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1. Lambino vs Comelec
a. There is no merit to the petition.
b. The Lambino Group miserably failed to comply with the basic requirements of the Constitution for
conducting a people's initiative. Thus, there is even no need to revisit Santiago, as the present petition
warrants dismissal based alone on the Lambino Group's glaring failure to comply with the basic
requirements of the Constitution. For following the Court's ruling in Santiago, no grave abuse of discretion
is attributable to the Commision on Elections.
c. The Initiative Petition Does Not Comply with Section 2, Article XVII of the Constitution on Direct
Proposal by the People
d. Section 2, Article XVII of the Constitution is the governing constitutional provision that allows a people's
initiative to propose amendments to the Constitution. This section states:
e. Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum of the total number of registered voters of which
every legislative district must be represented by at least three per centum of the registered voters therein.
x x x x (Emphasis supplied)
f. The deliberations of the Constitutional Commission vividly explain the meaning of an amendment
"directly proposed by the people through initiative upon a petition," thus:
g. MR. RODRIGO: Let us look at the mechanics. Let us say some voters want to propose a constitutional
amendment. Is the draft of the proposed constitutional amendment ready to be shown to the
people when they are asked to sign?
h. MR. SUAREZ: That can be reasonably assumed, Madam President.
i. MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to them before they
sign. Now, who prepares the draft?
j. MR. SUAREZ: The people themselves, Madam President.
k. MR. RODRIGO: No, because before they sign there is already a draft shown to them and they are
asked whether or not they want to propose this constitutional amendment.
l. MR. SUAREZ: As it is envisioned, any Filipino can prepare that proposal and pass it around for
signature.13 (Emphasis supplied)
 Page 2 of 24

m. Clearly, the framers of the Constitution intended that the "draft of the proposed constitutional
amendment" should be "ready and shown" to the people "before" they sign such proposal. The framers
plainly stated that "before they sign there is already a draft shown to them." The framers also
"envisioned" that the people should sign on the proposal itself because the proponents must "prepare
that proposal and pass it around for signature."
n. The essence of amendments "directly proposed by the people through initiative upon a petition" is
that the entire proposal on its face is a petition by the people. This means two essential elements
must be present. First, the people must author and thus sign the entire proposal. No agent or
representative can sign on their behalf. Second, as an initiative upon a petition, the proposal must be
embodied in a petition.
o. These essential elements are present only if the full text of the proposed amendments is first shown to
the people who express their assent by signing such complete proposal in a petition. Thus, an
amendment is "directly proposed by the people through initiative upon a petition" only if the
people sign on a petition that contains the full text of the proposed amendments.
p. The full text of the proposed amendments may be either written on the face of the petition, or attached to
it. If so attached, the petition must state the fact of such attachment. This is an assurance that every one
of the several millions of signatories to the petition had seen the full text of the proposed amendments
before signing. Otherwise, it is physically impossible, given the time constraint, to prove that every one of
the millions of signatories had seen the full text of the proposed amendments before signing.
q. The framers of the Constitution directly borrowed14 the concept of people's initiative from the United
States where various State constitutions incorporate an initiative clause. In almost all States15 which
allow initiative petitions, the unbending requirement is that the people must first see the full text of
the proposed amendments before they sign to signify their assent, and that the people must sign
on an initiative petition that contains the full text of the proposed amendments.16
r. 2. The Initiative Violates Section 2, Article XVII of the Constitution Disallowing Revision through
Initiatives
s. A people's initiative to change the Constitution applies only to an amendment of the Constitution and not
to its revision. In contrast, Congress or a constitutional convention can propose both amendments and
revisions to the Constitution. Article XVII of the Constitution provides:
t. ARTICLE XVII AMENDMENTS OR REVISIONS
u. Sec. 1. Any amendment to, or revision of, this Constitution may be proposed by:
v. (1) The Congress, upon a vote of three-fourths of all its Members, or
w. (2) A constitutional convention.
x. Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through
initiative x x x. (Emphasis supplied)
y. Article XVII of the Constitution speaks of three modes of amending the Constitution. The first mode is
through Congress upon three-fourths vote of all its Members. The second mode is through a
constitutional convention. The third mode is through a people's initiative.
z. Revision broadly implies a change that alters a basic principle in the constitution, like altering the principle
of separation of powers or the system of checks-and-balances. There is also revision if the change alters
the substantial entirety of the constitution, as when the change affects substantial provisions of the
constitution. On the other hand, amendment broadly refers to a change that adds, reduces, or deletes
without altering the basic principle involved. Revision generally affects several provisions of the
constitution, while amendment generally affects only the specific provision being amended.
aa. The quantitative test asks whether the proposed change is "so extensive in its provisions as to change
directly the 'substantial entirety' of the constitution by the deletion or alteration of numerous existing
provisions."36 The court examines only the number of provisions affected and does not consider the
degree of the change.
ab. The qualitative test inquires into the qualitative effects of the proposed change in the constitution. The
main inquiry is whether the change will "accomplish such far reaching changes in the nature of our basic
governmental plan as to amount to a revision."37 Whether there is an alteration in the structure of
government is a proper subject of inquiry. Thus, "a change in the nature of [the] basic governmental plan"
includes "change in its fundamental framework or the fundamental powers of its Branches."38 A change
in the nature of the basic governmental plan also includes changes that "jeopardize the traditional form of
government and the system of check and balances."39
ac. Under both the quantitative and qualitative tests, the Lambino Group's initiative is a revision and not
merely an amendment. Quantitatively, the Lambino Group's proposed changes overhaul two articles -
Article VI on the Legislature and Article VII on the Executive - affecting a total of 105 provisions in the
 Page 3 of 24

entire Constitution.40Qualitatively, the proposed changes alter substantially the basic plan of government,
from presidential to parliamentary, and from a bicameral to a unicameral legislature.
ad. A change in the structure of government is a revision of the Constitution, as when the three great co-equal
branches of government in the present Constitution are reduced into two. This alters the separation of
powers in the Constitution. A shift from the present Bicameral-Presidential system to a Unicameral-
Parliamentary system is a revision of the Constitution. Merging the legislative and executive branches is a
radical change in the structure of government.
ae. The abolition alone of the Office of the President as the locus of Executive Power alters the separation of
powers and thus constitutes a revision of the Constitution. Likewise, the abolition alone of one chamber of
Congress alters the system of checks-and-balances within the legislature and constitutes a revision of the
Constitution.

2. DepEd vs Sandiego --Police Power

There is no need to redefine here the police power of the State. Suffice it to repeat that the power is validly exercised if (a)
the interests of the public generally, as distinguished from those of a particular class, require the interference of the State,
and (b) the means employed are reasonably necessary to the attainment of the object sought to be accomplished and not
unduly oppressive upon individuals. 5
In other words, the proper exercise of the police power requires the concurrence of a lawful subject and a lawful method.
The subject of the challenged regulation is certainly within the ambit of the police power. It is the right and indeed the
responsibility of the State to insure that the medical profession is not infiltrated by incompetents to whom patients may
unwarily entrust their lives and health.
The method employed by the challenged regulation is not irrelevant to the purpose of the law nor is it arbitrary or
oppressive. The three-flunk rule is intended to insulate the medical schools and ultimately the medical profession from the
intrusion of those not qualified to be doctors.
While every person is entitled to aspire to be a doctor, he does not have a constitutional right to be a doctor. This is true of
any other calling in which the public interest is involved; and the closer the link, the longer the bridge to one's ambition.
The State has the responsibility to harness its human resources and to see to it that they are not dissipated or, no less
worse, not used at all. These resources must be applied in a manner that will best promote the common good while also
giving the individual a sense of satisfaction.
A person cannot insist on being a physician if he will be a menace to his patients. If one who wants to be a lawyer may
prove better as a plumber, he should be so advised and adviced. Of course, he may not be forced to be a plumber, but on
the other hand he may not force his entry into the bar. By the same token, a student who has demonstrated promise as a
pianist cannot be shunted aside to take a course in nursing, however appropriate this career may be for others.
The right to quality education invoked by the private respondent is not absolute. The Constitution also provides that "every
citizen has the right to choose a profession or course of study, subject to fair, reasonable and equitable admission and
academic requirements. 6
The private respondent must yield to the challenged rule and give way to those better prepared. Where even those who
have qualified may still not be accommodated in our already crowded medical schools, there is all the more reason to bar
those who, like him, have been tested and found wanting.
The contention that the challenged rule violates the equal protection clause is not well-taken. A law does not have to
operate with equal force on all persons or things to be conformable to Article III, Section 1 of the Constitution.
a. There can be no question that a substantial distinction exists between medical students and
other students who are not subjected to the NMAT and the three-flunk rule. The medical
profession directly affects the very lives of the people, unlike other careers which, for this
reason, do not require more vigilant regulation. The accountant, for example, while
belonging to an equally respectable profession, does not hold the same delicate
responsibility as that of the physician and so need not be similarly treated.
3. Nemesio vs. Prudente
a. For a valid search warrant to issue, there must be probable cause, which is 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. 12
The probable cause must be in connection with one specific offense 13 and the judge must, before
issuing the warrant, personally examine in the form of searching questions and answers, in writing and
under oath, the complainant and any witness he may produce, on facts personally known to them and
attach to the record their sworn statements together with any affidavits submitted. 14
b. The "probable cause" for a valid search warrant, has been defined "as such facts and circumstances
which would lead a reasonably discreet arid prudent man to believe that an offense has been committed,
 Page 4 of 24

and that objects sought in connection with the offense are in the place sought to be searched." 15 This
probable cause must be shown to be within the personal knowledge of the complainant or the witnesses
he may produce and not based on mere hearsay. 16
c. While it is true that in his application for search warrant, applicant P/Major Dimagmaliw stated that he
verified the information he had earlier received that petitioner had in his possession and custody the t
there is nothing in the record to show or indicate how and when said applicant verified the earlier
information acquired by him as to justify his conclusion that he found such information to be a fact. He
might have clarified this point if there had been searching questions and answers, but there were none. In
fact, the records yield no questions and answers, whether searching or not, vis-a-vis the said applicant.
d. The true test of sufficiency of a deposition or affidavit to warrant issuance of a search warrant is whether it
has been drawn in a manner that perjury could be charged thereon and the affiant be held liable for
damage caused. The oath required must refer to the truth of the facts within the personal knowledge of
the applicant for search warrant, and/or his witnesses, not of the facts merely reported by a person whom
one considers to be reliable.
e. Tested by the above standard, the allegations of the witness, P/Lt. Angeles, in his deposition, do not come
up to the level of facts of his personal knowledge so much so that he cannot be held liable for perjury for
such allegations in causing the issuance of the questioned search warrant.
f. The rule is, that a description of a place to be searched is sufficient if the officer with the warrant can, with
reasonable effort, ascertain and Identify the place intended . 22 In the case at bar, the application for
search warrant and the search warrant itself described the place to be searched as the premises of the
Polytechnic University of the Philippines, located at Anonas St., Sta. Mesa, Sampaloc, Manila more
particularly, the offices of the Department of Military Science and Tactics at the ground floor, and the
Office of the President, Dr. Nemesio Prudente, at PUP, Second Floor and other rooms at the second floor.
The designation of the places to be searched sufficiently complied with the constitutional injunction that a
search warrant must particularly describe the place to be searched, even if there were several rooms at
the ground floor and second floor of the PUP.
g. In Stonehill vs. Diokno, 23 Where the warrants involved were issued upon applications stating that the
natural and juridical persons therein named had committed a "violation of Central Bank Laws, Tariff and
Customs Laws, Internal Revenue Code and Revised Penal Code," the Court held that no specific offense
had been alleged in the applications for a search warrant, and that it would be a legal hearsay of the
highest order to convict anybody of a "Violation of Central Bank Laws, Tariff and Customs Laws, Internal
Revenue Code and Revised Penal Code" without reference to any determinate provision of said laws and
codes. In the present case, however, the application for search warrant was captioned: "For Violation of
PD No. 1866 (Illegal Possession of Firearms, etc.) While the said decree punishes several offenses, the
alleged violation in this case was, qualified by the phrase "illegal possession of firearms, etc." As
explained by respondent Judge, the term "etc." referred to ammunitions and explosives. In other words,
the search warrant was issued for the specific offense of illegal possession of firearms and explosives.
Hence, the failure of the search warrant to mention the particular provision of PD No. 1-866 that was
violated is not of such a gravity as to call for its invalidation on this score. Besides, while illegal
possession of firearms is penalized under Section 1 of PD No. 1866 and illegal possession of explosives
is penalized under Section 3 thereof, it cannot be overlooked that said decree is a codification of the
various laws on illegal possession of firearms, ammunitions and explosives; such illegal possession of
items destructive of life and property are related offenses or belong to the same species, as to be
subsumed within the category of illegal possession of firearms, etc. under P.D. No. 1866.
4. Burgos vs Chief of Staff
a. Section 2, Rule 126 of the Rules of Court, enumerates the personal properties that may be seized under
a search warrant, to wit: Sec. 2. Personal Property to be seized. A search warrant may be issued for
the search and seizure of the following personal property:
i. [a] Property subject of the offense;
ii. [b] Property stolen or embezzled and other proceeds or fruits of the offense; and
iii. [c] Property used or intended to be used as the means of committing an offense.
The above rule does not require that the property to be seized should be owned by the person against
whom the search warrant is directed. It may or may not be owned by him. In fact, under subsection [b] of
 Page 5 of 24

the above-quoted Section 2, one of the properties that may be seized is stolen property. Necessarily,
stolen property must be owned by one other than the person in whose possession it may be at the time of
the search and seizure. Ownership, therefore, is of no consequence, and it is sufficient that the person
against whom the warrant is directed has control or possession of the property sought to be seized, as
petitioner Jose Burgos, Jr. was alleged to have in relation to the articles and property seized under the
warrants.
5.Columbia vs CA
a. Accordingly, to restrict the exercise of discretion by a judge by adding a particular requirement (the
presentation of master tapes, as intimated by 20th Century Fox) not provided nor implied in the law for a
finding of probable cause is beyond the realm of judicial competence or statemanship. It serves no
purpose but to stultify and constrict the judicious exercise of a court's prerogatives and to denigrate the
judicial duty of determining the existence of probable cause to a mere ministerial or mechanical function.
There is, to repeat, no law or rule which requires that the existence of probable cause is or should be
determined solely by a specific kind of evidence. Surely, this could not have been contemplated by the
framers of the Constitution, and we do not believe that the Court intended the statement in 20th Century
Fox regarding master tapes as the dictum for all seasons and reasons in infringement cases.
b. a blind espousal of the requisite of presentation of the master tapes in copyright infringement cases, as
the prime determinant of probable cause, is too exacting and impracticable a requirement to be complied
with in a search warrant application which, it must not be overlooked, is only an ancillary proceeding.
Further, on realistic considerations, a strict application of said requirement militates against the elements
of secrecy and speed which underlie covert investigative and surveillance operations in police
enforcement campaigns against all forms of criminality, considering that the master tapes of a motion
picture required to be presented before the court consists of several reels contained in circular steel
casings which, because of their bulk, will definitely draw attention, unlike diminutive objects like video
tapes which can be easily concealed.[76] With hundreds of titles being pirated, this onerous and tedious
imposition would be multiplied a hundredfold by judicial fiat, discouraging and preventing legal recourses
in foreign jurisdictions.
c. In fine, the supposed pronouncement in said case regarding the necessity for the presentation of the
master tapes of the copy-righted films for the validity of search warrants should at most be understood to
merely serve as a guidepost in determining the existence of probable cause in copy-right infringement
cases where there is doubt as to the true nexus between the master tape and the pirated copies. An
objective and careful reading of the decision in said case could lead to no other conclusion than that said
directive was hardly intended to be a sweeping and inflexible requirement in all or similar copyright
infringement cases.

6. Dusini vs Secretary of Justice

Section 12 of the Cybercrime Law

Section 12 provides:

Sec. 12. Real-Time Collection of Traffic Data. Law enforcement authorities, with due cause, shall be authorized to
collect or record by technical or electronic means traffic data in real-time associated with specified communications
transmitted by means of a computer system.

Traffic data refer only to the communications origin, destination, route, time, date, size, duration, or type of underlying
service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of the
above-stated information.
 Page 6 of 24

The court warrant required under this section shall only be issued or granted upon written application and the examination
under oath or affirmation of the applicant and the witnesses he may produce and the showing: (1) that there are
reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed, or is being
committed, or is about to be committed; (2) that there are reasonable grounds to believe that evidence that will be
obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such crimes; and
(3) that there are no other means readily available for obtaining such evidence.

Petitioners assail the grant to law enforcement agencies of the power to collect or record traffic data in real time as
tending to curtail civil liberties or provide opportunities for official abuse. They claim that data showing where digital
messages come from, what kind they are, and where they are destined need not be incriminating to their senders or
recipients before they are to be protected. Petitioners invoke the right of every individual to privacy and to be protected
from government snooping into the messages or information that they send to one another.

The first question is whether or not Section 12 has a proper governmental purpose since a law may require the disclosure
of matters normally considered private but then only upon showing that such requirement has a rational relation to the
purpose of the law,79 that there is a compelling State interest behind the law, and that the provision itself is narrowly
drawn.80 In assessing regulations affecting privacy rights, courts should balance the legitimate concerns of the State
against constitutional guarantees.81

Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there is a need to put order to the
tremendous activities in cyberspace for public good.82 To do this, it is within the realm of reason that the government
should be able to monitor traffic data to enhance its ability to combat all sorts of cybercrimes.

Chapter IV of the cybercrime law, of which the collection or recording of traffic data is a part, aims to provide law
enforcement authorities with the power they need for spotting, preventing, and investigating crimes committed in
cyberspace. Crime-fighting is a state business. Indeed, as Chief Justice Sereno points out, the Budapest Convention on
Cybercrimes requires signatory countries to adopt legislative measures to empower state authorities to collect or record
"traffic data, in real time, associated with specified communications." 83 And this is precisely what Section 12 does. It
empowers law enforcement agencies in this country to collect or record such data.

But is not evidence of yesterdays traffic data, like the scene of the crime after it has been committed, adequate for fighting
cybercrimes and, therefore, real-time data is superfluous for that purpose? Evidently, it is not. Those who commit the
crimes of accessing a computer system without right,84 transmitting viruses,85 lasciviously exhibiting sexual organs or
sexual activity for favor or consideration;86 and producing child pornography87 could easily evade detection and
prosecution by simply moving the physical location of their computers or laptops from day to day. In this digital age, the
wicked can commit cybercrimes from virtually anywhere: from internet cafs, from kindred places that provide free internet
services, and from unregistered mobile internet connectors. Criminals using cellphones under pre-paid arrangements and
with unregistered SIM cards do not have listed addresses and can neither be located nor identified. There are many ways
the cyber criminals can quickly erase their tracks. Those who peddle child pornography could use relays of computers to
mislead law enforcement authorities regarding their places of operations. Evidently, it is only real-time traffic data
collection or recording and a subsequent recourse to court-issued search and seizure warrant that can succeed in
ferreting them out.

Petitioners of course point out that the provisions of Section 12 are too broad and do not provide ample safeguards
against crossing legal boundaries and invading the peoples right to privacy. The concern is understandable. Indeed, the
Court recognizes in Morfe v. Mutuc88 that certain constitutional guarantees work together to create zones of privacy
wherein governmental powers may not intrude, and that there exists an independent constitutional right of privacy. Such
right to be left alone has been regarded as the beginning of all freedoms. 89

But that right is not unqualified. In Whalen v. Roe, 90 the United States Supreme Court classified privacy into two
categories: decisional privacy and informational privacy. Decisional privacy involves the right to independence in making
certain important decisions, while informational privacy refers to the interest in avoiding disclosure of personal matters. It
 Page 7 of 24

is the latter rightthe right to informational privacythat those who oppose government collection or recording of traffic
data in real-time seek to protect.

Informational privacy has two aspects: the right not to have private information disclosed, and the right to live freely
without surveillance and intrusion.91 In determining whether or not a matter is entitled to the right to privacy, this Court has
laid down a two-fold test. The first is a subjective test, where one claiming the right must have an actual or legitimate
expectation of privacy over a certain matter. The second is an objective test, where his or her expectation of privacy must
be one society is prepared to accept as objectively reasonable.92

Since the validity of the cybercrime law is being challenged, not in relation to its application to a particular person or
group, petitioners challenge to Section 12 applies to all information and communications technology (ICT) users, meaning
the large segment of the population who use all sorts of electronic devices to communicate with one another.
Consequently, the expectation of privacy is to be measured from the general publics point of view. Without reasonable
expectation of privacy, the right to it would have no basis in fact.

As the Solicitor General points out, an ordinary ICT user who courses his communication through a service provider, must
of necessity disclose to the latter, a third person, the traffic data needed for connecting him to the recipient ICT user. For
example, an ICT user who writes a text message intended for another ICT user must furnish his service provider with his
cellphone number and the cellphone number of his recipient, accompanying the message sent. It is this information that
creates the traffic data. Transmitting communications is akin to putting a letter in an envelope properly addressed, sealing
it closed, and sending it through the postal service. Those who post letters have no expectations that no one will read the
information appearing outside the envelope.

Computer datamessages of all kindstravel across the internet in packets and in a way that may be likened to parcels
of letters or things that are sent through the posts. When data is sent from any one source, the content is broken up into
packets and around each of these packets is a wrapper or header. This header contains the traffic data: information that
tells computers where the packet originated, what kind of data is in the packet (SMS, voice call, video, internet chat
messages, email, online browsing data, etc.), where the packet is going, and how the packet fits together with other
packets.93 The difference is that traffic data sent through the internet at times across the ocean do not disclose the actual
names and addresses (residential or office) of the sender and the recipient, only their coded internet protocol (IP)
addresses. The packets travel from one computer system to another where their contents are pieced back together.

Section 12 does not permit law enforcement authorities to look into the contents of the messages and uncover the
identities of the sender and the recipient.

For example, when one calls to speak to another through his cellphone, the service providers communications system
will put his voice message into packets and send them to the other persons cellphone where they are refitted together
and heard. The latters spoken reply is sent to the caller in the same way. To be connected by the service provider, the
sender reveals his cellphone number to the service provider when he puts his call through. He also reveals the cellphone
number to the person he calls. The other ways of communicating electronically follow the same basic pattern.

In Smith v. Maryland,94 cited by the Solicitor General, the United States Supreme Court reasoned that telephone users in
the 70s must realize that they necessarily convey phone numbers to the telephone company in order to complete a call.
That Court ruled that even if there is an expectation that phone numbers one dials should remain private, such
expectation is not one that society is prepared to recognize as reasonable.

In much the same way, ICT users must know that they cannot communicate or exchange data with one another over
cyberspace except through some service providers to whom they must submit certain traffic data that are needed for a
successful cyberspace communication. The conveyance of this data takes them out of the private sphere, making the
expectation to privacy in regard to them an expectation that society is not prepared to recognize as reasonable.
 Page 8 of 24

The Court, however, agrees with Justices Carpio and Brion that when seemingly random bits of traffic data are gathered in
bulk, pooled together, and analyzed, they reveal patterns of activities which can then be used to create profiles of the
persons under surveillance. With enough traffic data, analysts may be able to determine a persons close associations,
religious views, political affiliations, even sexual preferences. Such information is likely beyond what the public may expect
to be disclosed, and clearly falls within matters protected by the right to privacy. But has the procedure that Section 12 of
the law provides been drawn narrowly enough to protect individual rights?

Section 12 empowers law enforcement authorities, "with due cause," to collect or record by technical or electronic means
traffic data in real-time. Petitioners point out that the phrase "due cause" has no precedent in law or jurisprudence and that
whether there is due cause or not is left to the discretion of the police. Replying to this, the Solicitor General asserts that
Congress is not required to define the meaning of every word it uses in drafting the law.

Indeed, courts are able to save vague provisions of law through statutory construction. But the cybercrime law, dealing
with a novel situation, fails to hint at the meaning it intends for the phrase "due cause." The Solicitor General suggests that
"due cause" should mean "just reason or motive" and "adherence to a lawful procedure." But the Court cannot draw this
meaning since Section 12 does not even bother to relate the collection of data to the probable commission of a particular
crime. It just says, "with due cause," thus justifying a general gathering of data. It is akin to the use of a general search
warrant that the Constitution prohibits.

Due cause is also not descriptive of the purpose for which data collection will be used. Will the law enforcement agencies
use the traffic data to identify the perpetrator of a cyber attack? Or will it be used to build up a case against an identified
suspect? Can the data be used to prevent cybercrimes from happening?

The authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint. While it says that traffic
data collection should not disclose identities or content data, such restraint is but an illusion. Admittedly, nothing can
prevent law enforcement agencies holding these data in their hands from looking into the identity of their sender or
receiver and what the data contains. This will unnecessarily expose the citizenry to leaked information or, worse, to
extortion from certain bad elements in these agencies.

Section 12, of course, limits the collection of traffic data to those "associated with specified communications." But this
supposed limitation is no limitation at all since, evidently, it is the law enforcement agencies that would specify the target
communications. The power is virtually limitless, enabling law enforcement authorities to engage in "fishing expedition,"
choosing whatever specified communication they want. This evidently threatens the right of individuals to privacy.

The Solicitor General points out that Section 12 needs to authorize collection of traffic data "in real time" because it is not
possible to get a court warrant that would authorize the search of what is akin to a "moving vehicle." But warrantless
search is associated with a police officers determination of probable cause that a crime has been committed, that there is
no opportunity for getting a warrant, and that unless the search is immediately carried out, the thing to be searched stands
to be removed. These preconditions are not provided in Section 12.

The Solicitor General is honest enough to admit that Section 12 provides minimal protection to internet users and that the
procedure envisioned by the law could be better served by providing for more robust safeguards. His bare assurance that
law enforcement authorities will not abuse the provisions of Section 12 is of course not enough. The grant of the power to
track cyberspace communications in real time and determine their sources and destinations must be narrowly drawn to
preclude abuses.95

Petitioners also ask that the Court strike down Section 12 for being violative of the void-for-vagueness doctrine and the
overbreadth doctrine. These doctrines however, have been consistently held by this Court to apply only to free speech
cases. But Section 12 on its own neither regulates nor punishes any type of speech. Therefore, such analysis is
unnecessary.
 Page 9 of 24

This Court is mindful that advances in technology allow the government and kindred institutions to monitor individuals and
place them under surveillance in ways that have previously been impractical or even impossible. "All the forces of a
technological age x x x operate to narrow the area of privacy and facilitate intrusions into it. In modern terms, the capacity
to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian
society."96 The Court must ensure that laws seeking to take advantage of these technologies be written with specificity and
definiteness as to ensure respect for the rights that the Constitution guarantees.

7. Chavez vs Gonzales
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 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
 Page 10 of 24

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. [37] The 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 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.
 Page 11 of 24

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 jurisprudencewhether here or abroadwill
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 doctrine which permits limitations on speech once a rational connection has been established between the
speech restrained and the danger contemplated; [48] (b) the balancing 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
test to 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

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.
 Page 12 of 24

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 issuance actually 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.[56] Freedom 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 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.
 Page 13 of 24

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 approachsomewhere 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 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]
 Page 14 of 24

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 objecta 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 limited First 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 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.
 Page 15 of 24

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.
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
 Page 16 of 24

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.
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
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]
 Page 17 of 24

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, in Osmena 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 Attorneys of the Philippines v. COMELEC [92] treated a restriction imposed on a broadcast media
as a reasonable condition for the grant of the medias 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 expressionin terms of diversitycomes 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
 Page 18 of 24

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
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 whos and the hows of the wiretapping act is ambivalent, especially considering the tapes 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 kinds and doubtless, some of them provide norms of conduct which even if violated have only an adverse effect on a
persons 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. The totality 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
 Page 19 of 24

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 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.
8. Diocese of Bacolod vs Comelec
THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOPVICENTE M. NAVARRA and
THE BISHOP HIMSELF IN HIS PERSONAL CAPACITY, Petitioners,
vs.
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY, ATTY. MAVIL V.
MAJARUCON, Respondents.
G.R. No. 205728 January 21, 2015

PONENTE: Leonen
TOPIC: Right to expression, right to political speech, right to property

FACTS:
On February 21, 2013, petitioners posted two (2) tarpaulins within a private compound housing the San Sebastian
Cathedral of Bacolod. Each tarpaulin was approximately six feet (6) by ten feet (10) in size. They were posted on the front
walls of the cathedral within public view. The first tarpaulin contains the message IBASURA RH Law referring to the
Reproductive Health Law of 2012 or Republic Act No. 10354. The second tarpaulin is the subject of the present case. This
tarpaulin contains the heading Conscience Vote and lists candidates as either (Anti-RH) Team Buhay with
a checkmark, or (Pro-RH) Team Patay with an X mark. The electoral candidates were classified according to their vote
on the adoption of Republic Act No. 10354, otherwise known as the RH Law. Those who voted for the passing of the law
were classified by petitioners as comprising Team Patay, while those who voted against it form Team Buhay.
Respondents conceded that the tarpaulin was neither sponsored nor paid for by any candidate. Petitioners also
conceded that the tarpaulin contains names ofcandidates for the 2013 elections, but not of politicians who helped in the
passage of the RH Law but were not candidates for that election.
ISSUES:
1. Whether or not the size limitation and its reasonableness of the tarpaulin is a political question, hence not within
the ambit of the Supreme Courts power of review.
 Page 20 of 24

2. Whether or not the petitioners violated the principle of exhaustion of administrative remedies as the case was not
brought first before the COMELEC En Banc or any if its divisions.
3. Whether or not COMELEC may regulate expressions made by private citizens.
4. Whether or not the assailed notice and letter for the removal of the tarpaulin violated petitioners fundamental
right to freedom of expression.
5. Whether the order for removal of the tarpaulin is a content-based or content-neutral regulation.
6. Whether or not there was violation of petitioners right to property.
7. Whether or not the tarpaulin and its message are considered religious speech.

HELD:

FIRST ISSUE: No.

The Court ruled that the present case does not call for the exercise of prudence or modesty. There is no political
question. It can be acted upon by this court through the expanded jurisdiction granted to this court through Article VIII,
Section 1 of the Constitution..
The concept of a political question never precludes judicial review when the act of a constitutional organ infringes
upon a fundamental individual or collective right. Even assuming arguendo that the COMELEC did have the discretion to
choose the manner of regulation of the tarpaulin in question, it cannot do so by abridging the fundamental right to
expression.
Also the Court said that in our jurisdiction, the determination of whether an issue involves a truly political and
non-justiciable question lies in the answer to the question of whether there are constitutionally imposed limits on powers
or functions conferred upon political bodies. If there are, then our courts are duty-bound to examine whether
the branch or instrumentality of the government properly acted within such limits.
A political question will not be considered justiciable if there are no constitutionally imposed limits on powers or
functions conferred upon political bodies. Hence, the existence of constitutionally imposed limits justifies subjecting
the officialactions of the body to the scrutiny and review of this court.
In this case, the Bill of Rights gives the utmost deference to the right to free speech. Any instance that this right
may be abridged demands judicial scrutiny. It does not fall squarely into any doubt that a political question brings.
SECOND ISSUE: No.
The Court held that the argument on exhaustion of administrative remedies is not proper in this case.
Despite the alleged non-exhaustion of administrative remedies, it is clear that the controversy is already ripe for
adjudication. Ripeness is the prerequisite that something had by then been accomplished or performed by
either branch or in this case, organ of government before a court may come into the picture.
Petitioners exercise of their right to speech, given the message and their medium, had understandable relevance
especially during the elections. COMELECs letter threatening the filing of the election offense against petitioners is
already an actionable infringement of this right. The impending threat of criminal litigation is enough to curtail
petitioners speech.
In the context of this case, exhaustion of their administrative remedies as COMELEC suggested in their pleadings
prolongs the violation of their freedom of speech.
THIRD ISSUE: No.
Respondents cite the Constitution, laws, and jurisprudence to support their position that they had the power to
regulate the tarpaulin. However, the Court held that all of these provisions pertain to candidates and political parties.
Petitioners are not candidates. Neither do they belong to any political party. COMELEC does not have the authority to
regulate the enjoyment of the preferred right to freedom of expression exercised by a non-candidate in this case.
FOURTH ISSUE: Yes.
The Court held that every citizens expression with political consequences enjoys a high degree of protection.
Moreover, the respondents argument that the tarpaulin is election propaganda, being petitioners way of
endorsing candidates who voted against the RH Law and rejecting those who voted for it, holds no water.
The Court held that while the tarpaulin may influence the success or failure of the named candidates and political
parties, this does not necessarily mean it is election propaganda. The tarpaulin was not paid for or posted in return for
consideration by any candidate, political party, or party-list group.
By interpreting the law, it is clear that personal opinions are not included, while sponsored messages are covered.
The content of the tarpaulin is a political speech
Political speech refers to speech both intended and received as a contribution to public deliberation about some issue,
fostering informed and civic minded deliberation. On the other hand, commercial speech has been defined as speech
that does no more than propose a commercial transaction. The expression resulting from the content of the tarpaulin is,
however, definitely political speech.
FIFTH ISSUE: Content-based regulation.
 Page 21 of 24

Content-based restraint or censorship refers to restrictions based on the subject matter of the utterance or
speech. In contrast, content-neutral regulation includes controls merely on the incidents of the speech such as time,
place, or manner of the speech.
The Court held that the regulation involved at bar is content-based. The tarpaulin content is not easily divorced
from the size of its medium.
Content-based regulation bears a heavy presumption of invalidity, and this court has used the clear and present
danger rule as measure.
Under this rule, the evil consequences sought to be prevented must be substantive, extremely serious and the
degree of imminence extremely high. Only when the challenged act has overcome the clear and present danger rule will
it pass constitutional muster, with the government having the burden of overcoming the presumed unconstitutionality.
Even with the clear and present danger test, respondents failed to justify the regulation. There is no compelling
and substantial state interest endangered by the posting of the tarpaulin as to justify curtailment of the right of freedom of
expression. There is no reason for the state to minimize the right of non-candidate petitioners to post the tarpaulin in their
private property. The size of the tarpaulin does not affect anyone elses constitutional rights.
SIXTH ISSUE: Yes.
The Court held that even though the tarpaulin is readily seen by the public, the tarpaulin remains the private
property of petitioners. Their right to use their property is likewise protected by the Constitution.
Any regulation, therefore, which operates as an effective confiscation of private property or constitutes an
arbitrary or unreasonable infringement of property rights is void, because it is repugnant to the constitutional guaranties
of due process and equal protection of the laws.
The Court in Adiong case held that a restriction that regulates where decals and stickers should be posted is so
broad that it encompasses even the citizens private property. Consequently, it violates Article III, Section 1 of the
Constitution which provides that no person shall be deprived of his property without due process of law.
SEVENTH ISSUE: No.
The Court held that the church doctrines relied upon by petitioners are not binding upon this court. The position
of the Catholic religion in the Philippines as regards the RH Law does not suffice to qualify the posting by one of its
members of a tarpaulin as religious speech solely on such basis. The enumeration of candidates on the face of the
tarpaulin precludes any doubt as to its nature as speech with political consequences and not religious speech.
Doctrine of benevolent neutrality
With religion looked upon with benevolence and not hostility, benevolent neutrality allows accommodation of
religion under certain circumstances. Accommodations are government policies that take religion specifically into account
not to promote the governments favored form of religion, but to allow individuals and groups to exercise their religion
without hindrance. Their purpose or effect therefore is to remove a burden on, or facilitate the exercise of, a persons or
institutions religion.
As Justice Brennan explained, the government may take religion into account . . . to exempt, when possible, from
generally applicable governmental regulation individuals whose religious beliefs and practices would otherwise thereby be
infringed, or to create without state involvement an atmosphere in which voluntary religious exercise may flourish.
Lemon test
A regulation is constitutional when:
Affiliate program commission

Post free classified ads

Branches

Speech
1. It has a secular legislative purpose;
2. It neither advances nor inhibits religion; and
3. It does not foster an excessive entanglement with religion.

Estrada vs Escritor (August 4, 2003)

Estrada vs. Escritor
AM P-02-1651, August 4, 2003

FACTS:
 Page 22 of 24

Soledad Escritor is a court interpreter since 1999 in the RTC of Las Pinas City. Alejandro Estrada, the
complainant, wrote to Judge Jose F. Caoibes, presiding judge of Branch 253, RTC of Las Pinas City,
requesting for an investigation of rumors that Escritor has been living with Luciano Quilapio Jr., a man not
her husband, and had eventually begotten a son. Escritors husband, who had lived with another woman,
died a year before she entered into the judiciary. On the other hand, Quilapio is still legally married to
another woman. Estrada is not related to either Escritor or Quilapio and is not a resident of Las Pinas but
of Bacoor, Cavite. According to the complainant, respondent should not be allowed to remain employed in
the judiciary for it will appear as if the court allows such act.

Escritor is a member of the religious sect known as the Jehovahs Witnesses and the Watch Tower and Bible
Tract Society where her conjugal arrangement with Quilapio is in conformity with their religious beliefs.
After ten years of living together, she executed on July 28, 1991 a Declaration of Pledging Faithfulness
which was approved by the congregation. Such declaration is effective when legal impediments render it
impossible for a couple to legalize their union. Gregorio, Salazar, a member of the Jehovahs Witnesses
since 1985 and has been a presiding minister since 1991, testified and explained the import of and
procedures for executing the declaration which was completely executed by Escritor and Quilapios in
Atimonan, Quezon and was signed by three witnesses and recorded in Watch Tower Central Office.

ISSUE:

Whether or not respondent should be found guilty of the administrative charge of gross and immoral
conduct and be penalized by the State for such conjugal arrangement.

HELD:

A distinction between public and secular morality and religious morality should be kept in mind. The
jurisdiction of the Court extends only to public and secular morality.

The Court states that our Constitution adheres the benevolent neutrality approach that gives room for
accommodation of religious exercises as required by the Free Exercise Clause. This benevolent neutrality
could allow for accommodation of morality based on religion, provided it does not offend compelling state
interests.

The states interest is the preservation of the integrity of the judiciary by maintaining among its ranks a
high standard of morality and decency. There is nothing in the OCAs (Office of the Court Administrator)
memorandum to the Court that demonstrates how this interest is so compelling that it should override
respondents plea of religious freedom. Indeed, it is inappropriate for the complainant, a private person, to
present evidence on the compelling interest of the state. The burden of evidence should be discharged by
the proper agency of the government which is the Office of the Solicitor General.

In order to properly settle the case at bar, it is essential that the government be given an opportunity to
demonstrate the compelling state interest it seeks to uphold in opposing the respondents position that her
conjugal arrangement is not immoral and punishable as it is within the scope of free exercise protection.
The Court could not prohibit and punish her conduct where the Free Exercise Clause protects it, since this
would be an unconstitutional encroachment of her right to religious freedom. Furthermore, the court
cannot simply take a passing look at respondents claim of religious freedom but must also apply the
compelling state interest test.

IN VIEW WHEREOF, the case is REMANDED to the Office of the Court Administrator. The Solicitor General is
ordered to intervene in the case where it will be given the opportunity (a) to examine the sincerity and
centrality of respondent's claimed religious belief and practice; (b) to present evidence on the state's
"compelling interest" to override respondent's religious belief and practice; and (c) to show that the means
the state adopts in pursuing its interest is the least restrictive to respondent's religious freedom. The
rehearing should be concluded thirty (30) days from the Office of the Court Administrator's receipt of this
Decision.

10
 Page 23 of 24

MARCOS VS. MANGLAPUS [177 SCRA 668; G.R. NO. 88211; 15 SEPT 1989]
Friday, February 06, 2009 Posted by Coffeeholic Writes
Labels: Case Digests, Political Law

Facts: This case involves a petition of mandamus and prohibition asking the court to order the
respondents Secretary of Foreign Affairs, etc. To issue a travel documents to former Pres. Marcos and the
immediate members of his family and to enjoin the implementation of the President's decision to bar their
return to the Philippines. Petitioners assert that the right of the Marcoses to return in the Philippines is
guaranteed by the Bill of Rights, specifically Sections 1 and 6. They contended that Pres. Aquino is without
power to impair the liberty of abode of the Marcoses because only a court may do so within the limits
prescribed by law. Nor the President impair their right to travel because no law has authorized her to do
so.

They further assert that under international law, their right to return to the Philippines is guaranteed
particularly by the Universal Declaration of HumanRights and the International Covenant on Civil and
Political Rights, which has been ratified by the Philippines.

Issue: Whether or not, in the exercise of the powers granted by theconstitution, the President (Aquino)
may prohibit the Marcoses from returning to the Philippines.

Held: "It must be emphasized that the individual right involved is not the right to travel from the
Philippines to other countries or within the Philippines. These are what the right to travel would normally
connote. Essentially, the right involved in this case at bar is the right to return to one's country, a distinct
right under international law, independent from although related to the right to travel. Thus, the
Universal Declaration ofHuman Rights and the International Covenant on Civil and Political Rights treat the
right to freedom of movement and abode within the territory of a state, the right to leave the country, and
the right to enter one's country as separate and distinct rights. What the Declaration speaks of is the
"right to freedom of movement and residence within the borders of each state". On the other hand, the
Covenant guarantees the right to liberty of movement and freedom to choose his residence and the right
to be free to leave any country, including his own. Such rights may only be restricted by laws protecting
the national security, public order, public health or morals or the separate rights of others. However, right
to enter one's country cannot be arbitrarily deprived. It would be therefore inappropriate to construe the
limitations to the right to return to ones country in the same context as those pertaining to the liberty of
abode and the right to travel.
 Page 24 of 24

The Bill of rights treats only the liberty of abode and the right to travel, but it is a well considered view
that the right to return may be considered, as a generally accepted principle of International Law and
under our Constitutionas part of the law of the land.

The court held that President did not act arbitrarily or with grave abuse of discretion in determining that
the return of the Former Pres. Marcos and his family poses a serious threat to national interest and
welfare. President Aquino has determined that the destabilization caused by the return of the Marcoses
would wipe away the gains achieved during the past few years after the Marcos regime.

The return of the Marcoses poses a serious threat and therefore prohibiting their return to the Philippines,
the instant petition is hereby DISMISSED.

11. Chavez vs PEA Amari

5. The State policy of full transparency in all transactions involving public interest reinforces the people's right to
information on matters of public concern. This State policy is expressed in Section 28, Article II of the Constitution, thus:
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."

Contrary to AMARI's contention, the commissioners of the 1986 Constitutional Commission understood that the right to
information "contemplates inclusion of negotiations leading to the consummation of the transaction." Certainly, a
consummated contract is not a requirement for the exercise of the right to information. Otherwise, the people can never
exercise the right if no contract is consummated, and if one is consummated, it may be too late for the public to expose its
defects.

Requiring a consummated contract will keep the public in the dark until the contract, which may be grossly
disadvantageous to the government or even illegal, becomes a fait accompli.

However, the right to information does not compel PEA to prepare lists, abstracts, summaries and the like relating to
the renegotiation of the JVA. 34 The right only affords access to records, documents and papers, which means the
opportunity to inspect and copy them. One who exercises the right must copy the records, documents and papers at his
expense. The exercise of the right is also subject to reasonable regulations to protect the integrity of the public records
and to minimize disruption to government operations, like rules specifying when and how to conduct the inspection and
copying.