime in your esteemed Court's Judgment in
the case of Vinuya, et al. v. Executive Secretary, et al. (G.R. No. 162230, Judgment of 28
April 2010).
My attention was called to the Judgment and the issue of possible plagiarism by the
Philippine chapter of the Southeast Asia Media Legal Defence Initiative
(SEAMLDI), 19 an affiliate of the London-based Media Legal Defence Initiative (MLDI),
where I sit as trustee.
In particular, I am concerned about a large part of the extensive discussion in footnote
65, pp. 27-28, of the said Judgment of your esteemed Court. I am also concerned that
your esteemed Court may have misread the arguments I made in the article and
employed them for cross purposes. This would be ironic since the article was written
precisely to argue for the appropriate legal remedy for victims of war crimes, genocide,
and crimes against humanity.
I believe a full copy of my article as published in the Case Western Reserve Journal of
International Law in 2006 has been made available to your esteemed Court. I trust that
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your esteemed Court will take the time to carefully study the arguments I made in the
article.
I would appreciate receiving a response from your esteemed Court as to the issues
raised by this letter.
With respect,
(Sgd.)
Dr. Mark Ellis 20
In Memorandum Order No. 35-2010 issued on July 27, 2010, the Court formed the Committee
on Ethics and Ethical Standards (the Ethics Committee) pursuant to Section 13, Rule 2 of the Internal
Rules of the Supreme Court. In an En Banc Resolution also dated July 27, 2010, the Court referred the
July 22, 2010 letter of Justice Del Castillo to the Ethics Committee. The matter was subsequently
docketed as A.M. No. 10-7-17-SC.
On August 2, 2010, the Ethics Committee required Attys. Roque and Bagares to comment on
the letter of Justice Del Castillo. 21
On August 9, 2010, a statement dated July 27, 2010, entitled "Restoring Integrity: A
Statement by the Faculty of the University of the Philippines College of Law on the Allegations of
Plagiarism and Misrepresentation in the Supreme Court" (the Statement), was posted in Newsbreak's
website 22 and on Atty. Roque's blog. 23 A report regarding the statement also appeared on various
on-line news sites, such as the GMA News TV 24 and the Sun Star 25 sites, on the same date. The
statement was likewise posted at the University of the Philippines College of Law's bulletin board
allegedly on August 10, 2010 26 and at said college's website. 27 DHACES
On August 11, 2010, Dean Leonen submitted a copy of the Statement of the University of the
Philippines College of Law Faculty (UP Law faculty) to the Court, through Chief Justice Renato C.
Corona (Chief Justice Corona). The cover letter dated August 10, 2010 of Dean Leonen read:
The Honorable
Supreme Court of the Republic of the Philippines
Through: Hon. Renato C. Corona
Chief Justice
Subject: Statement of faculty

from the UP College of Law
on the Plagiarism in the case of
Vinuya v. Executive Secretary
Your Honors:
We attach for your information and proper disposition a statement signed by thirty[-
]eight (38) 28 members of the faculty of the UP College of Law. We hope that its
points could be considered by the Supreme Court en banc.
Respectfully,
(Sgd.)
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Marvic M.V.F. Leonen

Dean and Professor of Law
(Emphases supplied.)
The copy of the Statement attached to the above-quoted letter did not contain the actual
signatures of the alleged signatories but only stated the names of 37 UP Law professors with the
notation (SGD.) appearing beside each name. For convenient reference, the text of the UP Law faculty
Statement is reproduced here:
RESTORING INTEGRITY
A STATEMENT BY THE FACULTY OF
THE UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW
ON THE ALLEGATIONS OF PLAGIARISM AND
MISREPRESENTATION
IN THE SUPREME COURT
An extraordinary act of injustice has again been committed against the brave Filipinas
who had suffered abuse during a time of war. After they courageously came out with
their very personal stories of abuse and suffering as "comfort women", waited for
almost two decades for any meaningful relief from their own government as well as
from the government of Japan, got their hopes up for a semblance of judicial recourse
in the case of Vinuya v. Executive Secretary, G.R. No. 162230 (28 April 2010), they only
had these hopes crushed by a singularly reprehensible act of dishonesty and
misrepresentation by the Highest Court of the land. TacESD
It is within this frame that the Faculty of the University of the Philippines College of Law
views the charge that an Associate Justice of the Supreme Court committed plagiarism
and misrepresentation in Vinuya v. Executive Secretary. The plagiarism and
misrepresentation are not only affronts to the individual scholars whose work have
been appropriated without correct attribution, but also a serious threat to the integrity
and credibility of the Philippine Judicial System.
In common parlance, 'plagiarism' is the appropriation and misrepresentation of another
person's work as one's own. In the field of writing, it is cheating at best, and stealing at
worst. It constitutes a taking of someone else's ideas and expressions, including all the
effort and creativity that went into committing such ideas and expressions into writing,
and then making it appear that such ideas and expressions were originally created by
the taker. It is dishonesty, pure and simple. A judicial system that allows plagiarism in
any form is one that allows dishonesty. Since all judicial decisions form part of the law
of the land, to allow plagiarism in the Supreme Court is to allow the production of laws
by dishonest means. Evidently, this is a complete perversion and falsification of the ends
of justice.
A comparison of the Vinuya decision and the original source material shows that
the ponente merely copied select portions of other legal writers' works and
interspersed them into the decision as if they were his own, original work. Under the
circumstances, however, because the Decision has been promulgated by the Court, the
Decision now becomes the Court's and no longer just the ponente's. Thus the Court also
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bears the responsibility for the Decision. In the absence of any mention of the original
writers' names and the publications from which they came, the thing speaks for itself.
So far there have been unsatisfactory responses from the ponente of this case and the
spokesman of the Court.
It is argued, for example, that the inclusion of the footnotes from the original articles is
a reference to the 'primary' sources relied upon. This cursory explanation is not
acceptable, because the original authors' writings and the effort they put into finding
and summarizing those primary sources are precisely the subject of plagiarism. The
inclusion of the footnotes together with portions of their writings in fact aggravates,
instead of mitigates, the plagiarism since it provides additional evidence of a deliberate
intention to appropriate the original authors' work of organizing and analyzing those
primary sources.
It is also argued that the Members of the Court cannot be expected to be familiar with
all legal and scholarly journals. This is also not acceptable, because personal
unfamiliarity with sources all the more demands correct and careful attribution and
citation of the material relied upon. It is a matter of diligence and competence expected
of all Magistrates of the Highest Court of the Land.
But a far more serious matter is the objection of the original writers, Professors Evan
Criddle and Evan Fox-Descent, that the High Court actually misrepresents the
conclusions of their workentitled "A Fiduciary Theory of Jus Cogens," the main source
of the plagiarized text. In this article they argue that the classification of the crimes of
rape, torture, and sexual slavery as crimes against humanity have attained the status
of jus cogens, making it obligatory upon the State to seek remedies on behalf of its
aggrieved citizens. Yet, the Vinuya decision uses parts of the same article to arrive at
the contrary conclusion. This exacerbates the intellectual dishonesty of copying works
without attribution by transforming it into an act of intellectual fraud by copying works
in order to mislead and deceive. DHSEcI
The case is a potential landmark decision in International Law, because it deals with
State liability and responsibility for personal injury and damage suffered in a time of
war, and the role of the injured parties' home States in the pursuit of remedies against
such injury or damage. National courts rarely have such opportunities to make an
international impact. That the petitioners were Filipino "comfort women" who suffered
from horrific abuse during the Second World War made it incumbent on the Court of
last resort to afford them every solicitude.But instead of acting with urgency on this
case, the Court delayed its resolution for almost seven years, oblivious to the deaths of
many of the petitioners seeking justice from the Court. When it dismissed
the Vinuya petition based on misrepresented and plagiarized materials, the Court
decided this case based on polluted sources. By so doing, the Supreme Court added
insult to injury by failing to actually exercise its "power to urge and exhort the Executive
Department to take up the claims of the Vinuya petitioners. Its callous disposition,
coupled with false sympathy and nonchalance, belies a more alarming lack of concern
for even the most basic values of decency and respect. The reputation of the Philippine
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Supreme Court and the standing of the Philippine legal profession before other
Judiciaries and legal systems are truly at stake.
The High Court cannot accommodate less than absolute honesty in its decisions and
cannot accept excuses for failure to attain the highest standards of conduct imposed
upon all members of the Bench and Bar because these undermine the very foundation
of its authority and power in a democratic society. Given the Court's recent history and
the controversy that surrounded it, it cannot allow the charges of such clear and
obvious plagiarism to pass without sanction as this would only further erode faith and
confidence in the judicial system. And in light of the significance of this decision to the
quest for justice not only of Filipino women, but of women elsewhere in the world who
have suffered the horrors of sexual abuse and exploitation in times of war, the
Court cannot coldly deny relief and justice to the petitioners on the basis of pilfered and
misinterpreted texts.
The Court cannot regain its credibility and maintain its moral authority without ensuring
that its own conduct, whether collectively or through its Members, is beyond reproach.
This necessarily includes ensuring that not only the content, but also the processes of
preparing and writing its own decisions, are credible and beyond question.
The Vinuya Decision must be conscientiously reviewed and not casually cast aside, if
not for the purpose of sanction, then at least for the purpose of reflection and guidance.
It is an absolutely essential step toward the establishment of a higher standard of
professional care and practical scholarship in the Bench and Bar, which are critical to
improving the system of administration of justice in the Philippines. It is also a very
crucial step in ensuring the position of the Supreme Court as the Final Arbiter of all
controversies: a position that requires competence and integrity completely above any
and all reproach, in accordance with the exacting demands of judicial and professional
ethics. aICHEc
With these considerations, and bearing in mind the solemn duties and trust reposed
upon them as teachers in the profession of Law, it is the opinion of the Faculty of the
University of the Philippine College of Law that:
(1) The plagiarism committed in the case of Vinuya v. Executive Secretary is
unacceptable, unethical and in breach of the high standards of moral conduct
and judicial and professional competence expected of the Supreme Court;
(2) Such a fundamental breach endangers the integrity and credibility of the entire
Supreme Court and undermines the foundations of the Philippine judicial
system by allowing implicitly the decision of cases and the establishment of
legal precedents through dubious means;
(3) The same breach and consequent disposition of the Vinuya case does violence to
the primordial function of the Supreme Court as the ultimate dispenser of
justice to all those who have been left without legal or equitable recourse, such
as the petitioners therein;
(4) In light of the extremely serious and far-reaching nature of the dishonesty and to
save the honor and dignity of the Supreme Court as an institution, it is
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necessary for the ponente ofVinuya v. Executive Secretary to resign his position,
without prejudice to any other sanctions that the Court may consider
appropriate;
(5) The Supreme Court must take this opportunity to review the manner by which it
conducts research, prepares drafts, reaches and finalizes decisions in order to
prevent a recurrence of similar acts, and to provide clear and concise guidance
to the Bench and Bar to ensure only the highest quality of legal research and
writing in pleadings, practice, and adjudication.
Malcolm Hall, University of the Philippines College of Law, Quezon City, 27 July 2010.
(SGD.) MARVIC M.V.F. LEONEN
Dean and Professor of Law
(SGD.) FROILAN M. BACUNGAN (SGD.) PACIFICO A. AGABIN
Dean (1978-1983) Dean (1989-1995)
(SGD.) MERLIN M. MAGALLONA (SGD.) SALVADOR T. CARLOTA

Dean (1995-1999) Dean (2005-2008)
and Professor of Law
REGULAR FACULTY
(SGD.) CARMELO V. SISON (SGD.) JAY L. BATONGBACAL
Professor Assistant Professor
(SGD.) PATRICIA R.P. SALVADOR (SGD.) EVELYN (LEO) D. BATTAD

DAWAY Assistant Professor
Associate Dean and Associate Professor
(SGD.) DANTE B. GATMAYTAN (SGD.) GWEN G. DE VERA

Associate Professor Assistant Professor
(SGD.) THEODORE O. TE (SGD.) SOLOMON F. LUMBA

Assistant Professor Assistant Professor
(SGD.) FLORIN T. HILBAY (SGD.) ROMMEL J. CASIS

Assistant Professor Assistant Professor
LECTURERS
(SGD.) JOSE GERARDO A. ALAMPAY (SGD.) JOSE C. LAURETA
(SGD.) ARTHUR P. AUTEA (SGD.) DINA D. LUCENARIO
(SGD.) ROSA MARIA J. BAUTISTA (SGD.) OWEN J. LYNCH
(SGD.) MARK R. BOCOBO (SGD.) ANTONIO M. SANTOS
(SGD.) DAN P. CALICA (SGD.) VICENTE V. MENDOZA
(SGD.) TRISTAN A. CATINDIG (SGD.) RODOLFO NOEL S. QUIMBO
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(SGD.) SANDRA MARIE O. CORONEL (SGD.) GMELEEN FAYE B. TOMBOC

(SGD.) ROSARIO O. GALLO (SGD.) NICHOLAS FELIX L. TY
(SGD.) CONCEPCION L. JARDELEZA (SGD.) EVALYN G. URSUA
(SGD.) ANTONIO G.M. LA VIA (SGD.) RAUL T. VASQUEZ
(SGD.) CARINA C. LAFORTEZA (SGD.) SUSAN D. VILLANUEVA 29
(Underscoring supplied.)
Meanwhile, in a letter dated August 18, 2010, Prof. Christian J. Tams made known his
sentiments on the alleged plagiarism issue to the Court. 30 We quote Prof. Tams' letter here:ACcISa
Glasgow, 18 August 2010
Vinuya, et al. v. Executive Secretary, et al. (G.R. No. 162230)
Hon. Renato C. Corona, Chief Justice
Your Excellency,
My name is Christian J. Tams, and I am a professor of international law at the University
of Glasgow. I am writing to you in relation to the use of one of my publications in the
above-mentioned judgment of your Honourable Court.
The relevant passage of the judgment is to be found on p. 30 of your Court's Judgment,
in the section addressing the concept of obligations erga omnes. As the table annexed
to this letter shows, the relevant sentences were taken almost word by word from the
introductory chapter of my book Enforcing Obligations Erga Omnes in International
Law (Cambridge University Press 2005). I note that there is a generic reference to my
work in footnote 69 of the Judgment, but as this is in relation to a citation from another
author (Bruno Simma) rather than with respect to the substantive passages reproduced
in the Judgment, I do not think it can be considered an appropriate form of referencing.
I am particularly concerned that my work should have been used to support the
Judgment's cautious approach to the erga omnes concept. In fact, a most cursory
reading shows that my book's central thesis is precisely the opposite: namely that
the erga omnes concept has been widely accepted and has a firm place in
contemporary international law. Hence the introductory chapter notes that "[t]he
present study attempts to demystify aspects of the 'very mysterious' concept and
thereby to facilitate its implementation" (p. 5). In the same vein, the concluding section
notes that "the preceding chapters show that the concept is now a part of the reality of
international law, established in the jurisprudence of courts and the practice of States"
(p. 309).
With due respect to your Honourable Court, I am at a loss to see how my work should
have been cited to support as it seemingly has the opposite approach. More
generally, I am concerned at the way in which your Honourable Court's Judgment has
drawn on scholarly work without properly acknowledging it.
On both aspects, I would appreciate a prompt response from your Honourable
Court. ICTacD
I remain
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Sincerely yours
(Sgd.)
Christian J. Tams 31
In the course of the submission of Atty. Roque and Atty. Bagares' exhibits during the August
26, 2010 hearing in the ethics case against Justice Del Castillo, the Ethics Committee noted that Exhibit
"J" (a copy of the Restoring Integrity Statement) was not signed but merely reflected the names of
certain faculty members with the letters (SGD.) beside the names. Thus, the Ethics Committee
directed Atty. Roque to present the signed copy of the said Statement within three days from the
August 26 hearing. 32
It was upon compliance with this directive that the Ethics Committee was given a copy of the
signed UP Law Faculty Statement that showed on the signature pages the names of the full roster of
the UP Law Faculty, 81 faculty members in all. Indubitable from the actual signed copy of the
Statement was that only 37 of the 81 faculty members appeared to have signed the same. However,
the 37 actual signatories to the Statement did not include former Supreme Court Associate Justice
Vicente V. Mendoza (Justice Mendoza) as represented in the previous copies of the Statement
submitted by Dean Leonen and Atty. Roque. It also appeared that Atty. Miguel R. Armovit (Atty.
Armovit) signed the Statement although his name was not included among the signatories in the
previous copies submitted to the Court. Thus, the total number of ostensible signatories to the
Statement remained at 37.
The Ethics Committee referred this matter to the Court en banc since the same Statement,
having been formally submitted by Dean Leonen on August 11, 2010, was already under consideration
by the Court. 33
In a Resolution dated October 19, 2010, the Court en banc made the following observations
regarding the UP Law Faculty Statement:
Notably, while the statement was meant to reflect the educators' opinion on
the allegations of plagiarism against Justice Del Castillo, they treated such allegation
not only as an established fact, but a truth. In particular, they expressed dissatisfaction
over Justice Del Castillo's explanation on how he cited the primary sources of the
quoted portions and yet arrived at a contrary conclusion to those of the authors of the
articles supposedly plagiarized.
Beyond this, however, the statement bore certain remarks which raise concern for the
Court. The opening sentence alone is a grim preamble to the institutional attack that
lay ahead. It reads:
An extraordinary act of injustice has again been committed against the brave
Filipinas who had suffered abuse during a time of war. ISaCTE
The first paragraph concludes with a reference to the decision in Vinuya v. Executive
Secretary as a reprehensible act of dishonesty and misrepresentation by the Highest
Court of the land. . . . .
The insult to the members of the Court was aggravated by imputations of deliberately
delaying the resolution of the said case, its dismissal on the basis of "polluted sources,"
the Court'salleged indifference to the cause of petitioners [in the Vinuya case], as well
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as the supposed alarming lack of concern of the members of the Court for even the
most basic values of decency and respect. 34 . . . . (Underscoring ours.)
In the same Resolution, the Court went on to state that:
While most agree that the right to criticize the judiciary is critical to maintaining a free
and democratic society, there is also a general consensus that healthy criticism only
goes so far. Many types of criticism leveled at the judiciary cross the line to
become harmful and irresponsible attacks. These potentially devastating attacks and
unjust criticism can threaten the independence of the judiciary. The court must "insist
on being permitted to proceed to the disposition of its business in an orderly
manner, free from outside interference obstructive of its functions and tending to
embarrass the administration of justice."
The Court could hardly perceive any reasonable purpose for the faculty's less than
objective comments except to discredit the April 28, 2010 Decision in the Vinuya case
and undermine the Court's honesty, integrity and competence in addressing the motion
for its reconsideration. As if the case on the comfort women's claims is not controversial
enough, the UP Law faculty would fan the flames and invite resentment against a
resolution that would not reverse the said decision. This runs contrary to their
obligation as law professors and officers of the Court to be the first to uphold the
dignity and authority of this Court, to which they owe fidelity according to the oath
they have taken as attorneys, and not to promote distrust in the administration of
justice. 35 . . . . (Citations omitted; emphases and underscoring supplied.) ATSIED
Thus, the Court directed Attys. Marvic M.V.F. Leonen, Froilan M. Bacungan, Pacifico A. Agabin,
Merlin M. Magallona, Salvador T. Carlota, Carmelo V. Sison, Patricia R.P. Salvador Daway, Dante B.
Gatmaytan, Theodore O. Te, Florin T. Hilbay, Jay L. Batongbacal, Evelyn (Leo) D. Battad, Gwen G. De
Vera, Solomon F. Lumba, Rommel J. Casis, Jose Gerardo A. Alampay, Miguel R. Armovit, Arthur P.
Autea, Rosa Maria J. Bautista, Mark R. Bocobo, Dan P. Calica, Tristan A. Catindig, Sandra Marie O.
Coronel, Rosario O. Gallo, Concepcion L. Jardeleza, Antonio G.M. La Via, Carina C. Laforteza, Jose C.
Laureta, Owen J. Lynch, Rodolfo Noel S. Quimbo, Antonio M. Santos, Gmeleen Faye B. Tomboc,
Nicholas Felix L. Ty, Evalyn G. Ursua, Raul T. Vasquez, Susan D. Villanueva and Dina D. Lucenario to
show cause, within ten (10) days from receipt of the copy of the Resolution, why they should not be
disciplined as members of the Bar for violation of Canons 1, 36 11 and 13 and Rules 1.02 and 11.05 of
the Code of Professional Responsibility. 37
Dean Leonen was likewise directed to show cause within the same period why he should not
be disciplinarily dealt with for violation of Canon 10, Rules 10.01, 10.02 and 10.03 for submitting
through his letter dated August 10, 2010, during the pendency of G.R. No. 162230 and of the
investigation before the Ethics Committee, for the consideration of the Court en banc, a dummy which
is not a true and faithful reproduction of the UP Law Faculty Statement. 38
In the same Resolution, the present controversy was docketed as a regular administrative
matter.
Summaries of the Pleadings Filed by
Respondents in Response to the October
19, 2010 Show Cause Resolution
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On November 19, 2010, within the extension for filing granted by the Court, respondents filed
the following pleadings:
(1) Compliance dated November 18, 2010 by counsels for 35 of the 37 respondents,
excluding Prof. Owen Lynch and Prof. Raul T. Vasquez, in relation to the charge
of violation of Canons 1, 11 and 13 and Rules 1.02 and 11.05 of the Code of
Professional Responsibility;
(2) Compliance and Reservation dated November 18, 2010 by Prof. Rosa Maria T. Juan-
Bautista in relation to the same charge in par. (1);
(3) Compliance dated November 19, 2010 by counsel for Prof. Raul T. Vasquez in
relation to the same charge in par. (1);
(4) Compliance dated November 19, 2010 by counsels for Dean Leonen, in relation to
the charge of violation of Canon 10, Rules 10.01, 10.02 and 10.03; and HSTCcD
(5) Manifestation dated November 19, 2010 by counsel for Prof. Owen Lynch.
Common Compliance of 35 Respondents
(Excluding Prof. Owen Lynch and Prof.
Raul Vasquez)
Thirty-five (35) of the respondent UP Law professors filed on November 19, 2010 a common
compliance which was signed by their respective counsels (the Common Compliance). In the "Preface"
of said Common Compliance, respondents stressed that "[they] issued the Restoring Integrity
Statement in the discharge of the 'solemn duties and trust reposed upon them as teachers in the
profession of law,' and as members of the Bar to speak out on a matter of public concern and one
that is of vital interest to them." 39 They likewise alleged that "they acted with the purest of
intentions" and pointed out that "none of them was involved either as party or counsel" 40 in
the Vinuya case. Further, respondents "note with concern" that the Show Cause Resolution's findings
and conclusions were "a prejudgment that respondents indeed are in contempt, have breached
their obligations as law professors and officers of the Court, and have violated 'Canons [1], 11 and 13
and Rules 1.02 and 11.05 of the Code of Professional Responsibility." 41
By way of explanation, the respondents emphasized the following points:
(a) Respondents' alleged noble intentions
In response to the charges of failure to observe due respect to legal processes 42 and the
courts 43 and of tending to influence, or giving the appearance of influencing the Court 44in the
issuance of their Statement, respondents assert that their intention was not to malign the Court but
rather to defend its integrity and credibility and to ensure continued confidence in the legal system.
Their noble motive was purportedly evidenced by the portion of their Statement "focusing on
constructive action." 45 Respondents' call in the Statement for the Court "to provide clear and concise
guidance to the Bench and Bar to ensure only the highest quality of legal research and writing in
adjudication," was reputedly "in keeping with strictures enjoining lawyers to 'participate in the
development of the legal system by initiating or supporting efforts in law reform and in the
improvement of the administration of justice'" (under Canon 4 of the Code of Professional
Responsibility) and to "promote respect for the law and legal processes" (under Canon
1, id.). 46 Furthermore, as academics, they allegedly have a "special interest and duty to vigilantly
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guard against plagiarism and misrepresentation because these unwelcome occurrences have a
profound impact in the academe, especially in our law schools." 47 acHCSD
Respondents further "[called] on this Court not to misconstrue the Restoring Integrity
Statement as an 'institutional attack' . . . on the basis of its first and ninth paragraphs." 48They further
clarified that at the time the Statement was allegedly drafted and agreed upon, it appeared to them
the Court "was not going to take any action on the grave and startling allegations of plagiarism and
misrepresentation." 49 According to respondents, the bases for their belief were (i) the news article
published on July 21, 2010 in the Philippine Daily Inquirer wherein Court Administrator Jose Midas P.
Marquez was reported to have said that Chief Justice Corona would not order an inquiry into the
matter; 50 and (ii) the July 22, 2010 letter of Justice Del Castillo which they claimed "did nothing but
to downplay the gravity of the plagiarism and misrepresentation charges." 51 Respondents claimed
that it was their perception of the Court's indifference to the dangers posed by the plagiarism
allegations against Justice Del Castillo that impelled them to urgently take a public stand on the issue.
(b) The "correctness" of respondents' position that Justice Del Castillo committed plagiarism
and should be held accountable in accordance with the standards of academic writing
A significant portion of the Common Compliance is devoted to a discussion of the merits of
respondents' charge of plagiarism against Justice Del Castillo. Relying on University of the Philippines
Board of Regents v. Court of Appeals 52 and foreign materials and jurisprudence, respondents
essentially argue that their position regarding the plagiarism charge against Justice Del Castillo is the
correct view and that they are therefore justified in issuing their Restoring Integrity Statement.
Attachments to the Common Compliance included, among others: (i) the letter dated October 28,
2010 of Peter B. Payoyo, LL.M, Ph.D., 53 sent to Chief Justice Corona through Justice Sereno, alleging
that the Vinuya decision likewise lifted without proper attribution the text from a legal article by
Mariana Salazar Albornoz that appeared in the Anuario Mexicano De Derecho Internacional and from
an International Court of Justice decision; and (ii) a 2008 Human Rights Law Review Article entitled
"Sexual Orientation, Gender Identity and International Human Rights Law" by Michael O'Flaherty and
John Fisher, in support of their charge that Justice Del Castillo also lifted passages from said article
without proper attribution, but this time, in his ponencia in Ang Ladlad LGBT Party v. Commission on
Elections. 54
(c) Respondents' belief that they are being "singled out" by the Court when others have
likewise spoken on the "plagiarism issue"
In the Common Compliance, respondents likewise asserted that "the plagiarism and
misrepresentation allegations are legitimate public issues." 55 They identified various published
reports and opinions, in agreement with and in opposition to the stance of respondents, on the issue
of plagiarism, specifically:
(i) Newsbreak report on July 19, 2010 by Aries Rufo and Purple Romero; 56
(ii) Column of Ramon Tulfo which appeared in the Philippine Daily Inquirer on July 24,
2010; 57
(iii) Editorial of the Philippine Daily Inquirer published on July 25, 2010; 58
(iv) Letter dated July 22, 2010 of Justice Del Castillo published in the Philippine Star on
July 30, 2010; 59
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(v) Column of Former Intellectual Property Office Director General Adrian Cristobal, Jr.
published in the Business Mirror on August 5, 2010; 60 SIDEaA
(vi) Column of Former Chief Justice Artemio Panganiban published in the Philippine
Daily Inquirer on August 8, 2010; 61
(vii) News report regarding Senator Francis Pangilinan's call for the resignation of
Justice Del Castillo published in the Daily Tribune and the Manila Standard
Today on July 31, 2010; 62
(viii) News reports regarding the statement of Dean Cesar Villanueva of the Ateneo de
Manila University School of Law on the calls for the resignation of Justice Del
Castillo published in The Manila Bulletin, the Philippine Star and the Business
Mirror on August 11, 2010; 63
(ix) News report on expressions of support for Justice Del Castillo from a former dean
of the Pamantasan ng Lungsod ng Maynila, the Philippine Constitutional
Association, the Judges Association of Bulacan and the Integrated Bar of the
Philippines Bulacan Chapter published in the Philippine Star on August 16,
2010; 64 and
(x) Letter of the Dean of the Liceo de Cagayan University College of Law published in
the Philippine Daily Inquirer on August 10, 2010. 65
In view of the foregoing, respondents alleged that this Court has singled them out for
sanctions and the charge in the Show Cause Resolution dated October 19, 2010 that they may have
violated specific canons of the Code of Professional Responsibility is unfair and without basis.
(d) Freedom of expression
In paragraphs 28 to 30 of the Common Compliance, respondents briefly discussed their
position that in issuing their Statement, "they should be seen as not only to be performing their duties
as members of the Bar, officers of the court, and teachers of law, but also as citizens of a democracy
who are constitutionally protected in the exercise of free speech." 66 In support of this contention,
they cited United States v. Bustos, 67 In re: Atty. Vicente Raul Almacen, 68 and In the Matter of
Petition for Declaratory Relief Re: Constitutionality of Republic Act 4880, Gonzales v. Commission on
Elections. 69 CSAaDE
(e) Academic freedom
In paragraphs 31 to 34 of the Common Compliance, respondents asserted that their
Statement was also issued in the exercise of their academic freedom as teachers in an institution of
higher learning. They relied on Section 5 of the University of the Philippines Charter of 2008 which
provided that "[t]he national university has the right and responsibility to exercise academic
freedom." They likewise adverted to Garcia v. The Faculty Admission Committee, Loyola School of
Theology 70 which they claimed recognized the extent and breadth of such freedom as to encourage
a free and healthy discussion and communication of a faculty member's field of study without fear of
reprisal. It is respondents' view that had they remained silent on the plagiarism issue in
the Vinuya decision they would have "compromised [their] integrity and credibility as teachers; [their
silence] would have created a culture and generation of students, professionals, even lawyers, who
would lack the competence and discipline for research and pleading; or, worse, [that] their silence
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would have communicated to the public that plagiarism and misrepresentation are inconsequential
matters and that intellectual integrity has no bearing or relevance to one's conduct." 71
In closing, respondents' Common Compliance exhorted this Court to consider the following
portion of the dissenting opinion of Justice George A. Malcolm in Salcedo v. Hernandez, 72 to wit:
Respect for the courts can better be obtained by following a calm and impartial course
from the bench than by an attempt to compel respect for the judiciary by chastising a
lawyer for a too vigorous or injudicious exposition of his side of a case. The Philippines
needs lawyers of independent thought and courageous bearing, jealous of the interests
of their clients and unafraid of any court, high or low, and the courts will do well
tolerantly to overlook occasional intemperate language soon to be regretted by the
lawyer which affects in no way the outcome of a case. 73
On the matter of the reliefs to which respondents believe they are entitled, the Common
Compliance stated, thus:
WHEREFORE:
A. Respondents, as citizens of a democracy, professors of law, members of the Bar
and officers of the Court, respectfully pray that:
1. the foregoing be noted; and
2. the Court reconsider and reverse its adverse findings in the Show Cause
Resolution, including its conclusions that respondents have: [a]
breached their "obligation as law professors and officers of the Court
to be the first to uphold the dignity and authority of this Court, . . . and
not to promote distrust in the administration of justice;" and [b]
committed "violations of Canons 10, 11, and 13 and Rules 1.02 and
11.05 of the Code of Professional Responsibility." CcaASE
B. In the event the Honorable Court declines to grant the foregoing prayer,
respondents respectfully pray, in the alternative, and in assertion of their due process
rights, that before final judgment be rendered:
1. the Show Cause Resolution be set for hearing;
2. respondents be given a fair and full opportunity to refute and/or address the
findings and conclusions of fact in the Show Cause Resolution (including
especially the finding and conclusion of a lack of malicious intent), and
in that connection, that appropriate procedures and schedules for
hearing be adopted and defined that will allow them the full and fair
opportunity to require the production of and to present testimonial,
documentary, and object evidence bearing on the plagiarism and
misrepresentation issues inVinuya v. Executive Secretary (G.R. No.
162230, April 28, 2010) and In the Matter of the Charges of Plagiarism,
etc. Against Associate Justice Mariano C. Del Castillo (A.M. No. 10-7-17-
SC); and
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3. respondents be given fair and full access to the transcripts, records, drafts,
reports and submissions in or relating to, and accorded the opportunity
to cross-examine the witnesses who were or could have been called
in In the Matter of the Charges of Plagiarism, etc. Against Associate
Justice Mariano C. Del Castillo (A.M. No. 10-7-17-SC). 74
Compliance and Reservation of Prof.
Rosa Maria T. Juan-Bautista
Although already included in the Common Compliance, Prof. Rosa Maria T. Juan-Bautista
(Prof. Juan-Bautista) filed a separate Compliance and Reservation (the Bautista Compliance), wherein
she adopted the allegations in the Common Compliance with some additional averments.
Prof. Juan-Bautista reiterated that her due process rights allegedly entitled her to challenge
the findings and conclusions in the Show Cause Resolution. Furthermore, "[i]f the Restoring Integrity
Statement can be considered indirect contempt, under Section 3 of Rule 71 of the Rules of Court,
such may be punished only after charge and hearing." 75
Prof. Juan-Bautista stressed that respondents signed the Statement "in good faith and with
the best intentions to protect the Supreme Court by asking one member to resign." 76For her part,
Prof. Juan-Bautista intimated that her deep disappointment and sadness for the plight of the Malaya
Lolas were what motivated her to sign the Statement. SEACTH
On the point of academic freedom, Prof. Juan-Bautista cited jurisprudence 77 which in her
view highlighted that academic freedom is constitutionally guaranteed to institutions of higher
learning such that schools have the freedom to determine for themselves who may teach, what may
be taught, how lessons shall be taught and who may be admitted to study and that courts have no
authority to interfere in the schools' exercise of discretion in these matters in the absence of grave
abuse of discretion. She claims the Court has encroached on the academic freedom of the University
of the Philippines and other universities on their right to determine how lessons shall be taught.
Lastly, Prof. Juan-Bautista asserted that the Statement was an exercise of respondents'
constitutional right to freedom of expression that can only be curtailed when there is grave and
imminent danger to public safety, public morale, public health or other legitimate public interest. 78
Compliance of Prof. Raul T. Vasquez
On November 19, 2010, Prof. Raul T. Vasquez (Prof. Vasquez) filed a separate Compliance by
registered mail (the Vasquez Compliance). In said Compliance, Prof. Vasquez narrated the
circumstances surrounding his signing of the Statement. He alleged that the Vinuya decision was a
topic of conversation among the UP Law faculty early in the first semester (of academic year 2010-11)
because it reportedly contained citations not properly attributed to the sources; that he was shown a
copy of the Statement by a clerk of the Office of the Dean on his way to his class; and that, agreeing
in principle with the main theme advanced by the Statement, he signed the same in utmost good
faith. 79
In response to the directive from this Court to explain why he should not be disciplined as a
member of the Bar under the Show Cause Resolution, Prof. Vasquez also took the position that a
lawyer has the right, like all citizens in a democratic society, to comment on acts of public officers. He
invited the attention of the Court to the following authorities: (a) In re: Vicente Sotto; 80 (b) In re:
Atty. Vicente Raul Almacen; 81 and (c) a discussion appearing in American Jurisprudence (AmJur)
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2d. 82 He claims that he "never had any intention to unduly influence, nor entertained any illusion
that he could or should influence, [the Court] in its disposition of the Vinuya case" 83 and that
"attacking the integrity of [the Court] was the farthest thing on respondent's mind when he signed
the Statement." 84 Unlike his colleagues, who wish to impress upon this Court the purported
homogeneity of the views on what constitutes plagiarism, Prof. Vasquez stated in his Compliance
that:
13. Before this Honorable Court rendered its Decision dated 12 October 2010, some
espoused the view that willful and deliberate intent to commit plagiarism is an
essential element of the same. Others, like respondent, were of the opinion that
plagiarism is committed regardless of the intent of the perpetrator, the way it has
always been viewed in the academe. This uncertainty made the issue a fair topic for
academic discussion in the College. Now, this Honorable Court has ruled that
plagiarism presupposes deliberate intent to steal another's work and to pass it off as
one's own. 85 (Emphases supplied.) HCaDIS
Also in contrast to his colleagues, Prof. Vasquez was willing to concede that he "might have
been remiss in correctly assessing the effects of such language [in the Statement] and could have been
more careful." 86 He ends his discussion with a respectful submission that with his explanation, he
has faithfully complied with the Show Cause Resolution and that the Court will rule that he had not in
any manner violated his oath as a lawyer and officer of the Court.
Separate Compliance of Dean Leonen
regarding the charge of violation of
Canon 10 in relation to his submission of
a "dummy" of the UP Law Faculty
Statement to this Court
In his Compliance, Dean Leonen claimed that there were three drafts/versions of the UP Law
Faculty Statement, which he described as follows:
"Restoring Integrity I" which bears the entire roster of the faculty of the UP College
of Law in its signing pages, and the actual signatures of the thirty-seven (37)
faculty members subject of the Show Cause Resolution. A copy was filed with
the Honorable Court by Roque and Butuyan on 31 August 2010 in A.M. No. 10-
7-17-SC.
"Restoring Integrity II" which does not bear any actual physical signature, but which
reflects as signatories the names of thirty-seven (37) members of the faculty
with the notation "(SGD.)". A copy of Restoring Integrity II was publicly and
physically posted in the UP College of Law on 10 August 2010. Another copy
of Restoring Integrity II was also officially received by the Honorable Court from
the Dean of the UP College of Law on 11 August 2010, almost three weeks
before the filing of Restoring Integrity I.
"Restoring Integrity III" which is a reprinting of Restoring Integrity II, and which
presently serves as the official file copy of the Dean's Office in the UP College
of Law that may be signed by other faculty members who still wish to. It bears
the actual signatures of the thirty-seven original signatories to Restoring
Integrity I above their printed names and the notation "(SGD.") and, in addition,
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the actual signatures of eight (8) other members of the faculty above their
handwritten or typewritten names. 87
For purposes of this discussion, only Restoring Integrity I and Restoring Integrity II are
relevant since what Dean Leonen has been directed to explain are the discrepancies in the signature
pages of these two documents. Restoring Integrity III was never submitted to this Court. IAETDc
On how Restoring Integrity I and Restoring Integrity II were prepared and came about, Dean
Leonen alleged, thus:
2.2. On 27 July 2010, sensing the emergence of a relatively broad agreement in the
faculty on a draft statement, Dean Leonen instructed his staff to print the draft and
circulate it among the faculty members so that those who wished to may sign. For this
purpose, the staff encoded the law faculty roster to serve as the printed draft's signing
pages. Thus did the first printed draft of the Restoring Integrity Statement, Restoring
Integrity I, come into being.
2.3. As of 27 July 2010, the date of the Restoring Integrity Statement, Dean Leonen was
unaware that a Motion for Reconsideration of the Honorable Court's Decision in Vinuya
vs. Executive Secretary (G.R. No. 162230, 28 April 2010) had already been filed, or that
the Honorable Court was in the process of convening its Committee on Ethics and
Ethical Standards in A.M. No. 10-7-17-SC.
2.4. Dean Leonen's staff then circulated Restoring Integrity I among the members of
the faculty. Some faculty members visited the Dean's Office to sign the document or
had it brought to their classrooms in the College of Law, or to their offices or residences.
Still other faculty members who, for one reason or another, were unable to
sign Restoring Integrity I at that time, nevertheless conveyed to Dean Leonen their
assurances that they would sign as soon as they could manage.
2.5. Sometime in the second week of August, judging that Restoring Integrity I had
been circulated long enough, Dean Leonen instructed his staff to reproduce the
statement in a style and manner appropriate for posting in the College of Law. Following
his own established practice in relation to significant public issuances, he directed them
to reformat the signing pages so that only the names of those who signed the first
printed draft would appear, together with the corresponding "(SGD.)" note following
each name. Restoring Integrity II thus came into being. 88
According to Dean Leonen, the "practice of eliminating blanks opposite or above the names of non-
signatories in the final draft of significant public issuances, is meant not so much for aesthetic
considerations as to secure the integrity of such documents." 89 He likewise claimed that "[p]osting
statements with blanks would be an open invitation to vandals and pranksters." 90
With respect to the inclusion of Justice Mendoza's name as among the signatories
in Restoring Integrity II when in fact he did not sign Restoring Integrity I, Dean Leonen attributed the
mistake to a miscommunication involving his administrative officer. In his Compliance, he narrated
that: CHTcSE
2.7. Upon being presented with a draft of Restoring Integrity II with the reformatted
signing pages, Dean Leonen noticed the inclusion of the name of Justice Mendoza
among the "(SGD.)" signatories. As Justice Mendoza was not among those who had
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physically signed Restoring Integrity I when it was previously circulated, Dean Leonen
called the attention of his staff to the inclusion of the Justice's name among the "(SGD.)"
signatories in Restoring Integrity II.
2.8. Dean Leonen was told by his administrative officer that she had spoken to Justice
Mendoza over the phone on Friday, 06 August 2010. According to her, Justice Mendoza
had authorized the dean to sign the Restoring Integrity Statement for him as he agreed
fundamentally with its contents. Also according to her, Justice Mendoza was unable at
that time to sign the Restoring Integrity Statement himself as he was leaving for the
United States the following week. It would later turn out that this account was not
entirely accurate. 91 (Underscoring and italics supplied.)
Dean Leonen claimed that he "had no reason to doubt his administrative officer, however,
and so placed full reliance on her account" 92 as "[t]here were indeed other faculty members who
had also authorized the Dean to indicate that they were signatories, even though they were at that
time unable to affix their signatures physically to the document." 93
However, after receiving the Show Cause Resolution, Dean Leonen and his staff reviewed the
circumstances surrounding their effort to secure Justice Mendoza's signature. It would turn out that
this was what actually transpired:
2.22.1. On Friday, 06 August 2010, when the dean's staff talked to Justice Mendoza on
the phone, he [Justice Mendoza] indeed initially agreed to sign the Restoring Integrity
Statement as he fundamentally agreed with its contents. However, Justice Mendoza did
not exactly say that he authorized the dean to sign the Restoring Integrity Statement.
Rather, he inquired if he could authorize the dean to sign it for him as he was about to
leave for the United States. The dean's staff informed him that they would, at any rate,
still try to bring the Restoring Integrity Statement to him.
2.22.2. Due to some administrative difficulties, Justice Mendoza was unable to sign the
Restoring Integrity Statement before he left for the U.S. the following week.
2.22.3. The staff was able to bring Restoring Integrity III to Justice Mendoza when he
went to the College to teach on 24 September 2010, a day after his arrival from the U.S.
This time, Justice Mendoza declined to sign. 94 SaICcT
According to the Dean:
2.23. It was only at this time that Dean Leonen realized the true import of the call he
received from Justice Mendoza in late September. Indeed, Justice Mendoza confirmed
that by the time the hard copy of the Restoring Integrity Statement was brought to him
shortly after his arrival from the U.S., he declined to sign it because it had already
become controversial. At that time, he predicted that the Court would take some form
of action against the faculty. By then, and under those circumstances, he wanted to
show due deference to the Honorable Court, being a former Associate Justice and not
wishing to unduly aggravate the situation by signing the Statement. 95 (Emphases
supplied.)
With respect to the omission of Atty. Armovit's name in the signature page of Restoring
Integrity II when he was one of the signatories of Restoring Integrity I and the erroneous description
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in Dean Leonen's August 10, 2010 letter that the version of the Statement submitted to the Court was
signed by 38 members of the UP Law Faculty, it was explained in the Compliance that:
Respondent Atty. Miguel Armovit physically signed Restoring Integrity I when it was
circulated to him. However, his name was inadvertently left out by Dean Leonen's staff
in the reformatting of the signing pages in Restoring Integrity II. The dean assumed that
his name was still included in the reformatted signing pages, and so mentioned in his
cover note to Chief Justice Corona that 38 members of the law faculty signed (the
original 37 plus Justice Mendoza.) 96
Dean Leonen argues that he should not be deemed to have submitted a dummy of the
Statement that was not a true and faithful reproduction of the same. He emphasized that the main
body of the Statement was unchanged in all its three versions and only the signature pages were not
the same. This purportedly is merely "reflective of [the Statement's] essential nature as a 'live' public
manifesto meant to continuously draw adherents to its message, its signatory portion is necessarily
evolving and dynamic . . . many other printings of [the Statement] may be made in the future, each
one reflecting the same text but with more and more signatories." 97 Adverting to criminal law by
analogy, Dean Leonen claims that "this is not an instance where it has been made to appear in a
document that a person has participated in an act when the latter did not in fact so participate" 98 for
he "did not misrepresent which members of the faculty of the UP College of Law had agreed with
the Restoring Integrity Statement proper and/or had expressed their desire to be signatories
thereto." 99
In this regard, Dean Leonen believes that he had not committed any violation of Canon 10 or
Rules 10.01 and 10.02 for he did not mislead nor misrepresent to the Court the contents of the
Statement or the identities of the UP Law faculty members who agreed with, or expressed their desire
to be signatories to, the Statement. He also asserts that he did not commit any violation of Rule 10.03
as he "coursed [the Statement] through the appropriate channels by transmitting the same to
Honorable Chief Justice Corona for the latter's information and proper disposition with the hope that
its points would be duly considered by the Honorable Court en banc." 100 Citing Rudecon
Management Corporation v. Camacho,101 Dean Leonen posits that the required quantum of proof
has not been met in this case and that no dubious character or motivation for the act complained of
existed to warrant an administrative sanction for violation of the standard of honesty provided for by
the Code of Professional Responsibility. 102 cCSHET
Dean Leonen ends his Compliance with an enumeration of nearly identical reliefs as the
Common Compliance, including the prayers for a hearing and for access to the records, evidence and
witnesses allegedly relevant not only in this case but also in A.M. No. 10-7-17-SC, the ethical
investigation involving Justice Del Castillo.
Manifestation of Prof. Owen Lynch
(Lynch Manifestation)
For his part, Prof. Owen Lynch (Prof. Lynch) manifests to this Court that he is not a member
of the Philippine bar; but he is a member of the bar of the State of Minnesota. He alleges that he first
taught as a visiting professor at the UP College of Law in 1981 to 1988 and returned in the same
capacity in 2010. He further alleges that "[h]e subscribes to the principle, espoused by this Court and
the Supreme Court of the United States, that '. . .[d]ebate on public issues should be uninhibited,
robust and wide open and that it may well include vehement, caustic, and sometimes unpleasantly
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sharp attacks on government and public officials." 103 In signing the Statement, he believes that "the
right to speak means the right to speak effectively." 104 Citing the dissenting opinions in Manila Public
School Teachers Association v. Laguio, Jr., 105 Prof. Lynch argued that "[f]or speech to be effective, it
must be forceful enough to make the intended recipients listen" 106 and "[t]he quality of education
would deteriorate in an atmosphere of repression, when the very teachers who are supposed to
provide an example of courage and self-assertiveness to their pupils can speak only in timorous
whispers." 107 Relying on the doctrine in In the Matter of Petition for Declaratory Relief Re:
Constitutionality of Republic Act 4880, Gonzales v. Commission on Elections, 108 Prof. Lynch believed
that the Statement did not pose any danger, clear or present, of any substantive evil so as to remove
it from the protective mantle of the Bill of Rights (i.e., referring to the constitutional guarantee on
free speech). 109 He also stated that he "has read the Compliance of the other respondents to the
Show Cause Resolution" and that "he signed the Restoring Integrity Statement for the same reasons
they did." 110
ISSUES
Based on the Show Cause Resolution and a perusal of the submissions of respondents, the
material issues to be resolved in this case are as follows:
1.) Does the Show Cause Resolution deny respondents their freedom of expression?
2.) Does the Show Cause Resolution violate respondents' academic freedom as law
professors?
3.) Do the submissions of respondents satisfactorily explain why they should not be
disciplined as Members of the Bar under Canons 1, 11, and 13 and Rules 1.02 and 11.05 of the Code
of Professional Responsibility?
4.) Does the separate Compliance of Dean Leonen satisfactorily explain why he should not be
disciplined as a Member of the Bar under Canon 10, Rules 10.01, 10.02 and 10.03?
5.) Are respondents entitled to have the Show Cause Resolution set for hearing and in relation
to such hearing, are respondents entitled to require the production or presentation of evidence
bearing on the plagiarism and misrepresentation issues in the Vinuya case (G.R. No. 162230) and the
ethics case against Justice Del Castillo (A.M. No. 10-7-17-SC) and to have access to the records and
transcripts of, and the witnesses and evidence presented, or could have been presented, in the ethics
case against Justice Del Castillo (A.M. No. 10-7-17-SC)? HCSAIa
DISCUSSION
The Show Cause Resolution does not deny
respondents their freedom of expression.
It is respondents' collective claim that the Court, with the issuance of the Show Cause
Resolution, has interfered with respondents' constitutionally mandated right to free speech and
expression. It appears that the underlying assumption behind respondents' assertion is the
misconception that this Court is denying them the right to criticize the Court's decisions and actions,
and that this Court seeks to "silence" respondent law professors' dissenting view on what they
characterize as a "legitimate public issue."
This is far from the truth. A reading of the Show Cause Resolution will plainly show that it was
neither the fact that respondents had criticized a decision of the Court nor that they had charged one
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of its members of plagiarism that motivated the said Resolution. It was the manner of the criticism
and the contumacious language by which respondents, who are not parties nor counsels in
the Vinuya case, have expressed their opinion in favor of the petitioners in the said pending case for
the "proper disposition" and consideration of the Court that gave rise to said Resolution. The Show
Cause Resolution painstakingly enumerated the statements that the Court considered excessive and
uncalled for under the circumstances surrounding the issuance, publication, and later submission to
this Court of the UP Law faculty's Restoring Integrity Statement.
To reiterate, it was not the circumstance that respondents expressed a belief that Justice Del
Castillo was guilty of plagiarism but rather their expression of that belief as "not only as an established
fact, but a truth" 111 when it was "[o]f public knowledge [that there was] an ongoing investigation
precisely to determine the truth of such allegations." 112 It was also pointed out in the Show Cause
Resolution that there was a pending motion for reconsideration of the Vinuya decision. 113 The Show
Cause Resolution made no objections to the portions of the Restoring Integrity Statement that
respondents claimed to be "constructive" but only asked respondents to explain those portions of the
said Statement that by no stretch of the imagination could be considered as fair or constructive, to
wit:
Beyond this, however, the statement bore certain remarks which raise concern for the
Court. The opening sentence alone is a grim preamble to the institutional attack that
lay ahead. It reads:
An extraordinary act of injustice has again been committed against the brave
Filipinas who had suffered abuse during a time of war.
The first paragraph concludes with a reference to the decision in Vinuya v. Executive
Secretary as a reprehensible act of dishonesty and misrepresentation by the Highest
Court of the land. . . . .
The insult to the members of the Court was aggravated by imputations of deliberately
delaying the resolution of the said case, its dismissal on the basis of "polluted sources,"
the Court'salleged indifference to the cause of petitioners [in the Vinuya case], as well
as the supposed alarming lack of concern of the members of the Court for even the
most basic values of decency and respect. 114 . . . . (Underscoring ours.) SHaIDE
To be sure, the Show Cause Resolution itself recognized respondents' freedom of expression
when it stated that:
While most agree that the right to criticize the judiciary is critical to maintaining a free
and democratic society, there is also a general consensus that healthy criticism only
goes so far. Many types of criticism leveled at the judiciary cross the line to
become harmful and irresponsible attacks. These potentially devastating attacks and
unjust criticism can threaten the independence of the judiciary. The court must "insist
on being permitted to proceed to the disposition of its business in an orderly
manner, free from outside interference obstructive of its functions and tending to
embarrass the administration of justice."
The Court could hardly perceive any reasonable purpose for the faculty's less than
objective comments except to discredit the April 28, 2010 Decision in the Vinuya case
and undermine the Court's honesty, integrity and competence in addressing the motion
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for its reconsideration. As if the case on the comfort women's claims is not controversial
enough, the UP Law faculty would fan the flames and invite resentment against a
resolution that would not reverse the said decision. This runs contrary to their
obligation as law professors and officers of the Court to be the first to uphold the
dignity and authority of this Court, to which they owe fidelity according to the oath
they have taken as attorneys, and not to promote distrust in the administration of
justice. 115 . . . . (Citations omitted; emphases and underscoring supplied.)
Indeed, in a long line of cases, including those cited in respondents' submissions, this Court
has held that the right to criticize the courts and judicial officers must be balanced against the equally
primordial concern that the independence of the Judiciary be protected from due influence or
interference. In cases where the critics are not only citizens but members of the Bar, jurisprudence
has repeatedly affirmed the authority of this Court to discipline lawyers whose statements regarding
the courts and fellow lawyers, whether judicial or extrajudicial, have exceeded the limits of fair
comment and common decency.
As early as the 1935 case of Salcedo v. Hernandez, 116 the Court found Atty. Vicente J.
Francisco both guilty of contempt and liable administratively for the following paragraph in his second
motion for reconsideration:
We should like frankly and respectfully to make it of record that the resolution of this
court, denying our motion for reconsideration, is absolutely erroneous and constitutes
an outrage to the rights of the petitioner Felipe Salcedo and a mockery of the popular
will expressed at the polls in the municipality of Tiaong, Tayabas. We wish to exhaust
all the means within our power in order that this error may be corrected by the very
court which has committed it, because we should not want that some citizen,
particularly some voter of the municipality of Tiaong, Tayabas, resort to the press
publicly to denounce, as he has a right to do, the judicial outrage of which the herein
petitioner has been the victim, and because it is our utmost desire to safeguard the
prestige of this honorable court and of each and every member thereof in the eyes of
the public. But, at the same time we wish to state sincerely that erroneous decisions
like these, which the affected party and his thousands of voters will necessarily
consider unjust, increase the proselytes of 'sakdalism' and make the public lose
confidence in the administration of justice. 117 (Emphases supplied.) SaHIEA
The highlighted phrases were considered by the Court as neither justified nor necessary and further
held that:
[I]n order to call the attention of the court in a special way to the essential points relied
upon in his argument and to emphasize the force thereof, the many reasons stated in
his said motion were sufficient and the phrases in question were superfluous. In order
to appeal to reason and justice, it is highly improper and amiss to make trouble and
resort to threats, as Attorney Vicente J. Francisco has done, because both means are
annoying and good practice can never sanction them by reason of their natural
tendency to disturb and hinder the free exercise of a serene and impartial judgment,
particularly in judicial matters, in the consideration of questions submitted for
resolution.
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There is no question that said paragraph of Attorney Vicente J. Francisco's motion

contains a more or less veiled threat to the court because it is insinuated therein, after
the author shows the course which the voters of Tiaong should follow in case he fails in
his attempt, that they will resort to the press for the purpose of denouncing, what he
claims to be a judicial outrage of which his client has been the victim; and because he
states in a threatening manner with the intention of predisposing the mind of the
reader against the court, thus creating an atmosphere of prejudices against it in order
to make it odious in the public eye, that decisions of the nature of that referred to in
his motion promote distrust in the administration of justice and increase the proselytes
of sakdalism, a movement with seditious and revolutionary tendencies the activities of
which, as is of public knowledge, occurred in this country a few days ago. This cannot
mean otherwise than contempt of the dignity of the court and disrespect of the
authority thereof on the part of Attorney Vicente J. Francisco, because he presumes
that the court is so devoid of the sense of justice that, if he did not resort to
intimidation, it would maintain its error notwithstanding the fact that it may be
proven, with good reasons, that it has acted erroneously. 118 (Emphases supplied.)
Significantly, Salcedo is the decision from which respondents culled their quote from
the minority view of Justice Malcolm. Moreover, Salcedo concerned statements made in a pleading
filed by a counsel in a case, unlike the respondents here, who are neither parties nor counsels in
the Vinuya case and therefore, do not have any standing at all to interfere in the Vinuya case. Instead
of supporting respondents' theory, Salcedo is authority for the following principle:
As a member of the bar and an officer of this court, Attorney Vicente J. Francisco, as
any attorney, is in duty bound to uphold its dignity and authority and to defend its
integrity, not only because it has conferred upon him the high privilege, not a
right (Malcolm, Legal Ethics, 158 and 160), of being what he now is: a priest of
justice (In re Thatcher,80 Ohio St. Rep., 492, 669), but also because in so doing,
he neither creates nor promotes distrust in the administration of justice, and prevents
anybody from harboring and encouraging discontent which, in many cases, is the
source of disorder, thus undermining the foundation upon which rests that bulwark
called judicial power to which those who are aggrieved turn for protection and
relief. 119 (Emphases supplied.)
Thus, the lawyer in Salcedo was fined and reprimanded for his injudicious statements in his
pleading, by accusing the Court of "erroneous ruling." Here, the respondents' Statement goes way
beyond merely ascribing error to the Court. cASIED
Other cases cited by respondents likewise espouse rulings contrary to their position. In re:
Atty. Vicente Raul Almacen, 120 cited in the Common Compliance and the Vasquez Compliance, was
an instance where the Court indefinitely suspended a member of the Bar for filing and releasing to
the press a "Petition to Surrender Lawyer's Certificate of Title" in protest of what he claimed was a
great injustice to his client committed by the Supreme Court. In the decision, the petition was
described, thus:
He indicts this Court, in his own phrase, as a tribunal "peopled by men who are
calloused to our pleas for justice, who ignore without reasons their own applicable
decisions and commit culpable violations of the Constitution with impunity." His
client's he continues, who was deeply aggrieved by this Court's "unjust judgment," has
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become "one of the sacrificial victims before the altar of hypocrisy." In the same
breath that he alludes to the classic symbol of justice, he ridicules the members of this
Court, saying "that justice as administered by the present members of the Supreme
Court is not only blind, but also deaf and dumb." He then vows to argue the cause of
his client "in the people's forum," so that "the people may know of the silent
injustices committed by this Court," and that "whatever mistakes, wrongs and
injustices that were committed must never be repeated." He ends his petition with a
prayer that:
". . . a resolution issue ordering the Clerk of Court to receive the certificate of
the undersigned attorney and counsellor-at-law IN TRUST with reservation that
at any time in the future and in the event we regain our faith and confidence,
we may retrieve our title to assume the practice of the noblest profession." 121
It is true that in Almacen the Court extensively discussed foreign jurisprudence on the
principle that a lawyer, just like any citizen, has the right to criticize and comment upon actuations of
public officers, including judicial authority. However, the real doctrine in Almacen is that such criticism
of the courts, whether done in court or outside of it, must conform to standards of fairness and
propriety. This case engaged in an even more extensive discussion of the legal authorities sustaining
this view. To quote from that decision:
But it is the cardinal condition of all such criticism that it shall be bona fide, and shall
not spill over the walls of decency and propriety. A wide chasm exists between fair
criticism, on the one hand, and abuse and slander of courts and the judges thereof, on
the other. Intemperate and unfair criticism is a gross violation of the duty of respect
to courts. It is such a misconduct that subjects a lawyer to disciplinary action. HcDSaT
For, membership in the Bar imposes upon a person obligations and duties which are
not mere flux and ferment. His investiture into the legal profession places upon his
shoulders no burden more basic, more exacting and more imperative than that of
respectful behavior toward the courts. He vows solemnly to conduct himself "with all
good fidelity . . . to the courts;" and the Rules of Court constantly remind him "to
observe and maintain the respect due to courts of justice and judicial officers." The first
canon of legal ethics enjoins him "to maintain towards the courts a respectful
attitude, not for the sake of the temporary incumbent of the judicial office, but for
the maintenance of its supreme importance."
As Mr. Justice Field puts it:
". . . the obligation which attorneys impliedly assume, if they do not by express
declaration take upon themselves, when they are admitted to the Bar, is not
merely to be obedient to the Constitution and laws, but to maintain at all times
the respect due to courts of justice and judicial officers. This obligation is not
discharged by merely observing the rules of courteous demeanor in open
court, but includes abstaining out of court from all insulting language and
offensive conduct toward judges personally for their judicial acts." (Bradley v.
Fisher, 20 Law. 4d. 647, 652)
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The lawyer's duty to render respectful subordination to the courts is essential to the
orderly administration of justice. Hence, in the assertion of their clients' rights, lawyers
even those gifted with superior intellect are enjoined to rein up their tempers.
"The counsel in any case may or may not be an abler or more learned lawyer
than the judge, and it may tax his patience and temper to submit to rulings
which he regards as incorrect, but discipline and self-respect are as necessary
to the orderly administration of justice as they are to the effectiveness of an
army. The decisions of the judge must be obeyed, because he is the tribunal
appointed to decide, and the bar should at all times be the foremost in
rendering respectful submission." (In Re Scouten, 40 Atl. 481)
xxx xxx xxx
In his relations with the courts, a lawyer may not divide his personality so as to be an
attorney at one time and a mere citizen at another. Thus, statements made by an
attorney in private conversations or communications or in the course of a political
campaign, if couched in insulting language as to bring into scorn and disrepute the
administration of justice, may subject the attorney to disciplinary
action. 122 (Emphases and underscoring supplied.) CacTSI
In a similar vein, In re: Vicente Sotto, 123 cited in the Vasquez Compliance, observed that:
[T]his Court, in In re Kelly, held the following:
The publication of a criticism of a party or of the court to a pending cause,
respecting the same, has always been considered as misbehavior, tending to
obstruct the administration of justice, and subjects such persons to contempt
proceedings. Parties have a constitutional right to have their causes tried
fairly in court, by an impartial tribunal, uninfluenced by publications or public
clamor. Every citizen has a profound personal interest in the enforcement of
the fundamental right to have justice administered by the courts, under the
protection and forms of law, free from outside coercion or interference. . . . .
Mere criticism or comment on the correctness or wrongness, soundness or
unsoundness of the decision of the court in a pending case made in good faith may be
tolerated; because if well founded it may enlighten the court and contribute to the
correction of an error if committed; but if it is not well taken and obviously erroneous,
it should, in no way, influence the court in reversing or modifying its decision. . . . .
xxx xxx xxx
To hurl the false charge that this Court has been for the last years committing
deliberately "so many blunders and injustices," that is to say, that it has been deciding
in favor of one party knowing that the law and justice is on the part of the adverse party
and not on the one in whose favor the decision was rendered, in many cases decided
during the last years,would tend necessarily to undermine the confidence of the
people in the honesty and integrity of the members of this Court, and consequently
to lower or degrade the administration of justice by this Court. The Supreme Court of
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the Philippines is, under the Constitution, the last bulwark to which the Filipino people
may repair to obtain relief for their grievances or protection of their rights when these
are trampled upon, and if the people lose their confidence in the honesty and integrity
of the members of this Court and believe that they cannot expect justice therefrom,
they might be driven to take the law into their own hands, and disorder and perhaps
chaos might be the result. As a member of the bar and an officer of the courts Atty.
Vicente Sotto, like any other, is in duty bound to uphold the dignity and authority of
this Court, to which he owes fidelity according to the oath he has taken as such
attorney, and not to promote distrust in the administration of justice. Respect to the
courts guarantees the stability of other institutions, which without such guaranty would
be resting on a very shaky foundation. 124 (Emphases and underscoring supplied.)
That the doctrinal pronouncements in these early cases are still good law can be easily
gleaned even from more recent jurisprudence.
In Choa v. Chiongson, 125 the Court administratively disciplined a lawyer, through the
imposition of a fine, for making malicious and unfounded criticisms of a judge in the guise of an
administrative complaint and held, thus: cCSTHA
As an officer of the court and its indispensable partner in the sacred task of
administering justice, graver responsibility is imposed upon a lawyer than any other to
uphold the integrity of the courts and to show respect to its officers. This does not
mean, however, that a lawyer cannot criticize a judge. As we stated in Tiongco vs. Hon.
Aguilar:
It does not, however, follow that just because a lawyer is an officer of the court, he
cannot criticize the courts. That is his right as a citizen, and it is even his duty as an
officer of the court to avail of such right. Thus, in In Re: Almacen (31 SCRA 562, 579-580
[1970]), this Court explicitly declared:
Hence, as a citizen and as officer of the court, a lawyer is expected not only to
exercise the right, but also to consider it his duty to avail of such right. No law
may abridge this right. Nor is he "professionally answerable to a scrutiny into
the official conduct of the judges, which would not expose him to legal
animadversion as a citizen." (Case of Austin, 28 Am Dec. 657, 665).
xxx xxx xxx
Nevertheless, such a right is not without limit. For, as this Court warned in Almacen:
But it is a cardinal condition of all such criticism that it shall be bona fide, and
shall not spill over the walls of decency and propriety. A wide chasm exists
between fair criticism, on the one hand, and abuse and slander of courts and
the judges thereof, on the other. Intemperate and unfair criticism is a gross
violation of the duty of respect to courts. It is such a misconduct, that subjects
a lawyer to disciplinary action.
xxx xxx xxx
Elsewise stated, the right to criticize, which is guaranteed by the freedom of speech
and of expression in the Bill of Rights of the Constitution, must be exercised
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responsibly, for every right carries with it a corresponding obligation. Freedom is not
freedom from responsibility, but freedom with responsibility. . . . .
xxx xxx xxx
Proscribed then are, inter alia, the use of unnecessary language which jeopardizes
high esteem in courts, creates or promotes distrust in judicial administration (Rheem,
supra), or tends necessarily to undermine the confidence of people in the integrity of
the members of this Court and to degrade the administration of justice by this Court (In
re: Sotto, 82 Phil. 595 [1949]); or of offensive and abusive language (In re: Rafael
Climaco, 55 SCRA 107 [1974]); or abrasive and offensive language (Yangson vs.
Salandanan, 68 SCRA 42 [1975]; or of disrespectful, offensive, manifestly baseless, and
malicious statements in pleadings or in a letter addressed to the judge (Baja vs.
Macandog, 158 SCRA [1988], citing the resolution of 19 January 1988 in Phil. Public
Schools Teachers Association vs. Quisumbing, G.R. No. 76180, and Ceniza vs. Sebastian,
130 SCRA 295 [1984]); or of disparaging, intemperate, and uncalled-for
remarks (Sangalang vs. Intermediate Appellate Court, 177 SCRA 87 [1989]). IcEACH
Any criticism against a judge made in the guise of an administrative complaint which is
clearly unfounded and impelled by ulterior motive will not excuse the lawyer
responsible therefor under his duty of fidelity to his client. . . . . 126 (Emphases and
underscoring supplied.)
In Saberon v. Larong, 127 where this Court found respondent lawyer guilty of simple
misconduct for using intemperate language in his pleadings and imposed a fine upon him, we had the
occasion to state:
The Code of Professional Responsibility mandates:
CANON 8 A lawyer shall conduct himself with courtesy, fairness and candor
toward his professional colleagues, and shall avoid harassing tactics against
opposing counsel.
Rule 8.01 A lawyer shall not, in his professional dealings, use language which
is abusive, offensive or otherwise improper.
CANON 11 A lawyer shall observe and maintain the respect due to the
courts and to judicial officers and should insist on similar conduct by others.
Rule 11.03 A lawyer shall abstain from scandalous, offensive or menacing
language or behavior before the Courts.
To be sure, the adversarial nature of our legal system has tempted members of the bar
to use strong language in pursuit of their duty to advance the interests of their clients.
However, while a lawyer is entitled to present his case with vigor and courage, such
enthusiasm does not justify the use of offensive and abusive language. Language
abounds with countless possibilities for one to be emphatic but respectful, convincing
but not derogatory, illuminating but not offensive.
On many occasions, the Court has reminded members of the Bar to abstain from all
offensive personality and to advance no fact prejudicial to the honor or reputation of
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a party or witness, unless required by the justice of the cause with which he is charged.
In keeping with the dignity of the legal profession, a lawyer's language even in his
pleadings must be dignified.128
Verily, the accusatory and vilifying nature of certain portions of the Statement exceeded the
limits of fair comment and cannot be deemed as protected free speech. Even In the Matter of Petition
for Declaratory Relief Re: Constitutionality of Republic Act 4880, Gonzales v. Commission on
Elections, 129 relied upon by respondents in the Common Compliance, held that:
From the language of the specific constitutional provision, it would appear that the right
is not susceptible of any limitation. No law may be passed abridging the freedom of
speech and of the press. The realities of life in a complex society preclude however a
literal interpretation. Freedom of expression is not an absolute. It would be too much
to insist that at all times and under all circumstances it should remain unfettered and
unrestrained. There are other societal values that press for recognition. . . .
. 130 (Emphasis supplied.)
One such societal value that presses for recognition in the case at bar is the threat to judicial
independence and the orderly administration of justice that immoderate, reckless and unfair attacks
on judicial decisions and institutions pose. This Court held as much in Zaldivar v. Sandiganbayan and
Gonzales, 131 where we indefinitely suspended a lawyer from the practice of law for issuing to the
media statements grossly disrespectful towards the Court in relation to a pending case, to wit:
Respondent Gonzales is entitled to the constitutional guarantee of free speech. No one
seeks to deny him that right, least of all this Court. What respondent seems unaware of
is that freedom of speech and of expression, like all constitutional freedoms, is not
absolute and that freedom of expression needs on occasion to be adjusted to and
accommodated with the requirements of equally important public interest. One of
these fundamental public interests is the maintenance of the integrity and orderly
functioning of the administration of justice. There is no antinomy between free
expression and the integrity of the system of administering justice. For the protection
and maintenance of freedom of expression itself can be secured only within the
context of a functioning and orderly system of dispensing justice, within the context,
in other words, of viable independent institutions for delivery of justice which are
accepted by the general community. . . . . 132 (Emphases supplied.)
For this reason, the Court cannot uphold the view of some respondents 133 that the
Statement presents no grave or imminent danger to a legitimate public interest. ETIcHa
The Show Cause Resolution does not
interfere with respondents' academic
freedom.
It is not contested that respondents herein are, by law and jurisprudence, guaranteed
academic freedom and undisputably, they are free to determine what they will teach their students
and how they will teach. We must point out that there is nothing in the Show Cause Resolution that
dictates upon respondents the subject matter they can teach and the manner of their instruction.
Moreover, it is not inconsistent with the principle of academic freedom for this Court to subject
lawyers who teach law to disciplinary action forcontumacious conduct and speech, coupled with
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undue intervention in favor of a party in a pending case, without observing proper procedure, even
if purportedly done in their capacity as teachers.
A novel issue involved in the present controversy, for it has not been passed upon in any
previous case before this Court, is the question of whether lawyers who are also law professors can
invoke academic freedom as a defense in an administrative proceeding for intemperate statements
tending to pressure the Court or influence the outcome of a case or degrade the courts.
Applying by analogy the Court's past treatment of the "free speech" defense in other bar
discipline cases, academic freedom cannot be successfully invoked by respondents in this case. The
implicit ruling in the jurisprudence discussed above is that the constitutional right to freedom of
expression of members of the Bar may be circumscribed by their ethical duties as lawyers to give due
respect to the courts and to uphold the public's faith in the legal profession and the justice system.
To our mind, the reason that freedom of expression may be so delimited in the case of lawyers applies
with greater force to the academic freedom of law professors.
It would do well for the Court to remind respondents that, in view of the broad definition
in Cayetano v. Monsod, 134 lawyers when they teach law are considered engaged in the practice of
law. Unlike professors in other disciplines and more than lawyers who do not teach law, respondents
are bound by their oath to uphold the ethical standards of the legal profession. Thus, their actions as
law professors must be measured against the same canons of professional responsibility applicable
to acts of members of the Bar as the fact of their being law professors is inextricably entwined with
the fact that they are lawyers.
Even if the Court was willing to accept respondents' proposition in the Common Compliance
that their issuance of the Statement was in keeping with their duty to "participate in the development
of the legal system by initiating or supporting efforts in law reform and in the improvement of the
administration of justice" under Canon 4 of the Code of Professional Responsibility, we cannot agree
that they have fulfilled that same duty in keeping with the demands of Canons 1, 11 and 13 to give
due respect to legal processes and the courts, and to avoid conduct that tends to influence the courts.
Members of the Bar cannot be selective regarding which canons to abide by given particular
situations. With more reason that law professors are not allowed this indulgence, since they are
expected to provide their students exemplars of the Code of Professional Responsibility as a whole
and not just their preferred portions thereof.
The Court's rulings on the submissions
regarding the charge of violation of
Canons 1, 11 and 13.
Having disposed of respondents' main arguments of freedom of expression and academic
freedom, the Court considers here the other averments in their submissions.
With respect to good faith, respondents' allegations presented two main ideas: (a) the validity
of their position regarding the plagiarism charge against Justice Del Castillo, and (b) their pure motive
to spur this Court to take the correct action on said issue.
The Court has already clarified that it is not the expression of respondents' staunch belief that
Justice Del Castillo has committed a misconduct that the majority of this Court has found so
unbecoming in the Show Cause Resolution. No matter how firm a lawyer's conviction in the
righteousness of his cause there is simply no excuse for denigrating the courts and engaging in public
behavior that tends to put the courts and the legal profession into disrepute. This doctrine, which we
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have repeatedly upheld in such cases as Salcedo, In re Almacenand Saberong, should be applied in
this case with more reason, as the respondents, not parties to the Vinuya case, denounced the Court
and urged it to change its decision therein, in a public statement using contumacious language, which
with temerity they subsequently submitted to the Court for "proper disposition."
That humiliating the Court into reconsidering the Vinuya Decision in favor of the Malaya
Lolas was one of the objectives of the Statement could be seen in the following paragraphs from the
same:
And in light of the significance of this decision to the quest for justice not only of Filipino
women, but of women elsewhere in the world who have suffered the horrors of sexual
abuse and exploitation in times of war, the Court cannot coldly deny relief and justice
to the petitioners on the basis of pilfered and misinterpreted texts.
xxx xxx xxx
(3) The same breach and consequent disposition of the Vinuya case does violence to
the primordial function of the Supreme Court as the ultimate dispenser of justice to
all those who have been left without legal or equitable recourse, such as the petitioners
therein. 135 (Emphases and underscoring supplied.) HcTEaA
Whether or not respondents' views regarding the plagiarism issue in the Vinuya case had valid
basis was wholly immaterial to their liability for contumacious speech and conduct. These are two
separate matters to be properly threshed out in separate proceedings. The Court considers it highly
inappropriate, if not tantamount to dissembling, the discussion devoted in one of the compliances
arguing the guilt of Justice Del Castillo. In the Common Compliance, respondents even go so far as to
attach documentary evidence to support the plagiarism charges against Justice Del Castillo in the
present controversy. The ethics case of Justice Del Castillo (A.M. No. 10-7-17-SC), with the filing of a
motion for reconsideration, was still pending at the time of the filing of respondents' submissions in
this administrative case. As respondents themselves admit, they are neither parties nor counsels in
the ethics case against Justice Del Castillo. Notwithstanding their professed overriding interest in said
ethics case, it is not proper procedure for respondents to bring up their plagiarism arguments here
especially when it has no bearing on their own administrative case.
Still on motive, it is also proposed that the choice of language in the Statement was intended
for effective speech; that speech must be "forceful enough to make the intended recipients
listen." 136 One wonders what sort of effect respondents were hoping for in branding this Court as,
among others, callous, dishonest and lacking in concern for the basic values of decency and respect.
The Court fails to see how it can ennoble the profession if we allow respondents to send a signal to
their students that the only way to effectively plead their cases and persuade others to their point of
view is to be offensive.
This brings to our mind the letters of Dr. Ellis and Prof. Tams which were deliberately quoted
in full in the narration of background facts to illustrate the sharp contrast between the civil tenor of
these letters and the antagonistic irreverence of the Statement. In truth, these foreign authors are
the ones who would expectedly be affected by any perception of misuse of their works.
Notwithstanding that they are beyond the disciplinary reach of this Court, they still obviously took
pains to convey their objections in a deferential and scholarly manner. It is unfathomable to the Court
why respondents could not do the same. These foreign authors' letters underscore the universality of
the tenet that legal professionals must deal with each other in good faith and due respect. The mark
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of the true intellectual is one who can express his opinions logically and soberly without resort to
exaggerated rhetoric and unproductive recriminations.
As for the claim that the respondents' noble intention is to spur the Court to take
"constructive action" on the plagiarism issue, the Court has some doubts as to its veracity. For if the
Statement was primarily meant for this Court's consideration, why was the same published and
reported in the media first before it was submitted to this Court? It is more plausible that the
Statement was prepared for consumption by the general public and designed to capture media
attention as part of the effort to generate interest in the most controversial ground in the
Supplemental Motion for Reconsideration filed in the Vinuya case by Atty. Roque, who is respondents'
colleague on the UP Law faculty.
In this regard, the Court finds that there was indeed a lack of observance of fidelity and due
respect to the Court, particularly when respondents knew fully well that the matter of plagiarism in
the Vinuya decision and the merits of the Vinuya decision itself, at the time of the Statement's
issuance, were still both sub judice or pending final disposition of the Court. These facts have been
widely publicized. On this point, respondents allege that at the time the Statement was first drafted
on July 27, 2010, they did not know of the constitution of the Ethics Committee and they had issued
the Statement under the belief that this Court intended to take no action on the ethics charge against
Justice Del Castillo. Still, there was a significant lapse of time from the drafting and printing of the
Statement on July 27, 2010 and its publication and submission to this Court in early August when the
Ethics Committee had already been convened. If it is true that the respondents' outrage was fueled
by their perception of indifference on the part of the Court then, when it became known that the
Court did intend to take action, there was nothing to prevent respondents from recalibrating the
Statement to take this supervening event into account in the interest of fairness.
Speaking of the publicity this case has generated, we likewise find no merit in the
respondents' reliance on various news reports and commentaries in the print media and the internet
as proof that they are being unfairly "singled out." On the contrary, these same annexes to the
Common Compliance show that it is not enough for one to criticize the Court to warrant the institution
of disciplinary 137 or contempt 138 action. This Court takes into account the nature of the criticism
and weighs the possible repercussions of the same on the Judiciary. When the criticism comes from
persons outside the profession who may not have a full grasp of legal issues or from individuals whose
personal or other interests in making the criticism are obvious, the Court may perhaps tolerate or
ignore them. However, when law professors are the ones who appear to have lost sight of the
boundaries of fair commentary and worse, would justify the same as an exercise of civil liberties, this
Court cannot remain silent for such silence would have a grave implication on legal education in our
country.
With respect to the 35 respondents named in the Common Compliance, considering that
this appears to be the first time these respondents have been involved in disciplinary proceedings of
this sort, the Court is willing to give them the benefit of the doubt that they were for the most part
well-intentioned in the issuance of the Statement. However, it is established in jurisprudence that
where the excessive and contumacious language used is plain and undeniable, then good intent can
only be mitigating. As this Court expounded in Salcedo: HcDSaT
In his defense, Attorney Vicente J. Francisco states that it was not his intention to
offend the court or to be recreant to the respect thereto but, unfortunately, there are
his phrases which need no further comment. Furthermore, it is a well settled rule in all
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places where the same conditions and practice as those in this jurisdiction obtain,
that want of intention is no excuse from liability (13 C. J., 45). Neither is the fact that
the phrases employed are justified by the facts a valid defense:
"Where the matter is abusive or insulting, evidence that the language used
was justified by the facts is not admissible as a defense. Respect for the
judicial office should always be observed and enforced." (In re Stewart, 118
La., 827; 43 S., 455.) Said lack or want of intention constitutes at most an
extenuation of liability in this case, taking into consideration Attorney Vicente
J. Francisco's state of mind, according to him when he prepared said
motion. This court is disposed to make such concession. However, in order
to avoid a recurrence thereof and to prevent others, by following the bad
example, from taking the same course, this court considers it imperative to
treat the case of said attorney with the justice it deserves. 139 (Emphases
supplied.)
Thus, the 35 respondents named in the Common Compliance should, notwithstanding their
claim of good faith, be reminded of their lawyerly duty, under Canons 1, 11 and 13, to give due respect
to the courts and to refrain from intemperate and offensive language tending to influence the Court
on pending matters or to denigrate the courts and the administration of justice.
With respect to Prof. Vasquez, the Court favorably notes the differences in his Compliance
compared to his colleagues. In our view, he was the only one among the respondents who showed
true candor and sincere deference to the Court. He was able to give a straightforward account of how
he came to sign the Statement. He was candid enough to state that his agreement to the Statement
was in principle and that the reason plagiarism was a "fair topic of discussion" among the UP Law
faculty prior to the promulgation of the October 12, 2010 Decision in A.M. No. 10-7-17-SC was the
uncertainty brought about by a division of opinion on whether or not willful or deliberate intent was
an element of plagiarism. He was likewise willing to acknowledge that he may have been remiss in
failing to assess the effect of the language of the Statement and could have used more care. He did
all this without having to retract his position on the plagiarism issue, without demands for undeserved
reliefs (as will be discussed below) and without baseless insinuations of deprivation of due process or
of prejudgment. This is all that this Court expected from respondents, not for them to sacrifice their
principles but only that they recognize that they themselves may have committed some ethical lapse
in this affair. We commend Prof. Vaquez for showing that at least one of the respondents can grasp
the true import of the Show Cause Resolution involving them. For these reasons, the Court finds Prof.
Vasquez's Compliance satisfactory.
As for Prof. Lynch, in view of his Manifestation that he is a member of the Bar of the State of
Minnesota and, therefore, not under the disciplinary authority of this Court, he should be excused
from these proceedings. However, he should be reminded that while he is engaged as a professor in
a Philippine law school he should strive to be a model of responsible and professional conduct to his
students even without the threat of sanction from this Court. For even if one is not bound by the Code
of Professional Responsibility for members of the Philippine Bar, civility and respect among legal
professionals of any nationality should be aspired for under universal standards of decency and
fairness.
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The Court's ruling on Dean Leonen's

Compliance regarding the charge of
violation of Canon 10.
To recall, the Show Cause Resolution directed Dean Leonen to show cause why he should not
be disciplinary dealt with for violation of Canon 10, Rules 10.01, 10.02 and 10.03 and for submitting a
"dummy" that was not a true and faithful reproduction of the signed Statement.
In his Compliance, Dean Leonen essentially denies that Restoring Integrity II was not a true
and faithful reproduction of the actual signed copy, Restoring Integrity I, because looking at the text
or the body, there were no differences between the two. He attempts to downplay the discrepancies
in the signature pages of the two versions of the Statement (i.e.,Restoring Integrity I and Restoring
Integrity II) by claiming that it is but expected in "live" public manifestos with dynamic and evolving
pages as more and more signatories add their imprimatur thereto. He likewise stresses that he is not
administratively liable because he did not misrepresent the members of the UP Law faculty who "had
agreed with theRestoring Integrity Statement proper and/or who had expressed their desire to be
signatories thereto." 140
To begin with, the Court cannot subscribe to Dean Leonen's implied view that the signatures
in the Statement are not as significant as its contents. Live public manifesto or not, the Statement was
formally submitted to this Court at a specific point in time and it should reflect accurately its
signatories at that point. The value of the Statement as a UP Law Faculty Statement lies precisely in
the identities of the persons who have signed it, since the Statement's persuasive authority mainly
depends on the reputation and stature of the persons who have endorsed the same. Indeed, it is
apparent from respondents' explanations that their own belief in the "importance" of their positions
as UP law professors prompted them to publicly speak out on the matter of the plagiarism issue in
the Vinuya case. IEcaHS
Further, in our assessment, the true cause of Dean Leonen's predicament is the fact that he
did not from the beginning submit the signed copy, Restoring Integrity I, to this Court on August 11,
2010 and, instead, submitted Restoring Integrity II with its retyped or "reformatted" signature pages.
It would turn out, according to Dean Leonen's account, that there were errors in the retyping of the
signature pages due to lapses of his unnamed staff. First, an unnamed administrative officer in the
dean's office gave the dean inaccurate information that led him to allow the inclusion of Justice
Mendoza as among the signatories of Restoring Integrity II. Second, an unnamed staff also failed to
type the name of Atty. Armovit when encoding the signature pages of Restoring Integrity II when in
fact he had signed Restoring Integrity I.
The Court can understand why for purposes of posting on a bulletin board or a website a
signed document may have to be reformatted and signatures may be indicated by the notation (SGD).
This is not unusual. We are willing to accept that the reformatting of documents meant for posting to
eliminate blanks is necessitated by vandalism concerns.
However, what is unusual is the submission to a court, especially this Court, of a signed
document for the Court's consideration that did not contain the actual signatures of its authors. In
most cases, it is the original signed document that is transmitted to the Court or at the very least a
photocopy of the actual signed document. Dean Leonen has not offered any explanation why he
deviated from this practice with his submission to the Court of Restoring Integrity II on August 11,
2010. There was nothing to prevent the dean from submitting Restoring Integrity I to this Court even
with its blanks and unsigned portions. Dean Leonen cannot claim fears of vandalism with respect to
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court submissions for court employees are accountable for the care of documents and records that
may come into their custody. Yet, Dean Leonen deliberately chose to submit to this Court the facsimile
that did not contain the actual signatures and his silence on the reason therefor is in itself a display of
lack of candor.
Still, a careful reading of Dean Leonen's explanations yield the answer. In the course of his
explanation of his willingness to accept his administrative officer's claim that Justice Mendoza agreed
to be indicated as a signatory, Dean Leonen admits in a footnote that other professors had likewise
only authorized him to indicate them as signatories and had not in fact signed the Statement. Thus,
at around the time Restoring Integrity II was printed, posted and submitted to this Court, at least one
purported signatory thereto had not actually signed the same. Contrary to Dean Leonen's proposition,
that is precisely tantamount to making it appear to this Court that a person or persons participated in
an act when such person or persons did not.
We are surprised that someone like Dean Leonen, with his reputation for perfection and
stringent standards of intellectual honesty, could proffer the explanation that there was no
misrepresentation when he allowed at least one person to be indicated as having actually signed the
Statement when all he had was a verbal communication of an intent to sign. In the case of Justice
Mendoza, what he had was only hearsay information that the former intended to sign the Statement.
If Dean Leonen was truly determined to observe candor and truthfulness in his dealings with the
Court, we see no reason why he could not have waited until all the professors who indicated their
desire to sign the Statement had in fact signed before transmitting the Statement to the Court as a
duly signed document. If it was truly impossible to secure some signatures, such as that of Justice
Mendoza who had to leave for abroad, then Dean Leonen should have just resigned himself to the
signatures that he was able to secure.
We cannot imagine what urgent concern there was that he could not wait for actual
signatures before submission of the Statement to this Court. As respondents all asserted, they were
neither parties to nor counsels in the Vinuya case and the ethics case against Justice Del Castillo. The
Statement was neither a pleading with a deadline nor a required submission to the Court; rather, it
was a voluntary submission that Dean Leonen could do at any time.
In sum, the Court likewise finds Dean Leonen's Compliance unsatisfactory. However, the
Court is willing to ascribe these isolated lapses in judgment of Dean Leonen to his misplaced zeal in
pursuit of his objectives. In due consideration of Dean Leonen's professed good intentions, the Court
deems it sufficient to admonish Dean Leonen for failing to observe full candor and honesty in his
dealings with the Court as required under Canon 10.
Respondents' requests for a hearing, for
production/presentation of evidence
bearing on the plagiarism and
misrepresentation issues in G.R. No.
162230 and A.M. No. 10-7-17-SC, and for
access to the records of A.M. No. 10-7-17-
SC are unmeritorious.
In the Common Compliance, respondents named therein asked for alternative reliefs should
the Court find their Compliance unsatisfactory, that is, that the Show Cause Resolution be set for
hearing and for that purpose, they be allowed to require the production or presentation of witnesses
and evidence bearing on the plagiarism and misrepresentation issues in the Vinuya case (G.R. No.
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162230) and the plagiarism case against Justice Del Castillo (A.M. No. 10-7-17-SC) and to have access
to the records of, and evidence that were presented or may be presented in the ethics case against
Justice Del Castillo. The prayer for a hearing and for access to the records of A.M. No. 10-7-17-SC was
substantially echoed in Dean Leonen's separate Compliance. In Prof. Juan-Bautista's Compliance, she
similarly expressed the sentiment that "[i]f the Restoring Integrity Statement can be considered
indirect contempt, under Section 3 of Rule 71 of the Rules of Court, such may be punished only after
charge and hearing." 141 It is this group of respondents' premise that these reliefs are necessary for
them to be accorded full due process. EATCcI
The Court finds this contention unmeritorious.
Firstly, it would appear that the confusion as to the necessity of a hearing in this case springs
largely from its characterization as a special civil action for indirect contempt in the Dissenting Opinion
of Justice Sereno (to the October 19, 2010 Show Cause Resolution) and her reliance therein on the
majority's purported failure to follow the procedure in Rule 71 of the Rules of Court as her main
ground for opposition to the Show Cause Resolution.
However, once and for all, it should be clarified that this is not an indirect contempt
proceeding and Rule 71 (which requires a hearing) has no application to this case. As explicitly ordered
in the Show Cause Resolution this case was docketed as an administrative matter.
The rule that is relevant to this controversy is Rule 139-B, Section 13, on disciplinary
proceedings initiated motu proprio by the Supreme Court, to wit:
SEC. 13. Supreme Court Investigators. In proceedings initiated motu proprio by the
Supreme Court or in other proceedings when the interest of justice so requires, the
Supreme Court may refer the case for investigation to the Solicitor General or to any
officer of the Supreme Court or judge of a lower court, in which case the investigation
shall proceed in the same manner provided in sections 6 to 11 hereof, save that the
review of the report of investigation shall be conducted directly by the Supreme Court.
(Emphasis supplied.)
From the foregoing provision, it cannot be denied that a formal investigation, through a referral to
the specified officers, is merely discretionary, not mandatory on the Court. Furthermore, it is only if
the Court deems such an investigation necessary that the procedure in Sections 6 to 11 of Rule 139-A
will be followed.
As respondents are fully aware, in general, administrative proceedings do not require a trial
type hearing. We have held that:
The essence of due process is simply an opportunity to be heard or, as applied to
administrative proceedings, an opportunity to explain one's side or an opportunity to
seek a reconsideration of the action or ruling complained of. What the law prohibits
is absolute absence of the opportunity to be heard, hence, a party cannot feign denial
of due process where he had been afforded the opportunity to present his side. A
formal or trial type hearing is not at all times and in all instances essential to due
process, the requirements of which are satisfied where the parties are afforded fair and
reasonable opportunity to explain their side of the controversy. 142 (Emphases
supplied.)
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In relation to bar discipline cases, we have had the occasion to rule in Pena v.
Aparicio 143 that:
Disciplinary proceedings against lawyers are sui generis. Neither purely civil nor purely
criminal, they do not involve a trial of an action or a suit, but is rather an investigation
by the Court into the conduct of one of its officers. Not being intended to inflict
punishment, it is in no sense a criminal prosecution. Accordingly, there is neither a
plaintiff nor a prosecutor therein. It may be initiated by the Court motu proprio. Public
interest is its primary objective, and the real question for determination is whether
or not the attorney is still a fit person to be allowed the privileges as such. Hence, in
the exercise of its disciplinary powers, the Court merely calls upon a member of the
Bar to account for his actuations as an officer of the Court with the end in view of
preserving the purity of the legal profession and the proper and honest
administration of justice by purging the profession of members who by their
misconduct have proved themselves no longer worthy to be entrusted with the duties
and responsibilities pertaining to the office of an attorney. In such posture, there can
thus be no occasion to speak of a complainant or a prosecutor. 144 (Emphases
supplied.)
In Query of Atty. Karen M. Silverio-Buffe, Former Clerk of Court Br. 81, Romblon On the
Prohibition from Engaging in the Private Practice of Law, 145 we further observed that:
[I]n several cases, the Court has disciplined lawyers without further inquiry or resort to
any formal investigation where the facts on record sufficiently provided the basis for
the determination of their administrative liability.
In Prudential Bank v. Castro, the Court disbarred a lawyer without need of any further
investigation after considering his actions based on records showing his unethical
misconduct; the misconduct not only cast dishonor on the image of both the Bench and
the Bar, but was also inimical to public interest and welfare. In this regard, the Court
took judicial notice of several cases handled by the errant lawyer and his cohorts that
revealed their modus operandi in circumventing the payment of the proper judicial fees
for the astronomical sums they claimed in their cases. The Court held that those cases
sufficiently provided the basis for the determination of respondents' administrative
liability, without need for further inquiry into the matter under the principle of res ipsa
loquitur. HADTEC
Also on the basis of this principle, we ruled in Richards v. Asoy, that no evidentiary
hearing is required before the respondent may be disciplined for professional
misconduct already established by the facts on record.
xxx xxx xxx
These cases clearly show that the absence of any formal charge against and/or formal
investigation of an errant lawyer do not preclude the Court from immediately
exercising its disciplining authority, as long as the errant lawyer or judge has been
given the opportunity to be heard. As we stated earlier, Atty. Buffe has been afforded
the opportunity to be heard on the present matter through her letter-query and
Manifestation filed before this Court. 146 (Emphases supplied.)
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Under the rules and jurisprudence, respondents clearly had no right to a hearing and their
reservation of a right they do not have has no effect on these proceedings. Neither have they shown
in their pleadings any justification for this Court to call for a hearing in this instance. They have not
specifically stated what relevant evidence, documentary or testimonial, they intend to present in their
defense that will necessitate a formal hearing.
Instead, it would appear that they intend to present records, evidence, and witnesses bearing
on the plagiarism and misrepresentation issues in the Vinuya case and in A.M. No. 10-7-17-SC on the
assumption that the findings of this Court which were the bases of the Show Cause Resolution were
made in A.M. No. 10-7-17-SC, or were related to the conclusions of the Court in the Decision in that
case. This is the primary reason for their request for access to the records and evidence presented in
A.M. No. 10-7-17-SC.
This assumption on the part of respondents is erroneous. To illustrate, the only incident in
A.M. No. 10-7-17-SC that is relevant to the case at bar is the fact that the submission of the actual
signed copy of the Statement (or Restoring Integrity I, as Dean Leonen referred to it) happened there.
Apart from that fact, it bears repeating that the proceedings in A.M. No. 10-7-17-SC, the ethics case
against Justice Del Castillo, is a separate and independent matter from this case.
To find the bases of the statements of the Court in the Show Cause Resolution that the
respondents issued a Statement with language that the Court deems objectionable during the
pendency of the Vinuya case and the ethics case against Justice Del Castillo, respondents need to go
no further than the four corners of the Statement itself, its various versions, news reports/columns
(many of which respondents themselves supplied to this Court in their Common Compliance) and
internet sources that are already of public knowledge.
Considering that what respondents are chiefly required to explain are the language of the
Statement and the circumstances surrounding the drafting, printing, signing, dissemination, etc., of
its various versions, the Court does not see how any witness or evidence in the ethics case of Justice
Del Castillo could possibly shed light on these facts. To be sure, these facts are within the knowledge
of respondents and if there is any evidence on these matters the same would be in their possession.
We find it significant that in Dean Leonen's Compliance he narrated how as early as
September 2010, i.e., before the Decision of this Court in the ethics case of Justice Del Castillo on
October 12, 2010 and before the October 19, 2010 Show Cause Resolution, retired Supreme Court
Justice Vicente V. Mendoza, after being shown a copy of the Statement upon his return from abroad,
predicted that the Court would take some form of action on the Statement. By simply reading a hard
copy of the Statement, a reasonable person, even one who "fundamentally agreed" with the
Statement's principles, could foresee the possibility of court action on the same on an implicit
recognition that the Statement, as worded, is not a matter this Court should simply let pass. This belies
respondents' claim that it is necessary for them to refer to any record or evidence in A.M. No. 10-7-
17-SC in order to divine the bases for the Show Cause Resolution.
If respondents have chosen not to include certain pieces of evidence in their respective
compliances or chosen not to make a full defense at this time, because they were counting on being
granted a hearing, that is respondents' own look-out. Indeed, law professors of their stature are
supposed to be aware of the above jurisprudential doctrines regarding the non-necessity of a hearing
in disciplinary cases. They should bear the consequence of the risk they have taken.
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Thus, respondents' requests for a hearing and for access to the records of, and evidence
presented in, A.M. No. 10-7-17-SC should be denied for lack of merit.
A final word
In a democracy, members of the legal community are hardly expected to have monolithic
views on any subject, be it a legal, political or social issue. Even as lawyers passionately and vigorously
propound their points of view they are bound by certain rules of conduct for the legal profession. This
Court is certainly not claiming that it should be shielded from criticism. All the Court demands is the
same respect and courtesy that one lawyer owes to another under established ethical standards. All
lawyers, whether they are judges, court employees, professors or private practitioners, are officers of
the Court and have voluntarily taken an oath, as an indispensable qualification for admission to the
Bar, to conduct themselves with good fidelity towards the courts. There is no exemption from this
sworn duty for law professors, regardless of their status in the academic community or the law school
to which they belong. aSATHE
WHEREFORE, this administrative matter is decided as follows:
(1) With respect to Prof. Vasquez, after favorably noting his submission, the Court finds
his Compliance to be SATISFACTORY.
(2) The Common Compliance of 35 respondents, namely, Attys. Marvic M.V.F. Leonen,
Froilan M. Bacungan, Pacifico A. Agabin, Merlin M. Magallona, Salvador T. Carlota, Carmelo V. Sison,
Patricia R.P. Salvador Daway, Dante B. Gatmaytan, Theodore O. Te, Florin T. Hilbay, Jay L.
Batongbacal, Evelyn (Leo) D. Battad, Gwen G. De Vera, Solomon F. Lumba, Rommel J. Casis, Jose
Gerardo A. Alampay, Miguel R. Armovit, Arthur P. Autea, Rosa Maria J. Bautista, Mark R. Bocobo,
Dan P. Calica, Tristan A. Catindig, Sandra Marie O. Coronel, Rosario O. Gallo, Concepcion L.
Jardeleza, Antonio G.M. La Via, Carina C. Laforteza, Jose C. Laureta, Rodolfo Noel S. Quimbo,
Antonio M. Santos, Gmeleen Faye B. Tomboc, Nicholas Felix L. Ty, Evalyn G. Ursua, Susan D.
Villanueva and Dina D. Lucenario, is found UNSATISFACTORY. These 35 respondent law professors
areREMINDED of their lawyerly duty, under Canons 1, 11 and 13 of the Code of Professional
Responsibility, to give due respect to the Court and to refrain from intemperate and offensive
language tending to influence the Court on pending matters or to denigrate the Court and the
administration of justice and warned that the same or similar act in the future shall be dealt with more
severely.
(3) The separate Compliance of Dean Marvic M.V.F. Leonen regarding the charge of violation
of Canon 10 is found UNSATISFACTORY. He is further ADMONISHED to be more mindful of his duty,
as a member of the Bar, an officer of the Court, and a Dean and professor of law, to observe full
candor and honesty in his dealings with the Court and warned that the same or similar act in the
future shall be dealt with more severely.
(4) Prof. Lynch, who is not a member of the Philippine bar, is EXCUSED from these
proceedings. However, he is reminded that while he is engaged as a professor in a Philippine law
school he should strive to be a model of responsible and professional conduct to his students even
without the threat of sanction from this Court.
(5) Finally, respondents' requests for a hearing and for access to the records of A.M. No. 10-
7-17-SC are DENIED for lack of merit.
SO ORDERED.
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||| (Re: Letter of the UP Law Faculty on Allegations of Plagiarism and Misrepresentation in the Supreme
Court, A.M. No. 10-10-4-SC, [March 8, 2011], 660 PHIL 1-130)
a. Symbolic Expression The Flag-burning case

CASE - TEXAS VS. JOHNSON, 491 U.S. 109 S. Ct. 2533 (1989)
Flag burring cannot be simply content neutral, due to the high respect afforded to our symbol of
nationhood. The flag is not an image but a symbol of the Republic of the Philippines, an emblem of national
sovereignty, of national unity and cohesion and of freedom and liberty which it and the Constitution
guarantee and protect.104
Texas v. Johnson, 491 U.S. 397 (1989), was an important decision by the US Supreme Court and changed
the perspective as to prohibitions on desecrating the American flag. It held that the defendant Gregory
Lee Johnson's act of flag burning was protected speech under the First Amendment
Case: During the 1984 Republican National Convention, respondent Johnson participated in a political
demonstration to protest the policies of the Reagan administration and some Dallas-based corporations.
After a march through the city streets, Johnson burned an American flag while protesters chanted. No one
was physically injured or threatened with injury, although several witnesses were seriously offended by
the flag burning. Johnson was convicted of desecration of a venerated object in violation of a Texas statute,
and a state court of appeals affirmed.
Rule: Under the circumstances, Johnson's burning of the flag constituted expressive conduct, permitting
him to invoke the First Amendment. The State conceded that the conduct was expressive. Occurring as it
did at the end of a demonstration coinciding with the Republican National Convention, the expressive,
overtly political nature of the conduct was both intentional and overwhelmingly apparent. Texas v.
Johnson (No. 88-155) 491 U.S. 397 (1989),
Cf. Act No. 2928, March 26, 1920;

Com. Act No. 382, Sept. 5, 1938
Adm. Code of 1987, Bk. I, Ch. 4, secs. 12-13
d. Assembly and Petition

CASE DELA CRUZ VS. CA 305 SCRA 303 (1999)
LUZVIMINDA DE LA CRUZ, MERCY DE LEON, TERESITA EUGENIO, CORAZON GOMEZ,

ELENA GUEVARRA, ROSALINA JINGCO, LOIDA IGNACIO, and EMERITA
PIZARRO,petitioners, vs. COURT OF APPEALS, CIVIL SERVICE COMMISSION and THE
SECRETARY OF THE DEPARTMENT OF EDUCATION, CULTURE AND
SPORTS, respondents.
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[G.R. No. 129221. March 25, 1999.]
ROLANDO ALURA, CLARA ALVAREZ, POFIRIO AUSTRIA, VICENTE CARRANZA, ELMER

DALIDA, ROSALINDA DALIDA, NELSON DULDULAO, LEA POCONG, ENRICO
RAYMUNDO, MARGIE SERRANO, SUSAN SIERTE, JESSIE VILLANUEVA, NORBERTO
ABAD, MARIA ACEJO, ELVIRA ALANO, SUSANA BANUA, CAROLINA BULACLAC, DANILO
CABALLES, ECHELITA CALMA, JESUSA CARAIG, CECILIA CASTILLO, ANACLETA
CORRALES, GLORIA CUEVAS, CONCORDIA DE GUZMAN, ROWENA DEL ROSARIO,
MATILDE DINGLE, ROSARIO DULDULAO, CONRADA ENDRINA, LUZVIMINDA ESPINO,
VIRGILIO ESTRADA, DAMIAN FETIZANAN, DEMOCRITO FLORES, ROSALIA GARCENILA,
CORAZON GONZALES, VIOLETA GUANIZO, SURENA GUNDRAN, HILARIA HALAGO,
NERISSA IGNACIO, LEONOR LACERNA, TERESITA LAGUMBAY, TERESITA LAURENTE,
CARMELITA LEGION, LEONARDO LIMBO, EDGARDO LIWANAG, ERLINA MAGALLANES,
NEDA MAGSULIT, AMELITA MANGAHAS, GUIA MORRIS, HIPOLITA NATIVIDAD,
NATIVIDAD NEPOMUCENO, ROSALINA NOCUM, MAXIMA NON, ESTELA PALILEO, ANA
PALMA, GLICERIA PANGINDIAN, MA. LUZ PEREZ, LYDIA QUINTANA, LORENZA REAL,
BERNARDITA RINO, CELIA RONQUILLO, GLORIA SALVADOR, CATHERINE SAN
AGUSTIN, LIBERTY SISON, ERLINDA SOLAMO, ALMA TALAMANTE, GINA TIMBAS,
BENJAMIN VALBUENA, DONATO VALDEMORO, ROSEMARIE VEDEJA, RIZALINA
VICTORIO, MYRNA VILLAMIN, FLORENDA VILLAREAL, WILSON PEREZ, ENRICO
PILANDE, JOSEPHINE PARMISANO, FELIPE ALACAR, JOSE FETALVERO, JR., MYRNA
BARLISO, CAROLINA COLIGADO, ROLANDO CERBO and LORA
CLEMENCIA, petitioners, vs. COURT OF APPEALS, CIVIL SERVICE COMMISSION, and
SECRETARY OF EDUCATION CULTURE AND SPORTS, respondents.
Froilan M. Bacungan & Associates for petitioners.

The Solicitor General for respondents.
SYNOPSIS
These consolidated petitions are among several petitions filed with this Court arising from the much
publicized public school teachers' mass actions of September/October 1990.
Petitioners are public school teachers from various schools in Metro Manila who were simultaneously
charged, preventively suspended, and eventually dismissed in October 1990 by then Secretary Cario of
the DECS. Petitioners appealed to the Merit Systems Protection Board (MSPB) and then to the Civil Service
Commission. The CSC found petitioners guilty of "conduct prejudicial to the best interest of the service"
for having participated in the mass actions and imposed upon them the reduced penalty of 6 months
suspension. However, in view of the length of time that petitioners had been out of the service by reason
of the immediate implementation of the dismissal orders of Secretary Cario, the CSC likewise ordered
petitioners' automatic reinstatement in the service without back wages. Petitioners initially filed petitions
for certiorari with this Court but they were all referred to the Court of Appeals pursuant to RA Circular No.
1-95. The Court of Appeals dismissed the petitions for lack of merit. Hence, this consolidated petition for
review on certiorari.
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The petitions must be denied in view of previous rulings of this Court already settling all the issues raised
by petitioners. The public school teachers in the case of the 1990 mass actions did not exercise their
constitutional rights within reasonable limits. On the contrary, they committed acts prejudicial to the best
interest of the service by staging the mass protests on regular school days; abandoning their classes and
refusing to go back even after they had been ordered to do so. The teachers were penalized not because
they exercised their right to peaceably assemble but because of the manner by which such right was
exercised, i.e., going on unauthorized and unilateral absences thus disrupting classes in various schools in
Metro Manila which produced adverse effects upon the students for whose education the teachers were
responsible.
SYLLABUS
1. REMEDIAL LAW; CIVIL PROCEDURE; JUDGMENT; PRINCIPLE OF 'STARE DECISIS.' The petitions must
be denied in view of previous rulings of this Court already settling all the issues raised by petitioners. It is
a very desirable and necessary judicial practice that when a court has laid down a principle of law as
applicable to a certain state of facts, it will adhere to that principle and apply it to all future cases where
the facts are substantially the same. Stare decisis et non quieta movere. Stand by the decisions and disturb
not what is settled.
2. CONSTITUTIONAL LAW; CIVIL SERVICE; RIGHT OF PUBLIC SCHOOL TEACHERS TO PEACEABLY ASSEMBLE
AND PETITION THE GOVERNMENT FOR REDRESS OF GRIEVANCES, NOT EXERCISED WITHIN REASONABLE
LIMITS WHEN THEY STAGED MASS PROTESTS ON REGULAR SCHOOL DAYS. The public school teachers
in the case of the 1990 mass actions did not exercise their constitutional rights within reasonable limits.
On the contrary, they committed acts prejudicial to the best interest of the service by staging the mass
protests on regular school days, abandoning their classes and refusing to go back even after they had been
ordered to do so. Had the teachers availed of their free time recess, after classes, weekends or holidays
to dramatize their grievances and to dialogue with the proper authorities within the bounds of law; no
one not the DECS, the CSC or even the Supreme Court could have held them liable for their
participation in the mass actions. What were pitted in the 1990 mass actions against the rights of free
expression and of assembly were inferior property rights while the higher consideration involved in the
case of the striking teachers was the education of the youth which must, at the very least, be equated
with the freedom of assembly and to petition the government for redress of grievances. We again stressed
that the teachers were penalized not because they exercised their right to peaceably assemble but
because of themanner by which such right was exercised, i.e., going on unauthorized and unilateral
absences thus disrupting classes in various schools in Metro Manila which produced adverse effects upon
the students for whose education the teachers were responsible.
3. ID.; ID.; RIGHT TO BACKWAGES OF TEACHERS REINSTATED TO SERVICE AFTER DISMISSAL ORDERS WERE
COMMUTED TO SUSPENSION, NOT APPRECIATED ON THE GROUND THAT THEY WERE NEITHER
EXONERATED NOR UNJUSTIFIABLY SUSPENDED. The issue of whether back wages may be awarded to
teachers ordered reinstated to the service after the dismissal orders of Secretary Cario were commuted
by the CSC to six (6) months suspension is already settled. In Bangalisan v. Court of Appeals we resolved
the issue in the negative on the ground that the teachers were neither exonerated nor unjustifiably
suspended, two (2) circumstances necessary for. the grant of back wages in administrative disciplinary
cases. The immediate implementation of the final orders for dismissal even pending appeal was justified
by the provision of the Administrative Code of 1987. Having been found to have actually participated in
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the illegal mass actions although found answerable for a lesser offense, petitioners could not be
considered as fully innocent of the charges against them: Being found liable for a lesser offense is not
equivalent to exoneration.
DECISION
BELLOSILLO, J p:
These consolidated petitions 1 are among several petitions filed with this Court arising from the much-
publicized public school teachers' mass actions of September/October 1990.
Petitioners are public school teachers from various schools in Metro Manila who were simultaneously
charged, preventively suspended, and eventually dismissed in October 1990 by then Secretary Isidro D.
Cario of the Department of Education, Culture and Sports (DECS), in decisions issued by him which
uniformly read
This is a motu-propio administrative complaint separately filed by the Secretary of
Education, Culture and Sports against the following public school teachers . . . based on
the report submitted by their respective school principals wherein it was alleged that
the above-named teachers participated in the mass action/illegal strike on Sept. 19-21,
1990 and subsequently defied the return-to-work order dated September 17, 1990
issued by this Office, which acts constitute grave misconduct, gross neglect of duty,
gross violation of Civil Service Law,Rules and Regulations and reasonable office
regulations, refusal to perform official duty, gross insubordination, conduct prejudicial
to the best interest of the service and absence without official leave (AWOL), in violation
of Presidential Decree 807, otherwise known as the Civil Service Decree of the
Philippines.
Required to explain within a period of not less than 72 hours but not more than 5 days
from receipt of the complaint, respondents failed to submit the required answer within
the given time up to the present, and despite the denial of their request for extension
of 30 days within which to submit their answers dated September 25, 1990 filed by their
counsel, Atty. Gregorio Fabros, in a letter of this Office to him dated September 28,
1990, respondents failed to submit the same, which failure, is considered a waiver on
their part of their right to answer the charges and to controvert the same.
Wherefore, after a careful evaluation of the records, this Office finds the respondents
guilty as charged.
In accordance with Memorandum Circular 30 s. 1989 of the Civil Service Commission on
Guidelines in the Application of Penalty in Administrative Cases, the herein respondents
are dismissed from Office effective immediately.
The decisions dismissing petitioners were immediately implemented.
Petitioners appealed to the Merit Systems Protection Board (MSPB) and then to the Civil Service
Commission (CSC). In 1993 the CSC found petitioners guilty of "conduct prejudicial to the best interest of
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the service" for having participated in the mass actions and imposed upon them the reduced penalty of
six (6) months' suspension. However, in view of the length of time that petitioners had been out of the
service by reason of the immediate implementation of the dismissal orders of Secretary Cario, the CSC
likewise ordered petitioners' automatic reinstatement in the service without back wages.
Petitioners were unhappy with the CSC decision. They initially filed petitions for certiorari with this Court,
docketed as G.R. Nos. 111998, 2 114435-5506, 3 and 116312-19, 4 which were all referred to the Court of
Appeals pursuant to Revised Administrative Circular No. 1-95 5 and there re-docketed as CA-G.R. SP No.
37620, CA-G.R. SP No. 37619 and CA-G.R. SP Nos. 37784, 37808-37014, respectively.
On 29 November 1995 the Special Third Division of the Court of Appeals 6 rendered a joint decision in CA-
G.R. SP Nos. 37619-20 dismissing the petitions for lack of merit. 7 The appellate court ruled that the
questioned resolutions of the Civil Service Commission finding petitioners guilty of conduct prejudicial to
the best interest of the service were based on reasonable and justifiable grounds; that petitioners'
perceived grievances were no excuse for them not to conduct classes and defy the return-to-work order
issued by their superiors; that the immediate execution of the dismissal orders of Secretary Cario was
sanctioned by Sec. 47, par. (2), of the Administrative Code of 1987 (E.O. No. 292) as well as Sec. 37, par.
(b), Art. IX of PD No. 807, 8and Sec. 32, Rule XIV of the Omnibus Rules Implementing Book V of
E.O. No. 292. Their motion for reconsideration having been denied on 15 May 1997, 9 petitioners then
appealed bycertiorari to this Court on 26 June 1997, docketed as G.R. No. 129221.
Meanwhile, on 24 April 1998 the Tenth Division of the Court of Appeals 10 rendered a joint decision in
CA-G.R. SP No. 37784 and Nos. 37808-14 likewise dismissing the petitions for lack of merit. 11 The
appellate court rejected petitioners' contention that they should not have been penalized for participating
in the September/October 1990 mass actions because they were merely exercising their constitutional
right to free assembly. In so ruling the Court of Appeals cited Manila Public School Teachers Association
v. Laguio, Jr. 12 wherein this Court ruled that the public school teachers' mass actions of
September/October 1990 were "to all intents and purposes a strike . . . constitut[ing] a concealed and
unauthorized stoppage of, or absence from, work which it was the teachers' duty to perform, undertaken
for essentially economic reasons." Petitioners' contention that Secretary Cario's decision to dismiss them
was not supported by evidence was likewise rejected in view of petitioners' admissions and/or failure to
refute the factual finding that petitioners actually joined the mass actions based on the report of absences
submitted by their respective school principals. Their motion for reconsideration having been denied in
the resolution of 20 August 1996, 13 petitioners then filed a petition for review on certiorari with this
Court on 1 October 1996, docketed as G.R. No. 126183.
By resolution of 7 October 1997 we granted petitioners' motion for the consolidation of G.R. Nos. 126183
and 129221 involving as they did common questions of fact and law.
Petitioners contend that the Court of Appeals grievously erred in affirming the CSC resolutions finding
them guilty of conduct prejudicial to the best interest of the service when their only "offense" was to
exercise their constitutional right to peaceably assemble and petition the government for redress of their
grievances. Moreover petitioners insist that the mass actions of September/October 1990 were not
"strikes" as there was no actual disruption of classes. Petitioners therefore ask for exoneration or, in the
alternative, award of back wages for the period of three (3) years when they were not allowed to work
while awaiting resolution of their appeals by the MSPB and CSC, deducting the period of six (6) months'
suspension eventually meted them.
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The petitions must be denied in view of previous rulings of this Court already settling all the issues raised
by petitioners. It is a very desirable and necessary judicial practice that when a court has laid down a
principle of law as applicable to a certain state of facts, it will adhere to that principle and apply it to all
future cases where the facts are substantially the same. 14Stare decisis et non quieta movere. Stand by
the decisions and disturb not what is settled. 15
As early as 18 December 1990 we have categorically ruled in the consolidated cases of Manila Public
School Teachers Association v. Laguio Jr. 16 and Alliance of Concerned Teachers v. Hon.Isidro
Cario 17 that the mass actions of September/October 1990 staged by Metro Manila public school
teachers "amounted to a strike in every sense of the term, constituting as they did, a concerted and
unauthorized stoppage of or absence from work which it was said teachers' sworn duty to perform, carried
out for essentially economic reasons to protest and pressure the Government to correct what, among
other grievances, the strikers perceived to be the unjust or prejudicial implementation of the salary
standardization law insofar as they were concerned, the non-payment or delay in payment of various
fringe benefits and allowances to which they were entitled, and the imposition of additional teaching loads
and longer teaching hours." In Rolando Gan v. Civil Service Commission, 18 we denied the claim that the
teachers were thereby denied their rights to peaceably assemble and petition the government for redress
of grievances reasoning that this constitutional liberty to be upheld, like any other liberty, must be
exercised within reasonable limits so as not to prejudice the public welfare. But the public school teachers
in the case of the 1990 mass actions did not exercise their constitutional rights within reasonable limits.
On the contrary, they committed acts prejudicial to the best interest of the service by staging the mass
protests on regular school days, abandoning their classes and refusing to go back even after they had been
ordered to do so. Had the teachers availed of their free time recess, after classes, weekends or holidays
to dramatize their grievances and to dialogue with the proper authorities within the bounds of law, no
one not the DECS, the CSC or even the Supreme Court could have held them liable for their
participation in the mass actions. 19
With respect to our ruling in PBM Employees Organization v. Philippine Blooming Mills Co.,
Inc., 20 invoked by petitioners, we have likewise already ruled in the Rolando Gan case 21 that
thePBM ruling that the rights of free expression and assembly could not be lightly disregarded as they
occupy a preferred position in the hierarchy of civil liberties was not applicable to defend the validity
of the 1990 mass actions because what were pitted therein against the rights of free expression and of
assembly were inferior property rights while the higher consideration involved in the case of the striking
teachers was the education of the youth which must, at the very least, be equated with the freedom of
assembly and to petition the government for redress of grievances. 22
We affirmed the foregoing rulings in Bagana v. Court of Appeals 23 by denying a similar petition filed by
another group of teachers who participated in the 1990 mass actions but who claimed to have been
merely exercising their constitutional right to free assembly. We held in Bagana that the Court of Appeals
committed no reversible error in affirming the CSC resolutions finding the teachers guilty of conduct
prejudicial to the best interest of the service and imposing penalties of six (6) months' suspension without
pay. In Bangalisan v. Court of Appeals 24 we added that the persistent refusal of the striking teachers to
call the mass actions by the conventional term "strike" did not erase the true nature of the mass actions
as unauthorized stoppages of work the purpose of which was to obtain a favorable response to the
teachers' economic grievances. We again stressed that the teachers were penalized not because
they exercised their right to peaceably assemble but because of the manner by which such right was
exercised, i.e., going on unauthorized and unilateral absences thus disrupting classes in various schools in
Metro Manila which produced adverse effects upon the students for whose education the teachers were
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responsible. But herein petitioners contend that classes were not actually disrupted because substitute
teachers were immediately appointed by Secretary Cario. Besides being a purely factual assertion which
this Court cannot take cognizance of in a petition for review, the fact that the prompt remedial action
taken by Secretary Cario might have partially deflected the adverse effects of the mass protests did not
erase the administrative liability of petitioners for the intended consequences thereof which were the
very reason why such prompt remedial action became necessary.
Considering the foregoing, we find that respondent Court of Appeals did not err in sustaining the CSC
resolutions finding petitioners guilty of conduct prejudicial to the best interest of the service.
As an alternative prayer, petitioners ask that in the event their exoneration is not decreed they be
awarded back wages for the period when they were not allowed to work by reason of the supposed
unjustified immediate implementation of the dismissal orders of Secretary Cario while awaiting
resolution of their appeals by the MSPB and CSC.
The issue of whether back wages may be awarded to teachers ordered reinstated to the service after the
dismissal orders of Secretary Cario were commuted by the CSC to six (6) months' suspension is already
settled.
In Bangalisan v. Court of Appeals 25 we resolved the issue in the negative on the ground that the teachers
were neither exonerated nor unjustifiably suspended, two (2) circumstances necessary for the grant of
back wages in administrative disciplinary cases. Like herein petitioners, those in Bangalisan were also
teachers who participated in the 1990 mass actions for which they were dismissed by Secretary Cario
but ordered merely suspended for six (6) months by the Civil Service Commission. On a plea that the
immediate implementation of the dismissal orders of Secretary Cario was unjustified, thus warranting
an award of back wages the Court said
As to the immediate execution of the decision of the Secretary against petitioners, the
same is authorized by Section 47, paragraph (2), of Executive Order No. 292,thus: "The
Secretaries and heads of agencies and instrumentalities, provinces, cities and
municipalities shall have jurisdiction to investigate and decide matters involving
disciplinary action against officers and employees under their jurisdiction. Their
decision shall be final in case the penalty imposed is suspension for not more than thirty
days or fine in an amount not exceeding thirty days' salary. In case the decision
rendered by a bureau or office is appealable to the Commission, the same shall be
executory except when the penalty is removal, in which case the same shall be
executory only after confirmation by the Secretary concerned.
And since it was already the final dismissal orders of Secretary Cario which were being carried out,
immediate implementation even pending appeal was clearly sanctioned by the aforequoted provision
of the Administrative Code of 1987. 26 Hence, being legal, the immediate execution of the dismissal
orders could not be considered unjustified.
The cases cited by petitioners to support their prayer for back salaries, namely, Abellera v. City of
Baguio 27 and Bautista v. Peralta 28 being cases which involved the unjustified immediate execution of
the dismissal orders of the then Civil Service Commissioner pending appeal to the Civil Service Board of
Appeals are therefore not applicable to justify petitioners' prayer. Neither could petitioners be considered
to have been exonerated from the charges levelled against them by Secretary Cario from the mere fact
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that they were found guilty only of conduct prejudicial to the best interest of the service by the CSC. It
must be remembered that Secretary Cario charged petitioners with grave misconduct, gross neglect of
duty, gross violation of civil service law,rules and regulations, etc., for having participated in the 1990
illegal mass actions. On appeal the CSC while affirming the factual finding that petitioners indeed
participated in the mass actions found them liable only for conduct prejudicial to the best interest of the
service. Clearly the CSC decision did not proceed from a finding that petitioners did not commit the acts
complained of. Having been found to have actually participated in the illegal mass actions although found
answerable for a lesser offense, petitioners could not be considered as fully innocent of the charges
against them. 29 Being found liable for a lesser offense is not equivalent to exoneration. 30
Thus in Bangalisan we denied the claim for back wages of those teachers who were found to have actually
participated in the 1990 mass actions but granted the claim of one Rodolfo Mariano who was absent only
because he attended the wake and interment of his grandmother. In Jacinto v. Court of Appeals 31 we
again denied the claim for back wages of teachers found to have given cause for their suspension, i.e.,
their unjustified abandonment of classes to the prejudice of their students but granted the claim of
Merlinda Jacinto who was absent because of illness. cdasia
Petitioners do not deny, nay they even admit, having participated in the 1990 mass actions. Thus having
given cause for their suspension, their prayer for back wages must be denied conformably with settled
rulings of this Court.
WHEREFORE, the petitions are DENIED and the assailed Decisions of the Court of Appeals dated 29
November 1995 and 24 April 1996 are AFFIRMED. No costs.
SO ORDERED.
||| (Dela Cruz v. Court of Appeals, G.R. No. 126183, 129221, [March 25, 1999], 364 PHIL 786-799)
D. Content-neutral restrictions
OBrien Test: A government regulation is sufficiently justified if it is

within the constitutional power of the government; if it furthers an
important or substantial governmental interest; if the governmental
interest is unrelated to the suppression of free expression; and if
the incidental restriction on alleged freedom of expression is no
greater than is essential to the furtherance of that interest. (United
States vs. OBrien, 391 U.S. 367 (1968), adopted, in Adiong vs.
Comelec, 207 SCRA 712 [1992])
1. Regulation of political campaign/election activity

CASES OSMEA VS. COMELEC, 288 SCRA 447 (1998)
EMILIO M.R. OSMEA and PABLO P. GARCIA, petitioners, vs. THE COMMISSION ON
ELECTIONS, respondent.
Garcia Garcia & Ong Vao Law Offices and Pablo John Garcia, Jr. for petitioners.
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The Solicitor General for respondent.
SYNOPSIS
Section 11 of Republic Act No. 6646 (Electoral Reforms Law of 1987) prohibiting mass media from selling
or giving free of charge print space or air time for campaign or other political purposes except to the
Commission on Elections is again challenged on the ground that events after the ruling in the National
Press Club v. Commission on Elections have called for its reexamination.
The Supreme Court, finding that petitioners failed to present any empirical data to back up their claim
and simply seek the holding of an academic exercise and not the adjudication of a case or controversy,
reaffirmed the ruling on the NPC. Besides, a majority of the present Court is unpersuaded that its decision
in the NPC case is founded in error. ADcEST
SYLLABUS
1. POLITICAL LAW; REPUBLIC ACT NO. 6646 (ELECTORAL REFORMS LAW OF 1987); COMELEC RESOLUTION
NO. 2974, CONSTITUTIONAL. NPC v. COMELEC upheld the validity of 11 (b) of R.A. No. 6646 against
claims that it abridged freedom of speech and of the press. And since a majority of the present Court is
unpersuaded that its decision in NPC is founded in error, it will suffice for present purposes simply to
reaffirm the ruling in that case. Stare decisis et non quieta movere. This is what makes the present case
different from the overruling decisions invoked by petitioners.
2. ID.; ID.; ID.; NO SUPPRESSION OF POLITICAL ADS BUT ONLY A REGULATION OF TIME AND MANNER OF
ADVERTISING. The term political "ad ban," when used to describe 11(b) ofR.A. No. 6646, is misleading,
for even as 11(b) prohibits the sale or donation of print space and air time to political candidates, it
mandates the COMELEC to procure and itself allocate to the candidates space and time in the media.
There is no suppression of political ads but only a regulation of the time and manner of advertising. cDCaTS
3. ID.; ID.; ID.; ID.; There is no total ban on political ads, much less restriction on the content of the
speech. Given the fact that print space and air time can be controlled or dominated by rich candidates to
the disadvantage of poor candidates, there is a substantial or legitimate governmental interest justifying
exercise of the regulatory power of the COMELEC under Art. IX-C, 4 of the Constitution. The provisions
in question involve no suppression of political ads. They only prohibit the sale or donation of print space
and air time to candidates but require the COMELEC instead to procure space and time in the mass media
for allocation, free of charge, to the candidates. In effect, during the election period, the COMELEC takes
over the advertising page of newspapers or the commercial time of radio and TV stations and allocates
these to the candidates.
4. ID.; ID.; ID.; MAIN PURPOSE IS REGULATORY. The main purpose of 11(b) is regulatory. Any
restriction on speech is only incidental, and it is no more than is necessary to achieve its purpose of
promoting equality of opportunity in the use of mass media for political advertising. The restriction on
speech, as pointed out in NPC, is limited both as to time and as to scope. DHECac
5. CONSTITUTIONAL LAW; LEGISLATIVE DEPARTMENT; CHOICE OF REMEDIES FOR SOCIAL MALADY
REQUIRING GOVERNMENT ACTION BELONGS TO CONGRESS. Well-settled is the rule that the choice or
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remedies for an admitted social malady requiring government action belongs to Congress. The remedy
prescribed by it, unless clearly shown to be repugnant to fundamental law, must be respected. As shown
in this case, 11(b) of R.A. 6646 is a permissible restriction on the freedom of speech, of expression and
of the press.
6. ID.; VALIDITY OF LAWS; CANNOT DEPEND ON FAITHFUL COMPLIANCE OF THOSE CHARGED WITH ITS
ENFORCEMENT. The validity of a law cannot be made to depend on the faithful compliance of those
charged with its enforcement but by appropriate constitutional provisions.
PUNO, J., separate concurring opinion:
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF SPEECH; RULING IN U.S. BUCKLEY CASE THAT
LIMITATION ON CAMPAIGN EXPENDITURES VIOLATES GUARANTEE OF FREEDOM OF SPEECH NOT
APPLICABLE TO PHILIPPINE SETTING. I wish, however, to advert to the dissent of Madam Justice Romero
which cites Buckley v. Valeo, a 1976 case where a divided US Supreme Court ruled that limits on campaign
expenditures violate the guarantee of freedom of speech. The essence of the Buckley ruling is that "the
concept that government may restrict the speech of some elements of society in order to enhance the
relative voice of others is wholly foreign to the First Amendment . . ." A reading of American legal
literature, however, will reveal that Buckley has been widely criticized by, libertarians because its pro-
business thrust has pernicious effects on efforts to achieve much needed electoral reforms. There is less
reason to apply the discredited Buckley decision in our setting. Section 11(b) of R.A. No. 6646 is based on
our provisions of our Constitution which have no counterparts in USConstitution.
2. POLITICAL LAW; ELECTIONS; POLITICAL INEQUALITY, A TOUCHSTONE OF DEMOCRACY. Political
equality is a touchstone of democracy. The guaranty of freedom of speech should not be used to frustrate
legislative attempts to level the playing field in politics. cDSaEH
3. ID.; ID.; REPUBLIC ACT 6646 (POLITICAL AD BAN); DOES NOT CURTAIL FREEDOM OF SPEECH. R.A. No.
6646 does not curtail speech as it no more than prevents the abusive use of wealth by the rich to frustrate
the poor candidate's access to media.
VITUG, J., separate opinion:
1. POLITICAL LAW; REPUBLIC ACT NO. 6646 (ELECTORAL REFORMS LAW OF 1987); COMELEC RESOLUTION
NO. 2974, CONSTITUTIONAL. I share the opinion of those who continue to uphold the decision in
the National Press Club vs. Commission on Elections case that has sustained the validity of Section 11(b)
of Republic Act ("R.A.") No. 6646, otherwise also known asthe Electoral Reforms Law of 1987. It is the
submission that Section 11(b) of R.A. No. 6646 and Section 18(e) of COMELEC Resolution No. 2974 should
be declared unconstitutional. I see, however, in the above provisions a faithful compliance and due
observance of the language, intent and spirit of the Constitution itself.
2. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT OF FREE EXPRESSION; MUST YIELD TO THE PROVISIONS
OF EQUAL ACCESS TO OPPORTUNITIES FOR PUBLIC SERVICE AND PROHIBITED POLITICAL DYNASTIES. It
might be worth mentioning that Section 26, Article II, of the Constitution also states that the "State shall
guarantee equal access to opportunities for public service, and prohibit political dynasties as may be
defined by law." I see neither Article IX(C) (4) nor Section 26, Article II, of the Constitution to be all that
adversarial or irreconcilably inconsistent with the right of free expression. In any event, the latter, being
one of general application, must yield to the specific demands of the Constitution. The freedom of
expression concededly holds, it is true, a vantage point in the hierarchy of constitutionally-enshrined
rights but, like all fundamental rights, it is not without limitations. HIcTDE
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3. POLITICAL LAW; POLITICAL QUESTION; WISDOM IN ENACTMENT OF LAW, BEYOND THE NORMAL
PREROGATIVE OF SUPREME COURT. The case is not about a fight between the "rich" and the "poor" or
between the "powerful" and the "weak" in our society but it is to me a genuine attempt on the part of
Congress and the Commission on Elections to ensure that all candidates are given an equal chance to
media coverage and thereby be equally perceived as giving real life to the candidates' right of free
expression rather than being viewed as an undue restriction of that freedom. The wisdom in the
enactment of the law, i.e., that which the legislature deems to be best in giving life to the Constitutional
mandate, is not for the Court to question; it is a matter that lies beyond the normal prerogatives of the
Court pass upon.
PANGANIBAN, J., dissenting opinion:
1. CONSTITUTIONAL LAW; REPUBLIC ACT 6646; POLITICAL AD BAN UNDER SECTION 11 (b) THEREOF,
UNCONSTITUTIONAL. The ad ban is a blatant violation of the candidates' constitutional right to free
speech and the people's right to information. Being the last refuge of the people and the guardian of the
Constitution, this Court should then, with alacrity, view the plan with suspicion, if not with outright
rejection. To repeat, the alleged limitations are in reality non-existent; and the "pro-poor" justification,
without logic. With all due respect, I submit that the ad ban is regressive, repressive and deceptive. It has
no place in our constitutional democracy.
2. ID.; ID.; ID.; PROHIBITION NOT LIMITED IN DURATION AND SCOPE. The allegation that the prohibition
is reasonable because it is limited in duration and scope is itself most unreasonable, bereft as it is logic
and basis. Even more shallow is the argument that the Comelec-given media time and space compensate
for such abridgment. In fact, the Comelec is not even procuring any newspaper space. In any event, the
fact that not even the poorest candidates have applied for available opportunities is the best testament
to its dubiousness. That petitioners who are seasoned political leaders prefer to pay for their own media
ads rather than to avail themselves of the Comelec freebies refutes the majority's thesis of
compensation.Indeed, the free things in life are not always the best. They may just be a bureaucratic waste
of resources.
3. REMEDIAL LAW; STARE DECISIS; SUBORDINATE TO VERITY, INTEGRITY AND CORRECTNESS OF
JURISPRUDENCE. Before I close, a word about stare decisis. In the present case, the Court is maintaining
the ad ban to be consistent with its previous holding in NPC vs. Comelec. Thus, respondent urges
reverence for the stability of judicial doctrines. I submit, however, that more important than consistency
and stability are the verity, integrity and correctness of jurisprudence. As Dean Roscoe Pound explains,
"Law must be stable but it cannot stand still." Verily, it must correct itself and move in cadence with the
march of the electronic age. Error and illogic should not be perpetuated. After all, the Supreme Court, in
many cases, has deviated from stare decisis and reversed previous doctrines and decisions. It should do
no less in the present case. EaIcAS
ROMERO, J., dissenting opinion:

1. REMEDIAL LAW; ACTIONS; PRINCIPLE OF STARE DECISIS; CANNOT PREVAIL WHEN CONSTITUTIONALISM
DEMANDS OTHERWISE. While it is desirable, even imperative, that this Court, in accordance with the
principles of stare decisis, afford stability to the law by hewing to doctrines previously established, said
principle was never meant as an obstacle to the abandonment of established rulings where abandonment
is demanded by public interest and by circumstances. Reverence for precedent simply as precedent
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cannot prevail when constitutionalism and public interest demand otherwise. Thus, a doctrine which
should be abandoned or modified should be abandoned and modified accordingly. More pregnant than
anything else is that the court should be right.
2. POLITICAL LAW; POLICE POWER; BASIS. Police power, it has been declared often enough, rests upon
public necessity and upon the right of the state and the public to self-protection. For this reason, its scope
expands and contracts with changing needs. Police power, the Court conceded, is an expanding power;
but it cannot grow faster than the fundamental law of the state . . . If the people desire to have the police
power extended and applied to conditions and things prohibited by the organic law, they must first amend
that law.
3. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF SPEECH; PRIOR RESTRAINTS HOBBLED BY
INVALIDITY. This upends the familiar holding that "any system of prior restraint of expression comes to
this Court bearing a heavy presumption against its constitutional validity, with the Government carrying
a heavy burden of showing justification for the enforcement of such a restraint." This presumption was
even reiterated in the recent case of Iglesia ni Cristo v. CA, wherein we ruled that "deeply ensconced in
our fundamental law is its hostility against all prior restraints on speech . . . Hence, any act that restraints
speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows. It is the
burden of the respondent . . . to overthrow this presumption. If it fails to discharge this burden, its act of
censorship will be struck down." EATcHD
4. ID.; ID.; ID.; DEFINED. Freedom of speech has been defined as the liberty to know, to utter and to
argue freely according to conscience, above all liberties. It thus includes, not only the right to express
one's views, but also other cognate rights relevant to the free communication of ideas, not excluding the
right to be informed on matters of public concern. HESCcA
5. ID.; ID.; FREEDOM OF EXPRESSION; CONSTRUED. In the hierarchy of fundamental civil liberties, the
right of free expression occupies a preferred position, the sovereign people recognizing that it is
indispensable in a free society such as ours. Verily, one of the touchstones of democracy is the principle
that free political discussion is necessary if government is to remain responsive to the will of the people.
It is a guarantee that the people will be kept informed at all times sufficiently to discharge the awesome
responsibilities of sovereignty.
6. ID.; ID.; ID.; SUBJECT TO LIMITATIONS; REQUISITES. Yet, it is also to be conceded that freedom of
expression is not an absolute right. The right or privilege of free speech and publication has its limitations,
the right not being absolute at all times and under all circumstances. For freedom of speech does not
comprehend the right to speak whenever, however, and wherever one pleases, and the manner, and
place, or time of public discussion can be constitutionally controlled. Still, while freedom of expression
may not be immune from regulation, it does not follow that all regulation is valid. Regulation must be
reasonable as not to constitute a repression of the freedom of expression. First, it must be shown that the
interest of the public generally, as distinguished from that of a particular class requires such regulation.
Second, it must appear that the means used are reasonably for the accomplishment of the purpose, and
not unduly oppressive upon individuals.
7. ID.; CONSTITUTION; CONSTRUED AS A SINGLE COMPREHENSIVE DOCUMENT AND NOT A SERIES OF
DISJOINTED ARTICLES. While Article IX(C), Section 10 of the Constitutionprovides that "(b)ona fide
candidates for any public office shall be free from any form of harassment and discrimination," Article
IX(C), Section 4 is nothing if not antithetical to the former provision as, in its application, it is productive
of a situation wherein political neophytes are blatantly discriminated against. Much as we recognize the
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basic canon in Constitutional construction that the Constitution must be interpreted in such a way as to
harmonize all its provisions if the Charter is to be construed as a single, comprehensive document and not
as a series of disjointed articles or provisions, the predictable effect is for one provision to negate the
other.
8. ID.; R.A. No. 6646; SECTION 11(B) THEREOF ON POLITICAL AD BAN, A FORM OF PRIOR RESTRAINT ON
FREEDOM OF EXPRESSION AND OF THE PRESS. With the prohibition on political advertisements except
through the Comelec space and time, how can a full discussion of men, issues, ideologies and programs
be realized? Article III, Section 4 of the Constitutionprovides that "n(o) law shall be passed abridging the
freedom of speech, of expression, of the press, or the right of the people peaceably to assemble and
petition the government for redress of grievances." Implicit in this guarantee is the right of the people to
speak and publish their views and opinions on political and other issues, without prior restraint and/or
fear of subsequent punishment. Yet Section 11(b), by authorizing political advertisements only via the
COMELEC effectively prevents the candidates from freely using the facilities of print and electronic mass
media to reach the electorate. A more blatant form of prior restraint on the free flow of information and
ideas can hardly be imagined. To be sure, it does not constitute an absolute restriction, but it is restriction
nonetheless, as odious and insidious as any that may be conceived by minds canalized in deepening
grooves. Given our experience in the past elections, political advertisements on radio and television would
not endanger any substantial public interest. Indeed, allowing advertisements would actually promote
public interest by furthering public awareness of election issues. The objective, equalizing opportunities
for public service, while of some immediacy during election times, does not justify curtailing the citizen's
right of free speech and expression. DSHcTC
9. ID.; CONSTITUTION; BILL OF RIGHTS; RIGHT TO FREE SPEECH AND EXPRESSION; BASIS OF RESTRICTION;
CASE AT BAR. "Not only must the danger be patently clear and pressingly present but the evil sought
to be avoided must be so substantive as to justify a clamp over one's mouth or a writing instrument to be
stilled. For these reasons, any attempt to restrict these liberties must be justified by clear and present
danger. The rational connection between the remedy provided and the evil to be curbed, which in other
context might support legislation against attack on due process grounds, will not suffice. These rights rest
on firmer foundation. Accordingly, whatever occasion would restrain orderly discussion and persuasion,
at appropriate time and place, must have clear support in public danger, actual or impending. Only the
greatest abuses, endangering permanent interests, give occasion for permissible limitation." No such clear
and present danger exists here as to justify banning political advertisements from radio and television
stations.
10. ID.; ID.; ID.; FREEDOM OF SPEECH; CONSTRUED. The guarantee of the freedom of speech which has
been defined by Wendell Philips as "the instrument and guarantee and the bright and consummate flower
of all liberty," has always been granted and a predominant status in the hierarchy of individual rights. It is
founded on the belief that the final end of the state was to make men free to develop their faculties and
that freedom to think as you will and to speak as you think are means indispensable to the discovery and
spread of political truth. Its purpose is to preserve an uninhibited market place of ideas where truth will
ultimately prevail.
11. ID.; ID.; ID.; ID.; PREFERENCE FOR ONE MEANS OF COMBATING SUBSTANTIVE EVILS MAY NOT BE AN
ADEQUATE FOUNDATION. Government may regulate constitutionally protected speech in order to
promote a compelling interest if it chooses the least restrictive means to further the said interest without
unnecessarily interfering with the guarantee of freedom of expression. Mere legislative preference for
one rather than another means for combating substantive evils may well be an inadequate foundation on
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which to rest regulations which are aimed at or in their operation diminish the effective exercise of rights
so necessary to maintenance of democratic institutions. Verily, courts cannot run a race of opinions upon
points of right, reason and expediency with the law-making power.
12. ID.; ID.; ID.; BROADEST SCOPE RECOGNIZED AND WIDEST LATITUDE ASSURED. The primacy
accorded the freedom of expression is a fundamental postulate of our constitutional system. The trend
as reflected in Philippine and American decisions is to recognize the broadest scope and assure the widest
latitude to this guaranty. It represents a profound commitment to the principle that debate of public issue
should be uninhibited, robust and wide open and may best serve its high purpose when it induces a
condition of unrest, creates dissatisfaction with conditions as they are or even stirs people to anger.
13. ID.; DECLARATION OF PRINCIPLES AND STATE POLICIES; SOCIAL JUSTICE; SHOULD NOT BE USED AS A
MEANS TO JUSTIFY INFRINGEMENT OF FREEDOM OF EXPRESSION. The repression of expression in an
attempt to level the playing field between the rich and the poor candidates is not only unrealistic but goes
beyond the permissible limits of freedom of expression as enshrined in the constitution. Social justice is a
laudable objective but it should not be used as a means to justify infringement of the freedom of
expression if it can be achieved by means that do not unnecessarily trench in the individual's fundamental
right. It is ironic that the guarantee of freedom of expression should be pitted against the constitutional
provision on social justice because the freedom of speech is the most potent instrument of public opinion,
not to speak of its being the most effective weapon for effecting political and social reforms. Certainly, an
infringement of the freedom of speech in a less than heroic attempt at attaining social justice cannot be
countenanced, for in the ultimate analysis social justice cannot flourish if the people's right to speak, to
hear, to know and ask for redress of grievance is watered down.
14. ID.; BILL OF RIGHTS; FREEDOM OF EXPRESSION; OCCUPIES A PREFERRED POSITION IN HIERARCHY OF
HUMAN VALUES. Freedom of expression occupies a preferred position in the hierarchy of human
values. The priority gives the liberty a sanctity and a sanction not permitting dubious intrusions and it is
the character of the right, not the limitation which determines what standard governs the choice.
Consequently, when the government defends a regulation on speech as a means to redress past harm or
prevent anticipated harm, it must do more than simply "posit the existence of the disease sought to be
cured. It must demonstrate that the recited harms are real, not merely conjectural and that the regulation
will alleviate these harms in a material way. Since freedom of expression occupies a dominant position in
the hierarchy of rights under the Constitution, it deserves no less than an exacting standard of limitation.
Limitations on the guarantee must be clear-cut, precise and, if needed readily controllable, otherwise the
forces that press towards curtailment will eventually break through the crevices and freedom of
expression will become the exception and suppression the rule. Sadly, the much vaunted adban failed to
live up to such standard and roseate expectations.
15. ID., R.A. No. 6646; SECTION 11(b) THEREOF ON POLITICAL ADBAN, UNREASONABLE AND ARBITRARY.
In summary, I hold that Section 11(b) of R.A. 6646, in the six years that have elapsed since it was upheld
as being in consonance with the fundamental law, has now become out of sync with the times and,
therefore, unreasonable and arbitrary, as it not only unduly restrains the freedom of expression of
candidates but corollary denies the electorate its fullest right to freedom of information at a time when it
should flourish most. cCTESa
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DECISION
MENDOZA, J p:
This is a petition for prohibition, seeking a reexamination of the validity of 11(b) of R.A. No. 6646, the
Electoral Reforms Law of 1987, which prohibits mass media from selling or giving free of charge print
space or air time for campaign or other political purposes, except to the Commission on
Elections. 1 Petitioners are candidates for public office in the forthcoming elections. Petitioner Emilio M.
R. Osmea is candidate for President of the Philippines, while petitioner Pablo P. Garcia is governor of
Cebu Province, seeking reelection. They contend that events after the ruling in National Press Club
v. Commission on Elections 2 "have called into question the validity of the very premises of that
[decision]." 3
There Is No Case or Controversy to Decide,
Only an Academic Discussion to Hold
NPC v. COMELEC upheld the validity of 11(b) of R.A. No. 6646 against claims that it abridged freedom of
speech and of the press. 4 In urging a reexamination of that ruling, petitioners claim that experience in
the last five years since the decision in that case has shown the "undesirable effects" of the law because
"the ban on political advertising has not only failed to level the playing field, [but] actually worked to the
grave disadvantage of the poor candidate[s]" 5 by depriving them of a medium which they can afford to
pay for while their more affluent rivals can always resort to other means of reaching voters like airplanes,
boats, rallies, parades, and handbills.
No empirical data have been presented by petitioners to back up their claim, however. Argumentation is
made at the theoretical and not the practical level. Unable to show the "experience" and "subsequent
events" which they claim invalidate the major premise of our prior decision, petitioners now say "there is
no need for 'empirical data' to determine whether the political ad ban offends the Constitution or
not." 6 Instead they make arguments from which it is clear that their disagreement is with the opinion of
the Court on the constitutionality of 11(b) of R.A. No. 6646 and that what they seek is a reargument on
the same issue already decided in that case. What is more, some of the arguments were already
considered and rejected in the NPC case. 7
Indeed, petitioners do not complain of any harm suffered as a result of the operation of the law. They do
not complain that they have in any way been disadvantaged as a result of the ban on media advertising.
Their contention that, contrary to the holding in NPC , 11(b) works to the disadvantage of candidates
who do not have enough resources to wage a campaign outside of mass media can hardly apply to them.
Their financial ability to sustain a long drawn-out campaign, using means other than the mass media to
communicate with voters, cannot be doubted. If at all, it is candidates like intervenor Roger Panotes, who
is running for mayor of Daet, Camarines Norte, who can complain against 11(b) of R.A. No. 6646. But
Panotes is for the law which, he says, has "to some extent, reduced the advantages of moneyed politicians
and parties over their rivals who are similarly situated as ROGER PANOTES." He claims that "the
elimination of this substantial advantage is one reason why ROGER PANOTES and others similarly situated
have dared to seek an elective position this coming elections." 8
What petitioners seek is not the adjudication of a case but simply the holding of an academic exercise.
And since a majority of the present Court is unpersuaded that its decision in NPC is founded in error, it
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will suffice for present purposes simply to reaffirm the ruling in that case. Stare decisis et non quieta
movere. This is what makes the present case different from the overruling decisions 9 invoked by
petitioners. LLjur
Nevertheless, we have undertaken to revisit the decision in NPC v. COMELEC in order to clarify our own
understanding of its reach and set forth a theory of freedom of speech.
No Ad Ban, Only a Substitution of
COMELEC Space and COMELEC
Time for the Advertising Page and
Commercials in Mass Media
The term political "ad ban," when used to describe 11(b) of R.A. No. 6646, is misleading, for even as
11(b) prohibits the sale or donation of print space and air time to political candidates, it mandates the
COMELEC to procure and itself allocate to the candidates space and time in the media. There is no
suppression of political ads but only a regulation of the time and manner of advertising.
Thus, 11(b) states:
Prohibited Forms of Election Propaganda. In addition to the forms of election
propaganda prohibited in Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:
xxx xxx xxx
(b) for any newspapers, radio broadcasting or television station, or other mass media,
or any person making use of the mass media to sell or to give free of charge print space
or air time for campaign or other political purposes except to the Commission as
provided under Section 90 and 92 of Batas Pambansa Blg. 881. Any mass media
columnist, commentator, announcer or personality who is a candidate for any elective
public office shall take a leave of absence from his work as such during the campaign
period.
On the other hand, the Omnibus Election Code provisions referred to in 11(b) read:
SEC. 90. Comelec space. The Commission shall procure space in at least one
newspaper of general circulation in every province or city: Provided, however. That in
the absence of said newspaper, publication shall be done in any other magazine or
periodical in said province or city, which shall be known as "Comelec Space" wherein
candidates can announce their candidacy. Said space shall be allocated, free of charge,
equally and impartially by the Commission among all candidates within the area in
which the newspaper is circulated. (Sec. 45, 1978 EC).
SEC. 92. Comelec time. The Commission shall procure radio and television time to be
known as "Comelec Time" which shall be allocated equally and impartially among the
candidates within the area of coverage of all radio and television stations. For this
purpose, the franchise of all radio broadcasting and television stations are hereby
amended so as to provide radio or television time, free of charge, during the period of
the campaign. (Sec. 46, 1978 EC)
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The law's concern is not with the message or content of the ad but with ensuring media equality between
candidates with "deep pockets," as Justice Feliciano called them in his opinion of the Court in NPC , and
those with less resources. 10 The law is part of a package of electoral reforms adopted in 1987. Actually,
similar effort was made in 1970 to equalize the opportunity of candidates to advertise themselves and
their programs of government by requiring the COMELEC to have a COMELEC space in newspapers,
magazines, and periodicals and prohibiting candidates to advertise outside such space, unless the names
of all the other candidates in the district in which the candidate is running are mentioned "with equal
prominence." The validity of the law was challenged in Badoy, Jr. v. COMELEC . 11 The voting was equally
divided (5-5), however, with the result that the validity of the law was deemed upheld.
There is a difference in kind and in severity between restrictions such as those imposed by the election
law provisions in question in this case and those found to be unconstitutional in the cases cited by both
petitioners and the Solicitor General, who has taken the side of petitioners. In Adiong v. COMELEC 12 the
Court struck down a regulation of the COMELEC which prohibited the use of campaign decals and stickers
on mobile units, allowing their location only in the COMELEC common poster area or billboard, at the
campaign headquarters of the candidate or his political party, or at his residence. The Court found the
restriction "so broad that it encompasses even the citizen's private property, which in this case is a
privately-owned car." 13 Nor was there a substantial governmental interest justifying the restriction.
[T]he constitutional objective to give a rich candidate and a poor candidate equal
opportunity to inform the electorate as regards their candidacies, mandated by Article
II, Section 26 and Article XIII, Section I in relation to Article IX(c) Section 4 of the
Constitution, is not impaired by posting decals and stickers on cars and other private
vehicles. Compared to the paramount interest of the State in guaranteeing freedom of
expression, any financial considerations behind the regulation are of marginal
significance. 14
Mutuc v. COMELEC 15 is of a piece with Adiong. An order of the COMELEC prohibiting the playing of taped
campaign jingles through sound systems mounted on mobile units was held to be an invalid prior restraint
without any apparent governmental interest to promote, as the restriction did not simply regulate time,
place or manner but imposed an absolute ban on the use of the jingles. The prohibition was actually
content-based and was for that reason bad as a prior restraint on speech, as inhibiting as prohibiting the
candidate himself to use the loudspeaker. So is a ban against newspaper columnists expressing opinion
on an issue in a plebiscite a content restriction which, unless justified by compelling reason, is
unconstitutional.16
Here, on the other hand, there is no total ban on political ads, much less restriction on the content of the
speech. Given the fact that print space and air time can be controlled or dominated by rich candidates to
the disadvantage of poor candidates, there is a substantial or legitimate governmental interest justifying
exercise of the regulatory power of the COMELEC under Art. IX-C, 4 of the Constitution, which provides:
The commission may, during the election period, supervise or regulate the enjoyment
or utilization of all franchises or permits for the operation of transportation and other
public utilities, media of communication or information, all grants, special privileges, or
concessions granted by the Government or any subdivision, agency, or instrumentality
thereof, including any government-owned or controlled corporation or its subsidiary.
Such supervision or regulation shall aim to ensure equal opportunity, time, and space,
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and the right to reply, including reasonable, equal rates therefor, for public information
campaigns and forums among candidates in connection with the objective of holding
free, orderly, honest, peaceful, and credible elections.
The provisions in question involve no suppression of political ads. They only prohibit the sale or donation
of print space and air time to candidates but require the COMELEC instead to procure space and time in
the mass media for allocation, free of charge, to the candidates. In effect, during the election period, the
COMELEC takes over the advertising page of newspapers or the commercial time of radio and TV stations
and allocates these to the candidates.
Nor can the validity of the COMELEC take-over for such temporary period be doubted. 17 In Pruneyard
Shopping Center v. Robbins, 18 it was held that a court order compelling a private shopping center to
permit use of a corner of its courtyard for the purpose of distributing pamphlets or soliciting signatures
for a petition opposing a UN resolution was valid. The order neither unreasonably impaired the value or
use of private property nor violated the owner's right not to be compelled to express support for any
viewpoint since it can always disavow any connection with the message.
On the other hand, the validity of regulations of time, place and manner, under well-defined standards, is
well-nigh beyond question. 19 What is involved here is simply regulation of this nature. Instead of leaving
candidates to advertise freely in the mass media, the law provides for allocation, by the COMELEC, of print
space and air time to give all candidates equal time and space for the purpose of ensuring "free, orderly,
honest, peaceful, and credible elections."
In Gonzales v. COMELEC, 20 the Court sustained the validity of a provision of R.A. No. 4880 which in part
reads:
SEC. 50-B. Limitation upon the period of Election Campaign or Partisan Political Activity.
It is unlawful for any person whether or not a voter or candidate, or for any group,
or association of persons, whether or not a political party or political committee, to
engage in an election campaign or partisan political activity except during the period of
one hundred twenty days immediately preceding an election involving a public office
voted for at large and ninety days immediately preceding an election for any other
elective public office.
The term "Candidate" refers to any person aspiring for or seeking an elective public
office, regardless of whether or not said person has already filed his certificate of
candidacy or has been nominated by any political party as its candidate.
The term "Election Campaign" or "Partisan Political Activity" refers to acts designed to
have a candidate elected or not or promote the candidacy of a person or persons to a
public office which shall include:
(a) Forming Organizations, Associations, Clubs, Committees or other groups of
persons for the purpose of soliciting votes and/or undertaking any campaign or
propaganda for or against a party or candidate;
(b) Holding political conventions, caucuses, conferences, meetings, rallies,
parades, or other similar assemblies, for the purpose of soliciting votes and/or
undertaking any campaign or propaganda for or against a candidate or party: .
.
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In Valmonte v. COMELEC, 21 on the other hand, the Court upheld the validity of a COMELEC resolution
prohibiting members of citizen groups or associations from entering any polling place except to vote.
Indeed, 261(k) of the Omnibus Election Code makes it unlawful for anyone to solicit votes in the polling
place and within a radius of 30 meters thereof.
These decisions come down to this: the State can prohibit campaigning, outside a certain period as well
as campaigning, within a certain place. For unlimited expenditure for political advertising in the mass
media skews the political process and subverts democratic self-government. What is bad is if the law
prohibits campaigning by certain candidates because of the views expressed in the ad. Content regulation
cannot be done in the absence of any compelling reason. LLjur
Law Narrowly Drawn to Fit
Regulatory Purpose
The main purpose of 11(b) is regulatory. Any restriction on speech is only incidental, and it is no more
than is necessary to achieve its purpose of promoting equality of opportunity in the use of mass media
for political advertising. The restriction on speech, as pointed out in NPC , is limited both as to time and
as to scope.
Petitioners and the dissenters make little of this on the ground that the regulation, which they call a ban,
would be useless any other time than the election period. Petitioners state: "[I]n testing the
reasonableness of a ban on mountain-skiing, one cannot conclude that it is limited because it is enforced
only during the winter season." 22 What makes the regulation reasonable is precisely that it applies only
to the election period. Its enforcement outside the period would make it unreasonable. More importantly,
it should be noted that a "ban on mountain skiing" would be passive in nature. It is like the statutory cap
on campaign expenditures, but is so unlike the real nature of 11(b), as already explained.
Petitioners likewise deny that 11(b) is limited in scope, as they make another quaint argument:
A candidate may court media to report and comment on his person and his programs,
and media in the exercise of their discretion just might. It does not, however, follow
that a candidate's freedom of expression is thereby enhanced, or less abridged. If Pedro
is not allowed to speak, but Juan may speak of what Pedro wishes to say, the
curtailment of Pedro's freedom of expression cannot be said to be any less limited, just
because Juan has the freedom to speak. 23
The premise of this argument is that 11(b) imposes a ban on media political advertising. What petitioners
seem to miss is that the prohibition against paid or sponsored political advertising is only half of the
regulatory framework, the other half being the mandate of the COMELEC to procure print space and air
time so that these can be allocated free of charge to the candidates.
Reform of the Marketplace of Ideas,
Not Permissible?
Petitioners argue that the reasoning of NPC is flawed, because it rests on a misconception that Art. IX-C,
4 mandates the absolute equality of all candidates regardless of financial status, when what this
provision speaks of is "equality of opportunity." In support of this claim, petitioners quote the following
from the opinion of the Court written by Justice Feliciano:
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The objective which animates Section 11(b) is the equalizing, as far as practicable, the
situations of rich and poor candidates by preventing the former from enjoying the undue
advantage offered by huge campaign "war chests." 24
The Court meant equalizing media access, as the following sentences which were omitted clearly show:
Section 11(b) prohibits the sale or donation of print space and air time "for campaign
or other political purposes" except to the Commission on Elections ("Comelec"). Upon
the other hand, Sections 90 and 92 of the Omnibus Election Code require the Comelec
to procure "Comelec space" in newspapers of general circulation in every province or
city and "Comelec time" on radio and television stations. Further, the Comelec is
statutorily commanded to allocate "Comelec space" and "Comelec time" on a free of
charge, equal and impartial basis among all candidates within the area served by the
newspaper or radio and television station involved. 25
On the other hand, the dissent of Justice Romero in the present case, in batting for an "uninhibited market
place of ideas," quotes the following from Buckley v. Valeo:
[T]he concept that the government may restrict the speech of some elements in our
society in order to enhance the relative voice of the others is wholly foreign to the First
Amendment which was designed to "secure the widest possible dissemination of
information from diverse and antagonistic sources" and "to assure unfettered
interchange of ideas for the bringing about of political and social changes desired by
the people." 26
But do we really believe in that? That statement was made to justify striking down a limit on campaign
expenditure on the theory that money is speech. Do those who endorse the view that government may
not restrict the speech of some in order to enhance the relative voice of others also think that the
campaign expenditure limitation found in our election laws 27 is unconstitutional? How about the
principle of one person, one vote, 28 is this not based on the political equality of voters? Voting after all
is speech. We speak of it as the voice of the people even of God. The notion that the government may
restrict the speech of some in order to enhance the relative voice of others may be foreign to the American
Constitution. It is not to the Philippine Constitution, being in fact an animating principle of that document.
Indeed, Art. IX-C, 4 is not the only provision in the Constitution mandating political equality. Art. XIII, 1
requires Congress to give the "highest priority" to the enactment of measures designed to reduce political
inequalities, while Art. II, 26 declares as a fundamental principle of our government "equal access to
opportunities for public service." Access to public office will be denied to poor candidates if they cannot
even have access to mass media in order to reach the electorate. What fortress principle trumps or
overrides these provisions for political equality?
Unless the idealism and hopes which fired the imagination of those who framed the Constitution now
appear dim to us, how can the electoral reforms adopted by them to implement the Constitution, of which
11(b) of R.A. No. 6646, in relation to 90 and 92 are part, be considered infringements on freedom of
speech? That the framers contemplated regulation of political propaganda similar to 11(b) is clear from
the following portion of the sponsorship speech of Commissioner Vicente B. Foz:
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MR. FOZ. . . Regarding the regulation by the Commission of the enjoyment or utilization
of franchises or permits for the operation of transportation and other public utilities,
media of communication or information, all grants, special privileges or concessions
granted by the Government, there is a provision that during the election period, the
Commission may regulate, among other things, the rates, reasonable free space, and
time allotments for public information campaigns and forums among candidates for the
purpose of ensuring free, orderly, honest and peaceful elections. This has to do with the
media of communication or information. 29
On the Claim that the Reforms
Have Been Ineffectual
Petitioners contend that 11(b) is not a reasonable means for achieving the purpose for which it was
enacted. They claim that instead of levelling the playing field as far as the use of mass media for political
campaign is concerned, 11(b) has abolished it. They further claim that 11(b) does not prevent rich
candidates from using their superior resources to the disadvantage of poor candidates.
All this is of course mere allegation. As stated in the beginning, what petitioners claim to be the nation's
experience with the law is merely argumentation against its validity. The claim will not bear analysis,
however. Assuming that rich candidates can spend for parades, rallies, motorcades, airplanes and the like
in order to campaign while poor candidates can only afford political ads, the gap between the two will not
necessarily be reduced by allowing unlimited mass media advertising because rich candidates can spend
for other propaganda in addition to mass media advertising. Moreover, it is not true that 11(b) has
abolished the playing field. What it has done, as already stated, is merely to regulate its use through
COMELEC-sponsored advertising in place of advertisements paid for by candidates or donated by their
supporters.
It is finally argued that COMELEC Space and COMELEC Time are ineffectual. It is claimed that people hardly
read or watch or listen to them. Again, this is a factual assertion without any empirical basis to support it.
What is more, it is an assertion concerning the adequacy or necessity of the law which should be
addressed to Congress. Well-settled is the rule that the choice of remedies for an admitted social malady
requiring government action belongs to Congress. The remedy prescribed by it, unless clearly shown to
be repugnant to fundamental law, must be respected. 30 As shown in this case, 11(b) of R.A. 6646 is a
permissible restriction on the freedom of speech, of expression and of the press.
Dissenting, Justice Panganiban argues that advertising is the most effective means of reaching voters. He
adverts to a manifestation of the COMELEC lawyer that the Commission "is not procuring [Comelec Space]
by virtue of the effects of the decision of this Honorable Court in the case of Philippine Press Institute (PPI)
vs. Comelec, 244 SCRA 272." 31
To be sure, this Court did not hold in PPI v. COMELEC that it should not procure newspaper space for
allocation to candidates. What it ruled is that the COMELEC cannot procure print space without paying
just compensation. Whether by its manifestation the COMELEC meant it is not going to buy print space or
only that it will not require newspapers to donate free of charge print space is not clear from the
manifestation. It is to be presumed that the COMELEC, in accordance with its mandate under 11(b)
of R.A. No. 6646 and 90 of the Omnibus Election Code, will procure print space for allocation to
candidates, paying just compensation to newspapers providing print space.
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In any event, the validity of a law cannot be made to depend on the faithful compliance of those charged
with its enforcement but by appropriate constitutional provisions. There is a remedy for such lapse if it
should happen. In addition, there is the COMELEC Time during which candidates may advertise
themselves. Resolution No. 2983-A of the COMELEC provides:
SEC. 2. Grant of "Comelec Time." Every radio broadcasting, and television station
operating under franchise shall grant the Commission, upon payment of just
compensation, at least thirty (30) minutes of prime time daily, to be known as "Comelec
Time", effective February 10, 1998 for candidates for President, Vice-President and
Senators, and effective March 27, 1998, for candidates for local elective offices, until
May 9, 1998. (Emphasis added)
Failure of Legislative Remedy Bespeaks
of More than Congressional Inaction
The fact is that efforts have been made to secure the amendment or even repeal of 11(b) of R.A. No.
6646. No less than five bills 32 were filed in the Senate in the last session of Congress for this purpose, but
they all failed of passage. Petitioners claim it was because Congress adjourned without acting on them.
But that is just the point. Congress obviously did not see it fit to act on the bills before it adjourned.
We thus have a situation in which an act of Congress was found by this Court to be valid so that those
opposed to the statute resorted to the legislative department. The latter reconsidered the question but
after doing so apparently found no reason for amending the statute and therefore did not pass any of the
bills filed to amend or repeal the statute. Must this Court now grant what Congress denied to them? The
legislative silence here certainly bespeaks of more than inaction.
Test for Content-Neutral Restrictions 33
In Adiong v. COMELEC 34 this Court quoted the following from the decision of the U.S. Supreme Court in
a case sustaining a Los Angeles City ordinance which prohibited the posting of campaign signs on public
property:
A government regulation is sufficiently justified if it is within the constitutional power
of the Government, if it furthers an important or substantial governmental interest; if
the governmental interest is unrelated to the suppression of free expression; and if the
incident restriction on alleged First Amendment freedoms is no greater than is essential
to the furtherance of that interest. (Id., at 377, 20 L Ed 2d 672, 88 S Ct 1673. (City Council
v. Taxpayers For Vincent, 466 US 789, 80 L Ed 2d 772, 104 S Ct 2118[1984]) 35
This test was actually formulated in United States v. O'Brien. 36 It is an appropriate test for restrictions on
speech which, like 11(b), are content-neutral. Unlike content-based restrictions, they are not imposed
because of the content of the speech. For this reason, content-neutral restrictions are tests demanding
standards. For example, a rule such as that involved inSanidad v. COMELEC , 37 prohibiting columnists,
commentators, and announcers from campaigning either for or against an issue in a plebiscite must have
a compelling reason to support it, or it will not pass muster under strict scrutiny. These restrictions, it will
be seen, are censorial and therefore they bear a heavy presumption of constitutional invalidity. In
addition, they will be tested for possible overbreadth and vagueness.
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It is apparent that these doctrines have no application to content-neutral regulations which, like 11(b),
are not concerned with the content of the speech. These regulations need only a substantial governmental
interest to support them. 38 A deferential standard of review will suffice to test their validity.
Justice Panganiban's dissent invokes the clear-and-present-danger test and argues that "media ads do not
partake of the 'real substantive evil' that the state has a right to prevent and that justifies the curtailment
of the people's cardinal right to choose their means of expression and of access to information." The clear-
and-present-danger test is not, however, a sovereign remedy for all free speech problems. As has been
pointed out by a thoughtful student of constitutional law, it was originally formulated for the criminal law
and only later appropriated for free speech cases. For the criminal law is necessarily concerned with the
line at which innocent preparation ends and a guilty conspiracy or attempt begins. 39 Clearly, it is
inappropriate as a test for determining the constitutional validity of laws which, like 11(b) of R.A. No.
6646, are not concerned with the content of political ads but only with their incidents. To apply the clear-
and-present-danger test to such regulatory measures would be like using a sledgehammer to drive a nail
when a regular hammer is all that is needed.
The reason for this difference in the level of justification for the restriction of speech is that content-based
restrictions distort public debate, have improper motivation, and are usually imposed because of fear of
how people will react to a particular speech. No such reasons underlie content-neutral regulations, like
regulations of time, place and manner of holding public assemblies under B.P. Blg. 880, the Public
Assembly Act of 1985. Applying the O'Brien test in this case, we find that 11(b) of R.A. No. 6646 is a valid
exercise of the power of the State to regulate media of communication or information for the purpose of
ensuring equal opportunity, time and space for political campaigns; that the regulation is unrelated to the
suppression of speech; that any restriction on freedom of expression is only incidental and no more than
is necessary to achieve the purpose of promoting equality.
xxx xxx xxx
The Court is just as profoundly aware as anyone else that discussion of public issues and debate on the
qualifications of candidates in an election are essential to the proper functioning of the government
established by our Constitution. But it is precisely with this awareness that we think democratic efforts at
reform should be seen for what they are: genuine efforts to enhance the political process rather than
infringements on freedom of expression. The statutory provision involved in this case is part of the reform
measures adopted in 1987 in the aftermath of EDSA. A reform-minded Congress passed bills which were
consolidated into what is now R.A No. 6646 with near unanimity. The House of Representatives, of which
petitioner Pablo P. Garcia was a distinguished member, voted 96 to 1 (Rep. Eduardo Pilapil) in favor, while
the Senate approved it 19-0. 40
In his recent book, The Irony of Free Speech, Owen Fiss speaks of "a truth that is full of irony and
contradiction: that the state can be both an enemy and a friend of speech; that it can do terrible things to
undermine democracy but some wonderful things to enhance it as well." 41 We hold R.A. No. 6646,
11(b) to be such a democracy-enhancing measure. For Holmes's marketplace of ideas can prove to be
nothing but a romantic illusion if the electoral process is badly skewed, if not corrupted, by the unbridled
use of money for campaign propaganda.
The petition is DISMISSED.
SO ORDERED.
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||| (Osmea v. Commission on Elections, G.R. No. 132231, [March 31, 1998], 351 PHIL 692-781)
ABS-CBN VS. COMELEC, 323 SCRA 811 (2000)
ABS-CBN BROADCASTING CORPORATION, petitioner, vs. COMMISSION ON

ELECTIONS, respondent.
Quiason Makalintal Barot Torres & Ibarra for petitioner.

The Solicitor General for respondent.
SYNOPSIS
This is a petition for certiorari under Rule 65 of the Rules of Court filed by ABS-CBN Broadcasting
Corporation assailing the COMELEC En Banc Resolution No. 98-1419 dated April 21, 1998 approving the
issuance of a restraining order to stop petitioner ABS-CBN or any other groups, its agents or
representatives from conducting exit survey and to authorize the Honorable Chairman to issue the same.
Because of the issuance of this resolution, petitioner filed the instant case, and on May 9, 1998, the Court
issued the temporary restraining order prayed for by petitioner. The lone issue to be resolved in this case
is whether or not the respondent Comelec acted with grave abuse of discretion amounting to lack or
excess of jurisdiction when it approved the issuance of a restraining order enjoining the petitioner or any
other group, its agents or representatives from conducting exit polls during the May 11, 1998 elections.
The Supreme Court found the petition meritorious. The Court ruled that the holding of exit polls and the
dissemination of their results through mass media constitute an essential part of the freedoms of speech
and of the press. Hence, the Comelec cannot ban them totally in the guise of promoting clean, honest,
orderly and credible elections. Moreover, the Comelec's concern with the possible noncommunicative
effect of exit polls disorder and confusion in the voting centers does not justify a total ban on them.
Undoubtedly, the assailed Comelec Resolution was too broad, since its application is without qualification
as to whether the polling is disruptive or not. Concededly, the Omnibus Election Code prohibits disruptive
behaviors around the voting centers. There was no showing, however, that exit polls or the means to
interview voters cause chaos in voting centers. Neither had any evidence been presented proving that the
presence of exit poll reporters near the election precincts tended to create disorder or confuse the voters.
Accordingly, the petition was granted and the temporary restraining order issued by the Court was made
permanent.
SYLLABUS
1. POLITICAL LAW; CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF SPEECH AND OF THE PRESS;
NATURE AND SCOPE THEREOF. The freedom of expression is a fundamental principle of our democratic
government. It "is a 'preferred' right and, therefore, stands on a higher level than substantive economic
or other liberties. . . . [T]his must be so because the lessons of history, both political and legal, illustrate
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that freedom of thought and speech is the indispensable condition of nearly every other form of
freedom." Our Constitution clearly mandates that no law shall be passed abridging the freedom of speech
or of the press. In the landmark case Gonzales v. Comelec, this Court enunciated that at the very least,
free speech and a free press consist of the liberty to discuss publicly and truthfully any matter of public
interest without prior restraint. The freedom of expression is a means of assuring individual self-
fulfillment, of attaining the truth, of securing participation by the people in social and political decision-
making, and of maintaining the balance between stability and change. It represents a profound
commitment to the principle that debates on public issues should be uninhibited, robust, and wide open.
It means more than the right to approve existing political beliefs or economic arrangements, to lend
support to official measures, or to take refuge in the existing climate of opinion on any matter of public
consequence. And paraphrasing the eminent Justice Oliver Wendell Holmes, we stress that the freedom
encompasses the thought we hate, no less than the thought we agree with. DTAaCE
2. ID.; ID.; ID.; ID.; LIMITATIONS; CLEAR AND PRESENT DANGER TEST. This Court adheres to the "clear
and present danger" test. It implicitly did in its earlier decisions in Primicias v. Fugoso and American Bible
Society v. City of Manila; as well as in later ones, Vera v. Arca, Navarro v. Villegas, Imbong v. Ferrer, Blo
Umpar Adiong v. Comelec and, more recently, in Iglesia ni Cristo v. MTRCB. In setting the standard or test
for the "clear and present danger" doctrine, the Court echoed the words of Justice Holmes: "The question
in every case is whether the words used are used in such circumstances and are of such a nature as to
create a clear and present danger that they will bring about the substantive evils that Congress has a right
to prevent. It is a question of proximity and degree." A limitation on the freedom of expression may be
justified only by a danger of such substantive character that the state has a right to prevent. Unlike in the
"dangerous tendency" doctrine, the danger must not only be clear but also present. "Present" refers to
the time element; the danger must not only be probable but very likely to be inevitable. The evil sought
to be avoided must be so substantive as to justify a clamp over one's mouth or a restraint of a writing
instrument.
3. ID.; ID.; ID.; ID.; JUSTIFICATION FOR RESTRICTION. Doctrinally, the Court has always ruled in favor of
the freedom of expression, and any restriction is treated an exemption. The power to exercise prior
restraint is not to be presumed; rather the presumption is against its validity. And it is respondent's burden
to overthrow such presumption. Any act that restrains speech should be greeted with furrowed brows, so
it has been said. To justify a restriction, the promotion of a substantial government interest must be clearly
shown. Thus: "A government regulation is sufficiently justified if it is within the constitutional power of
the government, if it furthers an important or substantial government interest; if the governmental
interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First
Amendment freedoms is no greater than is essential to the furtherance of that interest." Hence, even
though the government's purposes are legitimate and substantial, they cannot be pursued by means that
broadly stifle fundamental personal liberties, when the end can be more narrowly achieved.
4. ID.; ID.; ID.; ID.; TOTAL BAN ON EXIT POLL NOT JUSTIFIED. The Comelec's concern with the possible
noncommunicative effect of exit polls disorder and confusion in the voting centers does not justify
a total ban on them. Undoubtedly, the assailed Comelec Resolution is too broad, since its application is
without qualification as to whether the polling is disruptive or not. Concededly, the Omnibus Election
Code prohibits disruptive behavior around the voting centers. There is no showing, however, that exit
polls or the means to interview voters cause chaos in voting centers. Neither has any evidence been
presented proving that the presence of exit poll reporters near an election precinct tends to create
disorder or confuse the voters. Moreover, the prohibition incidentally prevents the collection of exit poll
data and their use for any purpose. The valuable information and ideas that could be derived from them,
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based on the voters' answers to the survey questions will forever remain unknown and unexplored. Unless
the ban is restrained, candidates, researchers, social scientists and the electorate in general would be
deprived of studies on the impact of current events and of election-day and other factors on voters'
choices. In Daily Herald Co. vs. Munro, the US Supreme Court held that a statute, one of the purposes of
which was to prevent the broadcasting of early returns, was unconstitutional because such purpose was
impermissible, and the statute was neither narrowly tailored to advance a state interest nor the least
restrictive alternative. Furthermore, the general interest of the State in insulating voters from outside
influences is insufficient to justify speech regulation. Just as curtailing election-day broadcasts and
newspaper editorials for the reason that they might indirectly affect the voters' choices is impermissible,
so is regulating speech via an exit poll restriction. The absolute ban imposed by the Comelec cannot,
therefore, be justified. It does not leave open any alternative channel of communication to gather the
type of information obtained through exit polling. On the other hand, there are other valid and reasonable
ways and means to achieve the Comelec end of avoiding or minimizing disorder and confusion that may
be brought about by exit surveys.
5. ID.; ID.; ID.; ID.; EXIT POLLS DO NOT TRANSGRESS THE SANCTITY AND SECRECY OF THE BALLOT. The
contention of public respondent that exit polls indirectly transgress the sanctity and the secrecy of the
ballot is off-tangent to the real issue. Petitioner does not seek access to the ballots cast by the voters. The
ballot system of voting is not at issue here. The reason behind the principle of ballot secrecy is to avoid
vote buying through voter identification. Thus, voters are prohibited from exhibiting the contents of their
official ballots to other persons, from making copies thereof, or from putting distinguishing marks thereon
so as to be identified. Also proscribed is finding out contents of the ballots cast by particular voters or
disclosing those of disabled or illiterate voters who have been assisted. Clearly, what is forbidden is the
association of voters with their respective votes, for the purpose of assuring that the votes have been cast
in accordance with the instructions of a third party. This result cannot, however, be achieved merely
through the voters' verbal and confidential disclosure to a pollster of whom they have voted for. In exit
polls, the contents of the official ballot are not actually exposed. Furthermore, the revelation of whom an
elector has voted for is not compulsory, but voluntary. Voters may also choose not to reveal their
identities. Indeed, narrowly tailored countermeasures may be prescribed by the Comelec, so as to
minimize or suppress incidental problems in the conduct of exit polls, without transgressing the
fundamental rights of our people.

CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO FREE SPEECH AND INFORMATION; NOT ILLIMITABLE
AND IMMUNE FROM THE VALID EXERCISE OF AN EVER DEMANDING AND PERVASIVE POLICE POWER.
While I understand what the ponencia is saying quite laudably, I also appreciate, upon the other hand, the
concern of the Commission on Elections, i.e., that the conduct of exit polls can have some adverse effects
on the need to preserve the sanctity of the ballot. The Commission performs an indispensable task of
ensuring free, honest, and orderly elections and of guarding against any frustration of the true will of the
people. Expectedly, it utilizes all means available within its power and authority to prevent the electoral
process from being manipulated and rendered an absurdity. Like my colleagues, I greatly prize the
freedom of expression but, so also, I cherish no less the right of the people to express their will by means
of the ballot. In any case, I must accept the reality that the right to information and free speech is not
illimitable and immune from the valid exercise of an ever demanding and pervasive police power.
Whether any kind of restraint should be upheld or declared invalid in the proper balancing of interest is
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one that must be resolved at any given moment, not on perceived circumstances, but on prevailing
facts. aDIHCT
KAPUNAN, J., dissenting opinion:
1. POLITICAL LAW; CONSTITUTIONAL LAW; RIGHT TO FREE SPEECH; IF THE RIGHT TO FREE SPEECH
COLLIDES WITH A NORM OF CONSTITUTIONAL STATURE, THE RULE ON HEAVY PRESUMPTION OF
INVALIDITY DOES NOT APPLY. The majority opinion cites the general rule that any restrictions to
freedom of expression would be burdened with a presumption of invalidity and should be greeted with
"furrowed brows." While this has been the traditional approach, this rule does not apply where, as in this
case, the Comelec exercised its Constitutional functions of securing the secrecy and sanctity of the ballots
and ensuring the integrity of the elections. Thus, Mr. Justice Feliciano in National Press Club (NPC) v.
Comelecwrote: The technical effect of Article IX (C) (4) of the Constitution may be seem to be that no
presumption of invalidity arises in respect of supervisory or regulatory authority on the part of the
COMELEC for the purpose of securing equal opportunity among candidates for political office, although
such supervision or regulation may result in some limitation of the right of free speech and free press. For
supervision or regulation of the operations of media enterprises is scarcely conceivable without such
accompanying limitation. Thus, the applicable rule is the general, time honored one that a statute is
presumed to be constitutional and that the party asserting its unconstitutionality must discharge the
burden of clearly and convincingly proving that assertion. The NPC decision holds that if the right to free
speech collides with a norm of constitutional stature, the rule on heavy presumption of invalidity does
not apply.
2. ID.; ID.; ID.; IF NO PRESUMPTION OF INVALIDITY ARISES, THERE IS NO OCCASION FOR THE APPLICATION
OF THE CLEAR AND PRESENT DANGER TEST. Our Constitution mandates the Comelec to enforce and
administer laws and regulations relative to the conduct of elections and to secure the secrecy and sanctity
of the ballots to ensure orderly, honest, credible and peaceful elections. This Constitutional provision
effectively displaces the general presumption of invalidity in favor of the presumption that Comelec acted
in the exercise of its constitutionally mandated powers. If no presumption of invalidity arises, I see no
occasion for the application of the "clear and present danger test." As this Court, through Mr. Justice
Mendoza, succinctly observed: . . . the clear-and-present danger test is not, however, a sovereign remedy
for all free speech problems. As has been pointed out by a thoughtful student of constitutional law, it was
originally formulated for the criminal law and only later appropriated for free speech cases. For the
criminal law is necessarily concerned with the line at which innocent preparation ends and guilty
conspiracy or attempt begins. Clearly, it is inappropriate as a test for determining the constitutional
validity of law which, like 11(b) of R.A. No. 6646, are not concerned with the content of political ads but
only with their incidents. To apply the clear-and-present danger test to such regulatory measures would
be like using a sledgehammer to drive a nail when a regular hammer is all that is needed.
DECISION
PANGANIBAN, J p:
The holding of exit polls and the dissemination of their results through mass media constitute an essential
part of the freedoms of speech and of the press. Hence, the Comelec cannot ban them totally in the guise
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of promoting clean, honest, orderly and credible elections. Quite the contrary, exit polls properly
conducted and publicized can be vital tools in eliminating the evils of election-fixing and fraud. Narrowly
tailored countermeasures may be prescribed by the Comelec so as to minimize or suppress the incidental
problems in the conduct of exit polls, without transgressing in any manner the fundamental rights of our
people.
The Case and the Facts
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing Commission on Elections
(Comelec) en banc Resolution No. 98-1419 1 dated April 21, 1998. In the said Resolution, the poll body
"RESOLVED to approve the issuance of a restraining order to stop ABS-CBN or any other
groups, its agents or representatives from conducting such exit survey and to authorize
the Honorable Chairman to issue the same."
The Resolution was issued by the Comelec allegedly upon "information from [a] reliable source that ABS-
CBN (Lopez Group) has prepared a project, with PR groups, to conduct radio-TV coverage of the elections
. . . and to make [an] exit survey of the . . . vote during the elections for national officials particularly for
President and Vice President, results of which shall be [broadcast] immediately." 2 The electoral body
believed that such project might conflict with the official Comelec count, as well as the unofficial quick
count of the National Movement for Free Elections (Namfrel). It also noted that it had not authorized or
deputized Petitioner ABS-CBN to undertake the exit survey.
On May 9, 1998, this Court issued the Temporary Restraining Order prayed for by petitioner. We directed
the Comelec to cease and desist, until further orders, from implementing the assailed Resolution or the
restraining order issued pursuant thereto, if any. In fact, the exit polls were actually conducted and
reported by media without any difficulty or problem.
The Issues
Petitioner raises this lone issue: "Whether or not the Respondent Commission acted with grave abuse of
discretion amounting to a lack or excess of jurisdiction when it approved the issuance of a restraining
order enjoining the petitioner or any [other group], its agents or representatives from conducting exit
polls during the . . . May 11 elections." 3
In his Memorandum, 4 the solicitor general, in seeking to dismiss the Petition, brings up additional issues:
(1) mootness and (2) prematurity, because of petitioner's failure to seek a reconsideration of the assailed
Comelec Resolution. LibLex
The Court's Ruling
The Petition 5 is meritorious.
Procedural Issues:
Mootness and Prematurity
The solicitor general contends that the petition is moot and academic, because the May 11, 1998 election
has already been held and done with. Allegedly, there is no longer any actual controversy before us.
The issue is not totally moot. While the assailed Resolution referred specifically to the May 11, 1998
election, its implications on the people's fundamental freedom of expression transcend the past election.
The holding of periodic elections is a basic feature of our democratic government. By its very nature, exit
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polling is tied up with elections. To set aside the resolution of the issue now will only postpone a task that
could well crop up again in future elections. 6
In any event, in Salonga v. Cruz Pano, the Court had occasion to reiterate that it "also has the duty to
formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It has the
symbolic function of educating bench and bar on the extent of protection given by constitutional
guarantees." 7 Since the fundamental freedoms of speech and of the press are being invoked here, we
have resolved to settle, for the guidance of posterity, whether they likewise protect the holding of exit
polls and the dissemination of data derived therefrom.
The solicitor general further contends that the Petition should be dismissed for petitioner's failure to
exhaust available remedies before the issuing forum, specifically the filing of a motion for reconsideration.
This Court, however, has ruled in the past that this procedural requirement may be glossed over to
prevent a miscarriage of justice, 8 when the issue involves the principle of social justice or the protection
of labor, 9 when the decision or resolution sought to be set aside is a nullity, 10 or when the need for
relief is extremely urgent and certiorari is the only adequate and speedy remedy available. 11
The instant Petition assails a Resolution issued by the Comelec en banc on April 21, 1998, only twenty (20)
days before the election itself. Besides, the petitioner got hold of a copy thereof only on May 4, 1998.
Under the circumstances, there was hardly enough opportunity to move for a reconsideration and to
obtain a swift resolution in time for the May 11, 1998 elections. Moreover, not only is time of the essence;
the Petition involves transcendental constitutional issues. Direct resort to this Court through a special civil
action for certiorari is therefore justified.
Main Issue:
Validity of Conducting Exit Polls
An exit poll is a species of electoral survey conducted by qualified individuals or group of individuals for
the purpose of determining the probable result of an election by confidentially asking randomly selected
voters whom they have voted for, immediately after they have officially cast their ballots. The results of
the survey are announced to the public, usually through the mass media, to give an advance overview of
how, in the opinion of the polling individuals or organizations, the electorate voted. In our electoral
history, exit polls had not been resorted to until the recent May 11, 1998 elections.
In its Petition, ABS-CBN Broadcasting Corporation maintains that it is a responsible member of the mass
media, committed to report balanced election-related data, including "the exclusive results of Social
Weather Station (SWS) surveys conducted in fifteen administrative regions."
It argues that the holding of exit polls and the nationwide reporting of their results are valid exercises of
the freedoms of speech and of the press. It submits that, in precipitately and unqualifiedly restraining the
holding and the reporting of exit polls, the Comelec gravely abused its discretion and grossly violated the
petitioner's constitutional rights.
Public respondent, on the other hand, vehemently denies that, in issuing the assailed Resolution, it gravely
abused its discretion. It insists that the issuance thereof was "pursuant to its constitutional and statutory
powers to promote a clean, honest, orderly and credible May 11, 1998 elections"; and "to protect,
preserve and maintain the secrecy and sanctity of the ballot." It contends that "the conduct of exit surveys
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might unduly confuse and influence the voters," and that the surveys were designed "to condition the
minds of people and cause confusion as to who are the winners and the [losers] in the election," which in
turn may result in "violence and anarchy."
Public respondent further argues that "exit surveys indirectly violate the constitutional principle to
preserve the sanctity of the ballots," as the "voters are lured to reveal the contents of ballots," in violation
of Section 2, Article V of the Constitution; 12 and relevant provisions of the Omnibus Election Code. 13 It
submits that the constitutionally protected freedoms invoked by petitioner "are not immune to regulation
by the State in the legitimate exercise of its police power," such as in the present case.
The solicitor general, in support of the public respondent, adds that the exit polls pose a "clear and present
danger of destroying the credibility and integrity of the electoral process," considering that they are not
supervised by any government agency and can in general be manipulated easily. He insists that these polls
would sow confusion among the voters and would undermine the official tabulation of votes conducted
by the Commission, as well as the quick count undertaken by the Namfrel.
Admittedly, no law prohibits the holding and the reporting of exit polls. The question can thus be more
narrowly defined: May the Comelec, in the exercise of its powers, totally ban exit polls? In answering this
question, we need to review quickly our jurisprudence on the freedoms of speech and of the press.
Nature and Scope of Freedoms
of Speech and of the Press
The freedom of expression is a fundamental principle of our democratic government. It "is a 'preferred'
right and, therefore, stands on a higher level than substantive economic or other liberties. . . . [T]his must
be so because the lessons of history, both political and legal, illustrate that freedom of thought and speech
is the indispensable condition of nearly every other form of freedom." 14
Our Constitution clearly mandates that no law shall be passed abridging the freedom of speech or of the
press. 15 In the landmark case Gonzales v. Comelec, 16 this Court enunciated that at the very least, free
speech and a free press consist of the liberty to discuss publicly and truthfully any matter of public interest
without prior restraint. LLpr
The freedom of expression is a means of assuring individual self-fulfillment, of attaining the truth, of
securing participation by the people in social and political decision-making, and of maintaining the balance
between stability and change. 17 It represents a profound commitment to the principle that debates on
public issues should be uninhibited, robust, and wide open. 18 It means more than the right to approve
existing political beliefs or economic arrangements, to lend support to official measures, or to take refuge
in the existing climate of opinion on any matter of public consequence. And paraphrasing the eminent
Justice Oliver Wendell Holmes, 19 we stress that the freedom encompasses the thought we hate, no less
than the thought we agree with.
Limitations
The realities of life in a complex society, however, preclude an absolute exercise of the freedoms of speech
and of the press. Such freedoms could not remain unfettered and unrestrained at all times and under all
circumstances. 20 They are not immune to regulation by the State in the exercise of its police
power. 21 While the liberty to think is absolute, the power to express such thought in words and deeds
has limitations.
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In Cabansag v. Fernandez 22 this Court had occasion to discuss two theoretical tests in determining the
validity of restrictions to such freedoms, as follows:
"These are the 'clear and present danger' rule and the '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. . . ." 23
"The 'dangerous tendency' rule, on the other hand, . . . 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." 24
Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly did in its earlier
decisions in Primicias v. Fugoso 25 and American Bible Society v. City of Manila; 26 as well as in later
ones, Vera v. Arca, 27 Navarro v. Villegas, 28 Imbong v. Ferrer, 29 Blo Umpar Adiong v. Comelec 30 and,
more recently, in Iglesia ni Cristo v. MTRCB. 31 In setting the standard or test for the "clear and present
danger" doctrine, the Court echoed the words of Justice Holmes: "The question in every case is whether
the words used are used in such circumstances and are of such a nature as to create a clear and present
danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question
of proximity and degree." 32
A limitation on the freedom of expression may be justified only by a danger of such substantive character
that the state has a right to prevent. Unlike in the "dangerous tendency" doctrine, the danger must not
only be clear but also present. "Present" refers to the time element; the danger must not only be probable
but very likely to be inevitable. 33 The evil sought to be avoided must be so substantive as to justify a
clamp over one's mouth or a restraint of a writing instrument. 34
Justification for a
Restriction
Doctrinally, the Court has always ruled in favor of the freedom of expression, and any restriction is treated
an exemption. The power to exercise prior restraint is not to be presumed; rather the presumption is
against its validity. 35 And it is respondent's burden to overthrow such presumption. Any act that restrains
speech should be greeted with furrowed brows, 36 so it has been said. Cdpr
To justify a restriction, the promotion of a substantial government interest must be clearly
shown. 37 Thus:
"A government regulation is sufficiently justified if it is within the constitutional power
of the government, if it furthers an important or substantial government interest; if the
governmental interest is unrelated to the suppression of free expression; and if the
incidental restriction on alleged First Amendment freedoms is no greater than is
essential to the furtherance of that interest." 38
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Hence, even though the government's purposes are legitimate and substantial, they cannot be pursued
by means that broadly stifle fundamental personal liberties, when the end can be more narrowly
achieved. 39
The freedoms of speech and of the press should all the more be upheld when what is sought to be
curtailed is the dissemination of information meant to add meaning to the equally vital right of
suffrage. 40 We cannot support any ruling or order "the effect of which would be to nullify so vital a
constitutional right as free speech." 41 When faced with borderline situations in which the freedom of a
candidate or a party to speak or the freedom of the electorate to know is invoked against actions allegedly
made to assure clean and free elections, this Court shall lean in favor of freedom. For in the ultimate
analysis, the freedom of the citizen and the State's power to regulate should not be antagonistic. There
can be no free and honest elections if, in the efforts to maintain them, the freedom to speak and the right
to know are unduly curtailed. 42
True, the government has a stake in protecting the fundamental right to vote by providing voting places
that are safe and accessible. It has the duty to secure the secrecy of the ballot and to preserve the sanctity
and the integrity of the electoral process. However, in order to justify a restriction of the people's
freedoms of speech and of the press, the state's responsibility of ensuring orderly voting must far
outweigh them.
These freedoms have additional importance, because exit polls generate important research data which
may be used to study influencing factors and trends in voting behavior. An absolute prohibition would
thus be unreasonably restrictive, because it effectively prevents the use of exit poll data not only for
election-day projections, but also for long-term research. 43
Comelec Ban on
Exit Polling
In the case at bar, the Comelec justifies its assailed Resolution as having been issued pursuant to its
constitutional mandate to ensure a free, orderly, honest, credible and peaceful election. While admitting
that "the conduct of an exit poll and the broadcast of the results thereof [are] . . . an exercise of press
freedom," it argues that "[p]ress freedom may be curtailed if the exercise thereof creates a clear and
present danger to the community or it has a dangerous tendency." It then contends that "an exit poll has
the tendency to sow confusion considering the randomness of selecting interviewees, which further
make[s] the exit poll highly unreliable. The probability that the results of such exit poll may not be in
harmony with the official count made by the Comelec . . . is ever present. In other words, the exit poll has
a clear and present danger of destroying the credibility and integrity of the electoral process."
Such arguments are purely speculative and clearly untenable. First, by the very nature of a survey, the
interviewees or participants are selected at random, so that the results will as much as possible be
representative or reflective of the general sentiment or view of the community or group polled. Second,
the survey result is not meant to replace or be at par with the official Comelec count. It consists merely of
the opinion of the polling group as to who the electorate in general has probably voted for, based on the
limited data gathered from polled individuals. Finally, not at stake here are the credibility and the integrity
of the elections, which are exercises that are separate and independent from the exit polls. The holding
and the reporting of the results of exit polls cannot undermine those of the elections, since the former is
only part of the latter. If at all, the outcome of one can only be indicative of the other.
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The Comelec's concern with the possible noncommunicative effect of exit polls disorder and confusion
in the voting centers does not justify a total ban on them. Undoubtedly, the assailed Comelec
Resolution is too broad, since its application is without qualification as to whether the polling is disruptive
or not. 44 Concededly, the Omnibus Election Code prohibits disruptive behavior around the voting
centers. 45 There is no showing, however, that exit polls or the means to interview voters cause chaos in
voting centers. Neither has any evidence been presented proving that the presence of exit poll reporters
near an election precinct tends to create disorder or confuse the voters.
Moreover, the prohibition incidentally prevents the collection of exit poll data and their use for any
purpose. The valuable information and ideas that could be derived from them, based on the voters'
answers to the survey questions will forever remain unknown and unexplored. Unless the ban is
restrained, candidates, researchers, social scientists and the electorate in general would be deprived of
studies on the impact of current events and of election-day and other factors on voters' choices.
In Daily Herald Co. v. Munro, 46 the US Supreme Court held that a statute, one of the purposes of which
was to prevent the broadcasting of early returns, was unconstitutional because such purpose was
impermissible, and the statute was neither narrowly tailored to advance a state interest nor the least
restrictive alternative. Furthermore, the general interest of the State in insulating voters from outside
influences is insufficient to justify speech regulation. Just as curtailing election-day broadcasts and
newspaper editorials for the reason that they might indirectly affect the voters' choices is impermissible,
so is regulating speech via an exit poll restriction. 47
The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not leave open any
alternative channel of communication to gather the type of information obtained through exit polling. On
the other hand, there are other valid and reasonable ways and means to achieve the Comelec end of
avoiding or minimizing disorder and confusion that may be brought about by exit surveys.
For instance, a specific limited area for conducting exit polls may be designated. Only professional survey
groups may be allowed to conduct the same. Pollsters may be kept at a reasonable distance from the
voting center. They may be required to explain to voters that the latter may refuse to be interviewed, and
that the interview is not part of the official balloting process. The pollsters may further be required to
wear distinctive clothing that would show they are not election officials. 48 Additionally, they may be
required to undertake an information campaign on the nature of the exercise and the results to be
obtained therefrom. These measures, together with a general prohibition of disruptive behavior, could
ensure a clean, safe and orderly election. prcd
For its part, Petitioner ABS-CBN explains its survey methodology as follows: (1) communities are randomly
selected in each province; (2) residences to be polled in such communities are also chosen at random; (3)
only individuals who have already voted, as shown by the indelible ink on their fingers, are interviewed;
(4) the interviewers use no cameras of any sort; (5) the poll results are released to the public only on the
day after the elections. 49 These precautions, together with the possible measures earlier stated, may be
undertaken to abate the Comelec's fear, without consequently and unjustifiably stilling the people's voice.
With the foregoing premises, we conclude that the interest of the state in reducing disruption is
outweighed by the drastic abridgment of the constitutionally guaranteed rights of the media and the
electorate. Quite the contrary, instead of disrupting elections, exit polls properly conducted and
publicized can be vital tools for the holding of honest, orderly, peaceful and credible elections; and for
the elimination of election-fixing, fraud and other electoral ills.
[1689]
AUDAX AT FIDELIS
BOLD BUT FAITHFUL
Violation of Ballot Secrecy

The contention of public respondent that exit polls indirectly transgress the sanctity and the secrecy of
the ballot is off-tangent to the real issue. Petitioner does not seek access to the ballots cast by the voters.
The ballot system of voting is not at issue here.
The reason behind the principle of ballot secrecy is to avoid vote buying through voter identification. Thus,
voters are prohibited from exhibiting the contents of their official ballots to other persons, from making
copies thereof, or from putting distinguishing marks thereon so as to be identified. Also proscribed is
finding out the contents of the ballots cast by particular voters or disclosing those of disabled or illiterate
voters who have been assisted. Clearly, what is forbidden is the association of voters with their respective
votes, for the purpose of assuring that the votes have been cast in accordance with the instructions of a
third party. This result cannot, however, be achieved merely through the voters' verbal and confidential
disclosure to a pollster of whom they have voted for.
In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the revelation of
whom an elector has voted for is not compulsory, but voluntary. Voters may also choose not to reveal
their identities. Indeed, narrowly tailored countermeasures may be prescribed by the Comelec, so as to
minimize or suppress incidental problems in the conduct of exit polls, without transgressing the
fundamental rights of our people. cdrep
WHEREFORE, the Petition is GRANTED, and the Temporary Restraining Order issued by the Court on May
9, 1998 is made PERMANENT. Assailed Minute Resolution No. 98-1419 issued by the Comelec en banc on
April 21, 1998 is hereby NULLIFIED and SET ASIDE. No costs.
SO ORDERED.
||| (ABS-CBN Broadcasting Corp. v. Commission on Elections, G.R. No. 133486, [January 28, 2000], 380
PHIL 780-804)
SWS VS. COMELEC, 357 SCRA 497 (2001)
SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN PUBLISHING

CORPORATION, doing business as MANILA STANDARD, petitioners, vs. COMMISSION
ON ELECTIONS, respondent.
DECISION
MENDOZA, J p:
Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock, non-profit social research institution
conducting surveys in various fields, including economics, politics, demography, and social development,
and thereafter processing, analyzing, and publicly reporting the results thereof. On the other hand,
petitioner Kamahalan Publishing Corporation publishes theManila Standard, a newspaper of general
circulation, which features newsworthy items of information including election surveys.
[1690]
AUDAX AT FIDELIS
BOLD BUT FAITHFUL
Petitioners brought this action for prohibition to enjoin the Commission on Elections from enforcing 5.4
of R.A. No. 9006 (Fair Election Act), which provides:
Surveys affecting national candidates shall not be published fifteen (15) days before an
election and surveys affecting local candidates shall not be published seven (7) days
before an election.
The term "election surveys" is defined in 5.1 of the law as follows:
Election surveys refer to the measurement of opinions and perceptions of the voters as
regards a candidate's popularity, qualifications, platforms or a matter of public
discussion in relation to the election, including voters' preference for candidates or
publicly discussed issues during the campaign period (hereafter referred to as
"Survey").
To implement 5.4, Resolution 3636, 24(h), dated March 1, 2001, of the COMELEC enjoins
Surveys affecting national candidates shall not be published fifteen (15) days before an
election and surveys affecting local candidates shall not be published seven (7) days
before an election.
Petitioner SWS states that it wishes to conduct an election survey throughout the period of the elections
both at the national and local levels and release to the media the results of such survey as well as publish
them directly. Petitioner Kamahalan Publishing Corporation, on the other hand, states that it intends to
publish election survey results up to the last day of the elections on May 14, 2001.
Petitioners argue that the restriction on the publication of election survey results constitutes a prior
restraint on the exercise of freedom of speech without any clear and present danger to justify such
restraint. They claim that SWS and other pollsters conducted and published the results of surveys prior to
the 1992, 1995, and 1998 elections up to as close as two days before the election day without causing
confusion among the voters and that there is neither empirical nor historical evidence to support the
conclusion that there is an immediate and inevitable danger to the voting process posed by election
surveys. They point out that no similar restriction is imposed on politicians from explaining their opinion
or on newspapers or broadcast media from writing and publishing articles concerning political issues up
to the day of the election. Consequently, they contend that there is no reason for ordinary voters to be
denied access to the results of election surveys which are relatively objective. ETHaDC
Respondent Commission on Elections justifies the restrictions in 5.4 of R.A. No. 9006 as necessary to
prevent the manipulation and corruption of the electoral process by unscrupulous and erroneous surveys
just before the election. It contends that (1) the prohibition on the publication of election survey results
during the period proscribed by law bears a rational connection to the objective of the law, i.e., the
prevention of the debasement of the electoral process resulting from manipulated surveys, bandwagon
effect, and absence of reply; (2) it is narrowly tailored to meet the "evils" sought to be prevented; and (3)
the impairment of freedom of expression is minimal, the restriction being limited both in duration, i.e.,
the last 15 days before the national election and the last 7 days before a local election, and in scope as it
does not prohibit election survey results but only require timeliness. Respondent claims that in National
Press Club v. COMELEC, 1 a total ban on political advertisements, with candidates being merely allocated
broadcast time during the so-called COMELEC space or COMELEC hour, was upheld by this Court. In
contrast, according to respondent, it states that the prohibition in 5.4 of R.A. No. 9006 is much more
limited.
[1691]
AUDAX AT FIDELIS
BOLD BUT FAITHFUL
For reasons hereunder given, we hold that 5.4 of R.A. No. 9006 constitutes an unconstitutional
abridgment of freedom of speech, expression, and the press.
To be sure, 5.4 lays a prior restraint on freedom of speech, expression, and the press by prohibiting the
publication of election survey results affecting candidates within the prescribed periods of fifteen (15)
days immediately preceding a national election and seven (7) days before a local election. Because of the
preferred status of the constitutional rights of speech, expression, and the press, such a measure is
vitiated by a weighty presumption of invalidity. 2 Indeed, "any system of prior restraints of expression
comes to this Court bearing a heavy presumption against its constitutional validity. . . . The Government
'thus carries a heavy burden of showing justification for the enforcement of such restraint.'" 3 There is
thus a reversal of the normal presumption of validity that inheres in every legislation.
Nor may it be argued that because of Art. IX-C, 4 of the Constitution, which gives the COMELEC
supervisory power to regulate the enjoyment or utilization of franchise for the operation of media of
communication, no presumption of invalidity attaches to a measure like 5.4. For as we have pointed out
in sustaining the ban on media political advertisements, the grant of power to the COMELEC under Art.
IX-C, 4 is limited to ensuring "equal opportunity, time, space, and the right to reply" as well as uniform
and reasonable rates of charges for the use of such media facilities for "public information campaigns and
forums among candidates." 4 This Court stated:
The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no
presumption of invalidity arises in respect of exercises of supervisory or regulatory
authority on the part of the Comelec for the purpose of securing equal opportunity
among candidates for political office, although such supervision or regulation may
result in some limitation of the rights of free speech and free press. 5
MR. JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of clear and present danger for
determining the validity of 5.4. Indeed, as has been pointed out in Osmea v. COMELEC, 6 this test was
originally formulated for the criminal law and only later appropriated for free speech cases. Hence, while
it may be useful for determining the validity of laws dealing with inciting to sedition or incendiary speech,
it may not be adequate for such regulations as the one in question. For such a test is concerned with
questions of the gravity and imminence of the danger as basis for curtailing free speech, which is not the
case of 5.4 and similar regulations.
Instead, MR. JUSTICE KAPUNAN purports to engage in a form of balancing by "weighing and balancing the
circumstances to determine whether public interest [in free, orderly, honest, peaceful and credible
elections] is served by the regulation of the free enjoyment of the rights" (page 7). After canvassing the
reasons for the prohibition, i.e., to prevent last-minute pressure on voters, the creation of bandwagon
effect to favor candidates, misinformation, the "junking" of weak and "losing" candidates by their parties,
and the form of election cheating called "dagdag-bawas" and invoking the State's power to supervise
media of information during the election period (pages 11-16), the dissenting opinion simply
concludes: ACTEHI
Viewed in the light of the legitimate and significant objectives of Section 5.4, it may be
seen that its limiting impact on the rights of free speech and of the press is not unduly
repressive or unreasonable. Indeed, it is a mere restriction, not an absolute prohibition,
on the publication of election surveys. It is limited in duration; it applies only during the
period when the voters are presumably contemplating whom they should elect and
[1692]
AUDAX AT FIDELIS
BOLD BUT FAITHFUL
when they are most susceptible to such unwarranted persuasion. These surveys may
be published thereafter. (Pages 17-18)
The dissent does not, however, show why, on balance, these considerations should outweigh the value of
freedom of expression. Instead, reliance is placed on Art. IX-C, 4. As already stated, the purpose of Art.
IX-C, 4 is to "ensure equal opportunity, time, and space and the right of reply, including reasonable, equal
rates therefor for public information campaigns and forums among candidates." Hence the validity of the
ban on media advertising. It is noteworthy that R.A. No. 9006, 14 has lifted the ban and now allows
candidates to advertise their candidacies in print and broadcast media. Indeed, to sustain the ban on the
publication of survey results would sanction the censorship of all speaking by candidates in an election on
the ground that the usual bombasts and hyperbolic claims made during the campaigns can confuse voters
and thus debase the electoral process.
In sum, the dissent has engaged only in a balancing at the margin. This form of ad hoc balancing
predictably results in sustaining the challenged legislation and leaves freedom of speech, expression, and
the press with little protection. For anyone who can bring a plausible justification forward can easily show
a rational connection between the statute and a legitimate governmental purpose. In contrast, the
balancing of interest undertaken by then Justice Castro in Gonzales v. COMELEC, 7 from which the dissent
in this case takes its cue, was a strong one resulting in his conclusion that 50-B of R.A. No. 4880, which
limited the period of election campaign and partisan political activity, was an unconstitutional abridgment
of freedom of expression.
Nor can the ban on election surveys be justified on the ground that there are other countries 78,
according to the Solicitor General, while the dissent cites 28 which similarly impose restrictions on the
publication of election surveys. At best this survey is inconclusive. It is noteworthy that in the United
States no restriction on the publication of election survey results exists. It cannot be argued that this is
because the United States is a mature democracy. Neither are there laws imposing an embargo on survey
results, even for a limited period, in other countries. As pointed out by petitioners, the United Kingdom,
Austria, Belgium, Denmark, Estonia, Finland, Iceland, Ireland, Latvia, Malta, Macedonia, the Netherlands,
Norway, Sweden, and Ukraine, some of which are no older nor more mature than the Philippines in
political development, do not restrict the publication of election survey results.
What test should then be employed to determine the constitutional validity of 5.4? The United States
Supreme Court, through Chief Justice Warren, held in United States v. O'Brien:
[A] government regulation is sufficiently justified [1] if it is within the constitutional
power of the Government; [2] if it furthers an important or substantial governmental
interest; [3] if the governmental interest is unrelated to the suppression of free
expression; and [4] if the incidental restriction on alleged First Amendment freedoms
[of speech, expression and press] is no greater than is essential to the furtherance of
that interest. 8
This is so far the most influential test for distinguishing content-based from content-neutral regulations
and is said to have "become canonical in the review of such laws." 9 It is noteworthy that the O'Brien test
has been applied by this Court in at least two cases. 10
Under this test, even if a law furthers an important or substantial governmental interest, it should be
invalidated if such governmental interest is "not unrelated to the suppression of free expression."
[1693]
AUDAX AT FIDELIS
BOLD BUT FAITHFUL
Moreover, even if the purpose is unrelated to the suppression of free speech, the law should nevertheless
be invalidated if the restriction on freedom of expression is greater than is necessary to achieve the
governmental purpose in question.
Our inquiry should accordingly focus on these two considerations as applied to 5.4.
First. Sec. 5.4 fails to meet criterion [3] of the O'Brien test because the causal connection of expression to
the asserted governmental interest makes such interest "not unrelated to the suppression of free
expression." By prohibiting the publication of election survey results because of the possibility that such
publication might undermine the integrity of the election, 5.4 actually suppresses a whole class of
expression, while allowing the expression of opinion concerning the same subject matter by newspaper
columnists, radio and TV commentators, armchair theorists, and other opinion makers. In effect, 5.4
shows a bias for a particular subject matter, if not viewpoint, by preferring personal opinion to statistical
results. The constitutional guarantee of freedom of expression means that "the government has no power
to restrict expression because of its message, its ideas, its subject matter, or its content." 11The inhibition
of speech should be upheld only if the expression falls within one of the few unprotected categories dealt
with in Chaplinsky v. New Hampshire, 12 thus:
There are certain well-defined and narrowly limited classes of speech, the prevention
and punishment of which have never been thought to raise any Constitutional problem.
These include the lewd and obscene, the profane, the libelous, and the insulting or
'fighting' words those which by their very utterance inflict injury or tend to incite an
immediate breach of the peace. [S]uch utterances are no essential part of any
exposition of ideas, and are of such slight social value as a step to truth that any benefit
that may be derived from them is clearly outweighed by the social interest in order and
morality.
Nor is there justification for the prior restraint which 5.4 lays on protected speech. In Near
v. Minnesota, 13 it was held:
[The] protection even as to previous restraint is not absolutely unlimited. But the
limitation has been recognized only in exceptional cases. . . . No one would question
but that a government might prevent actual obstruction to its recruiting service or the
publication of the sailing dates of transports or the number and location of troops. On
similar grounds, the primary requirements of decency may be enforced against obscene
publications. The security of the community life may be protected against incitements
to acts of violence and the overthrow by force of orderly government . . . . ACcaET
Thus, contrary to the claim of the Solicitor General, the prohibition imposed by 5.4 cannot be justified
on the ground that it is only for a limited period and is only incidental. The prohibition may be for a limited
time, but the curtailment of the right of expression is direct, absolute, and substantial. It constitutes a
total suppression of a category of speech and is not made less so because it is only for a period of fifteen
(15) days immediately before a national election and seven (7) days immediately before a local election.
This sufficiently distinguishes 5.4 from R.A. No. 6646, 11(b), which this Court found to be valid
in National Press Club v. COMELEC 14 and Osmea v. COMELEC. 15 For the ban imposed byR.A. No. 6646,
11(b) is not only authorized by a specific constitutional provision, 16 but it also provided an alternative
so that, as this Court pointed out in Osmea, there was actually no ban but only a substitution of media
advertisements by the COMELEC space and COMELEC hour.
[1694]
AUDAX AT FIDELIS
BOLD BUT FAITHFUL
Second. Even if the governmental interest sought to be promoted is unrelated to the suppression of
speech and the resulting restriction of free expression is only incidental, 5.4 nonetheless fails to meet
criterion [4] of the O'Brien test, namely, that the restriction be not greater than is necessary to further the
governmental interest. As already stated, 5.4 aims at the prevention of last-minute pressure on voters,
the creation of bandwagon effect, "junking" of weak or "losing" candidates, and resort to the form of
election cheating called "dagdag-bawas." Praiseworthy as these aims of the regulation might be, they
cannot be attained at the sacrifice of the fundamental right of expression, when such aim can be more
narrowly pursued by punishing unlawful acts, rather than speech because of apprehension that such
speech creates the danger of such evils. Thus, under the Administrative Code of 1987, 17 the COMELEC is
given the power:
To stop any illegal activity, or confiscate, tear down, and stop any unlawful,
libelous, misleading or false election propaganda, after due notice and hearing.
This is surely a less restrictive means than the prohibition contained in 5.4. Pursuant to this power of the
COMELEC, it can confiscate bogus survey results calculated to mislead voters. Candidates can have their
own surveys conducted. No right of reply can be invoked by others. No principle of equality is involved. It
is a free market to which each candidate brings his ideas. As for the purpose of the law to prevent
bandwagon effects, it is doubtful whether the Government can deal with this natural-enough tendency
of some voters. Some voters want to be identified with the "winners." Some are susceptible to the herd
mentality. Can these be legitimately prohibited by suppressing the publication of survey results which are
a form of expression? It has been held that "[mere] legislative preferences or beliefs respecting matters
of public convenience may well support regulation directed at other personal activities, but be insufficient
to justify such as diminishes the exercise of rights so vital to the maintenance of democratic
institutions." 18
To summarize then, we hold that 5.4 is invalid because (1) it imposes a prior restraint on the freedom of
expression, (2) it is a direct and total suppression of a category of expression even though such
suppression is only for a limited period, and (3) the governmental interest sought to be promoted can be
achieved by means other than the suppression of freedom of expression.
On the other hand, the COMELEC contends that under Art. IX-A, 7 of the Constitution, its decisions,
orders, or resolutions may be reviewed by this Court only by certiorari. The flaws in this argument is that
it assumes that its Resolution 3636, dated March 1, 2001 is a "decision, order, or resolution" within the
meaning of Art. IX-A, 7. Indeed, counsel for COMELEC maintains that Resolution 3636 was "rendered" by
the Commission. However, the Resolution does not purport to adjudicate the right of any party. It is not
an exercise by the COMELEC of its adjudicatory power to settle the claims of parties. To the contrary,
Resolution 3636 clearly states that it is promulgated to implement the provisions of R.A. No. 9006. Hence,
there is no basis for the COMELEC's claim that this petition for prohibition is inappropriate. Prohibition
has been found appropriate for testing the constitutionality of various election laws, rules, and
regulations. 19
WHEREFORE, the petition for prohibition is GRANTED and 5.4 of R.A. No. 9006 and 24(h) of COMELEC
Resolution 3636, dated March 1, 2001, are declared unconstitutional.
SO ORDERED.
||| (Social Weather Stations, Inc. v. Commission on Elections, G.R. No. 147571, [May 5, 2001], 409 PHIL
571-617)
[1695]
AUDAX AT FIDELIS
BOLD BUT FAITHFUL
1. Freedom of Assembly
LAW - BP Blg. 880 (Public Assembly Act of 1985)
CASES BAYAN VS. ERMITA 488 SCRA 226 (2006)
BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP), GABRIELA, Fr.

Jose Dizon, Renato Constantino, Jr., Froyel Yaneza, and Fahima Tajar, petitioners,vs.
EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City Mayor LITO
ATIENZA, Chief of the Philippine National Police, Gen. ARTURO M. LOMIBAO, NCRPO
Chief Maj. Gen. VIDAL QUEROL, and Western Police District Chief Gen. PEDRO
BULAONG, respondents.
[G.R. No. 169848. April 25, 2006.]
JESS DEL PRADO, WILSON FORTALEZA, LEODY DE GUZMAN, PEDRO PINLAC,

CARMELITA MORANTE, RASTI DELIZO, PAUL BANGAY, MARIE JO OCAMPO, LILIA DELA
CRUZ, CRISTETA RAMOS, ADELAIDA RAMOS, MARY GRACE GONZALES, MICHAEL
TORRES, RENDO SABUSAP, PRECIOUS BALUTE, ROXANNE MAGBOO, ERNIE BAUTISTA,
JOSEPH DE JESUS, MARGARITA ESCOBER, DJOANNALYN JANIER, MAGDALENA
SELLOTE, MANNY QUIAZON, ERICSON DIZON, NENITA CRUZAT, LEONARDO DE LOS
REYES, PEDRITO FADRIGON, petitioners, vs. EDUARDO ERMITA, in his official capacity
as The Executive Secretary and in his personal capacity, ANGELO REYES, in his official
capacity as Secretary of the Interior and Local Governments, ARTURO LOMIBAO, in
his official capacity as the Chief, Philippine National Police, VIDAL QUEROL, in his
official capacity as the Chief, National Capital Regional Police Office (NCRPO), PEDRO
BULAONG, in his official capacity as the Chief, Manila Police District (MPD) AND ALL
OTHER PUBLIC OFFICERS AND PRIVATE INDIVIDUALS ACTING UNDER THEIR CONTROL,
SUPERVISION AND INSTRUCTIONS, respondents.
[G.R. No. 169881. April 25, 2006.]
KILUSANG MAYO UNO, represented by its Chairperson ELMER C. LABOG and

Secretary General JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS-
KILUSANG MAYO UNO (NAFLU-KMU), represented by its National President,
JOSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, GILDA
SUMILANG, FRANCISCO LASTRELLA, and ROQUE M. TAN, petitioners, vs. THE
HONORABLE EXECUTIVE SECRETARY, PNP DIRECTOR GENERAL ARTURO LOMIBAO,
HONORABLE MAYOR LITO ATIENZA, and PNP MPD CHIEF SUPT. PEDRO
BULAONG, respondents.
DECISION
[1696]
AUDAX AT FIDELIS
BOLD BUT FAITHFUL
AZCUNA, J p:
Petitioners come in three groups.

The first petitioners, Bayan, et al., in G.R. No. 169838, 1 allege that they are citizens and taxpayers of the
Philippines and that their rights as organizations and individuals were violated when the rally they
participated in on October 6, 2005 was violently dispersed by policemen implementing Batas Pambansa
(B.P.) No. 880.
The second group consists of 26 individual petitioners, Jess del Prado, et al., in G.R. No. 169848, 2 who
allege that they were injured, arrested and detained when a peaceful mass action they held on September
26, 2005 was preempted and violently dispersed by the police. They further assert that on October 5,
2005, a group they participated in marched to Malacaang to protest issuances of the Palace which, they
claim, put the country under an "undeclared" martial rule, and the protest was likewise dispersed violently
and many among them were arrested and suffered injuries.
The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No. 169881, 3 allege that they
conduct peaceful mass actions and that their rights as organizations and those of their individual members
as citizens, specifically the right to peaceful assembly, are affected by Batas Pambansa No. 880 and the
policy of "Calibrated Preemptive Response" (CPR) being followed to implement it.
KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to be conducted at the Mendiola
bridge but police blocked them along C.M. Recto and Lepanto Streets and forcibly dispersed them, causing
injuries to several of their members. They further allege that on October 6, 2005, a multi-sectoral rally
which KMU also co-sponsored was scheduled to proceed along Espaa Avenue in front of the University
of Santo Tomas and going towards Mendiola bridge. Police officers blocked them along Morayta Street
and prevented them from proceeding further. They were then forcibly dispersed, causing injuries on one
of them. 4 Three other rallyists were arrested.
All petitioners assail Batas Pambansa No. 880, some of them in toto and others only Sections 4, 5, 6, 12,
13(a), and 14(a), as well as the policy of CPR. They seek to stop violent dispersals of rallies under the "no
permit, no rally" policy and the CPR policy recently announced. CTEaDc
B.P. No. 880, "The Public Assembly Act of 1985," provides:
Batas Pambansa Blg. 880
AN ACT ENSURING THE FREE EXERCISE BY THE PEOPLE OF THEIR RIGHT PEACEABLY TO
ASSEMBLE AND PETITION THE GOVERNMENT [AND] FOR OTHER PURPOSES
Be it enacted by the Batasang Pambansa in session assembled:
SECTION 1. Title . This Act shall be known as "The Public Assembly Act of 1985."
SEC. 2.Declaration of policy. The constitutional right of the people peaceably to
assemble and petition the government for redress of grievances is essential and vital to
the strength and stability of the State. To this end, the State shall ensure the free
exercise of such right without prejudice to the rights of others to life, liberty and equal
protection of the law.
SEC. 3.Definition of terms. For purposes of this Act:
[1697]
AUDAX AT FIDELIS
BOLD BUT FAITHFUL
(a)"Public assembly" means any rally, demonstration, march, parade, procession or any
other form of mass or concerted action held in a public place for the purpose of
presenting a lawful cause; or expressing an opinion to the general public on any
particular issue; or protesting or influencing any state of affairs whether political,
economic or social; or petitioning the government for redress of grievances.
The processions, rallies, parades, demonstrations, public meetings and assemblages for
religious purposes shall be governed by local ordinances; Provided, however, That the
declaration of policy as provided in Section 2 of this Act shall be faithfully observed.
The definition herein contained shall not include picketing and other concerted action
in strike areas by workers and employees resulting from a labor dispute as defined by
the Labor Code, its implementing rules and regulations, and by the Batas Pambansa
Bilang 227.
(b)"Public place" shall include any highway, boulevard, avenue, road, street, bridge or
other thoroughfare, park, plaza square, and/or any open space of public ownership
where the people are allowed access.
(c)"Maximum tolerance" means the highest degree of restraint that the military, police
and other peace keeping authorities shall observe during a public assembly or in the
dispersal of the same.
(d)"Modification of a permit" shall include the change of the place and time of the
public assembly, rerouting of the parade or street march, the volume of loud-speakers
or sound system and similar changes.
SEC. 4.Permit when required and when not required. A written permit shall be
required for any person or persons to organize and hold a public assembly in a public
place. However, no permit shall be required if the public assembly shall be done or
made in a freedom park duly established by law or ordinance or in private property, in
which case only the consent of the owner or the one entitled to its legal possession is
required, or in the campus of a government-owned and operated educational
institution which shall be subject to the rules and regulations of said educational
institution. Political meetings or rallies held during any election campaign period as
provided for by law are not covered by this Act.
SEC. 5.Application requirements. All applications for a permit shall comply with the
following guidelines:
(a)The applications shall be in writing and shall include the names of the leaders or
organizers; the purpose of such public assembly; the date, time and duration thereof,
and place or streets to be used for the intended activity; and the probable number of
persons participating, the transport and the public address systems to be used. HECaTD
(b)The application shall incorporate the duty and responsibility of applicant under
Section 8 hereof.
(c)The application shall be filed with the office of the mayor of the city or municipality
in whose jurisdiction the intended activity is to be held, at least five (5) working days
before the scheduled public assembly.
[1698]
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(d)Upon receipt of the application, which must be duly acknowledged in writing, the
office of the city or municipal mayor shall cause the same to immediately be posted at
a conspicuous place in the city or municipal building.
SEC. 6.Action to be taken on the application.
(a)It shall be the duty of the mayor or any official acting in his behalf to issue or grant a
permit unless there is clear and convincing evidence that the public assembly will create
a clear and present danger to public order, public safety, public convenience, public
morals or public health.
(b)The mayor or any official acting in his behalf shall act on the application within two
(2) working days from the date the application was filed, failing which, the permit shall
be deemed granted. Should for any reason the mayor or any official acting in his behalf
refuse to accept the application for a permit, said application shall be posted by the
applicant on the premises of the office of the mayor and shall be deemed to have been
filed.
(c)If the mayor is of the view that there is imminent and grave danger of a substantive
evil warranting the denial or modification of the permit, he shall immediately inform
the applicant who must be heard on the matter.
(d)The action on the permit shall be in writing and served on the applica[nt] within
twenty-four hours.
(e)If the mayor or any official acting in his behalf denies the application or modifies the
terms thereof in his permit, the applicant may contest the decision in an appropriate
court of law.
(f)In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court,
the Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate
court, its decisions may be appealed to the appropriate court within forty-eight (48)
hours after receipt of the same. No appeal bond and record on appeal shall be required.
A decision granting such permit or modifying if in terms satisfactory to the applicant
shall be immediately executory.
(g)All cases filed in court under this section shall be decided within twenty-four (24)
hours from date of filing. Cases filed hereunder shall be immediately endorsed to the
executive judge for disposition or, in his absence, to the next in rank.
(h)In all cases, any decision may be appealed to the Supreme Court.
(i)Telegraphic appeals to be followed by formal appeals are hereby allowed.
SEC. 7.Use of Public throroughfare. Should the proposed public assembly involve the
use, for an appreciable length of time, of any public highway, boulevard, avenue, road
or street, the mayor or any official acting in his behalf may, to prevent grave public
inconvenience, designate the route thereof which is convenient to the participants or
reroute the vehicular traffic to another direction so that there will be no serious or
undue interference with the free flow of commerce and trade. TAcDHS
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SEC. 8.Responsibility of applicant. It shall be the duty and responsibility of the leaders
and organizers of a public assembly to take all reasonable measures and steps to the
end that the intended public assembly shall be conducted peacefully in accordance with
the terms of the permit. These shall include but not be limited to the following:
(a)To inform the participants of their responsibility under the permit;
(b)To police the ranks of the demonstrators in order to prevent non-demonstrators
from disrupting the lawful activities of the public assembly;
(c)To confer with local government officials concerned and law enforcers to the end
that the public assembly may be held peacefully;
(d)To see to it that the public assembly undertaken shall not go beyond the time stated
in the permit; and
(e)To take positive steps that demonstrators do not molest any person or do any act
unduly interfering with the rights of other persons not participating in the public
assembly.
SEC. 9.Non-interference by law enforcement authorities. Law enforcement agencies
shall not interfere with the holding of a public assembly. However, to adequately ensure
public safety, a law enforcement contingent under the command of a responsible police
officer may be detailed and stationed in a place at least one hundred (100) meters away
from the area of activity ready to maintain peace and order at all times.
SEC. 10.Police assistance when requested. It shall be imperative for law enforcement
agencies, when their assistance is requested by the leaders or organizers, to perform
their duties always mindful that their responsibility to provide proper protection to
those exercising their right peaceably to assemble and the freedom of expression is
primordial. Towards this end, law enforcement agencies shall observe the following
guidelines:
(a)Members of the law enforcement contingent who deal with the demonstrators shall
be in complete uniform with their nameplates and units to which they belong displayed
prominently on the front and dorsal parts of their uniform and must observe the policy
of "maximum tolerance" as herein defined;
(b)The members of the law enforcement contingent shall not carry any kind of firearms
but may be equipped with baton or riot sticks, shields, crash helmets with visor, gas
masks, boots or ankle high shoes with shin guards;
(c)Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be
used unless the public assembly is attended by actual violence or serious threats of
violence, or deliberate destruction of property.
Sec. 11.Dispersal of public assembly with permit. No public assembly with a permit
shall be dispersed. However, when an assembly becomes violent, the police may
disperse such public assembly as follows:
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(a)At the first sign of impending violence, the ranking officer of the law enforcement
contingent shall call the attention of the leaders of the public assembly and ask the
latter to prevent any possible disturbance;
(b)If actual violence starts to a point where rocks or other harmful objects from the
participants are thrown at the police or at the non-participants, or at any property
causing damage to such property, the ranking officer of the law enforcement
contingent shall audibly warn the participants that if the disturbance persists, the public
assembly will be dispersed; CSHcDT
(c)If the violence or disturbance prevailing as stated in the preceding subparagraph
should not stop or abate, the ranking officer of the law enforcement contingent shall
audibly issue a warning to the participants of the public assembly, and after allowing a
reasonable period of time to lapse, shall immediately order it to forthwith disperse;
(d)No arrest of any leader, organizer or participant shall also be made during the public
assembly unless he violates during the assembly a law, statute, ordinance or any
provision of this Act. Such arrest shall be governed by Article 125 of the Revised Penal
Code, as amended;
(e)Isolated acts or incidents of disorder or breach of the peace during the public
assembly may be peacefully dispersed.
SEC. 12.Dispersal of public assembly without permit. When the public assembly is
held without a permit where a permit is required, the said public assembly may be
peacefully dispersed.
SEC. 13.Prohibited acts. The following shall constitute violations of the Act:
(a)The holding of any public assembly as defined in this Act by any leader or organizer
without having first secured that written permit where a permit is required from the
office concerned, or the use of such permit for such purposes in any place other than
those set out in said permit: Provided, however, That no person can be punished or held
criminally liable for participating in or attending an otherwise peaceful assembly;
(b)Arbitrary and unjustified denial or modification of a permit in violation of the
provisions of this Act by the mayor or any other official acting in his behalf;
(c)The unjustified and arbitrary refusal to accept or acknowledge receipt of the
application for a permit by the mayor or any official acting in his behalf;
(d)Obstructing, impeding, disrupting or otherwise denying the exercise of the right to
peaceful assembly;
(e)The unnecessary firing of firearms by a member of any law enforcement agency or
any person to disperse the public assembly;
(f)Acts in violation of Section 10 hereof;
(g)Acts described hereunder if committed within one hundred (100) meters from the
area of activity of the public assembly or on the occasion thereof:
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1.the carrying of a deadly or offensive weapon or device such as firearm,

pillbox, bomb, and the like;
2.the carrying of a bladed weapon and the like;
3.the malicious burning of any object in the streets or thoroughfares;
4.the carrying of firearms by members of the law enforcement unit;
5.the interfering with or intentionally disturbing the holding of a public
assembly by the use of a motor vehicle, its horns and loud sound
systems.
SEC. 14.Penalties. Any person found guilty and convicted of any of the prohibited
acts defined in the immediately preceding section shall be punished as follows:
(a)violation of subparagraph (a) shall be punished by imprisonment of one month and
one day to six months; ECDaTI
(b)violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph (g) shall be
punished by imprisonment of six months and one day to six years;
(c)violation of item 1, subparagraph (g) shall be punished by imprisonment of six
months and one day to six years without prejudice to prosecution under Presidential
Decree No. 1866;
(d)violations of item 2, item 3, or item 5 of subparagraph (g) shall be punished by
imprisonment of one day to thirty days.
SEC. 15.Freedom parks. Every city and municipality in the country shall within six
months after the effectivity of this Act establish or designate at least one suitable
"freedom park" or mall in their respective jurisdictions which, as far as practicable, shall
be centrally located within the poblacion where demonstrations and meetings may be
held at any time without the need of any prior permit.
In the cities and municipalities of Metropolitan Manila, the respective mayors shall
establish the freedom parks within the period of six months from the effectivity this
Act.
SEC. 16.Constitutionality. Should any provision of this Act be declared invalid or
unconstitutional, the validity or constitutionality of the other provisions shall not be
affected thereby.
SEC. 17.Repealing clause. All laws, decrees, letters of instructions, resolutions,
orders, ordinances or parts thereof which are inconsistent with the provisions of this
Act are hereby repealed, amended, or modified accordingly.
SEC. 18.Effectivity. This Act shall take effect upon its approval.
Malacaang Official
Manila, Philippines NEWS
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Release No. 2 September 21, 2005

STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA
On Unlawful Mass Actions
In view of intelligence reports pointing to credible plans of anti-government groups to
inflame the political situation, sow disorder and incite people against the duty
constituted authorities, we have instructed the PNP as well as the local government
units to strictly enforce a "no permit, no rally" policy, disperse groups that run afoul of
this standard and arrest all persons violating the laws of the land as well as ordinances
on the proper conduct of mass actions and demonstrations.
The rule of calibrated preemptive response is now in force, in lieu of maximum
tolerance. The authorities will not stand aside while those with ill intent are herding a
witting or unwitting mass of people and inciting them into actions that are inimical to
public order, and the peace of mind of the national community.
Unlawful mass actions will be dispersed. The majority of law-abiding citizens have the
right to be protected by a vigilant and proactive government.
We appeal to the detractors of the government to engage in lawful and peaceful

conduct befitting of a democratic society. EcHTCD
The President's call for unity and reconciliation stands, based on the rule of law.
Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a violation of
the Constitution and the International Covenant on Civil and Political Rights and other human rights
treaties of which the Philippines is a signatory. 5
They argue that B.P. No. 880 requires a permit before one can stage a public assembly regardless of the
presence or absence of a clear and present danger. It also curtails the choice of venue and is thus
repugnant to the freedom of expression clause as the time and place of a public assembly form part of
the message for which the expression is sought. Furthermore, it is not content-neutral as it does not apply
to mass actions in support of the government. The words "lawful cause," "opinion," "protesting or
influencing" suggest the exposition of some cause not espoused by the government. Also, the phrase
"maximum tolerance" shows that the law applies to assemblies against the government because they are
being tolerated. As a content-based legislation, it cannot pass the strict scrutiny test.
Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is unconstitutional as it is a curtailment
of the right to peacefully assemble and petition for redress of grievances because it puts a condition for
the valid exercise of that right. It also characterizes public assemblies without a permit as illegal and
penalizes them and allows their dispersal. Thus, its provisions are not mere regulations but are actually
prohibitions.
Furthermore, the law delegates powers to the Mayor without providing clear standards. The two
standards stated in the laws (clear and present danger and imminent and grave danger) are inconsistent.
Regarding the CPR policy, it is void for being an ultra vires act that alters the standard of maximum
tolerance set forth in B.P. No. 880, aside from being void for being vague and for lack of publication.
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Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the right to assembly and
therefore B.P. No. 880 cannot put the prior requirement of securing a permit. And even assuming that the
legislature can set limits to this right, the limits provided are unreasonable: First, allowing the Mayor to
deny the permit on clear and convincing evidence of a clear and present danger is too comprehensive.
Second, the five-day requirement to apply for a permit is too long as certain events require instant public
assembly, otherwise interest on the issue would possibly wane.
As to the CPR policy, they argue that it is preemptive, that the government takes action even before the
rallyists can perform their act, and that no law, ordinance or executive order supports the policy.
Furthermore, it contravenes the maximum tolerance policy of B.P. No. 880 and violates
the Constitution as it causes a chilling effect on the exercise by the people of the right to peaceably
assemble.
Respondents in G.R. No. 169838 are Eduardo Ermita, as Executive Secretary, Manila City Mayor Lito
Atienza, Chief, of the Philippine National Police (PNP) Gen. Arturo Lomibao, National Capital Region Police
Office (NCRPO) Chief, PNP Maj. Gen. Vidal Querol, and Manila Police District (MPD) Chief Gen. Pedro
Bulaong.
Respondents in G.R. No. 169848 are Eduardo Ermita as Executive Secretary and in his personal
capacity; Angelo Reyes, as Secretary of the Interior and Local Governments; Arturo Lomibao, as
Chief Vidal Querol, as Chief, NCRPO; Pedro Bulaong, as Chief, MPD, and all other public officers and
private individuals acting under their control, supervision and instruction.
Respondents in G.R. No. 169881 are the Honorable Executive Secretary, PNP Director General Arturo
Lomibao, the Honorable Mayor Joselito Atienza, and PNP MPD Chief Pedro Bulaong. CAcEaS
Respondents argue that:
1.Petitioners have no standing because they have not presented evidence that they had been "injured,
arrested or detained because of the CPR," and that "those arrested stand to be charged with violating
Batas Pambansa [No.] 880 and other offenses."
2.Neither B.P. No. 880 nor CPR is void on its face. Petitioners cannot honestly claim that the time, place
and manner regulation embodied in B.P. No. 880 violates the three-pronged test for such a measure, to
wit: (a) B.P. No. 880 is content-neutral, i.e., it has no reference to content of regulated speech; (b) B.P.
No. 880 is narrowly tailored to serve a significant governmental interest, i.e., the interest cannot be
equally well served by a means that is less intrusive of free speech interests; and (c) B.P. No. 880 leaves
open alternative channels for communication of the information. 6
3.B.P. No. 880 is content-neutral as seen from the text of the law. Section 5 requires the statement of the
public assembly's time, place and manner of conduct. It entails traffic re-routing to prevent grave public
inconvenience and serious or undue interference in the free flow of commerce and trade. Furthermore,
nothing in B.P. No. 880 authorizes the denial of a permit on the basis of a rally's program content or the
statements of the speakers therein, except under the constitutional precept of the "clear and present
danger test." The status of B.P. No. 880 as a content-neutral regulation has been recognized in Osmea v.
Comelec. 7
4.Adiong v. Comelec 8 held that B.P. No. 880 is a content-neutral regulation of the time, place and manner
of holding public assemblies and the law passes the test for such regulation, namely, these regulations
need only a substantial governmental interest to support them.
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5.Sangalang v. Intermediate Appellate Court 9 held that a local chief executive has the authority to
exercise police power to meet "the demands of the common good in terms of traffic decongestion and
public convenience." Furthermore, the discretion given to the mayor is narrowly circumscribed by
Sections 5 (d), and 6 (a), (b), (c), (d), (e), 13 and 15 of the law.
6.The standards set forth in the law are not inconsistent. "Clear and convincing evidence that the public
assembly will create a clear and present danger to public order, public safety, public convenience, public
morals or public health" and "imminent and grave danger of a substantive evil" both express the meaning
of the "clear and present danger test." 10
7.CPR is simply the responsible and judicious use of means allowed by existing laws and ordinances to
protect public interest and restore public order. Thus, it is not accurate to call it a new rule but rather it is
a more pro-active and dynamic enforcement of existing laws, regulations and ordinances to prevent chaos
in the streets. It does not replace the rule of maximum tolerance in B.P. No. 880.
Respondent Mayor Joselito Atienza, for his part, submitted in his Comment that the petition in G.R. No.
169838 should be dismissed on the ground that Republic Act No. 7160 gives the Mayor power to deny a
permit independently of B.P. No. 880; that his denials of permits were under the "clear and present
danger" rule as there was a clamor to stop rallies that disrupt the economy and to protect the lives of
other people; that J. B. L. Reyes v. Bagatsing, 11 Primicias v. Fugoso, 12 and Jacinto v. CA, 13 have
affirmed the constitutionality of requiring a permit; that the permit is for the use of a public place and not
for the exercise of rights; and that B.P. No. 880 is not a content-based regulation because it covers all
rallies.
The petitions were ordered consolidated on February 14, 2006. After the submission of all the Comments,
the Court set the cases for oral arguments on April 4, 2006, 14 stating the principal issues, as follows:
1.On the constitutionality of Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12
13(a) and 14(a) thereof, and Republic Act No. 7160:
(a)Are these content-neutral or content-based regulations?
(b)Are they void on grounds of overbreadth or vagueness?
(c)Do they constitute prior restraint? ATCaDE
(d)Are they undue delegations of powers to Mayors?
(e)Do they violate international human rights treaties and the Universal
Declaration of Human Rights?
2.On the constitutionality and legality of the policy of Calibrated Preemptive Response
(CPR):
(a)Is the policy void on its face or due to vagueness?
(b)Is it void for lack of publication?
(c)Is the policy of CPR void as applied to the rallies of September 26 and October
4, 5 and 6, 2005?
During the course of the oral arguments, the following developments took place and were approved
and/or noted by the Court:
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1.Petitioners, in the interest of a speedy resolution of the petitions, withdrew the portions of their
petitions raising factual issues, particularly those raising the issue of whether B.P. No. 880 and/or CPR is
void as applied to the rallies of September 20, October 4, 5 and 6, 2005.
2.The Solicitor General agreed with the observation of the Chief Justice that CPR should no longer be used
as a legal term inasmuch as, according to respondents, it was merely a "catchword" intended to clarify
what was thought to be a misunderstanding of the maximum tolerance policy set forth in B.P. No. 880
and that, as stated in the affidavit executed by Executive Secretary Eduardo Ermita and submitted to the
Ombudsman, it does not replace B.P. No. 880 and the maximum tolerance policy embodied in that law.
The Court will now proceed to address the principal issues, taking into account the foregoing
developments.
Petitioners' standing cannot be seriously challenged. Their right as citizens to engage in peaceful assembly
and exercise the right of petition, as guaranteed by the Constitution, is directly affected by B.P. No. 880
which requires a permit for all who would publicly assemble in the nation's streets and parks. They have,
in fact, purposely engaged in public assemblies without the required permits to press their claim that no
such permit can be validly required without violating the Constitutional guarantee. Respondents, on the
other hand, have challenged such action as contrary to law and dispersed the public assemblies held
without the permit.
Section 4 of Article III of the Constitution provides:

SEC. 4.No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the government
for redress of grievances.
The first point to mark is that the right to peaceably assemble and petition for redress of grievances is,
together with freedom of speech, of expression, and of the press, a right that enjoys primacy in the realm
of constitutional protection. For these rights constitute the very basis of a functional democratic polity,
without which all the other rights would be meaningless and unprotected. As stated in Jacinto v.
CA, 15 the Court, as early as the onset of this century, in U.S. v. Apurado, 16 already upheld the right to
assembly and petition, as follows:
There is no question as to the petitioners' rights to peaceful assembly to petition the
government for a redress of grievances and, for that matter, to organize or form
associations for purposes not contrary to law, as well as to engage in peaceful concerted
activities. These rights are guaranteed by no less than the Constitution, particularly
Sections 4 and 8 of the Bill of Rights, Section 2(5) of Article IX, and Section 3 of Article
XIII. Jurisprudence abounds with hallowed pronouncements defending and promoting
the people's exercise of these rights. As early as the onset of this century, this Court
in U.S. vs. Apurado, already upheld the right to assembly and petition and even went as
far as to acknowledge:
"It is rather to be expected that more or less disorder will mark the public assembly of
the people to protest against grievances whether real or imaginary, because on such
occasions feeling is always wrought to a high pitch of excitement, and the greater, the
grievance and the more intense the feeling, the less perfect, as a rule will be the
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disciplinary control of the leaders over their irresponsible followers. But if the
prosecution be permitted to seize upon every instance of such disorderly conduct by
individual members of a crowd as an excuse to characterize the assembly as a seditious
and tumultuous rising against the authorities, then the right to assemble and to petition
for redress of grievances would expose all those who took part therein to the severest
and most unmerited punishment, if the purposes which they sought to attain did not
happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct
occur on such occasions, the guilty individuals should be sought out and punished
therefor, but the utmost discretion must be exercised in drawing the line between
disorderly and seditious conduct and between an essentially peaceable assembly and a
tumultuous uprising."
Again, in Primicias v. Fugoso, 17 the Court likewise sustained the primacy of freedom of speech and to
assembly and petition over comfort and convenience in the use of streets and parks.cIDHSC
Next, however, it must be remembered that the right, while sacrosanct, is not absolute. In Primicias, this
Court said:
The right to freedom of speech, and to peacefully assemble and petition the
government for redress of grievances, are fundamental personal rights of the people
recognized and guaranteed by the constitutions of democratic countries. But it is a
settled principle growing out of the nature of well-ordered civil societies that the
exercise of those rights is not absolute for it may be so regulated that it shall not be
injurious to the equal enjoyment of others having equal rights, nor injurious to the
rights of the community or society. The power to regulate the exercise of such and other
constitutional rights is termed the sovereign "police power," which is the power to
prescribe regulations, to promote the health, morals, peace, education, good order or
safety, and general welfare of the people. This sovereign police power is exercised by
the government through its legislative branch by the enactment of laws regulating
those and other constitutional and civil rights, and it may be delegated to political
subdivisions, such as towns, municipalities and cities by authorizing their legislative
bodies called municipal and city councils enact ordinances for purpose. 18
Reyes v. Bagatsing 19 further expounded on the right and its limits, as follows:
1.It is thus clear that the Court is called upon to protect the exercise of the cognate
rights to free speech and peaceful assembly, arising from the denial of a permit. The
Constitution is quite explicit: "No law shall be passed abridging the freedom of speech,
or of the press, or the right of the people peaceably to assemble and petition the
Government for redress of grievances." Free speech, like free press, may be identified
with the liberty to discuss publicly and truthfully any matter of public concern without
censorship or punishment. There is to be then no previous restraint on the
communication of views or subsequent liability whether in libel suits, prosecution for
sedition, or action for damages, or contempt proceedings unless there be a "clear and
present danger of a substantive evil that [the State] has a right to prevent." Freedom of
assembly connotes the right of the people to meet peaceably for consultation and
discussion of matters of public concern. It is entitled to be accorded the utmost
deference and respect. It is not to be limited, much less denied, except on a showing,
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as is the case with freedom of expression, of a clear and present danger of a substantive
evil that the state has a right to prevent. Even prior to the 1935 Constitution, Justice
Malcolm had occasion to stress that it is a necessary consequence of our republican
institutions and complements the right of free speech. To paraphrase the opinion of
Justice Rutledge, speaking for the majority of the American Supreme Court in Thomas
v. Collins, it was not by accident or coincidence that the rights to freedom of speech and
of the press were coupled in a single guarantee with the right of the people peaceably
to assemble and to petition the government for redress of grievances. All these rights,
while not identical, are inseparable. In every case, therefore, where there is a limitation
placed on the exercise of this right, the judiciary is called upon to examine the effects
of the challenged governmental actuation. The sole justification for a limitation on the
exercise of this right, so fundamental to the maintenance of democratic institutions, is
the danger, of a character both grave and imminent, of a serious evil to public safety,
public morals, public health, or any other legitimate public interest.
2.Nowhere is the rationale that underlies the freedom of expression and peaceable
assembly better expressed than in this excerpt from an opinion of Justice Frankfurter:
"It must never be forgotten, however, that the Bill of Rights was the child of the
Enlightenment. Back of the guaranty of free speech lay faith in the power of an appeal
to reason by all the peaceful means for gaining access to the mind. It was in order to
avert force and explosions due to restrictions upon rational modes of communication
that the guaranty of free speech was given a generous scope. But utterance in a context
of violence can lose its significance as an appeal to reason and become part of an
instrument of force. Such utterance was not meant to be sheltered by
the Constitution." What was rightfully stressed is the abandonment of reason, the
utterance, whether verbal or printed, being in a context of violence. It must always be
remembered that this right likewise provides for a safety valve, allowing parties the
opportunity to give vent to their views, even if contrary to the prevailing climate of
opinion. For if the peaceful means of communication cannot be availed of, resort to
non-peaceful means may be the only alternative. Nor is this the sole reason for the
expression of dissent. It means more than just the right to be heard of the person who
feels aggrieved or who is dissatisfied with things as they are. Its value may lie in the fact
that there may be something worth hearing from the dissenter. That is to ensure a true
ferment of ideas. There are, of course, well-defined limits. What is guaranteed is
peaceable assembly. One may not advocate disorder in the name of protest, much less
preach rebellion under the cloak of dissent. The Constitution frowns on disorder or
tumult attending a rally or assembly. Resort to force is ruled out and outbreaks of
violence to be avoided. The utmost calm though is not required. As pointed out in an
early Philippine case, penned in 1907 to be precise, United States v. Apurado: "It is
rather to be expected that more or less disorder will mark the public assembly of the
people to protest against grievances whether real or imaginary, because on such
occasions feeling is always wrought to a high pitch of excitement, and the greater the
grievance and the more intense the feeling, the less perfect, as a rule, will be the
disciplinary control of the leaders over their irresponsible followers." It bears repeating
that for the constitutional right to be invoked, riotous conduct, injury to property, and
acts of vandalism must be avoided. To give free rein to one's destructive urges is to call
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for condemnation. It is to make a mockery of the high estate occupied by intellectual

liberty in our scheme of values. ICHAaT
There can be no legal objection, absent the existence of a clear and present danger of
a substantive evil, on the choice of Luneta as the place where the peace rally would
start. The Philippines is committed to the view expressed in the plurality opinion, of
1939 vintage of, Justice Roberts in Hague v. CIO: "Whenever the title of streets and
parks may rest, they have immemorially been held in trust for the use of the public and,
time out of mind, have been used for purposes of assembly, communicating thoughts
between citizens, and discussing public questions. Such use of the streets and public
places has, from ancient times, been a part of the privileges, immunities, rights and
liberties of citizens. The privilege of a citizen of the United States to use the streets and
parks for communication of views on national questions may be regulated in the
interest of all; it is not absolute, but relative, and must be exercised in subordination to
the general comfort and convenience, and in consonance with peace and good order;
but must not, in the guise of respondents, be abridged or denied." The above excerpt
was quoted with approval in Primicias v. Fugoso. Primicias made explicit what was
implicit in Municipality of Cavite v. Rojas, a 1915 decision, where this Court categorically
affirmed that plazas or parks and streets are outside the commerce of man and thus
nullified a contract that leased Plaza Soledad of plaintiff-municipality. Reference was
made to such plaza "being a promenade for public use," which certainly is not the only
purpose that it could serve. To repeat, there can be no valid reason why a permit should
not be granted for the proposed march and rally starting from a public park that is the
Luneta.
4.Neither can there be any valid objection to the use of the streets to the gates of the
US embassy, hardly two blocks away at the Roxas Boulevard. Primicias v. Fugoso has
resolved any lurking doubt on the matter. In holding that the then Mayor Fugoso of the
City of Manila should grant a permit for a public meeting at Plaza Miranda in Quiapo,
this Court categorically declared: "Our conclusion finds support in the decision in the
case of Willis Cox v. State of New Hampshire, 312 U.S., 569. In that case, the statute of
New Hampshire P.L. chap. 145, section 2, providing that no parade or procession upon
any ground abutting thereon, shall be permitted unless a special license therefor shall
first be obtained from the selectmen of the town or from licensing committee,' was
construed by the Supreme Court of New Hampshire as not conferring upon the licensing
board unfettered discretion to refuse to grant the license, and held valid. And the
Supreme Court of the United States, in its decision (1941) penned by Chief Justice
Hughes affirming the judgment of the State Supreme Court, held that 'a statute
requiring persons using the public streets for a parade or procession to procure a special
license therefor from the local authorities is not an unconstitutional abridgment of the
rights of assembly or of freedom of speech and press, where, as the statute is construed
by the state courts, the licensing authorities are strictly limited, in the issuance of
licenses, to a consideration of the time, place, and manner of the parade or procession,
with a view to conserving the public convenience and of affording an opportunity to
provide proper policing, and are not invested with arbitrary discretion to issue or refuse
license, . . . . "Nor should the point made by Chief Justice Hughes in a subsequent
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portion of the opinion be ignored: "Civil liberties, as guaranteed by the Constitution,

imply the existence of an organized society maintaining public order without which
liberty itself would be lost in the excesses of unrestricted abuses. The authority of a
municipality to impose regulations in order to assure the safety and convenience of the
people in the use of public highways has never been regarded as inconsistent with civil
liberties but rather as one of the means of safeguarding the good order upon which
they ultimately depend. The control of travel on the streets of cities is the most familiar
illustration of this recognition of social need. Where a restriction of the use of highways
in that relation is designed to promote the public convenience in the interest of all, it
cannot be disregarded by the attempted exercise of some civil right which in other
circumstances would be entitled to protection."
xxx xxx xxx
6.. . . The principle under American doctrines was given utterance by Chief Justice
Hughes in these words: "The question, if the rights of free speech and peaceable
assembly are to be preserved, is not as to the auspices under which the meeting is held
but as to its purpose; not as to the relations of the speakers, but whether their
utterances transcend the bounds of the freedom of speech which
the Constitution protects." There could be danger to public peace and safety if such a
gathering were marked by turbulence. That would deprive it of its peaceful character.
It is true that the licensing official, here respondent Mayor, is not devoid of discretion
in determining whether or not a permit would be granted. It is not, however, unfettered
discretion. While prudence requires that there be a realistic appraisal not of what may
possibly occur but of what may probably occur, given all the relevant circumstances,
still the assumption especially so where the assembly is scheduled for a specific
public place is that the permit must be for the assembly being held there. The
exercise of such a right, in the language of Justice Roberts, speaking for the American
Supreme Court, is not to be "abridged on the plea that it may be exercised in some
other place."
xxx xxx xxx
8.By way of a summary. The applicants for a permit to hold an assembly should inform
the licensing authority of the date, the public place where and the time when it will take
place. If it were a private place, only the consent of the owner or the one entitled to its
legal possession is required. Such application should be filed well ahead in time to
enable the public official concerned to appraise whether there may be valid objections
to the grant of the permit or to its grant but at another public place. It is an
indispensable condition to such refusal or modification that the clear and present
danger test be the standard for the decision reached. If he is of the view that there is
such an imminent and grave danger of a substantive evil, the applicants must be heard
on the matter. Thereafter, his decision, whether favorable or adverse, must be
transmitted to them at the earliest opportunity. Thus if so minded, they can have
recourse to the proper judicial authority. Free speech and peaceable assembly, along
with the other intellectual freedoms, are highly ranked in our scheme of constitutional
values. It cannot be too strongly stressed that on the judiciary, even more so than on
the other departments rests the grave and delicate responsibility of assuring respect
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for and deference to such preferred rights. No verbal formula, no sanctifying phrase
can, of course, dispense with what has been so felicitiously termed by Justice Holmes
"as the sovereign prerogative of judgment." Nonetheless, the presumption must be to
incline the weight of the scales of justice on the side of such rights, enjoying as they do
precedence and primacy. . . . .
B.P. No. 880 was enacted after this Court rendered its decision in Reyes.
The provisions of B.P. No. 880 practically codify the ruling in Reyes:
Reyes v. Bagatsing B.P. No. 880
(G.R. No. L-65366, November 9, 1983, 125 SCRA
553, 569)
8. By way of a summary. The applicants for a permit SEC. 4. Permit when required and when not
to hold an assembly should inform the licensing required. A written permit shall be required for
authority of the date, the public place where and any person or persons to organize and hold a public
the time when it will take place. If it were a private assembly in a public place. However, no permit
place, only the consent of the owner or the one shall be required if the public assembly shall be
entitled to its legal possession is required. Such done or made in a freedom park duly established
application should be filed well ahead in time to by law or ordinance duly established by law or
enable the public official concerned to appraise ordinance or in private property, in which case only
whether there may be valid objections to the grant the consent of the owner or the one entitled to its
of the permit or to its grant but at another public legal possession is required, or in the campus of a
place. It is an indispensable condition to such government-owned and operated educational
refusal or modification that the clear and present institution which shall be subject to the rules and
danger test be the standard for the decision regulations of said educational institution. Political
reached. If he is of the view that there is such an meetings or rallies held during any election
imminent and grave danger of a substantive evil, campaign period as provided for by law are not
the applicants must be heard on the matter. covered by this Act.
Thereafter, his decision, whether favorable or
adverse, must be transmitted to them at the
earliest opportunity. Thus if so minded, they can
have recourse to the proper judicial authority.
SEC. 5. Application requirements. All
applications for a permit shall comply with the
following guidelines:
(a) The applications shall be in writing and shall

include the names of the leaders or organizers; the
purpose of such public assembly; the date, time
and duration thereof, and place or streets to be
used for the intended activity; and the probable
number of persons participating, the transport and
the public address systems to be used.
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(b) The application shall incorporate the duty and

responsibility of applicant under Section 8 hereof.
(c) The application shall be filed with the office of

the mayor of the city or municipality in whose
jurisdiction the intended activity is to be held, at
least five (5) working days before the scheduled
public assembly.
(d) Upon receipt of the application, which must be

duly acknowledged in writing, the office of the city
or municipal mayor shall cause the same to
immediately be posted at a conspicuous place in
the city or municipal building.
SEC. 6. Action to be taken on the application.
(a) It shall be the duty of the mayor or any official

acting in his behalf to issue or grant a permit unless
there is clear and convincing evidence that the
public assembly will create a clear and present
danger to public order, public safety, public
convenience, public morals or public health.
(b) The mayor or any official acting in his behalf

shall act on the application within two (2) working
days from the date the application was filed, failing
which, the permit shall be deemed granted. Should
for any reason the mayor or any official acting in
his behalf refuse to accept the application for a
permit, said application shall be posted by the
applicant on the premises of the office of the
mayor and shall be deemed to have been filed.
(c) If the mayor is of the view that there is

imminent and grave danger of a substantive evil
warranting the denial or modification of the
permit, he shall immediately inform the applicant
who must be heard on the matter.
(d) The action on the permit shall be in writing and

served on the applica[nt] within twenty-four
hours.
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(e) If the mayor or any official acting in his behalf

denies the application or modifies the terms
thereof in his permit, the applicant may contest
the decision in an appropriate court of law.
(f) In case suit is brought before the Metropolitan

Trial Court, the Municipal Trial Court, the
Municipal Circuit Trial Court, the Regional Trial
Court, or the Intermediate Appellate Court, its
decisions may be appealed to the appropriate
court within forty-eight (48) hours after receipt of
the same. No appeal bond and record on appeal
shall be required. A decision granting such permit
or modifying it in terms satisfactory to the
applicant shall be immediately executory.
(g) All cases filed in court under this section shall

be decided within twenty-four (24) hours from
date of filing. Cases filed hereunder shall be
immediately endorsed to the executive judge for
disposition or, in his absence, to the next in rank.
(h) In all cases, any decision may be appealed to

the Supreme Court.
(i) Telegraphic appeals to be followed by formal

appeals are hereby allowed.
It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public assemblies but a restriction
that simply regulates the time, place and manner of the assemblies. This was adverted to in Osmea v.
Comelec, 20 where the Court referred to it as a "content-neutral" regulation of the time, place, and
manner of holding public assemblies. 21
A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public
assemblies 22 that would use public places. The reference to "lawful cause" does not make it content-
based because assemblies really have to be for lawful causes, otherwise they would not be "peaceable"
and entitled to protection. Neither are the words "opinion," "protesting" and "influencing" in the
definition of public assembly content based, since they can refer to any subject. The words "petitioning
the government for redress of grievances" come from the wording of the Constitution, so its use cannot
be avoided. Finally, maximum tolerance is for the protection and benefit of all rallyists and is independent
of the content of the expressions in the rally.
Furthermore, the permit can only be denied on the ground of clear and present danger to public order,
public safety, public convenience, public morals or public health. This is a recognized exception to the
exercise of the right even under the Universal Declaration of Human Rights and the International Covenant
on Civil and Political Rights, thus:
Universal Declaration of Human Rights
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Article 20
1.Everyone has the right to freedom of peaceful assembly and association.
xxx xxx xxx
Article 29
1.Everyone has duties to the community in which alone the free and full development
of his personality is possible.
2.In the exercise of his rights and freedoms, everyone shall be subject only to such
limitations as are determined by law solely for the purpose of securing due recognition
and respect for the rights and freedoms of others and of meeting the just requirements
of morality, public order and the general welfare in a democratic society.
3.These rights and freedoms may in no case be exercised contrary to the purposes and
principles of the United Nations.
The International Covenant on Civil and Political Rights
Article 19.
1.Everyone shall have the right to hold opinions without interference. DSEIcT
2.Everyone shall have the right to freedom of expression; this right shall include
freedom to seek, receive and impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form of art, or through any other
media of his choice.
3.The exercise of the rights provided for in paragraph 2 of this article carries with it
special duties and responsibilities. It may therefore be subject to certain restrictions,
but these shall only be such as are provided by law and are necessary:
(a)For respect of the rights or reputations of others;
(b)For the protection of national security or of public order (ordre public), or of
public health or morals.
Contrary to petitioner's claim, the law is very clear and is nowhere vague in its provisions. "Public" does
not have to be defined. Its ordinary meaning is well-known. Webster's Dictionary defines it, thus: 23
public, n, . . . 2a: an organized body of people . . . 3: a group of people distinguished by
common interests or characteristics . . . .
Not every expression of opinion is a public assembly. The law refers to "rally, demonstration, march,
parade, procession or any other form of mass or concerted action held in a public place." So it does not
cover any and all kinds of gatherings.
Neither is the law overbroad. It regulates the exercise of the right to peaceful assembly and petition only
to the extent needed to avoid a clear and present danger of the substantive evils Congress has the right
to prevent.
There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation.
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As to the delegation of powers to the mayor, the law provides a precise and sufficient standard the
clear and present danger test stated in Sec. 6(a). The reference to "imminent and grave danger of a
substantive evil" in Sec. 6(c) substantially means the same thing and is not an inconsistent standard. As to
whether respondent Mayor has the same power independently under Republic Act No. 7160 24 is thus
not necessary to resolve in these proceedings, and was not pursued by the parties in their arguments.
Finally, for those who cannot wait, Section 15 of the law provides for an alternative forum through the
creation of freedom parks where no prior permit is needed for peaceful assembly and petition at any time:
Sec. 15.Freedom parks. Every city and municipality in the country shall within six
months after the effectivity of this Act establish or designate at least one suitable
"freedom park" or mall in their respective jurisdictions which, as far as practicable, shall
be centrally located within the poblacion where demonstrations and meetings may be
held at any time without the need of any prior permit.
In the cities and municipalities of Metropolitan Manila, the respective mayors shall
establish the freedom parks within the period of six months from the effectivity this
Act.
This brings up the point, however, of compliance with this provision.
The Solicitor General stated during the oral arguments that, to his knowledge, only Cebu City has declared
a freedom park Fuente Osmea. That of Manila, the Sunken Gardens, has since been converted into a
golf course, he added.
If this is so, the degree of observance of B.P. No. 880's mandate that every city and municipality set aside
a freedom park within six months from its effectivity in 1985, or 20 years ago, would be pathetic and
regrettable. The matter appears to have been taken for granted amidst the swell of freedom that rose
from the peaceful revolution of 1986. AaCTcI
Considering that the existence of such freedom parks is an essential part of the law's system of regulation
of the people's exercise of their right to peacefully assemble and petition, the Court is constrained to rule
that after thirty (30) days from the finality of this Decision, no prior permit may be required for the
exercise of such right in any public park or plaza of a city or municipality until that city or municipality shall
have complied with Section 15 of the law. For without such alternative forum, to deny the permit would
in effect be to deny the right. Advance notices should, however, be given to the authorities to ensure
proper coordination and orderly proceedings.
The Court now comes to the matter of the CPR. As stated earlier, the Solicitor General has conceded that
the use of the term should now be discontinued, since it does not mean anything other than the maximum
tolerance policy set forth in B.P. No. 880. This is stated in the Affidavit of respondent Executive Secretary
Eduardo Ermita, submitted by the Solicitor General, thus:
14.The truth of the matter is the policy of "calibrated preemptive response" is in
consonance with the legal definition of "maximum tolerance" under Section 3 (c) of B.P.
Blg. 880, which is the "highest degree of restraint that the military, police and other
peacekeeping authorities shall observe during a public assembly or in the dispersal of
the same." Unfortunately, however, the phrase "maximum tolerance" has acquired a
different meaning over the years. Many have taken it to mean inaction on the part of
law enforcers even in the face of mayhem and serious threats to public order. More so,
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other felt that they need not bother secure a permit when holding rallies thinking this
would be "tolerated." Clearly, the popular connotation of "maximum tolerance" has
departed from its real essence under B.P. Blg. 880.
15.It should be emphasized that the policy of maximum tolerance is provided under the
same law which requires all pubic assemblies to have a permit, which allows the
dispersal of rallies without a permit, and which recognizes certain instances when water
cannons may be used. This could only mean that "maximum tolerance" is not in conflict
with a "no permit, no rally policy" or with the dispersal and use of water cannons under
certain circumstances for indeed, the maximum amount of tolerance required is
dependent on how peaceful or unruly a mass action is. Our law enforcers should
calibrate their response based on the circumstances on the ground with the view to
preempting the outbreak of violence.
16.Thus, when I stated that calibrated preemptive response is being enforced in lieu
of maximum tolerance I clearly was not referring to its legal definition but to the
distorted and much abused definition that it has now acquired. I only wanted to
disabuse the minds of the public from the notion that law enforcers would shirk their
responsibility of keeping the peace even when confronted with dangerously
threatening behavior. I wanted to send a message that we would no longer be lax in
enforcing the law but would henceforth follow it to the letter. Thus I said, "we have
instructed the PNP as well as the local government units to strictly enforce a no
permit, no rally policy . . . arrest all persons violating the laws of the land . . . unlawful
mass actions will be dispersed." None of these is at loggerheads with the letter and
spirit of Batas Pambansa Blg. 880. It is thus absurd for complainants to even claim that
I ordered my co-respondents to violate any law. 25
At any rate, the Court rules that in view of the maximum tolerance mandated by B.P. No. 880, CPR serves
no valid purpose if it means the same thing as maximum tolerance and is illegal if it means something
else. Accordingly, what is to be followed is and should be that mandated by the law itself, namely,
maximum tolerance, which specifically means the following:
SEC. 3.Definition of terms. For purposes of this Act:
xxx xxx xxx
(c)"Maximum tolerance" means the highest degree of restraint that the military, police
and other peace keeping authorities shall observe during a public assembly or in the
dispersal of the same. AEIHaS
xxx xxx xxx
SEC. 9.Non-interference by law enforcement authorities. Law enforcement agencies
shall not interfere with the holding of a public assembly. However, to adequately ensure
public safety, a law enforcement contingent under the command of a responsible police
officer may be detailed and stationed in a place at least one hundred (100) meters away
from the area of activity ready to maintain peace and order at all times.
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SEC. 10.Police assistance when requested. It shall be imperative for law enforcement
agencies, when their assistance is requested by the leaders or organizers, to perform
their duties always mindful that their responsibility to provide proper protection to
those exercising their right peaceably to assemble and the freedom of expression is
primordial. Towards this end, law enforcement agencies shall observe the following
guidelines:
(a)Members of the law enforcement contingent who deal with the demonstrators shall
be in complete uniform with their nameplates and units to which they belong displayed
prominently on the front and dorsal parts of their uniform and must observe the policy
of "maximum tolerance" as herein defined;
(b)The members of the law enforcement contingent shall not carry any kind of firearms
but may be equipped with baton or riot sticks, shields, crash helmets with visor, gas
masks, boots or ankle high shoes with shin guards;
(c)Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be
used unless the public assembly is attended by actual violence or serious threats of
violence, or deliberate destruction of property.
SEC. 11.Dispersal of public assembly with permit. No public assembly with a permit
shall be dispersed. However, when an assembly becomes violent, the police may
disperse such public assembly as follows:
(a)At the first sign of impending violence, the ranking officer of the law enforcement
contingent shall call the attention of the leaders of the public assembly and ask the
latter to prevent any possible disturbance;
(b)If actual violence starts to a point where rocks or other harmful objects from the
participants are thrown at the police or at the non-participants, or at any property
causing damage to such property, the ranking officer of the law enforcement
contingent shall audibly warn the participants that if the disturbance persists, the public
assembly will be dispersed;
(c)If the violence or disturbance prevailing as stated in the preceding subparagraph
should not stop or abate, the ranking officer of the law enforcement contingent shall
audibly issue a warning to the participants of the public assembly, and after allowing a
reasonable period of time to lapse, shall immediately order it to forthwith disperse;
(d)No arrest of any leader, organizer or participant shall also be made during the public
assembly unless he violates during the assembly a law, statute, ordinance or any
provision of this Act. Such arrest shall be governed by Article 125 of the Revised Penal
Code, as amended;
(d)Isolated acts or incidents of disorder or breach of the peace during the public
assembly may be peacefully dispersed.
xxx xxx xxx
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SEC. 12.Dispersal of public assembly without permit. When the public assembly is
held without a permit where a permit is required, the said public assembly may be
peacefully dispersed. CHcTIA
SEC. 13.Prohibited acts. The following shall constitute violations of the Act:
(e)Obstructing, impeding, disrupting or otherwise denying the exercise of the right to
peaceful assembly;
(f)The unnecessary firing of firearms by a member of any law enforcement agency or
any person to disperse the public assembly;
(g)Acts described hereunder if committed within one hundred (100) meters from the
area of activity of the public assembly or on the occasion thereof:
xxx xxx xxx
4.the carrying of firearms by members of the law enforcement unit;
5.the interfering with or intentionally disturbing the holding of a public
assembly by the use of a motor vehicle, its horns and loud sound
systems.
Furthermore, there is need to address the situation adverted to by petitioners where mayors do not act
on applications for a permit and when the police demand a permit and the rallyists could not produce
one, the rally is immediately dispersed. In such a situation, as a necessary consequence and part of
maximum tolerance, rallyists who can show the police an application duly filed on a given date can, after
two days from said date, rally in accordance with their application without the need to show a permit, the
grant of the permit being then presumed under the law, and it will be the burden of the authorities to
show that there has been a denial of the application, in which case the rally may be peacefully dispersed
following the procedure of maximum tolerance prescribed by the law.
In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people, especially
freedom of expression and freedom of assembly. In several policy addresses, Chief Justice Artemio V.
Panganiban has repeatedly vowed to uphold the liberty of our people and to nurture their prosperity. He
said that "in cases involving liberty, the scales of justice should weigh heavily against the government and
in favor of the poor, the oppressed, the marginalized, the dispossessed and the weak. Indeed, laws and
actions that restrict fundamental rights come to the courts with a heavy presumption against their validity.
These laws and actions are subjected to heightened scrutiny." 26
For this reason, the so-called calibrated preemptive response policy has no place in our legal firmament
and must be struck down as a darkness that shrouds freedom. It merely confuses our people and is used
by some police agents to justify abuses. On the other hand, B.P. No. 880 cannot be condemned as
unconstitutional; it does not curtail or unduly restrict freedoms; it merely regulates the use of public
places as to the time, place and manner of assemblies. Far from being insidious, "maximum tolerance" is
for the benefit of rallyists, not the government. The delegation to the mayors of the power to issue rally
"permits" is valid because it is subject to the constitutionally-sound "clear and present danger" standard.
In this Decision, the Court goes even one step further in safeguarding liberty by giving local governments
a deadline of 30 days within which to designate specific freedom parks as provided under B.P. No. 880. If,
after that period, no such parks are so identified in accordance with Section 15 of the law, all public parks
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and plazas of the municipality or city concerned shall in effect be deemed freedom parks; no prior permit
of whatever kind shall be required to hold an assembly therein. The only requirement will be written
notices to the police and the mayor's office to allow proper coordination and orderly activities.
WHEREFORE, the petitions are GRANTED in part, and respondents, more particularly the Secretary of the
Interior and Local Governments, are DIRECTED to take all necessary steps for the immediate compliance
with Section 15 of Batas Pambansa No. 880 through the establishment or designation of at least one
suitable freedom park or plaza in every city and municipality of the country. After thirty (30) days from
the finality of this Decision, subject to the giving of advance notices, no prior permit shall be required to
exercise the right to peaceably assemble and petition in the public parks or plazas of a city or municipality
that has not yet complied with Section 15 of the law. Furthermore, Calibrated Preemptive Response
(CPR), insofar as it would purport to differ from or be in lieu of maximum tolerance, is NULL and VOID and
respondents are ENJOINED to REFRAIN from using it and to STRICTLY OBSERVE the requirements of
maximum tolerance. The petitions are DISMISSED in all other respects, and the CONSTITUTIONALITY
of Batas Pambansa No. 880 is SUSTAINED. THcaDA
No costs.
SO ORDERED.
||| (Bayan v. Ermita, G.R. No. 169838, 169848, 169881, [April 25, 2006], 522 PHIL 201-241)
SUPREME COURT CIRCULAR A.M. 98-7-02-SC

IBP VS. ATIENZA 613 SCRA 518 (2010)
INTEGRATED BAR OF THE PHILIPPINES represented by its National President, Jose

Anselmo I. Cadiz, H. HARRY L. ROQUE, and JOEL RUIZ BUTUYAN, petitioners, vs.
HONORABLE MANILA MAYOR JOSE "LITO" ATIENZA, respondent.
DECISION
CARPIO MORALES, J p:
Petitioners Integrated Bar of the Philippines 1 (IBP) and lawyers H. Harry L. Roque and Joel R.
Butuyan appeal the June 28, 2006 Decision 2 and the October 26, 2006 Resolution 3 of the Court of
Appeals that found no grave abuse of discretion on the part of respondent Jose "Lito" Atienza, the
then mayor of Manila, in granting a permit to rally in a venue other than the one applied for by the
IBP.
On June 15, 2006, the IBP, through its then National President Jose Anselmo Cadiz (Cadiz),
filed with the Office of the City Mayor of Manila a letter application 4 for a permit to rally at the foot
of Mendiola Bridge on June 22, 2006 from 2:30 p.m. to 5:30 p.m. to be participated in by IBP officers
and members, law students and multi-sectoral organizations.
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Respondent issued a permit 5 dated June 16, 2006 allowing the IBP to stage a rally on given
date but indicated therein Plaza Miranda as the venue, instead of Mendiola Bridge, which permit the
IBP received on June 19, 2006.
Aggrieved, petitioners filed on June 21, 2006 before the Court of Appeals a petition
for certiorari docketed as CA-G.R. SP No. 94949. 6 The petition having been unresolved within 24
hours from its filing, petitioners filed before this Court on June 22, 2006 a petition
for certiorari docketed as G.R. No. 172951 which assailed the appellate court's inaction or refusal to
resolve the petition within the period provided under the Public Assembly Act of 1985. 7
The Court, by Resolutions of July 26, 2006, August 30, 2006 and November 20, 2006,
respectively, denied the petition for being moot and academic, denied the relief that the petition be
heard on the merits in view of the pendency of CA-G.R. SP No. 94949, and denied the motion for
reconsideration. EaHcDS
The rally pushed through on June 22, 2006 at Mendiola Bridge, after Cadiz discussed with
P/Supt. Arturo Paglinawan whose contingent from the Manila Police District (MPD) earlier barred
petitioners from proceeding thereto. Petitioners allege that the participants voluntarily dispersed
after the peaceful conduct of the program.
The MPD thereupon instituted on June 26, 2006 a criminal action, 8 docketed as I.S. No. 06I-
12501, against Cadiz for violating the Public Assembly Act in staging a rally at a venue not indicated in
the permit, to which charge Cadiz filed a Counter-Affidavit of August 3, 2006.
In the meantime, the appellate court ruled, in CA-G.R. SP No. 94949, by the first assailed
issuance, that the petition became moot and lacked merit. The appellate court also denied petitioners'
motion for reconsideration by the second assailed issuance.
Hence, the filing of the present petition for review on certiorari, to which respondent filed his
Comment of November 18, 2008 which merited petitioners' Reply of October 2, 2009.
The main issue is whether the appellate court erred in holding that the modification of the
venue in IBP's rally permit does not constitute grave abuse of discretion.
Petitioners assert that the partial grant of the application runs contrary to the Pubic Assembly
Act and violates their constitutional right to freedom of expression and public assembly.
The Court shall first resolve the preliminary issue of mootness.
Undoubtedly, the petition filed with the appellate court on June 21, 2006 became moot upon
the passing of the date of the rally on June 22, 2006.
A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events, so that a declaration thereon would be of no practical use or value. Generally,
courts decline jurisdiction over such case or dismiss it on ground of mootness. However, even in cases
where supervening events had made the cases moot, this Court did not hesitate to resolve the legal
or constitutional issues raised to formulate controlling principles to guide the bench, bar and public.
Moreover, as an exception to the rule on mootness, courts will decide a question otherwise moot if it
is capable of repetition, yet evading review. 9 aACEID
In the present case, the question of the legality of a modification of a permit to rally will arise
each time the terms of an intended rally are altered by the concerned official, yet it evades review,
owing to the limited time in processing the application where the shortest allowable period is five
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BOLD BUT FAITHFUL
days prior to the assembly. The susceptibility of recurrence compels the Court to definitively resolve
the issue at hand.
Respecting petitioners' argument that the issues presented in CA-G.R. SP No. 94949 pose a
prejudicial question to the criminal case against Cadiz, the Court finds it improper to resolve the same
in the present case.
Under the Rules, 10 the existence of a prejudicial question is a ground in a petition to suspend
proceedings in a criminal action. Since suspension of the proceedings in the criminal action may be
made only upon petition and not at the instance of the judge or the investigating prosecutor, 11 the
latter cannot take cognizance of a claim of prejudicial question without a petition to suspend being
filed. Since a petition to suspend can be filed only in the criminal action, 12 the determination of the
pendency of a prejudicial question should be made at the first instance in the criminal action, and not
before this Court in an appeal from the civil action.
In proceeding to resolve the petition on the merits, the appellate court found no grave abuse
of discretion on the part of respondent because the Public Assembly Act does not categorically require
respondent to specify in writing the imminent and grave danger of a substantive evil which warrants
the denial or modification of the permit and merely mandates that the action taken shall be in writing
and shall be served on respondent within 24 hours. The appellate court went on to hold that
respondent is authorized to regulate the exercise of the freedom of expression and of public assembly
which are not absolute, and that the challenged permit is consistent with Plaza Miranda's designation
as a freedom park where protest rallies are allowed without permit.
The Court finds for petitioners.
Section 6 of the Public Assembly Act reads:
Section 6. Action to be taken on the application.
(a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant
a permit unless there is clear and convincing evidence that the public assembly will
create a clear and present danger to public order, public safety, public convenience,
public morals or public health. DacASC
(b) The mayor or any official acting in his behalf shall act on the application within two
(2) working days from the date the application was filed, failing which, the permit shall
be deemed granted. Should for any reason the mayor or any official acting in his behalf
refuse to accept the application for a permit, said application shall be posted by the
applicant on the premises of the office of the mayor and shall be deemed to have been
filed.
(c) If the mayor is of the view that there is imminent and grave danger of a substantive
evil warranting the denial or modification of the permit, he shall immediately inform
the applicant who must be heard on the matter.
(d) The action on the permit shall be in writing and served on the application [sic] within
twenty-four hours.
(e) If the mayor or any official acting in his behalf denies the application or modifies the
terms thereof in his permit, the applicant may contest the decision in an appropriate
court of law.
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(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court,
the Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate
Court, its decisions may be appealed to the appropriate court within forty-eight (48)
hours after receipt of the same. No appeal bond and record on appeal shall be
required. A decision granting such permit or modifying it in terms satisfactory to the
applicant shall, be immediately executory.
(g) All cases filed in court under this Section shall be decided within twenty-four (24)
hours from date of filing. Cases filed hereunder shall be immediately endorsed to the
executive judge for disposition or, in his absence, to the next in rank.
(h) In all cases, any decision may be appealed to the Supreme Court.
(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.
(underscoring supplied)
In Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP) v. Ermita, 13 the Court
reiterated:
. . . Freedom of assembly connotes the right of the people to meet peaceably for
consultation and discussion of matters of public concern. It is entitled to be accorded
the utmost deference and respect. It is not to be limited, much less denied, except on
a showing, as is the case with freedom of expression, of a clear and present danger of
a substantive evil that the state has a right to prevent. Even prior to the 1935
Constitution, Justice Malcolm had occasion to stress that it is a necessary consequence
of our republican institutions and complements the right of free speech. To paraphrase
the opinion of Justice Rutledge, speaking for the majority of the American Supreme
Court in Thomas v. Collins, it was not by accident or coincidence that the rights to
freedom of speech and of the press were coupled in a single guarantee with the rights
of the people peaceably to assemble and to petition the government for redress of
grievances. All these rights, while not identical, are inseparable. In every case,
therefore, where there is a limitation placed on the exercise of this right, the judiciary
is called upon to examine the effects of the challenged governmental actuation. The
sole justification for a limitation on the exercise of this right, so fundamental to the
maintenance of democratic institutions, is the danger, of a character both grave and
imminent, of a serious evil to public safety, public morals, public health, or any other
legitimate public interest. 14(emphasis supplied) HDTcEI
The Court in Bayan stated that the provisions of the Public Assembly Act of 1985 practically
codified the 1983 ruling in Reyes v. Bagatsing. 15 In juxtaposing Sections 4 to 6 of the Public Assembly
Act with the pertinent portion of the Reyes case, the Court elucidated as follows:
. . . [The public official concerned shall] appraise whether there may be valid objections
to the grant of the permit or to its grant but at another public place. It is an
indispensable condition to such refusal or modification that the clear and present
danger test be the standard for the decision reached. If he is of the view that there is
such an imminent and grave danger of a substantive evil, the applicants must be heard
on the matter. Thereafter, his decision, whether favorable or adverse, must be
transmitted to them at the earliest opportunity. Thus if so minded, they can have
recourse to the proper judicial authority. 16 (italics and underscoring supplied)
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In modifying the permit outright, respondent gravely abused his discretion when he did not
immediately inform the IBP who should have been heard first on the matter of his perceived imminent
and grave danger of a substantive evil that may warrant the changing of the venue. The opportunity
to be heard precedes the action on the permit, since the applicant may directly go to court after an
unfavorable action on the permit.
Respondent failed to indicate how he had arrived at modifying the terms of the permit against
the standard of a clear and present danger test which, it bears repeating, is an indispensable condition
to such modification. Nothing in the issued permit adverts to an imminent and grave danger of a
substantive evil, which "blank" denial or modification would, when granted imprimatur as the
appellate court would have it, render illusory any judicial scrutiny thereof.
It is true that the licensing official, here respondent Mayor, is not devoid of discretion
in determining whether or not a permit would be granted. It is not, however, unfettered
discretion. While prudence requires that there be a realistic appraisal not of what may
possibly occur but of what may probably occur, given all the relevant circumstances, still
the assumption especially so where the assembly is scheduled for a specific public
place is that the permit must be for the assembly being held there. The exercise of
such a right, in the language of Justice Roberts, speaking for the American Supreme
Court, is not to be "abridged on the plea that it may be exercised in some other
place." 17 (emphasis and underscoring supplied)
Notably, respondent failed to indicate in his Comment any basis or explanation for his action.
It smacks of whim and caprice for respondent to just impose a change of venue for an assembly that
was slated for a specific public place. It is thus reversible error for the appellate court not to have
found such grave abuse of discretion and, under specific statutory provision, not to have modified the
permit "in terms satisfactory to the applicant." 18 aATCDI
WHEREFORE, the assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No.
94949 are REVERSED. The Court DECLARES that respondent committed grave abuse of discretion in
modifying the rally permit issued on June 16, 2006 insofar as it altered the venue from Mendiola
Bridge to Plaza Miranda.
SO ORDERED.
||| (Integrated Bar of the Philippines v. Atienza, G.R. No. 175241, [February 24, 2010])
1. Freedom of association and the right to strike

in the public sector
Art. III, sec. 8
Art. IX, sec. 2(5)
Art. XIII, sec. 3, par. 2
CASE - GSIS VS. KAPISANAN NG MGA MANGGAGAWA 510 SCRA 622
(2006)
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BOLD BUT FAITHFUL
GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS) and WINSTON F. GARCIA, in his

capacity as GSIS President & General Manager, petitioners, vs. KAPISANAN NG MGA
MANGGAGAWA SA GSIS, respondent.
DECISION
GARCIA, J p:
In this petition for review on certiorari under Rule 45 of the Rules of Court, the Government Service
Insurance System (GSIS) and its President and General Manager Winston F. Garcia (Garcia, for short) assail
and seek to nullify the Decision 1 dated June 16, 2005 of the Court of Appeals (CA) in CA-G.R. SP No. 87220,
as reiterated in its Resolution 2 of October 18, 2005 denying Garcia's motion for reconsideration.
The recourse is cast against the following setting:
A four-day October 2004 concerted demonstration, rallies and en masse walkout waged/held in front of
the GSIS main office in Roxas Boulevard, Pasay City, started it all. Forming a huge part of the October 4 to
October 7, 2004 mass action participants were GSIS personnel, among them members of the herein
respondent Kapisanan Ng Mga Manggagawa sa GSIS ("KMG" or the "Union"), a public sector union of GSIS
rank-and-file employees. Contingents from other government agencies joined causes with the GSIS group.
The mass action's target appeared to have been herein petitioner Garcia and his management style. While
the Mayor of Pasay City allegedly issued a rally permit, the absence of the participating GSIS employees
was not covered by a prior approved leave. 3
On or about October 10, 2004, the manager of the GSIS Investigating Unit issued a memorandum directing
131 union and non-union members to show cause why they should not be charged administratively for
their participation in said rally. In reaction, KMG's counsel, Atty. Manuel Molina, sought reconsideration
of said directive on the ground, among others, that the subject employees resumed work on October 8,
2004 in obedience to the return-to-work order thus issued. The plea for reconsideration was, however,
effectively denied by the filing, on October 25, 2004, of administrative charges against some 110 KMG
members for grave misconduct and conduct prejudicial to the best interest of the service. 4
What happened next is summarized by the CA in its challenged decision of June 16, 2005, albeit the herein
petitioners would except from some of the details of the appellate court's narration:
Ignoring said formal charges, KMG, thru its President, Albert Velasco, commenced the
instant suit on November 2, 2004, with the filing of the Petition for Prohibition at bench.
On the ground that its members should not be made to explain why they supported
their union's cause, petitioner [KMG] faulted respondent [Garcia] with blatant disregard
of Civil Service Resolution No. 021316, otherwise known as the Guidelines for
Prohibited Mass Action, Section 10 of which exhorts government agencies to "harness
all means within their capacity to accord due regard and attention to employees'
grievances and facilitate their speedy and amicable disposition through the use of
grievance machinery or any other modes of settlement sanctioned by law and existing
civil service rules." Two supplements to the foregoing petition were eventually filed by
KMG. The first, . . . apprised [the CA] of the supposed fact that its Speaker, Atty. Molina,
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had been placed under preventive suspension for 90 days and that the formal charges
thus filed will not only deprive its members of the privileges and benefits due them but
will also disqualify them from promotion, step increment adjustments and receipt of
monetary benefits, including their 13th month pay and Christmas bonuses. The second,
. . . manifested that, on December 17, 2004, respondent [Garcia] served a spate of
additional formal charges against 230 of KMG's members for their participation in the
aforesaid grievance demonstrations. SacDIE
In his December 14, 2004 comment to the foregoing petition, respondent [Garcia]
averred that the case at bench was filed by an unauthorized representative in view of
the fact that Albert Velasco had already been dropped from the GSIS rolls and, by said
token, had ceased to be a member much less the President of KMG. Invoking the
rule against forum shopping, respondent [Garcia] called [the CA's] attention to the
supposed fact that the allegations in the subject petition merely duplicated those
already set forth in two petitions for certiorari and prohibition earlier filed by Albert
Velasco . . . Because said petitions are, in point of fact, pending before this court as CA-
G.R. SP Nos. 86130 and 86365, respondent [Garcia] prayed for the dismissal of the
petition at bench . . . . 5 (Words in bracket added.)
It appears that pending resolution by the CA of the KMG petition for prohibition in this case, the GSIS
management proceeded with the investigation of the administrative cases filed. As represented in a
pleading before the CA, as of May 18, 2005, two hundred seven (207) out of the two hundred seventy
eight (278) cases filed had been resolved, resulting in the exoneration of twenty (20) respondent-
employees, the reprimand of one hundred eighty two (182) and the suspension for one month of five
(5). 6
On June 16, 2005, the CA rendered the herein assailed decision 7 holding that Garcia's "filing of
administrative charges against 361 of [KMG's] members is tantamount to grave abuse of discretion which
may be the proper subject of the writ of prohibition."Dispositively, the decision reads:
WHEREFORE, premises considered, the petition [of KMG] is GRANTED and respondent
[Winston F. Garcia] is hereby PERPETUALLY ENJOINED from implementing the issued
formal charges and from issuing other formal charges arising from the same facts and
events.
SO ORDERED. (Emphasis in the original)
Unable to accept the above ruling and the purported speculative factual and erroneous legal premises
holding it together, petitioner Garcia sought reconsideration. In its equally assailed Resolution 8 of
October 18, 2005, however, the appellate court denied reconsideration of its decision.
Hence, this recourse by the petitioners ascribing serious errors on the appellate court in granting the
petition for prohibition absent an instance of grave abuse of authority on their part.
We resolve to GRANT the petition.
It should be stressed right off that the civil service encompasses all branches and agencies of the
Government, including government-owned or controlled corporations (GOCCs) with original charters, like
the GSIS, 9 or those created by special law. 10 As such, employees of covered GOCCs are part of the civil
service system and are subject to circulars, rules and regulations issued by the Civil Service Commission
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(CSC) on discipline, attendance and general terms/conditions of employment, inclusive of matters

involving self-organization, strikes, demonstrations and like concerted actions. In fact, policies established
on public sector unionism and rules issued on mass action have been noted and cited by the Court in at
least a case. 11 Among these issuances is Executive Order (EO) No. 180, series of 1987, providing
guidelines for the exercise of the right to organize of government employees. Relevant also is CSC
Resolution No. 021316 which provides rules on prohibited concerted mass actions in the public sector.
There is hardly any dispute about the formal charges against the 278 affected GSIS employees a mix of
KMG union and non-union members having arose from their having gone on unauthorized leave of
absence (AWOL) for at least a day or two in the October 4 to 7, 2004 stretch to join the ranks of the
demonstrators/rallyists at that time. As stated in each of the formal charges, the employee's act of
attending, joining, participating and taking part in the strike/rally is a transgression of the rules on strike
in the public sector. The question that immediately comes to the fore, therefore, is whether or not the
mass action staged by or participated in by said GSIS employees partook of a strike or prohibited concerted
mass action. If in the affirmative, then the denounced filing of the administrative charges would be prima
facie tenable, inasmuch as engaging in mass actions resulting in work stoppage or service disruption
constitutes, in the minimum, the punishable offense of acting prejudicial to the best interest of the
service. 12 If in the negative, then such filing would indeed smack of arbitrariness and justify the issuance
of a corrective or preventive writ. aTEAHc
Petitioners assert that the filing of the formal charges are but a natural consequence of the service-
disrupting rallies and demonstrations staged during office hours by the absenting GSIS employees, there
being appropriate issuances outlawing such kinds of mass action. On the other hand, the CA, agreeing
with the respondent's argument, assumed the view and held that the organized demonstrating employees
did nothing more than air their grievances in the exercise of their "broader rights of free
expression" 13 and are, therefore, not amenable to administrative sanctions. For perspective, following
is what the CA said:
Although the filing of administrative charges against [respondent KMG's] members is
well within [petitioner Garcia's] official [disciplinary] prerogatives, [his] exercise of the
power vested under Section 45 of Republic Act No. 8291 was tainted with arbitrariness
and vindictiveness against which prohibition was sought by [respondent]. . . . the fact
that the subject mass demonstrations were directed against [Garcia's] supposed
mismanagement of the financial resources of the GSIS, by and of itself, renders the filing
of administrative charges against [KMG's] member suspect. More significantly, we find
the gravity of the offenses and the sheer number of persons . . . charged
administratively to be, at the very least, antithetical to the best interest of the service.
...
It matters little that, instead of the 361 alleged by petitioner, only 278 charges were
actually filed [and] in the meantime, disposed of and of the said number, 20 resulted to
exoneration, 182 to reprimand and 5 to the imposition of a penalty of one month
suspension. Irrespective of their outcome, the severe penalties prescribed for the
offense with which petitioner's members were charged, to our mind, bespeak of
bellicose and castigatory reaction . . . . The fact that most of the employees [Garcia]
administratively charged were eventually meted with what appears to be a virtual slap
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on the wrist even makes us wonder why respondent even bothered to file said charges
at all. . . . .
Alongside the consequences of the right of government employees to form, join or
assist employees organization, we have already mentioned how the broader rights
of free expressioncast its long shadow over the case. . . . we find [petitioner Garcia's]
assailed acts, on the whole, anathema to said right which has been aptly characterized
as preferred, one which stands on a higher level than substantive economic and other
liberties, the matrix of other important rights of our people. . . . . 14 (Underscoring and
words in bracket added; citations omitted.)
While its decision and resolution do not explicitly say so, the CA equated the right to form associations
with the right to engage in strike and similar activities available to workers in the private sector. In the
concrete, the appellate court concluded that inasmuch as GSIS employees are not barred from forming,
joining or assisting employees' organization, petitioner Garcia could not validly initiate charges against
GSIS employees waging or joining rallies and demonstrations notwithstanding the service-disruptive
effect of such mass action. Citing what Justice Isagani Cruz said in Manila Public School Teachers
Association [MPSTA] v. Laguio, Jr., 15 the appellate court declared:
It is already evident from the aforesaid provisions of Resolution No. 021316 that
employees of the GSIS are not among those specifically barred from forming, joining or
assisting employees organization such as [KMG]. If only for this ineluctable fact, the
merit of the petition at bench is readily discernible. 16
We are unable to lend concurrence to the above CA posture. For, let alone the fact that it ignores what
the Court has uniformly held all along, the appellate court's position is contrary to what Section 4 in
relation to Section 5 of CSC Resolution No. 021316 17 provides. Besides, the appellate court's invocation
of Justice Cruz's opinion in MPSTA is clearly off-tangent, the good Justice's opinion thereat being a dissent.
It may be, as the appellate court urged that the freedom of expression and assembly and the right to
petition the government for a redress of grievances stand on a level higher than economic and other
liberties. Any suggestion, however, about these rights as including the right on the part of government
personnel to strike ought to be, as it has been, trashed. We have made this abundantly clear in our past
determinations. For instance, in Alliance of Government Workers v. Minister of Labor and
Employment, 18 a case decided under the aegis of the 1973 Constitution, an en banc Court declared that
it would be unfair to allow employees of government corporations to resort to concerted activity with the
ever present threat of a strike to wring benefits from Government. Then came the 1987
Constitution expressly guaranteeing, for the first time, the right of government personnel to self-
organization 19 to complement the provision according workers the right to engage in "peaceful
concerted activities, including the right to strike in accordance with law." 20
It was against the backdrop of the aforesaid provisions of the 1987 Constitution that the Court
resolved Bangalisan v. Court of Appeals. 21 In it, we held, citing MPSTA v. Laguio, Jr., 22 that employees
in the public service may not engage in strikes or in concerted and unauthorized stoppage of work; that
the right of government employees to organize is limited to the formation of unions or associations,
without including the right to strike. ICESTA
Jacinto v. Court of Appeals 23 came next and there we explained:
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Specifically, the right of civil servants to organize themselves was positively recognized
in Association of Court of Appeals Employees vs. Ferrer-Caleja. But, as in the exercise of
the rights of free expression and of assembly, there are standards for allowable
limitations such as the legitimacy of the purpose of the association, [and] the overriding
considerations of national security . . . .
As regards the right to strike, the Constitution itself qualifies its exercise with the
provision "in accordance with law." This is a clear manifestation that the state may, by
law, regulate the use of this right, or even deny certain sectors such right. Executive
Order 180 which provides guidelines for the exercise of the right of government
workers to organize, for instance, implicitly endorsed an earlier CSC circular which
"enjoins under pain of administrative sanctions, all government officers and employees
from staging strikes, demonstrations, mass leaves, walkouts and other forms of mass
action which will result in temporary stoppage or disruption of public service" by stating
that the Civil Service law and rules governing concerted activities and strikes in
government service shall be observed. (Emphasis and words in bracket added; citations
omitted)
And in the fairly recent case of Gesite v. Court of Appeals, 24 the Court defined the limits of the right of
government employees to organize in the following wise:
It is relevant to state at this point that the settled rule in this jurisdiction is that
employees in the public service may not engage in strikes, mass leaves, walkouts, and
other forms of mass action that will lead in the temporary stoppage or disruption of
public service. The right of government employees to organize is limited to the
formation of unions or associations only, without including the right to strike,
adding that public employees going on disruptive unauthorized absences to join concerted mass
actions may be held liable for conduct prejudicial to the best interest of the service.
Significantly, 1986 Constitutional Commission member Eulogio Lerum, answering in the negative the
poser of whether or not the right of government employees to self-organization also includes the right to
strike, stated:
When we proposed this amendment providing for self organization of government
employees, it does not mean that because they have the right to organize, they have
also the right to strike. That is a different matter. . . . 25
With the view we take of the events that transpired on October 4-7, 2004, what respondent's members
launched or participated in during that time partook of a strike or, what contextually amounts to the same
thing, a prohibited concerted activity. The phrase "prohibited concerted activity" refers to any collective
activity undertaken by government employees, by themselves or through their employees' organization,
with the intent of effecting work stoppage or service disruption in order to realize their demands or force
concessions, economic or otherwise; it includes mass leaves, walkouts, pickets and acts of similar
nature. 26 Indeed, for four straight days, participating KMG members and other GSIS employees staged a
walk out and waged or participated in a mass protest or demonstration right at the very doorstep of the
GSIS main office building. The record of attendance 27 for the period material shows that, on the first day
of the protest, 851 employees, or forty eight per cent (48%) of the total number of employees in the main
office (1,756) took to the streets during office hours, from 6 a.m. to 2 p.m., 28 leaving the other employees
to fend for themselves in an office where a host of transactions take place every business day. On the
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second day, 707 employees left their respective work stations, while 538 participated in the mass action
on the third day. A smaller number, i.e., 306 employees, but by no means an insignificant few, joined the
fourth day activity. ACETID
To say that there was no work disruption or that the delivery of services remained at the usual level of
efficiency at the GSIS main office during those four (4) days of massive walkouts and wholesale absences
would be to understate things. And to place the erring employees beyond the reach of administrative
accountability would be to trivialize the civil service rules, not to mention the compelling spirit of
professionalism exacted of civil servants by the Code of Conduct and Ethical Standards for Public Officials
and Employees. 29
The appellate court made specific reference to the "parliament of the streets," obviously to lend
concurrence to respondent's pretension that the gathering of GSIS employees on October 4-7, 2004 was
an "assembly of citizens" out only to air grievances, not a striking crowd. According to the respondent, a
strike presupposes a mass action undertaken to press for some economic demands or secure additional
material employment benefits.
We are not convinced.
In whatever name respondent desires to call the four-day mass action in October 2004, the stubborn fact
remains that the erring employees, instead of exploring non-crippling activities during their free time, had
taken a disruptive approach to attain whatever it was they were specifically after. As events evolved, they
assembled in front of the GSIS main office building during office hours and staged rallies and protests, and
even tried to convince others to join their cause, thus provoking work stoppage and service-delivery
disruption, the very evil sought to be forestalled by the prohibition against strikes by government
personnel. 30
The Court can concede hypothetically that the protest rally and gathering in question did not involve some
specific material demand. But then the absence of such economic-related demand, even if true, did not,
under the premises, make such mass action less of a prohibited concerted activity. For, as articulated
earlier, any collective activity undertaken by government employees with the intent of effecting work
stoppage or service disruption in order to realize their demands or force concessions, economic or
otherwise, is a prohibited concerted mass action 31 and doubtless actionable
administratively. Bangalisan even went further to say the following: "[i]n the absence of statute, public
employees do not have the right to engage in concerted work stoppages for any purpose."
To petitioner Garcia, as President and General Manager of GSIS, rests the authority and responsibility,
under Section 45 of Republic Act No. 8291, the GSIS Act of 1997, to remove, suspend or otherwise
discipline GSIS personnel for cause. 32 At bottom then, petitioner Garcia, by filing or causing the filing of
administrative charges against the absenting participants of the October 4-7, 2004 mass action, merely
performed a duty expected of him and enjoined by law. Regardless of the mood petitioner Garcia was in
when he signed the charge sheet, his act can easily be sustained as legally correct and doubtless within
his jurisdiction.
It bears to reiterate at this point that the GSIS employees concerned were proceeded against and
eventually either exonerated, reprimanded or meted a one-month suspension, as the case may be not
for the exercise of their right to assemble peacefully and to petition for redress of grievance, but for
[1729]
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engaging in what appeared to be a prohibited concerted activity. Respondent no less admitted that its
members and other GSIS employees might have disrupted public service. 33
To be sure, arbitrariness and whimsical exercise of power or, in fine, grave abuse of discretion on the part
of petitioner Garcia cannot be simplistically inferred from the sheer number of those charged as well as
the gravity or the dire consequences of the charge of grave misconduct and conduct prejudicial to the
best interest of the service, as the appellate court made it to appear. The principle of accountability
demands that every erring government employee be made answerable for any malfeasance or
misfeasance committed. And lest it be overlooked, the mere filing of formal administrative case,
regardless of the gravity of the offense charged, does not overcome the presumptive innocence of the
persons complained of nor does it shift the burden of evidence to prove guilt of an administrative offense
from the complainant.
Moreover, the Court invites attention to its holding in MPSTA v. Laguio, Jr., a case involving over 800 public
school teachers who took part in mass actions for which the then Secretary of Education filed
administrative complaints on assorted charges, such as gross misconduct. Of those charged, 650 were
dismissed and 195 suspended for at least six (6) months The Court, however, did not consider the element
of number of respondents thereat and/or the dire consequences of the charge/s as fatally vitiating or
beclouding the bona fides of the Secretary of Education's challenged action. Then as now, the Court finds
the filing of charges against a large number of persons and/or the likelihood that they will be suspended
or, worse, dismissed from the service for the offense as indicating a strong and clear case of grave abuse
of authority to justify the issuance of a writ of prohibition. aATHIE
The appellate court faulted petitioner Garcia for not first taping existing grievance machinery and other
modes of settlement agreed upon in the GSIS-KMG Collective Negotiations Agreement (CAN) before going
full steam ahead with his formal charges. 34
The Court can plausibly accord cogency to the CA's angle on grievance procedure but for the fact that it
conveniently disregarded what appears to be the more relevant provision of the CNA. We refer to Article
VI which reads:
The GSIS Management and the KMG have mutually agreed to promote the principle of
shared responsibility . . . on all matters and decisions affecting the rights, benefits and
interests of all GSIS employees . . . . Accordingly, . . . the parties also mutually agree
that the KMG shall not declare a strike nor stage any concerted action which will disrupt
public service and the GSIS management shall not lockout employees who are members
of the KMG during the term of this agreement. GSIS Management shall also respect the
rights of the employees to air their sentiments through peaceful concerted activities
during allowable hours, subject to reasonable office rules . . . . 35 (Underscoring added)
If the finger of blame, therefore, is to be pointed at someone for non-exhaustion of less confrontational
remedies, it should be at the respondent union for spearheading a concerted mass action without
resorting to available settlement mechanism. As it were, it was KMG, under Atty. Alberto Velasco, which
opened fire first. That none of the parties bothered to avail of the grievance procedures under the GSIS-
KMG CNA should not be taken against the GSIS. At best, both GSIS management and the Union should be
considered as in pari delicto.
With the foregoing disquisitions, the Court finds it unnecessary to discuss at length the legal standing of
Alberto Velasco to represent the herein respondent union and to initiate the underlying petition for
[1730]
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prohibition. Suffice it to state that Velasco, per Joint Resolution No. 04-10-01 approved on October 5,
2004 by the KMG Joint Executive-Legislative Assembly, had ceased to be member, let alone president, of
the KMG, having previously been dropped from the rolls of GSIS employees. 36 While the dropping from
the rolls is alleged to have been the subject of a CA-issued temporary restraining order (TRO), the
injunction came after Atty. Velasco had in fact been separated from the service and it appears that the
TRO had already expired.
As a final consideration, the Court notes or reiterates the following relevant incidents surrounding the
disposition of the case below:
1. The CA had invoked as part of its ratio decidendi a dissenting opinion in MPSTA, even
going to the extent of describing as "instructive and timely" a portion, when the
majority opinion thereat, which the appellate court ignored, is the controlling
jurisprudence.
2. The CA gave prominence to dispositions and rattled off holdings 37 of the Court,
which appropriately apply only to strikes in the private industry labor sector, and
utilized the same as springboard to justify an inference of grave abuse of discretion. On
the other hand, it only gave perfunctory treatment if not totally ignored jurisprudence
that squarely dealt with strikes in the public sector, as if the right to strike given to
unions in private corporations/entities is necessarily applicable to civil service
employees.
3. As couched, the assailed CA decision perpetually bars respondent Garcia and
necessarily whoever succeeds him as GSIS President not only from implementing the
formal charges against GSIS employees who participated in the October 4-7, 2004 mass
action but also from issuing other formal charges arising from the same events. The
injunction was predicated on a finding that grave abuse of discretion attended the
exercise of petitioner Garcia's disciplinary power vested him under Section 45 of RA
8291. 38 At bottom then, the assailed decision struck down as a nullity, owing to the
alleged attendant arbitrariness, not only acts that have already been done, but those
yet to be done. In net effect, any formal charge arising from the October 4-7, 2004
incident is, under any and all circumstances, prejudged as necessarily tainted with
arbitrariness to be slain at sight.
The absurdities and ironies easily deducible from the foregoing situations are not lost on the
Court. HEacAS
We close with the observation that the assailed decision and resolution, if allowed to remain undisturbed,
would likely pave the way to the legitimization of mass actions undertaken by civil servants, regardless of
their deleterious effects on the interest of the public they have sworn to serve with loyalty and efficiency.
Worse still, it would permit the emergence of a system where public sector workers are, as the petitioners
aptly put it, "immune from the minimum reckoning for acts that [under settled jurisprudence] are
concededly unlawful." This aberration would be intolerable.
WHEREFORE, the assailed Decision and Resolution of the Court of Appeals are REVERSED and SET ASIDE
and the writ of prohibition issued by that court is NULLIFIED.
No Cost.
[1731]
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SO ORDERED.
||| (Government Service Insurance System v. Kapisanan ng mga Manggagawa sa GSIS, G.R. No. 170132,
[December 6, 2006], 539 PHIL 677-698)
GSIS VS. VILLARIZA 625 SCRA 669 (2010)
GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS) and WINSTON F. GARCIA, in his

capacity as PRESIDENT and GENERAL MANAGER of the GSIS, petitioners, vs. DINNAH
VILLAVIZA, ELIZABETH DUQUE, ADRONICO A. ECHAVEZ, RODEL RUBIO, ROWENA
THERESE B. GRACIA, PILAR LAYCO, and ANTONIO JOSE LEGARDA,respondents.
DECISION
MENDOZA, J p:
This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking to
reverse and set aside the August 31, 2007 Decision 1 of the Court of Appeals (CA), in CA-G.R. SP No.
98952, dismissing the petition for certiorari of Government Service Insurance System (GSIS) assailing
the Civil Service Commission's Resolution No. 062177.
THE FACTS:
Petitioner Winston Garcia (PGM Garcia), as President and General Manager of the GSIS, filed
separate formal charges against respondents Dinnah Villaviza, Elizabeth Duque, Adronico A. Echavez,
Rodel Rubio, Rowena Therese B. Gracia, Pilar Layco, and Antonio Jose Legarda for Grave Misconduct
and/or Conduct Prejudicial to the Best Interest of the Service pursuant to the Rules of Procedure in
Administrative Investigation (RPAI) of GSIS Employees and Officials, III, D, (1, c, f) in relation to Section
52A (3), (20), Rule IV, of the Uniform Rules on Administrative Cases in the Civil Service (URACCS), in
accordance with Book V of the Administrative Code of 1987, committed as follows:
That on 27 May 2005, respondent, wearing red shirt together with some employees,
marched to or appeared simultaneously at or just outside the office of the Investigation
Unit in a mass demonstration/rally of protest and support for Messrs. Mario Molina and
Albert Velasco, the latter having surreptitiously entered the GSIS premises;
xxx xxx xxx
That some of these employees badmouthed the security guards and the GSIS
management and defiantly raised clenched fists led by Atty. Velasco who was barred by
Hearing Officer Marvin R. Gatpayat in an Order dated 24 May 2005 from appearing as
counsel for Atty. Molina pursuant to Section 7 (b) (2) of R.A. 6713 otherwise known as
the Code of Conduct and Ethical Standards for Public Officials and Employees; EDACSa
That respondent, together with other employees in utter contempt of CSC Resolution
No. 021316, dated 11 October 2002, otherwise known as Omnibus Rules on Prohibited
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Concerted Mass Actions in the Public Sector caused alarm and heightened some
employees and disrupted the work at the Investigation Unit during office hours. 2
This episode was earlier reported to PGM Garcia, through an office memorandum dated May
31, 2005, by the Manager of the GSIS Security Department (GSIS-SD), Dennis Nagtalon. On the same
day, the Manager of the GSIS Investigation Unit (GSIS-IU), Atty. Lutgardo Barbo, issued a
memorandum to each of the seven (7) respondents requiring them to explain in writing and under
oath within three (3) days why they should not be administratively dealt with. 3
Respondents Duque, Echavez, Rubio, Gracia, Layco, and Legarda, together with two others,
submitted a letter-explanation to Atty. Barbo dated June 6, 2005. Denying that there was a planned
mass action, the respondents explained that their act of going to the office of the GSIS-IU was a
spontaneous reaction after learning that their former union president was there. Aside from some of
them wanting to show their support, they were interested in that hearing as it might also affect them.
For her part, respondent Villaviza submitted a separate letter explaining that she had a scheduled pre-
hearing at the GSIS-IU that day and that she had informed her immediate supervisor about it,
attaching a copy of the order of pre-hearing. These letters were not under oath. 4
PGM Garcia then filed the above-mentioned formal charges for Grave Misconduct and/or
Conduct Prejudicial to the Best Interest of the Service against each of the respondents, all dated June
4, 2005. Respondents were again directed to submit their written answers under oath within three
(3) days from receipt thereof. 5 None was filed.
On June 29, 2005, PGM Garcia issued separate but similarly worded decisions finding all seven
(7) respondents guilty of the charges and meting out the penalty of one (1) year suspension plus the
accessory penalties appurtenant thereto.
On appeal, the Civil Service Commission (CSC) found the respondents guilty of the lesser
offense of Violation of Reasonable Office Rules and Regulations and reduced the penalty to
reprimand. The CSC ruled that respondents were not denied their right to due process but there was
no substantial evidence to hold them guilty of Conduct Prejudicial to the Best Interest of the Service.
Instead,
. . . . The actuation of the appellants in going to the IU, wearing red shirts, to witness a
public hearing cannot be considered as constitutive of such offense. Appellants'
(respondents herein) assembly at the said office to express support to Velasco, their
Union President, who pledged to defend them against any oppression by the GSIS
management, can be considered as an exercise of their freedom of expression, a
constitutionally guaranteed right. 6 . . . ISCTcH
PGM Garcia sought reconsideration but was denied. Thus, PGM Garcia went to the Court of
Appeals via a Petition for Review under Rule 43 of the Rules on Civil Procedure. 7 The CA upheld the
CSC in this wise:
The Civil Service Commission is correct when it found that the act sought to be punished
hardly falls within the definition of a prohibited concerted activity or mass action. The
petitioners failed to prove that the supposed concerted activity of the respondents
resulted in work stoppage and caused prejudice to the public service. Only about twenty
(20) out of more than a hundred employees at the main office, joined the activity sought
to be punished. These employees, now respondents in this case, were assigned at
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different offices of the petitioner GSIS. Hence, despite the belated claim of the
petitioners that the act complained of had created substantial disturbance inside the
petitioner GSIS' premises during office hours, there is nothing in the record that could
support the claim that the operational capacity of petitioner GSIS was affected or
reduced to substantial percentage when respondents gathered at the Investigation
Unit. Despite the hazy claim of the petitioners that the gathering was intended to force
the Investigation Unit and petitioner GSIS to be lenient in the handling of Atty. Molina's
case and allow Atty. Velasco to represent Atty. Molina in his administrative case before
petitioner GSIS, there is likewise no concrete and convincing evidence to prove that the
gathering was made to demand or force concessions, economic or otherwise from the
GSIS management or from the government. In fact, in the separate formal charges filed
against the respondents, petitioners clearly alleged that respondents "marched to or
appeared simultaneously at or just outside the office of the Investigation Unit in a mass
demonstration/rally of protest and support for Mssrs. Mario Molina and Albert Velasco,
the latter surreptitiously entered the GSIS premises." Thus, petitioners are aware at the
outset that the only apparent intention of the respondents in going to the IU was to
show support to Atty. Mario Molina and Albert Velasco, their union officers. The
belated assertion that the intention of the respondents in going to the IU was to disrupt
the operation and pressure the GSIS administration to be lenient with Atty. Mario
Molina and Albert Velasco, is only an afterthought. 8
Not in conformity, PGM Garcia is now before us via this Petition for Review presenting the
following:
STATEMENT OF THE ISSUES
I
WHETHER AN ADMINISTRATIVE TRIBUNAL MAY APPLY SUPPLETORILY THE
PROVISIONS OF THE RULES OF COURT ON THE EFFECT OF FAILURE TO DENY THE
ALLEGATIONS IN THE COMPLAINT AND FAILURE TO FILE ANSWER, WHERE THE
RESPONDENTS IN THE ADMINISTRATIVE PROCEEDINGS DID NOT FILE ANY
RESPONSIVE PLEADING TO THE FORMAL CHARGES AGAINST THEM.
II
WHETHER THE RULE THAT ADMINISTRATIVE DUE PROCESS CANNOT BE EQUATED
WITH DUE PROCESS IN JUDICIAL SENSE AUTHORIZES AN ADMINISTRATIVE TRIBUNAL
TO CONSIDER IN EVIDENCE AND GIVE FULL PROBATIVE VALUE TO UNNOTARIZED
LETTERS THAT DID NOT FORM PART OF THE CASE RECORD.
III
WHETHER A DECISION THAT MAKES CONCLUSIONS OF FACTS BASED ON EVIDENCE
ON RECORD BUT MAKES A CONCLUSION OF LAW BASED ON THE ALLEGATIONS OF A
DOCUMENT THAT NEVER FORMED PART OF THE CASE RECORDS IS VALID. cACEHI
IV
WHETHER FURTHER PROOF OF SUSBTANTIAL REDUCTION OF THE OPERATIONAL
CAPACITY OF AN AGENCY, DUE TO UNRULY MASS GATHERING OF GOVERNMENT
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EMPLOYEES INSIDE OFFICE PREMISES AND WITHIN OFFICE HOURS, IS REQUIRED TO

HOLD THE SAID EMPLOYEES LIABLE FOR CONDUCT PREJUDICIAL TO THE BEST
INTEREST OF THE SERVICE PURSUANT TO CSC RESOLUTION NO. 021316.
V
WHETHER AN UNRULY MASS GATHERING OF TWENTY EMPLOYEES, LASTING FOR
MORE THAN AN HOUR DURING OFFICE HOURS, INSIDE OFFICE PREMISES AND WITHIN
A UNIT TASKED TO HEAR AN ADMINISTRATIVE CASE, TO PROTEST THE PROHIBITION
AGAINST THE APPEARANCE OF THEIR LEADER AS COUNSEL IN THE SAID
ADMINISTRATIVE CASE, FALLS WITHIN THE PURVIEW OF THE CONSTITUTIONAL
GUARANTEE TO FREEDOM OF EXPRESSION AND PEACEFUL ASSEMBLY.
VI
WHETHER THE CONCERTED ABANDONMENT OF EMPLOYEES OF THEIR POSTS FOR
MORE THAN AN HOUR TO HOLD AN UNRULY PROTEST INSIDE OFFICE PREMISES ONLY
CONSTITUTES THE ADMINISTRATIVE OFFENSE OF VIOLATION OF REASONABLE OFFICE
RULES AND REGULATIONS. 9
The Court finds no merit in the petition.
Petitioners primarily question the probative value accorded to respondents' letters of
explanation in response to the memorandum of the GSIS-IU Manager. The respondents never filed
their answers to the formal charges. The petitioners argue that there being no answers, the
allegations in the formal charges that they filed should have been deemed admitted pursuant to
Section 11, Rule 8 of the Rules of Court which provides:
SECTION 11. Allegations not specifically denied deemed admitted. Material averment
in the complaint, other than those as to the amount of liquidated damages, shall be
deemed admitted when not specifically denied. Allegations of usury in a complaint to
recover usurious interest are deemed admitted if not denied specifically and under
oath.
According to the petitioners, this rule is applicable to the case at bench pursuant to Rule 1,
Section 4 of the Rules of Court which reads:
SECTION 4. In what cases not applicable. These Rules shall not apply to election
cases, land registration, cadastral, naturalization and insolvency proceedings, and other
cases not herein provided for, except by analogy or in a suppletory character and
whenever practicable and convenient. (underscoring supplied)
The Court does not subscribe to the argument of the petitioners. Petitioners' own rules, Rule
XI, Section 4 of the GSIS' Amended Policy and Procedural Guidelines No. 178-04, specifically
provides: dctai
If the respondent fails to file his Answer within five (5) working days from receipt of the
Formal Charge for the supporting evidence, when requested, he shall be considered to
have waived his right to file an answer and the PGM or the Board of Trustees, in proper
cases, shall render judgment, as may be warranted by the facts and evidence submitted
by the prosecution.
[1735]
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BOLD BUT FAITHFUL
A perusal of said section readily discloses that the failure of a respondent to file an answer
merely translates to a waiver of "his right to file an answer." There is nothing in the rule that says that
the charges are deemed admitted. It has not done away with the burden of the complainant to prove
the charges with clear and convincing evidence.
It is true that Section 4 of the Rules of Court provides that the rules can be applied in a
"suppletory character." Suppletory is defined as "supplying deficiencies." 10 It means that the
provisions in the Rules of Court will be made to apply only where there is an insufficiency in the
applicable rule. There is, however, no such deficiency as the rules of the GSIS are explicit in case of
failure to file the required answer. What is clearly stated there is that GSIS may "render judgment as
may be warranted by the facts and evidence submitted by the prosecution."
Even granting that Rule 8, Section 11 of the Rules of Court finds application in this case,
petitioners must remember that there remain averments that are not deemed admitted by the failure
to deny the same. Among them are immaterial allegations and incorrect conclusions drawn from facts
set out in the complaint. 11 Thus, even if respondents failed to file their answer, it does not mean that
all averments found in the complaint will be considered as true and correct in their entirety, and that
the forthcoming decision will be rendered in favor of the petitioners. We must not forget that even in
administrative proceedings, it is still the complainant, or in this case the petitioners, who have the
burden of proving, with substantial evidence, the allegations in the complaint or in the formal
charges. 12
A perusal of the decisions of the CA and of the CSC will reveal that the case was resolved
against petitioners based, not on the absence of respondents' evidence, but on the weakness of that
of the petitioners. Thus, the CA wrote:
Petitioners correctly submitted the administrative cases for resolution without the
respondents' respective answer to the separate formal charges in accordance with
Section 4, Rule XI of the RPAI. Being in full control of the administrative proceeding and
having effectively prevented respondents from further submitting their responsive
answer and evidence for the defense, petitioners were in the most advantageous
position to prove the merit of their allegations in the formal charges. When petitioner
Winston Garcia issued those similarly worded decisions in the administrative cases
against the respondents, it is presumed that all evidence in their favor were duly
submitted and justly considered independent of the weakness of respondent's
evidence in view of the principle that ''the burden of proof belongs to the one who
alleges and not the one who denies." 13
On the merits, what needs to be resolved in the case at bench is the question of whether or
not there was a violation of Section 5 of CSC Resolution No. 02-1316. Stated differently, whether or
not respondents' actions on May 27, 2005 amounted to a "prohibited concerted activity or mass
action." Pertinently, the said provision states:
Section 5. As used in this Omnibus Rules, the phrase ''prohibited concerted activity or
mass action'' shall be understood to refer to any collective activity undertaken by
government employees, by themselves or through their employees organizations, with
intent of effecting work stoppage or service disruption in order to realize their demands
of force concession, economic or otherwise, from their respective agencies or the
[1736]
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government. It shall include mass leaves, walkouts, pickets and acts of similar nature.
(underscoring supplied) cECaHA
In this case, CSC found that the acts of respondents in going to the GSIS-IU office wearing red
shirts to witness a public hearing do not amount to a concerted activity or mass action proscribed
above. CSC even added that their actuations can be deemed an exercise of their constitutional right
to freedom of expression. The CA found no cogent reason to deviate therefrom.
As defined in Section 5 of CSC Resolution No. 02-1316 which serves to regulate the political
rights of those in the government service, the concerted activity or mass action proscribed must be
coupled with the "intent of effecting work stoppage or service disruption in order to realize their
demands of force concession." Wearing similarly colored shirts, attending a public hearing at the GSIS-
IU office, bringing with them recording gadgets, clenching their fists, some even badmouthing the
guards and PGM Garcia, are acts not constitutive of an (i) intent to effect work stoppage or service
disruption and (ii) for the purpose of realizing their demands of force concession.
Precisely, the limitations or qualifications found in Section 5 of CSC Resolution No. 02-1316
are there to temper and focus the application of such prohibition. Not all collective activity or mass
undertaking of government employees is prohibited. Otherwise, we would be totally depriving our
brothers and sisters in the government service of their constitutional right to freedom of expression.
Government workers, whatever their ranks, have as much right as any person in the land to
voice out their protests against what they believe to be a violation of their rights and interests. Civil
Service does not deprive them of their freedom of expression. It would be unfair to hold that by joining
the government service, the members thereof have renounced or waived this basic liberty. This
freedom can be reasonably regulated only but can never be taken away.
A review of PGM Garcia's formal charges against the respondents reveals that he himself was
not even certain whether the respondents and the rest of the twenty or so GSIS employees who were
at the GSIS-IU office that fateful day marched there or just simply appeared there
simultaneously. 14 Thus, the petitioners were not even sure if the spontaneous act of each of the
twenty or so GSIS employees on May 27, 2005 was a concerted one. The report of Manager Nagtalon
of the GSIS-SD which was the basis for PGM Garcia's formal charges reflected such uncertainty. Thus,
Of these red shirt protesters, only Mr. Molina has official business at the Investigation
Unit during this time. The rest abandoned their post and duties for the duration of this
incident which lasted until 10:55 A.M. It was also observed that the protesters, some of
whom raised their clenched left fists, carefully planned this illegal action as evident in
their behavior of arrogance, defiance and provocation, the presence of various
recording gadgets such as VCRs, voice recorders and digital cameras, the bad mouthing
of the security guards and the PGM, the uniformity in their attire and the collusion
regarding the anomalous entry of Mr. Albert Velasco to the premises as reported
earlier. 15
The said report of Nagtalon contained only bare facts. It did not show respondents' unified
intent to effect disruption or stoppage in their work. It also failed to show that their purpose was to
demand a force concession. TEDHaA
In the recent case of GSIS v. Kapisanan ng mga Manggagawa sa GSIS, 16 the Court upheld
the position of petitioner GSIS because its employees, numbering between 300 and 800 each day,
[1737]
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staged a walkout and participated in a mass protest or demonstration outside the GSIS for four
straight days. We cannot say the same for the 20 or so employees in this case. To equate their wearing
of red shirts and going to the GSIS-IU office for just over an hour with that four-day mass action
in Kapisanan ng mga Manggagawa sa GSIS case and to punish them in the same manner would most
certainly be unfair and unjust.
Recent analogous decisions in the United States, while recognizing the government's right as
an employer to lay down certain standards of conduct, tend to lean towards a broad definition of
"public concern speech" which is protected by their First Amendment. One such case is that of Scott
v. Meyers. 17 In said case, the New York Transit Authority (NYTA), responsible for operation of New
York City's mass transit service, issued a rule prohibiting employees from wearing badges or buttons
on their uniforms. A number of union members wore union buttons promoting their opposition to a
collective bargaining agreement. Consequently, the NYTA tried to enforce its rule and threatened to
subject these union members to discipline. The court, though recognizing the government's right to
impose reasonable restrictions, held that the NYTA's rule was "unconstitutionally overboard."
In another case, Communication Workers of America v. Ector County Hospital District, 18 it
was held that,
A county hospital employee's wearing of a "Union Yes" lapel pin during a union
organization drive constituted speech on a matter of public concern, and the county's
proffered interest in enforcing the anti-adornment provision of its dress code was
outweighed by the employee's interest in exercising his First Amendment speech and
associational rights by wearing a pro-union lapel button. 19
Thus, respondents' freedom of speech and of expression remains intact, and CSC's Resolution
No. 02-1316 defining what a prohibited concerted activity or mass action has only tempered or
regulated these rights. Measured against that definition, respondents' actuations did not amount to
a prohibited concerted activity or mass action. The CSC and the CA were both correct in arriving at
said conclusion.
WHEREFORE, the assailed August 31, 2007 Decision of the Court of Appeals as well as its
October 16, 2007 Resolution in CA G.R. SP No. 98952 are hereby AFFIRMED.
SO ORDERED. EDATSI
||| (Government Service Insurance System v. Villaviza, G.R. No. 180291, [July 27, 2010], 640 PHIL 18-32)
4. Movies Censorship
CASE - GONZALES VS. KALAW KATIGBAK, 137 SCRA 356 (1985)
JOSE ANTONIO U. GONZALEZ in behalf of MALAYA FILMS, LINO BROCKA, JOSE F. LACABA,
and DULCE Q. SAGUISAG, petitioners, vs. CHAIRMAN MARIA KALAW KATIGBAK, GENERAL
WILFREDO C. ESTRADA (Ret.), and THE BOARD OF REVIEW FOR MOTION PICTURES AND
TELEVISION (BRMPT), respondents.
Irene R. Cortes, Perfecto V. Fernandez, Haydee Yorac and Joker P. Arroyo for petitioners.
[1738]
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DECISION
FERNANDO, J p:
In this case of first impression, a certiorari proceeding filed on January 10, 1985, there is a persuasive ring
to the invocation of the constitutional right to freedom of expression 1 of an artist and for that matter
a man of letters too - as the basis for a ruling on the scope of the power of respondent Board of Review
for Motion Pictures and Television and how it should be exercised. The dispute between the parties has
been narrowed down. The motion picture in question, Kapit sa Patalim was classified "For Adults Only."
There is the further issue then, also one of first impression, as to the proper test of what constitutes
obscenity in view of the objections raised. Thus the relevance of this constitutional command: "Arts and
letters shall be under the patronage of the State." 2
The principal petitioner is Jose Antonio U. Gonzalez, 3 President of the Malaya Films, a movie production
outfit duly registered as a single proprietorship with the Bureau of Domestic Trade. The respondent is the
Board of Review for Motion Pictures and Television, with Maria Kalaw Katigbak as its Chairman and Brig.
Gen. Wilfredo C. Estrada as its Vice-Chairman, also named respondents. LLjur
In a resolution of a sub-committee of respondent Board of October 23, 1984, a permit to exhibit the
film Kapit sa Patalim under the classification "For Adults Only," with certain changes and deletions
enumerated was granted. A motion for reconsideration was filed by petitioners stating that the
classification of the film "For Adults Only" was without basis. 4 Then on November 12, 1984, respondent
Board released its decision: "Acting on the applicant's Motion for Reconsideration dated 29 October 1984,
the Board, after a review of the resolution of the sub-committee and an examination of the film, Resolves
to affirm in toto the ruling of the sub-committee. Considering, however, certain vital deficiencies in the
application, the Board further Resolves to direct the Chairman of the Board to Withheld the issuance of
the Permit to exhibit until these deficiencies are supplied." 5 Hence this petition.
This Court, in a resolution of January 12, 1985, required respondent to answer. In such pleading submitted
on January 21, 1985, as one of its special and affirmative defenses, it was alleged that the petition is moot
as "respondent Board has revoked its questioned resolution, replacing it with one immediately granting
petitioner company a permit to exhibit the filmKapit without any deletion or cut [thus an] adjudication of
the questions presented above would be academic on the case." 6 Further: "The modified resolution of
the Board, of course, classifies Kapit as for-adults-only, but the petition does not raise any issue as to the
validity of this classification. All that petitioners assail as arbitrary on the part of the Board's action are the
deletions ordered in the film." 7 The prayer was for the dismissal of the petition.
An amended petition was then filed on January 25, 1985. The main objection was the classification of the
film as "For Adults Only." For petitioners, such classification "is without legal and factual basis and is
exercised as impermissible restraint of artistic expression. The film is an integral whole and all its portions,
including those to which the Board now offers belated objection, are essential for the integrity of the film.
Viewed as a whole, there is no basis even for the vague speculations advanced by the Board as basis for
its classification." 8 There was an answer to the amended petition filed on February 18, 1985. It was
therein asserted that the issue presented as to the previous deletions ordered by the Board as well as the
statutory provisions for review of films and as to the requirement to submit the master negative have
been all rendered moot. It was also submitted that the standard of the law for classifying films afford a
[1739]
AUDAX AT FIDELIS
BOLD BUT FAITHFUL
practical and determinative yardstick for the exercise of judgment. For respondents, the question of the
sufficiency of the standards remains the only question at issue. LLjur
It would be unduly restrictive under the circumstances to limit the issue to one of the sufficiency of
standards to guide respondent Board in the exercise of its power. Even if such were the case, there is
justification for an inquiry into the controlling standard to warrant the classification of "For Adults Only."
This is especially so, when obscenity is the basis for any alleged invasion of the right to the freedom of
artistic and literary expression embraced in the free speech and free press guarantees of the Constitution.
1. Motion pictures are important both as a medium for the communication of ideas and the expression of
the artistic impulse. Their effects on the perception by our people of issues and public officials or public
figures as well as the prevailing cultural traits is considerable. Nor as pointed out in Burstyn v. Wilson 9 is
the "importance of motion pictures as an organ of public opinion lessened by the fact that they are
designed to entertain as well as to inform." 10 There is no clear dividing line between what involves
knowledge and what affords pleasure. If such a distinction were sustained, there is a diminution of the
basic right to free expression. Our recent decision in Reyes v. Bagatsing 11 cautions against such a move.
Press freedom, as stated in the opinion of the Court, "may be identified with the liberty to discuss publicly
and truthfully any matter of public concern without censorship or punishment." 12 This is not to say that
such freedom, as is the freedom of speech, absolute. It can be limited if "there be a 'clear and present
danger of a substantive evil that [the State] has a right to prevent.' " 13
2. Censorship or previous restraint certainly is not all there is to free speech or free press. If it were so,
then such basic rights are emasculated. It is, however, except in exceptional circumstances a sine qua
non for the meaningful exercise of such right. This is not to deny that equally basic is the other important
aspect of freedom from liability. Nonetheless, for the purposes of this litigation, the emphasis should
rightly be on freedom from censorship. It is, beyond question, a well-settled principle in our jurisdiction.
As early as 1909, in the case of United States v. Sedano, 14 a prosecution for libel, the Supreme Court of
the Philippines already made clear that freedom of the press consists in the right to print what one
chooses without any previous license. There is reaffirmation of such a view in Mutuc v. Commission on
Elections, 15 where an order of respondent Commission on Elections giving due course to the certificate
of candidacy of petitioner but prohibiting him from using jingles in his mobile units equipped with sound
systems and loud speakers was considered an abridgment of the right of the freedom of expression
amounting as it does to censorship. It is the opinion of this Court, therefore, that to avoid an
unconstitutional taint on its creation, the power of respondent Board is limited to the classification of
films. It can, to safeguard other constitutional objections, determine what motion pictures are for general
patronage and what may require either parental guidance or be limited to adults only. That is to abide by
the principle that freedom of expression is the rule and restrictions the exemption. The power to exercise
prior restraint is not to be presumed, rather the presumption is against its validity. 16
3. The test, to repeat, to determine whether freedom of expression may be limited is the clear and present
danger of an evil of a substantive character that the State has a right to prevent. Such danger must not
only be clear but also present. There should be no doubt that what is feared may be traced to the
expression complained of. The causal connection must be evident. Also, there must be reasonable
apprehension about its imminence. The time element cannot be ignored. Nor does it suffice if such danger
be only probable. There is the requirement of its being well-nigh inevitable. The basic postulate, therefore,
as noted earlier, is that where the movies, theatrical productions, radio scripts, television programs, and
other such media of expression are concerned included as they are in freedom of expression
censorship, especially so if an entire production is banned, is allowable only under the clearest proof of a
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clear and present danger of a substantive evil to public safety, public morals, public health or any other
legitimate public interest. 17 There is merit to the observation of Justice Douglas that "every writer, actor,
or producer, no matter what medium of expression he may use, should be freed from the censor." 18
4. The law, however, frowns on obscenity - and rightly so. As categorically stated by Justice Brennan in
Roth v. United States, 19 speaking of the free speech and press guarantee of the United States
Constitution: "All ideas having even the slightest redeeming social importance - unorthodox ideas,
controversial ideas, even ideas hateful to the prevailing climate of opinion - have the full protection of the
guaranties, unless excludable because they encroach upon the limited area of more important interests.
But implicit in the history of the First Amendment is the rejection of obscenity as utterly without
redeeming social importance." 20 Such a view commends itself for approval. llcd
5. There is, however, some difficulty in determining what is obscene. There is persuasiveness to the
approach followed in Roth: "The early leading standard of obscenity allowed material to be judged merely
by the effect of an isolated excerpt upon particularly susceptible persons. Regina v. Hicklin [1868] LR 3 QB
360. Some American courts adopted this standard but later decisions have rejected it and substituted this
test: whether to the average person, applying contemporary community standards, the dominant theme
of the material taken as a whole appeals to prurient interest. The Hicklin test, judging obscenity by the
effect of isolated passages upon the most susceptible persons, might well encompass material
legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms
of speech and press. On the other hand, the substituted standard provides safeguards adequate to
withstand the charge of constitutional infirmity." 21
6. The above excerpt which imposes on the judiciary the duty to be ever on guard against any
impermissible infringement on the freedom of artistic expression calls to mind the landmark ponencia of
Justice Malcolm in United States v. Bustos, 22 decided in 1918. While recognizing the principle that libel
is beyond the pale of constitutional protection, it left nodoubt that in determining what constitutes such
an offense, a court should ever be mindful that no violation of the right to freedom of expression is
allowable. It is a matter of pride for the Philippines that it was not until 1984 in New York Timer v.
Sullivan, 23 thirty-six years later, that the United States Supreme Court enunciated a similar doctrine.
7. It is quite understandable then why in the Roth opinion, Justice Brennan took pains to emphasize that
"sex and obscenity are not synonymous." 24 Further: "Obscene material is material which deals with sex
in a manner appealing to prurient interest. The portrayal of sex, e.g., in art, literature and scientific works,
is not itself sufficient reason to deny material the constitutional protection of freedom of speech and
press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing
interest to mankind through the ages; it is one of the vital problems of human interest and public
concern." 25
8. In the applicable law, Executive Order No. 876, reference was made to respondent Board "applying
contemporary Filipino cultural values as standard," 26 words which can be construed in an analogous
manner. Moreover, as far as the question of sex and obscenity are concerned, it cannot be stressed
strongly that the arts and letters "shall be under the patronage of the State." 27 That is a constitutional
mandate. It will be less than true to its function if any government office or agency would invade the
sphere of autonomy that an artist enjoys. There is no orthodoxy in what passes for beauty or for reality.
It is for the artist to determine what for him is a true representation. It is not to be forgotten that art
and belles-lettres deal primarily with imagination, not so much with ideas in a strict sense. What is seen
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or perceived by an artist is entitled to respect, unless there is a showing that the product of his talent
rightfully may be considered obscene. As so well put by Justice Frankfurter in a concurring opinion, "the
widest scope of freedom is to be given to the adventurous and imaginative exercise of the human
spirit" 28 in this sensitive area of a man's personality. On the question of obscenity, therefore, and in the
light of the facts of this case, such standard set forth in Executive Order No. 878 is to be construed in such
a fashion to avoid any taint of unconstitutionality. To repeat, what was stated in a recent decision 29 citing
the language of Justice Malcolm in Yu Cong Eng v. Trinidad, 30 it is "an elementary, a fundamental, and a
universal role of construction, applied when considering constitutional questions, that when a law is
susceptible of two constructions one of which will maintain and the other destroy it, the courts will always
adopt the former," 31 As thus construed, there can be no valid objection to the sufficiency of the
controlling standard and its conformity to what the Constitution ordains. LexLib
9. This being a certiorari petition, the question before the Court is whether or not there was a grave abuse
of discretion. That there was an abuse of discretion by respondent Board is evident in the light of the
difficulty and travail undergone by petitioners before Kapit sa Patalim was classified as "For Adults Only,"
without any deletion or cut. Moreover its perception of what constitutes obscenity appears to be unduly
restrictive. This Court concludes then that there was an abuse of discretion. Nonetheless, there are not
enough votes to maintain that such an abuse can be considered grave. Accordingly, certiorari does not
lie. This conclusion finds support in this explanation of respondents in its Answer to the amended petition:
"The adult classification given the film serves as a warning to theater operators and viewers that some
contents of Kapit are not fit for the young. Some of the scenes in the picture were taken in a theater-club
and a good portion of the film shots concentrated on some women erotically dancing naked, or at least
nearly naked, on the theater stage. Another scene on that stage depicted the women kissing and caressing
as lesbians. And toward the end of the picture, there exists scenes of excessive violence attending the
battle between a group of robbers and the police. The vulnerable and imitative in the young audience will
misunderstand these scenes." 32 Further: "Respondents further stated in its answer that petitioner
company has an option to have the film reclassified to For-General-Patronage if it would agree to remove
the obscene scenes and pare down the violence in the film." 33 Petitioners, however, refused the "For
Adults Only" classification and instead, as noted at the outset, filed this suit for certiorari.
10. All that remains to be said is that the ruling is to be limited to the concept of obscenity applicable to
motion pictures. It is the consensus of this Court that where television is concerned, a less liberal approach
calls for observance. This is so because unlike motion pictures where the patrons have to pay their way,
television reaches every home where there is a set. Children then will likely will be among the avid viewers
of the programs therein shown. As was observed by Circuit Court of Appeals Judge Jerome Frank, it is
hardly the concern of the law to deal with the sexual fantasies of the adult population. 34 It cannot be
denied though that the State as parens patriae is called upon to manifest an attitude of caring for the
welfare of the young.
WHEREFORE, this Court, in the light of the principles of law enunciated in the opinion, dismisses this
petition for certiorari solely on the ground that there are not enough votes for a ruling that there was a
grave abuse of discretion in the classification of Kapit sa Patalim as "For Adults Only."
||| (Gonzalez v. Katigbak, G.R. No. L-69500, [July 22, 1985], 222 PHIL 225-236)
IGLESIA NI CRISTO VS. CA 259 SCRA 529 (1996)
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IGLESIA NI CRISTO (INC.), petitioner, vs. THE HONORABLE COURT OF APPEALS, BOARD
OF REVIEW FOR MOVING PICTURES AND TELEVISION and HONORABLE HENRIETTA S.
MENDEZ, respondents.
Cuevas De la Cuesta & De las Alas for petitioner.

SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF RELIGION; ACCORDED A PREFERRED STATUS.

Freedom of religion has been accorded a preferred status by the framers of our fundamental laws, past
and present. We have affirmed this preferred status well aware that it is "designed to protect the broadest
possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his beliefs,
and to live as he believes he ought to live, consistent with the liberty of others and with the common
good.
2. ID.; ID.; ID.; CAN BE REGULATED BY THE STATE. We reject petitioner's postulate that its religious
program is per se beyond review by the respondent Board. Its public broadcast on TV of its religious
program brings it out of the bosom of internal belief. Television is a medium that reaches even the eyes
and ears of children. The Court iterates the rule that the exercise of religious freedom can be regulated
by the State when it will bring about the clear and present danger of some substantive evil which the State
is duty bound to prevent, i.e., serious detriment to the more overriding interest of public health, public
morals, or public welfare. A laissez faire policy on the exercise of religion can be seductive to the liberal
mind but history counsels the Court against its blind adoption as religion is and continues to be a volatile
area of concern in our country today.
3. ID.; ID.; FREEDOM OF SPEECH; PRIOR RESTRAINTS, ENJOINED. Deeply ensconced in our fundamental
law is its hostility against all prior restraints on speech, including religious speech. Hence, any act that
restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows.
It is the burden of the respondent Board to overthrow this presumption. If it fails to discharge this burden,
its act of censorship will be struck down.
4. ADMINISTRATIVE LAW; BOARD OF REVIEW FOR MOVING PICTURES AND TELEVISION; T.V. SERIES
CONTAINING CRITICISM OF SOME OF DEEPLY HELD DOGMAS AND TENETS OF OTHER RELIGION, NOT
INDECENT, CONTRARY TO LAW AND GOOD CUSTOMS. The evidence shows that the respondent Board
x-rated petitioners TV series for "attacking" other religions, especially the Catholic church. An examination
of the evidence, especially Exhibits "A," "A-1," "B," "C," "D" will show that the so-called "attacks" are
mere criticisms of some of the deeply held dogmas and tenets of other religions. The videotapes were not
viewed by the respondent court as they were not presented as evidence. Yet they were considered by the
respondent court as indecent, contrary to law and good customs, hence, can be prohibited from public
viewing under sections 3(c) of PD 1986. This ruling clearly suppresses petitioner's freedom of speech and
interferes with its right to free exercise of religion. The respondent Board may disagree with the criticisms
of other religions by petitioner but that gives it no excuse to interdict such criticisms, however, unclean
they may be. Under our constitutional scheme, it is not the task of the State to favor any religion by
protecting it against an attack by another religion. Religious dogmas and beliefs are often at war and to
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preserve peace among their followers, especially the fanatics, the establishment clause of freedom of
religion prohibits the State from leaning towards any religion. Vis-a-vis religious differences, the State
enjoys no banquet of options. Neutrality alone is its fixed and immovable stance. In fine, respondent board
cannot squelch the speech of petitioner Iglesia ni Cristo simply because it attacks other religions, even if
said religion happens to be the most numerous church in our country. In a State where there ought to be
no difference between the appearance and the reality of freedom of religion, the remedy against bad
theology is better theology. The bedrock of freedom of religion is freedom of thought and it is best served
by encouraging the marketplace of dueling ideas. When the luxury of time permits, the marketplace of
ideas demands that speech should be met by more speech for it is the spark of opposite speech, the heat
of colliding ideas that can fan the embers of truth.
5. ID.; ID.; T.V. SERIES CONTAINING "ATTACKS AGAINST ANOTHER RELIGION," NOT A GROUND
PROHIBITING BROADCAST." The respondents cannot also rely on the ground "attacks against another
religion" in x-rating the religious program of petitioner. Even a sideglance at section 3 of PD No. 1986 will
reveal that it is not among the grounds to justify an order prohibiting the broadcast of petitioner's
television program. The ground "attack against another religion" was merely added by the respondent
Board in its Rules. This rule is void for it runs smack against the hoary doctrine that administrative rules
and regulations cannot expand the letter and spirit of the law they seek to enforce.
6. CRIMINAL LAW; IMMORAL DOCTRINES, OBSCENE PUBLICATIONS AND EXHIBITIONS; SHOWS WHICH
OFFEND ANY RACE OR RELIGION; WORD "OFFEND" NOT SYNONYMOUS WITH "ATTACK." It is opined
that the respondent board can still utilize "attack against any religion" as a ground allegedly ". . . because
section 3(c) of PD No. 1986 prohibits the showing of motion pictures, television programs and publicity
material which are contrary to law and Article 201 (2) (b) (3) of the Revised Penal Code punishes anyone
who exhibits "shows whichoffend any race or religion." We respectfully disagree for it is plain that the
word "attack" is not synonymous with the word "offend."
7. ID.; ID.; ID.; CANNOT BE UTILIZED TO JUSTIFY PRIOR CENSORSHIP OF SPEECH. Article 201 (2) (b) (3)
of the Revised Penal Code should be invoked to justify the subsequent punishment of a show which
offends any religion. It cannot be utilized to justify prior censorship of speech. It must be emphasized that
E.O. 876, the law prior to PD 1986, included "attack against any religion" as a ground for censorship. The
ground was not, however, carried over by PD 1986. Its deletion is a decree to disuse it. There can be no
other intent.
8. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF RELIGION; GROUND FOR RESTRAINTS.
In American Bible Society v. City of Manila, this Court held: "The constitutional guaranty of free exercise
and enjoyment of religious profession and worship carries with it the right to disseminate religious
information. Any restraint of such right can be justified like other restraints on freedom of expression on
the ground that there is a clear and present danger of any substantive evil which the State has the right
to prevent." In Victoriano vs. Elizalde Rope Workers Union, we further ruled that ". . . it is only where it is
unavoidably necessary to prevent an immediate and grave danger to the security and welfare of the
community that infringement of religious freedom may be justified, and only to the smallest extent
necessary to avoid the danger.
9. ID.; ID.; ID.; HYPOTHETICAL FEARS OF SUBSTANTIVE AND IMMINENT EVIL, NOT VALID GROUND. The
records show that the decision of the respondent Board, affirmed by the respondent appellate court, is
completely bereft of findings of facts to justify the conclusion that the subject video tapes constitute
impermissible attacks against another religion. There is no showing whatsoever of the type of harm the
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tapes will bring about especially the gravity and imminence of the threatened harm. Prior restraint on
speech, including religious speech, cannot be justified by hypothetical fears but only by the showing of a
substantive and imminent evil which has taken the life of a reality already on ground.
10. ID.; ID.; ID.; CLEAR AND PRESENT DANGER; RULE APPLY TO SPEECHES AND ATTACKS AGAINST OTHER
RELIGIONS. It is suggested we re-examine the application of clear and present danger rule to the case
at bar. In the United States, it is true that the clear and present danger test undergone permutations.
Presently in the United States, the clear and present danger test is not applied to protect low value
speeches such as obscene speech, commercial speech and defamation. Be that as it may, the test is still
applied to four types of speech: speech that advocates dangerous ideas, speech that provokes a hostile
audience reaction, out of court contempt and release of information that endangers a fair trial. Hence,
even following the drift of American jurisprudence, there is reason to apply the clear and present danger
test to the case at bar which concerns speech that attacks other religions and could readily provoke hostile
audience reaction. It cannot be doubted that religious truths disturb and disturb terribly.
11. ID.; ID.; ID.; ID.; RULE APPLIES TO VIDEO TAPES THAT ARE PRE-TAPED. It is also opined that it is
inappropriate to apply the clear and present danger test to the case at bar because the issue involves
the content of speech and not the time, place or manner of speech. Allegedly, unless the speech is first
allowed, its impact cannot be measured, and the causal connection between the speech and the evil
apprehended cannot be established. The contention overlooks the fact that the case at bar involves
videotape that are pre-taped and hence, their speech content is known and not an X quantity. Given the
specific content of the speech, it is not unreasonable to assume that the respondent Board, with its
expertise, can determine whether its sulphur will bring about the substantive evil feared by the law.
12. ID.; CONGRESS; MAY GRANT ADMINISTRATIVE BODIES QUASI-JUDICIAL POWER TO PREVIEW AND
CLASSIFY T.V. PROGRAMS. We are not ready to hold that it is unconstitutional for Congress to grant an
administrative body quasi-judicial power to preview and classify TV programs and enforce its
decision subject to review by our court.
PADILLA, J., concurring and dissenting opinion:

CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF SPEECH AND OF RELIGION; THERE CAN BE NO
PRIOR RESTRAINTS IN THE EXERCISE THEREOF. In this country there can be no prior restraints on the
exercise of free speech, expression or religion, unless such exercises poses a clear and present danger of a
substantive evil which the State has the right and even the duty to prevent. The ban against such prior
restraints will result, as it has resulted in the past, in occasional abuses of free speech and expression but
it is immeasurably preferable to experience such occasional abuses of speech and expression than to arm
a governmental administrative agency with the authority to censor speech and expression in accordance
with legislative standards which albeit apparently laudable in their nature, can very well be bent or
stretched by such agency to convenient latitudes as to frustrate and eviscerate the precious freedoms of
speech and expression.
MELO, J., concurring and dissenting opinion:
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF RELIGION; DENOTES RIGHT TO DISSEMINATE
RELIGIOUS INFORMATION; PRIOR RESTRICTION ON RIGHT TO DISSEMINATE INFORMATION, A
RESTRICTION ON RIGHT OF RELIGION. The enjoyment of the freedom of religion is always coupled with
the freedom of expression. For the profession of faith inevitably carries with it, as a necessary appendage,
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the prerogative of propagation. The constitutional guaranty of free exercise and enjoyment of religious
profession and worship thus denotes the right to disseminate religious information (American Bible
Society vs. City of Manila, 101 Phil. 386 [1957]). Any prior restriction upon a religious expression would be
a restriction on the right of religion. We recognize the role and the deep influence that religion plays in
our community. No less than the fundamental law of the land acknowledges the elevating influence of
religion by imploring the aid of almighty God to build a just and humane society. Any restriction that is to
be placed upon this right must be applied with greatest caution.
2. ID.; ID.; ID.; GROUND FOR PRIOR RESTRAINT. Freedom of religion and expression is the rule and its
restriction, the exception. Any prior restriction on the exercise of the freedom to profess religious faith
and the propagation thereof will unduly diminish that religion's authority to spread what it believes to be
the sacred truth. The State can exercise no power to restrict such right until the exercise thereof traverses
the point that will endanger the order of civil society. Thus we have ruled in the case of Ebralinag vs. The
Division Superintendent of Schools of Cebu (219 SCRA 270 [1993]): The sole justification for a given
restraint or limitation on the exercise of religious freedom is the existence of a grave and present danger
of a character both grave and imminent, of a serious evil to public safety, public morals, public health or
any other legitimate public interest that the state has the right and duty to prevent. Correspondingly, the
MTRCB has no authority to use as standard, the dangerous tendency rule, which we have long abandoned,
and for which reason, the dangerous tendency standard under Subparagraph C, Section 3 of Presidential
Decree No. 1986 has no place in our statute books.
KAPUNAN, J., concurring and dissenting opinion:
1. CONSTITUTIONAL LAW; FREEDOM OF RELIGION; CANNOT BE SUBJECT TO PRIOR RESTRAINT BY THE
BOARD OF REVIEW FOR MOTION PICTURES AND TELEVISION (now MTRCB). While I concur in the result
of the majority's decision reversing that of the Court of Appeals insofar as it set aside the action of
respondent MTRCB x-rating petitioner's TV Program Series Nos. 115, 119 and 121 with due respect, I
cannot agree with its opinion that respondent Board of Review for Motion Pictures and Television (now
MTRCB) has the power to review petitioner's TV program "Ang Iglesia ni Cristo." The religious TV program
enjoys the Constitution's guarantee of freedom of religion, and of speech and expression, and cannot be
subject to prior restraint by the Board by virtue of its power and functions under Section 3, P.D. 1986. It
is my submission that the government, under the guise of its regulatory powers in the censorship law (P.D.
1986 and its corresponding implementing rules and regulations), does not have the power to interfere
with the exercise of religious expression in film or television by requiring the submission of the video tapes
of petitioner's religious program before their public viewing, absent a showing of a compelling state
interest that overrides the constitutional protection of the freedom of expression and worship. Even if
government can demonstrate a compelling state interest, it would only burden such fundamental right
like the free exercise of religion by the least intrusive means possible. There is no demonstration here of
any sufficient state interest to justify the infringement.
2. ID.; ID.; RELIGIOUS SECT OR DENOMINATION ALLOWED FREE CHOICE OF UTILIZING MEDIA IN
DISSEMINATING RELIGIOUS INFORMATION. The freedom to disseminate religious information is a right
protected by the free exercise clause of the Constitution. It encompasses a wide range of ideas and takes
many forms. In the process of enlightening the adherents or convincing non-believers of the truth of its
beliefs, a religious sect or denomination is allowed the free choice of utilizing various media, including
pulpit or podium, print, television film, and the electronic mail.
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3. ID.; ID.; ENTITLED TO THE HIGHEST PRIORITY AND GENERALLY INSULATED FROM COURT ACTION. It
is settled that religious freedom is a fundamental right entitled to the highest priority and amplest
protection among human rights. Because of its exalted position in our hierarchy of civil rights, the realm
of religious belief is generally insulated from state action, and state interference with such belief is allowed
only in extreme cases.
4. ID.; ID.; CLEAR AND PRESENT DANGER OF SUBSTANTIVE EVIL, SOLE JUSTIFICATION FOR PRIOR
RESTRAINT OR LIMITATION. In American Bible Society v. City of Manila, this Court held that any
restraint on the right to disseminate religious information "can only be justified like other restraints of
freedom of expression on the grounds that there is a clear and present danger of any substantive evil
which the State has the right to prevent." Affirming the use of this "clear and present danger" standard in
cases involving religious freedom and worship, the late Chief Justice Claudio Teehankee warned that
"[t]he sole justification for a prior restraint or limitation on the exercise of religious freedom is the
existence of a grave and present danger of a character both grave and imminent of a serious evil to public
safety, public morals, public health or any other legitimate public interest, that the State has a right (and
duty) to prevent."
5. ADMINISTRATIVE LAW; BOARD OF REVIEW FOR MOTION PICTURES AND TELEVISION; POWER TO
PROHIBIT EXHIBITION OF TELEVISION BROADCASTS AND TV PROGRAMS; PETITIONER'S RELIGIOUS
PROGRAM ON TV, NOT OBJECTIONABLE AND THEREFORE NOT SUBJECT TO CENSORSHIP. Under Section
3 of P.D. 1986 the MTRCB, while nominally a classification board, is granted the power not only to classify,
but also to approve or disapprove/prohibit exhibition of film or television broadcasts of motion pictures
and TV programs. Petitioner's religious programs, which in their very essence and characterization are the
exercise of religious freedom, cannot possibly come under the category of the objectionable matters
enumerated in Section 3(c) of P.D. 1986 or analogous thereto. It is not likely that propagation of religion
which has been spoken of as "a profession of faith that binds and elevates man to his Creator" will involve
pornography, excessive violence or danger to national security. Significantly, the enumeration in Section
3(c) does not include the standard "attack against any religion" as among those considered objectionable
and subject to censorship.
6. STATUTORY CONSTRUCTION AND INTERPRETATION; SPECIFIC STANDARD FOLLOWING A GENERAL
ENUMERATION CANNOT GO BEYOND THE SCOPE OF THE LATTER. While the law's enumeration is
concededly not exclusive, inclusion of other standards should be made in the strict context of the words
"immoral, indecent, contrary to law and/or good customs." Specific standards following a general
enumeration cannot go beyond the scope of the latter.
7. ID.; CENSORSHIP LAW; WORD "INDECENT" CONFINED TO OBSCENITY REGULATION. The word
"indecent" in censorship law has a narrow meaning, confined to obscenity regulation. It cannot be
conveniently employed as a catch-all term embracing all forms of expression considered noxious by the
Board.
8. ADMINISTRATIVE LAW; P.D. 1986; OMISSION OF "ATTACK AGAINST ANY RELIGION," MANIFEST
INTENTION TO DO AWAY WITH THAT STANDARD. In the light of what the Solicitor General describes as
the "transitional" nature of P.D. 1986, the better view would be that the omission of "attack against any
religion" among the enumerated standards was intentional and part of the evolving process of fashioning
a system of strict classification of films and television programs as opposed to censorship. As this phrase
was ubiquitous in the old censorhip law (particularly E.O. 868 and E.O. 876), its elimination in P.D.
1986 expresses the manifest intention of the law-making authority to do away with the standard.
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9. ID.; ID.; PHRASE "CONTRARY TO LAW" CANNOT AND SHOULD NOT BE UNDERSTOOD TO REFER TO
ARTICLE 201 OF THE REVISED PENAL CODE. The phrase "contrary to law" cannot and should not be
understood to refer to Article 201 of the Revised Penal Code, as respondents mistakenly suggest. Article
201 deals with the subject of subsequent punishment;P.D. 1986 clearly treats with an altogether different
matter prior restraint and censorship. The two laws stand at opposite poles in the continuum of
regulation and punishment.
10. REMEDIAL LAW; JURISDICTION; DETERMINATION OF QUESTION AS TO WHETHER OR NOT

VILIFICATIONS, EXAGGERATION FALLS WITHIN OR LIES OUTSIDE THE BOUNDARIES OF FREE SPEECH AND
EXPRESSION, A JUDICIAL FUNCTION. We are faced with a case of censorship and restraint which, I
stated earlier, touches upon one of the most private and sensitive of domains: the realm of religious
freedom, thought and expression. In this domain, sharp differences may arise such that the tenets of one
individual may seem the "rankest error" to his neighbor. In the process of persuading others about the
validity of his point of view, the preacher sometimes resorts to exaggeration and vilification. However,
the determination of the question as to whether or not such vilification, exaggeration or fabrication falls
within or lies outside the boundaries of protected speech or expression is a judicial function which cannot
be arrogated by an administrative body such as a Board of Censors. Even if the exercise of the liberties
protected by the speech, expression and religion clauses of our Constitution are regarded as neither
absolute nor unlimited, there are appropriate laws which deal with such excesses. The least restrictive
alternative would be to impose subsequent sanctions for proven violations of laws, rather than inflict prior
restraints on religious expression. Our penal law punishes libel, or acts or speeches offensive to other
religions, and awards damages whenever warranted. In our legal scheme, courts essentially remains the
arbiters of controversies affecting the civil and political rights of persons. It is our courts which determine
whether or not certain forms of speech and expression have exceeded the bounds of correctness,
propriety or decency as to fall outside the area of protected speech. In the meantime, the liberties
protected by the speech and expression and free exercise clauses are so essential to our society that they
should be allowed to flourish unobstructed and unmolested.
11. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF RELIGION; ACTS OF PRIOR RESTRAINT,
HOBBLED BY PRESUMPTION OF INVALIDITY; FAILURE BY THE BOARD OF REVIEW FOR MOTION PICTURE
AND TELEVISION TO OVERTHROW PRESUMPTION. The majority opinion professes fealty to freedom of
religion which, it openly admits, has been accorded a preferred status by the framers of our fundamental
laws, and affirms that "(D)eeply ensconced in our fundamental law is its hostility against all prior restraints
on speech, including speech." The majority then adds pointedly that "acts of prior restraint are hobbled
by the presumption of invalidity and should be greeted with furrowed brows. It is the burden of the
respondent Board to overthrow this presumption. If it fails to discharge this heavy burden, its acts of
censorship will be struck down. It failed in the case at bar.
12. ID.; ID.; CANNOT BE DEROGATED PEREMPTORILY BY AN ADMINISTRATIVE BODY OR OFFICE WHO
DETERMINES WHETHER OR NOT TO ALLOW THE EXERCISE OF SUCH FREEDOM. The ruling in Sotto
vs. Ruiz cannot be invoked as authority to allow MTRCB to review petitioner's TV programs. In that case,
the Court held that the Acting Director of the Bureau of Posts is vested with authority to determine what
mail matter is obscene, lewd, filthy or libelous, pursuant to Section 1954 of the old Administrative Code
which provides, among others, that no lewd, lascivious, filthy, indecent or libelous character shall be
deposited in, or carried by, the mails of the Philippine Island, or be delivered to its addressee by any officer
or employee of the Bureau of Posts. Petitioner's programs which are televised in the exercise of freedom
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of worship cannot be placed in the category of the printed matter proscribed in the old Administrative
Code. Freedom of worship is such a precious commodity in our hierarchy of civil liberties that it cannot be
derogated peremptorily by an administrative body or officer who determines, without judicial safeguards,
whether or not to allow the exercise of such freedom. The rights of free expression and free exercise of
religion occupy a unique and special place in our constellation of civil rights. The primacy our society
accords these freedoms determines the mode it chooses to regulate their expression. But the idea that
an ordinary statute or decree could, by its effect, nullify both the freedom of religion and the freedom of
expression puts an ominous gloss on these liberties. Censorship law as a means of regulation and as a
form of prior restraint is anathema to a society which places high significance to these values.
MENDOZA, J., separate opinion:
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF SPEECH AND EXPRESSION; GROUNDS FOR
CENSORSHIP. Censorship may be allowed only in a narrow class of cases involving pornography,
excessive violence, and danger to national security.
2. ADMINISTRATIVE LAW; P.D. 1986; POWER OF THE BOARD TO CENSOR MOTION PICTURES AND TV
PROGRAMS, NOT FINAL; AGGRIEVED PARTY MAY RESORT TO COURTS. Even in these cases, only courts
can prohibit the showing of a film or the broadcast of a program. In all other cases, the only remedy
against speech which creates a clear and present danger to public interests is through subsequent
punishment. Considering the potentiality for harm which motion pictures and TV programs may have
especially on the young, all materials may validly be required to be submitted for review before they may
be shown or broadcast. However, the final determination of character of the materials cannot be left to
an administrative agency. That judicial review of administrative action is available does not obviate the
constitutional objection to censorship. For these reasons, I would hold Sec. 3(b) of P.D. No. 1986, which
gives to the Board limited time for review, to be valid, while finding Sec. 3(c), under which the Board acted
in this case in censoring petitioner's materials to be, on its face and as applied, unconstitutional.
3. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF SPEECH AND EXPRESSION, PREFERRED RIGHTS;
PRIOR RESTRAINT ON THEIR EXERCISE CARRIES WITH IT A PRESUMPTION OF INVALIDITY. At the very
least, free speech and free press may be identified with the liberty to discuss publicly and truthfully any
matter of public interest without censorship or punishment. There is to be . . . no previous restraint on
the communication of views or subsequent liability whether in libel suits, prosecution for sedition, or
action for damages, or contempt proceedings, unless there be a clear and present danger of substantive
evil that Congress has a right to prevent. Because of the preferred character of the constitutional rights
of freedom of speech and expression, a weighty presumption of invalidity vitiates measures of prior
restraint upon the exercise of such freedoms.
4. ID.; ID.; ID.; TYPES OF PRIOR RESTRAINTS. Authoritative interpretations of the free speech clause
consider as invalid two types of prior restraints, namely, those which are imposed prior to the
dissemination of any matter and those imposed prior to an adequate determination that the expression
is not constitutionally protected.
5. ADMINISTRATIVE LAW; P.D. NO. 1986; SEC 3(b) THEREOF REQUIRING THE SUBMISSION OF MOTION
PICTURES, TV PROGRAMS AND PUBLICITY MATERIALS TO THE BOARD FOR REVIEW DOES NOT
CONSTITUTE PRIOR RESTRAINT ON FREEDOM OF SPEECH AND EXPRESSION. P.D. No. 1986, Sec. 3(b)
requires motion pictures, television programs and publicity materials to be submitted to the Board for
review. Does Sec. 3(b) impermissibly impose a prior restraint because of its requirement that films and TV
programs must be submitted to the Board for review before they can be shown or broadcast? In my view
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it does not. The Burstyn case, in declaring motion pictures to be protected under the free expression
clause, was careful to add: "It does not follow that the Constitution requires absolute freedom to exhibit
every motion picture of every kind at all times and all places. . . . Nor does it follow that motion pictures
are necessarily subject to the precise rules governing any other particular method of expression. Each
method tends to present its own peculiar problems." With reference to television, this Court is on record
that "a less liberal approach calls for observance. This is so because unlike motion pictures where patrons
have to pay their way, television reaches every home where there is a [TV] set. Children then will likely be
among the avid viewers of programs therein shown . . . .[T]he State as parens patriae is called upon to
manifest an attitude of caring for the welfare of the young." I hold Sec. 3(b) to be a valid exercise of the
State's power to protect legitimate public interests. The purpose of this restraint temporary in
character is to allow the Board time to screen materials and to seek an injunction from the courts
against those which it believes to be harmful.
6. ID.; ID.; SEC 3(c) AUTHORIZING THE BOARD TO PROHIBIT THE EXHIBITION OF MOTION PICTURES, TV
PROGRAMS AND PUBLICITY MATERIALS WHICH IN THE BOARD'S OPINION ARE IMMORAL, INDECENT,
CONTRARY TO LAW AND/OR GOOD CUSTOMS, INJURIOUS TO THE REPUBLIC OR ITS PEOPLE OR WHICH
HAVE A DANGEROUS TENDENCY TO ENCOURAGE COMMISSION OF VIOLENCE, WRONG OR A CRIME
CONSTITUTES CENSORSHIP IN ITS BOLDEST FORM. I reach a different conclusion, however, with respect
to Sec. 3(c). This provision authorizes the Board to prohibit, among other things, the exhibition or
broadcast of motion pictures, television programs and publicity materials which, in its opinion, are
"immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the
Philippines or its people, or [which have] a dangerous tendency to encourage the commission of violence
or of a wrong or crime." Under this authority, the Board can determine what can be shown or broadcast
and what cannot. It is not true, as the Board claims, that under P.D. No. 1986 its power is limited to the
classification of motion pictures and TV programs. The power to classify includes the power to censor. The
Board can x-rate films and TV programs and thus ban their public exhibition or broadcast. And once it
declares that a motion picture or television program is, for example, indecent or contrary to law, as in the
case of the INC program in question, its declaration becomes the law. Unless the producer or exhibitor is
willing to go to court, shouldering not only the burden of showing that his movie or television program is
constitutionally protected but also the cost of litigation, the ban stays. This is censorship in its boldest
form. This is contrary to the fundamental tenet of our law that until and unless speech is found by the
courts to be unprotected its expression must be allowed. By authorizing the censorship of materials which
in the opinion of the Board are "contrary to law, Sec. 3(c) makes what is only a ground for subsequent
punishment also a ground for prior restraint on expression. It is Sec. 3(c) of P.D. No. 1986, and not only
the rules implementing it, which is unconstitutional. To the extent therefore that P.D. No. 1986, Sec. 3(c)
vests in the Board the final authority to determine whether expression by motion picture or television is
constitutionally protected, I find it unconstitutional.
7. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF SPEECH AND EXPRESSION; CLEAR AND PRESENT
DANGER RULE; DETERMINATION OF APPLICABILITY OF RULE REQUIRES FACTUAL RECORD. The clear
and present danger test has been devised for use in criminal prosecutions for violations of laws punishing
certain types of utterances. While the test has been applied to the regulation of the use of streets and
parks surely a form of prior restraint its use in such context can be justified on the ground that the
content of the speech is not the issue. But when the regulation concerns not the time, place or manner
of speech but its content (i.e., it is content based) the clear and present danger test simply cannot be
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applied. This is because a determination whether an utterance has created a clear and present danger to
public interests requires a factual record.
PANGANIBAN, J., separate (concurring) opinion:
1. ADMINISTRATIVE LAW; P.D. No. 1986 (MTRCB); STATUTORY POWERS ARE LIMITED BY THE BILL OF
RIGHTS. The statutory powers of the MTRCB are set forth in Sec. 3 of P.D. 1986. In implementing P.D.
1986, the MTRCB issued its own Rules and Regulations. At issue in this case is Section 4 of such Rules. On
the other hand, these statutory powers and internally generated regulations are limited by the Bill of
Rights, Art. III of the 1987 Constitution, particularly the rights to free speech and religion.
2. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF RELIGION; ABSOLUTE WHEN CONFINED WITHIN
THE REALM OF THOUGHT BUT SUBJECT TO REGULATION WHEN TRANSFORMED INTO EXTERNAL ACTS.
"(F)reedom of religion has been accorded a preferred status by the framers of our fundamental laws, past
and present." Religious freedom is absolute when it is confined within the realm of thought to a private,
personal relationship between a man's conscience and his God, but it is subject to regulation when
religious belief is transformed into external acts that affect or afflict others. The mere invocation of
religious freedom will not stalemate the State and ipso facto render it incompetent in preserving the
rights of others and in protecting the general welfare.
3. ADMINISTRATIVE LAW; P.D. No. 1986 (MTRCB); BASIC POWERS. As an agency of the State created to
promote the general welfare, the MTRCB under P.D. 1986 has the basic initiatory authority and power, to
"approve or disapprove, delete objectionable portion from and/or prohibit the importation, exportation,
production, copying distribution, sale, lease, exhibition and/or prohibit the importation, exportation,
production, copying distribution, sale, lease, exhibition and/or television broadcast" of pre-taped or
canned (as contra-distinguished from "live") video-audio/film/television programs and publicity materials.
4. ID.; ID.; ID.; AUTHORITY EXTENDS TO BOTH NON-RELIGIOUS AND RELIGIOUS VIDEO MATERIALS.
Petitioner INC contends that the MTRCB's authority extends only to non-religious video materials but not
to religious programs, particularly those of INC, which it claims are neither "immoral" nor "indecent." This
position presents more problems than solutions. For whowill determine whether a given canned material
is religions or not, and therefore whether it can be publicly exhibited or not without its passing through
the Board? I would prefer that the State, which is constitutionally mandated to be neutral, continue to
exercise the power to make such determination, rather than leave it up to the producer, maker, or
exhibitor of such matter, who/which, because of vested interests would, in the normal course, be
understandably biased in his/its own favor. I feel less discomfort with the idea of maintaining the censors'
quasi-judicial authority to review such film materials, subject to appeal to the proper courts aggrieved
parties, than with the prospect and consequences of doing away with such power altogether. I agree with
Mr. Justice Vitug in finding "it more prudent to have a deferment of an exhibition that may be perceived
(by the Board) to be contrary to decency, morality, good custom or the law until at least, the courts are
given an opportunity to pass upon the matter . . ." A contrary ruling would most regrettably remove
meaningful and necessary safeguards against a veritable floodtide of prurient, violence-prone and values-
eroding television shows and programs.
5. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF RELIGION; POWER OF REVIEW AND PROHIBITION
THRU THE MTRCB, STATE'S EXERCISE OF ITS ROLE AS PARENS PATRIAE. Gonzales vs. Kalaw
Katigbak and Eastern Broadcasting Corp. (DYRE) vs. Dans, Jr., this Court early on acknowledged the
uniquely pervasive presence of broadcast and electronic media in the lives of everyone, and the easy
accessibility of television and radio to just about anyone, especially children. Everyone is susceptible to
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their influence, even "the indifferent or unwilling who happen to be within reach of a blaring radio or
television set." And these audiences have less opportunity to cogitate, analyze and reject the utterances,
compared to readers of printed material. It is precisely because the State as parens patriae is "called upon
to manifest an attitude of caring for the welfare of the young" that I vote for the retention of the State's
power of review and prohibition via the MTRCB.
6. ADMINISTRATIVE LAW; P.D. NO. 1986 (MTRCB); EXERCISE OF POWERS OF REVIEW AND PROHIBITION
SUBJECT TO CONSTITUTIONAL STANDARD. In exercising its prerogatives, the MTRCB cannot act
absolutely or whimsically. It must act prudently. And it can do so ONLY if it exercises its powers of review
and prohibition according to a standard and/or a limit.
7. ID.; ID.; ID.; PHRASE "WITH A DANGEROUS TENDENCY" IN SEC. 3-C, UNCONSTITUTIONAL. I believe
that the phrase "with a dangerous tendency" in Sec. 3-c of P.D. 1986 should be struck down as an
unconstitutional standard. This is martial law vintage and should be replaced with the more libertarian
"clear and present danger rule" which is eloquently explained byJJ. Kapunan, Puno and Mendoza (and
which explanation I shall not repeat here). On the other hand, when the question is whether the material
being reviewed "encourages the commission of violence or of a wrong or crime" per the enumeration
contained in Sec. 3-c, the "clear and present danger" principle should be applied as the standard in place
of the "dangerous tendency" rule.
8. ID.; ID.; ID.; CONTEMPORARY PHILIPPINE CULTURAL VALUES MORE APPROPRIATE STANDARD. There
is an even more appropriate standard in the Philippine context proffered by the law itself, and that is
"contemporary Philippine cultural values." This standard under the law, should be used in determining
whether a film or video program is "(a) immoral, (b) indecent, (c) contrary to law and/or good customs,
and (d) injurious to the prestige of the Republic of the Philippines or its people."
9. ID.; ID.; INTERNAL RULES AND REGULATIONS SHOULD BE READ TOGETHER WITH OTHER EXISTING
LAWS. Anent the validity of Sec. 4 of the Board's Rules and Regulation authorizing MTRCB to prohibit
the showing of materials "which clearly constitute an attack against any race, creed or religion . . .," I agree
with Mr. Justice Vitug that the phrase "contrary to law" in Sec. 3-c "should be read together with other
existing laws such as, for instance, the provisions of the Revised Penal Code, particularly Article 201, which
prohibit the exhibition of shows that 'offend another race or religion'." I note, in this connection,
the caveat raised by the ponencia that the MTRCB Rule bans shows which "attack" a religion, whereas Art.
201 merely penalizes those who exhibit programs which "offend" such religion. Subject to changing the
word "attack" with the more accurate "offend," I believe Section 4 of the Rules can stand. In sum, I
respectfully submit (1) that P.D. 1986 is constitutional, subject to the substitution (or interpretation) of
the words "dangerous tendency" with the phrase (or as meaning) "clear and present danger" in Sec. 3-c;
and (2) that Sec. 4 of the Board's Rules would be likewise valid, provided the words "constitute an attack"
are changed with "offend."
10. REMEDIAL LAW; EVIDENCE; PRESUMPTION THAT OFFICIAL DUTIES HAVE BEEN REGULARLY
PERFORMED; MUST YIELD TO FREEDOMS OF EXPRESSION AND RELIGION. The tape in question was
never submitted to the Court for viewing. Neither was there a detailed description of its objectionable
contents in the assailed Decision of the Court of Appeals or Regional Trial Court. Nor is there extant a
detailed justification prepared by respondent Board on why it banned the program other than its
bare conclusion that the material constituted an attack against the Catholic and Protestant religions. In no
wise can the "remarks" in the voting slips presented before the trial court be considered sufficient
justification for banning the showing of any material. In the face of such inadequacy of evidence and
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basis, I see no way that this Court could authorize a suppression of a species of the freedom of speech on
the say-so of anyone not even the MTRCB. Paraphrasing People vs. Fernando, the disputable
presumption (which is of statutory origin) that official duties have been regularly performed must yield to
the constitutionally enshrined freedoms of expression and of religion. If courts are required to state the
factual and legal bases of their conclusions and judicial dispositions, with more reason must quasi-judicial
officers such as censors, especially when they curtail a fundamental right which is "entitled to the highest
priority and amplest protection."
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF RELIGION; OCCUPIES AN EXALTED POSITION.
Religious freedom occupies an exalted position in our hierarchy of rights and that the freedom to
disseminate religious information is a constitutionally-sanctioned prerogative that allows any legitimate
religious denomination a free choice of media in the propagation of its credo. Like any other right,
however, the exercise of religious belief is not without inherent and statutory limitations.
2. ADMINISTRATIVE LAW; P.D. 1986 (BOARD OF REVIEW FOR MOTION PICTURES AND TELEVISION);
POWER TO DELETE OBJECTIONABLE PORTIONS OF T.V. PROGRAMS FOR BEING CONTRARY TO LAW;
PHRASE "CONTRARY TO LAW" SHOULD BE READ TOGETHER WITH OTHER EXISTING LAWS. The Board
disapproved the exhibition of a series of television programs of petitioner on the ground that they tend
to "offend and constitute an attack against other religions." An opinion has been expressed that the non-
inclusion in Section 3 of P.D. 1986 of an "attack against any religion," as a standard for classification, and
so the deletion of the phrase "offensive to other religions" found in the old censorship law (Executive
Order No. 876), should be clear enough to manifest a legislative intent "to do away with the standard." A
reading of Section 3 of P.D. 1986 shows that the Board is empowered to "screen, review and examine all
. . . television programs" and to "approve or disprove, delete objectionable portion from and/or prohibit
the . . . television broadcast of . . . television programs . . . which, in the judgment of the BOARD (so)
applying contemporary Filipino cultural values as standard, are objectionable for being immoral
indecent, contrary to law and/or good customs . . ." I believe that the phrase "contrary to law" should be
read together with other existing laws such as, for instance, the provisions of the Revised Penal Code,
particularly Article 201, which prohibits the exhibition of shows that "offend another race or religion." I
see in this provision a good and sound standard. Recent events indicate recurrent violent incidents
between and among communities with diverse religious beliefs and dogma. The danger is past mere
apprehension; it has become a virtual reality and now prevalent in some parts of the world.
3. ID.; ID.; ID.; RESTRICTION MUST BE FOR LEGITIMATE AND VALID REASONS. In order not to infringe
constitutional principles, any restriction by the Board must, of course, be for legitimate and valid reasons.
4. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF RELIGION; PRIOR CENSORSHIP SHOULD NOT BE
REJECTED. I certainly do not think that prior censorship should altogether be rejected just because
sanctions can later be imposed. Regulating the exercise of a right is not necessarily an anathema to it; in
fact, it can safeguard and secure that right.
DECISION
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PUNO, J p:
This is a petition for review of the Decision dated March 24, 1995 of the respondent Court of Appeals
affirming the action of the respondent Board for Motion Pictures and Television which x-rated the TV
Program "Ang Iglesia ni Cristo."
Petitioner Iglesia ni Cristo, a duly organized religious organization, has a television program entitled "Ang
Iglesia ni Cristo" aired on Channel 2 every Saturday and on Channel 13 every Sunday. The program
presents and propagates petitioner's religious beliefs, doctrines and practices often times in comparative
studies with other religions.
Sometime in the months of September, October and November 1992, petitioner submitted to the
respondent Board of Review for Motion Pictures and Television the VTR tapes of its TV program Series
Nos. 116, 119, 121 and 128. The Board classified the series as "X" or not for public viewing on the ground
that they "offend and constitute an attack against other religions which is expressly prohibited by law."
Petitioner pursued two (2) courses of action against the respondent Board. On November 28, 1992, it
appealed to the Office of the President the classification of its TV Series No. 128. It succeeded in its appeal
for on December 18, 1992, the Office of the President reversed the decision of the respondent Board.
Forthwith, the Board allowed Series No. 128 to be publicly telecast.
On December 14, 1992, petitioner also filed against the respondent Board Civil Case No. Q-92-14280, with
the RTC, NCR, Quezon City. 1 Petitioner alleged that the respondent Board acted without jurisdiction or
with grave abuse of discretion in requiring petitioner to submit the VTR tapes of its TV program and in x-
rating them. It cited its TV Program Series Nos. 115, 119, 121 and 128. In their Answer, respondent Board
invoked its power under PD No. 1986 in relation to Article 201 of the Revised Penal Code.
On January 4, 1993, the trial court held a hearing on petitioner's prayer for a writ of preliminary injunction.
The parties orally argued and then marked their documentary evidence. Petitioner submitted the
following as its exhibits, viz.:
(1) Exhibit "A," respondent Board's Voting Slip for Television showing its September 9,
1992 action on petitioner's Series No. 115 as follows: 2
REMARKS:
There are some inconsistencies in the particular program as it is very surprising
for this program to show series of Catholic ceremonies and also some religious
sects and using it in their discussion about the bible. There are remarks which
are direct criticism which affect other religions.
Need more opinions for this particular program. Please subject to more
opinions.
(2) Exhibit "A-1," respondent Board's Voting Slip for Television showing its September
11, 1992 subsequent action on petitioner's Series No. 115 as follows: 3
REMARKS:
This program is criticizing different religions, based on their own interpretation
of the Bible.
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We suggest that the program should delve on explaining their own faith and
beliefs and avoid attacks on other faith.
(3) Exhibit "B," respondent Board's Voting Slip for Television showing its October 9,
1992 action on petitioner's Series No. 119, as follows: 4
REMARKS:
The Iglesia ni Cristo insists on the literal translation of the bible and says that
our (Catholic) veneration of the Virgin Mary is not to be condoned because
nowhere it is found in the bible that we should do so.
This is intolerance and robs off all sects of freedom of choice, worship and
decision.
(4) Exhibit "C," respondent Board's Voting Slip for Television showing its October 20,
REMARKS:
I refuse to approve the telecast of this episode for reasons of the attacks, they
do on, specifically, the Catholic religion.
I refuse to admit that they can tell, dictate any other religion that they are right
and the rest are wrong, which they clearly present in this episode.
(5) Exhibit "D," respondent Board's Voting Slip for Television showing its November 20,
REMARKS:
The episode presented criticizes the religious beliefs of the Catholic and
Protestant's beliefs.
We suggest a second review.
(6) Exhibits "E," "E-1," petitioner's block time contract with ABS-CBN Broadcasting
Corporation dated September 1, 1992. 7
(7) Exhibit "F," petitioner's Airtime Contract with Island Broadcasting Corporation. 8
(8) Exhibit "G," letter dated December 18, 1992 of former Executive Secretary Edelmiro
A. Amante, Sr., addressed to Henrietta S. Mendez reversing the decision of the
respondent Board which x-rated the showing of petitioner's Series No. 129. The letter
reads in part:
"xxx xxx xxx
The television episode in question is protected by the constitutional guarantee
of free speech and expression under Article III, section 4 of the 1987
Constitution.
We have viewed a tape of the television episode in question, as well as studied
the passages found by MTRCB to be objectionable and we find no indication
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that the episode poses any clear and present danger sufficient to limit the said
constitutional guarantee."
(9) Exhibits "H," "H-1," letter dated November 26, 1992 of Teofilo C. Ramos, Sr.,
addressed to President Fidel V. Ramos appealing the action of the respondent Board x-
rating petitioner's Series No. 128.
On its part, respondent Board submitted the following exhibits, viz.:
(1) Exhibit "1," Permit Certificate for Television Exhibition No. 15181 dated December
18, 1992 allowing the showing of Series No. 128 under parental guidance.
(2) Exhibit "2," which is Exhibit "G" of petitioner.
(3) Exhibit "3," letter dated October 12, 1992 of Henrietta S. Mendez, addressed to the
Christian Era Broadcasting Service which reads in part:
xxx xxx xxx
In the matter of your television show "Ang Iglesia ni Cristo" Series No. 119, please be
informed that the Board was constrained to deny your show a permit to exhibit. The
material involved constitute an attack against another religion which is expressly
prohibited by law. Please be guided in the submission of future shows.
After evaluating the evidence of the parties, the trial court issued a writ of preliminary injunction on
petitioner's bond of P10,000.00.
The trial court set the pre-trial of the case and the parties submitted their pre-trial briefs. 9 The pre-trial
briefs show that the parties' evidence is basically the evidence they submitted in the hearing of the issue
of preliminary injunction. The trial of the case was set and reset several times as the parties tried to reach
an amicable accord. Their efforts failed and the records show that after submission of memoranda, the
trial court rendered a Judgment, 10 on December 15, 1993, the dispositive portion of which reads:
"xxx xxx xxx
WHEREFORE, judgment is hereby rendered ordering respondent Board of Review for
Motion Pictures and Television (BRMPT) to grant petitioner Iglesia ni Cristo the
necessary permit for all the series of 'Ang Iglesia ni Cristo' program.
Petitioner Iglesia ni Cristo, however, is directed to refrain from offending and attacking
other existing religions in showing 'Ang Iglesia ni Cristo' program.
SO ORDERED."
Petitioner moved for reconsideration 11 praying: (a) for the deletion of the second paragraph of the
dispositive portion of the Decision, and (b) for the Board to be perpetually enjoined from requiring
petitioner to submit for review the tapes of its program. The respondent Board opposed the
motion. 12 On March 7, 1993, the trial court granted petitioner's Motion for Reconsideration. It
ordered: 13
"xxx xxx xxx
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WHEREFORE, the Motion for Reconsideration is granted. The second portion of the
Court's Order dated December 15, 1993, directing petitioner to refrain from offending
and attacking other existing religions in showing 'Ang Iglesia ni Cristo' program is hereby
deleted and set aside. Respondents are further prohibited from requiring petitioner
Iglesia ni Cristo to submit for review VTR tapes of its religious program 'Ang Iglesia ni
Cristo'."
Respondent Board appealed to the Court of Appeals after its motion for reconsideration was
denied. 14
On March 5, 1995, the respondent Court of Appeals 15 reversed the trial court. It ruled that: (1) the
respondent board has jurisdiction and power to review the TV program "Ang Iglesia ni Cristo," and (2) the
respondent Board did not act with grave abuse of discretion when it denied permit for the exhibition on
TV of the three series of "Ang Iglesia ni Cristo" on the ground that the materials constitute an attack
against another religion. It also found the series "indecent, contrary to law and contrary to good customs."
In this petition for review on certiorari under Rule 45, petitioner raises the following issues:
I
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE
'ANG IGLESIA NI CRISTO' PROGRAM IS NOT CONSTITUTIONALLY PROTECTED AS A FORM
OF RELIGIOUS EXERCISE AND EXPRESSION.
II
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING THAT
BEING AN EXERCISE OF RELIGIOUS FREEDOM, THE 'ANG IGLESIA NI CRISTO' PROGRAM
IS SUBJECT TO THE POLICE POWER OF THE STATE ONLY IN THE EXTREME CASE THAT IT
POSES A CLEAR AND PRESENT DANGER.
III
MTRCB IS VESTED WITH THE POWER TO CENSOR RELIGIOUS PROGRAMS.
IV
'ANG IGLESIA NI CRISTO,' A PURELY RELIGIOUS PROGRAM IS INDECENT AND CONTRARY
TO LAW AND GOOD CUSTOMS.
The basic issues can be reduced into two: (1) first, whether the respondent Board has the power to review
petitioner's TV program "Ang Iglesia ni Cristo," and (2) second, assuming it has the power, whether it
gravely abused its discretion when it prohibited the airing of petitioner's religious program, series Nos.
115, 119 and 121, for the reason that they constitute an attack against other religions and that they are
indecent, contrary to law and good customs.
The first issue can be resolved by examining the powers of the Board under PD No. 1986. Its section 3
pertinently provides:
"Sec. 3 Powers and Functions. The BOARD shall have the following functions, powers
and duties:
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xxx xxx xxx

b) To screen, review and examine all motion pictures as herein defined, television
programs, including publicity materials such as advertisements, trailers and
stills, whether such motion pictures and publicity materials be for theatrical or
non-theatrical distribution for television broadcast or for general viewing,
imported or produced in the Philippines and in the latter case, whether they be
for local viewing or for export.
c) To approve, delete objectionable portion from and/or prohibit the importation,
exportation, production, copying, distribution, sale, lease, exhibition and/or
television broadcast of the motion pictures, television programs and publicity
materials, subject of the preceding paragraph, which, in the judgment of the
BOARD applying contemporary Filipino cultural values as standard, are
objectionable for being immoral, indecent, contrary to law and/or good
customs, injurious to the prestige of the Republic of the Philippines and its
people, or with a dangerous tendency to encourage the commission of violence
or of a wrong or crime, such as but not limited to:
i) Those which tend to incite subversion, insurrection, rebellion or sedition
against the State, or otherwise threaten the economic and/or political
stability of the State;
ii) Those which tend to undermine the faith and confidence of the people, their
government and/or duly constituted authorities.
iii) Those which glorify criminals or condone crimes;
iv) Those which serve no other purpose but to satisfy the market for violence
or pornography;
v) Those which tend to abet the traffic in and use of prohibited drugs;
vi) Those which are libelous or defamatory to the good name and reputation of
any person, whether living or dead;
vii) Those which may constitute contempt of court or of any quasi-judicial
tribunal, or pertain to matters which are sub-judice in nature (emphasis
ours).
The law gives the Board the power to screen, review and examine all "television programs." By the
clear terms of the law, the Board has the power to "approve, delete . . . and/or prohibit the . . .
exhibition and/or television broadcast of . . . television programs . . ." The law also directs the Board
to apply "contemporary Filipino cultural values as standard" to determine those which are
objectionable for being "immoral, indecent, contrary to law and/or good customs, injurious to the
prestige of the Republic of the Philippines and its people, or with a dangerous tendency to encourage
the commission of violence or of a wrong or crime."
Petitioner contends that the term "television program" should not include religious programs like its
program "Ang Iglesia ni Cristo." A contrary interpretation, it is urged, will contravene section 5, Article III
of the Constitution which guarantees that "no law shall be made respecting an establishment of religion,
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or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and
worship, without discrimination or preference, shall forever be allowed."
We reject petitioner's submission which need not set us adrift in a constitutional voyage towards an
uncharted sea. Freedom of religion has been accorded a preferred status by the framers of our
fundamental laws, past and present. We have affirmed this preferred status well aware that it is "designed
to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience
directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of
others and with the common good." 16 We have also laboriously defined in our jurisprudence the
intersecting umbras and penumbras of the right to religious profession and worship. To quote the
summation of Mr. Justice Isagani Cruz, our well-known constitutionalist: 17
Religious Profession and Worship
The right to religious profession and worship has a two-fold aspect, viz., freedom to
believe and freedom to act on one's beliefs. The first is absolute as long as the belief is
confined within the realm of thought. The second is subject to regulation where the
belief is translated into external acts that affect the public welfare.
(1) Freedom to Believe
The individual is free to believe (or disbelieve) as he pleases concerning the hereafter.
He may indulge his own theories about life and death; worship any god he chooses, or
none at all; embrace or reject any religion; acknowledge the divinity of God or of any
being that appeals to his reverence; recognize or deny the immortality of his soul in
fact, cherish any religious conviction as he and he alone sees fit. However absurd his
beliefs may be to others, even if they be hostile and heretical to the majority, he has
full freedom to believe as he pleases. He may not be required to prove his beliefs. He
may not be punished for his inability to do so. Religion, after all, is a matter of faith.
'Men may believe what they cannot prove.' Every one has a right to his beliefs and he
may not be called to account because he cannot prove what he believes.
(2) Freedom to Act on One's Beliefs
But where the individual externalizes his beliefs in acts or omissions that affect the
public, his freedom to do so becomes subject to the authority of the State. As great as
this liberty may be, religious freedom, like all the other rights guaranteed in the
Constitution, can be enjoyed only with a proper regard for the rights of others. It is error
to think that the mere invocation of religious freedom will stalemate the State and
render it impotent in protecting the general welfare. The inherent police power can be
exercised to prevent religious practices inimical to society. And this is true even if such
practices are pursued out of sincere religious conviction and not merely for the purpose
of evading the reasonable requirements or prohibitions of the law.
Justice Frankfurter put it succinctly: 'The constitutional provision on religious freedom
terminated disabilities, it did not create new privileges. It gave religious liberty, not civil
immunity. Its essence is freedom from conformity to religious dogma, not freedom from
conformity to law because of religious dogma.
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Accordingly, while one has full freedom to believe in Satan, he may not offer the object
of his piety a human sacrifice, as this would be murder. Those who literally interpret
the Biblical command to "go forth and multiply" are nevertheless not allowed to
contract plural marriages in violation of the laws against bigamy. A person cannot refuse
to pay taxes on the ground that it would be against his religious tenets to recognize any
authority except that of God alone. An atheist cannot express his disbelief in acts of
derision that wound the feelings of the faithful. The police power can be validly asserted
against the Indian practice of the suttee born of deep religious conviction, that calls on
the widow to immolate herself at the funeral pile of her husband.
We thus reject petitioner's postulate that its religious program is per se beyond review by the respondent
Board. Its public broadcast on TV of its religious program brings it out of the bosom of internal belief.
Television is a medium that reaches even the eyes and ears of children. The Court iterates the rule that
the exercise of religious freedom can be regulated by the State when it will bring about the clear and
present danger of some substantive evil which the State is duty bound to prevent, i.e., serious detriment
to the more overriding interest of public health, public morals, or public welfare. A laissez faire policy on
the exercise of religion can be seductive to the liberal mind but history counsels the Court against its blind
adoption as religion is and continues to be a volatile area of concern in our country today. Across the sea
and in our shore, the bloodiest and bitterest wars fought by men were caused by irreconcilable religious
differences. Our country is still not safe from the recurrence of this stultifying strife considering our
warring religious beliefs and the fanaticism with which some of us cling and claw to these beliefs. Even
now, we have yet to settle the near century old strife in Mindanao, the roots of which have been nourished
by the mistrust and misunderstanding between our Christian and Muslim brothers and sisters. The
bewildering rise of weird religious cults espousing violence as an article of faith also proves the wisdom
of our rule rejecting a strict let alone policy on the exercise of religion. For sure, we shall continue to
subject any act pinching the space for the free exercise of religion to a heightened scrutiny but we shall
not leave its rational exercise to the irrationality of man. For when religion divides and its exercise destroys,
the State should not stand still.
It is also petitioner's submission that the respondent appellate court gravely erred when it
affirmed the ruling of the respondent Board x-rating its TV Program Series Nos. 115, 119, 121 and 128.
The records show that the respondent Board disallowed the program series for "attacking" other
religions. Thus, Exhibits "A," "A-1," (respondent Board's Voting Slip for Television) reveal that its
reviewing members x-rated Series 115 for ". . . criticizing different religions, based on their own
interpretation of the Bible." They suggested that the program should only explain petitioner's ". . .
own faith and beliefs and avoid attacks on other faiths." Exhibit "B" shows that Series No. 119 was x-
rated because "the Iglesia ni Cristo insists on the literal translation of the bible and says that our
Catholic veneration of the Virgin Mary is not to be condoned because nowhere it is found in the bible
that we should do so. This is intolerance . . ." Exhibit "C" shows that Series No. 121 was x-rated ". . .
for reasons of the attacks, they do on, specifically, the Catholic religion. . . . (T)hey can not tell, dictate
any other religion that they are right and the rest are wrong . . ." Exhibit "D" also shows that Series
No. 128 was not favorably recommended because it ". . . outrages Catholic and Protestant's beliefs."
On second review, it was x-rated because of its "unbalanced interpretations of some parts of the
bible." 18 In sum, the respondent Board x-rated petitioner's TV program series Nos. 115, 119, 121 and
128 because of petitioner's controversial biblical interpretations and its "attacks" against contrary
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religious beliefs. The respondent appellate court agreed and even held that the said "attacks" are
indecent, contrary to law and good customs.
We reverse the ruling of the appellate court.
First. Deeply ensconced in our fundamental law is its hostility against all prior restraints on speech,
including religious speech. Hence, any act that restrains speech is hobbled by the presumption of invalidity
and should be greeted with furrowed brows. 19 It is the burden of the respondent Board to overthrow
this presumption. If it fails to discharge this burden, its act of censorship will be struck down. It failed in
the case at bar.
Second. The evidence shows that the respondent Board x-rated petitioner's TV series for "attacking" other
religions, especially the Catholic church. An examination of the evidence, especially Exhibits "A," "A-1,"
"B, "C," and "D" will show that the so-called "attacks" are mere criticisms of some of the deeply held
dogmas and tenets of other religions. The videotapes were not viewed by the respondent court as they
were not presented as evidence. Yet they were considered by the respondent court as indecent, contrary
to law and good customs, hence, can be prohibited from public viewing under section 3(c) of PD 1986.
This ruling clearly suppresses petitioner's freedom of speech and interferes with its right to free exercise
of religion. It misappreciates the essence of freedom to differ as delineated in the benchmark case
of Cantwell v. Connecticut, 20 viz.:
xxx xxx xxx
In the realm of religious faith, and in that of political belief, sharp differences arise. In
both fields, the tenets of one man may seem the rankest error to his neighbor. To
persuade others to his own point of view, the pleader, as we know, at times, resorts to
exaggeration, to vilification of men who have been, or are prominent in church or state
or even to false statements. But the people of this nation have ordained in the light of
history that inspite of the probability of excesses and abuses, these liberties are, in the
long view, essential to enlightened opinion and right conduct on the part of the citizens
of democracy.
The respondent Board may disagree with the criticisms of other religions by petitioner but that
gives it no excuse to interdict such criticisms, however, unclean they may be. Under our constitutional
scheme, it is not the task of the State to favor any religion by protecting it against an attack by another
religion. Religious dogmas and beliefs are often at war and to preserve peace among their followers,
especially the fanatics, the establishment clause of freedom of religion prohibits the State from leaning
towards any religion. Vis-a-vis religious differences, the State enjoys no banquet of options. Neutrality
alone is its fixed and immovable stance. In fine, respondent board cannot squelch the speech of
petitioner Iglesia ni Cristo simply because it attacks other religions, even if said religion happens to be
the most numerous church in our country. In a State where there ought to be no difference between
the appearance and the reality of freedom of religion, the remedy against bad theology is better
theology. The bedrock of freedom of religion is freedom of thought and it is best served by encouraging
the marketplace of dueling ideas. When the luxury of time permits, the marketplace of ideas demands
that speech should be met by more speech for it is the spark of opposite speech, the heat of colliding
ideas that can fan the embers of truth.
Third. The respondents cannot also rely on the ground "attacks against another religion" in x-rating the
religious program of petitioner. Even a side-glance at section 3 of PD No. 1986 will reveal that it is not
among the grounds to justify an order prohibiting the broadcast of petitioner's television program. The
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ground "attack against another religion" was merely added by the respondent Board in its Rules. 21 This
rule is void for it runs smack against the hoary doctrine that administrative rules and regulations cannot
expand the letter and spirit of the law they seek to enforce.
It is opined that the respondent board can still utilize "attack against any religion" as a ground allegedly ".
. . because section 3 (c) of PD No. 1986 prohibits the showing of motion pictures, television programs and
publicity materials which are contrary to law and Article 201 (2) (b) (3) of the Revised Penal Code punishes
anyone who exhibits "shows which offend any race or religion." We respectfully disagree for it is plain that
the word "attack" is not synonymous with the word "offend." Moreover, Article 201 (2) (b) (3) of the
Revised Penal Code should be invoked to justify the subsequent punishment of a show which offends any
religion. It cannot be utilized to justify prior censorship of speech. It must be emphasized that E.O. 876,
the law prior to PD 1986, included "attack against any religion" as a ground for censorship. The ground
was not, however, carried over by PD 1986. Its deletion is a decree to disuse it. There can be no other
intent. Indeed, even the Executive Department espouses this view. Thus, in an Opinion dated November
28, 1985 then Minister of Justice, now President of the Senate, Neptali Gonzales explained:
"xxx xxx xxx
"However, the question whether the BRMPT (now MTRCB) may preview and censor the
subject television program of INC should be viewed in the light of the provision of
Section 3, paragraph (c) of PD 1986, which is substantially the same as the provision of
Section 3, paragraph (c) of E.O. No. 876-A, which prescribes the standards of
censorship, to wit: 'immoral, indecent, contrary to law and/or good customs, injurious
to the prestige of the Republic of the Philippines or its people or with dangerous
tendency to encourage the commission of violence, or of a wrong' as determined by
the Board, 'applying contemporary Filipino cultural values as standard.' As stated, the
intention of the Board to subject the INC's television program to 'previewing and
censorship is prompted by the fact that its religious program' makes mention of beliefs
and practices of other religion.' On the face of the law itself, there can conceivably be
no basis for censorship of said program by the Board as much as the alleged reason cited
by the Board does not appear to be within the contemplation of the standards of
censorship set by law." (Emphasis supplied)
Fourth. In x-rating the TV program of the petitioner, the respondents failed to apply the clear and present
danger rule. In American Bible Society v. City of Manila, 22 this Court held: "The constitutional guaranty
of free exercise and enjoyment of religious profession and worship carries with it the right to disseminate
religious information. Any restraint of such right can be justified like other restraints on freedom of
expression on the ground that there is a clear and present danger of any substantive evil which the State
has the right to prevent." InVictoriano vs. Elizalde Rope Workers Union, 23 we further ruled that ". . . it is
only where it is unavoidably necessary to prevent an immediate and grave danger to the security and
welfare of the community that infringement of religious freedom may be justified, and only to the smallest
extent necessary to avoid the danger."
The records show that the decision of the respondent Board, affirmed by the respondent appellate court,
is completely bereft of findings of facts to justify the conclusion that the subject video tapes constitute
impermissible attacks against another religion. There is no showing whatsoever of the type of harm the
tapes will bring about especially the gravity and imminence of the threatened harm. Prior restraint on
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speech, including religious speech, cannot be justified by hypothetical fears but only by the showing of a
substantive and imminent evil which has taken the life of a reality already on ground.
It is suggested that we re-examine the application of clear and present danger rule to the case at bar. In
the United States, it is true that the clear and present danger test has undergone permutations. It was Mr.
Justice Holmes who formulated the test in Schenck v. US, 24 as follows: ". . . the question in every case is
whether the words used are used in such circumstances and are of such a nature as to create a clear and
present danger that they will bring about the substantive evils that Congress has a right to prevent."
Admittedly, the test was originallydesigned to determine the latitude which should be given to speech
that espouses anti-government action. Bannered by Justices Holmes and Brandeis, the test attained its
full flowering in the decade of the forties, when its umbrella was used to protect speech other than
subversive speech. 25 Thus, for instance, the test was applied to annul a total ban on labor
picketing. 26The use of the test took a downswing in the 1950's when the US Supreme Court
decided Dennis v. United States involving communist conspiracy. 27 In Dennis, the components of the test
were altered as the High Court adopted Judge Learned Hand's formulation that ". . . in each case [courts]
must ask whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free
speech as is necessary to avoid the danger." The imminence requirement of the test was thus diminished
and to that extent, the protection of the rule was weakened. In 1969, however, the strength of the test
was reinstated in Brandenburg v. Ohio, 28 when the High Court restored in the test the imminence
requirement, and even added an intent requirement which according to a noted commentator ensured
that only speech directed at inciting lawlessness could be punished. 29 Presently in the United States, the
clear and present danger test is not applied to protect low value speeches such as obscene speech,
commercial speech and defamation. Be that as it may, the test is still applied to four types of speech:
speech that advocates dangerous ideas, speech that provokes a hostile audience reaction, out of court
contempt and release of information that endangers a fair trial. 30 Hence, even following the drift of
American jurisprudence, there is reason to apply the clear and present danger test to the case at bar which
concerns speech that attacks other religions and could readily provoke hostile audience reaction. It cannot
be doubted that religious truths disturb and disturb terribly.
It is also opined that it is inappropriate to apply the clear and present danger test to the case at bar
because the issue involves the content of speech and not the time, place or manner of speech. Allegedly,
unless the speech is first allowed, its impact cannot be measured, and the causal connection between the
speech and the evil apprehended cannot be established. The contention overlooks the fact that the case
at bar involves videotapes that are pre-taped and hence, their speech content is known and not an X
quantity. Given the specific content of the speech, it is not unreasonable to assume that the respondent
Board, with its expertise, can determine whether its sulphur will bring about the substantive evil feared
by the law.
Finally, it is also opined by Mr. Justice Kapunan that . . . the determination of the question as to whether
or not such vilification, exaggeration or fabrication falls within or lies outside the boundaries of protected
speech or expression is a judicial function which cannot be arrogated by an administrative body such as a
Board of Censors." He submits that a "system of prior restraint may only be validly administered
by judges and not left to administrative agencies." The same submission is made by Mr. Justice Mendoza.
This thoughtful thesis is an attempt to transplant another American rule in our jurisdiction. Its seedbed
was laid down by Mr. Justice Brennan in his concurring opinion in the 1962 case ofManual Enterprise v.
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Day. 31 By 1965, the US Supreme Court in Freedman v. Maryland 32 was ready to hold that "the teaching
of cases is that, because only a judicial determination in an adversary proceeding ensures the necessary
sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose
a valid final restraint." 33
While the thesis has a lot to commend itself, we are not ready to hold that it is unconstitutional for
Congress to grant an administrative body quasi-judicial power to preview and classify TV programs and
enforce its decision subject to review by our courts. As far back as 1921, we upheld this set-up in Sotto vs.
Ruiz, 34 viz.:
"The use of the mails by private persons is in the nature of a privilege which can be
regulated in order to avoid its abuse. Persons posses no absolute right to put into the
mail anything they please, regardless of its character.
On the other hand, the exclusion of newspaper and other publications from the mails,
in the exercise of executive power, is extremely delicate in nature and can only be
justified where the statute is unequivocably applicable to the supposed objectionable
publication. In excluding any publication for the mails, the object should be not to
interfere with the freedom of the press or with any other fundamental right of the
people. This is the more true with reference to articles supposedly libelous than to other
particulars of the law, since whether an article is or is not libelous, is fundamentally a
legal question. In order for there to be due process of law, the action of the Director of
Posts must be subject to revision by the courts in case he had abused his discretion or
exceeded his authority. (Ex parte Jackson [1878], 96 U.S., 727; Public Clearing House vs.
Coyne [1903], 194 U.S., 497; Post Publishing Co. vs. Murray [1916], 23-Fed., 773)
As has been said, the performance of the duty of determining whether a publication
contains printed matter of a libelous character rests with the Director of Posts and
involves the exercise of his judgment and discretion. Every intendment of the law is in
favor of the correctness of his action. The rule is (and we go only to those cases coming
from the United States Supreme Court and pertaining to the United States Postmaster-
General), that the courts will not interfere with the decision of the Director of Posts
unless clearly of opinion that it was wrong. (Bates & Guilid Co. vs. Payne [1904], 194
U.S., 106; Smith vs. Hitchcock [1912], 226 U.S., 63; Masses Pub. Co. vs. Patten [1917],
246 Fed., 24. But see David vs. Brown [1900], 103 Fed., 909, announcing a somewhat
different doctrine and relied upon by the Attorney-General).
To be sure, legal scholars in the United States are still debating the proposition whether or not courts
alone are competent to decide whether speech is constitutionally protected. 35The issue involves
highly arguable policy considerations and can be better addressed by our legislators.
IN VIEW WHEREOF, the Decision of the respondent Court of Appeals dated March 24, 1995 is affirmed
insofar as it sustained the jurisdiction of the respondent MTRCB to review petitioner's TV program entitled
"Ang Iglesia ni Cristo," and is reversed and set aside insofar as it sustained the action of the respondent
MTRCB x-rating petitioner's TV Program Series Nos. 115, 119, and 121. No costs.
SO ORDERED.
||| (Iglesia ni Cristo v. Court of Appeals, G.R. No. 119673, [July 26, 1996], 328 PHIL 893-978)
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5. Radio broadcast
CASE - EASTERN BROADCASTING CORP. (DYRE) VS. DANS, 137 SCRA 647
(1985)
EASTERN BROADCASTING CORPORATION (DYRE) petitioner, vs. THE HON. JOSE P. DANS, JR.,
MINISTER OF TRANSPORTATION & COMMUNICATIONS, THE HON. CEFERINO S. CARREON,
COMMISSIONER, NATIONAL TELECOM., COMMISSION, ET AL., respondents.
RESOLUTION
GUTIERREZ, JR., J p:
This petition was filed to compel the respondents to allow the reopening of Radio Station DYRE which had
been summarily closed on grounds of national security.
The petitioner contended that it was denied due process when it was closed on the mere allegation that
the radio station was used to incite people to sedition. It alleged that no hearing was held and not a bit of
proof was submitted to establish a factual basis for the closure. The petitioner was not informed
beforehand why administrative action which closed the radio station was taken against it. No action was
taken by the respondents to entertain a motion seeking the reconsideration of the closure action. LLjur
The petitioner also raised the issue of freedom of speech. It appears from the records that the
respondents' general charge of "inciting people to commit acts of sedition" arose from the petitioner's
shift towards what it stated was the coverage of public events and the airing of programs geared towards
public affairs.
On March 25, 1985, before the Court could promulgate a decision squarely passing upon all the issues
raised, the petitioner through its president, Mr. Rene G. Espina suddenly filed a motion to withdraw or
dismiss the petition.
The petitioner alleged:
"1. Petitioner Eastern Broadcasting Corporation has already sold its radio broadcasting
station in favor of Manuel B. Pastrana as well as its rights and interest in the radio
station DYRE in Cebu including its right to operate and its equipment;
"2. Respondent National Telecommunications Commission has expressed its
willingness to grant to the said new owner Manuel B. Pastrana the requisite license and
franchise to operate the said radio station and to approve the sale of the radio
transmitter of said station DYRE;
"3. In view of the foregoing, petitioner has no longer any interest in said case, and the
new owner, Manuel B. Pastrana is likewise not interested in pursuing the case any
further."
The case, therefore, has become moot and academic. However, for the guidance of inferior courts and
administrative tribunals exercising quasi-judicial functions, the Court issues the following guidelines;
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(1) The cardinal primary requirements in administrative proceedings laid down by this Court in Ang Tibay
v. Court of Industrial Relations (69 Phil. 635) should be followed before a broadcast station may be closed
or its operations curtailed. 1
(2) It is necessary to reiterate that while there is no controlling and precise definition of due process, it
furnishes an unavoidable standard to which government action must conform in order that any
deprivation of life, liberty, or property, in each appropriate case, may be valid (Ermita-Malate Hotel and
Motel Operators Association v. City Mayor, 20 SCRA 849). prcd
(3) All forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of
speech and expression clause. The test for limitations on freedom of expression continues to be the clear
and present danger rule - that words are used in such circumstances and are of such a nature as to create
a clear and present danger that they will bring about the substantive evils that the lawmaker has a right
to prevent. In his Constitution of the Philippines (2nd Edition, pp. 569-570) Chief Justice Enrique M.
Fernando cites at least nine of our decisions which apply the test - (Primicias v. Fugoso [80 Phil.
711, American Bible Society v. City of Manila [101 Phil. 386], Cabansag v. Fernandez [102 Phil. 152], Vera
v. Arca [28 SCRA 351], Navarro v. Villegas [31 SCRA 931], Imbong v. Ferrer [35 SCRA 28], Badoy v.
Commission on Elections [35 SCRA 285], People v. Ferrer [48 SCRA 382], and the Philippine Blooming Mills
Employees Organization v. Philippine Blooming Mills Co., Inc. [51 SCRA 189]. More recently, the clear and
present danger test was applied in J.B.L Reyes in behalf of the Anti-Bases Coalition v. Bagatsing [125 SCRA
553].
(4) The clear and present danger test, however, does not lend itself to a simplistic and all embracing
interpretation applicable to all utterances in all forums.
Broadcasting has to be licensed. Airwave frequencies have to be allocated among qualified users. A
broadcast corporation cannot simply appropriate a certain frequency without regard for government
regulation or for the rights of others.
All forms of communication are entitled to the broad protection of the freedom of expression clause.
Necessarily, however, the freedom of television and radio broadcasting is somewhat lesser in scope than
the freedom accorded to newspaper and print media.
The American Court in Federal Communications Commission v. Pacifica Foundation (438 U.S. 726),
confronted with a patently offensive and indecent regular radio program, explained why radio
broadcasting, more than other forms of communications, receives the most limited protection from the
free expression clause. First, broadcast media have established a uniquely pervasive presence in the lives
of all citizens. Material presented over the airwaves confronts the citizen, not only in public, but in the
privacy of his home. Second, broadcasting is uniquely accessible to children. Bookstores and motion
picture theaters may be prohibited from making certain material available to children, but the same
selectivity cannot be done in radio or television, where the listener or viewer is constantly tuning in and
out. cdll
Similar considerations apply in the area of national security.
The broadcast media have also established a uniquely pervasive presence in the lives of all Filipinos.
Newspapers and current books are found only in metropolitan areas and in the poblaciones of
municipalities accessible to fast and regular transportation. Even here, there are low income masses who
find the cost of books, newspapers, and magazines beyond their humble means. Basic needs like food and
shelter perforce enjoy high priorities.
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On the other hand, the transistor radio is found everywhere. The television set is also becoming universal.
Their message may be simultaneously received by a national or regional audience of listeners including
the indifferent or unwilling who happen to be within reach of a blaring radio or television set. The
materials broadcast over the airwaves reach every person of every age, persons of varying susceptibilities
to persuasion, persons of different I.Q.s and mental capabilities, persons whose reactions to inflammatory
or offensive speech would be difficult to monitor or predict. The impact of the vibrant speech is forceful
and immediate. Unlike readers of the printed work, the radio audience has lesser opportunity to cogitate,
analyze, and reject the utterance.
(5) The clear and present danger test, therefore, must take the particular circumstances of broadcast
media into account. The supervision of radio stations whether by government or through self-
regulation by the industry itself calls for thoughtful, intelligent and sophisticated handling.
The government has a right to be protected against broadcasts which incite the listeners to violently
overthrow it. Radio and television may not be used to organize a rebellion or to signal the start of
widespread uprising. At the same time, the people have a right to be informed. Radio and television would
have little reason for existence if broadcasts are limited to bland, obsequious, or pleasantly entertaining
utterances. Since they are the most convenient and popular means of disseminating varying views on
public issues, they also deserve special protection.
(6) The freedom to comment on public affairs is essential to the vitality of a representative democracy. In
the 1918 case of United States v. Bustos (37 Phil. 731) this Court was already stressing that. cdrep
"The interest of society and the maintenance of good government demand a full
Only thus can the intelligence and dignity of the individual be exalted."
(7) Broadcast stations deserve the special protection given to all forms of media by the due process and
freedom of expression clauses of the Constitution.
WHEREFORE, the case having become moot and academic, the petitioner's motion to withdraw or dismiss
the petition is hereby GRANTED.
SO ORDERED.
||| (Eastern Broadcasting Corp. v. Dans, Jr., G.R. No. L-59329 (Resolution), [July 19, 1985], 222 PHIL 151-
169)
g. Freedom of Information
Art. III, sec. 7
CASES - NERI VS. SENATE 564 SCRA 152 (2008)
ROMULOL. NERI, petitioner, vs. SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLI

C OFFICERS AND INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND COMMERCE,
AND SENATE COMMITTEE ON NATIONAL DEFENSE AND SECURITY, respondents.
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DECISION
At bar is a petition for certiorari under Rule 65 of the Rules of Court assailing the show
cause Letter 1 dated November 22, 2007 and contempt Order 2 dated January 30, 2008 concurrently
issued by respondent Senate Committees on Accountability of Public Officers and Investigations, 3 Trade
and Commerce, 4 and National Defense and Security 5 against petitioner Romulo L. Neri, former Director
General of the National Economic and Development Authority (NEDA).
The facts, as culled from the pleadings, are as follows:
On April 21, 2007, the Department of Transportation and Communication (DOTC) entered into a contract
with Zhing Xing Telecommunications Equipment (ZTE) for the supply ofequipment and services for the
National Broadband Network (NBN) Project in the amount of U.S. $329,481,290 (approximately P16
Billion Pesos). The Project was to be financed by the People's Republic of China.
In connection with this NBN Project, various Resolutions were introduced in the Senate, as follows:
(1)P.S. Res. No. 127, introduced by Senator Aquilino Q. Pimentel, Jr., entitled
RESOLUTION DIRECTING THE BLUE RIBBON COMMITTEE AND
THE COMMITTEE ON TRADE AND INDUSTRY TO INVESTIGATE, IN AID OF LEGISLATION,
THE CIRCUMSTANCES LEADING TO THE APPROVAL OF THE BROADBAND CONTRACT
WITH ZTE AND THE ROLE PLAYED BY THE OFFICIALS CONCERNED IN GETTING IT
CONSUMMATED AND TO MAKE RECOMMENDATIONS TO HALE TO THE
COURTS OF LAW THE PERSONS RESPONSIBLE FOR ANY ANOMALY IN CONNECTION
THEREWITH AND TO PLUG THE LOOPHOLES, IF ANY IN THE BOT LAW AND OTHER
PERTINENT LEGISLATIONS.
(2)P.S. Res. No. 144, introduced by Senator Mar Roxas, entitled A RESOLUTION URGING
PRESIDENT GLORIA MACAPAGAL ARROYO TO DIRECT THE CANCELLATION OF THE ZTE
CONTRACT.
(3)P.S. Res. No. 129, introduced by Senator Panfilo M. Lacson, entitled RESOLUTION
DIRECTING THE COMMITTEE ON NATIONAL DEFENSE AND SECURITY TO CONDUCT AN
INQUIRY IN AID OF LEGISLATION INTO THE NATIONAL SECURITY
IMPLICATIONS OF AWARDING THE NATIONAL BROADBAND NETWORK CONTRACT TO
THE CHINESE FIRM ZHONG XING TELECOMMUNICATIONS EQUIPMENT COMPANY
LIMITED (ZTE CORPORATION) WITH THE END IN VIEW OF PROVIDING REMEDIAL
LEGISLATION THAT WILL PROTECT OUR NATIONAL SOVEREIGNTY, SECURITY AND
TERRITORIAL INTEGRITY.
(4)P.S. Res. No. 136, introduced by Senator Miriam Defensor Santiago, entitled
RESOLUTION DIRECTING THE PROPER SENATE COMMITTEE TO CONDUCT AN INQUIRY,
IN AID OFLEGISLATION, ON THE LEGAL AND ECONOMIC JUSTIFICATION OF THE
NATIONAL BROADBAND NETWORK (NBN) PROJECT OF THE NATIONAL GOVERNMENT.
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At the same time, the investigation was claimed to be relevant to the consideration of three (3) pending
bills in the Senate, to wit:
1.Senate Bill No. 1793, introduced by Senator Mar Roxas, entitled AN ACT SUBJECTING
TREATIES, INTERNATIONAL OR EXECUTIVE AGREEMENTS INVOLVING FUNDING
IN THE PROCUREMENT OF INFRASTRUCTURE PROJECTS, GOODS, AND
CONSULTING SERVICES TO BE INCLUDED IN THE SCOPE AND
APPLICATION OF PHILIPPINE PROCUREMENT LAWS, AMENDING FOR THE
PURPOSE REPUBLIC ACT NO. 9184, OTHERWISE KNOWN AS THE GOVERNMENT
PROCUREMENT REFORM ACT, AND FOR OTHER PURPOSES;
2.Senate Bill No. 1794, introduced by Senator Mar Roxas, entitled AN ACT IMPOSING
SAFEGUARDS IN CONTRACTING LOANS CLASSIFIED AS OFFICIAL DEVELOPMENT
ASSISTANCE, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 8182, AS
AMENDED BY REPUBLIC ACT NO. 8555, OTHERWISE KNOWN AS THE OFFICIAL
DEVELOPMENT ASSISTANCE ACT OF 1996, AND FOR OTHER PURPOSES; and
3.Senate Bill No. 1317, introduced by Senator Miriam Defensor Santiago, entitled AN
ACT MANDATING CONCURRENCE TO INTERNATIONAL AGREEMENTS AND
EXECUTIVE AGREEMENTS.
Respondent Committees initiated the investigation by sending invitations to certain personalities and
cabinet officials involved in the NBN Project. Petitioner was among those invited. He was summoned to
appear and testify on September 18, 20, and 26 and October 25, 2007. However, he attended only the
September 26 hearing, claiming he was "out of town" during the other dates.
In the September 18, 2007 hearing, businessman Jose de Venecia III testified that several high executive
officials and power brokers were using their influence to push the approval of the NBN Project by the
NEDA. It appeared that the Project was initially approved as a Build-Operate-Transfer (BOT) project
but, on March 29, 2007, the NEDA acquiesced to convert it into a government-to-government project, to
be financed through a loan from the Chinese Government.
On September 26, 2007, petitioner testified before respondent Committees for eleven (11) hours. He
disclosed that then Commission on Elections (COMELEC) Chairman Benjamin Abalos offered him P200
Million in exchange for his approval of the NBN Project. He further narrated that he informed President
Arroyo about the bribery attempt and that she instructed him not to accept the bribe. However, when
probed further on what they discussed about the NBN Project, petitioner refused to answer, invoking
"executive privilege". In particular, he refused to answer the questions on (a) whether or not President
Arroyo followed up the NBN Project, 6 (b) whether or not she directed him to prioritize
it, 7 and (c) whether or not she directed him to approve. 8
Unrelenting, respondent Committees issued a Subpoena Ad Testificandum to petitioner, requiring him to
appear and testify on November 20, 2007.
However, in the Letter dated November 15, 2007, Executive Secretary Eduardo R. Ermita requested
respondent Committees to dispense with petitioner's testimony on the ground ofexecutive privilege. The
pertinent portion of the letter reads:
With reference to the subpoena ad testificandum issued to Secretary Romulo Neri to
appear and testify again on 20 November 2007 before the Joint Committees you chair,
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it will be recalled that Sec. Neri had already testified and exhaustively discussed the
ZTE/NBN project, including his conversation with the President thereon last 26
September 2007.
Asked to elaborate further on his conversation with the President, Sec. Neri asked for
time to consult with his superiors in line with the ruling of the Supreme Court
in Senate v. Ermita, 488 SCRA 1 (2006).
Specifically, Sec. Neri sought guidance on the possible invocation of executive
privilege on the following questions, to wit:
a)Whether the President followed up the (NBN) project?
b)Were you dictated to prioritize the ZTE?
c)Whether the President said to go ahead and approve the project after being
told about the alleged bribe?
Following the ruling in Senate v. Ermita, the foregoing questions fall under
conversations and correspondence between the President and public officials which
are considered executive privilege (Almonte v. Vasquez, G.R. 95637, 23 May
1995; Chavez v. PEA, G.R. 133250, July 9, 2002). Maintaining the
confidentiality of conversations of the President is necessary in the exercise of her
executive and policy decision making process. The expectation of a President to the
confidentiality of her conversations and correspondences, like the value which we
accord deference for the privacy of all citizens, is the necessity for
protection of the public interest in candid, objective, and even blunt or harsh opinions
in Presidential decision-making. Disclosure of conversations of the President will have
a chilling effect on the President, and will hamper her in the effective discharge of her
duties and responsibilities, if she is not protected by the confidentiality of her
conversations.
The context in which executive privilege is being invoked is that the information sought
to be disclosed might impair our diplomatic as well as economic relations with the
People's Republicof China. Given the confidential nature in which these information
were conveyed to the President, he cannot provide the Committee any further
details of these conversations, without disclosing the very thing the privilege is
designed to protect.
In light of the above considerations, this Office is constrained to invoke the settled
doctrine of executive privilege as refined in Senate v. Ermita, and has advised
Secretary Neri accordingly.
Considering that Sec. Neri has been lengthily interrogated on the subject in an
unprecedented 11-hour hearing, wherein he has answered all questions propounded
to him except the foregoing questions involving executive privilege, we therefore
request that his testimony on 20 November 2007 on the ZTE/NBN project be dispensed
with.
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On November 20, 2007, petitioner did not appear before respondent Committees. Thus, on November
22, 2007, the latter issued the show cause Letter requiring him to explain why he should not be cited in
contempt. The Letter reads:
Since you have failed to appear in the said hearing, the
Committees on Accountability of Public Officers and Investigations (Blue Ribbon),
Trade and Commerce and National Defense and Security require you to show cause why
you should not be cited in contempt under Section 6, Article 6 of the
Rules of the Committee on Accountability of Public Officers and Investigations(Blue
Ribbon).
The Senate expects your explanation on or before 2 December 2007.
On November 29, 2007, petitioner replied to respondent Committees, manifesting that it was not his
intention to ignore the Senate hearing and that he thought the only remaining questions were those he
claimed to be covered by executive privilege, thus:
It was not my intention to snub the last Senate hearing. In fact, I have cooperated with
the task of the Senate in its inquiry in aid of legislation as shown by my almost 11 hours
stay during the hearing on 26 September 2007. During said hearing, I answered all the
questions that were asked of me, save for those which I thought was covered by
executive privilege, and which was confirmed by the Executive Secretary in his Letter
15 November 2007. In good faith, after that exhaustive testimony, I thought that what
remained were only the three questions, where the Executive Secretary claimed
executive privilege. Hence, his request that my presence be dispensed with.
Be that as it may, should there be new matters that were not yet taken up during the
26 September 2007 hearing, may I be furnished in advance as to what else I need to
clarify, so that as a resource person, I may adequately prepare myself.
In addition, petitioner submitted a letter prepared by his counsel, Atty. Antonio R. Bautista, stating, among
others that: (1) his (petitioner) non-appearance was upon the order of the President; and (2) his
conversation with President Arroyo dealt with delicate and sensitive national security and diplomatic
matters relating to the impact of the bribery scandal involving high government officials and the possible
loss of confidence of foreign investors and lenders in the Philippines. The letter ended with a
reiteration of petitioner's request that he "be furnished in advance" as to what else he needs to clarify so
that he may adequately prepare for the hearing.
In the interim, on December 7, 2007, petitioner filed with this Court the present petition
for certiorari assailing the show cause Letter dated November 22, 2007.
Respondent Committees found petitioner's explanations unsatisfactory. Without responding to his
request for advance notice of the matters that he should still clarify, they issued theOrder dated January
30, 2008, citing him in contempt of respondent Committees and ordering his arrest and detention at the
Office of the Senate Sergeant-At-Arms until such time that he would appear and give his testimony. The
said Order states:
ORDER
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For failure to appear and testify in the Committee's hearing on Tuesday, September 18,
2007; Thursday, September 20, 2007; Thursday, October 25, 2007; and Tuesday,
November 20, 2007, despite personal notice and Subpoenas Ad Testificandum sent to
and received by him, which thereby delays, impedes and obstructs, as it has in fact
delayed, impeded and obstructed the inquiry into the subject reported irregularities,
AND for failure to explain satisfactorily why he should not be cited for contempt
(Neri letter of 29 November 2007), herein attached)ROMULO L. NERI is hereby cited in
contempt of this Committees and ordered arrested and detained in the
Office of the Senate Sergeant-At-Arms until such time that he will appear and give his
testimony.
The Sergeant-At-Arms is hereby directed to carry out and implement this Order and
make a return hereof within twenty four (24) hours from its enforcement.
SO ORDERED.
On the same date, petitioner moved for the reconsideration of the above Order. 9 He insisted that he has
not shown "any contemptible conduct worthy of contempt and arrest." He emphasized his willingness to
testify on new matters, however, respondent Committees did not respond to his request for advance
notice of questions. He also mentioned the petition forcertiorari he filed on December 7, 2007. According
to him, this should restrain respondent Committees from enforcing the show cause Letter "through the
issuance of declaration ofcontempt" and arrest.
In view of respondent Committees' issuance of the contempt Order, petitioner filed on February 1, 2008
a Supplemental Petition for Certiorari (With Urgent Application for TRO/Preliminary Injunction), seeking
to restrain the implementation of the said contempt Order.
On February 5, 2008, the Court issued a Status Quo Ante Order (a) enjoining respondent Committees from
implementing their contempt Order, (b) requiring the parties to observe thestatus quo prevailing prior to
the issuance of the assailed order, and (c) requiring respondent Committees to file their comment.
Petitioner contends that respondent Committees' show cause Letter and contempt Order were issued
with grave abuse of discretion amounting to lack or excess of jurisdiction. He stresses that his
conversations with President Arroyo are "candid discussions meant to explore options in making policy
decisions." According to him, these discussions "dwelt onthe impact of the bribery scandal involving
high government officials on the country's diplomatic relations and economic and military affairs and
the possible loss ofconfidence of foreign investors and lenders in the Philippines." He also emphasizes
that his claim of executive privilege is upon the order of the President and within the parameters laid
down in Senate v. Ermita 10 and United States v. Reynolds. 11 Lastly, he argues that he is precluded from
disclosing communications made to him in official confidence under Section 712 of Republic Act No. 6713,
otherwise known as Code of Conduct and Ethical Standards for Public Officials and Employees, and Section
24 13 (e) of Rule 130 of the Rules of Court.
Respondent Committees assert the contrary. They argue that (1) petitioner's testimony is material and
pertinent in the investigation conducted in aid of legislation; (2) there is no valid justification for
petitioner to claim executive privilege; (3) there is no abuse of their authority to order petitioner's arrest;
and (4) petitioner has not come to court with clean hands.
In the oral argument held last March 4, 2008, the following issues were ventilated:
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1.What communications between the President and petitioner Neri are covered by the
principle of 'executive privilege'?
1.aDid Executive Secretary Ermita correctly invoke the principle of executive
privilege, by order of the President, to cover (i) conversations of the
President in the exercise of her executive and policy decision-making
and (ii) information, which might impair our diplomatic as well as
economic relations with the People's Republic of China?
1.b.Did petitioner Neri correctly invoke executive privilege to avoid
testifying on his conversations with the President on the NBN
contract on his assertions that the said conversations "dealt with
delicate and sensitive national security and diplomatic matters
relating to the impact of bribery scandal involving high government
officials and the possible loss of confidence of foreign investors and
lenders in the Philippines" . . . within the principles laid down
in Senate v. Ermita (488 SCRA 1 [2006])?
1.cWill the claim of executive privilege in this case violate the following
provisions of the Constitution:
Sec. 28, Art. II (Full public disclosure of all transactions
involving public interest)
Sec. 7, Art. III (The right of the people to
information on matters of public concern)
Sec. 1, Art. XI (Public office is a public trust)
Sec. 17, Art. VII (The President shall ensure that the laws be faithfully executed)
and the due process clause and the principle of separation of powers?
2.What is the proper procedure to be followed in invoking executive privilege?
3.Did the Senate Committees gravely abuse their discretion in ordering the
arrest of petitioner for non-compliance with the subpoena?
After the oral argument, the parties were directed to manifest to the Court within twenty-four (24) hours
if they are amenable to the Court's proposal of allowing petitioner to immediately resume his testimony
before the Senate Committees to answer the other questions of the Senators without prejudice to the
decision on the merits of this pending petition. It was understood that petitioner may invoke executive
privilege in the course of the Senate Committees proceedings, and if the respondent Committees
disagree thereto, the unanswered questions will be the subject of a supplemental pleading to be resolved
along with the three (3) questions subject of the present petition. 14 At the same time, respondent
Committees were directed to submit several pertinent documents. 15
The Senate did not agree with the proposal for the reasons stated in the Manifestation dated March 5,
2008. As to the required documents, the Senate and respondent Committees manifested that they would
not be able to submit the latter's "Minutes of all meetings" and the "Minute Book" because it has never
been the "historical and traditional legislative practice to keep them." 16 They instead submitted the
Transcript of Stenographic Notes of respondent Committees' joint public hearings.
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On March 17, 2008, the Office of the Solicitor General (OSG) filed a Motion for Leave to Intervene and to
Admit Attached Memorandum, founded on the following arguments:
(1)The communications between petitioner and the President are covered by the
principle of "executive privilege."
(2)Petitioner was not summoned by respondent Senate Committees in accordance with
the law-making body's power to conduct inquiries in aid of legislation as laid
down in Section 21, Article VI of the Constitution and Senate v. Ermita.
(3)Respondent Senate Committees gravely abused its discretion for alleged non-
compliance with the Subpoena dated November 13, 2007.
The Court granted the OSG's motion the next day, March 18, 2007.
As the foregoing facts unfold, related events transpired.
On March 6, 2008, President Arroyo issued Memorandum Circular No. 151, revoking Executive Order No.
464 and Memorandum Circular No. 108. She advised executive officials and employees to follow and
abide by the Constitution, existing laws and jurisprudence, including, among others, the case of Senate v.
Ermita 17 when they are invited to legislative inquiries in aid of legislation.
At the core of this controversy are the two (2) crucial queries, to wit:
First, are the communications elicited by the subject three (3) questions covered by executive privilege?
And second, did respondent Committees commit grave abuse of discretion in issuing the
contempt Order?
We grant the petition.
At the outset, a glimpse at the landmark case of Senate v. Ermita 18 becomes imperative. Senate draws
in bold strokes the distinction between the legislative and oversight powers of the Congress, as
embodied under Sections 21 and 22, respectively, of Article VI of the Constitution, to wit:
SECTION 21.The Senate or the House of Representatives or any of its respective
committees may conduct inquiries in aid of legislation in accordance with its duly
published rules ofprocedure. The rights of persons appearing in or affected by such
inquiries shall be respected.
SECTION 22.The heads of department may upon their own initiative, with the
consent of the President, or upon the request of either House, or as the rules of each
House shall provide, appear before and be heard by such House on any matter
pertaining to their departments. Written questions shall be submitted to the
President of the Senate or the Speaker of the Houseof Representatives at least three
days before their scheduled appearance. Interpellations shall not be limited to written
questions, but may cover matters related thereto. When the securityof the state or
the public interest so requires and the President so states in writing, the appearance
shall be conducted in executive session.
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Senate cautions that while the above provisions are closely related and complementary to each other,
they should not be considered as pertaining to the same power of Congress. Section 21 relates to the
power to conduct inquiries in aid of legislation, its aim is to elicit information that may be used for
legislation, while Section 22 pertains to the power to conduct a question hour, the objective of which is
to obtain information in pursuit of Congress' oversight function. 19 Simply stated, while both powers
allow Congress or any of its committees to conduct inquiry, their objectives are different.
This distinction gives birth to another distinction with regard to the use of compulsory process. Unlike in
Section 21, Congress cannot compel the appearance of executive officials under Section 22. The Court's
pronouncement in Senate v. Ermita 20 is clear:
When Congress merely seeks to be informed on how department heads are
implementing the statutes which it has issued, its right to such information is not as
imperative as that of the President to whom, as Chief Executive, such department
heads must give a report of their performance as a matter of duty. In such instances,
Section 22, in keeping with the separation ofpowers, states that Congress may
only request their appearance. Nonetheless, when the inquiry in which Congress
requires their appearance is 'in aid of legislation' under Section 21, the appearance
is mandatory for the same reasons stated in Arnault.
In fine, the oversight function of Congress may be facilitated by compulsory process
only to the extent that it is performed in pursuit of legislation. This is consistent with
the intent discerned from the deliberations of the Constitutional Commission.
Ultimately, the power of Congress to compel the appearance of executive officials
under section 21 and the lack of it under Section 22 find their basis in the
principle of separation ofpowers. While the executive branch is a co-equal
branch of the legislature, it cannot frustrate the power of Congress to legislate by
refusing to comply with its demands for information. (Emphasis supplied.)
The availability of the power of judicial review to resolve the issues raised in this case has also been settled
in Senate v. Ermita, when it held:
As evidenced by the American experience during the so-called "McCarthy era",
however, the right of Congress to conduct inquiries in aid of legislation is, in theory, no
less susceptible to abuse than executive or judicial power. It may thus be subjected to
judicial review pursuant to the Court's certiorari powers under Section 1, Article
VIII of the Constitution.
Hence, this decision.
I
The Communications Elicited by the Three (3)
Questions are Covered by Executive Privilege
We start with the basic premises where the parties have conceded.
The power of Congress to conduct inquiries in aid of legislation is broad. This is based on the proposition
that a legislative body cannot legislate wisely or effectively in the absence ofinformation respecting the
conditions which the legislation is intended to affect or change. 21 Inevitably, adjunct thereto is the
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compulsory process to enforce it. But, the power, broad as it is, has limitations. To be valid, it is imperative
that it is done in accordance with the Senate or House duly published rules of procedure and that the
rights of the persons appearing in or affected by such inquiries be respected.
The power extends even to executive officials and the only way for them to be exempted is through a
valid claim of executive privilege. 22 This directs us to the consideration of the question is there a
recognized claim of executive privilege despite the revocation of E.O. 464?
A-There is a Recognized Claim
of Executive Privilege Despite the
Revocation of E.O. 464
At this juncture, it must be stressed that the revocation of E.O. 464 does not in any way diminish our
concept of executive privilege. This is because this concept has Constitutional underpinnings. Unlike the
United States which has further accorded the concept with statutory status by enacting
the Freedom of Information Act 23 and the Federal Advisory CommitteeAct, 24 the Philippines has
retained its constitutional origination, occasionally interpreted only by this Court in various cases. The
most recent of these is the case of Senate v. Ermita where this Court declared unconstitutional
substantial portions of E.O. 464. In this regard, it is worthy to note that Executive Ermita's Letter dated
November 15, 2007 limit its bases for the claimof executive privilege to Senate v. Ermita, Almonte v.
Vasquez, 25 and Chavez v. PEA. 26 There was never a mention of E.O. 464.
While these cases, especially Senate v. Ermita, 27 have comprehensively discussed the
concept of executive privilege, we deem it imperative to explore it once more in view of the clamor for
this Court to clearly define the communications covered by executive privilege.
The Nixon and post-Watergate cases established the broad contours of the presidential communications
privilege. 28 In United States v. Nixon, 29 the U.S. Court recognized a greatpublic interest in
preserving "the confidentiality of conversations that take place in the President's performance of his
official duties." It thus considered presidential communications as "presumptively privileged."
Apparently, the presumption is founded on the "President's generalized interest in confidentiality." The
privilege is said to be necessary to guarantee the candor of presidential advisors and to provide "the
President and those who assist him. . . with freedom to explore alternatives in the process ofshaping
policies and making decisions and to do so in a way many would be unwilling to express except
privately."
In In re: Sealed Case, 30 the U.S. Court of Appeals delved deeper. It ruled that there are two (2)
kinds of executive privilege; one is the presidential communications privilege and, the other is
the deliberative process privilege. The former pertains to "communications, documents or other
materials that reflect presidential decision-making and deliberations and that the President believes
should remain confidential." The latter includes 'advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and policies are formulated."
Accordingly, they are characterized by marked distinctions. Presidential communications
privilege applies to decision-making of the President while, the deliberative process privilege,
to decision-making of executive officials. The first is rooted in the constitutional
principle of separation of power and the President's unique constitutional role; the secondon common
law privilege. Unlike the deliberative process privilege, the presidential communications
privilege applies to documents in their entirety, and covers final and post-decisional materials as well
as pre-deliberative ones 31 As a consequence, congressional or judicial negation of the presidential
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communications privilege is always subject to greater scrutiny than denial of the deliberative process
privilege.
Turning on who are the officials covered by the presidential communications privilege, In Re Sealed
Case confines the privilege only to White House Staff that has "operational proximity" to direct
presidential decision-making. Thus, the privilege is meant to encompass only those functions that form
the core of presidential authority, involving what the court characterized as "quintessential and non-
delegable Presidential power", such as commander-in-chief power, appointment and removal power, the
power to grant pardons and reprieves, the sole-authority to receive ambassadors and
other public officers, the power to negotiate treaties etc. 32
The situation in Judicial Watch, Inc. v. Department of Justice 33 tested the In Re Sealed Case principles.
There, while the presidential decision involved is the exercise of the President's pardon power, a non-
delegable, core-presidential function, the Deputy Attorney General and the Pardon Attorney were
deemed to be too remote from the President and his senior White House advisors to be protected. The
Court conceded that functionally those officials were performing a task directly related to the President's
pardon power, but concluded that an organizational test was more appropriate for confining the
potentially broad sweep that would result from the In Re Sealed Case's functional test. The majority
concluded that, the lesser protections of the deliberative process privilege would suffice. That privilege
was, however, found insufficient to justify the confidentiality of the 4,341 withheld documents.
But more specific classifications of communications covered by executive privilege are made in older
cases. Courts ruled early that the Executive has a right to withhold documents that might reveal military
or state secrets 34 identity of government informers in some circumstances, 35 and information
related to pending investigations. 36 An area where the privilege is highly revered is in foreign relations.
In United States v. Curtiss-Wright Export Corp. 37 the U.S. Court, citing President George Washington,
pronounced:
The nature of foreign negotiations requires caution, and their success must often
depend on secrecy, and even when brought to a conclusion, a full disclosure of all the
measures, demands, or eventual concessions which may have been proposed or
contemplated would be extremely impolitic, for this might have a pernicious
influence on future negotiations or produce immediate inconveniences, perhaps
danger and mischief, in relation to other powers. The necessity of such caution and
secrecy was one cogent reason for vesting the power ofmaking treaties in the President,
with the advice and consent of the Senate, the principle on which the body was formed
confining it to a small number of members. To admit, then, a right in the
House of Representatives to demand and to have as a matter of course all the papers
respecting a negotiation with a foreign power would be to establish a dangerous
precedent.
Majority of the above jurisprudence have found their way in our jurisdiction. In Chavez v. PCGG, 38 this
Court held that there is a "governmental privilege against public disclosure with respect to state secrets
regarding military, diplomatic and other security matters." In Chavez v. PEA, 39 there is also a
recognition of the confidentiality of Presidential conversations, correspondences, and discussions in
closed-door Cabinet meetings. In Senate v. Ermita, the concept of presidential communications
privilege is fully discussed.
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As may be gleaned from the above discussion, the claim of executive privilege is highly recognized in cases
where the subject of inquiry relates to a power textually committed by the Constitution to the President,
such as the area of military and foreign relations. Under our Constitution,the President is the
repository of the commander-in-chief, 40 appointing, 41pardoning, 42 and diplomatic 43 powers.
Consistent with the doctrine of separation of powers, the information relating to these powers may enjoy
greater confidentiality than others.
The above cases, especially, Nixon, In Re Sealed Case and Judicial Watch, somehow provide the
elements of presidential communications privilege, to wit:
1)The protected communication must relate to a "quintessential and non-delegable
presidential power."
2)The communication must be authored or "solicited and received" by a close
advisor of the President or the President himself. The judicial test is that an
advisor must be in "operational proximity" with the President.
3)The presidential communications privilege remains a qualified privilege that may be
overcome by a showing of adequate need, such that the information sought
"likely contains important evidence" and by the unavailability of the
information elsewhere by an appropriate investigating authority. 44
In the case at bar, Executive Secretary Ermita premised his claim of executive privilege on the ground that
the communications elicited by the three (3) questions "fall under conversation and correspondence
between the President and public officials" necessary in "her executive and policy decision-making
process" and, that "the information sought to be disclosed might impair our diplomatic as well as
economic relations with the People's Republic of China." Simply put, the bases are presidential
communications privilege and executive privilege onmatters relating to diplomacy or foreign relations.
Using the above elements, we are convinced that, indeed, the communications elicited by the three (3)
questions are covered by the presidential communications privilege. First, the communications relate to
a "quintessential and non-delegable power" of the President, i.e. the power to enter into an executive
agreement with other countries. This authority of the President to enter into executive
agreements without the concurrence of the Legislature has traditionally been recognized in Philippine
jurisprudence. 45 Second, the communications are "received" by a close advisor of the President. Under
the "operational proximity" test, petitioner can be considered a close advisor, being a
member of President Arroyo's cabinet. Andthird, there is no adequate showing of a compelling need that
would justify the limitation of the privilege and of the unavailability of the information elsewhere by an
appropriate investigating authority.
The third element deserves a lengthy discussion.
United States. v. Nixon held that a claim of executive privilege is subject to balancing against other
interest. In other words, confidentiality in executive privilege is not absolutelyprotected by the
Constitution. The U.S. Court held:
[N]either the doctrine of separation of powers, nor the need for confidentiality of high-
level communications, without more, can sustain an absolute, unqualified Presidential
privilege ofimmunity from judicial process under all circumstances.
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The foregoing is consistent with the earlier case of Nixon vs. Sirica, 46 where it was held that presidential
communications privilege are presumptively privileged and that the presumption can be overcome only
by mere showing of public need by the branch seeking access to conversations. The courts are enjoined
to resolve the competing interests of the political branches of the government "in the manner that
preserves the essential functions of each Branch." 47 Here, the record is bereft of any categorical
explanation from respondent Committees to show a compelling or critical need for the answers to the
three (3) questions in the enactment of a law. Instead, the questions veer more towards the
exercise of the legislative oversight function under Section 22 of Article VI rather than Section 21 of the
same Article. Senate v. Ermita ruled that the "the oversight function of Congress may be facilitated by
compulsory process only to the extent that it is performed in pursuit of legislation." It is conceded that
it is difficult to draw the line between an inquiry in aid oflegislation and an inquiry in the
exercise of oversight function of Congress. In this regard, much will depend on the content of the
questions and the manner the inquiry is conducted.
Respondent Committees argue that a claim of executive privilege does not guard against a possible
disclosure of a crime or wrongdoing. We see no dispute on this. It is settled in United States v.
Nixon 48 that "demonstrated, specific need for evidence in pending criminal trial" outweighs the
President's "generalized interest in confidentiality." However, the present case's distinction with
the Nixon case is very evident. In Nixon, there is a pending criminal proceeding where the information is
requested and it is the demands of due process of law and the fair administration of criminal justice that
the information be disclosed. This is the reason why the U.S. Court was quick to "limit the scope of its
decision." It stressed that it is "not concerned here with the balance between the President's generalized
interest in confidentiality . . . and congressional demands for information." Unlike in Nixon, the
information here is elicited, not in a criminal proceeding, but in a legislative inquiry. In this
regard, Senate v. Ermita stressed that the validity of the claim of executive privilege depends not
only on the ground invoked but, also, the procedural setting or the context in which the claim is made.
Furthermore, in Nixon, the President did not interpose any claim of need to protect military, diplomatic
or sensitive national security secrets. In the present case, Executive Secretary Ermita categorically claims
executive privilege on the grounds of presidential communications privilege in relation to her executive
and policy decision-making process and diplomatic secrets.
The respondent Committees should cautiously tread into the investigation of matters which may present
a conflict of interest that may provide a ground to inhibit the Senators participating in the inquiry if
later on an impeachment proceeding is initiated on the same subject matter of the
present Senate inquiry. Pertinently, in Senate Select Committee onPresidential Campaign Activities v.
Nixon, 49 it was held that since an impeachment proceeding had been initiated by a House Committee,
the Senate Select Committee's immediate oversight need for five presidential tapes, should give way to
the House Judiciary Committee which has the constitutional authority to inquire into presidential
impeachment. The Court expounded on this issue in this wise:
It is true, of course, that the Executive cannot, any more than the other
branches of government, invoke a general confidentiality privilege to shield its officials
and employees frominvestigations by the proper governmental institutions into
possible criminal wrongdoing. The Congress learned this as to its own privileges
in Gravel v. United States, as did the judicial branch, in a sense, in Clark v. United States,
and the executive branch itself in Nixon v. Sirica. But under Nixon v. Sirica, the showing
required to overcome the presumption favoring confidentiality turned, not on the
nature of the presidential conduct that the subpoenaed material might reveal, but,
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instead, on the nature and appropriateness of the function in the

performance of which the material was sought, and the degree to which the material
was necessary to its fulfillment. Here also our task requires and our decision implies
no judgment whatever concerning possible presidential involvement in culpable
activity. On the contrary, we think the sufficiency of the Committee's showing must
depend solely on whether the subpoenaed evidence is demonstrably critical to the
responsible fulfillment of the Committee's functions.
In its initial briefs here, the Committee argued that it has shown exactly this. It
contended that resolution, on the basis of the subpoenaed tapes, of the conflicts in the
testimony before it 'would aid in a determination whether legislative involvement in
political campaigns is necessary' and 'could help engender the public support needed
for basic reforms in our electoral system.' Moreover, Congress has, according to
the Committee, power to oversee the operations of the executive branch, to
investigate instances of possible corruption and malfeasance in office, and to expose
the results of its investigations to public view. The Committee says that with respect to
Watergate-related matters, this power has been delegated to it by the Senate, and that
to exercise its power responsibly, it must have access to the subpoenaed tapes.
We turn first to the latter contention. In the circumstances of this case, we need neither
deny that the Congress may have, quite apart from its legislative responsibilities, a
general oversight power, nor explore what the lawful reach of that power might be
under the Committee's constituent resolution. Since passage of that resolution, the
House Committee on the Judiciary has begun an inquiry into presidential
impeachment. The investigative authority of the Judiciary Committee with respect to
presidential conduct has an express constitutional source. . . . We have been shown no
evidence indicating that Congress itself attaches any particular value to this interest.
In these circumstances, we think the need for the tapes premised solely on an
asserted power to investigate and inform cannot justify
enforcement of the Committee's subpoena.
The sufficiency of the Committee's showing of need has come to depend, therefore,
entirely on whether the subpoenaed materials are critical to the performance of its
legislative functions. There is a clear difference between Congress's legislative tasks and
the responsibility of a grand jury, or any institution engaged in like functions. While
fact-finding by a legislativecommittee is undeniably a part of its task, legislative
judgments normally depend more on the predicted consequences of proposed
legislative actions and their political acceptability, than on precise
reconstruction of past events; Congress frequently legislates on the basis of conflicting
information provided in its hearings. In contrast, the responsibilityof the grand jury
turns entirely on its ability to determine whether there is probable cause to believe that
certain named individuals did or did not commit specific crimes. If, for example, as
in Nixon v. Sirica, one of those crimes is perjury concerning the content of certain
conversations, the grand jury's need for the most precise evidence, the exact
text of oral statements recorded in their original form, is undeniable. We see no
comparable need in the legislative process, at least not in the circumstances of this
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case. Indeed, whatever force there might once have been in the Committee's argument
that the subpoenaed materials are necessary to its legislative judgments has been
substantially undermined by subsequent events. (Emphasis supplied)
Respondent Committees further contend that the grant of petitioner's claim of executive privilege
violates the constitutional provisions on right of the people to
information on matters ofpublic concern. 50 We might have agreed with such contention if petitioner did
not appear before them at all. But petitioner made himself available to them during the September 26
hearing, where he was questioned for eleven (11) hours. Not only that, he expressly manifested his
willingness to answer more questions from the Senators, with the exception only ofthose covered by his
claim of executive privilege.
The right to public information, like any other right, is subject to limitation. Section 7 of Article III provides:
The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to
official acts, transactions, or decisions, as well as to government research data used as
basis for policy development, shall be afforded the citizen, subject to such limitations
as may be provided by law.
The provision itself expressly provides the limitation, i.e. as may be provided by law. Some of these laws
are Section 7 of Republic Act (R.A.) No. 6713, 51 Article 229 52 of the Revised Penal Code, Section 3
(k) 53 of R.A. No. 3019, and Section 24 (e) 54 of Rule 130 of the Rules of Court. These are in addition to
what our body of jurisprudence classifies as confidential 55 and what our Constitution considers as
belonging to the larger concept of executive privilege. Clearly, there is a recognized public interest in the
confidentiality of certain information. We find the information subject of this case belonging to such kind.
More than anything else, though, the right of Congress or any of its Committees to obtain information in
aid of legislation cannot be equated with the people's right to public information. The former cannot
claim that every legislative inquiry is an exercise of the people' right to information. The distinction
between such rights is laid down in Senate v. Ermita:
There are, it bears noting, clear distinctions between the right of Congress to
information which underlies the power of inquiry and the right of people to
information on matters of publicconcern. For one, the demand of a citizen for the
production of documents pursuant to his right to information does not have the same
obligatory force as a subpoena duces tecum issued by Congress. Neither does the right
to information grant a citizen the power to exact testimony from government officials.
These powers belong only to Congress, not to individual citizen.
Thus, while Congress is composed of representatives elected by the people, it does
not follow, except in a highly qualified sense, that in every exercise of its
power of inquiry, the people are exercising their right to information.
The members of respondent Committees should not invoke as justification in their exercise of power a
right properly belonging to the people in general. This is because when they discharge their power, they
do so as public officials and members of Congress. Be that as it may, the right to information must be
balanced with and should give way in appropriate cases to constitutional precepts particularly those
pertaining to delicate interplay of executive-legislative powers and privileges which is the
subject of careful review by numerous decided cases.
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B-The Claim of Executive Privilege

is Properly Invoked
We now proceed to the issue whether the claim is properly invoked by the President. Jurisprudence
teaches that for the claim to be properly invoked, there must be a formal claimof privilege, lodged by the
head of the department which has control over the matter." 56 A formal and proper claim of executive
privilege requires a "precise and certain reason" for preserving their confidentiality. 57
The Letter dated November 17, 2007 of Executive Secretary Ermita satisfies the requirement. It serves as
the formal claim of privilege. There he expressly states that "this Office is constrained to invoke the
settled doctrine of executive privilege as refined in Senate v. Ermita, and has advised
Secretary Neri accordingly." Obviously, he is referring to the Office of the President. That is more than
enough compliance. In Senate v. Ermita, a less categorical letter was even adjudged to be sufficient.
With regard to the existence of "precise and certain reason", we find the grounds relied upon by Executive
Secretary Ermita specific enough so as not "to leave respondent Committees in the dark on how the
requested information could be classified as privileged." The case of Senate v. Ermita only requires that
an allegation be made "whether the information demanded involves military or diplomatic secrets,
closed-door Cabinet meetings, etc." The particular ground must only be specified. The enumeration is not
even intended to be comprehensive." 58The following statement of grounds satisfies the requirement:
People's Republicof China. Given the confidential nature in which these information
were conveyed to the President, he cannot provide the Committee any further
details of these conversations, without disclosing the very thing the privilege is
designed to protect.
At any rate, as held further in Senate v. Ermita, 59 the Congress must not require the executive to state
the reasons for the claim with such particularity as to compel disclosure of the information which the
privilege is meant to protect. This is a matter of respect to a coordinate and co-equal department.
II
Respondent Committees Committed Grave Abuse
of Discretion in Issuing the Contempt Order
Grave abuse of discretion means "such capricious and whimsical exercise of judgment as is equivalent to
lack of jurisdiction, or, in other words where the power is exercised in an arbitrary or despotic manner by
reason of passion or personal hostility and it must be so patent and gross as to amount to an
evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in
contemplation of law." 60
It must be reiterated that when respondent Committees issued the show cause Letter dated November
22, 2007, petitioner replied immediately, manifesting that it was not his intention to ignore
the Senate hearing and that he thought the only remaining questions were the three (3) questions he
claimed to be covered by executive privilege. In addition thereto, he submitted Atty. Bautista's letter,
stating that his non-appearance was upon the order of the President and specifying the reasons why his
conversations with President Arroyo are covered by executive privilege. Both correspondences include
an expression of his willingness to testify again, provided he "be furnished in advance" copies of the
questions. Without responding to his request for advance list of questions, respondent Committees
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issued the Order dated January 30, 2008, citing him in contempt of respondent Committees and ordering
his arrest and detention at the Office of the Senate Sergeant-At-Arms until such time that he would
appear and give his testimony. Thereupon, petitioner filed a motion for reconsideration, informing
respondent Committees that he had filed the present petition for certiorari.
Respondent Committees committed grave abuse of discretion in issuing the contempt Order in
view of five (5) reasons.
First, there being a legitimate claim of executive privilege, the issuance of the contempt Order suffers
from constitutional infirmity.
Second, respondent Committees did not comply with the requirement laid down in Senate vs. Ermita that
the invitations should contain the "possible needed statute which prompted the need for the inquiry",
along with "the usual indication of the subject of inquiry and the questions relative to and in furtherance
thereof." Compliance with this requirement is imperative, both under Sections 21 and 22 of Article
VI of the Constitution. This must be so to ensure that the rights of both persons appearing in or
affected by such inquiry are respected as mandated by said Section 21 and by virtue of the express
language of Section 22. Unfortunately, despite petitioner's repeated demands, respondent Committees
did not send him advance list of questions.
Third, a reading of the transcript of respondent Committees' January 30, 2008 proceeding reveals that
only a minority of the members of the Senate Blue Ribbon Committee were present during the
deliberation. 61 Section 18 of the Rules of Procedure Governing Inquiries in Aid of Legislation provides
that:
"The Committee, by a vote of majority of all its members, may punish for contempt
any witness before it who disobey any order of the Committee or refuses to be sworn
or to testify or to answer proper questions by the Committee or any of its members."
Clearly, the needed vote is a majority of all the members of the Committee. Apparently, members who
did not actually participate in the deliberation were made to sign the contempt Order. Thus, there is a
cloud of doubt as to the validity of the contempt Order dated January 30, 2008. We quote the pertinent
portion of the transcript, thus:
THE CHAIRMAN (SEN. CAYETANO, A).
For clarification. . . . The Chair will call either a caucus or will ask
the Committee on Rules if there is a problem. Meaning, if we do not have the
sufficient numbers. But if we have a sufficient number, we will just hold a
caucus to be able to implement that right away because. . . Again, our Rules
provide that any one held in contempt and ordered arrested, need the
concurrence of a majority of all members of the said committee and we have
three committees conducting this.
So thank you very much to the members. . .
SEN. PIMENTEL.
Mr. Chairman.
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THE CHAIRMAN (SEN. CAYETANO, A).

May I recognize the Minority Leader and give him the floor, Senator Pimentel.
SEN. PIMENTEL.
Mr. Chairman, there is no problem, I think, with consulting the other committees. But I
am of the opinion that the Blue Ribbon Committee is the lead committee, and
therefore, it should have preference in enforcing its own decisions. Meaning to
say, it is not something that is subject to consultation with other committees. I
am not sure that is the right interpretation. I think that once we decide here,
we enforce what we decide, because otherwise, before we know it, our
determination is watered down by delay and, you know, the so-called
"consultation" that inevitably will have to take place if we follow the premise
that has been explained.
So my suggestion, Mr. Chairman, is the Blue Ribbon Committee should not forget it's
the lead committee here, and therefore, the will of the
lead committee prevails over all the other, you, know reservations that other
committees might have who are only secondary or even tertiary committees,
Mr. Chairman.
THE CHAIRMAN (SEN. CAYETANO, A.)
Thank you very much to the Minority Leader. And I agree with the wisdom of his
statements. I was merely mentioning that under Section 6 of the
Rules of the Committee and under Section 6, "The Committee by a vote of a
majority of all its members may punish for contempt any witness before it who
disobeys any order of the Committee."
So the Blue Ribbon Committee is more than willing to take that responsibility. But we
only have six members here today, I am the seventh as chair and so we have
not met that number. So I am merely stating that, sir, that when we will
prepare the documentation, if a majority of all members sign and I am following
the Sabio v. Gordon rule wherein I do believe, if I am not mistaken, Chairman
Gordon prepared the documentation and then either in caucus or in session
asked the other members to sign. And once the signatures are obtained, solely
for the purpose that Secretary Neri or Mr. Lozada will not be able to legally
question our subpoena as being insufficient in accordance with law.
SEN. PIMENTEL.
Mr. Chairman, the caution that the chair is suggesting is very well-taken. But I'd like to
advert to the fact that the quorum of the committee is only two as far as I
remember. Any two-member senators attending a Senate committee hearing
provide that quorum, and therefore there is more than a quorum demanded
by our Rules as far as we are concerned now, and acting as Blue
Ribbon Committee, as Senator Enrile pointed out. In any event, the signatures
that will follow by the additional members will only tend to strengthen the
determination of this Committee to put its foot forward put down on what
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is happening in this country, Mr. Chairman, because it really looks terrible if the
primary Committee ofthe Senate, which is the Blue ribbon Committee, cannot
even sanction people who openly defy, you know, the
summons of this Committee. I know that the Chair is going through an
agonizing moment here. I know that. But nonetheless, I think we have to
uphold, you know, the institution that we are representing because the
alternative will be a disaster for all ofus, Mr. Chairman. So having said that, I'd
like to reiterate my point.
THE CHAIRMAN (SEN. CAYETANO, A.)
First of all, I agree 100 percent with the intentions of the Minority Leader. But let me
very respectfully disagree with the legal requirements. Because, yes, we can
have a hearing if we are only two but both under section 18 of the
Rules of the Senate and under Section 6 of the Rules of the Blue
Ribbon Committee, there is a need for a majority ofall members if it is a
case of contempt and arrest. So, I am simply trying to avoid the court rebuking
the Committee, which will instead of strengthening will weaken us. But I do
agree, Mr. Minority Leader, that we should push for this and show the executive
branch that the well-decided the issue has been decided upon the
Sabio versus Gordon case. And it's very clear that we are all allowed to call
witnesses. And if they refure or they disobey not only can we cite them in
contempt and have them arrested. . . 62
Fourth, we find merit in the argument of the OSG that respondent Committees likewise violated Section
21 of Article VI of the Constitution, requiring that the inquiry be in accordance with the "duly published
rules of procedure." We quote the OSG's explanation:
The phrase "duly published rules of procedure" requires the Senate of every Congress
to publish its rules of procedure governing inquiries in aid of legislation because
every Senate is distinct from the one before it or after it. Since Senatorial elections are
held every three (3) years for one-half of the Senate's membership, the
composition of the Senate also changes by the end of each term. Each Senate may thus
enact a different set of rules as it may deem, fit. Not having published
its Rules of Procedure, the subject hearings in aid of legislation conducted by the
14th Senate, are therefore, procedurally infirm.
And fifth, respondent Committees' issuance of the contempt Order is arbitrary and precipitate. It must be
pointed out that respondent Committees did not first pass upon the claim ofexecutive privilege and
inform petitioner of their ruling. Instead, they curtly dismissed his explanation as "unsatisfactory" and
simultaneously issued the Order citing him in contempt and ordering his immediate arrest and detention.
A fact worth highlighting is that petitioner is not an unwilling witness. He manifested several times his
readiness to testify before respondent Committees. He refused to answer the three (3) questions because
he was ordered by the President to claim executive privilege. It behooves respondent Committees to first
rule on the claim of executive privilege and inform petitioner of their finding thereon,
instead of peremptorily dismissing his explanation as "unsatisfactory." Undoubtedly, respondent
Committees' actions constitute grave abuse ofdiscretion for being arbitrary and for denying petitioner
due process of law. The same quality afflicted their conduct when they (a) disregarded petitioner's
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motion for reconsideration alleging that he had filed the present petition before this Court and (b) ignored
petitioner's repeated request for advance list of questions, if there be any aside from the three (3)
questions as to which he claimed to be covered by executive privilege.
Even the courts are repeatedly advised to exercise the power of contempt judiciously and sparingly with
utmost self-restraint with the end in view of utilizing the same for correction and preservation of the
dignity of the court, not for retaliation or vindication. 63 Respondent Committees should have exercised
the same restraint, after all petitioner is not even an ordinary witness. He holds a high position in a co-
equal branch of government.
In this regard, it is important to mention that many incidents of judicial review could have been avoided
if powers are discharged with circumspection and deference. Concomitant with the
doctrine of separation of powers is the mandate to observe respect to a co-equal branch of the
government.
One last word.
The Court was accused of attempting to abandon its constitutional duty when it required the parties to
consider a proposal that would lead to a possible compromise. The accusation is far from truth. The Court
did so, only, to test a tool that other jurisdictions find to be effective in settling similar cases, to avoid a
piecemeal consideration of the questions for review, and to avert a constitutional crisis between the
executive and legislative branches of government.
In United States v. American Tel. & Tel Co., 64 the court refrained from deciding the case because of its
desire to avoid a resolution that might disturb the balance of power between the two branches and
inaccurately reflect their true needs. Instead, it remanded the record to the District Court for further
proceedings during which the parties are required to negotiate a settlement. In the subsequent
case United States v. American Tel. &Tel Co., 65 it was held that "much of this spirit of compromise is
reflected in the generality of language found in the Constitution." It proceeded to state:
Under this view, the coordinate branches do not exist in an exclusively adversary
relationship to one another when a conflict in authority arises. Rather each branch
should take cognizanceof an implicit constitutional mandate to seek optimal
accommodation through a realistic evaluation of the needs of the conflicting branches
in the particular fact situation.
It thereafter concluded that: "The Separation of Powers often impairs efficiency, in terms of dispatch
and the immediate functioning of government. It is the long-term staying power of government that is
enhanced by the mutual accommodation required by the separation of powers."
In rendering this decision, the Court emphasizes once more that the basic principles of constitutional law
cannot be subordinated to the needs of a particular situation. As magistrates, our mandate is to rule
objectively and dispassionately, always mindful of Mr. Justice Holmes' warning on the dangers inherent
in cases of this nature, thus:
"some accident of immediate and overwhelming interest. . . appeals to the feelings and
distorts the judgment. These immediate interests exercise a kind of hydraulic pressure
which makes what previously was clear seem doubtful, and before which even well
settled principles of law will bend." 66
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In this present crusade to "search for truth", we should turn to the fundamental constitutional principles
which underlie our tripartite system of government, where the Legislature enacts the law, the Judiciary
interprets it and the Executive implements it. They are considered separate, co-equal, coordinate and
supreme within their respective spheres but, imbued with a system of checks and balances to prevent
unwarranted exercise of power. The Court's mandate is to preserve these constitutional principles at all
times to keep the political branches ofgovernment within constitutional bounds in the exercise of their
respective powers and prerogatives, even if it be in the search for truth. This is the only way we can
preserve the stabilityof our democratic institutions and uphold the Rule of Law.
WHEREFORE, the petition is hereby GRANTED. The subject Order dated January 30, 2008, citing petitioner
Romulo L. Neri in contempt of the Senate Committees and directing his arrest and detention, is hereby
nullified.
SO ORDERED.
||| (Neri v. Senate Committee on Accountability of Public Officers and Investigations,

G.R. No. 180643, [March 25, 2008], 572 PHIL 554-910)
NERI VS. SENATE (MFR)
ROMULO L. NERI, petitioner,vs.SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC

OFFICERS AND INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND COMMERCE,
AND SENATE COMMITTEE ON NATIONAL DEFENSE AND SECURITY, respondents.
RESOLUTION
Executive privilege is not a personal privilege, but one that adheres to the Office of the
President. It exists to protect public interest, not to benefit a particular public official. Its purpose,
among others, is to assure that the nation will receive the benefit of candid, objective and
untrammeled communication and exchange of information between the President and his/her
advisers in the process of shaping or forming policies and arriving at decisions in the exercise of the
functions of the Presidency under the Constitution. The confidentiality of the President's
conversations and correspondence is not unique. It is akin to the confidentiality of judicial
deliberations. It possesses the same value as the right to privacy of all citizens and more, because it is
dictated by public interest and the constitutionally ordained separation of governmental powers.
In these proceedings, this Court has been called upon to exercise its power of review and
arbitrate a hotly, even acrimoniously, debated dispute between the Court's co-equal branches of
government. In this task, this Court should neither curb the legitimate powers of any of the co-equal
and coordinate branches of government nor allow any of them to overstep the boundaries set for it
by our Constitution. The competing interests in the case at bar are the claim of executive privilege by
the President, on the one hand, and the respondent Senate Committees' assertion of their power to
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conduct legislative inquiries, on the other. The particular facts and circumstances of the present case,
stripped of the politically and emotionally charged rhetoric from both sides and viewed in the light of
settled constitutional and legal doctrines, plainly lead to the conclusion that the claim of executive
privilege must be upheld. ASTcEa
Assailed in this motion for reconsideration is our Decision dated March 25, 2008 (the
"Decision"),granting the petition for certiorari filed by petitioner Romulo L. Neri against the
respondent Senate Committees on Accountability of Public Officers and Investigations, 1 Trade and
Commerce, 2 and National Defense and Security (collectively the "respondent Committees"). 3
A brief review of the facts is imperative.
On September 26, 2007, petitioner appeared before respondent Committees and testified for
about eleven (11) hours on matters concerning the National Broadband Project (the "NBN Project"),
a project awarded by the Department of Transportation and Communications ("DOTC") to Zhong Xing
Telecommunications Equipment ("ZTE"). Petitioner disclosed that then Commission on Elections
("COMELEC") Chairman Benjamin Abalos offered him P200 Million in exchange for his approval of the
NBN Project. He further narrated that he informed President Gloria Macapagal-Arroyo ("President
Arroyo") of the bribery attempt and that she instructed him not to accept the bribe. However, when
probed further on President Arroyo and petitioner's discussions relating to the NBN Project, petitioner
refused to answer, invoking "executive privilege". To be specific, petitioner refused to answer
questions on: (a) whether or not President Arroyo followed up the NBN Project, 4 (b) whether or not
she directed him to prioritize it, 5 and (c) whether or not she directed him to approve it. 6
Respondent Committees persisted in knowing petitioner's answers to these three questions
by requiring him to appear and testify once more on November 20, 2007. On November 15, 2007,
Executive Secretary Eduardo R. Ermita wrote to respondent Committees and requested them to
dispense with petitioner's testimony on the ground of executive privilege. 7 The letter of Executive
Secretary Ermita pertinently stated:
Following the ruling in Senate v. Ermita, the foregoing questions fall under
conversations and correspondence between the President and public officials which are
considered executive privilege (Almonte v. Vasquez, G.R. 95637, 23 May 1995; Chavez
v. PEA, G.R. 133250, July 9, 2002).Maintaining the confidentiality of conversations of
the President is necessary in the exercise of her executive and policy decision making
process. The expectation of a President to the confidentiality of her conversations and
correspondences, like the value which we accord deference for the privacy of all
citizens, is the necessity for protection of the public interest in candid, objective, and
even blunt or harsh opinions in Presidential decision-making. Disclosure of
conversations of the President will have a chilling effect on the President, and will
hamper her in the effective discharge of her duties and responsibilities, if she is not
protected by the confidentiality of her conversations. IaDcTC
People's Republic of China. Given the confidential nature in which these information
were conveyed to the President, he cannot provide the Committee any further details
of these conversations, without disclosing the very thing the privilege is designed to
protect.
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In light of the above considerations, this Office is constrained to invoke the settled
doctrine of executive privilege as refined in Senate v. Ermita, and has advised Secretary
Neri accordingly.
Considering that Sec. Neri has been lengthily interrogated on the subject in an
unprecedented 11-hour hearing, wherein he has answered all questions propounded
to him except the foregoing questions involving executive privilege, we therefore
request that his testimony on 20 November 2007 on the ZTE/NBN project be dispensed
with.
On November 20, 2007, petitioner did not appear before respondent Committees upon
orders of the President invoking executive privilege. On November 22, 2007, the respondent
Committees issued the show-cause letter requiring him to explain why he should not be cited in
contempt. On November 29, 2007, in petitioner's reply to respondent Committees, he manifested
that it was not his intention to ignore the Senate hearing and that he thought the only remaining
questions were those he claimed to be covered by executive privilege. He also manifested his
willingness to appear and testify should there be new matters to be taken up. He just requested that
he be furnished "in advance as to what else" he "needs to clarify". STIEHc
Respondent Committees found petitioner's explanations unsatisfactory. Without responding
to his request for advance notice of the matters that he should still clarify, they issued the Order dated
January 30, 2008; In Re: P.S. Res. Nos. 127, 129, 136 & 144; and privilege speeches of Senator Lacson
and Santiago (all on the ZTE-NBN Project),citing petitioner in contempt of respondent Committees
and ordering his arrest and detention at the Office of the Senate Sergeant-at-Arms until such time
that he would appear and give his testimony.
On the same date, petitioner moved for the reconsideration of the above Order. 8 He insisted
that he had not shown "any contemptible conduct worthy of contempt and arrest". He emphasized
his willingness to testify on new matters, but respondent Committees did not respond to his request
for advance notice of questions. He also mentioned the petition for certiorari he previously filed with
this Court on December 7, 2007. According to him, this should restrain respondent Committees from
enforcing the order dated January 30, 2008 which declared him in contempt and directed his arrest
and detention.
Petitioner then filed his Supplemental Petition for Certiorari (with Urgent Application for
TRO/Preliminary Injunction) on February 1, 2008. In the Court's Resolution dated February 4, 2008,
the parties were required to observe the status quo prevailing prior to the Order dated January 30,
2008.
On March 25, 2008, the Court granted his petition for certiorari on two grounds: first, the
communications elicited by the three (3) questions were covered by executive privilege;
and second, respondent Committees committed grave abuse of discretion in issuing the contempt
order. Anent the first ground, we considered the subject communications as falling under
the presidential communications privilege because (a) they related to a quintessential and non-
delegable power of the President, (b) they were received by a close advisor of the President,
and (c) respondent Committees failed to adequately show a compelling need that would justify the
limitation of the privilege and the unavailability of the information elsewhere by an appropriate
investigating authority. As to the second ground, we found that respondent Committees committed
grave abuse of discretion in issuing the contempt order because (a) there was a valid claim of
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executive privilege, (b) their invitations to petitioner did not contain the questions relevant to the
inquiry, (c) there was a cloud of doubt as to the regularity of the proceeding that led to their issuance
of the contempt order, (d) they violated Section 21, Article VI of the Constitution because their inquiry
was not in accordance with the "duly published rules of procedure", and (e) they issued the contempt
order arbitrarily and precipitately. TAcCDI
On April 8, 2008, respondent Committees filed the present motion for reconsideration,
anchored on the following grounds:
I
CONTRARY TO THIS HONORABLE COURT'S DECISION, THERE IS NO DOUBT THAT THE
ASSAILED ORDERS WERE ISSUED BY RESPONDENT COMMITTEES PURSUANT TO THE
EXERCISE OF THEIR LEGISLATIVE POWER, AND NOT MERELY THEIR OVERSIGHT
FUNCTIONS.
II
CONTRARY TO THIS HONORABLE COURT'S DECISION, THERE CAN BE NO
PRESUMPTION THAT THE INFORMATION WITHHELD IN THE INSTANT CASE IS
PRIVILEGED.
III
CONTRARY TO THIS HONORABLE COURT'S DECISION, THERE IS NO FACTUAL OR LEGAL
BASIS TO HOLD THAT THE COMMUNICATIONS ELICITED BY THE SUBJECT THREE (3)
QUESTIONS ARE COVERED BY EXECUTIVE PRIVILEGE, CONSIDERING THAT:
A. THERE IS NO SHOWING THAT THE MATTERS FOR WHICH EXECUTIVE PRIVILEGE IS
CLAIMED CONSTITUTE STATE SECRETS.
B. EVEN IF THE TESTS ADOPTED BY THIS HONORABLE COURT IN THE DECISION IS
APPLIED, THERE IS NO SHOWING THAT THE ELEMENTS OF PRESIDENTIAL
COMMUNICATIONS PRIVILEGE ARE PRESENT.
C. ON THE CONTRARY, THERE IS ADEQUATE SHOWING OF A COMPELLING NEED TO
JUSTIFY THE DISCLOSURE OF THE INFORMATION SOUGHT. CIcEHS
D. TO UPHOLD THE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE WOULD
SERIOUSLY IMPAIR THE RESPONDENTS' PERFORMANCE OF THEIR PRIMARY
FUNCTION TO ENACT LAWS.
E. FINALLY, THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO INFORMATION, AND THE
CONSTITUTIONAL POLICIES ON PUBLIC ACCOUNTABILITY AND
TRANSPARENCY OUTWEIGH THE CLAIM OF EXECUTIVE PRIVILEGE.
IV
CONTRARY TO THIS HONORABLE COURT'S DECISION, RESPONDENTS DID NOT
COMMIT GRAVE ABUSE OF DISCRETION IN ISSUING THE ASSAILED CONTEMPT ORDER,
CONSIDERING THAT:
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A. THERE IS NO LEGITIMATE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE.

B. RESPONDENTS DID NOT VIOLATE THE SUPPOSED REQUIREMENTS LAID DOWN
IN SENATE V. ERMITA.
C. RESPONDENTS DULY ISSUED THE CONTEMPT ORDER IN ACCORDANCE WITH THEIR
INTERNAL RULES. IaDSEA
D. RESPONDENTS DID NOT VIOLATE THE REQUIREMENTS UNDER ARTICLE VI, SECTION
21 OF THE CONSTITUTION REQUIRING THAT ITS RULES OF PROCEDURE BE
DULY PUBLISHED, AND WERE DENIED DUE PROCESS WHEN THE COURT
CONSIDERED THE OSG'S INTERVENTION ON THIS ISSUE WITHOUT GIVING
RESPONDENTS THE OPPORTUNITY TO COMMENT.
E. RESPONDENTS' ISSUANCE OF THE CONTEMPT ORDER IS NOT ARBITRARY OR
PRECIPITATE.
In his Comment, petitioner charges respondent Committees with exaggerating and distorting
the Decision of this Court. He avers that there is nothing in it that prohibits respondent Committees
from investigating the NBN Project or asking him additional questions. According to petitioner, the
Court merely applied the rule on executive privilege to the facts of the case. He further submits the
following contentions: first, the assailed Decision did not reverse the presumption against executive
secrecy laid down in Senate v. Ermita;second, respondent Committees failed to overcome the
presumption of executive privilege because it appears that they could legislate even without the
communications elicited by the three (3) questions, and they admitted that they could dispense with
petitioner's testimony if certain NEDA documents would be given to them; third, the requirement of
specificity applies only to the privilege for State, military and diplomatic secrets, not to the necessarily
broad and all-encompassing presidential communications privilege; fourth, there is no right to pry
into the President's thought processes or exploratory exchanges; fifth, petitioner is not covering up
or hiding anything illegal; sixth, the Court has the power and duty to annul the Senate
Rules; seventh, the Senate is not a continuing body, thus the failure of the present Senate to publish
its Rules of Procedure Governing Inquiries in Aid of Legislation (Rules)has a vitiating effect on
them; eighth, the requirement for a witness to be furnished advance copy of questions comports with
due process and the constitutional mandate that the rights of witnesses be respected;
and ninth, neither petitioner nor respondent has the final say on the matter of executive privilege,
only the Court.
For its part, the Office of the Solicitor General maintains that: (1) there is no categorical
pronouncement from the Court that the assailed Orders were issued by respondent Committees
pursuant to their oversight function; hence, there is no reason for them "to make much" of the
distinction between Sections 21 and 22, Article VI of the Constitution; (2)presidential communications
enjoy a presumptive privilege against disclosure as earlier held in Almonte v. Vasquez 9 and Chavez v.
Public Estates Authority (PEA); 10 (3) the communications elicited by the three (3) questions are
covered by executive privilege, because all the elements of the presidential communications privilege
are present; (4) the subpoena ad testificandum issued by respondent Committees to petitioner is
fatally defective under existing law and jurisprudence; (5) the failure of the present Senate to publish
itsRules renders the same void; and (6) respondent Committees arbitrarily issued the contempt
order. aSDCIE
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Incidentally, respondent Committees' objection to the Resolution dated March 18, 2008
(granting the Office of the Solicitor General's Motion for Leave to Intervene and to Admit Attached
Memorandum) only after the promulgation of the Decision in this case is foreclosed by its
untimeliness.
The core issues that arise from the foregoing respective contentions of the opposing parties
are as follows:
(1) whether or not there is a recognized presumptive presidential communications
privilege in our legal system;
(2) whether or not there is factual or legal basis to hold that the communications
elicited by the three (3) questions are covered by executive privilege;
(3) whether or not respondent Committees have shown that the communications
elicited by the three (3) questions are critical to the exercise of their functions;
and
(4) whether or not respondent Committees committed grave abuse of discretion in
issuing the contempt order.
We shall discuss these issues seriatim.
I
There Is a Recognized Presumptive Presidential Communications Privilege
Respondent Committees ardently argue that the Court's declaration that presidential
communications are presumptively privileged reverses the "presumption" laid down inSenate v.
Ermita 11 that "inclines heavily against executive secrecy and in favor of disclosure". Respondent
Committees then claim that the Court erred in relying on the doctrine inNixon. TcAECH
Respondent Committees argue as if this were the first time the presumption in favor of
the presidential communications privilege is mentioned and adopted in our legal system. That is far
from the truth. The Court, in the earlier case of Almonte v. Vasquez, 12 affirmed that the presidential
communications privilege is fundamental to the operation of government and inextricably rooted in
the separation of powers under the Constitution. Even Senate v. Ermita, 13 the case relied upon by
respondent Committees, reiterated this concept. There, the Court enumerated the cases in which the
claim of executive privilege was recognized, among them Almonte v. Chavez, Chavez v. Presidential
Commission on Good Government (PCGG), 14 and Chavez v. PEA. 15 The Court articulated in these
cases that "there are certain types of information which the government may withhold from the
public," 16that there is a "governmental privilege against public disclosure with respect to state
secrets regarding military, diplomatic and other national security matters"; 17 and that "the right to
information does not extend to matters recognized as 'privileged information' under the separation
of powers, by which the Court meant Presidential conversations, correspondences, and discussions
in closed-door Cabinet meetings". 18
Respondent Committees' observation that this Court's Decision reversed the "presumption
that inclines heavily against executive secrecy and in favor of disclosure" arises from a piecemeal
interpretation of the said Decision. The Court has repeatedly held that in order to arrive at the true
intent and meaning of a decision, no specific portion thereof should be isolated and resorted to, but
the decision must be considered in its entirety. 19
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Note that the aforesaid presumption is made in the context of the circumstances obtaining
in Senate v. Ermita, which declared void Sections 2 (b) and 3 of Executive Order (E.O.) No. 464, Series
of 2005. The pertinent portion of the decision in the said case reads:
From the above discussion on the meaning and scope of executive privilege, both in the
United States and in this jurisprudence, a clear principle emerges. Executive privilege,
whether asserted against Congress, the courts, or the public, is recognized only in
relation to certain types of information of a sensitive character. While executive
privilege is a constitutional concept, a claim thereof may be valid or not depending on
the ground invoked to justify it and the context in which it is made. Noticeably absent
is any recognition that executive officials are exempt from the duty to disclose
information by the mere fact of being executive officials. Indeed, the extraordinary
character of the exemptions indicates that the presumption inclines
heavily against executive secrecy and in favor of disclosure. (Emphasis and
underscoring supplied) HSTAcI
Obviously, the last sentence of the above-quoted paragraph in Senate v. Ermita refers to the
"exemption" being claimed by the executive officials mentioned in Section 2 (b) of E.O. No. 464, solely
by virtue of their positions in the Executive Branch. This means that when an executive official, who
is one of those mentioned in the said Sec. 2 (b) of E.O. No. 464,claims to be exempt from
disclosure, there can be no presumption of authorization to invoke executive privilege given by the
President to said executive official, such that the presumption in this situation inclines heavily against
executive secrecy and in favor of disclosure.
Senate v. Ermita 20 expounds on the premise of the foregoing ruling in this wise:
Section 2(b) in relation to Section 3 virtually provides that, once the head of office
determines that a certain information is privileged, such determination is presumed to
bear the President's authority and has the effect of prohibiting the official from
appearing before Congress, subject only to the express pronouncement of the
President that it is allowing the appearance of such official. These provisions thus allow
the President to authorize claims of privilege by mere silence.
Such presumptive authorization,however, is contrary to the exceptional nature of the

privilege. Executive privilege, as already discussed, is recognized with respect to
information the confidential nature of which is crucial to the fulfillment of the unique
role and responsibilities of the executive branch, or in those instances where exemption
from disclosure is necessaryto the discharge of highly important executive
responsibilities. The doctrine of executive privilege is thus premised on the fact that
certain information must, as a matter of necessity, be kept confidential in pursuit of
the public interest. The privilege being, by definition, an exemption from the obligation
to disclose information, in this case to Congress, the necessity must be of such high
degree as to outweigh the public interest in enforcing that obligation in a particular
case. CIaASH
In light of this highly exceptional nature of the privilege, the Court finds it essential to
limit to the President the power to invoke the privilege. She may of course authorize
the Executive Secretary to invoke the privilege on her behalf, in which case the
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Executive Secretary must state that the authority is "By order of the President",which
means that he personally consulted with her. The privilege being an extraordinary
power, it must be wielded only by the highest official in the executive hierarchy. In other
words, the President may not authorize her subordinates to exercise such power. There
is even less reason to uphold such authorization in the instant case where the
authorization is not explicit but by mere silence. Section 3, in relation to Section 2(b),is
further invalid on this score.
The constitutional infirmity found in the blanket authorization to invoke executive privilege
granted by the President to executive officials in Sec. 2 (b) of E.O. No. 464 does not obtain in this case.
In this case, it was the President herself, through Executive Secretary Ermita, who invoked
executive privilege on a specific matter involving an executive agreement between the Philippines
and China, which was the subject of the three (3) questions propounded to petitioner Neri in the
course of the Senate Committees' investigation. Thus, the factual setting of this case markedly differs
from that passed upon in Senate v. Ermita.
Moreover, contrary to the claim of respondents, the Decision in this present case hews closely
to the ruling in Senate v. Ermita, 21 to wit:
Executive privilege
The phrase "executive privilege" is not new in this jurisdiction. It has been used even
prior to the promulgation of the 1986 Constitution. Being of American origin, it is best
understood in light of how it has been defined and used in the legal literature of the
United States. DCcTHa
Schwart defines executive privilege as "the power of the Government to withhold
information from the public, the courts, and the Congress. Similarly, Rozell defines it
as "the right of the President and high-level executive branch officers to withhold
information from Congress, the courts, and ultimately the public." ...In this jurisdiction,
the doctrine of executive privilege was recognized by this Court in Almonte v. Vasquez.
Almonte used the term in reference to the same privilege subject of Nixon. It quoted
the following portion of the Nixondecision which explains the basis for the privilege:
"The expectation of a President to the confidentiality of his conversations and
correspondences, like the claim of confidentiality of judicial deliberations, for
example, he has all the values to which we accord deference for the privacy of all
citizens and, added to those values, is the necessity for protection of the public interest
in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A
President and those who assist him must be free to explore alternatives in the process
of shaping policies and making decisions and to do so in a way many would be unwilling
to express except privately. These are the considerations justifying a presumptive
privilege for Presidential communications. The privilege is fundamental to the
operation of government and inextricably rooted in the separation of powers under
the Constitution ..." (Emphasis and italics supplied)
Clearly, therefore, even Senate v. Ermita adverts to "a presumptive privilege for Presidential
communication",which was recognized early on in Almonte v. Vasquez. To construe the passage
in Senate v. Ermita adverted to in the Motion for Reconsideration of respondent Committees,
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referring to the non-existence of a "presumptive authorization" of an executive official, to mean that

the "presumption" in favor of executive privilege "inclines heavily against executive secrecy and in
favor of disclosure" is to distort the ruling in theSenate v. Ermita and make the same engage in self-
contradiction.
Senate v. Ermita 22 expounds on the constitutional underpinning of the relationship between
the Executive Department and the Legislative Department to explain why there should be no implied
authorization or presumptive authorization to invoke executive privilege by the President's
subordinate officials, as follows: CSIDTc
When Congress exercises its power of inquiry, the only way for department heads to
exempt themselves therefrom is by a valid claim of privilege. They are not exempt by
the mere fact that they are department heads. Only one executive official may be
exempted from this power the President on whom executive power is vested, hence,
beyond the reach of Congress except through the power of impeachment. It is based
on he being the highest official of the executive branch, and the due respect accorded
to a co-equal branch of governments which is sanctioned by a long-standing custom.
(Underscoring supplied)
Thus, if what is involved is the presumptive privilege of presidential communications when
invoked by the President on a matter clearly within the domain of the Executive, the said presumption
dictates that the same be recognized and be given preference or priority, in the absence of proof of a
compelling or critical need for disclosure by the one assailing such presumption. Any construction to
the contrary will render meaningless the presumption accorded by settled jurisprudence in favor of
executive privilege. In fact, Senate v. Ermitareiterates jurisprudence citing "the considerations
justifying a presumptive privilege for Presidential communications." 23
II
There Are Factual and Legal Bases to Hold that the Communications Elicited by the Three (3)
Questions Are Covered by Executive Privilege
Respondent Committees claim that the communications elicited by the three (3) questions
are not covered by executive privilege because the elements of the presidential communications
privilege are not present.
A. The power to enter into an executive agreement is a "quintessential and non-delegable
presidential power".
First, respondent Committees contend that the power to secure a foreign loan does not relate
to a "quintessential and non-delegable presidential power", because theConstitution does not vest it
in the President alone, but also in the Monetary Board which is required to give its prior concurrence
and to report to Congress. ScAHTI
This argument is unpersuasive.
The fact that a power is subject to the concurrence of another entity does not make such
power less executive. "Quintessential" is defined as the most perfect embodiment of something, the
concentrated essence of substance. 24 On the other hand, "non-delegable" means that a power or
duty cannot be delegated to another or, even if delegated, the responsibility remains with the
obligor. 25 The power to enter into an executive agreement is in essence an executive power. This
authority of the President to enter into executive agreements without the concurrence of the
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Legislature has traditionally been recognized in Philippine jurisprudence. 26 Now, the fact that the
President has to secure the prior concurrence of the Monetary Board, which shall submit to Congress
a complete report of its decision before contracting or guaranteeing foreign loans, does not diminish
the executive nature of the power.
The inviolate doctrine of separation of powers among the legislative, executive and judicial
branches of government by no means prescribes absolute autonomy in the discharge by each branch
of that part of the governmental power assigned to it by the sovereign people. There is the corollary
doctrine of checks and balances, which has been carefully calibrated by the Constitution to temper
the official acts of each of these three branches. Thus, by analogy, the fact that certain legislative acts
require action from the President for their validity does not render such acts less legislative in nature.
A good example is the power to pass a law. Article VI, Section 27 of the Constitution mandates that
every bill passed by Congress shall, before it becomes a law, be presented to the President who shall
approve or veto the same. The fact that the approval or vetoing of the bill is lodged with the President
does not render the power to pass law executive in nature. This is because the power to pass law is
generally a quintessential and non-delegable power of the Legislature. In the same vein, the executive
power to enter or not to enter into a contract to secure foreign loans does not become less executive
in nature because of conditions laid down in the Constitution. The final decision in the exercise of the
said executive power is still lodged in the Office of the President. TDaAHS
B. The "doctrine of operational proximity" was laid down precisely to limit the scope of the
presidential communications privilege but, in any case, it is not conclusive.
Second, respondent Committees also seek reconsideration of the application of the "doctrine
of operational proximity" for the reason that "it may be misconstrued to expand the scope of the
presidential communications privilege to communications between those who are 'operationally
proximate' to the President but who may have "no direct communications with her".
It must be stressed that the doctrine of "operational proximity" was laid down in In re: Sealed
Case 27 precisely to limit the scope of the presidential communications privilege. The U.S. court was
aware of the dangers that a limitless extension of the privilege risks and, therefore, carefully cabined
its reach by explicitly confining it to White House staff, and not to staffs of the agencies, and then only
to White House staff that has "operational proximity" to direct presidential decision-making,
thus: TEHDIA
We are aware that such an extension, unless carefully circumscribed to accomplish the
purposes of the privilege, could pose a significant risk of expanding to a large swath of
the executive branch a privilege that is bottomed on a recognition of the unique role of
the President. In order to limit this risk, the presidential communications privilege
should be construed as narrowly as is consistent with ensuring that the confidentiality
of the President's decision-making process is adequately protected. Not every person
who plays a role in the development of presidential advice, no matter how remote
and removed from the President, can qualify for the privilege. In particular, the
privilege should not extend to staff outside the White House in executive branch
agencies. Instead, the privilege should apply only to communications authored or
solicited and received by those members of an immediate White House advisor's staff
who have broad and significant responsibility for investigation and formulating the
advice to be given the President on the particular matter to which the communications
relate. Only communications at that level are close enough to the President to be
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revelatory of his deliberations or to pose a risk to the candor of his advisers. See AAPS,
997 F.2d at 910 (it is "operational proximity" to the President that matters in
determining whether "[t]he President's confidentiality interests" is
implicated).(Emphasis supplied)
In the case at bar, the danger of expanding the privilege "to a large swath of the executive
branch" (a fear apparently entertained by respondents) is absent because the official involved here is
a member of the Cabinet, thus, properly within the term "advisor" of the President; in fact, her alter
ego and a member of her official family. Nevertheless, in circumstances in which the official involved
is far too remote, this Court also mentioned in the Decision the organizational test laid down
in Judicial Watch, Inc. v. Department of Justice. 28 This goes to show that the operational proximity
test used in the Decision is not considered conclusive in every case. In determining which test to use,
the main consideration is to limit the availability of executive privilege only to officials who stand
proximate to the President, not only by reason of their function, but also by reason of their positions
in the Executive's organizational structure. Thus, respondent Committees' fear that the scope of the
privilege would be unnecessarily expanded with the use of the operational proximity test is
unfounded. cAaDHT
C. The President's claim of executive privilege is not merely based on a generalized interest; and in
balancing respondent Committees' and the President's clashing interests, the Court did not
disregard the 1987 Constitutional provisions on government transparency, accountability
and disclosure of information.
Third, respondent Committees claim that the Court erred in upholding the President's
invocation, through the Executive Secretary, of executive privilege because (a) between respondent
Committees' specific and demonstrated need and the President's generalized interest in
confidentiality, there is a need to strike the balance in favor of the former; and (b)in the balancing of
interest, the Court disregarded the provisions of the 1987 Philippine Constitution on government
transparency, accountability and disclosure of information, specifically, Article III, Section 7; 29 Article
II, Sections 24 30 and 28; 31 Article XI, Section 1; 32 Article XVI, Section 10; 33 Article VII, Section
20; 34 and Article XII, Sections 9, 35 21, 36 and 22. 37
It must be stressed that the President's claim of executive privilege is not merely founded on
her generalized interest in confidentiality. The Letter dated November 15, 2007 of Executive Secretary
Ermita specified presidential communications privilege in relation to diplomatic and economic
relations with another sovereign nation as the bases for the claim. Thus, the Letter stated:
The context in which executive privilege is being invoked is that the information
sought to be disclosed might impair our diplomatic as well as economic relations with
the People's Republic of China. Given the confidential nature in which this information
were conveyed to the President, he cannot provide the Committee any further details
of these conversations, without disclosing the very thing the privilege is designed to
protect. (emphasis supplied)
Even in Senate v. Ermita, it was held that Congress must not require the Executive to state the
reasons for the claim with such particularity as to compel disclosure of the information which the
privilege is meant to protect. This is a matter of respect for a coordinate and co-equal
department. HDIATS
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It is easy to discern the danger that goes with the disclosure of the President's communication
with her advisor. The NBN Project involves a foreign country as a party to the agreement. It was
actually a product of the meeting of minds between officials of the Philippines and China. Whatever
the President says about the agreement particularly while official negotiations are ongoing are
matters which China will surely view with particular interest. There is danger in such kind of exposure.
It could adversely affect our diplomatic as well as economic relations with the People's Republic of
China. We reiterate the importance of secrecy in matters involving foreign negotiations as stated
in United States v. Curtiss-Wright Export Corp., 38 thus:
The nature of foreign negotiations requires caution, and their success must often
depend on secrecy, and even when brought to a conclusion, a full disclosure of all the
measures, demands, or eventual concessions which may have been proposed or
contemplated would be extremely impolitic, for this might have a pernicious influence
on future negotiations or produce immediate inconveniences, perhaps danger and
mischief, in relation to other powers. The necessity of such caution and secrecy was one
cogent reason for vesting the power of making treaties in the President, with the advice
and consent of the Senate, the principle on which the body was formed confining it to
a small number of members. To admit, then, a right in the House of Representatives to
demand and to have as a matter of course all the papers respecting a negotiation with
a foreign power would be to establish a dangerous precedent.
US jurisprudence clearly guards against the dangers of allowing Congress access to all papers
relating to a negotiation with a foreign power. In this jurisdiction, the recent case ofAkbayan Citizens
Action Party, et al. v. Thomas G. Aquino, et al. 39 upheld the privileged character of diplomatic
negotiations. In Akbayan, the Court stated:
Privileged character of diplomatic negotiations
The privileged character of diplomatic negotiations has been recognized in this
jurisdiction. In discussing valid limitations on the right to information, the Court
in Chavez v. PCGG held that "information on inter-government exchanges prior to the
conclusion of treaties and executive agreements may be subject to reasonable
safeguards for the sake of national interest." Even earlier, the same privilege was
upheld in People's Movement for Press Freedom (PMPF) v. Manglapus wherein the
Court discussed the reasons for the privilege in more precise terms. HSaIET
In PMPF v. Manglapus, the therein petitioners were seeking information from the
President's representatives on the state of the then on-going negotiations of the RP-US
Military Bases Agreement. The Court denied the petition, stressing that "secrecy of
negotiations with foreign countries is not violative of the constitutional provisions of
freedom of speech or of the press nor of the freedom of access to information".The
Resolution went on to state, thus:
The nature of diplomacy requires centralization of authority and expedition
of decision which are inherent in executive action. Another essential
characteristic of diplomacy is its confidential nature. Although much has been
said about "open" and "secret" diplomacy, with disparagement of the latter,
Secretaries of State Hughes and Stimson have clearly analyzed and justified the
practice. In the words of Mr. Stimson:
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"A complicated negotiation ...cannot be carried through without

many, many private talks and discussion, man to man; many tentative
suggestions and proposals.Delegates from other countries come and
tell you in confidence of their troubles at home and of their
differences with other countries and with other delegates;they tell
you of what they would do under certain circumstances and would
not do under other circumstances...If these reports ...should become
public ...who would ever trust American Delegations in another
conference? (United States Department of State, Press Releases, June
7, 1930, pp. 282-284) DACcIH
xxx xxx xxx
There is frequent criticism of the secrecy in which negotiation with foreign
powers on nearly all subjects is concerned. This, it is claimed, is incompatible
with the substance of democracy. As expressed by one writer, "It can be said
that there is no more rigid system of silence anywhere in the world." (E.J.
Young, Looking Behind the Censorship, J. B. Lipincott Co.,1938) President
Wilson in starting his efforts for the conclusion of the World War declared that
we must have "open covenants, openly arrived at".He quickly abandoned his
thought.
No one who has studied the question believes that such a method of publicity
is possible. In the moment that negotiations are started, pressure groups
attempt to "muscle in".An ill-timed speech by one of the parties or a frank
declaration of the concession which are exacted or offered on both sides
would quickly lead to a widespread propaganda to block the
negotiations. After a treaty has been drafted and its terms are fully published,
there is ample opportunity for discussion before it is approved.(The New
American Government and Its Works, James T. Young, 4th Edition, p. 194)
(Emphasis and underscoring supplied)
Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright
Export Corp. that the President is the sole organ of the nation in its negotiations with
foreign countries,viz:
"...In this vast external realm, with its important, complicated, delicate and
manifold problems, the President alone has the power to speak or listen as a
representative of the nation. He makes treaties with the advice and consent of
the Senate; but he alone negotiates. Into the field of negotiation the Senate
cannot intrude; and Congress itself is powerless to invade it. As Marshall said in
his great arguments of March 7, 1800, in the House of Representatives, "The
President is the sole organ of the nation in its external relations, and its sole
representative with foreign nations".Annals, 6th Cong.,col. 613. ..(Emphasis
supplied; underscoring in the original) aSACED
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Considering that the information sought through the three (3) questions subject of this
Petition involves the President's dealings with a foreign nation, with more reason, this Court is wary
of approving the view that Congress may peremptorily inquire into not only official, documented acts
of the President but even her confidential and informal discussions with her close advisors on the
pretext that said questions serve some vague legislative need. Regardless of who is in office, this Court
can easily foresee unwanted consequences of subjecting a Chief Executive to unrestricted
congressional inquiries done with increased frequency and great publicity. No Executive can
effectively discharge constitutional functions in the face of intense and unchecked legislative incursion
into the core of the President's decision-making process, which inevitably would involve her
conversations with a member of her Cabinet.
With respect to respondent Committees' invocation of constitutional prescriptions regarding
the right of the people to information and public accountability and transparency, the Court finds
nothing in these arguments to support respondent Committees' case.
There is no debate as to the importance of the constitutional right of the people to
information and the constitutional policies on public accountability and transparency. These are the
twin postulates vital to the effective functioning of a democratic government. The citizenry can
become prey to the whims and caprices of those to whom the power has been delegated if they are
denied access to information. And the policies on public accountability and democratic government
would certainly be mere empty words if access to such information of public concern is
denied. aHcACT
In the case at bar, this Court, in upholding executive privilege with respect to three (3) specific
questions, did not in any way curb the public's right to information or diminish the importance of
public accountability and transparency.
This Court did not rule that the Senate has no power to investigate the NBN Project in aid of
legislation. There is nothing in the assailed Decision that prohibits respondent Committees from
inquiring into the NBN Project. They could continue the investigation and even call petitioner Neri to
testify again. He himself has repeatedly expressed his willingness to do so. Our Decision merely
excludes from the scope of respondents' investigation the three (3) questions that elicit answers
covered by executive privilege and rules that petitioner cannot be compelled to appear before
respondents to answer the said questions. We have discussed the reasons why these answers are
covered by executive privilege. That there is a recognized public interest in the confidentiality of such
information is a recognized principle in other democratic States. To put it simply, the right to
information is not an absolute right.
Indeed, the constitutional provisions cited by respondent Committees do not espouse an
absolute right to information. By their wording, the intention of the Framers to subject such right to
the regulation of the law is unmistakable. The highlighted portions of the following provisions show
the obvious limitations on the right to information, thus: cTADCH
Article III, Sec. 7. The right of the people to information on matters of public concern
shall be recognized. Access to official records, and to documents, and papers pertaining
to official records, and to documents, and papers pertaining to official acts,
transactions, or decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such limitations as may be
provided by law.
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Article II, Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts
and implements a policy of full public disclosure of all its transactions involving public
interest.(Emphasis supplied)
In Chavez v. Presidential Commission on Good Government, 40 it was stated that there are no
specific laws prescribing the exact limitations within which the right may be exercised or the
correlative state duty may be obliged. Nonetheless, it enumerated the recognized restrictions to such
rights, among them: (1) national security matters, (2) trade secrets and banking
transactions, (3) criminal matters, and (4) other confidential information. National security matters
include state secrets regarding military and diplomatic matters, as well as information on inter-
government exchanges prior to the conclusion of treaties and executive agreements. It was further
held that even where there is no need to protect such state secrets, they must be "examined in
strict confidence and given scrupulous protection". ATICcS
Incidentally, the right primarily involved here is the right of respondent Committees to obtain
information allegedly in aid of legislation, not the people's right to public information. This is the
reason why we stressed in the assailed Decision the distinction between these two rights. As laid down
in Senate v. Ermita, "the demand of a citizen for the production of documents pursuant to his right to
information does not have the same obligatory force as a subpoena duces tecum issued by Congress"
and "neither does the right to information grant a citizen the power to exact testimony from
government officials".As pointed out, these rights belong to Congress, not to the individual citizen. It
is worth mentioning at this juncture that the parties here are respondent Committees and petitioner
Neri and that there was no prior request for information on the part of any individual citizen. This
Court will not be swayed by attempts to blur the distinctions between the Legislature's right to
information in a legitimate legislative inquiry and the public's right to information.
For clarity, it must be emphasized that the assailed Decision did not enjoin respondent
Committees from inquiring into the NBN Project. All that is expected from them is to respect
matters that are covered by executive privilege.
III.
Respondent Committees Failed to Show That the Communications Elicited by the Three Questions
Are Critical to the Exercise of their Functions
In their Motion for Reconsideration, respondent Committees devote an unusually lengthy
discussion on the purported legislative nature of their entire inquiry, as opposed to an oversight
inquiry.
At the outset, it must be clarified that the Decision did not pass upon the nature of respondent
Committees' inquiry into the NBN Project. To reiterate, this Court recognizes respondent Committees'
power to investigate the NBN Project in aid of legislation. However, this Court cannot uphold the view
that when a constitutionally guaranteed privilege or right is validly invoked by a witness in the course
of a legislative investigation, the legislative purpose of respondent Committees' questions can be
sufficiently supported by the expedient of mentioning statutes and/or pending bills to which their
inquiry as a whole may have relevance. The jurisprudential test laid down by this Court in past
decisions on executive privilege is that the presumption of privilege can only be overturned by a
showing of compelling need for disclosure of the information covered by executive privilege. cSaCDT
In the Decision, the majority held that "there is no adequate showing of a compelling need
that would justify the limitation of the privilege and of the unavailability of the information elsewhere
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by an appropriate investigating authority".In the Motion for Reconsideration, respondent Committees

argue that the information elicited by the three (3) questions are necessary in the discharge of their
legislative functions, among them, (a) to consider the three (3) pending Senate Bills, and (b) to curb
graft and corruption.
We remain unpersuaded by respondents' assertions.
In U.S. v. Nixon, the U.S. Court held that executive privilege is subject to balancing against
other interests and it is necessary to resolve the competing interests in a manner that would preserve
the essential functions of each branch. There, the Court weighed between presidential privilege and
the legitimate claims of the judicial process. In giving more weight to the latter, the Court ruled that
the President's generalized assertion of privilege must yield to the demonstrated, specific need for
evidence in a pending criminal trial.
The Nixon Court ruled that an absolute and unqualified privilege would stand in the way of
the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions. The said
Court further ratiocinated, through its ruling extensively quoted in the Honorable Chief Justice Puno's
dissenting opinion, as follows:
"...this presumptive privilege must be considered in light of our historic commitment to
the rule of law. This is nowhere more profoundly manifest than in our view that 'the
twofold aim (of criminal justice) is that guilt shall not escape or innocence suffer'. Berger
v. United States, 295 U.S.,at 88, 55 S.Ct.,at 633. We have elected to employ an adversary
system of criminal justice in which the parties contest all issues before a court of
law. The need to develop all relevant facts in the adversary system is both
fundamental and comprehensive. The ends of criminal justice would be defeated if
judgments were to be founded on a partial or speculative presentation of the facts.
The very integrity of the judicial system and public confidence in the system depend
on full disclosure of all the facts, within the framework of the rules of evidence. To
ensure that justice is done, it is imperative to the function of courts that compulsory
process be available for the production of evidence needed either by the prosecution
or by the defense. cSDIHT
xxx xxx xxx
The right to the production of all evidence at a criminal trial similarly has constitutional
dimensions. The Sixth Amendment explicitly confers upon every defendant in a criminal
trial theright 'to be confronted with the witness against him' and 'to have compulsory
process for obtaining witnesses in his favor.' Moreover, the Fifth Amendment
also guarantees that no person shall be deprived of liberty without due process of
law. It is the manifest duty of the courts to vindicate those guarantees, and to
accomplish that it is essential that all relevant and admissible evidence be produced.
In this case we must weigh the importance of the general privilege of confidentiality
of Presidential communications in performance of the President's responsibilities
against the inroads of such a privilege on the fair administration of criminal
justice.(emphasis supplied)
xxx xxx xxx
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...the allowance of the privilege to withhold evidence that is demonstrably relevant in

a criminal trial would cut deeply into the guarantee of due process of law and gravely
impair the basic function of the courts. A President's acknowledged need for
confidentiality in the communications of his office is general in nature, whereas
the constitutional need for production of relevant evidence in a criminal proceeding
is specific and central to the fair adjudication of a particular criminal case in the
administration of justice. Without access to specific facts a criminal prosecution may
be totally frustrated. The President's broad interest in confidentiality of
communication will not be vitiated by disclosure of a limited number of conversations
preliminarily shown to have some bearing on the pending criminal cases.
We conclude that when the ground for asserting privilege as to subpoenaed materials
sought for use in a criminal trial is based only on the generalized interest in
confidentiality, it cannot prevail over the fundamental demands of due process of law
in the fair administration of criminal justice. The generalized assertion of privilege
must yield to thedemonstrated, specific need for evidence in a pending criminal
trial. (emphasis supplied)
In the case at bar, we are not confronted with a court's need for facts in order to adjudge
liability in a criminal case but rather with the Senate's need for information in relation to its legislative
functions. This leads us to consider once again just how critical is the subject information in the
discharge of respondent Committees' functions. The burden to show this is on the respondent
Committees, since they seek to intrude into the sphere of competence of the President in order to
gather information which, according to said respondents, would "aid" them in crafting
legislation. DETACa
Senate Select Committee on Presidential Campaign Activities v. Nixon 41 expounded on the
nature of a legislative inquiry in aid of legislation in this wise:
The sufficiency of the Committee's showing of need has come to depend, therefore,
entirely on whether the subpoenaed materials are critical to the performance of its
legislative functions.There is a clear difference between Congress' legislative tasks and
the responsibility of a grand jury, or any institution engaged in like functions. While
fact-finding by a legislative committee is undeniably a part of its task, legislative
judgments normally depend more on the predicted consequences of proposed
legislative actions and their political acceptability, than on precise reconstruction of
past events; Congress frequently legislates on the basis of conflicting information
provided in its hearings. In contrast, the responsibility of the grand jury turns entirely
on its ability to determine whether there is probable cause to believe that certain
named individuals did or did not commit specific crimes. If, for example, as in Nixon v.
Sirica, one of those crimes is perjury concerning the content of certain conversations,
the grand jury's need for the most precise evidence, the exact text of oral statements
recorded in their original form, is undeniable. We see no comparable need in the
legislative process, at least not in the circumstances of this case. Indeed, whatever
force there might once have been in the Committee's argument that the subpoenaed
materials are necessary to its legislative judgments has been substantially undermined
by subsequent events. (Emphasis supplied)
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Clearly, the need for hard facts in crafting legislation cannot be equated with the compelling
or demonstratively critical and specific need for facts which is so essential to the judicial power to
adjudicate actual controversies. Also, the bare standard of "pertinency" set in Arnault cannot be
lightly applied to the instant case, which unlike Arnault involves a conflict between two (2) separate,
co-equal and coordinate Branches of the Government.
Whatever test we may apply, the starting point in resolving the conflicting claims between
the Executive and the Legislative Branches is the recognized existence of the presumptive presidential
communications privilege. This is conceded even in the Dissenting Opinion of the Honorable Chief
Justice Puno, which states: AcSEHT
A hard look at Senate v. Ermita ought to yield the conclusion that it bestowed a
qualified presumption in favor of the Presidential communications privilege. As shown
in the previous discussion, U.S. v. Nixon, as well as the other related Nixon
cases Sirica and Senate Select Committee on Presidential Campaign Activities, et al. v.
Nixon in the D.C. Court of Appeals, as well as subsequent cases all recognize that there
is a presumptive privilege in favor of Presidential communications. The Almonte
case quoted U.S. v. Nixon and recognized a presumption in favor of confidentiality of
Presidential communications.
The presumption in favor of Presidential communications puts the burden on the respondent
Senate Committees to overturn the presumption by demonstrating their specific need for the
information to be elicited by the answers to the three (3) questions subject of this case, to enable
them to craft legislation. Here, there is simply a generalized assertion that the information is pertinent
to the exercise of the power to legislate and a broad and non-specific reference to pending Senate
bills. It is not clear what matters relating to these bills could not be determined without the said
information sought by the three (3) questions. As correctly pointed out by the Honorable Justice Dante
O. Tinga in his Separate Concurring Opinion:
...If respondents are operating under the premise that the president and/or her
executive officials have committed wrongdoings that need to be corrected or
prevented from recurring by remedial legislation, the answer to those three questions
will not necessarily bolster or inhibit respondents from proceeding with such
legislation. They could easily presume the worst of the president in enacting such
legislation. IEAacS
For sure, a factual basis for situations covered by bills is not critically needed before
legislatives bodies can come up with relevant legislation unlike in the adjudication of cases by courts
of law. Interestingly, during the Oral Argument before this Court, the counsel for respondent
Committees impliedly admitted that the Senate could still come up with legislations even without
petitioner answering the three (3) questions. In other words, the information being elicited is not so
critical after all. Thus:
CHIEF JUSTICE PUNO
So can you tell the Court how critical are these questions to the lawmaking function of
the Senate. For instance, question Number 1 whether the President followed
up the NBN project. According to the other counsel this question has already
been asked, is that correct?
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ATTY. AGABIN
Well, the question has been asked but it was not answered, Your Honor. CDaTAI
CHIEF JUSTICE PUNO
Yes. But my question is how critical is this to the lawmaking function of the Senate?
ATTY. AGABIN
I believe it is critical, Your Honor.
CHIEF JUSTICE PUNO
Why?
ATTY. AGABIN
For instance, with respect to the proposed Bill of Senator Miriam Santiago, she would
like to indorse a Bill to include Executive Agreements had been used as a device
to the circumventing the Procurement Law.
CHIEF JUSTICE PUNO
But the question is just following it up.
ATTY. AGABIN
I believe that may be the initial question, Your Honor, because if we look at this
problem in its factual setting as counsel for petitioner has observed, there are
intimations of a bribery scandal involving high government officials.
CHIEF JUSTICE PUNO
Again, about the second question, were you dictated to prioritize this ZTE, is that
critical to the lawmaking function of the Senate? Will it result to the failure of
the Senate to cobble a Bill without this question?
ATTY. AGABIN
I think it is critical to lay the factual foundations for a proposed amendment to
the Procurement Law, Your Honor, because the petitioner had already testified
that he was offered a P200 Million bribe, so if he was offered a P200 Million
bribe it is possible that other government officials who had something to do
with the approval of the contract would be offered the same amount of
bribes. ICESTA
CHIEF JUSTICE PUNO
Again, that is speculative.
ATTY. AGABIN
That is why they want to continue with the investigation, Your Honor.
CHIEF JUSTICE PUNO
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How about the third question, whether the President said to go ahead and approve the
project after being told about the alleged bribe. How critical is that to the
lawmaking function of the Senate? And the question is may they craft a Bill a
remedial law without forcing petitioner Neri to answer this question?
ATTY. AGABIN
Well, they can craft it, Your Honor, based on mere speculation. And sound legislation
requires that a proposed Bill should have some basis in fact. 42
The failure of the counsel for respondent Committees to pinpoint the specific need for the
information sought or how the withholding of the information sought will hinder the accomplishment
of their legislative purpose is very evident in the above oral exchanges. Due to the failure of the
respondent Committees to successfully discharge this burden, the presumption in favor of
confidentiality of presidential communication stands. The implication of the said presumption, like
any other, is to dispense with the burden of proof as to whether the disclosure will significantly impair
the President's performance of her function. Needless to state this is assumed, by virtue of the
presumption. SEcAIC
Anent respondent Committees' bewailing that they would have to "speculate" regarding the
questions covered by the privilege, this does not evince a compelling need for the information sought.
Indeed, Senate Select Committee on Presidential Campaign Activities v. Nixon 43 held that while fact-
finding by a legislative committee is undeniably a part of its task, legislative judgments normally
depend more on the predicted consequences of proposed legislative actions and their political
acceptability than on a precise reconstruction of past events. It added that, normally, Congress
legislates on the basis of conflicting information provided in its hearings. We cannot subscribe to the
respondent Committees' self-defeating proposition that without the answers to the three (3)
questions objected to as privileged, the distinguished members of the respondent Committees cannot
intelligently craft legislation.
Anent the function to curb graft and corruption, it must be stressed that respondent
Committees' need for information in the exercise of this function is not as compelling as in instances
when the purpose of the inquiry is legislative in nature. This is because curbing graft and corruption
is merely an oversight function of Congress. 44 And if this is the primary objective of respondent
Committees in asking the three (3) questions covered by privilege, it may even contradict their claim
that their purpose is legislative in nature and not oversight. In any event, whether or not investigating
graft and corruption is a legislative or oversight function of Congress, respondent Committees'
investigation cannot transgress bounds set by the Constitution. STDEcA
In Bengzon, Jr. v. Senate Blue Ribbon Committee, 45 this Court ruled:
The "allocation of constitutional boundaries" is a task that this Court must perform
under the Constitution. Moreover, as held in a recent case, "the political question
doctrine neither interposes an obstacle to judicial determination of the rival claims. The
jurisdiction to delimit constitutional boundaries has been given to this Court. It cannot
abdicate that obligation mandated by the 1987 Constitution, although said provision by
no means does away with the applicability of the principle in appropriate
cases. 46 (Emphasis supplied)
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There, the Court further ratiocinated that "the contemplated inquiry by respondent
Committee is not really 'in aid of legislation' because it is not related to a purpose within the
jurisdiction of Congress, since the aim of the investigation is to find out whether or not the relatives
of the President or Mr. Ricardo Lopa had violated Section 5 of R.A. No. 3019, the Anti-Graft and
Corrupt Practices Act, a matter that appears more within the province of the courts rather than of
the Legislature." 47 (Emphasis and underscoring supplied)
The general thrust and the tenor of the three (3) questions is to trace the alleged bribery to
the Office of the President. 48 While it may be a worthy endeavor to investigate the potential
culpability of high government officials, including the President, in a given government transaction, it
is simply not a task for the Senate to perform. The role of the Legislature is to make laws, not to
determine anyone's guilt of a crime or wrongdoing. Our Constitution has not bestowed upon the
Legislature the latter role. Just as the Judiciary cannot legislate, neither can the Legislature adjudicate
or prosecute.
Respondent Committees claim that they are conducting an inquiry in aid of legislation and a
"search for truth",which in respondent Committees' view appears to be equated with the search for
persons responsible for "anomalies" in government contracts. TEIHDa
No matter how noble the intentions of respondent Committees are, they cannot assume the
power reposed upon our prosecutorial bodies and courts. The determination of who is/are liable for
a crime or illegal activity, the investigation of the role played by each official, the determination of
who should be haled to court for prosecution and the task of coming up with conclusions and finding
of facts regarding anomalies, especially the determination of criminal guilt, are not functions of the
Senate. Congress is neither a law enforcement nor a trial agency. Moreover, it bears stressing that no
inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the
Congress, i.e., legislation. Investigations conducted solely to gather incriminatory evidence and
"punish" those investigated are indefensible. There is no Congressional power to expose for the sake
of exposure. 49 In this regard, the pronouncement in Barenblatt v. United States 50 is instructive,
thus:
Broad as it is, the power is not, however, without limitations. Since Congress may only
investigate into the areas in which it may potentially legislate or appropriate, it cannot
inquire into matters which are within the exclusive province of one of the other
branches of the government. Lacking the judicial power given to the Judiciary, it cannot
inquire into matters that are exclusively the concern of the Judiciary. Neither can it
supplant the Executive in what exclusively belongs to the Executive. (Emphasis
supplied.)
At this juncture, it is important to stress that complaints relating to the NBN Project have
already been filed against President Arroyo and other personalities before the Office of the
Ombudsman. Under our Constitution,it is the Ombudsman who has the duty "to investigate any act
or omission of any public official, employee, office or agency when such act or omission appears to
be illegal, unjust, improper, or inefficient".51 The Office of the Ombudsman is the body properly
equipped by the Constitution and our laws to preliminarily determine whether or not the allegations
of anomaly are true and who are liable therefor. The same holds true for our courts upon which
the Constitution reposes the duty to determine criminal guilt with finality. Indeed, the rules of
procedure in the Office of the Ombudsman and the courts are well-defined and ensure that the
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constitutionally guaranteed rights of all persons, parties and witnesses alike, are protected and
safeguarded. TaHIDS
Should respondent Committees uncover information related to a possible crime in the course
of their investigation, they have the constitutional duty to refer the matter to the appropriate agency
or branch of government. Thus, the Legislature's need for information in an investigation of graft and
corruption cannot be deemed compelling enough to pierce the confidentiality of information validly
covered by executive privilege. As discussed above, the Legislature can still legislate on graft and
corruption even without the information covered by the three (3) questions subject of the petition.
Corollarily, respondent Committees justify their rejection of petitioner's claim of executive
privilege on the ground that there is no privilege when the information sought might involve a crime
or illegal activity, despite the absence of an administrative or judicial determination to that
effect. Significantly, however, in Nixon v. Sirica, 52 the showing required to overcome the
presumption favoring confidentiality turned, not on the nature of the presidential conduct that the
subpoenaed material might reveal, but, instead, on the nature and appropriateness of the function
in the performance of which the material was sought, and the degree to which the material was
necessary to its fulfillment.
Respondent Committees assert that Senate Select Committee on Presidential Campaign
Activities v. Nixon does not apply to the case at bar because, unlike in the said case, no impeachment
proceeding has been initiated at present. The Court is not persuaded. While it is true that no
impeachment proceeding has been initiated, however, complaints relating to the NBN Project have
already been filed against President Arroyo and other personalities before the Office of the
Ombudsman. As the Court has said earlier, the prosecutorial and judicial arms of government are the
bodies equipped and mandated by the Constitution and our laws to determine whether or not the
allegations of anomaly in the NBN Project are true and, if so, who should be prosecuted and penalized
for criminal conduct. CSIcHA
Legislative inquiries, unlike court proceedings, are not subject to the exacting standards of
evidence essential to arrive at accurate factual findings to which to apply the law. Hence, Section 10
of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation provides that "technical
rules of evidence applicable to judicial proceedings which do not affect substantive rights need not
be observed by the Committee".Court rules which prohibit leading, hypothetical, or repetitive
questions or questions calling for a hearsay answer, to name a few, do not apply to a legislative
inquiry. Every person, from the highest public official to the most ordinary citizen, has the right to be
presumed innocent until proven guilty in proper proceedings by a competent court or body.
IV
Respondent Committees Committed Grave Abuse of Discretion in Issuing the Contempt Order
Respondent Committees insist that they did not commit grave abuse of discretion in issuing
the contempt order because (1) there is no legitimate claim of executive privilege; (2)they did not
violate the requirements laid down in Senate v. Ermita; (3) they issued the contempt order in
accordance with their internal Rules; (4) they did not violate the requirement under Article VI, Section
21 of the Constitution requiring the publication of their Rules; and (5) their issuance of the contempt
order is not arbitrary or precipitate.
We reaffirm our earlier ruling.
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The legitimacy of the claim of executive privilege having been fully discussed in the preceding
pages, we see no reason to discuss it once again.
Respondent Committees' second argument rests on the view that the ruling in Senate v.
Ermita, requiring invitations or subpoenas to contain the "possible needed statute which prompted
the need for the inquiry" along with the "usual indication of the subject of inquiry and the questions
relative to and in furtherance thereof" is not provided for by theConstitution and is merely an obiter
dictum. HTCaAD
On the contrary, the Court sees the rationale and necessity of compliance with these
requirements.
An unconstrained congressional investigative power, like an unchecked Executive, generates
its own abuses. Consequently, claims that the investigative power of Congress has been abused (or
has the potential for abuse) have been raised many times. 53 Constant exposure to congressional
subpoena takes its toll on the ability of the Executive to function effectively. The requirements set
forth in Senate v. Ermita are modest mechanisms that would not unduly limit Congress' power. The
legislative inquiry must be confined to permissible areas and thus, prevent the "roving commissions"
referred to in the U.S. case, Kilbourn v. Thompson. 54 Likewise, witnesses have their constitutional
right to due process. They should be adequately informed what matters are to be covered by the
inquiry. It will also allow them to prepare the pertinent information and documents. To our mind,
these requirements concede too little political costs or burdens on the part of Congress when viewed
vis--vis the immensity of its power of inquiry. The logic of these requirements is well articulated in
the study conducted by William P. Marshall, 55 to wit:
A second concern that might be addressed is that the current system allows committees
to continually investigate the Executive without constraint. One process solution
addressing this concern is to require each investigation be tied to a clearly stated
purpose. At present, the charters of some congressional committees are so broad that
virtually any matter involving the Executive can be construed to fall within their
province. Accordingly, investigations can proceed without articulation of specific need
or purpose. A requirement for a more precise charge in order to begin an inquiry should
immediately work to limit the initial scope of the investigation and should also serve to
contain the investigation once it is instituted.Additionally, to the extent clear
statements of rules cause legislatures to pause and seriously consider the
constitutional implications of proposed courses of action in other areas, they would
serve that goal in the context of congressional investigations as well.
The key to this reform is in its details. A system that allows a standing committee to
simply articulate its reasons to investigate pro forma does no more than imposes
minimal drafting burdens. Rather, the system must be designed in a manner that
imposes actual burdens on the committee to articulate its need for investigation and
allows for meaningful debate about the merits of proceeding with the
investigation. (Emphasis supplied) 2005jurcd
Clearly, petitioner's request to be furnished an advance copy of questions is a reasonable
demand that should have been granted by respondent Committees.
Unfortunately, the Subpoena Ad Testificandum dated November 13, 2007 made no specific
reference to any pending Senate bill. It did not also inform petitioner of the questions to be asked. As
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it were, the subpoena merely commanded him to "testify on what he knows relative to the subject
matter under inquiry".
Anent the third argument, respondent Committees contend that their Rules of Procedure
Governing Inquiries in Aid of Legislation (the "Rules") are beyond the reach of this Court. While it is
true that this Court must refrain from reviewing the internal processes of Congress, as a co-equal
branch of government, however, when a constitutional requirement exists, the Court has the duty to
look into Congress' compliance therewith. We cannot turn a blind eye to possible violations of
the Constitution simply out of courtesy. In this regard, the pronouncement in Arroyo v. De
Venecia 56 is enlightening, thus:
"Cases both here and abroad, in varying forms of expression, all deny to the courts the
power to inquire into allegations that, in enacting a law, a House of Congress failed to
comply with its own rules, in the absence of showing that there was a violation of a
constitutional provision or the rights of private individuals. HAEDIS
United States v. Ballin, Joseph & Co., the rule was stated thus:
'The Constitution empowers each House to determine its rules of proceedings. It may
not by its rules ignore constitutional restraints or violate fundamental rights, and
there should be a reasonable relation between the mode or method of proceeding
established by the rule and the result which is sought to be attained."
In the present case, the Court's exercise of its power of judicial review is warranted because
there appears to be a clear abuse of the power of contempt on the part of respondent Committees.
Section 18 of the Rules provides that:
"The Committee, by a vote of majority of all its members, may punish for contempt any
witness before it who disobey any order of the Committee or refuses to be sworn or to
testify or to answer proper questions by the Committee or any of its
members." (Emphasis supplied)
In the assailed Decision, we said that there is a cloud of doubt as to the validity of the
contempt order because during the deliberation of the three (3) respondent Committees, only seven
(7) Senators were present. This number could hardly fulfill the majority requirement needed by
respondent Committee on Accountability of Public Officers and Investigations which has a
membership of seventeen (17) Senators and respondent Committee on National Defense and
Security which has a membership of eighteen (18) Senators. With respect to respondent Committee
on Trade and Commerce which has a membership of nine (9) Senators, only three (3) members were
present. 57 These facts prompted us to quote in the Decision the exchanges between Senators Alan
Peter Cayetano and Aquilino Pimentel, Jr. whereby the former raised the issue of lack of the required
majority to deliberate and vote on the contempt order.
When asked about such voting during the March 4, 2008 hearing before this Court, Senator
Francis Pangilinan stated that any defect in the committee voting had been cured because two-thirds
of the Senators effectively signed for the Senate in plenary session. 58 cSCTEH
Obviously the deliberation of the respondent Committees that led to the issuance of the
contempt order is flawed. Instead of being submitted to a full debate by all the members of the
respondent Committees, the contempt order was prepared and thereafter presented to the other
members for signing. As a result, the contempt order which was issued on January 30, 2008 was not
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a faithful representation of the proceedings that took place on said date. Records clearly show that
not all of those who signed the contempt order were present during the January 30, 2008 deliberation
when the matter was taken up.
Section 21, Article VI of the Constitution states that:
The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by such inquiries shall be
respected. (Emphasis supplied)
All the limitations embodied in the foregoing provision form part of the witness' settled
expectation. If the limitations are not observed, the witness' settled expectation is shattered. Here,
how could there be a majority vote when the members in attendance are not enough to arrive at such
majority? Petitioner has the right to expect that he can be cited in contempt only through a majority
vote in a proceeding in which the matter has been fully deliberated upon. There is a greater measure
of protection for the witness when the concerns and objections of the members are fully articulated
in such proceeding. We do not believe that respondent Committees have the discretion to set aside
their rules anytime they wish. This is especially true here where what is involved is the contempt
power. It must be stressed that the Rules are not promulgated for their benefit. More than anybody
else, it is the witness who has the highest stake in the proper observance of the Rules. CDAEHS
Having touched the subject of the Rules, we now proceed to respondent Committees' fourth
argument. Respondent Committees argue that the Senate does not have to publish its Rules because
the same was published in 1995 and in 2006. Further, they claim that the Senate is a continuing body;
thus, it is not required to republish the Rules, unless the same is repealed or amended.
On the nature of the Senate as a "continuing body",this Court sees fit to issue a clarification.
Certainly, there is no debate that the Senate as an institution is "continuing",as it is not dissolved as
an entity with each national election or change in the composition of its members. However, in the
conduct of its day-to-day business the Senate of each Congress acts separately and independently of
the Senate of the Congress before it. The Rules of the Senate itself confirms this when it states:
RULE XLIV
UNFINISHED BUSINESS
SEC. 123. Unfinished business at the end of the session shall be taken up at the next
session in the same status.
All pending matters and proceedings shall terminate upon the expiration of one (1)
Congress, but may be taken by the succeeding Congress as if presented for the first
time. (emphasis supplied)
Undeniably from the foregoing, all pending matters and proceedings, i.e., unpassed bills and
even legislative investigations, of the Senate of a particular Congress are consideredterminated upon
the expiration of that Congress and it is merely optional on the Senate of the succeeding Congress to
take up such unfinished matters, not in the same status, but as if presented for the first time. The
logic and practicality of such a rule is readily apparent considering that the Senate of the succeeding
Congress (which will typically have a different composition as that of the previous Congress) should
not be bound by the acts and deliberations of the Senate of which they had no part. If the Senate is a
continuing body even with respect to the conduct of its business, then pending matters will not be
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deemed terminated with the expiration of one Congress but will, as a matter of course, continue into
the next Congress with the same status. EcICSA
This dichotomy of the continuity of the Senate as an institution and of the opposite nature of
the conduct of its business is reflected in its Rules. The Rules of the Senate (i.e., the Senate's main
rules of procedure) states:
RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES
SEC. 136. At the start of each session in which the Senators elected in the preceding
elections shall begin their term of office, the President may endorse the Rules to the
appropriate committee for amendment or revision.
The Rules may also be amended by means of a motion which should be presented at
least one day before its consideration, and the vote of the majority of the Senators
present in the session shall be required for its approval. (emphasis supplied)
RULE LII
DATE OF TAKING EFFECT
SEC. 137. These Rules shall take effect on the date of their adoption and shall remain
in force until they are amended or repealed. (emphasis supplied)
Section 136 of the Senate Rules quoted above takes into account the new composition of the
Senate after an election and the possibility of the amendment or revision of the Rules at the start
of each session in which the newly elected Senators shall begin their term.
However, it is evident that the Senate has determined that its main rules are intended to be
valid from the date of their adoption until they are amended or repealed. Such language is
conspicuously absent from the Rules. The Rules simply state "(t)hese Rules shall take effect seven (7)
days after publication in two (2) newspapers of general circulation". 59The latter does not explicitly
provide for the continued effectivity of such rules until they are amended or repealed. In view of the
difference in the language of the two sets of Senate rules, it cannot be presumed that the Rules (on
legislative inquiries) would continue into the next Congress. The Senate of the next Congress may
easily adopt different rules for its legislative inquiries which come within the rule on unfinished
business. TaCDcE
The language of Section 21, Article VI of the Constitution requiring that the inquiry be
conducted in accordance with the duly published rules of procedure is categorical. It is incumbent
upon the Senate to publish the rules for its legislative inquiries in each Congress or otherwise make
the published rules clearly state that the same shall be effective in subsequent Congresses or until
they are amended or repealed to sufficiently put public on notice.
If it was the intention of the Senate for its present rules on legislative inquiries to be effective
even in the next Congress, it could have easily adopted the same language it had used in its main rules
regarding effectivity.
Lest the Court be misconstrued, it should likewise be stressed that not all orders issued or
proceedings conducted pursuant to the subject Rules are null and void. Only those that result in
violation of the rights of witnesses should be considered null and void, considering that the rationale
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for the publication is to protect the rights of witnesses as expressed in Section 21, Article VI of
the Constitution. Sans such violation, orders and proceedings are considered valid and effective.
Respondent Committees' last argument is that their issuance of the contempt order is not
precipitate or arbitrary. Taking into account the totality of circumstances, we find no merit in their
argument.
As we have stressed before, petitioner is not an unwilling witness, and contrary to the
assertion of respondent Committees, petitioner did not assume that they no longer had any other
questions for him. He repeatedly manifested his willingness to attend subsequent hearings and
respond to new matters. His only request was that he be furnished a copy of the new questions in
advance to enable him to adequately prepare as a resource person. He did not attend the November
20, 2007 hearing because Executive Secretary Ermita requested respondent Committees to dispense
with his testimony on the ground of executive privilege. Note that petitioner is an executive official
under the direct control and supervision of the Chief Executive. Why punish petitioner for contempt
when he was merely directed by his superior? Besides, save for the three (3) questions, he was very
cooperative during the September 26, 2007 hearing. AaITCH
On the part of respondent Committees, this Court observes their haste and impatience.
Instead of ruling on Executive Secretary Ermita's claim of executive privilege, they curtly dismissed it
as unsatisfactory and ordered the arrest of petitioner. They could have informed petitioner of their
ruling and given him time to decide whether to accede or file a motion for reconsideration. After all,
he is not just an ordinary witness; he is a high- ranking official in a co-equal branch of government. He
is an alter ego of the President. The same haste and impatience marked the issuance of the contempt
order, despite the absence of the majority of the members of the respondent Committees, and their
subsequent disregard of petitioner's motion for reconsideration alleging the pendency of his petition
for certiorari before this Court.
On a concluding note, we are not unmindful of the fact that the Executive and the Legislature
are political branches of government. In a free and democratic society, the interests of these branches
inevitably clash, but each must treat the other with official courtesy and respect. This Court
wholeheartedly concurs with the proposition that it is imperative for the continued health of our
democratic institutions that we preserve the constitutionally mandated checks and balances among
the different branches of government.
In the present case, it is respondent Committees' contention that their determination on the
validity of executive privilege should be binding on the Executive and the Courts. It is their assertion
that their internal procedures and deliberations cannot be inquired into by this Court supposedly in
accordance with the principle of respect between co-equal branches of government. Interestingly, it
is a courtesy that they appear to be unwilling to extend to the Executive (on the matter of executive
privilege) or this Court (on the matter of judicial review).It moves this Court to wonder: In respondent
Committees' paradigm of checks and balances, what are the checks to the Legislature's all-
encompassing, awesome power of investigation? It is a power, like any other, that is susceptible to
grave abuse.
While this Court finds laudable the respondent Committees' well-intentioned efforts to ferret
out corruption, even in the highest echelons of government, such lofty intentions do not validate or
accord to Congress powers denied to it by the Constitution and granted instead to the other branches
of government. HEISca
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There is no question that any story of government malfeasance deserves an inquiry into its
veracity. As respondent Committees contend, this is founded on the constitutional command of
transparency and public accountability. The recent clamor for a "search for truth" by the general
public, the religious community and the academe is an indication of a concerned citizenry, a nation
that demands an accounting of an entrusted power. However, the best venue for this noble
undertaking is not in the political branches of government. The customary partisanship and the
absence of generally accepted rules on evidence are too great an obstacle in arriving at the truth or
achieving justice that meets the test of the constitutional guarantee of due process of law. We believe
the people deserve a more exacting "search for truth" than the process here in question, if that is its
objective.
WHEREFORE, respondent Committees' Motion for Reconsideration dated April 8, 2008 is
hereby DENIED. CSIHDA
SO ORDERED.
||| (Neri v. Senate Committee on Accountability of Public Officers and Investigations, G.R. No. 180643
(Resolution), [September 4, 2008], 586 PHIL 135-220)
CPEG VS. COMELEC 631 SCRA 41 (2010)
CENTER FOR PEOPLE EMPOWERMENT IN GOVERNANCE, petitioner, vs. COMMISSION

ON ELECTIONS, respondent.
DECISION
ABAD, J p:
This case concerns the duty of the Commission on Elections (COMELEC) to disclose the source
code for the Automated Election System (AES) technologies it used in the 2010 national and local
elections.
On May 26, 2009 petitioner Center for People Empowerment in Governance (CenPEG), a non-
government organization, 1 wrote respondent COMELEC, requesting a copy of the source code of the
Precinct Count Optical Scan (PCOS) programs, the Board of Canvassers Consolidation/Canvassing
System (BOC CCS) programs for the municipal, provincial, national, and congressional canvass, the
COMELEC server programs, and the source code of the in-house COMELEC programs called the Data
Capturing System (DCS) utilities.
CenPEG invoked the following pertinent portion of Section 12 of Republic Act (R.A.) 9369,
which provides:
xxx xxx xxx
Once an AES technology is selected for implementation, the Commission shall
promptly make the source code of that technology available and open to any
interested political party or groups which may conduct their own review thereof.
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Section 2 (12) of R.A. 9369 describes the source code as the "human readable instructions
that define what the computer equipment will do." This has been explained in an article:
Source code is the human readable representation of the instructions that control the
operation of a computer. Computers are composed of hardware (the physical devices
themselves) and software (which controls the operation of the hardware). The
software instructs the computer how to operate; without software, the computer is
useless. Source code is the human readable form in which software is written by
computer programmers. Source code is usually written in a programming language
that is arcane and incomprehensible to non-specialists but, to a computer
programmer, the source code is the master blueprint that reveals and determines
how the machine will behave.
Source code could be compared to a recipe: just as a cook follows the instructions in
a recipe step-by-step, so a computer executes the sequence of instructions found in
the software source code. This is a reasonable analogy, but it is also imperfect. While
a good cook will use her discretion and common sense in following a recipe, a
computer follows the instructions in the source code in a mechanical and unfailingly
literal way; thus, while errors in a recipe might be noticed and corrected by the cook,
errors in source code can be disastrous, because the code is executed by the computer
exactly as written, whether that was what the programmer intended or not . . . .
The source code in voting machines is in some ways analogous to the procedures
provided to election workers. Procedures are instructions that are provided to
people; for instance, the procedures provided to poll workers list a sequence of steps
that poll workers should follow to open the polls on election morning. Source code
contains instructions, not for people, but for the computers running the election; for
instance, the source code for a voting machine determines the steps the machine will
take when the polls are opened on election morning. 2 (Underscoring supplied)
On June 24, 2009 the COMELEC granted the request 3 for the source code of the PCOS and
the CCS, but denied that for the DCS, since the DCS was a "system used in processing the Lists of
Voters which is not part of the voting, counting and canvassing systems contemplated by R.A. 9369."
According to COMELEC, if the source code for the DCS were to be divulged, unscrupulous individuals
might change the program and pass off an illicit one that could benefit certain candidates or parties.
Still, the COMELEC apparently did not release even the kinds of source code that it said it was
approving for release. Consequently, on July 13, 2009, CenPEG once more asked COMELEC for the
source code of the PCOS, together with other documents, programs, and diagrams related to the AES.
CenPEG sent follow-up letters on July 17 and 20 and on August 24, 2009.
On August 26, 2009 COMELEC replied that the source code CenPEG wanted did not yet exist
for the reasons: 1) that it had not yet received the baseline source code of the provider, Smartmatic,
since payment to it had been withheld as a result of a pending suit; 2) its customization of the baseline
source code was targeted for completion in November 2009 yet; 3) under Section 11 of R.A. 9369, the
customized source code still had to be reviewed by "an established international certification entity,"
which review was expected to be completed by the end of February 2010; and 4) only then would the
AES be made available for review under a controlled environment.
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Rejecting COMELEC's excuse, on October 5, 2009 CenPEG filed the present petition
for mandamus, seeking to compel COMELEC to immediately make its source codes available to
CenPEG and other interested parties.
COMELEC claimed in its comment that CenPEG did not have a clear, certain, and well-defined
right that was enforceable by mandamus because COMELEC's duty to make the source code available
presupposed that it already had the same. COMELEC restated the explanation it gave in its August 26,
2009 letter to CenPEG.
In its manifestation and omnibus motion, CenPEG did not believe that the source code was
still unavailable considering that COMELEC had already awarded to an international certification
entity the review of the same and that COMELEC had already been field testing its PCOS and CCS
machines.
On February 10, 2010 COMELEC filed a manifestation, stating that it had already deposited
on February 9, 2010 the source code to be used in the May 10, 2010 elections with the Bangko Sentral
ng Pilipinas. Required to comment on this, CenPEG said on February 22, 2010 that the manifestation
did not constitute compliance with Section 12 of R.A. 9369 but only with Section 11 of R.A. 8436.
In its earlier comment, COMELEC claimed, reiterating what it said in its August 26, 2009 letter
to CenPEG, that it would make the source code available for review by the end of February 2010
"under a controlled environment." Apparently, this review had not taken place and was overtaken by
the May 10, 2010 elections.
On June 21, 2010 CenPEG filed a manifestation and omnibus motion, reiterating its prayer for
the issuance of a writ of mandamus in this case notwithstanding the fact that the elections for which
the subject source code was to be used had already been held. It claimed that the source code
remained important and relevant "not only for compliance with the law, and the purpose thereof, but
especially in the backdrop of numerous admissions of errors and claims of fraud."
The Court finds the petition and this last manifestation meritorious.
The pertinent portion of Section 12 of R.A. 9369 is clear in that "once an AES technology is
selected for implementation, the Commission shall promptly make the source code of that technology
available and open to any interested political party or groups which may conduct their own review
thereof." The COMELEC has offered no reason not to comply with this requirement of the law. Indeed,
its only excuse for not disclosing the source code was that it was not yet available when CenPEG asked
for it and, subsequently, that the review had to be done, apparently for security reason, "under a
controlled environment." The elections had passed and that reason is already stale.
WHEREFORE, the Court GRANTS the petition for mandamus and DIRECTS the COMELEC to
make the source codes for the AES technologies it selected for implementation pursuant to R.A.
9369 immediately available to CenPEG and all other interested political parties or groups for
independent review.
SO ORDERED.
||| (Center for People Empowerment in Governance v. Commission on Elections, G.R. No. 189546,
[September 21, 2010], 645 PHIL 293-298)
RE: REQUEST FOR COPY OF 2008 SALN 672 SCRA 27 (2012)
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RE: REQUEST FOR COPY OF 2008 STATEMENT OF ASSETS, LIABILITIES AND NETWORTH
[SALN] AND PERSONAL DATA SHEET OR CURRICULUM VITAE OF THE JUSTICES OF THE
SUPREME COURT AND OFFICERS AND EMPLOYEES OF THE JUDICIARY
[A.M. No. 09-8-07-CA. June 13, 2012.]
RE: REQUEST OF PHILIPPINE CENTER FOR INVESTIGATIVE JOURNALISM [PCIJ] FOR THE
2008 STATEMENT OF ASSETS, LIABILITIES AND NET WORTH [SALN] AND PERSONAL
DATA SHEETS OF THE COURT OF APPEALS JUSTICES
RESOLUTION
MENDOZA, J p:
In a letter, 1 dated July 30, 2009, Rowena C. Paraan, Research Director of the Philippine Center for
Investigative Journalism (PCIJ), sought copies of the Statement of Assets, Liabilities and
Networth (SALN) of the Justices of this Court for the year 2008. She also requested for copies of the
Personal Data Sheet (PDS) or the Curriculum Vitae (CV) of the Justices of this Court for the purpose of
updating their database of information on government officials.
In her Letter, 2 dated August 13, 2009, Karol M. Ilagan, a researcher-writer also of the PCIJ, likewise sought
for copies of the SALN and PDS of the Justices of the Court of Appeals (CA), for the same above-stated
purpose.
The two requests were ordered consolidated by the Court on August 18, 2009. 3 On the same day, the
Court resolved to create a special committee (Committee) to review the policy on requests for SALN and
PDS and other similar documents, and to recommend appropriate action on such requests. 4
On November 23, 2009, the Committee, chaired by then Associate Justice Minita V. Chico-Nazario
submitted its Memorandum 5 dated November 18, 2009 and its Resolution 6 dated November 16, 2009,
recommending the creation of Committee on Public Disclosure that would, in essence, take over the
functions of the Office of the Court Administrator (OCA) with respect to requests for copies of, or access
to, SALN, and other personal documents of members of the Judiciary.
Meanwhile, several requests for copies of the SALN and other personal documents of the Justices of this
Court, the CA and the Sandiganbayan (SB) were filed. In particular, these requests include the:
(1) SUBPOENA DUCES TECUM, 7 dated September 10, 2009, issued by Atty. E. H. Amat,
Acting Director, General Investigation Bureau-B of the Office of the Ombudsman,
directing the Office of Administrative Services, Supreme Court to submit two (2) copies
of the SALN of Associate Justice Roland B. Jurado of the Sandiganbayan for the years
1997-2008, his latest PDS, his Oath of Office, appointment papers, and service
records. caIDSH
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(2) LETTER, 8 dated April 21, 2010, of the Philippine Public Transparency Reporting
Project, asking permission to be able to access and copy the SALN of officials and
employees of the lower courts.
(3) LETTER, 9 filed on August 24, 2011, by Marvin Lim, seeking copies of the SALN of
Chief Justice Renato C. Corona, Associate Justices Antonio T. Carpio, Presbitero J.
Velasco, Jr., Teresita Leonardo-de Castro, Arturo D. Brion, Diosdado M. Peralta, Lucas
P. Bersamin, Mariano C. Del Castillo, Roberto A. Abad, Martin S. Villarama, Jr., Jose
Portugal Perez, Jose C. Mendoza, and Maria Lourdes P.A. Sereno.
(4) LETTER, 10 dated August 26, 2011, of Rawnna Crisostomo, Reporter, GMA News and
Public Affairs also requesting for copies of the SALN of Chief Justice Renato C. Corona,
Associate Justices Antonio T. Carpio, Presbitero J. Velasco, Jr., Teresita Leonardo-de
Castro, Arturo D. Brion, Diosdado M. Peralta, Lucas P. Bersamin, Mariano C. Del Castillo,
Roberto A. Abad, Martin S. Villarama, Jr., Jose Portugal Perez, Jose C. Mendoza, and
Maria Lourdes P.A. Sereno, for purposes of producing a story on transparency and
governance, and updating their database.
(5) LETTER, 11 dated October 11, 2011, of Bala S. Tamayo, requesting for a copy of the
2010 SALN of any Justice of the Supreme Court as well as a copy of the Judiciary
Development Fund, for purposes of her securing a huge percentage in final examination
in Constitutional Law I at the San Beda College Alabang School of Law and for her study
on the state of the Philippine Judiciary, particularly the manner, nature and disposition
of the resources under the JDF and how these have evolved through the years.
(6) LETTERS, all dated December 19, 2011, of Harvey S. Keh, Lead Convenor of Kaya
Natin! Movement for Good Governance and Ethical Leadership, addressed to Chief
Justice Renato C. Corona, 12 Associate Justices Presbitero J. Velasco, Jr., 13 Teresita
Leonardo-de Castro, 14 Arturo D. Brion, 15 Diosdado M. Peralta, 16 Mariano C. Del
Castillo, 17 Jose Portugal Perez, 18 and Maria Lourdes P.A. Sereno, 19 requesting for
copies of their SALN and seeking permission to post the same on their website for the
general public.
(7) LETTER, 20 dated December 21, 2011, of Glenda M. Gloria, Executive Director,
Newsbreak, seeking copies of the SALN of the Supreme Court Justices covering various
years, for the purpose of the stories they intend to put on their website regarding the
Supreme Court and the Judiciary. IEAHca
(8) LETTERS, all dated January 3, 2012, of Phillipe Manalang of Unlimited Productions,
Inc., addressed to Associate Justices Presbitero J. Velasco, Jr., 21 Teresita Leonardo-de
Castro, 22Mariano C. Del Castillo 23 and Jose Portugal Perez, 24 and Atty. Enriqueta
Esguerra-Vidal, Clerk of Court, Supreme Court 25 requesting for copies of the SALN of
the Supreme Court Justices for the years 2010 and 2011.
(9) LETTER, 26 dated December 19, 2011, of Malou Mangahas, Executive Director, PCIJ,
requesting for copies of the SALN, PDS or CVs of the Justices of the Supreme Court from
the year they were appointed to the present.
(10) SUBPOENA AD TESTIFICANDUM ET DUCES TECUM, 27 issued on January 17, 2012,
by the Senate, sitting as an Impeachment Court, in connection with Impeachment Case
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No. 002-2011 against Chief Justice Renato C. Corona, requiring the Clerk of Court,
among others, to bring with her the SALN of Chief Justice Renato C. Corona for the years
2002 to 2011.
(11) LETTER, 28 dated January 16, 2012, of Nilo "Ka Nilo" H. Baculo, Sr., requesting
copies of the SALN of the Supreme Court Justices for the years 2008 to 2011, for his use
as a media practitioner.
(12) LETTER, 29 dated January 25, 2012, of Roxanne Escaro-Alegre of GMA News,
requesting for copies of the SALN of the Supreme Court Justices for the network's story
on the political dynamics and process of decision-making in the Supreme Court.
(13) LETTER, 30 dated January 27, 2012, of David Jude Sta. Ana, Head, News Operations,
News 5, requesting for copies of the 2010-2011 SALN of the Supreme Court Justices for
use as reference materials for stories that will be aired in the newscasts of their
television network.
(14) LETTER, 31 dated January 31, 2012, of Michael G. Aguinaldo, Deputy Executive
Secretary for Legal Affairs, Malacaang, addressed to Atty. Enriqueta Esguerra-Vidal,
Clerk of Court, Supreme Court, seeking her comments and recommendation on House
Bill No. 5694, 32 to aid in their determination of whether the measure should be
certified as urgent.
(15) Undated LETTER 33 of Benise P. Balaoing, Intern of Rappler.com, a news website,
seeking copies of the 2010 SALN of the Justices of the Court and the CA for the purpose
of completing its database in preparation for its coverage of the 2013 elections. prcd
(16) LETTER, 34 dated April 27, 2012, of Maria A. Ressa, Chief Executive Officer and
Executive Officer and Executive Editor of Rappler, Inc., requesting for copies of the
current SALN of all the Justices of the Supreme Court, the Court of Appeals and the
Sandiganbayan also for the purpose of completing its database in preparation for its
coverage of the 2013 elections.
(17) LETTER, 35 dated May 2, 2012, of Mary Ann A. Seir, Junior Researcher, News
Research Section, GMA News and Public Affairs, requesting for copies of the SALN of
Chief Justice Renato C. Corona and the Associate Justices of the Supreme Court for the
calendar year 2011 for the network's use in their public affairs programs.
(18) LETTER, 36 dated May 4, 2012, of Edward Gabud, Sr., Desk Editor of Solar Network,
Inc., requesting for copies of the 2011 SALN of all the Justices of the Supreme Court.
(19) LETTER, 37 dated May 30, 2012, of Gerry Lirio, Senior News Editor, TV5 requesting
for copies of the SALN of the Justices of the Court for the last three (3) years for the
purpose of a special report it would produce as a result of the impeachment and
subsequent conviction of Chief Justice Renato C. Corona.
(20) LETTER, 38 dated May 31, 2012, of Atty. Joselito P. Fangon, Assistant Ombudsman,
Field Investigation Office, Office of the Ombudsman, requesting for 1] certified copies
of the SALN of former Chief Justice Renato C. Corona for the years 2002-2011, as well
as 2] a certificate of his yearly compensation, allowances, and bonuses, also for the
years 2002-2011.
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(21) LETTER, 39 dated June 8, 2012, of Thea Marie S. Pias, requesting a copy of the SALN
of any present Supreme Court Justice, for the purpose of completing her grade in Legal
Philosophy at the San Beda College of Law.
Pursuant to Section 6, Article VIII of the 1987 Constitution, 40 the Court, upon recommendation of the
OCA, issued its Resolution 41 dated October 13, 2009, denying the subpoena duces tecum for the SALNs
and personal documents of Justice Roland B. Jurado of the SB. The resolution also directed the
Ombudsman to forward to the Court any complaint and/or derogatory report against Justice Roland B.
Jurado, in consonance with the doctrine laid down in Caiobes v. Ombudsman. 42 Upon compliance by the
Ombudsman, the Court, in its Resolution 43 dated February 2, 2010, docketed this matter as a regular
administrative complaint. 44
Also, considering the development in Impeachment Case No. 002-2011 against Chief Justice Renato C.
Corona, the Court, on January 24, 2012, resolved to consider moot the Subpoena Ad Testificandum Et
Duces Tecum issued by the Senate impeachment court. 45 cEHSIC
In resolving the remaining pending incidents, the Court, on January 17, 2012 required the CA, the SB, the
CTA, the Philippine Judges Association, the Metropolitan and City Judges Association of the Philippines,
the Philippine Trial Judges League, and the Philippine Women Judges Association (PWJA), to file their
respective comments.
In essence, it is the consensus of the Justices of the above-mentioned courts and the various judges
associations that while the Constitution holds dear the right of the people to have access to matters of
concern, the Constitution also holds sacred the independence of the Judiciary. Thus, although no direct
opposition to the disclosure of SALN and other personal documents is being expressed, it is the uniform
position of the said magistrates and the various judges' associations that the disclosure must be made in
accord with the guidelines set by the Court and under such circumstances that would not undermine the
independence of the Judiciary.
After a review of the matters at hand, it is apparent that the matter raised for consideration of the Court
is not a novel one. As early as 1989, the Court had the opportunity to rule on the matter of SALN disclosure
in Re: Request of Jose M. Alejandrino, 46 where the Court denied the request of Atty. Alejandrino for the
SALNs of the Justices of the Court due to a "plainly discernible" improper motive. Aggrieved by an adverse
decision of the Court, he accused the Justices of patent partiality and alluded that they enjoyed an early
Christmas as a result of the decision promulgated by the Court. Atty. Alejandrino even singled out the
Justices who took part in the decision and conspicuously excluded the others who, for one reason or
another, abstained from voting therein. While the Court expressed its willingness to have the Clerk of
Court furnish copies of the SALN of any of its members, it however, noted that requests for SALNs must
be made under circumstances that must not endanger, diminish or destroy the independence, and
objectivity of the members of the Judiciary in the performance of their judicial functions, or expose them
to revenge for adverse decisions, kidnapping, extortion, blackmail or other untoward incidents. Thus, in
order to give meaning to the constitutional right of the people to have access to information on matters
of public concern, the Court laid down the guidelines to be observed for requests made. Thus:
1. All requests for copies of statements of assets and liabilities of any Justice or Judge
shall be filed with the Clerk of Court of the Supreme Court or with the Court
Administrator, as the case may be (Section 8 [A][2], R.A. 6713), and shall state the
purpose of the request.
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2. The independence of the Judiciary is constitutionally as important as the right to

information which is subject to the limitations provided by law. Under specific
circumstances, the need for fair and just adjudication of litigations may require a court
to be wary of deceptive requests for information which shall otherwise be freely
available. Where the request is directly or indirectly traced to a litigant, lawyer, or
interested party in a case pending before the court, or where the court is reasonably
certain that a disputed matter will come before it under circumstances from which it
may, also reasonably, be assumed that the request is not made in good faith and for a
legitimate purpose, but to fish for information and, with the implicit threat of its
disclosure, to influence a decision or to warn the court of the unpleasant consequences
of an adverse judgment, the request may be denied. HICcSA
3. Where a decision has just been rendered by a court against the person making the
request and the request for information appears to be a "fishing expedition" intended
to harass or get back at the Judge, the request may be denied.
4. In the few areas where there is extortion by rebel elements or where the nature of
their work exposes Judges to assaults against their personal safety, the request shall
not only be denied but should be immediately reported to the military.
5. The reason for the denial shall be given in all cases.
In the 1992 case of Re: Request for Certified True Copies of the Sworn Statements of Assets, Liabilities and
Networth, 47 the request was denied because the Court found that the purpose of the request was to fish
for information against certain members of the Judiciary. In the same case, the Court resolved to authorize
the Court Administrator to act on all requests for copies of SALN, as well as other papers on file with the
201 Personnel Records of lower court judges and personnel, provided that there was a court subpoena
duly signed by the Presiding Judge in a pending criminal case against a judge or personnel of the Judiciary.
The Court added that for requests made by the Office of the Ombudsman, the same must be personally
signed by the Ombudsman himself. Essentially, the Court resolved that, in all instances, requests must
conform to the guidelines set in the Alejandrino case and that the documents or papers requested for
must be relevant and material to the case being tried by the court or under investigation by the
Ombudsman.
In 1993, the Court, in Request for Certified True Copies of the Sworn Statements of Assets, Liabilities and
Net Worth of former Judge Luis D. Dictado, 48 ruled that the OCA may extend its granted authority to
retired members of the Judiciary.
With respect to investigations conducted by the Office of the Ombudsman in a criminal case against a
judge, the Court, in Maceda v. Vasquez, 49 upheld its constitutional duty to exercise supervision over all
inferior courts and ruled that an investigation by the Office of the Ombudsman without prior referral of
the criminal case to the Court was an encroachment of a constitutional duty that ran afoul to the doctrine
of separation of powers. This pronouncement was further amplified in the abovementioned case
of Caiobes. Thus: ADECcI
. . . Under Section 6, Article VIII of the Constitution, it is the Supreme Court which is
vested with exclusive administrative supervision over all courts and its personnel.
Prescinding from this premise, the Ombudsman cannot determine for itself and by itself
whether a criminal complaint against a judge, or court employee, involves an
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administrative matter. The Ombudsman is duty bound to have all cases against judges
and court personnel filed before it, referred to the Supreme Court for determination as
to whether an administrative aspect is involved therein. This rule should hold true
regardless of whether an administrative case based on the act subject of the complaint
before the Ombudsman is already pending with the Court. For, aside from the fact that
the Ombudsman would not know of this matter unless he is informed of it, he should
give due respect for and recognition of the administrative authority of the Court,
because in determining whether an administrative matter is involved, the Court passes
upon not only administrative liabilities but also administrative concerns, as is clearly
conveyed in the case ofMaceda v. Vasquez (221 SCRA 464[1993]).
The Ombudsman cannot dictate to, and bind the Court, to its findings that the case
before it does or does not have administrative implications. To do so is to deprive the
Court of the exercise of its administrative prerogatives and to arrogate unto itself a
power not constitutionally sanctioned. This is a dangerous policy which impinges, as it
does, on judicial independence.
Maceda is emphatic that by virtue of its constitutional power of administrative
supervision over all courts and court personnel, from the Presiding Justice of the Court
of Appeals down to the lowest municipal trial court clerk, it is only the Supreme Court
that can oversee the judges' and court personnel's compliance with all laws, and take
the proper administrative action against them if they commit any violation thereof. No
other branch of government may intrude into this power, without running afoul of the
doctrine of separation of powers.
Corollary to the above pronouncements, Section 7, Article III of the Constitution is relevant in the issue of
public disclosure of SALN and other documents of public officials, viz.:
Sec. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to
official acts, transactions, or decisions, as well as to government research data used as
basis for policy development, shall be afforded the citizen, subject to such limitations
as may be provided by law.HEDCAS
Emphasizing the import and meaning of the foregoing constitutional provision, the Court, in the landmark
case of Valmonte v. Belmonte, Jr., 50 elucidated on the import of the right to information in this wise:
The cornerstone of this republican system of government is delegation of power by the
people to the State. In this system, governmental agencies and institutions operate
within the limits of the authority conferred by the people. Denied access to information
on the inner workings of government, the citizenry can become prey to the whims and
caprices of those to whom the power had been delegated. The postulate of public
office is a public trust, institutionalized in the Constitution to protect the people from
abuse of governmental power, would certainly be mere empty words if access to such
information of public concern is denied . . . .
. . . The right to information goes hand-in-hand with the constitutional policies of full
public disclosure and honesty in the public service. It is meant to enhance the
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widening role of the citizenry in governmental decision-making as well as in checking

abuse in government. (Emphases supplied)
In Baldoza v. Dimaano, 51 the importance of the said right was pragmatically explicated:
The incorporation of this right in the Constitution is a recognition of the fundamental
role of free exchange of information in a democracy. There can be no realistic
perception by the public of the nation's problems, nor a meaningful democratic
decision-making if they are denied access to information of general interest.
Information is needed to enable the members of society to cope with the exigencies of
the times. As has been aptly observed: "Maintaining the flow of such information
depends on protection for both its acquisition and its dissemination since, if either
process is interrupted, the flow inevitably ceases." However, restrictions on access to
certain records may be imposed by law.
Thus, while "public concern" like "public interest" eludes exact definition and has been said to embrace a
broad spectrum of subjects which the public may want to know, either because such matters directly
affect their lives, or simply because such matters naturally arouse the interest of an ordinary
citizen, 52 the Constitution itself, under Section 17, Article XI, has classified the information disclosed in
the SALN as a matter of public concern and interest. In other words, a "duty to disclose" sprang from the
"right to know." Both of constitutional origin, the former is a command while the latter is a permission.
Hence, the duty on the part of members of the government to disclose their SALNs to the public in the
manner provided by law:
Section 17. A public officer or employee shall, upon assumption of office and as often
thereafter as may be required by law, submit a declaration under oath of his assets,
liabilities, and net worth. In the case of the President, the Vice-President, the Members
of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and
other constitutional offices, and officers of the armed forces with general or flag
rank, the declaration shall be disclosed to the public in the manner provided by law.
[Emphasis supplied]
This Constitutional duty is echoed and particularized in a statutory creation of Congress: Republic Act No.
6713, also known as "Code of Conduct and Ethical Standards for Public Officials and Employees": 53
Section 8. Statements and Disclosure. Public officials and employees have an
obligation to accomplish and submit declarations under oath of, and the public has the
right to know, their assets, liabilities, net worth and financial and business interests
including those of their spouses and of unmarried children under eighteen (18) years of
age living in their households. aTcESI
(A) Statements of Assets and Liabilities and Financial Disclosure. All public officials
and employees, except those who serve in an honorary capacity, laborers and casual or
temporary workers, shall file under oath their Statement of Assets, Liabilities and Net
Worth and a Disclosure of Business Interests and Financial Connections and those of
their spouses and unmarried children under eighteen (18) years of age living in their
households.
The two documents shall contain information on the following:
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(a) real property, its improvements, acquisition costs, assessed value and current fair
market value;
(b) personal property and acquisition cost;
(c) all other assets such as investments, cash on hand or in banks, stocks, bonds, and
the like;
(d) liabilities, and;
(e) all business interests and financial connections.
The documents must be filed:
(a) within thirty (30) days after assumption of office;
(b) on or before April 30, of every year thereafter; and
(c) within thirty (30) days after separation from the service.
All public officials and employees required under this section to file the aforestated
documents shall also execute, within thirty (30) days from the date of their assumption
of office, the necessary authority in favor of the Ombudsman to obtain from all
appropriate government agencies, including the Bureau of Internal Revenue, such
documents as may show their assets, liabilities, net worth, and also their business
interests and financial connections in previous years, including, if possible, the year
when they first assumed any office in the Government.
Husband and wife who are both public officials or employees may file the required
statements jointly or separately.
The Statements of Assets, Liabilities and Net Worth and the Disclosure of Business
Interests and Financial Connections shall be filed by:
(1) Constitutional and national elective officials, with the national office of the
Ombudsman; TaDSHC
(2) Senators and Congressmen, with the Secretaries of the Senate and the House of
Representatives, respectively; Justices, with the Clerk of Court of the Supreme Court;
Judges, with the Court Administrator; and all national executive officials with the Office
of the President.
(3) Regional and local officials and employees, with the Deputy Ombudsman in their
respective regions;
(4) Officers of the armed forces from the rank of colonel or naval captain, with the
Office of the President, and those below said ranks, with the Deputy Ombudsman in
their respective regions; and
(5) All other public officials and employees, defined in Republic Act No. 3019, as
amended, with the Civil Service Commission.
(B) Identification and disclosure of relatives. It shall be the duty of every public official
or employee to identify and disclose, to the best of his knowledge and information, his
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relatives in the Government in the form, manner and frequency prescribed by the Civil
Service Commission. (Emphasis supplied)
Like all constitutional guarantees, however, the right to information, with its companion right of access to
official records, is not absolute. While providing guaranty for that right, the Constitution also provides
that the people's right to know is limited to "matters of public concern" and is further subject to such
limitations as may be provided by law.
Jurisprudence 54 has provided the following limitations to that right: (1) national security matters and
intelligence information; (2) trade secrets and banking transactions; (3) criminal matters; and (4) other
confidential information such as confidential or classified information officially known to public officers
and employees by reason of their office and not made available to the public as well as diplomatic
correspondence, closed door Cabinet meetings and executive sessions of either house of Congress, and
the internal deliberations of the Supreme Court.
This could only mean that while no prohibition could stand against access to official records, such as the
SALN, the same is undoubtedly subject to regulation.
In this regard, Section 8 (c) and (d) of R.A. No. 6713 provides for the limitation and prohibition on the
regulated access to SALNs of government officials and employees, viz.:
(C) Accessibility of documents. (1) Any and all statements filed under this Act, shall
be made available for inspection at reasonable hours.
(2) Such statements shall be made available for copying or reproduction after ten (10)
working days from the time they are filed as required by law.
(3) Any person requesting a copy of a statement shall be required to pay a reasonable
fee to cover the cost of reproduction and mailing of such statement, as well as the cost
of certification.
(4) Any statement filed under this Act shall be available to the public for a period of ten
(10) years after receipt of the statement. After such period, the statement may be
destroyed unless needed in an ongoing investigation.
(D) Prohibited acts. It shall be unlawful for any person to obtain or use any statement
filed under this Act for:
(a) any purpose contrary to morals or public policy; or
(b) any commercial purpose other than by news and communications media for
dissemination to the general public.
Moreover, the following provisions in the Implementing Rules and Regulations of R.A. No. 6713
provide: EcTDCI
Rule IV
Transparency of Transactions and Access to Information
xxx xxx xxx
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Section 3. Every department, office or agency shall provide official information, records
or documents to any requesting public, except if:
(a) such information, record or document must be kept secret in the interest of
national defense or security or the conduct of foreign affairs;
(b) such disclosure would put the life and safety of an individual in imminent
danger;
(c) the information, record or document sought falls within the concepts of
established privilege or recognized exceptions as may be provided by law or
settled policy or jurisprudence;
(d) such information, record or document compromises drafts or decisions,
orders, rulings, policy, decisions, memoranda, etc.;
(e) it would disclose information of a personal nature where disclosure would
constitute a clearly unwarranted invasion of personal privacy;
(f) it would disclose investigatory records complied for law enforcement
purposes, or information which if written would be contained in such records
or information would (i) interfere with enforcement proceedings, (ii) deprive a
person of a right to a fair trial or an impartial adjudication, (iii) disclose the
identity of a confidential source and, in the case of a record compiled by a
criminal law enforcement authority in the course of a criminal investigation, or
by an agency conducting a lawful national security intelligence investigation,
confidential information furnished only by the confidential source, or (iv)
unjustifiably disclose investigative techniques and procedures; or
(g) it would disclose information the premature disclosure of which would (i) in
the case of a department, office or agency which agency regulates currencies,
securities, commodities, of financial institutions, be likely to lead to significant
financial speculation in currencies, securities, or commodities or significantly
endanger the stability of any financial institution, or (ii) in the case of any
department, office or agency be likely or significantly to frustrate
implementation of a proposed official action, except that subparagraph (f) (ii)
shall not apply in any instance where the department, office or agency has
already disclosed to the public the content or nature of its proposed action, or
where the department, office or agency is required by law to make such
disclosure on its own initiative prior to taking final official action on such
proposal.
xxx xxx xxx
Rule VI
Duties of Public Officials and Employees
Section 6. All public documents must be made accessible to, and readily available for
inspection by, the public during working hours, except those provided in Section 3, Rule
IV.
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The power to regulate the access by the public to these documents stems from the inherent power of the
Court, as custodian of these personal documents, to control its very office to the end that damage to, or
loss of, the records may be avoided; that undue interference with the duties of the custodian of the books
and documents and other employees may be prevented; and that the right of other persons entitled to
make inspection may be insured. 55
In this connection, Section 11 of the same law provides for the penalties in case there should be a misuse
of the SALN and the information contained therein, viz.:
Section 11. Penalties. (a) Any public official or employee, regardless of whether or
not he holds office or employment in a casual, temporary, holdover, permanent or
regular capacity, committing any violation of this Act shall be punished with a fine not
exceeding the equivalent of six (6) months' salary or suspension not exceeding one (1)
year, or removal depending on the gravity of the offense after due notice and hearing
by the appropriate body or agency. If the violation is punishable by a heavier penalty
under another law, he shall be prosecuted under the latter statute. Violations of
Sections 7, 8 or 9 of this Act shall be punishable with imprisonment not exceeding five
(5) years, or a fine not exceeding five thousand pesos (P5,000), or both, and, in the
discretion of the court of competent jurisdiction, disqualification to hold public office.
(b) Any violation hereof proven in a proper administrative proceeding shall be sufficient
cause for removal or dismissal of a public official or employee, even if no criminal
prosecution is instituted against him.
(c) Private individuals who participate in conspiracy as co-principals, accomplices or
accessories, with public officials or employees, in violation of this Act, shall be subject
to the same penal liabilities as the public officials or employees and shall be tried jointly
with them.
(d) The official or employee concerned may bring an action against any person who
obtains or uses a report for any purpose prohibited by Section 8 (d) of this Act. The
Court in which such action is brought may assess against such person a penalty in any
amount not to exceed twenty-five thousand pesos (P25,000.00). If another sanction
hereunder or under any other law is heavier, the latter shall apply. cDCEIA
Considering the foregoing legal precepts vis- -vis the various requests made, the Court finds no cogent
reason to deny the public access to the SALN, PDS and CV of the Justices of the Court and other magistrates
of the Judiciary subject, of course, to the limitations and prohibitions provided in R.A. No. 6713, its
implementing rules and regulations, and in the guidelines set forth in the decretal portion.
The Court notes the valid concerns of the other magistrates regarding the possible illicit motives of some
individuals in their requests for access to such personal information and their publication. However,
custodians of public documents must not concern themselves with the motives, reasons and objects of
the persons seeking access to the records. The moral or material injury which their misuse might inflict on
others is the requestor's responsibility and lookout. Any publication is made subject to the consequences
of the law. 56 While public officers in the custody or control of public records have the discretion to
regulate the manner in which records may be inspected, examined or copied by interested persons, such
discretion does not carry with it the authority to prohibit access, inspection, examination, or copying of
the records. 57 After all, public office is a public trust. Public officers and employees must, at all times, be
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accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act
with patriotism and justice, and lead modest lives. 58
WHEREFORE, the Court resolves to GRANT the requests contained in the (1) Letter, dated July 30, 2009,
of Rowena C. Paraan; (2) Letter, dated August 13, 2009, of Karol M. Ilagan; (3) Letter, dated April 21, 2010,
of the Philippine Public Transparency Reporting Project; (4) Letter, filed on August 24, 2011, by Marvin
Lim; (5) Letter, dated August 26, 2011, of Rawnna Crisostomo; (6) Letter, dated October 11, 2011, of Bala
S. Tamayo; (7) Letters, all dated December 19, 2011, of Harvey S. Keh; (8) Letter, dated December 21,
2011, of Glenda M. Gloria; (9) Letters, all dated January 3, 2012, of Phillipe Manalang; (10) Letter, dated
December 19, 2011, of Malou Mangahas; (11) Letter, dated January 16, 2012, of Nilo "Ka Nilo" H. Baculo;
(12) Letter, dated January 25, 2012, of Roxanne Escaro-Alegre; (13) Letter, dated January 27, 2012, of
David Jude Sta. Ana; (14) Letter, dated January 31, 2012, of Michael G. Aguinaldo; (15) undated Letter of
Benise P. Balaoing; (16) Letter, dated April 27, 2012, of Maria A. Ressa; (17) Letter, dated May 2, 2012, of
Mary Ann A. Seir; (18) Letter, dated May 4, 2012, of Edward Gabud, Sr., Desk Editor of Solar Network,
Inc.; (19) Letter, dated May 30, 2012, of Gerry Lirio, Senior News Editor, TV5; (20) Letter, dated May 31,
2002, of Atty. Joselito P. Fangon of the Office of the Ombudsman; and (21) Letter, dated June 7, 2012, of
Thea Marie S. Pias, insofar as copies of the 2011 SALN, PDS, and CV of the Justices of the Supreme Court,
the Court of Appeals, the Sandiganbayan, and the Court of Tax Appeals; Judges of lower courts; and other
members of the Judiciary, are concerned, subject to the limitations and prohibitions provided in R.A. No.
6713, its implementing rules and regulations, and the following guidelines: CEcaTH
1. All requests shall be filed with the Office of the Clerk of Court of the Supreme Court,
the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals; for the
lower courts, with the Office of the Court Administrator; and for attached
agencies, with their respective heads of offices.
2. Requests shall cover only copies of the latest SALN, PDS and CV of the members,
officials and employees of the Judiciary, and may cover only previous records if
so specifically requested and considered as justified, as determined by the
officials mentioned in par. 1 above, under the terms of these guidelines and the
Implementing Rules and Regulations of R.A. No. 6713.
3. In the case of requests for copies of SALN of the Justices of the Supreme Court, the
Court of Appeals, the Sandiganbayan and the Court of Tax Appeals, the
authority to disclose shall be made by the Court En Banc.
4. Every request shall explain the requesting party's specific purpose and their
individual interests sought to be served; shall state the commitment that the
request shall only be for the stated purpose; and shall be submitted in a duly
accomplished request form secured from the SC website. The use of the
information secured shall only be for the stated purpose.
5. In the case of requesting individuals other than members of the media, their interests
should go beyond pure or mere curiosity.
6. In the case of the members of the media, the request shall additionally be supported
by proof under oath of their media affiliation and by a similar certification of
the accreditation of their respective organizations as legitimate media
practitioners. DTCSHA
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7.The requesting party, whether as individuals or as members of the media, must have
no derogatory record of having misused any requested information previously
furnished to them.
The requesting parties shall complete their requests in accordance with these guidelines. The custodians
of these documents 59 (the respective Clerks of Court of the Supreme Court, Court of Appeals,
Sandiganbayan, and Court of Tax Appeals for the Justices; and the Court Administrator for the Judges of
various trial courts) shall preliminarily determine if the requests are not covered by the limitations and
prohibitions provided in R.A. No. 6713 and its implementing rules and regulations, and in accordance with
the aforecited guidelines. Thereafter, the Clerk of Court shall refer the matter pertaining to Justices to the
Court En Banc for final determination.
SO ORDERED.
||| (Re Request for Copy of 2008 SALN, A.M. No. 09-8-6-SC, 09-8-07-CA (Resolution), [June 13, 2012], 687
PHIL 24-47)
o0o
[1829]

Constitutional Law 2 CASES (III)

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AUDAX AT FIDELIS

BOLD BUT FAITHFUL

A. Philosophic Basis of Guarantee

1. For the discovery of political truth

2. For self government

3. For individual perfection

B. Prior restraints/Subsequent Punishment

FRANCISCO CHAVEZ, petitioner,vs.RAUL M. GONZALES, in his capacity as the Secretary

D. THE PROCEDURAL THRESHOLD: LEGAL STANDING

The American Court in Federal Communications Commission v. Pacifica Foundation (438

Attorneys of the Philippines v. COMELEC 92 treated a restriction imposed on a broadcast media as a

NEWSOUND BROADCASTING VS. DY 583 SCRA 333 (2009)

NEWSOUNDS BROADCASTING NETWORK INC. and CONSOLIDATED BROADCASTING

restrictions on the press or other forms of expression in advance of actual publication or

At the same time, jurisprudence distinguishes between a content-neutral regulation, i.e.,

SORIANO VS. LAGUARDIA 587 SCRA 79 (2009)

ELISEO F. SORIANO, petitioner,vs.MA. CONSOLIZA P. LAGUARDIA, in her capacity as

[G.R. No. 165636. April 29, 2009.]

ELISEO F. SORIANO,petitioner, vs. MOVIE AND TELEVISION REVIEW AND

SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE

SORIANO VS. LAGUARDIA 615 SCRA 254 (2010)

ELISEO F. SORIANO, petitioner, vs. MA. CONSOLIZA P. LAGUARDIA, in her capacity as

[G.R. No. 165636. March 15, 2010.]

ELISEO F. SORIANO, petitioner, vs. MOVIE AND TELEVISION REVIEW AND

ANG LADLAD VS. COMELEC 618 SCRA 32 (2010)

ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON

whose cause, object or purpose is contrary to law, morals, good customs,public

I. The Spirit of Republic Act No. 7941

GARCIA VS. MANRIQUE 683 SCRA 491 (2012)

GOVERNOR ENRIQUE T. GARCIA, JR., AURELIO C. ANGELES, JR., EMERLINDA S.

1. Some Tests of Validity of content-based restrictions

Dangerous tendency: When the legislative body has determined

Clear-and-present danger: The question in every case is whether

Balancing of interest: The court must undertake the delicate and

Direct incitement: The guarantees of free speech and free press

Grave-but-improbable danger: Whether the gravity of the evil,

2. Applications of tests in various contexts

a. Freedom of expression and national security

b. Freedom of expression and criticism of official conduct: The Test of Actual

CASES - SOLIVEN VS. MAKASIAR; BELTRAN VS. MAKASIAR,

MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOILI, and GODOFREDO

[G.R. No. 82827. November 14, 1988.]

[G.R. No. 83979. November 14, 1988.]

LUIS D. BELTRAN, petitioner, vs. EXECUTIVE SECRETARY CATALINO MACARAIG,

BORJAL VS. CA 301 SCRA 1 (1999)

Angara Abello Concepcion Regala & Cruz for petitioners.

VASQUEZ VS. CA 314 SCRA 460 (2000)

RODOLFO R. VASQUEZ, petitioner, vs. COURT OF APPEALS, THE REGIONAL TRIAL

Free Legal Assistance Group for petitioner.

3. ID.; ID.; WHEN IS AN ALLEGATION DEFAMATORY. An allegation is considered defamatory if it ascribes

1. A private communication made by any person to another in the performance of any

TULFO VS. PEOPLE 565 SCRA 283 (2008)

[G.R. No. 161176. September 16, 2008.]

"LINTEK" din sa pangungurakot itong Ding So ng Bureau of Customs Intelligence

WHEREIN said complainant was indicated as an extortionist, a corrupt public official,

1. THE LOWER COURT ERRED IN IGNORING THE UNREBUTTED TESTIMONY OF THE

B The Court Of Appeals Committed Grave Abuse Of Discretion In Manifestly

Costs against petitioners.

ANNOTATION - 301 SCRA 34