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Republic of the Philippines paano ka napunta rito, porke member ka

SUPREME COURT na, magsumbong ka kung ano ang gagawin


Manila ko sa 'yo.

FIRST DIVISION CHUCHI — Kasi, naka duty ako noon.

ESG — Tapos iniwan no. (Sic)

G.R. No. 93833 September 28, 1995 CHUCHI — Hindi m'am, pero ilan beses na
nila akong binalikan, sabing ganoon —
SOCORRO D. RAMIREZ, petitioner,
vs. ESG — Ito and (sic) masasabi ko sa 'yo,
HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, respondents. ayaw kung (sic) mag explain ka, kasi
hanggang 10:00 p.m., kinabukasan hindi ka
na pumasok. Ngayon ako ang babalik sa 'yo,
nag-aaply ka sa States, nag-aaply ka sa
KAPUNAN, J.: review mo, kung kakailanganin ang
certification mo, kalimutan mo na kasi hindi
ka sa akin makakahingi.
A civil case damages was filed by petitioner Socorro D. Ramirez in the Regional
Trial Court of Quezon City alleging that the private respondent, Ester S. Garcia,
in a confrontation in the latter's office, allegedly vexed, insulted and humiliated CHUCHI — Hindi M'am. Kasi ang ano ko
her in a "hostile and furious mood" and in a manner offensive to petitioner's talaga noon i-cocontinue ko up to 10:00
dignity and personality," contrary to morals, good customs and public policy." 1 p.m.

In support of her claim, petitioner produced a verbatim transcript of the event ESG — Bastos ka, nakalimutan mo na kung
and sought moral damages, attorney's fees and other expenses of litigation in paano ka pumasok dito sa hotel.
the amount of P610,000.00, in addition to costs, interests and other reliefs Magsumbong ka sa Union kung gusto mo.
awardable at the trial court's discretion. The transcript on which the civil case Nakalimutan mo na kung paano ka
was based was culled from a tape recording of the confrontation made by nakapasok dito "Do you think that on your
petitioner. 2 The transcript reads as follows: own makakapasok ka kung hindi ako.
Panunumbyoyan na kita (Sinusumbatan na
kita).
Plaintiff Soccoro D. Ramirez (Chuchi) —
Good Afternoon M'am.
CHUCHI — Itutuloy ko na M'am sana ang
duty ko.
Defendant Ester S. Garcia (ESG) — Ano ba
ang nangyari sa 'yo, nakalimot ka na kung

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ESG — Kaso ilang beses na akong CHUCHI — Kasi M'am, binbalikan ako ng
binabalikan doon ng mga no (sic) ko. mga taga Union.

ESG — Nakalimutan mo na ba kung paano ESG — Nandiyan na rin ako, pero huwag
ka pumasok sa hotel, kung on your own mong kalimutan na hindi ka makakapasok
merit alam ko naman kung gaano ka "ka kung hindi ako. Kung hindi mo kinikilala yan
bobo" mo. Marami ang nag-aaply alam okey lang sa akin, dahil tapos ka na.
kong hindi ka papasa.
CHUCHI — Ina-ano ko m'am na utang na
CHUCHI — Kumuha kami ng exam noon. loob.

ESG — Oo, pero hindi ka papasa. ESG — Huwag na lang, hindi mo utang na
loob, kasi kung baga sa no, nilapastangan
CHUCHI — Eh, bakit ako ang nakuha ni Dr. mo ako.
Tamayo
CHUCHI — Paano kita nilapastanganan?
ESG — Kukunin ka kasi ako.
ESG — Mabuti pa lumabas ka na. Hindi na
CHUCHI — Eh, di sana — ako makikipagusap sa 'yo. Lumabas ka na.
Magsumbong ka. 3
ESG — Huwag mong ipagmalaki na may
utak ka kasi wala kang utak. Akala mo ba As a result of petitioner's recording of the event and alleging that the said act
makukuha ka dito kung hindi ako. of secretly taping the confrontation was illegal, private respondent filed a
criminal case before the Regional Trial Court of Pasay City for violation of
CHUCHI — Mag-eexplain ako. Republic Act 4200, entitled "An Act to prohibit and penalize wire tapping and
other related violations of private communication, and other purposes." An
information charging petitioner of violation of the said Act, dated October 6,
ESG — Huwag na, hindi ako mag-papa-
1988 is quoted herewith:
explain sa 'yo, makaalala ka kung paano ka
puma-rito. "Putang-ina" sasabi-sabihin mo
kamag-anak ng nanay at tatay mo ang mga INFORMATION
magulang ko.
The Undersigned Assistant City Fiscal Accusses Socorro D.
ESG — Wala na akong pakialam, dahil Ramirez of Violation of Republic Act No. 4200, committed as
nandito ka sa loob, nasa labas ka puwede ka follows:
ng hindi pumasok, okey yan nasaloob ka
umalis ka doon. That on or about the 22nd day of February,
1988, in Pasay City Metro Manila,

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Philippines, and within the jurisdiction of s
this honorable court, the above-named t
accused, Socorro D. Ramirez not being .
authorized by Ester S. Garcia to record the
latter's conversation with said accused, did C
then and there willfully, unlawfully and i
feloniously, with the use of a tape recorder t
secretly record the said conversation and y
thereafter communicate in writing the
contents of the said recording to other F
person. i
s
Contrary to law. c
a
Pasay City, Metro Manila, September 16, l
1988.
Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the
Information
M on the ground that the facts charged do not constitute an offense,
particularly
A a violation of R.A. 4200. In an order May 3, 1989, the trial court
granted
R the Motion to Quash, agreeing with petitioner that 1) the facts charged
do
I not constitute an offense under R.A. 4200; and that 2) the violation
punished
A by R.A. 4200 refers to a the taping of a communication by a
person
N other than a participant to the communication. 4
O
From the trial court's Order, the private respondent filed a Petition for Review
on
M Certiorari with this Court, which forthwith referred the case to the Court of
Appeals
. in a Resolution (by the First Division) of June 19, 1989.

On February 9, 1990, respondent Court of Appeals promulgated its assailed


C
U
Decision declaring the trial court's order of May 3, 1989 null and void, and
N
holding that:
E
T [T]he allegations sufficiently constitute an offense punishable
A under Section 1 of R.A. 4200. In thus quashing the
information based on the ground that the facts alleged do not
A constitute an offense, the respondent judge acted in grave
s abuse of discretion correctible by certiorari. 5

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Consequently, on February 21, 1990, petitioner filed a Motion for The aforestated provision clearly and unequivocally makes it illegal for any
Reconsideration which respondent Court of Appeals denied in its person, not authorized by all the parties to any private communication to
Resolution 6 dated June 19, 1990. Hence, the instant petition. secretly record such communication by means of a tape recorder. The law
makes no distinction as to whether the party sought to be penalized by the
Petitioner vigorously argues, as her "main and principal issue" 7 that the statute ought to be a party other than or different from those involved in the
applicable provision of Republic Act 4200 does not apply to the taping of a private communication. The statute's intent to penalize all persons
private conversation by one of the parties to the conversation. She contends unauthorized to make such recording is underscored by the use of the qualifier
that the provision merely refers to the unauthorized taping of a private "any". Consequently, as respondent Court of Appeals correctly concluded,
conversation by a party other than those involved in the communication. 8 In "even a (person) privy to a communication who records his private
relation to this, petitioner avers that the substance or content of the conversation with another without the knowledge of the latter (will) qualify as
conversation must be alleged in the Information, otherwise the facts charged a violator" 13 under this provision of R.A. 4200.
would not constitute a violation of R.A. 4200. 9 Finally, petitioner agues that
R.A. 4200 penalizes the taping of a "private communication," not a "private A perusal of the Senate Congressional Records, moreover, supports the
conversation" and that consequently, her act of secretly taping her respondent court's conclusion that in enacting R.A. 4200 our lawmakers indeed
conversation with private respondent was not illegal under the said act. 10 contemplated to make illegal, unauthorized tape recording of private
conversations or communications taken either by the parties themselves or by
We disagree. third persons. Thus:

First, legislative intent is determined principally from the language of a statute. xxx xxx xxx
Where the language of a statute is clear and unambiguous, the law is applied
according to its express terms, and interpretation would be resorted to only Senator Tañada: That qualified only "overhear".
where a literal interpretation would be either impossible 11 or absurb or would
lead to an injustice. 12 Senator Padilla: So that when it is intercepted or recorded,
the element of secrecy would not appear to be material.
Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized Wire Tapping Now, suppose, Your Honor, the recording is not made by all
and Other Related Violations of Private Communication and Other Purposes," the parties but by some parties and involved not criminal
provides: cases that would be mentioned under section 3 but would
cover, for example civil cases or special proceedings whereby
Sec. 1. It shall be unlawfull for any person, not being a recording is made not necessarily by all the parties but
authorized by all the parties to any private communication or perhaps by some in an effort to show the intent of the parties
spoken word, to tap any wire or cable, or by using any other because the actuation of the parties prior, simultaneous even
device or arrangement, to secretly overhear, intercept, or subsequent to the contract or the act may be indicative of
record such communication or spoken word by using a device their intention. Suppose there is such a recording, would you
commonly known as a dictaphone or dictagraph or say, Your Honor, that the intention is to cover it within the
detectaphone or walkie-talkie or tape recorder, or however purview of this bill or outside?
otherwise described.

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Senator Tañada: That is covered by the purview of this bill, recording of the observations and remarks of a person
Your Honor. without him knowing that it is being taped or recorded,
without him knowing that what is being recorded may be
Senator Padilla: Even if the record should be used not in the used against him, I think it is unfair.
prosecution of offense but as evidence to be used in Civil
Cases or special proceedings? xxx xxx xxx

Senator Tañada: That is right. This is a complete ban on tape (Congression Record, Vol. III, No. 31, p. 584, March 12, 1964)
recorded conversations taken without the authorization of all
the parties. Senator Diokno: Do you understand, Mr. Senator, that under
Section 1 of the bill as now worded, if a party secretly records
Senator Padilla: Now, would that be reasonable, your Honor? a public speech, he would be penalized under Section 1?
Because the speech is public, but the recording is done
Senator Tañada: I believe it is reasonable because it is not secretly.
sporting to record the observation of one without his knowing
it and then using it against him. It is not fair, it is not Senator Tañada: Well, that particular aspect is not
sportsmanlike. If the purpose; Your honor, is to record the contemplated by the bill. It is the communication between
intention of the parties. I believe that all the parties should one person and another person — not between a speaker and
know that the observations are being recorded. a public.

Senator Padilla: This might reduce the utility of recorders. xxx xxx xxx

Senator Tañada: Well no. For example, I was to say that in (Congressional Record, Vol. III, No. 33, p. 626, March 12,
meetings of the board of directors where a tape recording is 1964)
taken, there is no objection to this if all the parties know. It is
but fair that the people whose remarks and observations are xxx xxx xxx
being made should know that the observations are being
recorded. The unambiguity of the express words of the provision, taken together with the
above-quoted deliberations from the Congressional Record, therefore plainly
Senator Padilla: Now, I can understand. supports the view held by the respondent court that the provision seeks to
penalize even those privy to the private communications. Where the law makes
Senator Tañada: That is why when we take statements of no distinctions, one does not distinguish.
persons, we say: "Please be informed that whatever you say
here may be used against you." That is fairness and that is Second, the nature of the conversations is immaterial to a violation of the
what we demand. Now, in spite of that warning, he makes statute. The substance of the same need not be specifically alleged in the
damaging statements against his own interest, well, he information. What R.A. 4200 penalizes are the acts of secretly overhearing,
cannot complain any more. But if you are going to take a intercepting or recording private communications by means of the devices

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enumerated therein. The mere allegation that an individual made a secret significance of man's spiritual nature, of his feelings and of his
recording of a private communication by means of a tape recorder would intellect. They must have known that part of the pleasures
suffice to constitute an offense under Section 1 of R.A. 4200. As the Solicitor and satisfactions of life are to be found in the unaudited, and
General pointed out in his COMMENT before the respondent court: "Nowhere free exchange of communication between individuals — free
(in the said law) is it required that before one can be regarded as a violator, the from every unjustifiable intrusion by whatever means. 17
nature of the conversation, as well as its communication to a third person
should be professed." 14 In Gaanan vs. Intermediate Appellate Court, 18 a case which dealt with the issue
of telephone wiretapping, we held that the use of a telephone extension for
Finally, petitioner's contention that the phrase "private communication" in the purpose of overhearing a private conversation without authorization did
Section 1 of R.A. 4200 does not include "private conversations" narrows the not violate R.A. 4200 because a telephone extension devise was neither among
ordinary meaning of the word "communication" to a point of absurdity. The those "device(s) or arrangement(s)" enumerated therein, 19 following the
word communicate comes from the latin word communicare, meaning "to principle that "penal statutes must be construed strictly in favor of the
share or to impart." In its ordinary signification, communication connotes the accused." 20 The instant case turns on a different note, because the applicable
act of sharing or imparting signification, communication connotes the act of facts and circumstances pointing to a violation of R.A. 4200 suffer from no
sharing or imparting, as in a conversation, 15 or signifies the "process by which ambiguity, and the statute itself explicitly mentions the unauthorized
meanings or thoughts are shared between individuals through a common "recording" of private communications with the use of tape-recorders as
system of symbols (as language signs or gestures)" 16 These definitions are among the acts punishable.
broad enough to include verbal or non-verbal, written or expressive
communications of "meanings or thoughts" which are likely to include the WHEREFORE, because the law, as applied to the case at bench is clear and
emotionally-charged exchange, on February 22, 1988, between petitioner and unambiguous and leaves us with no discretion, the instant petition is hereby
private respondent, in the privacy of the latter's office. Any doubts about the DENIED. The decision appealed from is AFFIRMED. Costs against petitioner.
legislative body's meaning of the phrase "private communication" are,
furthermore, put to rest by the fact that the terms "conversation" and SO ORDERED.
"communication" were interchangeably used by Senator Tañada in his
Explanatory Note to the bill quoted below:

It has been said that innocent people have nothing to fear


from their conversations being overheard. But this statement
ignores the usual nature of conversations as well the
undeniable fact that most, if not all, civilized people have
some aspects of their lives they do not wish to expose.
Free conversations are often characterized by exaggerations,
obscenity, agreeable falsehoods, and the expression of anti-
social desires of views not intended to be taken seriously. The
right to the privacy of communication, among others, has
expressly been assured by our Constitution. Needless to state
here, the framers of our Constitution must have recognized
the nature of conversations between individuals and the

6
Republic of the Philippines That same morning, Laconico telephoned appellant, who is a
SUPREME COURT lawyer, to come to his office and advise him on the
Manila settlement of the direct assault case because his regular
lawyer, Atty. Leon Gonzaga, went on a business trip.
SECOND DIVISION According to the request, appellant went to the office of
Laconico where he was briefed about the problem. (Exhibit
G.R. No. L-69809 October 16, 1986 'D', tsn, April 22, 1982, pp. 4-5).

EDGARDO A. GAANAN, petitioner, When complainant called up, Laconico requested appellant to
vs. secretly listen to the telephone conversation through a
INTERMEDIATE APPELLATE COURT and PEOPLE OF THE telephone extension so as to hear personally the proposed
PHILIPPINES, respondents. conditions for the settlement. Appellant heard complainant
enumerate the following conditions for withdrawal of the
complaint for direct assault.

(a) the P5,000.00 was no longer acceptable, and that the


GUTIERREZ, JR., J.:
figure had been increased to P8,000.00. A breakdown of the
P8,000.00 had been made together with other demands, to
This petition for certiorari asks for an interpretation of Republic Act (RA) No.
wit: (a) P5,000.00 no longer for the teacher Manuel
4200, otherwise known as the Anti-Wiretapping Act, on the issue of whether or
Montebon, but for Atty. Pintor himself in persuading his
not an extension telephone is among the prohibited devices in Section 1 of the
client to withdraw the case for Direct Assault against Atty.
Act, such that its use to overhear a private conversation would constitute
Laconico before the Cebu City Fiscal's Office;
unlawful interception of communications between the two parties using a
telephone line.
(b) Public apology to be made by Atty. Laconico before the
students of Don Bosco Technical High School;
The facts presented by the People and narrated in the respondent court's
decision are not disputed by the petitioner.
(c) Pl,000.00 to be given to the Don Bosco Faculty club;
In the morning of October 22, 1975, complainant Atty. Tito
(d) transfer of son of Atty. Laconico to another school or
Pintor and his client Manuel Montebon were in the living
another section of Don Bosco Technical High School;
room of complainant's residence discussing the terms for the
withdrawal of the complaint for direct assault which they
filed with the Office of the City Fiscal of Cebu against (e) Affidavit of desistance by Atty. Laconico on the
Leonardo Laconico. After they had decided on the proposed Maltreatment case earlier filed against Manuel Montebon at
conditions, complainant made a telephone call to Laconico the Cebu City Fiscal's Office, whereas Montebon's affidavit of
(tsn, August 26, 1981, pp. 3-5). desistance on the Direct Assault Case against Atty. Laconico
to be filed later;

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(f) Allow Manuel Montebon to continue teaching at the Don costs. Not satisfied with the decision, the petitioner appealed to the appellate
Bosco Technical School; court.

(g) Not to divulge the truth about the settlement of the Direct On August 16, 1984, the Intermediate Appellate Court affirmed the decision of
Assault Case to the mass media; the trial court, holding that the communication between the complainant and
accused Laconico was private in nature and, therefore, covered by Rep. Act No.
(h) P2,000.00 attorney s fees for Atty. Pintor. (tsn, August 26, 4200; that the petitioner overheard such communication without the
1981, pp. 47-48). knowledge and consent of the complainant; and that the extension telephone
which was used by the petitioner to overhear the telephone conversation
Twenty minutes later, complainant called up again to ask between complainant and Laconico is covered in the term "device' as provided
Laconico if he was agreeable to the conditions. Laconico in Rep. Act No. 4200.
answered 'Yes'. Complainant then told Laconico to wait for
instructions on where to deliver the money. (tsn, March 10, In this petition for certiorari, the petitioner assails the decision of the appellate
1983, pp. 2-12). court and raises the following issues; (a) whether or not the telephone
conversation between the complainant and accused Laconico was private in
Complainant called up again and instructed Laconico to give nature; (b) whether or not an extension telephone is covered by the term
the money to his wife at the office of the then Department of "device or arrangement" under Rep. Act No. 4200; (c) whether or not the
Public Highways. Laconico who earlier alerted his friend petitioner had authority to listen or overhear said telephone conversation and
Colonel Zulueta of the Criminal Investigation Service of the (d) whether or not Rep. Act No. 4200 is ambiguous and, therefore, should be
Philippine Constabulary, insisted that complainant himself construed in favor of the petitioner.
should receive the money. (tsn, March 10, 1982, pp. 26-33).
When he received the money at the Igloo Restaurant, Section 1 of Rep. Act No. 4200 provides:
complainant was arrested by agents of the Philippine
Constabulary. Section 1. It shall be unlawful for any person, not being
authorized by all the parties to any private communication or
Appellant executed on the following day an affidavit stating spoken word, to tap any wire or cable or by using any other
that he heard complainant demand P8,000.00 for the device or arrangement, to secretly overhear, intercept, or
withdrawal of the case for direct assault. Laconico attached record such communication or spoken word by using a device
the affidavit of appellant to the complainant for commonly known as a dictaphone or dictagraph or
robbery/extortion which he filed against complainant. Since detectaphone or walkie-talkie or tape-recorder, or however
appellant listened to the telephone conversation without otherwise described:
complainant's consent, complainant charged appellant and
Laconico with violation of the Anti-Wiretapping Act. It shall be unlawful for any person, be he a participant or not
in the act or acts penalized in the next preceeding sentence,
After trial on the merits, the lower court, in a decision dated November 22, to knowingly possess any tape record, wire record, disc
1982, found both Gaanan and Laconico guilty of violating Section 1 of Republic record, or any other such record, or copies thereof, of any
Act No. 4200. The two were each sentenced to one (1) year imprisonment with communication or spoken word secured either before or

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after the effective date of this Act in the manner prohibited in certain areas, telephone users often encounter what are called "crossed
by this law; or to replay the same for any other person or lines". An unwary citizzen who happens to pick up his telephone and who
persons; or to communicate the contents thereof, either overhears the details of a crime might hesitate to inform police authorities if he
verbally or in writing, or to furnish transcriptions thereof, knows that he could be accused under Rep. Act 4200 of using his own
whether complete or partial, to any other person: Provided, telephone to secretly overhear the private communications of the would be
that the use of such record or any copies thereof as evidence criminals. Surely the law was never intended for such mischievous results.
in any civil, criminal investigation or trial of offenses
mentioned in Section 3 hereof, shall not be covered by this The main issue in the resolution of this petition, however, revolves around the
prohibition. meaning of the phrase "any other device or arrangement." Is an extension of a
telephone unit such a device or arrangement as would subject the user to
We rule for the petitioner. imprisonment ranging from six months to six years with the accessory penalty
of perpetual absolute disqualification for a public officer or deportation for an
We are confronted in this case with the interpretation of a penal statute and alien? Private secretaries with extension lines to their bosses' telephones are
not a rule of evidence. The issue is not the admissibility of evidence secured sometimes asked to use answering or recording devices to record business
over an extension line of a telephone by a third party. The issue is whether or conversations between a boss and another businessman. Would transcribing a
not the person called over the telephone and his lawyer listening to the recorded message for the use of the boss be a proscribed offense? or for that
conversation on an extension line should both face prison sentences simply matter, would a "party line" be a device or arrangement under the law?
because the extension was used to enable them to both listen to an alleged
attempt at extortion. The petitioner contends that telephones or extension telephones are not
included in the enumeration of "commonly known" listening or recording
There is no question that the telephone conversation between complainant devices, nor do they belong to the same class of enumerated electronic devices
Atty. Pintor and accused Atty. Laconico was "private" in the sense that the contemplated by law. He maintains that in 1964, when Senate Bill No. 9 (later
words uttered were made between one person and another as distinguished Rep. Act No. 4200) was being considered in the Senate, telephones and
from words between a speaker and a public. It is also undisputed that only one extension telephones were already widely used instruments, probably the most
of the parties gave the petitioner the authority to listen to and overhear the popularly known communication device.
caller's message with the use of an extension telephone line. Obviously,
complainant Pintor, a member of the Philippine bar, would not have discussed Whether or not listening over a telephone party line would be punishable was
the alleged demand for an P8,000.00 consideration in order to have his client discussed on the floor of the Senate. Yet, when the bill was finalized into a
withdraw a direct assault charge against Atty. Laconico filed with the Cebu City statute, no mention was made of telephones in the enumeration of devices
Fiscal's Office if he knew that another lawyer was also listening. We have to "commonly known as a dictaphone or dictagraph, detectaphone or walkie
consider, however, that affirmance of the criminal conviction would, in effect, talkie or tape recorder or however otherwise described." The omission was not
mean that a caller by merely using a telephone line can force the listener to a mere oversight. Telephone party lines were intentionally deleted from the
secrecy no matter how obscene, criminal, or annoying the call may be. It would provisions of the Act.
be the word of the caller against the listener's.
The respondent People argue that an extension telephone is embraced and
Because of technical problems caused by the sensitive nature of electronic covered by the term "device" within the context of the aforementioned law
equipment and the extra heavy loads which telephone cables are made to carry because it is not a part or portion of a complete set of a telephone apparatus. It

9
is a separate device and distinct set of a movable apparatus consisting of a wire Consequently, the phrase 'all liabilities or obligations of the
and a set of telephone receiver not forming part of a main telephone set which decedent' used in paragraph 5(c) and 7(d) should be then
can be detached or removed and can be transferred away from one place to restricted only to those listed in the Inventory and should not
another and to be plugged or attached to a main telephone line to get the be construed as to comprehend all other obligations of the
desired communication corning from the other party or end. decedent. The rule that 'particularization followed by a
general expression will ordinarily be restricted to the former'
The law refers to a "tap" of a wire or cable or the use of a "device or is based on the fact in human experience that usually the
arrangement" for the purpose of secretly overhearing, intercepting, or minds of parties are addressed specially to the
recording the communication. There must be either a physical interruption particularization, and that the generalities, though broad
through a wiretap or the deliberate installation of a device or arrangement in enough to comprehend other fields if they stood alone, are
order to overhear, intercept, or record the spoken words. used in contemplation of that upon which the minds of the
parties are centered. (Hoffman v. Eastern Wisconsin R., etc.,
An extension telephone cannot be placed in the same category as a Co., 134 Wis. 603, 607, 115 NW 383, cited in Francisco,
dictaphone, dictagraph or the other devices enumerated in Section 1 of RA No. Revised Rules of Court (Evidence), 1973 ed, pp. 180-181).
4200 as the use thereof cannot be considered as "tapping" the wire or cable of
a telephone line. The telephone extension in this case was not installed for that Hence, the phrase "device or arrangement" in Section 1 of RA No. 4200,
purpose. It just happened to be there for ordinary office use. It is a rule in although not exclusive to that enumerated therein, should be construed to
statutory construction that in order to determine the true intent of the comprehend instruments of the same or similar nature, that is, instruments the
legislature, the particular clauses and phrases of the statute should not be use of which would be tantamount to tapping the main line of a telephone. It
taken as detached and isolated expressions, but the whole and every part refers to instruments whose installation or presence cannot be presumed by
thereof must be considered in fixing the meaning of any of its parts. (see the party or parties being overheard because, by their very nature, they are not
Commissioner of Customs v. Esso Estandard Eastern, Inc., 66 SCRA 113,120). of common usage and their purpose is precisely for tapping, intercepting or
recording a telephone conversation.
In the case of Empire Insurance Com any v. Rufino (90 SCRA 437, 443-444), we
ruled: An extension telephone is an instrument which is very common especially now
when the extended unit does not have to be connected by wire to the main
Likewise, Article 1372 of the Civil Code stipulates that telephone but can be moved from place ' to place within a radius of a kilometer
'however general the terms of a contract may be, they shall or more. A person should safely presume that the party he is calling at the
not be understood to comprehend things that are distinct other end of the line probably has an extension telephone and he runs the risk
and cases that are different from those upon which the of a third party listening as in the case of a party line or a telephone unit which
parties intended to agree.' Similarly, Article 1374 of the same shares its line with another. As was held in the case of Rathbun v. United
Code provides that 'the various stipulations of a contract shall States (355, U.S. 107, 2 L Ed 2d 137-138):
be interpreted together, attributing to the doubtful ones that
sense which may result from all of them taken jointly. Common experience tells us that a call to a particular
telephone number may cause the bell to ring in more than
xxx xxx xxx one ordinarily used instrument. Each party to a telephone
conversation takes the risk that the other party may have an

10
extension telephone and may allow another to overhear the contemplate the inclusion of an extension telephone as a prohibited device or
conversation. When such takes place there has been no arrangement" but of greater importance, they were more concerned with
violation of any privacy of which the parties may complain. penalizing the act of recording than the act of merely listening to a telephone
Consequently, one element of 605, interception, has not conversation.
occurred.
xxx xxx xxx
In the same case, the Court further ruled that the conduct of the party would
differ in no way if instead of repeating the message he held out his hand-set so Senator Tañada. Another possible objection
that another could hear out of it and that there is no distinction between that to that is entrapment which is certainly
sort of action and permitting an outsider to use an extension telephone for the objectionable. It is made possible by special
same purpose. amendment which Your Honor may
introduce.
Furthermore, it is a general rule that penal statutes must be construed strictly
in favor of the accused. Thus, in case of doubt as in the case at bar, on whether Senator Diokno.Your Honor, I would feel
or not an extension telephone is included in the phrase "device or that entrapment would be less possible
arrangement", the penal statute must be construed as not including an with the amendment than without it,
extension telephone. In the case of People v. Purisima, 86 SCRA 542, 562, we because with the amendment the evidence
explained the rationale behind the rule: of entrapment would only consist of
government testimony as against the
American jurisprudence sets down the reason for this rule to testimony of the defendant. With this
be the tenderness of the law of the rights of individuals; the amendment, they would have the right, and
object is to establish a certain rule by conformity to which the government officials and the person in
mankind would be safe, and the discretion of the court fact would have the right to tape record
limited. (United States v. Harris, 177 US 305, 44 L Ed 780, 20 S their conversation.
Ct 609; Braffith v. Virgin Islands (CA3) 26 F2d 646; Caudill v.
State, 224 Ind 531, 69 NE2d; Jennings v. Commonwealth, 109 Senator Tañada. In case of entrapment, it
VA 821,63 SE 1080, all cited in 73 Am Jur 2d 452). The would be the government.
purpose is not to enable a guilty person to escape
punishment through a technicality but to provide a precise Senator Diokno. In the same way, under this
definition of forbidden acts." (State v. Zazzaro, 20 A 2d 737, provision, neither party could record and,
quoted in Martin's Handbook on Statutory Construction, Rev. therefore, the court would be limited to
Ed. pp. 183-184). saying: "Okay, who is more credible, the
police officers or the defendant?" In these
In the same case of Purisima, we also ruled that on the construction or cases, as experienced lawyers, we know
interpretation of a legislative measure, the primary rule is to search for and that the Court go with the peace offices.
determine the intent and spirit of the law. A perusal of the Senate
Congressional Records will show that not only did our lawmakers not

11
(Congressional Record, Vol. 111, No. 33, p. WHEREFORE, the petition is GRANTED. The decision of the then Intermediate
628, March 12, 1964). Appellate Court dated August 16, 1984 is ANNULLED and SET ASIDE. The
petitioner is hereby ACQUITTED of the crime of violation of Rep. Act No. 4200,
xxx xxx xxx otherwise known as the Anti-Wiretapping Act.

Senator Diokno. The point I have in mind is SO ORDERED.


that under these conditions, with an agent
outside listening in, he could falsify the
testimony and there is no way of checking
it. But if you allow him to record or make a
recording in any form of what is happening,
then the chances of falsifying the evidence
is not very much.

Senator Tañada. Your Honor, this bill is not


intended to prevent the presentation of
false testimony. If we could devise a way by
which we could prevent the presentation of
false testimony, it would be wonderful. But
what this bill intends to prohibit is the use
of tape record and other electronic devices
to intercept private conversations which
later on will be used in court.

(Congressional Record, Vol. III, No. 33,


March 12, 1964, p. 629).

It can be readily seen that our lawmakers intended to discourage, through


punishment, persons such as government authorities or representatives of
organized groups from installing devices in order to gather evidence for use in
court or to intimidate, blackmail or gain some unwarranted advantage over the
telephone users. Consequently, the mere act of listening, in order to be
punishable must strictly be with the use of the enumerated devices in RA No.
4200 or others of similar nature. We are of the view that an extension
telephone is not among such devices or arrangements.

12
SECOND DIVISION properties to Dr. Martin and to pay him P5,000.00, as nominal damages;
P5,000.00, as moral damages and attorneys fees; and to pay the costs of the
suit. The writ of preliminary injunction earlier issued was made final and
petitioner Cecilia Zulueta and her attorneys and representatives were enjoined
[G.R. No. 107383. February 20, 1996.] from using or submitting/admitting as evidence the documents and papers in
question. On appeal, the Court of Appeals affirmed the decision of the Regional
Trial Court. Hence this petition.

CECILIA ZULUETA, petitioner, vs. COURT OF APPEALS and ALFREDO There is no question that the documents and papers in question belong to
MARTIN, respondents. private respondent, Dr. Alfredo Martin, and that they were taken by his wife,
the herein petitioner, without his knowledge and consent. For that reason, the
trial court declared the documents and papers to be properties of private
DECISION
respondent, ordered petitioner to return them to private respondent and
MENDOZA, J.: enjoined her from using them in evidence. In appealing from the decision of
the Court of Appeals affirming the trial courts decision, petitioners only ground
This is a petition to review the decision of the Court of Appeals, affirming is that in Alfredo Martin v. Alfonso Felix, Jr.,1 this Court ruled that the
the decision of the Regional Trial Court of Manila (Branch X) which ordered documents and papers (marked as Annexes A-i to J-7 of respondents comment
petitioner to return documents and papers taken by her from private in that case) were admissible in evidence and, therefore, their use by
respondents clinic without the latters knowledge and consent. petitioners attorney, Alfonso Felix, Jr., did not constitute malpractice or gross
misconduct. For this reason it is contended that the Court of Appeals erred in
The facts are as follows: affirming the decision of the trial court instead of dismissing private
respondents complaint.
Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin.
On March 26, 1982, petitioner entered the clinic of her husband, a doctor of Petitioners contention has no merit. The case against Atty. Felix, Jr. was
medicine, and in the presence of her mother, a driver and private respondents for disbarment. Among other things, private respondent, Dr. Alfredo Martin, as
secretary, forcibly opened the drawers and cabinet in her husbands clinic and complainant in that case, charged that in using the documents in evidence,
took 157 documents consisting of private correspondence between Dr. Martin Atty. Felix, Jr. committed malpractice or gross misconduct because of the
and his alleged paramours, greetings cards, cancelled checks, diaries, Dr. injunctive order of the trial court. In dismissing the complaint against Atty.
Martins passport, and photographs. The documents and papers were seized for Felix, Jr., this Court took note of the following defense of Atty. Felix, Jr. which it
use in evidence in a case for legal separation and for disqualification from the found to be impressed with merit:2
practice of medicine which petitioner had filed against her husband.
On the alleged malpractice or gross misconduct of respondent [Alfonso
Dr. Martin brought this action below for recovery of the documents and Felix, Jr.], he maintains that:
papers and for damages against petitioner. The case was filed with the Regional
Trial Court of Manila, Branch X, which, after trial, rendered judgment for xxx xxx xxx
private respondent, Dr. Alfredo Martin, declaring him the capital/exclusive
owner of the properties described in paragraph 3 of plaintiffs Complaint or 4. When respondent refiled Cecilias case for legal separation before the Pasig
those further described in the Motion to Return and Suppress and ordering Regional Trial Court, there was admittedly an order of the Manila Regional Trial
Cecilia Zulueta and any person acting in her behalf to immediately return the Court prohibiting Cecilia from using the documents Annex A-I to J-7. On

13
September 6, 1983, however having appealed the said order to this Court on a [from a] court or when public safety or order requires otherwise, as prescribed
petition for certiorari, this Court issued a restraining order on aforesaid date by law.4 Any violation of this provision renders the evidence obtained
which order temporarily set aside the order of the trial court. Hence, during the inadmissible for any purpose in any proceeding.5
enforceability of this Courts order, respondents request for petitioner to admit
The intimacies between husband and wife do not justify any one of them
the genuineness and authenticity of the subject annexes cannot be looked
in breaking the drawers and cabinets of the other and in ransacking them for
upon as malpractice. Notably, petitioner Dr. Martin finally admitted the truth
and authenticity of the questioned annexes. At that point in time, would it have any telltale evidence of marital infidelity. A person, by contracting marriage,
does not shed his/her integrity or his right to privacy as an individual and the
been malpractice for respondent to use petitioners admission as evidence
constitutional protection is ever available to him or to her.
against him in the legal separation case pending in the Regional Trial Court of
Makati? Respondent submits it is- not malpractice. The law insures absolute freedom of communication between the
spouses by making it privileged. Neither husband nor wife may testify for or
Significantly, petitioners admission was done not thru his counsel but by against the other without the consent of the affected spouse while the
Dr. Martin himself under oath. Such verified admission constitutes an affidavit, marriage subsists.6 Neither may be examined without the consent of the other
and, therefore, receivable in evidence against him. Petitioner became bound by as to any communication received in confidence by one from the other during
his admission. For Cecilia to avail herself of her husbands admission and use the marriage, save for specified exceptions.7 But one thing is freedom of
the same in her action for legal separation cannot be treated as malpractice. communication; quite another is a compulsion for each one to share what one
knows with the other. And this has nothing to do with the duty of fidelity that
Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to
each owes to the other.
no more than a declaration that his use of the documents and papers for the
purpose of securing Dr. Martins admission as to their genuiness and WHEREFORE, the petition for review is DENIED for lack of merit.
authenticity did not constitute a violation of the injunctive order of the trial
court. By no means does the decision in that case establish the admissibility of SO ORDERED.
the documents and papers in question. Regalado (Chairman), Romero, and Puno, JJ., concur.
It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the
charge of violating the writ of preliminary injunction issued by the trial court, it
was only because, at the time he used the documents and papers, enforcement
of the order of the trial court was temporarily restrained by this Court. The TRO
issued by this Court was eventually lifted as the petition for certiorari filed by
petitioner against the trial courts order was dismissed and, therefore, the
prohibition against the further use of the documents and papers became
effective again.
Indeed the documents and papers in question are inadmissible in
evidence. The constitutional injunction declaring the privacy of communication
and correspondence [to be] inviolable3 is no less applicable simply because it is
the wife (who thinks herself aggrieved by her husbands infidelity) who is the
party against whom the constitutional provision is to be enforced. The only
exception to the prohibition in the Constitution is if there is a lawful order

14
EN BANC

IN THE MATTER OF THE PETITION G.R. No. 160792


FOR HABEAS CORPUS OF DECISION
CAPT. GARY ALEJANO, PN (MARINES)
CAPT. NICANOR FAELDON, PN (MARINES)
CAPT. GERARDO GAMBALA, PA CARPIO, J.:
LT. SG JAMES LAYUG, PN
CAPT. MILO MAESTRECAMPO, PA
LT. SG ANTONIO TRILLANES IV, PN
HOMOBONO ADAZA, and
ROBERTO RAFAEL (ROEL) PULIDO, The Case
Petitioners,
Present:
Davide, Jr., C.J., This petition for review[1] seeks to nullify the Decision[2] of the Court of
Puno,
Panganiban, Appeals dated 17 September 2003 and Resolution dated 13 November 2003 in
Quisumbing,
CA-G.R. SP No. 78545. The Court of Appeals Decision and Resolution dismissed
Ynares-Santiago,
Sandoval-Gutierrez, the petition for habeas corpus filed by lawyers Homobono Adaza and Roberto
- versus - Carpio,
Austria-Martinez, Rafael Pulido (petitioners) on behalf of their detained clients Capt. Gary Alejano
Corona, (PN-Marines), Capt. Nicanor Faeldon (PN-Marines), Capt. Gerardo Gambala
Carpio Morales,
Callejo, Sr., (PA), Lt. SG James Layug (PN), Capt. Milo Maestrecampo (PA), and Lt. SG
Azcuna,
Tinga, Antonio Trillanes IV (PN) (detainees).
Chico-Nazario, and
Garcia, JJ. Petitioners named as respondent Gen. Pedro Cabuay (Gen. Cabuay),
GEN. PEDRO CABUAY,
GEN. NARCISO ABAYA, Chief of the Intelligence Service of the Armed Forces of the Philippines (ISAFP),
SEC. ANGELO REYES, and Promulgated:
SEC. ROILO GOLEZ, who has custody of the detainees. Petitioners impleaded Gen. Narciso Abaya
Respondents. August 25, 2005 (Gen. Abaya), Sec. Angelo Reyes and Roilo Golez, who are respectively the Chief

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x of Staff of the Armed Forces of the Philippines (AFP), Secretary of National

15
Defense and National Security Adviser, because they have command civilian authorities were investigating the soldiers involvement in the Oakwood

responsibility over Gen. Cabuay. incident.

On 1 August 2003, government prosecutors filed an Information for coup


Antecedent Facts detat with the Regional Trial Court of Makati City, Branch 61, against the
soldiers involved in the 27 July 2003 Oakwood incident. The government

prosecutors accused the soldiers of coup detat as defined and penalized under
Early morning of 27 July 2003, some 321 armed soldiers, led by the now Article 134-A of the Revised Penal Code of the Philippines, as amended. The
detained junior officers, entered and took control of the Oakwood Premier case was docketed as Criminal Case No. 03-2784. The trial court later issued the
Luxury Apartments (Oakwood), an upscale apartment complex, located in the Commitment Orders giving custody of junior officers Lt. SG Antonio Trillanes IV
business district of Makati City. The soldiers disarmed the security officers of (Trillanes) and Capt. Gerardo Gambala to the Commanding Officers of ISAFP.
Oakwood and planted explosive devices in its immediate surroundings. The
junior officers publicly renounced their support for the administration and On 2 August 2003, Gen. Abaya issued a directive to all Major Service
called for the resignation of President Gloria Macapagal-Arroyo and several
Commanders to take into custody the military personnel under their command
cabinet members.

who took part in the Oakwood incident except the detained junior officers who
Around 7:00 p.m. of the same date, the soldiers voluntarily

surrendered to the authorities after several negotiations with government were to remain under the custody of ISAFP.

emissaries. The soldiers later defused the explosive devices they had earlier
On 11 August 2003, petitioners filed a petition for habeas corpus with the
planted. The soldiers then returned to their barracks.
Supreme Court. On 12 August 2003, the Court issued a Resolution, which

On 31 July 2003, Gen. Abaya, as the Chief of Staff of the AFP, issued a directive resolved to:

to all the Major Service Commanders to turn over custody of ten junior officers (a) ISSUE the WRIT OF HABEAS CORPUS; (b) require
respondents to make a RETURN of the writ on Monday, 18
to the ISAFP Detention Center. The transfer took place while military and August 2003, at 10:00 a.m. before the Court of Appeals; (c)

16
refer the case to the Court of Appeals for RAFFLE among the
Justices thereof for hearing, further proceedings and decision On 17 September 2003, the Court of Appeals rendered its decision
thereon, after which a REPORT shall be made to this Court dismissing the petition. Nonetheless, the appellate court ordered Gen. Cabuay,
within ten (10) days from promulgation of the decision.[3]
who was in charge of implementing the regulations in the ISAFP Detention

Center, to uphold faithfully the rights of the detainees in accordance with

Standing Operations Procedure No. 0263-04. The appellate court directed Gen.
Thus, the Court issued a Writ of Habeas Corpus dated 12 August 2003
Cabuay to adhere to his commitment made in court regarding visiting hours

directing respondents to make a return of the writ and to appear and produce and the detainees right to exercise for two hours a day.

the persons of the detainees before the Court of Appeals on the scheduled
The Ruling of the Court of Appeals
date for hearing and further proceedings.

On the same date, the detainees and their other co-accused filed with
The Court of Appeals found the petition bereft of merit. The appellate
the Regional Trial Court of Makati City a Motion for Preliminary Investigation, court pointed out that the detainees are already charged of coup detat before

the Regional Trial Court of Makati. Habeas corpus is unavailing in this case as
which the trial court granted.
the detainees confinement is under a valid indictment, the legality of which the
detainees and petitioners do not even question.
On 18 August 2003, pursuant to the directives of the Court,

respondents submitted their Return of the Writ and Answer to the petition and The Court of Appeals recognized that habeas corpus may also be the

appropriate remedy to assail the legality of detention if there is a deprivation of


produced the detainees before the Court of Appeals during the scheduled
a constitutional right. However, the appellate court held that the constitutional
hearing. After the parties filed their memoranda on 28 August 2003, the rights alleged to have been violated in this case do not directly affect the

detainees liberty. The appellate court ruled that the regulation of the detainees
appellate court considered the petition submitted for decision.
right to confer with their counsels is reasonable under the circumstances.

17
A. THE COURT OF APPEALS ERRED IN
REVIEWING AND REVERSING A DECISION OF THE
The appellate court declared that while the opening and reading of SUPREME COURT;
Trillanes letter is an abhorrent violation of his right to privacy of
B. THE COURT OF APPEALS ERRED IN NOT ACKNOWLEDGING
communication, this does not justify the issuance of a writ of habeas corpus. THE APPROPRIATENESS OF THE REMEDY
PETITIONERS SEEK; and
The violation does not amount to illegal restraint, which is the proper subject
of habeas corpus proceedings.

The Court of Appeals thus dismissed the petition and ordered Gen. C. THE COURT OF APPEALS ERRED IN ASSERTING THE
LEGALITY OF THE CONDITIONS OF THE DETAINED
Cabuay to fulfill the promise he made in open court to uphold the visiting hours
JUNIOR OFFICERS DETENTION.[5]
and the right of the detainees to exercise for two hours a day. The dispositive

portion of the appellate courts decision reads:

WHEREFORE, the foregoing considered, the instant The Ruling of the Court
petition is hereby DISMISSED. Respondent Cabuay is hereby
ORDERED to faithfully adhere to his commitment to uphold
the constitutional rights of the detainees in accordance with
the Standing Operations Procedure No. 0263-04 regarding
visiting hours and the right of the detainees to exercise for
two (2) hours a day. The petition lacks merit.

SO ORDERED.[4]
Petitioners claim that the Courts 12 August 2003 Order granted the

petition and the Court remanded the case to the Court of Appeals only for a

factual hearing. Petitioners thus argue that the Courts Order had already
The Issues
foreclosed any question on the propriety and merits of their petition.

Petitioners claim is baseless. A plain reading of the 12 August 2003


Petitioners raise the following issues for resolution:
Order shows that the Court referred to the Court of Appeals the duty to inquire
into the cause of the junior officers detention. Had the Court ruled for the

18
detainees release, the Court would not have referred the hearing of the regulations and conditions in the ISAFP Detention Center. The remedy

petition to the Court of Appeals. The Court would have forthwith released the of habeas corpus has one objective: to inquire into the cause of detention of a

detainees had the Court upheld petitioners cause. person.[8] The purpose of the writ is to determine whether a person is being

illegally deprived of his liberty.[9] If the inquiry reveals that the detention is

illegal, the court orders the release of the person. If, however, the detention is
In a habeas corpus petition, the order to present an individual before proven lawful, then the habeas corpus proceedings terminate. The use
[6]
the court is a preliminary step in the hearing of the petition. The respondent of habeas corpus is thus very limited. It is not a writ of error.[10] Neither can it
must produce the person and explain the cause of his detention. [7] However, substitute for an appeal.[11]
this order is not a ruling on the propriety of the remedy or on the substantive

matters covered by the remedy. Thus, the Courts order to the Court of Appeals Nonetheless, case law has expanded the writs application to

to conduct a factual hearing was not an affirmation of the propriety of the circumstances where there is deprivation of a persons constitutional rights. The

remedy of habeas corpus. writ is available where a person continues to be unlawfully denied of one or

For obvious reasons, the duty to hear the petition for habeas more of his constitutional freedoms, where there is denial of due process,

corpus necessarily includes the determination of the propriety of the remedy. If where the restraints are not merely involuntary but are also unnecessary, and

a court finds the alleged cause of the detention unlawful, then it should issue where a deprivation of freedom originally valid has later become arbitrary.[12]

the writ and release the detainees. In the present case, after hearing the case,
However, a mere allegation of a violation of ones constitutional right is
the Court of Appeals found that habeas corpus is inapplicable. After actively
not sufficient. The courts will extend the scope of the writ only if any of the
participating in the hearing before the Court of Appeals, petitioners are
following circumstances is present: (a) there is a deprivation of a constitutional
estopped from claiming that the appellate court had no jurisdiction to inquire
right resulting in the unlawful restraint of a person; (b) the court had no
into the merits of their petition.
jurisdiction to impose the sentence; or (c) an excessive penalty is imposed and

The Court of Appeals correctly ruled that the remedy of habeas such sentence is void as to the excess.[13] Whatever situation the petitioner

corpus is not the proper remedy to address the detainees complaint against the invokes, the threshold remains high. The violation of constitutional right must
be sufficient to void the entire proceedings.[14]

19
rights of detainees and the duties of detention officers, expressly recognizes
Petitioners admit that they do not question the legality of the
the power of the detention officer to adopt and implement reasonable
detention of the detainees. Neither do they dispute the lawful indictment of
measures to secure the safety of the detainee and prevent his escape. Section
the detainees for criminal and military offenses. What petitioners bewail is the
4(b) of RA 7438 provides:
regulation adopted by Gen. Cabuay in the ISAFP Detention Center preventing
Section 4. Penalty Clause. a) x x x
petitioners as lawyers from seeing the detainees their clients any time of the

day or night. The regulation allegedly curtails the detainees right to counsel and b) Any person who obstructs, prevents or prohibits any lawyer,
any member of the immediate family of a person arrested,
violates Republic Act No. 7438 (RA 7438).[15] Petitioners claim that the detained or under custodial investigation, or any medical
doctor or priest or religious minister or by his counsel, from
regulated visits made it difficult for them to prepare for the important hearings
visiting and conferring privately chosen by him or by any
before the Senate and the Feliciano Commission. member of his immediate family with him, or from examining
and treating him, or from ministering to his spiritual needs, at
any hour of the day or, in urgent cases, of the night shall suffer
Petitioners also point out that the officials of the ISAFP Detention the penalty of imprisonment of not less than four (4) years nor
more than six (6) years, and a fine of four thousand pesos
Center violated the detainees right to privacy of communication when the
(P4,000.00).
ISAFP officials opened and read the personal letters of Trillanes and Capt. Milo
The provisions of the above Section notwithstanding, any
Maestrecampo (Maestrecampo). Petitioners further claim that the ISAFP security officer with custodial responsibility over any detainee
officials violated the detainees right against cruel and unusual punishment or prisoner may undertake such reasonable measures as may
be necessary to secure his safety and prevent his escape.
when the ISAFP officials prevented the detainees from having contact with (Emphasis supplied)

their visitors. Moreover, the ISAFP officials boarded up with iron bars and

plywood slabs the iron grills of the detention cells, limiting the already poor True, Section 4(b) of RA 7438 makes it an offense to prohibit a lawyer

light and ventilation in the detainees cells. from visiting a detainee client at any hour of the day or, in urgent cases, of the

night. However, the last paragraph of the same Section 4(b) makes the express
Pre-trial detainees do not forfeit their constitutional rights upon

confinement.[16] However, the fact that thedetainees are confined makes their qualification that notwithstanding the provisions of Section 4(b), the detention

rights more limited than those of the public.[17] RA 7438, which specifies the

20
officer has the power to undertake such reasonable measures as may be of the regulation is not to render ineffective the right to counsel, but to secure

necessary to secure the safety of the detainee and prevent his escape.
the safety and security of all detainees. American cases are instructive on the

The last paragraph of Section 4(b) of RA 7438 prescribes a clear standards to determine whether regulations on pre-trial confinement are

standard. The regulations governing a detainees confinement must be permissible.

reasonable measures x x x to secure his safety and prevent his escape. Thus,
In Bell v. Wolfish,[18] the United States (U.S.) Supreme Court held that
the regulations must be reasonably connected to the governments objective of
regulations must be reasonably related to maintaining security and must not be
securing the safety and preventing the escape of the detainee. The law grants excessive in achieving that purpose. Courts will strike down a restriction that is

the detention officer the authority to undertake such reasonable measures or arbitrary and purposeless.[19] However, Bell v. Wolfish expressly discouraged

regulations. courts from skeptically questioning challenged restrictions in detention and


prison facilities.[20] The U.S. Supreme Court commanded the courts to afford
Petitioners contend that there was an actual prohibition of the administrators wide-ranging deference in implementing policies to maintain
detainees right to effective representation when petitioners visits were limited institutional security.[21]
by the schedule of visiting hours. Petitioners assert that the violation of the

detainees rights entitle them to be released from detention. In our jurisdiction, the last paragraph of Section 4(b) of RA 7438

provides the standard to make regulations in detention centers allowable: such

Petitioners contention does not persuade us. The schedule of visiting reasonable measures as may be necessary to secure the detainees safety and

prevent his escape. In the present case, the visiting hours accorded to the
hours does not render void the detainees indictment for criminal and military
lawyers of the detainees are reasonably connected to the legitimate purpose of

offenses to warrant the detainees release from detention. The ISAFP officials securing the safety and preventing the escape of all detainees.

did not deny, but merely regulated, the detainees right to counsel. The purpose

21
While petitioners may not visit the detainees any time they want, the inevitably interferes with a detainees desire to live comfortably. [24] The fact

fact that the detainees still have face-to-face meetings with their lawyers on that the restrictions inherent in detention intrude into the detainees desire to

a daily basis clearly shows that there is no impairment of detainees right to live comfortably does not convert those restrictions into punishment. [25] It is

counsel.Petitioners as counsels could visit their clients between 8:00 a.m. and when the restrictions are arbitrary and purposeless that courts will infer intent

5:00 p.m. with a lunch break at 12:00 p.m. The visiting hours are regular to punish.[26]Courts will also infer intent to punish even if the restriction seems

business hours, the same hours when lawyers normally entertain clients in to be related rationally to the alternative purpose if the restriction appears

their law offices. Clearly, the visiting hours pass the standard of excessive in relation to that purpose.[27] Jail officials are thus not required to

reasonableness. Moreover, in urgent cases, petitioners could always seek use the least restrictive security measure.[28] They must only refrain from

permission from the ISAFP officials to confer with their clients beyond the implementing a restriction that appears excessive to the purpose it serves. [29]

visiting hours.
We quote Bell v. Wolfish:
The scheduled visiting hours provide reasonable access to the One further point requires discussion. The
detainees, giving petitioners sufficient time to confer with the detainees. The petitioners assert, and respondents concede, that the
essential objective of pretrial confinement is to insure the
detainees right to counsel is not undermined by the scheduled visits. Even in detainees presence at trial. While this interest undoubtedly
justifies the original decision to confine an individual in some
the hearings before the Senate and the Feliciano Commission,[22] petitioners
manner, we do not accept respondents argument that the
were given time to confer with the detainees, a fact that petitioners Governments interest in ensuring a detainees presence at
trial is the only objective that may justify restraints and
themselves admit.[23] Thus, at no point were the detainees denied their right to conditions once the decision is lawfully made to confine a
person. If the government could confine or otherwise infringe
counsel.
the liberty of detainees only to the extent necessary to
ensure their presence at trial, house arrest would in the end
Petitioners further argue that the bars separating the detainees from be the only constitutionally justified form of detention. The
Government also has legitimate interests that stem from its
their visitors and the boarding of the iron grills in their cells with plywood need to manage the facility in which the individual is
amount to unusual and excessive punishment. This argument fails to impress detained. These legitimate operational concerns may require
administrative measures that go beyond those that are,
us. Bell v. Wolfish pointed out that while a detainee may not be punished prior strictly speaking, necessary to ensure that the detainee shows
up at trial. For example, the Government must be able to
to an adjudication of guilt in accordance with due process of law, detention

22
take steps to maintain security and order at the institution
and make certain no weapons or illicit drugs reach effect escapes.[35] Contact visits also leave the jail vulnerable to visitors
detainees.Restraints that are reasonably related to the smuggling in weapons, drugs, and other contraband.[36] The restriction on
institutions interest in maintaining jail security do not,
without more, constitute unconstitutional punishment, even contact visits was imposed even on low-risk detainees as they could also
if they are discomforting and are restrictions that the
potentially be enlisted to help obtain contraband and weapons. [37] The security
detainee would not have experienced had he been released
while awaiting trial. We need not here attempt to detail the consideration in the imposition of blanket restriction on contact visits was ruled
precise extent of the legitimate governmental interests that
may justify conditions or restrictions of pretrial detention. It to outweigh the sentiments of the detainees.[38]
is enough simply to recognize that in addition to ensuring the
detainees presence at trial, the effective management of the
Block v. Rutherford held that the prohibition of contact visits bore a
detention facility once the individual is confined is a valid
objective that may justify imposition of conditions and rational connection to the legitimate goal of internal security.[39] This case
restrictions of pretrial detention and dispel any inference that
such restrictions are intended as punishment.[30] reaffirmed the hands-off doctrine enunciated in Bell v. Wolfish, a form of

judicial self-restraint, based on the premise that courts should decline


jurisdiction over prison matters in deference to administrative expertise. [40]
An action constitutes a punishment when (1) that action causes the
In the present case, we cannot infer punishment from the separation
inmate to suffer some harm or disability, and (2) the purpose of the action is to
of the detainees from their visitors by iron bars, which is merely a limitation on
punish the inmate.[31] Punishment also requires that the harm or disability be
contact visits. The iron bars separating the detainees from their visitors prevent
significantly greater than, or be independent of, the inherent discomforts of
direct physical contact but still allow the detainees to have visual, verbal, non-
confinement.[32]
verbal and limited physical contact with their visitors. The arrangement is not
Block v. Rutherford,[33] which reiterated Bell v. Wolfish, upheld the unduly restrictive. In fact, it is not even a strict non-contact visitation regulation
blanket restriction on contact visits as this practice was reasonably related to like in Block v. Rutherford. The limitation on the detainees physical contacts
maintaining security. The safety of innocent individuals will be jeopardized if with visitors is a reasonable, non-punitive response to valid security concerns.
they are exposed to detainees who while not yet convicted are awaiting trial
The boarding of the iron grills is for the furtherance of security within
for serious, violent offenses and may have prior criminal conviction. [34] Contact
the ISAFP Detention Center. This measureintends to fortify the individual cells
visits make it possible for the detainees to hold visitors and jail staff hostage to

23
and to prevent the detainees from passing on contraband and weapons from Constitution prohibits the infringement of a citizens privacy rights unless

one cell to another. The boarded grills ensure security and prevent disorder authorized by law. The Solicitor General does not deny that the ISAFP officials

and crime within the facility. The diminished illumination and ventilation are opened the letters.

but discomforts inherent in the fact of detention, and do not constitute Courts in the U.S. have generally permitted prison officials to open and

punishments on the detainees. read all incoming and outgoing mail of convicted prisoners to prevent the

We accord respect to the finding of the Court of Appeals that the smuggling of contraband into the prison facility and to avert coordinated

conditions in the ISAFP Detention Center are not inhuman, degrading and cruel. escapes.[41] Even in the absence of statutes specifically allowing prison

Each detainee, except for Capt. Nicanor Faeldon and Capt. Gerardo Gambala, is authorities from opening and inspecting mail, such practice was upheld based

confined in separate cells, unlike ordinary cramped detention cells. The on the principle of civil deaths.[42] Inmates were deemed to have no right to

detainees are treated well and given regular meals. The Court of Appeals noted correspond confidentially with anyone. The only restriction placed upon prison

that the cells are relatively clean and livable compared to the conditions now authorities was that the right of inspection should not be used to delay

prevailing in the city and provincial jails, which are congested with detainees. unreasonably the communications between the inmate and his lawyer. [43]

The Court of Appeals found the assailed measures to be reasonable considering


Eventually, the inmates outgoing mail to licensed attorneys, courts,
that the ISAFP Detention Center is a high-risk detention facility. Apart from the
and court officials received respect.[44] The confidential correspondences could
soldiers, a suspected New Peoples Army (NPA) member and two suspected Abu
not be censored.[45] The infringement of such privileged communication was
Sayyaf members are detained in the ISAFP Detention Center.
held to be a violation of the inmates First Amendment rights. [46] A prisoner has
We now pass upon petitioners argument that the officials of the ISAFP a right to consult with his attorney in absolute privacy, which right is not

Detention Center violated the detainees right to privacy when the ISAFP abrogated by the legitimate interests of prison authorities in the administration

officials opened and read the letters handed by detainees Trillanes and of the institution.[47] Moreover, the risk is small that attorneys will conspire in
Maestrecampo to one of the petitioners for mailing. Petitioners point out that plots that threaten prison security.[48]

the letters were not in a sealed envelope but simply folded because there were
American jurisprudence initially made a distinction between the
no envelopes in the ISAFP Detention Center. Petitioners contend that the
privacy rights enjoyed by convicted inmates and pre-trial detainees. The case

24
x x x If prison officials had to check in each case whether a
of Palmigiano v. Travisono[49] recognized that pre-trial detainees, unlike communication was from an attorney before opening it for
convicted prisoners, enjoy a limited right of privacy in communication. inspection, a near impossible task of administration would be
imposed. We think it entirely appropriate that the State require
Censorship of pre-trial detainees mail addressed to public officials, courts and any such communications to be specially marked as originating
from an attorney, with his name and address being given, if they
counsel was held impermissible. While incoming mail may be inspected for
are to receive special treatment. It would also certainly be
contraband and read in certain instances, outgoing mail of pre-trial detainees permissible that prison authorities require that a lawyer desiring
to correspond with a prisoner, first identify himself and his client
could not be inspected or read at all. to the prison officials, to assure that the letters marked
privileged are actually from members of the bar. As to the ability
to open the mail in the presence of inmates, this could in no way
In the subsequent case of Wolff v. McDonnell,[50] involving convicted
constitute censorship, since the mail would not be read. Neither
prisoners, the U.S. Supreme Court held that prison officials could open in the could it chill such communications, since the inmates presence
insures that prison officials will not read the mail. The possibility
presence of the inmates incoming mail from attorneys to inmates. However, that contraband will be enclosed in letters, even those from
prison officials could not read such mail from attorneys. Explained the U.S. apparent attorneys, surely warrants prison officials opening the
letters. We disagree with the Court of Appeals that this should
Supreme Court: only be done in appropriate circumstances. Since a flexible test,
besides being unworkable, serves no arguable purpose in
The issue of the extent to which prison authorities can open and protecting any of the possible constitutional rights enumerated
inspect incoming mail from attorneys to inmates, has been by respondent, we think that petitioners, by acceding to a rule
considerably narrowed in the course of this litigation. The prison whereby the inmate is present when mail from attorneys is
regulation under challenge provided that (a)ll incoming and inspected, have done all, and perhaps even more, than the
outgoing mail will be read and inspected, and no exception was Constitution requires.[51]
made for attorney-prisoner mail. x x x

Petitioners now concede that they cannot open and read mail In Hudson v. Palmer,[52] the U.S. Supreme Court ruled that an inmate
from attorneys to inmates, but contend that they may open all
letters from attorneys as long as it is done in the presence of the has no reasonable expectation of privacy inside his cell. The U.S. Supreme
prisoners. The narrow issue thus presented is whether letters
Court explained that prisoners necessarily lose many protections of the
determined or found to be from attorneys may be opened by
prison authorities in the presence of the inmate or whether such Constitution, thus:
mail must be delivered unopened if normal detection techniques
fail to indicate contraband. However, while persons imprisoned for crime enjoy many
protections of the Constitution, it is also clear that imprisonment
xxx carries with it the circumscription or loss of many significant

25
rights. These constraints on inmates, and in some cases the
complete withdrawal of certain rights, are justified by the
considerations underlying our penal system. The curtailment of The distinction between the limited privacy rights of a pre-trial
certain rights is necessary, as a practical matter, to accommodate detainee and a convicted inmate has been blurred as courts in the U.S. ruled
a myriad of institutional needs and objectives of prison facilities,
chief among which is internal security. Of course, these that pre-trial detainees might occasionally pose an even greater security risk
restrictions or retractions also serve, incidentally, as reminders
than convicted inmates. Bell v. Wolfish reasoned that those who are detained
that, under our system of justice, deterrence and retribution are
factors in addition to correction.[53] prior to trial may in many cases be individuals who are charged with serious

crimes or who have prior records and may therefore pose a greater risk of

escape than convicted inmates.[55] Valencia v. Wiggins[56] further held that it is


The later case of State v. Dunn,[54] citing Hudson v. Palmer,
impractical to draw a line between convicted prisoners and pre-trial detainees
abandoned Palmigiano v. Travisono and made no distinction as to the
for the purpose of maintaining jail security.
detainees limited right to privacy. State v. Dunn noted the considerable

jurisprudence in the United States holding that inmate mail may be censored American cases recognize that the unmonitored use of pre-trial
for the furtherance of a substantial government interest such as security or detainees non-privileged mail poses a genuine threat to jail security. [57] Hence,
discipline. State v. Dunn declared that if complete censorship is permissible, when a detainee places his letter in an envelope for non-privileged mail, the
then the lesser act of opening the mail and reading it is also permissible. We detainee knowingly exposes his letter to possible inspection by jail
quote State v. Dunn: officials.[58] A pre-trial detainee has no reasonable expectation of privacy for his

[A] right of privacy in traditional Fourth Amendment terms is incoming mail.[59] However, incoming mail from lawyers of inmates enjoys
fundamentally incompatible with the close and continual
limited protection such that prison officials can open and inspect the mail for
surveillance of inmates and their cells required to ensure
institutional security and internal order. We are satisfied that contraband but could not read the contents without violating the inmates right
society would insist that the prisoners expectation of privacy
always yield to what must be considered a paramount to correspond with his lawyer.[60] The inspection of privileged mail is limited to
interest in institutional security. We believe that it is accepted physical contraband and not to verbal contraband.[61]
by our society that [l]oss of freedom of choice and privacy are
inherent incidents of confinement.
Thus, we do not agree with the Court of Appeals that the opening and

reading of the detainees letters in the present case violated the detainees right

26
to privacy of communication. The letters were not in a sealed envelope. The In assessing the regulations imposed in detention and prison facilities that are

inspection of the folded letters is a valid measure as it serves the same purpose alleged to infringe on the constitutional rights of the detainees and convicted

as the opening of sealed letters for the inspection of contraband. prisoners, U.S. courts balance the guarantees of the Constitution with the

legitimate concerns of prison administrators.[63] The deferential review of such


The letters alleged to have been read by the ISAFP authorities were
regulations stems from the principle that:
not confidential letters between the detainees and their lawyers. The
[s]ubjecting the day-to-day judgments of prison officials to an
petitioner who received the letters from detainees Trillanes and Maestrecampo inflexible strict scrutiny analysis would seriously hamper their
was merely acting as the detainees personal courier and not as their counsel ability to anticipate security problems and to adopt
innovative solutions to the intractable problems of prison
when he received the letters for mailing. In the present case, since the letters administration.[64]
were not confidential communication between the detainees and their

lawyers, the officials of the ISAFP Detention Center could read the letters. If
The detainees in the present case are junior officers accused of
the letters are marked confidential communication between the detainees and
leading 300 soldiers in committing coup detat, a crime punishable
their lawyers, the detention officials should not read the letters but only open
with reclusion perpetua.[65] The junior officers are not ordinary detainees but
the envelopes for inspection in the presence of the detainees.
visible leaders of the Oakwood incident involving an armed takeover of a
That a law is required before an executive officer could intrude on a civilian building in the heart of the financial district of the country. As members
citizens privacy rights[62] is a guarantee that is available only to the public at of the military armed forces, the detainees are subject to the Articles of War. [66]
large but not to persons who are detained or imprisoned. The right to privacy
Moreover, the junior officers are detained with other high-risk persons
of those detained is subject to Section 4 of RA 7438, as well as to the
from the Abu Sayyaf and the NPA. Thus, we must give the military custodian a
limitations inherent in lawful detention or imprisonment. By the very fact of
wider range of deference in implementing the regulations in the ISAFP
their detention, pre-trial detainees and convicted prisoners have a diminished
Detention Center. The military custodian is in a better position to know the
expectation of privacy rights.
security risks involved in detaining the junior officers, together with the

suspected Abu Sayyaf and NPA members. Since the appropriate regulations

27
depend largely on the security risks involved, we should defer to the

regulations adopted by the military custodian in the absence of patent

arbitrariness.

The ruling in this case, however, does not foreclose the right of
detainees and convicted prisoners from petitioning the courts for the redress

of grievances. Regulations and conditions in detention and prison facilities that

violate the Constitutional rights of the detainees and prisoners will be reviewed
by the courts on a case-by-case basis. The courts could afford injunctive relief

or damages to the detainees and prisoners subjected to arbitrary and

inhumane conditions. However, habeas corpus is not the proper mode to


question conditions of confinement.[67] The writ of habeas corpus will only lie if

what is challenged is the fact or duration of confinement. [68]

WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of

the Court of Appeals in CA-G.R. SP No. 78545.

No pronouncement as to costs.

SO ORDERED.

28
Republic of the Philippines circulating copies of the Complaint to the press in envelopes where his name
SUPREME COURT appears; "he himself would have written stories about the case in a manner
Manila that sells newspapers; even a series of juicy articles perhaps, something that
would have further subjected the respondent justices to far worse publicity;"
EN BANC that, on the contrary, the press conference scheduled by Ilustre was cancelled
through his efforts in order to prevent any further adverse publicity resulting
G.R. No. L-68635 May 14, 1987 from the filing of the complaint before the Tanodbayan; that, as a matter of
fact, it was this Court's Resolution that was serialized in the Bulletin Today,
which newspaper also made him the subject of a scathing editorial but that he
IN THE MATTER OF PROCEEDINGS FOR DISCIPLINARY ACTION AGAINST ATTY.
"understands the cooperation because after all, the Court rendered a favorable
WENCESLAO LAURETA, AND OF CONTEMPT PROCEEDINGS AGAINST EVA
judgment in the Bulletin union case last year;" that he considered it "below his
MARAVILLA-ILUSTRE in G.R. No. 68635, entitled "EVA MARAVILLA-ILUSTRE,
dignity to plead for the chance to present his side" with the Editor, Mr. Ben
vs. HON. INTERMEDIATE APPELLATE COURT, ET AL."
Rodriguez, "a long-time personal friend" since he "can afford to be the
sacrificial lamb if only to help the Honorable Court uphold its integrity;" that he
RESOLUTION
was called by a reporter of DZRH and was asked to comment on the case filed
before the Tanodbayan but that his remarks were confined to the filing of the
case by Ilustre herself, and that the judgment of the trial Court had attained its
finality long ago; that he is not Ilustre's counsel before the Tanodbayan and did
PER CURIAM: not prepare the complaint filed before it, his professional services having been
terminated upon the final dismissal of Ilustre's case before this Court; that
Before us are 1) Atty. Wenceslao Laureta's Motion for Reconsideration of the similarities in the language and phraseology used in the Ilustre letters, in
Per Curiam Resolution of this Court promulgated on March 12, 1987, finding pleadings before this Court and before the Tanodbayan do not prove his
him guilty of grave professional misconduct and suspending him indefinitely authorship since other lawyers "even of a mediocre caliber" could very easily
from the practice of law; and 2) Eva Maravilla-Ilustre's Motion for have reproduced them; that the discussions on the merits in the Per Curiam
Reconsideration of the same Resolution holding her in contempt and ordering Resolution are "more properly addressed to the Tanodbayan, Justice Raul M.
her to pay a fine of P1,000.00. Gonzales being competent to deal with the case before him;" that he takes
exception to the accusation that he has manifested lack of respect for and
Essentially, Atty. Laureta maintains that the Order of suspension without exposed to public ridicule the two highest Courts of the land, all he did having
hearing violated his right to life and due process of law and by reason thereof been to call attention to errors or injustice committed in the promulgation of
the Order is null and void; that the acts of misconduct imputed to him are judgments or orders; that he has "not authorized or assisted and/or abetted
without basis; that the charge against him that it was he who had circulated to and could not have prevented the contemptuous statements, conduct, acts and
the press copies of the Complaint filed before the Tanodbayan is unfounded malicious charges of Eva Maravilla Ilustre who was no longer his client when
such that, even in this Court's Resolution, his having distributed copies to the these alleged acts were done; that "he is grateful to this Court for the reminder
press is not stated positively; that the banner headline which appeared In the on the first duty of a lawyer which is to the Court and not to his client, a duty
Daily Express is regrettable but that he was not responsible for such that he has always impressed upon his law students;" and finally, that "for the
"misleading headline;" that he "did nothing of the sort" being fully conscious of record, he is sorry for the adverse publicity generated by the filing of the
his responsibilities as a law practitioner and officer of the Court; that as a complaint against the Justices before the Tanodbayan."
former newspaperman, he would not have been satisfied with merely

29
In her own Motion for Reconsideration, Eva Maravilla-Ilustre also raises as her her counsel before the Tanodbayan, his having circularized to the press copies
main ground the alleged deprivation of her constitutional right to due process. of the complaint filed before said body, and his having committed acts
She maintains that as contempt proceedings are commonly treated as criminal unworthy of his profession. But the Court believed otherwise and found that
in nature, the mode of procedure and rules of evidence in criminal prosecution those letters and the charges levelled against the Justices concerned, of
should be assimilated, as far as practicable, in this proceeding, and that she themselves and by themselves, betray not only their malicious and
should be given every opportunity to present her side. Additionally, she states contemptuous character, but also the lack of respect for the two highest Courts
that, with some sympathetic lawyers, they made an "investigation" and learned of the land, a complete obliviousness to the fundamental principle of
that the Resolution of the First Division was arrived at without any deliberation separation of powers, and a wanton disregard of the cardinal doctrine of
by its members; that Court personnel were "tight-lipped about the matter, independence of the Judiciary. Res ipsa loquitur. Nothing more needed to have
which is shrouded mystery" thereby prompting her to pursue a course which been said or proven. The necessity to conduct any further evidentially hearing
she thought was legal and peaceful; that there is nothing wrong in making was obviated (See People vs. Hon. Valenzuela, G.R. Nos. 63950-60, April 19,
public the manner of voting by the Justices, and it was for that reason that she 1985, 135 SCRA 712). Atty. Laureta and Ilustre were given ample opportunity to
addressed Identical letters to Associate Justices Andres Narvasa, Ameurfina M. be heard, and were, in fact, heard.
Herrera, Isagani Cruz and Florentino Feliciano; that "if the lawyers of my
opponents were not a Solicitor General, and member of the Supreme Court (1)
and a Division Chairman, respectively, the resolution of May 14, 1986 would
not have aroused my suspicion;" that instead of taking the law into her own In his Motion for Reconsideration, Atty. Laureta reiterates his allegations in his
hands or joining any violent movement, she took the legitimate step of making Answer to the show-cause Resolution that his professional services were
a peaceful investigation into how her case was decided, and brought her terminated by Ilustre after the dismissal of the main petition by this Court; that
grievance to the Tanodbayan "in exasperation" against those whom she felt he had nothing to do with the contemptuous letters to the individual Justices;
had committed injustice against her "in an underhanded manner." and that he is not Ilustre's counsel before the Tanodbayan.

We deny reconsideration in both instances. Significantly enough, however, copy of the Tanodbayan Resolution dismissing
Ilustre's Complaint was furnished Atty. Laureta as "counsel for the
The argument premised on lack of hearing and due process, is not impressed complainant" at his address of record. Of note, too, is the fact that it was he
with merit. What due process abhors is absolute lack of opportunity to be who was following up the Complaint before the Tanodbayan and, after its
heard (Tajonera vs. Lamaroza, et al., 110 SCRA 438 [1981]). The word "hearing" dismissal, the Motion for Reconsideration of the Order of dismissal.
does not necessarily connote a "trial-type" proceeding. In the show-cause
Resolution of this Court, dated January 29, 1987, Atty. Laureta was given Of import, as well, is the report of Lorenzo C. Bardel, a process server of this
sufficient opportunity to inform this Court of the reasons why he should not be Court, that after having failed to serve copy of the Per Curiam Resolution of
subjected to dispose action. His Answer, wherein he prayed that the action March 12, 1987 of this Court on Ilustre personally at her address of record,
against him be dismissed, contained twenty-two (22) pages, double spaced. Eva "101 F. Manalo St., Cubao, Quezon City," having been informed that she is 6
Maravilla-Ilustre was also given a like opportunity to explain her statements, not a resident of the place," he proceeded to the residence of Atty. Laureta
conduct, acts and charges against the Court and/or the official actions of the where the latter's wife "voluntarily received the two copies of decision for her
Justices concerned. Her Compliance Answer, wherein she prayed that the husband and for Ms. Maravina-Ilustre" (p. 670, Rollo, Vol. 11).
contempt proceeding against her be dismissed, contained nineteen (19) pages,
double spaced. Both were afforded ample latitude to explain matters fully.
Atty. Laureta denied having authored the letters written by Ilustre, his being

30
That Ilustre subsequently received copy of this Court's Resolution delivered to collegiate Court; that a charge of violation of the Anti-Graft and Corrupt
Mrs. Laureta is shown by the fact that she filed, as of March 27, 1987, a Practices Act on the ground that a collective decision is "unjust" cannot
"Petition for Extension of Time to file Motion for Reconsideration" and prosper; plus the clear and extended dissertation in the same Per Curiam
subsequently the Motion for Reconsideration. In that Petition Ilustre Resolution on the fundamental principle of separation of powers and of checks
acknowledged receipt of the Resolution on March 12, 1987, the very same date and balances, pursuant to which it is this Court "entrusted exclusively with the
Mrs. Laureta received copy thereof. If, indeed, the lawyer-client relationship judicial power to adjudicate with finality all justifiable disputes, public and
between her husband and Ilustre had been allegedly completely severed, all private. No other department or agency may pass upon its judgments or
Mrs. Laureta had to do was to return to the Sheriff the copy intended for declare them 'unjust' upon controlling and irresistible reasons of public policy
Ilustre. As it was, however, service on Atty. Laureta proved to be service on and of sound practice."
Ilustre as well. The close tie- up between the corespondents is heightened by
the fact that three process servers of this Court failed to serve copy of this Atty. Laureta's protestations that he has done his best to protect and uphold
Court's Per Curiam Resolution on Ilustre personally. the dignity of this Court are belied by environmental facts and circumstances.
His apologetic stance for the "adverse publicity" generated by the filing of the
Noteworthy, as well, is that by Atty. Laureta's own admission, he was the one charges against the Justices concerned before the Tanodbayan rings with
called by a "reporter" of DZRH to comment on the Ilustre charges before the insincerity. The complaint was calculated precisely to serve that very purpose.
Tanodbayan. If, in fact, he had nothing to do with the complaint, he would not The threat to bring the case to "another forum of justice" was implemented to
have been pinpointed at all. And if his disclaimer were the truth, the logical the fun. Besides, he misses the heart of the matter. Exposure to the glare of
step for him to have taken was to refer the caller to the lawyer/s allegedly publicity is an occupational hazard. If he has been visited with disciplinary
assisting Ilustre, at the very least, out of elementary courtesy and propriety. sanctions it is because by his conduct, acts and statements, he has, overall,
But he did nothing of the sort. " He gave his comment with alacrity. deliberately sought to destroy the "authenticity, integrity, and conclusiveness
of collegiate acts," to "undermine the role of the Supreme Court as the final
The impudence and lack of respect of Atty. Laureta for this Court again surfaces arbiter of all justifiable disputes," and to subvert public confidence in the
when he asserts in his Motion for Reconsideration that he "understands the integrity of the Courts and the Justices concerned, and in the orderly
cooperation" of the Bulletin Today as manifested in the serialized publication of administration of justice.
the Per Curiam Resolution of this Court and his being subjected to a scathing
editorial by the same newspaper "because after all, the Court rendered a In fine, we discern nothing in Atty. Laureta's Motion for Reconsideration that
favorable judgment in the Bulletin union case last year." The malice lurking in would call for a modification, much less a reversal, of our finding that he is
that statement is most unbecoming of an officer of the Court and is an added guilty of grave professional misconduct that renders him unfit to continue to be
reason for denying reconsideration. entrusted with the duties and responsibilities pertaining to an attorney and
officer of the Court.
Further, Atty. Laureta stubbornly contends that discussions on the merits in the
Court's Per Curiam Resolution are more properly addressed to the Tanodbayan, (2)
forgetting, however, his own discourse on the merits in his Answer to this
Court's Resolution dated January 29, 1987. He thus incorrigibly insists on Neither do we find merit in Ilustre's Motion for Reconsideration. She has
subordinating the Judiciary to the executive notwithstanding the categorical turned deaf ears to any reason or clarification. She and her counsel have
pronouncement in the Per Curiam Resolution of March 12, 1987, that Article refused to accept the untenability of their case and the inevitability of losing in
204 of the Revised Penal Code has no application to the members of a Court. They have allowed suspicion alone to blind their actions and in so doing

31
degraded the administration of justice. "Investigation" was utterly uncalled for. by an elderly woman who admitted to be the owner of the
All conclusions and judgments of the Court, be they en banc or by Division, are house but vehemently refused to be Identified, and told me
arrived at only after deliberation. The fact that no dissent was indicated in the that she does not know the addressee Maravilla, and told me
Minutes of the proceedings held on May 14, 1986 showed that the members of further that she always meets different persons looking for
the Division voted unanimously. Court personnel are not in a position to know Miss Maravilla because the latter always gives the address of
the voting in any case because all deliberations are held behind closed doors her house;
without any one of them being present. No malicious inferences should have
been drawn from their inability to furnish the information Ilustre and Atty. 3. That, I was reminded of an incident that I also experienced
Laureta desired The personality of the Solicitor General never came into the in the same place trying to serve a resolution to Miss
picture. It was Justice Abad Santos, and not Justice Yap, who was Chairman of Maravilla which was returned unserved because she is not
the First Division when the Resolution of May 14, 1986 denying the Petition known in the place; ... (p. 674, Rollo, Vol. II).
was rendered. Thereafter Justice Yap inhibited himself from any participation.
The fact that the Court en banc upheld the challenged Resolutions of the First And yet, in her Petition for Extension of Time and in her Motion for
Division emphasizes the irrespective of Ilustre's case irrespective of the Reconsideration she persists in giving that address at 101 Felix Manalo St.,
personalities involved. Cubao, Quezon City, where our process servers were told that she was not a
resident of and that she was unknown thereat. If for her contumacious
Additionally, Ilustre has been trifling with this Court. She has given our process elusiveness and lack of candor alone, Ilustre deserves no further standing
servers the run-around. Three of them failed to serve on her personally her before this Court.
copy of this Court's Per Curiam Resolution of March 12, 1987 at her address of
record. Mrs. Laureta informed process server Lorenzo C. Bardel that Ilustre was ACCORDINGLY, the respective Motions for reconsideration of Atty. Wenceslao
residing at 17-D, Quezon St., Tondo, Manila. Romeo C. Regala, another process G. Laureta for the setting aside of the order suspending him from the practice
server, went to that address to serve copy of the Resolution but he reported: of law, and of Eva Maravilla Ilustre for the lifting of the penalty for contempt
are DENIED, and this denial is FINAL. Eva Maravilla Ilustre shall pay the fine of
4. That inspite of diligent efforts to locate the address of P1,000.00 imposed on her within ten (10) days from notice, or, suffer
ms.Eva Maravilla-Ilustre, said address could not be located; imprisonment for ten (10) days upon failure to pay said fine within the
stipulated period.
5. That I even asked the occupants (Cerdan Family) of No. 17
Quezon Street, Tondo, Manila, and they informed that there SO ORDERED.
is no such Ms. Eva Maravilla-Ilustre in the neighborhood
and/or in the vicinity; ... (p. 672, Rollo, Vol. 11). Teehankee, C.J., Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,
Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.
The third process server, Nelson C. Cabesuela, was also unable to serve copy of
this Court's Resolution on Ilustre. He reported: Yap, J., * took no part.

2. On March 17, 1987, at about 9:30 A.M., I arrived at the


house in the address furnished at; the notice of judgment
(101 Felix Manalo St., Cubao, Quezon City), and was received

32
Republic of the Philippines reversed and set aside the decision of the Regional Trial Court (RTC), Branch 98,
SUPREME COURT Quezon City, dated 03 January 1994.
Manila
THE ANTECEDENTS
FIRST DIVISION
The instant cases had their beginnings in 1977 when the National Housing
G.R. No. 152072 January 31, 2006 Authority (NHA) filed expropriation proceedings against the Zuzuarreguis,
petitioners in G.R. No. 152104, for parcels of land belonging to the latter
ROMEO G. ROXAS and SANTIAGO N. PASTOR, Petitioners, situated in Antipolo, Rizal, with a total land area of 1,790,570.36 square
vs. meters, more or less. This case was lodged before the RTC, Branch 141,
ANTONIO DE ZUZUARREGUI, JR., ENRIQUE DE ZUZUARREGUI, PACITA JAVIER, Municipality of Makati,5 docketed therein as Civil Case No. 26804 entitled,
ELIZABETH R. GONZALES, JOSEFINA R. DAZA, ELIAS REYES, NATIVIDAD REYES, "National Housing Authority v. Pilar Ibañez Vda. De Zuzuarregui, et al."
TERESITA REYES, JOSE REYES and ANTONIO REYES, Respondents.
On 25 May 1983, said case was ordered archived6 by Branch 141.
x----------------------------------x
About a month before the aforecited case was ordered archived, the
G.R. No. 152104 January 31, 2006 Zuzuarreguis engaged the legal services of Attys. Romeo G. Roxas and Santiago
N. Pastor, to represent them in Civil Case No. 26804. This was sealed by a
ANTONIO DE ZUZUARREGUI, JR., ENRIQUE DE ZUZUARREGUI, PACITA JAVIER, Letter-Agreement dated 22 April 1983, which is partly reproduced hereunder:
ELIZABETH R. GONZALES, JOSEFINA R. DAZA, ELIAS REYES, NATIVIDAD REYES,
TERESITA REYES, JOSE REYES and ANTONIO REYES, Petitioners, April 22, 1983
vs.
THE NATIONAL HOUSING AUTHORITY, JOSE B. H. PEDROSA, ROMEO G. ROXAS Mr. Antonio de Zuzuarregui, Jr.
and SANTIAGO N. PASTOR, Respondents. Mrs. Pacita Javier (as heir to the late Jose de Zuzuarregui)
Mr. Antonio de Zuzuarregui ( as heir to the late Pilar Y. vda. De
DECISION Zuzuarregui)

CHICO-NAZARIO, J.: Dear Sir and Madam:

Before Us are two petitions for review on certiorari1 which were consolidated This is to confirm in writing our verbal negotiations for us to represent
per Resolution2 of this Court dated 27 November 2002. The petitioners in G.R. you in the expropriation proceedings filed by the National Housing
No. 152072, Attys. Romeo G. Roxas and Santiago N. Pastor, seek the reversal Authority against your goodselves before the Court of First Instance of
and annulment of the Decision3 and Resolution4 of the Court of Appeals dated Rizal (now the Regional Trial Court) and docketed as Civil Case No.
25 June 2001 and 06 February 2002, respectively. The petitioners in G.R. No. 26804. Our representation shall also include the areas taken over by
152104, the Zuzuarreguis, on the other hand, pray that the said Decision and the Ministry of Public Works and Highways which now formed part of
Resolution of the Court of Appeals be modified. Said Decision and Resolution

33
the Marcos Highway at Antipolo, Rizal. (Sgd.) (Sgd.)
ANTONIO DE ZUZUARREGUI, JR. PACITA JAVIER
The areas affected are the following: In my behalf and
as heir to the late Pilar Y. vda. De as heir to the late Jose De
xxxx Zuzuarregui Zuzuarregui7

We shall endeavor to secure the just compensation with the National A Motion to Set Case for Hearing,8 dated 14 February 1984, was filed by Attys.
Housing Authority and other governmental agencies at a price of Roxas and Pastor in Civil Case No. 26804, praying that the case be revived and
ELEVEN PESOS (P11.00) or more per square meter. Any lower amount be set for hearing by the court at the earliest date available in its calendar.
shall not entitle us to any attorney’s fees. At such price of P11.00 per
square meter or more our contingent fee[s] is THIRTY PERCENT (30%)
The appropriate proceedings thereafter ensued. On 29 October 1984, a Partial
of the just compensation.
Decision was rendered by Branch 141 in Civil Case No. 26804 fixing the just
compensation to be paid to the Zuzuarreguis at P30.00 per square meter.
The other terms and conditions of our proposal are:
The NHA filed a Motion for Reconsideration9 dated 23 November 1984 praying
xxxx that the Partial Decision be reconsidered and set aside, and a new one
rendered lowering the amount of just compensation in accordance with
5. You are willing to accept NHA 5-year bonds as part payment up to applicable laws. Pending resolution thereof, a Joint Special Power of Attorney
75% of the total compensation. In the event of your desire to discount was executed by Antonio De Zuzuarregui, Jr., Enrique De Zuzuarregui and
the bonds, we shall assist to have them discounted at 75% of its face Pacita Javier, in favor of Attys. Roxas and Pastor, viz:
value.

6. Our lawyer’s fees shall be in the proportion of the cash/bonds ratio


of the just compensation. Likewise our fees are subject to 10%
JOINT SPECIAL POWER OF ATTORNEY
withholding tax.
KNOW ALL MEN BY THESE PRESENTS:
xxxx
That We, ANTONIO DE ZUZUARREGUI, JR., ENRIQUE DE
Should the above proposal be acceptable to your goodselves, kindly
ZUZUARREGUI and PACITA JAVIER, all of legal age, …, do
signify your formal acceptance as (sic) the space hereunder provided.
hereby appoint, name and constitute ATTYS. ROMEO G.
ROXAS and SANTIAGO PASTOR, to be our true and lawful
Very truly yours, attorneys to act in our names and on our behalves to do and
(Sgd.) (Sgd.) execute all or any of the following acts and deeds subject to
SANTIAGO N. PASTOR ROMEO G. ROXAS
Lawyer Lawyer
CONFORME:

34
our approval: 26th day of August, 1985, in Makati, M. M., Philippines.

xxxx (Sgd.)
ANTONIO DE ZUZUARREGUI, JR.1avvph!l.ne+
(2) To represent us in the negotiations for a
compromise with the National Housing Authority (Sgd.)
for our properties subject of the above case; ENRIQUE DE ZUZUARREGUI

(3) To negotiate for and in our behalves for the (Sgd.)


settlement of the just compensation of our PACITA JAVIER10
properties payable in cash or in bonds;

(4) To sign and prepare all papers relative to the


preparation of a Compromise Agreement or any On 22 November 1985, a Special Power of Attorney was executed by Beatriz
papers and communications which shall eventually Zuzuarregui vda. De Reyes in favor of Attys. Romeo G. Roxas, Santiago Pastor
bear our signatures; and and Basilio H. Toquero, quoted as follows:

(5) That this Special Power of Attorney is enforce


(sic) as long as ATTYS. ROMEO G. ROXAS AND
SANTIAGO PASTOR are our lawyers in Civil Case No.
SPECIAL POWER OF ATTORNEY
26804 before the Regional Trial Court, Makati,
Branch CXLI.
KNOW ALL MEN BY THESE PRESENTS:
HEREBY GIVING AND GRANTING unto our said attorneys full
power and authority whatsoever requisite or necessary or That I, BEATRIZ ZUZUARREGUI VDA. DE REYES, Filipino, of
proper to be done in or about the premises, as fully to all legal age, widow, and a resident of E. Rodriguez Ave.,
intents and purposes as we might or could lawfully do if Quezon City, Philippines do hereby appoint, name and
personally present, and hereby ratifying and confirming all constitute ATTYS. ROMEO G. ROXAS, SANTIAGO PASTOR and
that our said attorneys shall do or cause to be done under BASILIO H. TOQUERO, to be my true and lawful attorneys … :
and by virtue of these presents.
1. To represent me in the negotiation for a
IN WITNESS WHEREOF, We have hereunto set our hands this Compromise with the National Housing Authority
for my properties subject to my approval in CIVIL

35
On 10 December 1985, a Letter-Agreement was executed by and between
Antonio Zuzuarregui, Jr., Pacita Javier and Enrique De Zuzuarregui, on the one
CASE No. 26804, entitled "National Housing hand, and Attys. Romeo G. Roxas and Santiago Pastor, on the other. The said
Authority vs. Pilar Ibañez de Zuzuarregui, et al., Letter-Agreement reads:
before the Regional Trial Court, Makati, Branch
CXLI; December 10, 1985

2. To negotiate for and in my behalf for the Atty. Romeo G. Roxas


settlement of the just compensation of my Atty. Santiago Pastor
properties payable in cash or in bond, subject to my Makati Executive Center
approval; Salcedo Village, Makati

3. To sign and prepare all papers relative to the Dear Atty. Roxas & Atty. Pastor:
preparation of a Compromise Agreement or any
papers and communications which shall eventually This will confirm an amendment to our agreement regarding your attorney’s
bear my signature; fees as our lawyers and counsels for the Zuzuarregui’s properties expropriated
by National Housing Authority covering ONE HUNDRED SEVENTY-NINE (179)
4. To accept for and in my behalf payments for my HECTARES, more or less, covered by TCT Nos. 138340, 85633 and 85634 and
properties after the Compromise Agreement is duly filed as Civil Case No. 26804.
approved by the Court, the actual receipts of which
payments shall be signed by me. We hereby confirm and agree that we are willing to accept as final and
complete settlement for our 179 hectares expropriated by NHA a price of
HEREBY GIVING AND GRANTING unto my said attorneys full SEVENTEEN PESOS (P17.00) per square meter, or for a total of THIRTY MILLION
power and authority whatsoever requisite, necessary or FOUR HUNDRED THOUSAND PESOS (P30.4 Million), all payable in NHA Bonds.
proper … to be done under and by virtue of these presents.
We also agree and confirm that for and in consideration of your services as our
IN WITNESS WHEREOF, I have hereunto set my hand this lawyers and counsels in the said expropriation case, we commit and bind
22nd day of November 1985, in the City of Manila, ourselves to pay to you, your heirs or assignees-in-interest, as your contingent
Philippines. attorney’s fees any and all amount in excess of the SEVENTEEN PESOS (P17.00)
per square meter payable in NHA bonds as mentioned above.
(Sgd.)
BEATRIZ ZUZUARREGUI VDA. DE REYES11 This Letter Agreement serves also as your authority to collect directly from
NHA the amount pertaining to you as your contingent attorney’s fees.

This Letter Agreement hereby amends and supersedes our previous agreement
regarding your attorney’s fees as our lawyers and counsels in the above-
mentioned expropriation case.

36
Very truly yours, 1986, the amount of P34,500,000.00 in Bearer Bonds was again released by the
NHA to Atty. Romeo G. Roxas in behalf of the Zuzuarreguis. 16 On 14 February
(Sgd.) ANTONIO DE ZUZUARREGUI, JR. 1986, the Zuzuarreguis issued a receipt17 for receiving the amount
In my behalf as heir to the late Pilar I. vda. de Zuzuarregui of P30,070,000.00. This receipt included the P15,000,000.00 given to them last
27 December 1985. Again on 17 February 1986, the Zuzuarreguis, through
(Sgd.)PACITA JAVIER Beatriz Zuzuarregui vda. De Reyes, issued another receipt for the amount
As heir to the late Jose De Zuzuarregui of P450,000.00 in NHA bonds.18 The total amount in NHA bonds released to
Atty. Romeo G. Roxas in behalf of the Zuzuarreguis amounted
to P54,500,000.00. Out of this amount, the records show that the amount
(Sgd.)
turned over to the Zuzuarreguis by Atty. Roxas amounted to P30,520,000.00 in
ENRIQUE DE ZUZUARREGUI
NHA bonds.
CONFORME:
Computed at P19.50 per square meter, the 1,790,570.36 square meters
property of the Zuzuarreguis was expropriated at a total price
(Sgd.)ATTY. ROMEO G. ROXAS
of P34,916,122.00. The total amount released by the NHA was P54,500,000.00.
The difference of P19,583,878.00 is, undoubtedly, the yield on the bonds.
(Sgd.)ATTY. SANTIAGO PASTOR12
On 25 August 1987, a letter19 was sent by the Zuzuarreguis’ new counsel, Jose
Resolution No. 117413 dated 16 December 1985 was issued by the NHA stating F. Gonzalez, to Attys. Roxas and Pastor, demanding that the latter deliver to the
that the Zuzuarregui property would be acquired at a cost of P19.50 per square Zuzuarreguis the yield corresponding to bonds paid by the NHA within a period
meter; that the Zuzuarreguis would be paid in NHA Bonds, subject to the of 10 days from receipt, under pain of administrative, civil and/or criminal
availability of funds; and that the yield on the bonds to be paid to the action.
Zuzuarreguis shall be based on the Central Bank rate at the time of payment.
Attys. Roxas and Pastor answered via a letter dated 21 September 1987
As a result of the aforesaid NHA Resolution, a Compromise Agreement was explaining their side of the story. They stated therein, among other things, that
executed between the Zuzuarreguis and the NHA in Civil Case No. 26804. The the amount that they got seems huge from the surface, but it just actually
Compromise Agreement, stipulated among other things, that the just passed their hands, as it did not really go to them.20
compensation of the Zuzuarregui properties would be at P19.50 per square
meter payable in NHA Bonds. In a Decision dated 20 December 1985, the RTC,
On 29 September 1987, a letter21 was sent by the Zuzuarreguis through
Branch 141, Makati, approved the Compromise Agreement submitted by the
Antonio De Zuzuarregui, Jr., to Attys. Romeo G. Roxas and Santiago N. Pastor,
parties.
informing the latter that their services as counsels of the Zuzuarreguis (except
Betty) in the expropriation proceedings filed by the NHA, docketed as Civil Case
On 27 December 1985, the NHA Legal Department, through Atty. Jose B. H. No. 26804, was being formally terminated.
Pedrosa, released to Atty. Romeo G. Roxas, in behalf of the Zuzuarreguis, the
amount of P20,000,000.00 in NHA Bearer Bonds as "partial payment for several
Apparently unsatisfied with the explanation of Attys. Roxas and Pastor, the
parcels of land with a total area of 1,790,570.36 square meters located in
Zuzuarreguis filed a civil action for Sum of Money and Damages on 14
Antipolo, Rizal."14 On even date, Atty. Romeo G. Roxas delivered NHA Bonds to
November 1989 before the RTC, Quezon City, Branch 98, docketed as Civil Case
Antonio De Zuzuarregui in the amount of P15,000,000.00.15On 04 February

37
No. Q-89-4013, against the NHA, Jose B. H. Pedrosa, Atty. Romeo G. Roxas and WHEREFORE, IN VIEW OF THE FOREGOING, the decision dated January 3, 1994
Atty. Santiago N. Pastor. The Zuzuarreguis demanded that the yield on the NHA of the Regional Trial Court, National Capital Judicial Region, Branch 98, Quezon
bonds be turned over to them. City in Civil Case No. 89-4013 entitled "Antonio Zuzuarregui, Jr., et al. versus
National Housing Authority, et al." for "Sum of Money and Damages," is hereby
After due hearing, a Decision22 in Civil Case No. Q-89-4013 was rendered on 03 REVERSED and SET ASIDE. Defendants-Appellees Roxas and Pastor are hereby
January 1994, dismissing the Complaint. The dispositive portion reads: ordered to return to plaintiffs-appellants the amount of P12,596,696.425, the
balance from the P17,073,122.70, received as yield from NHA bonds after
WHEREFORE, in view of the foregoing consideration[s], judgment is hereby deducting the reasonable attorney’s fees in the amount of P4,476,426.275. 25
rendered ordering the dismissal of the complaint against all the defendants;
and, further ordering plaintiffs, jointly and solidarily, to: Attys. Roxas and Pastor filed a Motion for Reconsideration 26 on 25 July 2001.
The Zuzuarreguis also filed a Motion for Reconsideration 27 on 30 July 2001, not
1. Pay each of the defendants Romeo G. Roxas, Santiago Pastor and having been satisfied with the award, while the NHA and Pedrosa filed their
Jose B. H. Perdosa, the amount of P200,000.00, P200,000.00 and Motions for Reconsideration28 on 03 August 2001.
P100,000.00, respectively, as moral damages;
In a Resolution dated 06 February 2002, the Court of Appeals denied for lack of
2. Pay each of the defendants Roxas, Pastor and Pedrosa, the amount merit all the Motions for Reconsideration.
of P50,000.00, P50,000.00, and P25,000.00, respectively as exemplary
damages; On 05 March 2002, Attys. Roxas and Pastor filed a Petition for Review on
Certiorari29 assailing the Decision of the Court of Appeals, docketed as G.R. No.
3. Pay attorney’s fees to defendants Roxas and Pastor in the amount 152072. Likewise, on 21 March 2002, the Zuzuarreguis filed their own Petition
of P20,000.00; and for Review on Certiorari30 assailing the same Decision, docketed as G.R. No.
152104.1avvph!l.ne+
4. Pay the costs of this suit.
ASSIGNMENT OF ERRORS
23
A Notice of Appeal dated 10 February 1994 was filed by the Zuzuarreguis.
Subsequently, on 26 April 1995, the Zuzuarreguis filed their appeal brief with Attys. Roxas and Pastor, petitioners in G.R. No. 152072, assign as errors the
the Court of Appeals. The case was docketed as CA-G.R. CV No. 45732. following:

A Decision24 was eventually promulgated by the Fifteenth Division of the Court I


of Appeals on 25 June 2001, reversing and setting aside the ruling of Branch 98,
viz: THE HONORABLE COURT OF APPEALS GRAVELY ERRED ON A QUESTION OF LAW
IN HOLDING THAT THE LETTER-AGREEMENT DATED DECEMBER 10, 1985
Therefore, We find that the amount of P4,476,426.275 is, in the opinion of this CANNOT BE ALLOWED TO STAND AS THE LAW BETWEEN THE PARTIES; and
Court, commensurate to the services rendered by defendants-appellees. This
amount has been arrived at by giving to defendants-appellees P2.50 per square II
meter of the 1,790,570.51 square meter expropriated properties of herein
plaintiffs-appellants.

38
THE HONORABLE COURT OF APPEALS GRAVELY ERRED ON A QUESTION OF LAW THE EXACT AMOUNT THAT MUST GO TO THE FORMER, SHOULD STAND AS LAW
IN HOLDING THAT DEFENDANTS-APPELLANTS, HEREIN PETITIONERS, BETWEEN THE PARTIES.
CONCEALED TO THE PLAINTIFFS-APPELLEES, HEREIN RESPONDENTS, THE YIELD
OF THE NHA BONDS31 THE COURT’S RULING

The Zuzuarreguis, petitioners in G.R. No. 152101, on the other hand, assign as Attys. Roxas and Pastor, petitioners in G.R. No. 152072, contend in the main
errors the following: that the Zuzuarreguis are only entitled to the amount of P17.00 per square
meter for the 1,790,570.36 square meters expropriated by the government.
I This was, according to them, embodied in the Letter-Agreement dated 10
December 1985, wherein the Zuzuarreguis agreed to accept the price of P17.00
THE COURT OF APPEALS ERRED IN AWARDING TO PETITIONERS THE PRINCIPAL per square meter. Besides, Attys. Roxas and Pastor contend that the price
AMOUNT OF ONLY P12,596,696.425 AND NOT P17,073,122.70 MAKING A of P17.00 was even way above the P11.00 that the Zuzuarreguis were willing to
DIFFERENCE OF P4,476,426.28 accept for their properties under the Letter of Engagement executed by the
parties earlier on 22 April 1983. Computed at P17.00 per square meter, they
II stress that the amount that should go to the Zuzuarreguis for their
1,790,570.36 square meters property should be P30,439,696.10, and that in
fact the Zuzuarreguis have received P30,520,000.00. The Letter-Agreement
THE RESPONDENTS SHOULD BE HELD LIABLE FOR INTEREST FROM THE DATE OF
dated 10 December 1985 should thus stand as law between the parties. Since
THE FILING OF THE COMPLAINT UNTIL FULLY PAID
this Letter-Agreement, which was "as plain and simple as can be such that
there is no need for any further construction," already fixed the amount that
III
would go to the Zuzuarreguis (P17.00 per square meter), then it should be so.

THE RESPONDENTS SHOULD BE HELD LIABE FOR MORAL AND EXEMPLARY


Attys. Roxas and Pastor further assert that the receipts issued by the
DAMAGES AND ATTORNEY’S FEES
Zuzuarreguis dated 14 February 1986 and 17 February 1986 indicated that the
amounts received by the latter were in "full and final payment" for the subject
IV properties.

THE RESPONDENTS NHA AND JOSE B.H. PEDROSA ARE JOINTLY AND SEVERALLY The NHA, for its part, insists that there was no conspiracy between Attys. Roxas
LIABLE WITH RESPONDENTS ROXAS AND PASTOR32 and Pastor on the one hand, and the NHA and Atty. Pedrosa on the other, on
the application of yields from NHA bonds.33 The Zuzuarreguis, according to the
ISSUE FOR RESOLUTION NHA, "miserably failed to substantiate and establish conspiracy" between
them.
Drawn from the above assignment of errors, it is patent that the principal issue
that must be addressed by this Court is: The Zuzuarreguis, for their part, though they were triumphant in the Court of
Appeals, insist that the amounts awarded them were not enough. According to
WHETHER OR NOT THE LETTER-AGREEMENT DATED 10 DECEMBER 1985, them, the P12,596,696.425 awarded by the Court of Appeals was not correct.
EXECUTED BY THE ZUZUARREGUIS, AND ATTYS. ROXAS AND PASTOR, FIXING

39
They should have been awarded the amount of P17,073,122.70. Quoting the entered into, provided all the essential requisites for their validity are
Zuzuarreguis: present.36

Respondents Roxas and Pastor retained for themselves the amount Under Article 1318 of the Civil Code, there are three essential requisites which
of P3,980,000.00 which represented the agreed attorney’s fees of Roxas and must concur in order to give rise to a binding contract: (1) consent of the
Pastor at P2.50 per square meter. The amount of P20,000,000.00 representing contracting parties; (2) object certain which is the subject matter of the
the yield of all the bearer bonds was, in the words of the Court of Appeals, contract; and (3) cause of the obligation which is established.37
"deliberately hidden" by respondents Roxas and Pastor from petitioners. By
mathematical computation, the P20,000,000.00 yield should be All these requisites were present in the execution of the Letter-Agreement.
proportionately divided at the ratio of P17.00 (petitioners’) and P2.50 (share of
respondents Roxas and Pastor). Following this ratio of division, of the Consent is manifested by the meeting of the offer and the acceptance upon the
P20,000,000.00 yield, P17,073,122.70 should pertain to petitioners and the thing and the cause which are to constitute the contract.38 The Zuzuarreguis, in
balance of P2,926,877.30 to respondents Roxas and Pastor. Add this amount to entering into the Letter-Agreement, fully gave their consent thereto. In fact, it
the total of P3,980,000.00 at the agreed rate of P2.50 per square meter, the was them (the Zuzuarreguis) who sent the said letter to Attys. Roxas and
total attorney’s fees of respondents Roxas and Pastor should be P6,906,877.30, Pastor, for the purpose of confirming all the matters which they had agreed
not bad, again in the words of the Court of Appeals, for handling "a simple upon previously. There is absolutely no evidence to show that anybody was
expropriation case which ended up in a compromise agreement." It was, forced into entering into the Letter-Agreement. Verily, its existence, due
therefore, in error to still deduct the amount of P4,476,426.28 from petitioners execution and contents were admitted by the Zuzuarreguis themselves. 39
share in the yield in the amount of P17,073,122.70 leaving then only
P12,596,696.42.
The second requisite is the object certain. The objects in this case are twofold.
One is the money that will go to the Zuzuarreguis (P17.00 per square meter),
What was done, however, is that the product of 1,790,570.36 sq m. (area of the and two, the money that will go to Attys. Roxas and Pastor (any and all amount
expropriated land of petitioners) and P2.50 which is 4,476,426.28 was again in excess of P17.00 per square meter). There was certainty as to the amount
deducted from the P17,073,122.70 which is the corresponding share of the that will go to the Zuzuarreguis, and there was likewise certainty as to what
petitioners out of the total yield of P20,000,000.00. If this were a criminal case, amount will go to Attys. Roxas and Pastor.
petitioners were being sentenced twice for the same offense.34
The cause is the legal service that was provided by Attys. Roxas and Pastor. In
The Zuzuarreguis further insist that legal interest on the amount general, cause is the why of the contract or the essential reason which moves
of P17,073,122.70 be imposed from the date of the filing of the complaint, the contracting parties to enter into the contract.40
including moral and exemplary damages, and attorney’s fees.
It is basic that a contract is the law between the parties.41 Obligations arising
We sustain the Court of Appeals, but with modification in the computation. from contracts have the force of law between the contracting parties and
should be complied with in good faith. Unless the stipulations in a contract are
A contract is a meeting of the minds between two persons whereby one binds contrary to law, morals, good customs, public order or public policy, the same
himself, with respect to the other, to give something or to render some are binding as between the parties.42
service.35 Contracts shall be obligatory, in whatever form they may have been

40
In Licudan v. Court of Appeals,43 we did not allow the Contract for Professional (b) The novelty and difficulty of the question involved;
Services between the counsel and his client to stand as the law between them
as the stipulation for the lawyer’s compensation was unconscionable and (c) The importance of the subject matter;
unreasonable. We said:
(d) The skill demanded;
Although the Contract for Professional Services dated August 30, 1979 was
apparently voluntarily signed by the late Aurelio Licudan for himself and on (e) The probability of losing other employment as a result of
behalf of his daughter, petitioner Cristina Licudan-Campos and by the acceptance of the proffered case;
petitioner Wilfredo Licudan who both manifested in open court that they gave
their free and willing consent to the said contract, we cannot allow the said
(f) The customary charges for similar services and the schedule of fees
contract to stand as the law between the parties involved considering that the
of the IBP chapter to which he belongs;
rule that in the presence of a contract for professional services duly executed
by the parties thereto, the same becomes the law between the said parties is
(g) The amount involved in the controversy and the benefits resulting
not absolute but admits an exception – that the stipulations therein are not
to the client from the service;
contrary to law, good morals, good customs, public policy or public order.44

Under the contract in question, Attys. Roxas and Pastor are to receive (h) The contingency or certainty of compensation;
contingent fees45 for their professional services. It is a deeply-rooted rule that
contingent fees are not per se prohibited by law. They are sanctioned by Canon (i) The character of the employment, whether occasional or
13 of the Canons of Professional Ethics, viz: established; and

13. Contingent Fees. – (j) The professional standing of the lawyer.

A contract for contingent fee, where sanctioned by law, should be reasonable However, in cases where contingent fees are sanctioned by law, the same
under all the circumstances of the case including the risk and uncertainty of the should be reasonable under all the circumstances of the case, and should
compensation, but should always be subject to the supervision of a court, as to always be subject to the supervision of a court, as to its reasonableness, 47such
its reasonableness. that under Canon 20 of the Code of Professional Responsibility, a lawyer is
tasked to charge only fair and reasonable fees.
and Canon 20, Rule 20.01 of the Code of Professional Responsibility, 46 viz:
Indubitably entwined with the lawyer’s duty to charge only reasonable fees is
the power of this Court to reduce the amount of attorney’s fees if the same is
CANON 20 – A LAWYER SHALL CHARGE ONLY FAIR AND REASONABLE FEES.
excessive and unconscionable.48 Thus, Section 24, Rule 138 of the Rules of
Court partly states:
Rule 20.01. – A lawyer shall be guided by the following factors in determining
his fees:
SEC. 24. Compensation of attorneys; agreement as to fees. – An attorney shall
be entitled to have and recover from his client no more than a reasonable
(a) The time spent and the extent of the services rendered or required;
compensation for his services, with a view to the importance of the subject

41
matter of the controversy, the extent of the services rendered, and the amount. The amount corresponding to 87.17% of P19,583,878.00 is
professional standing of the attorney. x x x. A written contract for services shall P17,073,224.84. This is the yield that the Zuzuarreguis are entitled to. Attys.
control the amount to be paid therefore unless found by the court to be Roxas and Pastor, on the other hand, are entitled to P2,510,653.16.
unconscionable or unreasonable.
Attys. Roxas and Pastor, in the opinion of this Court, were not shortchanged for
Attorney’s fees are unconscionable if they affront one’s sense of justice, their efforts for they would still be earning or actually earned attorney’s fees in
decency or reasonableness.49 It becomes axiomatic therefore, that power to the amount of P6,987,078.75 (P4,476,425.59 + P2,510,653.16).
determine the reasonableness or the, unconscionable character of attorney's
fees stipulated by the parties is a matter falling within the regulatory The amount of P17,073,224.84 must therefore be returned by Attys. Roxas and
prerogative of the courts.50 Pastor to the Zuzuarreguis. They can take this out from the yield in the amount
of P19,583,878.00 which they have appropriated for themselves.
In the instant case, Attys. Roxas and Pastor received an amount which was
equal to forty-four percent (44%) of the just compensation paid (including the On the issue of moral and exemplary damages, we cannot award the same for
yield on the bonds) by the NHA to the Zuzuarreguis, or an amount equivalent to there was no direct showing of bad faith on the part of Attys. Roxas and Pastor,
P23,980,000.00 of the P54,500,000.00. Considering that there was no full for as we said earlier, contingency fees are not per se prohibited by law. It is
blown hearing in the expropriation case, ending as it did in a Compromise only necessary that it be reduced when excessive and unconscionable, which
Agreement, the 44% is, undeniably, unconscionable and excessive under the we have already done.
circumstances. Its reduction is, therefore, in order. This is in accordance with
our ruling in the earlier case of Tanhueco v. De Dumo 51, where we reduced the We likewise cannot hold the NHA and Atty. Pedrosa jointly and severally liable
amount of attorney’s fees from sixty percent (60%) to fifteen percent (15%), for to the Zuzuarreguis for there is no evidence to show conspiracy between them.
being excessive and unreasonable.
WHEREFORE, in view of all the foregoing considerations, the Decision and
It is imperative that the contingent fees received by Attys. Roxas and Pastor Resolution of the Court of Appeals dated 25 June 2001 and 06 February 2002,
must be equitably reduced. In the opinion of this Court, the yield that respectively, are AFFIRMED but with the MODIFICATION that Attys. Romeo G.
corresponds to the percentage share of the Zuzuarreguis in the P19.50 per Roxas and Santiago N. Pastor are hereby ordered to return to the Zuzuarreguis
square meter just compensation paid by the NHA must be returned by Attys. the amount of P17,073,224.84. No costs.
Roxas and Pastor.1avvph!l.ne+
SO ORDERED.
The yield on the NHA bonds amounted to P19,583,878.00. This amount must
therefore be divided between the Zuzuarreguis, on the one hand, and Attys.
Roxas and Pastor, on the other. The division must be pro rata. The amount of
P17.00 that should go to the Zuzuarreguis represents 87.18% of the P19.50 per
square meter just compensation, The P2.50 per square meter that was to go to
Attys. Roxas and Pastor, on the other hand, represents 12.82%.

The Zuzuarreguis are entitled to the yield equal to 87.18% of the


P19,583,878.00, while Attys. Roxas and Pastor are entitled to 12.82% of said

42
Republic of the Philippines government agencies consulted. General Fidel Ramos also signified his approval
SUPREME COURT of the intended film production.
Manila
In a letter dated 16 December 1987, petitioner Hal McElroy informed private
EN BANC respondent Juan Ponce Enrile about the projected motion picture enclosing a
synopsis of it, the full text of which is set out below:
G.R. No. 82380 April 29, 1988
The Four Day Revolution is a six hour mini-series about
AYER PRODUCTIONS PTY. LTD. and McELROY & McELROY FILM People Power—a unique event in modern history that-made
PRODUCTIONS, petitioners, possible the Peaceful revolution in the Philippines in 1986.
vs.
HON.IGNACIO M. CAPULONG and JUAN PONCE ENRILE, respondents. Faced with the task of dramatising these rerkble events,
screenwriter David Williamson and history Prof Al McCoy
G.R. No. 82398 April 29, 1988 have chosen a "docu-drama" style and created [four]
fictitious characters to trace the revolution from the death of
HAL MCELROY petitioner, Senator Aquino, to the Feb revolution and the fleeing of
vs. Marcos from the country.
HON. IGNACIO M. CAPULONG, in his capacity as Presiding Judge of the
Regional Trial Court of Makati, Branch 134 and JUAN PONCE These character stories have been woven through the real
ENRILE, respondents. events to help our huge international audience understand
this ordinary period inFilipino history.

First, there's Tony O'Neil, an American television journalist


FELICIANO, J.: working for major network. Tony reflects the average
American attitude to the Phihppinence —once a colony, now
the home of crucially important military bases. Although Tony
Petitioner Hal McElroy an Australian film maker, and his movie production
is aware of the corruption and of Marcos' megalomania, for
company, Petitioner Ayer Productions pty Ltd. (Ayer Productions), 1 envisioned,
him, there appears to be no alternative to Marcos except the
sometime in 1987, the for commercial viewing and for Philippine and
Communists.
international release, the histolic peaceful struggle of the Filipinos at EDSA
(Epifanio de los Santos Avenue). Petitioners discussed this Project with local
movie producer Lope V. Juban who suggested th they consult with the Next, Angie Fox a fiery Australian photo-journalist. A 'new girl
appropriate government agencies and also with General Fidel V. Ramos and in town,' she is quickly caught up in the events as it becomes
Senator Juan Ponce Enrile, who had played major roles in the events proposed dear that the time has come for a change. Through Angle and
to be filmed. her relationship with one of the Reform Army Movement
Colonels (a fictitious character), we follow the developing
discontent in the armed forces. Their dislike for General Ver,
The proposed motion picture entitled "The Four Day Revolution" was endorsed
by the Movie Television Review and Classification Board as wel as the other

43
their strong loyalty to Defense Minister Enrile, and ultimately Corporation in Australia and Zenith Productions in the United
their defection from Marcos. Kingdom

The fourth fictitious character is Ben Balano, a middle-aged The proposed motion picture would be essentially a re-enact. ment of the
editor of a Manila newspaper who despises the Marcos events that made possible the EDSA revolution; it is designed to be viewed in a
regime and is a supporter an promoter of Cory Aquino. Ben six-hour mini-series television play, presented in a "docu-drama" style, creating
has two daughters, Cehea left wing lawyer who is a secret four (4) fictional characters interwoven with real events, and utilizing actual
member of the New People's Army, and Eva--a -P.R. girl, documentary footage as background.
politically moderate and very much in love with Tony.
Ultimately, she must choose between her love and the On 21 December 1987, private respondent Enrile replied that "[he] would not
revolution. and will not approve of the use, appropriation, reproduction and/or exhibition
of his name, or picture, or that of any member of his family in any cinema or
Through the interviews and experiences of these central television production, film or other medium for advertising or commercial
characters, we show the complex nature of Filipino society, exploitation" and further advised petitioners that 'in the production, airing,
and thintertwining series of events and characters that showing, distribution or exhibition of said or similar film, no reference
triggered these remarkable changes. Through them also, we whatsoever (whether written, verbal or visual) should not be made to [him] or
meet all of the principal characters and experience directly any member of his family, much less to any matter purely personal to them.
dramatic recreation of the revolution. The story incorporates
actual documentary footage filmed during the period which It appears that petitioners acceded to this demand and the name of private
we hope will capture the unique atmosphere and forces that respondent Enrile was deleted from the movie script, and petitioners
combined to overthrow President Marcos. proceeded to film the projected motion picture.

David Williamson is Australia's leading playwright with some On 23 February 1988, private respondent filed a Complaint with application for
14 hugely successful plays to his credit(Don's Party,' 'The Temporary Restraining Order and Wilt of Pretion with the Regional Trial Court
Club,' Travelling North) and 11 feature films (The Year of of Makati, docketed as Civil Case No. 88-151 in Branch 134 thereof, seeking to
Living Dangerously,' Gallipoli,' 'Phar Lap'). enjoin petitioners from producing the movie "The Four Day Revolution". The
complaint alleged that petitioners' production of the mini-series without
Professor McCoy (University of New South Wales) is an private respondent's consent and over his objection, constitutes an obvious
American historian with a deep understanding of the violation of his right of privacy. On 24 February 1988, the trial court issued ex-
Philippines, who has worked on the research for this project parte a Temporary Restraining Order and set for hearing the application for
for some 18 months. Together with Davi Wilhamgon they preliminary injunction.
have developed a script we believe accurately depicts the
complex issues and events that occurred during th period . On 9 March 1988, Hal McElroy flied a Motion to Dismiss with Opposition to the
Petition for Preliminary Injunction contending that the mini-series fim would
The six hour series is a McElroy and McElroy co-production not involve the private life of Juan Ponce Enrile nor that of his family and that a
with Home Box Office in American, the Australian Broadcast preliminary injunction would amount to a prior restraint on their right of free

44
expression. Petitioner Ayer Productions also filed its own Motion to Dismiss By a Resolution dated 24 March 1988, the petitions were consolidated and
alleging lack of cause of action as the mini-series had not yet been completed. private respondent was required to file a consolidated Answer. Further, in the
same Resolution, the Court granted a Temporary Restraining Order partially
In an Order 2 dated 16 March 1988, respondent court issued a writ of enjoining the implementation of the respondent Judge's Order of 16 March
Preliminary Injunction against the petitioners, the dispositive portion of which 1988 and the Writ of Preliminary Injunction issued therein, and allowing the
reads thus: petitioners to resume producing and filming those portions of the projected
mini-series which do not make any reference to private respondent or his
WHEREFORE, let a writ of preliminary injunction be issued, family or to any fictitious character based on or respondent.
ordering defendants, and all persons and entities employed
or under contract with them, including actors, actresses and Private respondent seasonably filed his Consolidated Answer on 6 April 1988
members of the production staff and crew as well as all invoking in the main a right of privacy.
persons and entities acting on defendants' behalf, to cease
and desist from producing and filming the mini-series entitled I
'The Four Day Revolution" and from making any reference
whatsoever to plaintiff or his family and from creating any The constitutional and legal issues raised by the present Petitions are sharply
fictitious character in lieu of plaintiff which nevertheless is drawn. Petitioners' claim that in producing and "The Four Day Revolution," they
based on, or bears rent substantial or marked resemblance or are exercising their freedom of speech and of expression protected under our
similarity to, or is otherwise Identifiable with, plaintiff in the Constitution. Private respondent, upon the other hand, asserts a right of
production and any similar film or photoplay, until further privacy and claims that the production and filming of the projected mini-series
orders from this Court, upon plaintiff's filing of a bond in the would constitute an unlawful intrusion into his privacy which he is entitled to
amount of P 2,000,000.00, to answer for whatever damages enjoy.
defendants may suffer by reason of the injunction if the Court
should finally decide that plaintiff was not entitled thereto. Considering first petitioners' claim to freedom of speech and of expression the
Court would once more stress that this freedom includes the freedom to film
xxx xxx xxx and produce motion pictures and to exhibit such motion pictures in theaters or
to diffuse them through television. In our day and age, motion pictures are a
(Emphasis supplied) univesally utilized vehicle of communication and medium Of expression. Along
with the press, radio and television, motion pictures constitute a principal
On 22 March 1988, petitioner Ayer Productions came to this Court by a Petition medium of mass communication for information, education and
for certiorari dated 21 March 1988 with an urgent prayer for Preliminary entertainment. In Gonzales v. Katigbak, 3 former Chief Justice Fernando,
Injunction or Restraining Order, which petition was docketed as G.R. No. L- speaking for the Court, explained:
82380.
1. Motion pictures are important both as a medium for the
A day later, or on 23 March 1988, petitiioner Hal McElroy also filed separate communication of Ideas and the expression of the artistic
Petition for certiorari with Urgent Prayer for a Restraining Order or Preliminary impulse. Their effect on the perception by our people of
Injunction, dated 22 March 1988, docketed as G.R. No. L-82398. issues and public officials or public figures as well as the pre
cultural traits is considerable. Nor as pointed out in Burstyn v.

45
Wilson (343 US 495 [19421) is the Importance of motion Lagunzad v. Vda. de Gonzales, 10 on which private respondent relies heavily,
pictures as an organ of public opinion lessened by the fact recognized a right to privacy in a context which included a claim to freedom of
that they are designed to entertain as well as to inform' (Ibid, speech and of expression. Lagunzad involved a suit fortion picture producer as
501). There is no clear dividing line between what involves licensee and the widow and family of the late Moises Padilla as licensors. This
knowledge and what affords pleasure. If such a distinction agreement gave the licensee the right to produce a motion Picture Portraying
were sustained, there is a diminution of the basic right to free the life of Moises Padilla, a mayoralty candidate of the Nacionalista Party for
expression. ... 4 the Municipality of Magallon, Negros Occidental during the November 1951
elections and for whose murder, Governor Rafael Lacson, a member of the
This freedom is available in our country both to locally-owned and to foreign- Liberal Party then in power and his men were tried and convicted. 11 In the
owned motion picture companies. Furthermore the circumstance that the judgment of the lower court enforcing the licensing agreement against the
production of motion picture films is a commercial activity expected to yield licensee who had produced the motion picture and exhibited it but refused to
monetary profit, is not a disqualification for availing of freedom of speech and pay the stipulated royalties, the Court, through Justice Melencio-Herrera, said:
of expression. In our community as in many other countries, media facilities are
owned either by the government or the private sector but the private sector- Neither do we agree with petitioner's subon that the
owned media facilities commonly require to be sustained by being devoted in Licensing Agreement is null and void for lack of, or for having
whole or in pailt to revenue producing activities. Indeed, commercial media an illegal cause or consideration, while it is true that
constitute the bulk of such facilities available in our country and hence to petitioner bad pled the rights to the book entitled "The
exclude commercially owned and operated media from the exerciseof Moises Padilla Story," that did not dispense with the need for
constitutionally protected om of speech and of expression can only result in the prior consent and authority from the deceased heirs to
drastic contraction of such constitutional liberties in our country. portray publicly episodes in said deceased's life and in that of
his mother and the member of his family. As held in Schuyler
The counter-balancing of private respondent is to a right of privacy. It was v. Curtis, ([1895],147 NY 434,42 NE 31 LRA 286.49 Am St Rep
demonstrated sometime ago by the then Dean Irene R. Cortes that our law, 671), 'a privilege may be given the surviving relatives of a
constitutional and statutory, does include a right of privacy. 5 It is left to case deperson to protect his memory, but the privilege wts for the
law, however, to mark out the precise scope and content of this right in benefit of the living, to protect their feelings and to preventa
differing types of particular situations. The right of privacy or "the right to be violation of their own rights in the character and memory of
let alone," 6 like the right of free expression, is not an absolute right. A limited the deceased.'
intrusion into a person's privacy has long been regarded as permissible where
that person is a public figure and the information sought to be elicited from Petitioners averment that private respondent did not have
him or to be published about him constitute of apublic character. 7 Succinctly any property right over the life of Moises Padilla since the
put, the right of privacy cannot be invoked resist publication and dissemination latter was a public figure, is neither well taken. Being a public
of matters of public interest. 8 The interest sought to be protected by the right figure ipso facto does not automatically destroy in toto a
of privacy is the right to be free from unwarranted publicity, from person's right to privacy. The right to invade a person's
the wrongful publicizing of the private affairs and activities of an privacy to disseminate public information does not extend to
individual which are outside the realm of legitimate public concern. 9 a fictional or novelized representation of a person, no matter
how public a he or she may be (Garner v. Triangle
Publications, DCNY 97 F. Supp., SU 549 [1951]). In the case at
bar, while it is true that petitioner exerted efforts to present

46
a true-to-life Story Of Moises Padilla, petitioner admits that In the case at bar, the interests observable are the right to
he included a little romance in the film because without it, it privacy asserted by respondent and the right of freedom of
would be a drab story of torture and brutality. 12 expression invoked by petitioner. taking into account the
interplay of those interests, we hold that under the particular
In Lagunzad, the Court had need, as we have in the instant case, to deal with circumstances presented, and considering the obligations
contraposed claims to freedom of speech and of expression and to privacy. assumed in the Licensing Agreement entered into by
Lagunzad the licensee in effect claimed, in the name of freedom of speech and petitioner, the validity of such agreement will have to be
expression, a right to produce a motion picture biography at least partly upheld particularly because the limits of freedom of
"fictionalized" of Moises Padilla without the consent of and without paying pre- expression are reached when expression touches upon
agreed royalties to the widow and family of Padilla. In rejecting the licensee's matters of essentially private concern." 13
claim, the Court said:
Whether the "balancing of interests test" or the clear and present danger test"
Lastly, neither do we find merit in petitioners contention that be applied in respect of the instant Petitions, the Court believes that a different
the Licensing Agreement infringes on the constitutional right conclusion must here be reached: The production and filming by petitioners of
of freedom of speech and of the press, in that, as a citizen the projected motion picture "The Four Day Revolution" does not, in the
and as a newspaperman, he had the right to express his circumstances of this case, constitute an unlawful intrusion upon private
thoughts in film on the public life of Moises Padilla without respondent's "right of privacy."
prior restraint.The right freedom of expression, indeed,
occupies a preferred position in the "hierarchy of civil 1. It may be observed at the outset that what is involved in the instant case is a
liberties" (Philippine Blooming Mills Employees Organization prior and direct restraint on the part of the respondent Judge upon the
v. Philippine Blooming Mills Co., Inc., 51 SCRA 191 [1963]). It exercise of speech and of expression by petitioners. The respondent Judge has
is not, however, without limitations. As held in Gonzales v. restrained petitioners from filming and producing the entire proposed motion
Commission on Elections, 27 SCRA 835, 858 [1960]: picture. It is important to note that in Lagunzad, there was no prior restrain of
any kind imposed upon the movie producer who in fact completed and
xxx xxx xxx exhibited the film biography of Moises Padilla. Because of the speech and of
expression, a weighty presumption of invalidity vitiates. 14 The invalidity of a
The prevailing doctine is that the clear and present danger measure of prior restraint doesnot, of course, mean that no subsequent
rule is such a limitation. Another criterion for permissible liability may lawfully be imposed upon a person claiming to exercise such
limitation on freedom of speech and the press, which constitutional freedoms. The respondent Judge should have stayed his hand,
includes such vehicles of the mass media as radio, television instead of issuing an ex-parte Temporary Restraining Order one day after filing
and the movies, is the "balancing of interest test" (Chief of a complaint by the private respondent and issuing a Preliminary Injunction
Justice Enrique M. Fernando on the Bill of Rights, 1970 ed. p. twenty (20) days later; for the projected motion picture was as yet
79). The principle "requires a court to take conscious and uncompleted and hence not exhibited to any audience. Neither private
detailed consideration of the interplay of interests observable respondent nor the respondent trial Judge knew what the completed film
in given situation or type of situation" (Separation Opinion of would precisely look like. There was, in other words, no "clear and present
the late Chief Justice Castro in Gonzales v. Commission on danger" of any violation of any right to privacy that private respondent could
Elections, supra, p. 899). lawfully assert.

47
2. The subject matter of "The Four Day Revolution" relates to the non-bloody Obviously to be included in this category are those who have
change of government that took place at Epifanio de los Santos Avenue in achieved some degree of reputation by appearing before the
February 1986, and the trian of events which led up to that denouement. public, as in the case of an actor, a professional baseball
Clearly, such subject matter is one of public interest and concern. Indeed, it is, player, a pugilist, or any other entertainment. The list is,
petitioners' argue, of international interest. The subject thus relates to a highly however, broader than this. It includes public officers, famous
critical stage in the history of this countryand as such, must be regarded as inventors and explorers, war heroes and even ordinary
having passed into the public domain and as an appropriate subject for speech soldiers, an infant prodigy, and no less a personage than the
and expression and coverage by any form of mass media. The subject mater, as Grand Exalted Ruler of a lodge. It includes, in short, anyone
set out in the synopsis provided by the petitioners and quoted above, does not who has arrived at a position where public attention is
relate to the individual life and certainly not to the private life of private focused upon him as a person.
respondent Ponce Enrile. Unlike in Lagunzad, which concerned the life story of
Moises Padilla necessarily including at least his immediate family, what we Such public figures were held to have lost, to some extent at
have here is not a film biography, more or less fictionalized, of private least, their tight to privacy. Three reasons were given, more
respondent Ponce Enrile. "The Four Day Revolution" is not principally about, or less indiscrimately, in the decisions" that they had sought
nor is it focused upon, the man Juan Ponce Enrile' but it is compelled, if it is to publicity and consented to it, and so could not complaint
be historical, to refer to the role played by Juan Ponce Enrile in the when they received it; that their personalities and their
precipitating and the constituent events of the change of government in affairs has already public, and could no longer be regarded as
February 1986. their own private business; and that the press had a privilege,
under the Constitution, to inform the public about those who
3. The extent of the instrusion upon the life of private respondent Juan Ponce have become legitimate matters of public interest. On one or
Enrile that would be entailed by the production and exhibition of "The Four Day another of these grounds, and sometimes all, it was held that
Revolution" would, therefore, be limited in character. The extent of that there was no liability when they were given additional
intrusion, as this Court understands the synopsis of the proposed film, may be publicity, as to matters legitimately within the scope of the
generally described as such intrusion as is reasonably necessary to keep that public interest they had aroused.
film a truthful historical account. Private respondent does not claim that
petitioners threatened to depict in "The Four Day Revolution" any part of the The privilege of giving publicity to news, and other matters of
private life of private respondent or that of any member of his family. public interest, was held to arise out of the desire and the
right of the public to know what is going on in the world, and
4. At all relevant times, during which the momentous events, clearly of public the freedom of the press and other agencies of information to
concern, that petitioners propose to film were taking place, private respondent tell it. "News" includes all events and items of information
was what Profs. Prosser and Keeton have referred to as a "public figure:" which are out of the ordinary hum-drum routine, and which
have 'that indefinable quality of information which arouses
A public figure has been defined as a person who, by his public attention.' To a very great extent the press, with its
accomplishments, fame, or mode of living, or by adopting a experience or instinct as to what its readers will want, has
profession or calling which gives the public a legitimate succeeded in making its own definination of news, as a glance
interest in his doings, his affairs, and his character, has at any morning newspaper will sufficiently indicate. It
become a 'public personage.' He is, in other words, a celebrity. includes homicide and othe crimes, arrests and police raides,
suicides, marriages and divorces, accidents, a death from the

48
use of narcotics, a woman with a rare disease, the birth of a respondent and certainly no revelation of intimate or embarrassing personal
child to a twelve year old girl, the reappearance of one facts. 17 The proposed motion picture should not enter into what Mme. Justice
supposed to have been murdered years ago, and Melencio-Herrera in Lagunzad referred to as "matters of essentially private
undoubtedly many other similar matters of genuine, if more concern." 18 To the extent that "The Four Day Revolution" limits itself in
or less deplorable, popular appeal. portraying the participation of private respondent in the EDSA Revolution to
those events which are directly and reasonably related to the public facts of the
The privilege of enlightening the public was not, however, EDSA Revolution, the intrusion into private respondent's privacy cannot be
limited, to the dissemination of news in the scene of current regarded as unreasonable and actionable. Such portrayal may be carried out
events. It extended also to information or education, or even even without a license from private respondent.
entertainment and amusement, by books, articles, pictures,
films and broadcasts concerning interesting phases of human II
activity in general, as well as the reproduction of the public
scene in newsreels and travelogues. In determining where to In a Manifestation dated 30 March 1988, petitioner Hal McElroy informed this
draw the line, the courts were invited to exercise a species of Court that a Temporary Restraining Order dated 25 March 1988, was issued by
censorship over what the public may be permitted to read; Judge Teofilo Guadiz of the Regional Trial Court of Makati, Branch 147, in Civil
and they were understandably liberal in allowing the benefit Case No. 88-413, entitled "Gregorio B. Honasan vs. Ayer Productions Pty. Ltd.,
of the doubt. 15 McElroy Film Productions, Hal McElroy, Lope Juban and PMP Motion for
Pictures Production" enjoining him and his production company from further
Private respondent is a "public figure" precisely because, inter alia, of his filimg any scene of the projected mini-series film. Petitioner alleged that
participation as a principal actor in the culminating events of the change of Honasan's complaint was a "scissors and paste" pleading, cut out straight grom
government in February 1986. Because his participation therein was major in the complaint of private respondent Ponce Enrile in Civil Case No. 88-151.
character, a film reenactment of the peaceful revolution that fails to make Petitioner Ayer Productions, in a separate Manifestation dated 4 April 1988,
reference to the role played by private respondent would be grossly brought to the attention of the Court the same information given by petitoner
unhistorical. The right of privacy of a "public figure" is necessarily narrower Hal McElroy, reiterating that the complaint of Gregorio B. Honasan was
than that of an ordinary citizen. Private respondent has not retired into the substantially identical to that filed by private respondent herein and stating
seclusion of simple private citizenship. he continues to be a "public figure." that in refusing to join Honasan in Civil Case No. 88-151, counsel for private
After a successful political campaign during which his participation in the EDSA respondent, with whom counsel for Gregorio Honasan are apparently
Revolution was directly or indirectly referred to in the press, radio and associated, deliberately engaged in "forum shopping."
television, he sits in a very public place, the Senate of the Philippines.
Private respondent filed a Counter-Manifestation on 13 April 1988 stating that
5. The line of equilibrium in the specific context of the instant case between the the "slight similarity" between private respondent's complaint and that on
constitutional freedom of speech and of expression and the right of privacy, Honasan in the construction of their legal basis of the right to privacy as a
may be marked out in terms of a requirement that the proposed motion component of the cause of action is understandable considering that court
picture must be fairly truthful and historical in its presentation of events. There pleadings are public records; that private respondent's cause of action for
must, in other words, be no knowing or reckless disregard of truth in depicting invasion of privacy is separate and distinct from that of Honasan's although
the participation of private respondent in the EDSA Revolution. 16 There must, they arose from the same tortious act of petitioners' that the rule on
further, be no presentation of the private life of the unwilling private permissive joinder of parties is not mandatory and that, the cited cases on

49
"forum shopping" were not in point because the parties here and those in Civil
Case No. 88-413 are not identical.

For reasons that by now have become clear, it is not necessary for the Court to
deal with the question of whether or not the lawyers of private respondent
Ponce Enrile have engaged in "forum shopping." It is, however, important to
dispose to the complaint filed by former Colonel Honasan who, having refused
to subject himself to the legal processes of the Republic and having become
once again in fugitive from justice, must be deemed to have forfeited any right
the might have had to protect his privacy through court processes.

WHEREFORE,

a) the Petitions for Certiorari are GRANTED DUE COURSE, and the Order dated
16 March 1988 of respondent trial court granting a Writ of Preliminary
Injunction is hereby SET ASIDE. The limited Temporary Restraining Order
granted by this Court on 24 March 1988 is hereby MODIFIED by enjoining
unqualifiedly the implementation of respondent Judge's Order of 16 March
1988 and made PERMANENT, and

b) Treating the Manifestations of petitioners dated 30 March 1988 and 4 April


1988 as separate Petitions for Certiorari with Prayer for Preliminary Injunction
or Restraining Order, the Court, in the exercise of its plenary and supervisory
jurisdiction, hereby REQUIRES Judge Teofilo Guadiz of the Regional Trial Court
of Makati, Branch 147, forthwith to DISMISS Civil Case No. 88-413 and
accordingly to SET ASIDE and DISSOLVE his Temporary Restraining Order dated
25 March 1988 and any Preliminary Injunction that may have been issued by
him.

No pronouncement as to costs.

SO ORDERED.

Yap, C.J., Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,


Gancayco, Padilla, Bidin, Sarmiento, Cortes and Griño-Aquino, JJ., concur.

50
Republic of the Philippines MIDLAND COURIER, a weekly newspaper circulated in the City of Baguio and
SUPREME COURT the Cordilleras, assailed the constitutionality of Section 19 of Comelec
Manila Resolution No. 2167, which provides:

EN BANC Section 19. Prohibition on columnists, commentators or


announcers. — During the plebiscite campaign period, on the
G.R. No. 90878 January 29, 1990 day before and on the plebiscite day, no mass media
columnist, commentator, announcer or personality shall use
PABLITO V. SANIDAD, petitioner, his column or radio or television time to campaign for or
vs. against the plebiscite issues.
THE COMMISSION ON ELECTIONS, respondent.
It is alleged by petitioner that said provision is void and unconstitutional
because it violates the constitutional guarantees of the freedom of expression
and of the press enshrined in the Constitution.
MEDIALDEA, J.:
Unlike a regular news reporter or news correspondent who merely reports the
news, petitioner maintains that as a columnist, his column obviously and
This is a petition for certiorari assailing the constitutionality of Section 19 of
necessarily contains and reflects his opinions, views and beliefs on any issue or
Comelec Resolution No. 2167 on the ground that it violates the constitutional
subject about which he writes. Petitioner believes that said provision of
guarantees of the freedom of expression and of the press.
COMELEC Resolution No. 2167 constitutes a prior restraint on his
constitutionally-guaranteed freedom of the press and further imposes
On October 23, 1989, Republic Act No. 6766, entitled "AN ACT PROVIDING FOR
subsequent punishment for those who may violate it because it contains a
AN ORGANIC ACT FOR THE CORDILLERA AUTONOMOUS REGION" was enacted
penal provision, as follows:
into law. Pursuant to said law, the City of Baguio and the Cordilleras which
consist of the provinces of Benguet, Mountain Province, Ifugao, Abra and
Article XIII, Section 122, Election Offenses and Banned Acts or
Kalinga-Apayao, all comprising the Cordillera Autonomous Region, shall take
Activities. — Except to the extent that the same may not be
part in a plebiscite for the ratification of said Organic Act originally scheduled
applicable plebiscite. the banned acts/activities and offenses
last December 27, 1989 which was, however, reset to January 30, 1990 by
defined in and penalized by the Omnibus Election Code
virtue of Comelec Resolution No. 2226 dated December 27, 1989.
('Sections 261, 262, 263 and Article' XXII, B.P. Blg. 881) and
the pertinent provisions of R.A. No. 6646 shall be aplicable to
The Commission on Elections, by virtue of the power vested by the 1987
the plebiscite governed by this Resolution.
Constitution, the Omnibus Election Code (BP 881), said R.A. 6766 and other
pertinent election laws, promulgated Resolution No. 2167, to govern the
Petitioner likewise maintains that if media practitioners were to express their
conduct of the plebiscite on the said Organic Act for the Cordillera Autonomous
views, beliefs and opinions on the issue submitted to a plebiscite, it would in
Region.
fact help in the government drive and desire to disseminate information, and
hear, as well as ventilate, all sides of the issue.
In a petition dated November 20, 1989, herein petitioner Pablito V. Sanidad,
who claims to be a newspaper columnist of the "OVERVIEW" for the BAGUIO

51
On November 28, 1989, We issued a temporary restraining order enjoining as to provide radio or television time, free of charge, during
respondent Commission on Elections from enforcing and implementing Section the period of the campaign.
19 of Resolution No. 2167. We also required the respondent to comment on
the petition. Respondent Comelec has relied much on Article IX-C of the 1987 Constitution
and Section 11 of R.A. 6646 as the basis for the promulgation of the questioned
On January 9, 1990, respondent Commission on Elections, through the Office of Section 19 of Comelec Resolution 2167.
the Solicitor General filed its Comment.
Article IX-C of the 1987 Constitution provides:
Respondent Comelec maintains that the questioned provision of Comelec
Resolution No. 2167 is not violative of the constitutional guarantees of the The Commission may, during the election period, supervise or
freedom of expression and of the press. Rather it is a valid implementation of regulate the enjoyment or utilization of all franchises or
the power of the Comelec to supervise and regulate media during election or permits for the operation of transportation and other public
plebiscite periods as enunciated in Article IX-C, Section 4 of the 1987 utilities, media of communication or information, all grants,
Constitution of the Republic of the Philippines. special privileges, or concessions granted by the Government
or any subdivision, agency or instrumentality thereof,
It is stated further by respondent that Resolution 2167 does not absolutely bar including any government-owned or controlled corporation
petitioner from expressing his views and/or from campaigning for or against or its subsidiary. Such supervision or regulation shall aim to
the Organic Act. He may still express his views or campaign for or against the ensure equal opportunity, time, and space, and the right to
act through the Comelec space and airtime. This is provided under Sections 90 reply, including reasonable, equal rates therefor, for public
and 92 of BP 881: information campaigns and forums among candidates in
connection with the objective of holding free, orderly,
Section 90. Comelec Space. — Commission shall procure honest, peaceful and credible elections.
space in at least one newspaper of general circulation in
every province or city: Provided, however, That in the Similarly, Section 11 of Republic Act No. 6646 (The Electoral Reform Law of
absence of said newspaper, publication shall be done in any 1987) likewise provides:
other magazine or periodical in said province or city, which
shall be known as "Comelec Space" wherein candidates can Prohibited forms of election Propaganda. — In addition to the
announce their candidacy. Said space shall be allocated, free forms of election propaganda prohibited under Section 85 of
of charge equally and impartially within the area in which the Batas Pambansa Blg. 881, it shall be unlawful: ...
newspaper is circulated.
(b) for any newspaper, radio, broadcasting or television
Section 92. Comelec Time. — The Commission shall procure station, or other mass media, or any person making use of
radio and television time to be known as "Comelec Time" the mass media to sell or to give free of charge print space or
which shall be allocated equally and impartially among the air time for campaign or other political purposes except to
candidates within the area of coverage of all radio and the Commission as provided under Sections 90 and 92 of
television stations. For this purpose, the franchise of all radio Batas Pambansa Blg. 881. Any mass media columnist,
broadcasting and television stations are hereby amended so commentator, announcer, or personality who is a candidate

52
for any elective office shall take a leave of absence from his persons for some office. In other words, the electorate is asked to vote for or
work as such during the campaign period. (Emphasis ours) against issues, not candidates in a plebiscite.

However, it is clear from Art. IX-C of the 1987 Constitution that what was Anent respondent Comelec's argument that Section 19 of Comelec Resolution
granted to the Comelec was the power to supervise and regulate the use and 2167 does not absolutely bar petitioner-columnist from expressing his views
enjoyment of franchises, permits or other grants issued for the operation of and/or from campaigning for or against the organic act because he may do so
transportation or other public utilities, media of communication or information through the Comelec space and/or Comelec radio/television time, the same is
to the end that equal opportunity, time and space, and the right to reply, not meritorious. While the limitation does not absolutely bar petitioner's
including reasonable, equal rates therefor, for public information campaigns freedom of expression, it is still a restriction on his choice of the forum where
and forums among candidates are ensured. The evil sought to be prevented by he may express his view. No reason was advanced by respondent to justify such
this provision is the possibility that a franchise holder may favor or give any abridgement. We hold that this form of regulation is tantamount to a
undue advantage to a candidate in terms of advertising space or radio or restriction of petitioner's freedom of expression for no justifiable reason.
television time. This is also the reason why a "columnist, commentator,
announcer or personality, who is a candidate for any elective office is required Plebiscite issues are matters of public concern and importance. The people's
to take a leave of absence from his work during the campaign period (2nd par. right to be informed and to be able to freely and intelligently make a decision
Section 11(b) R.A. 6646). It cannot be gainsaid that a columnist or would be better served by access to an unabridged discussion of the issues,
commentator who is also a candidate would be more exposed to the voters to including the forum. The people affected by the issues presented in a plebiscite
the prejudice of other candidates unless required to take a leave of absence. should not be unduly burdened by restrictions on the forum where the right to
expression may be exercised. Comelec spaces and Comelec radio time may
However, neither Article IX-C of the Constitution nor Section 11 (b), 2nd par. of provide a forum for expression but they do not guarantee full dissemination of
R.A. 6646 can be construed to mean that the Comelec has also been granted information to the public concerned because they are limited to either specific
the right to supervise and regulate the exercise by media practitioners portions in newspapers or to specific radio or television times.
themselves of their right to expression during plebiscite periods. Media
practitioners exercising their freedom of expression during plebiscite periods ACCORDINGLY, the instant petition is GRANTED. Section 19 of Comelec
are neither the franchise holders nor the candidates. In fact, there are no Resolution No. 2167 is declared null and void and unconstitutional. The
candidates involved in a plebiscite. Therefore, Section 19 of Comelec restraining order herein issued is hereby made permanent.
Resolution No. 2167 has no statutory basis.
SO ORDERED.
In the case of Badoy, Jr. v. Comelec, L-32546, Oct. 16, 1970, where the
constitutionality of the prohibition of certain forms of election propaganda was
assailed, We ruled therein that the prohibition is a valid exercise of the police
power of the state "to prevent the perversion and prostitution of the electoral
apparatus and of the denial of equal protection of the laws." The evil sought to
be prevented in an election which led to Our ruling in that case does not obtain
in a plebiscite. In a plebiscite, votes are taken in an area on some special
political matter unlike in an election where votes are cast in favor of specific

53
Republic of the Philippines stickers may be posted only in any of the authorized posting
SUPREME COURT areas provided in paragraph (f) of Section 21 hereof.
Manila
Section 21 (f) of the same resolution provides:
EN BANC
Sec. 21(f). Prohibited forms of election propaganda. —

It is unlawful:
G.R. No. 103956 March 31, 1992
xxx xxx xxx
BLO UMPAR ADIONG, petitioner,
vs. (f) To draw, paint, inscribe, post, display or publicly exhibit
COMMISSION ON ELECTIONS, respondent. any election propaganda in any place, whether public or
private, mobile or stationary, except in the COMELEC
common posted areas and/or billboards, at the campaign
headquarters of the candidate or political party, organization
GUTIERREZ, JR., J.: or coalition, or at the candidate's own residential house or
one of his residential houses, if he has more than
The specific issue in this petition is whether or not the Commission on Elections one: Provided, that such posters or election propaganda shall
(COMELEC) may prohibit the posting of decals and stickers on "mobile" places, not exceed two (2) feet by three (3) feet in size. (Emphasis
public or private, and limit their location or publication to the authorized supplied)
posting areas that it fixes.
xxx xxx xxx
On January 13, 1992, the COMELEC promulgated Resolution No. 2347 pursuant
to its powers granted by the Constitution, the Omnibus Election Code, Republic The statutory provisions sought to be enforced by COMELEC are Section 82 of
Acts Nos. 6646 and 7166 and other election laws. the Omnibus Election Code on lawful election propaganda which provides:

Section 15(a) of the resolution provides: Lawful election propaganda. — Lawful election propaganda
shall include:
Sec. 15. Lawful Election Propaganda. — The following are
lawful election propaganda: (a) Pamphlets, leaflets, cards, decals, stickers or other written
or printed materials of a size not more than eight and one-
(a) Pamphlets, leaflets, cards, decals, stickers, handwritten or half inches in width and fourteen inches in length;
printed letters, or other written or printed materials not
more than eight and one-half (8-1/2) inches in width and (b) Handwritten or printed letters urging voters to vote for or
fourteen (14) inches in length. Provided, That decals and against any particular candidate;

54
(c) Cloth, paper or cardboard posters, whether framed or and shall be removed within twenty-four (24) hours after said
posted, with an area not exceeding two feet by three feet, meeting or rally; . . . (Emphasis supplied)
except that, at the site and on the occasion of a public
meeting or rally, or in announcing the holding of said meeting Petitioner Blo Umpar Adiong, a senatorial candidate in the May 11, 1992
or rally, streamers not exceeding three feet by eight feet in elections now assails the COMELEC's Resolution insofar as it prohibits the
size, shall be allowed: Provided, That said streamers may not posting of decals and stickers in "mobile" places like cars and other moving
be displayed except one week before the date of the meeting vehicles. According to him such prohibition is violative of Section 82 of the
or rally and that it shall be removed within seventy-two hours Omnibus Election Code and Section 11(a) of Republic Act No. 6646. In addition,
after said meeting or rally; or the petitioner believes that with the ban on radio, television and print political
advertisements, he, being a neophyte in the field of politics stands to suffer
(d) All other forms of election propaganda not prohibited by grave and irreparable injury with this prohibition. The posting of decals and
this Code as the Commission may authorize after due notice stickers on cars and other moving vehicles would be his last medium to inform
to all interested parties and hearing where all the interested the electorate that he is a senatorial candidate in the May 11, 1992 elections.
parties were given an equal opportunity to be Finally, the petitioner states that as of February 22, 1992 (the date of the
heard: Provided, That the Commission's authorization shall be petition) he has not received any notice from any of the Election Registrars in
published in two newspapers of general circulation the entire country as to the location of the supposed "Comelec Poster Areas."
throughout the nation for at least twice within one week
after the authorization has been granted. (Section 37, 1978 The petition is impressed with merit. The COMELEC's prohibition on posting of
EC) decals and stickers on "mobile" places whether public or private except in
designated areas provided for by the COMELEC itself is null and void on
and Section 11(a) of Republic Act No. 6646 which provides: constitutional grounds.

Prohibited Forms of Election Propaganda. — In addition to First — the prohibition unduly infringes on the citizen's fundamental right of
the forms of election propaganda prohibited under Section free speech enshrined in the Constitution (Sec. 4, Article III). There is no public
85 of Batas Pambansa Blg. 881, it shall be unlawful: (a) to interest substantial enough to warrant the kind of restriction involved in this
draw, paint, inscribe, write, post, display or publicly exhibit case.
any election propaganda in any place, whether private, or
public, except in the common poster areas and/or There are various concepts surrounding the freedom of speech clause which
billboards provided in the immediately preceding section, at we have adopted as part and parcel of our own Bill of Rights provision on this
the candidate's own residence, or at the campaign basic freedom.
headquarters of the candidate or political party: Provided,
That such posters or election propaganda shall in no case All of the protections expressed in the Bill of Rights are important but we have
exceed two (2) feet by three (3) feet in area: Provided, accorded to free speech the status of a preferred freedom. (Thomas v. Collins,
Further, That at the site of and on the occasion of a public 323 US 516, 89 L. Ed. 430 [1945]; Mutuc v. Commission on Elections, 36 SCRA
meeting or rally, streamers, not more than two (2) and not 228 [1970])
exceeding three (3) feet by eight (8) feet each may be
displayed five (5) days before the date of the meeting or rally,

55
This qualitative significance of freedom of expression arises from the fact that it other public utilities, media of communication or information,
is the matrix, the indispensable condition of nearly every other freedom. (Palko all grants special privileges, or concessions granted by the
v. Connecticut, 302 U.S. 319 [1937]; Salonga v. Paño, 134 SCRA 438 [1985]) It is Government or any subdivision, agency, or instrumentality
difficult to imagine how the other provisions of the Bill of Rights and the right thereof, including any government-owned or controlled
to free elections may be guaranteed if the freedom to speak and to convince or corporation or its subsidiary. Such supervision or regulation
persuade is denied and taken away. shall aim to ensure equal opportunity, time, and space, and
the right to reply, including reasonable equal rates therefore,
We have adopted the principle that debate on public issues should be for public information campaigns and forms among
uninhibited, robust, and wide open and that it may well include vehement, candidates in connection with the object of holding free,
caustic and sometimes unpleasantly sharp attacks on government and public orderly, honest, peaceful and credible elections. (Article IX(c)
officials. (New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 686 [1964]; section 4)
cited in the concurring opinion of then Chief Justice Enrique Fernando in Babst
v. National Intelligence Board, 132 SCRA 316 [1984]) Too many restrictions will The variety of opinions expressed by the members of this Court in the recent
deny to people the robust, uninhibited, and wide open debate, the generating case of National Press Club v. Commission on Elections (G.R. No. 102653, March
of interest essential if our elections will truly be free, clean and honest. 5, 1991) and its companion cases underscores how difficult it is to draw a
dividing line between permissible regulation of election campaign activities and
We have also ruled that the preferred freedom of expression calls all the more indefensible repression committed in the name of free and honest elections. In
for the utmost respect when what may be curtailed is the dissemination of the National Press Club, case, the Court had occasion to reiterate the preferred
information to make more meaningful the equally vital right of suffrage. status of freedom of expression even as it validated COMELEC regulation of
(Mutuc v. Commission on Elections, supra) campaigns through political advertisements. The gray area is rather wide and
we have to go on a case to case basis.
The determination of the limits of the Government's power to regulate the
exercise by a citizen of his basic freedoms in order to promote fundamental There is another problem involved. Considering that the period of legitimate
public interests or policy objectives is always a difficult and delicate task. The campaign activity is fairly limited and, in the opinion of some, too short, it
so-called balancing of interests — individual freedom on one hand and becomes obvious that unduly restrictive regulations may prove unfair to
substantial public interests on the other — is made even more difficult in affected parties and the electorate.
election campaign cases because the Constitution also gives specific authority
to the Commission on Elections to supervise the conduct of free, honest, and For persons who have to resort to judicial action to strike down requirements
orderly elections. which they deem inequitable or oppressive, a court case may prove to be a
hollow remedy. The judicial process, by its very nature, requires time for
We recognize the fact that under the Constitution, the COMELEC during the rebuttal, analysis and reflection. We cannot act instantly on knee-jerk impulse.
election period is granted regulatory powers vis-a-vis the conduct and manner By the time we revoke an unallowably restrictive regulation or ruling, time
of elections, to wit: which is of the essence to a candidate may have lapsed and irredeemable
opportunities may have been lost.
Sec. 4. The Commission may, during the election period
supervise or regulate the enjoyment or utilization of all When faced with border line situations where freedom to speak by a candidate
franchises or permits for the operation of transportation and or party and freedom to know on the part of the electorate are invoked against

56
actions intended for maintaining clean and free elections, the police, local and present danger rule not only must the danger be patently clear and
officials and COMELEC, should lean in favor of freedom. For in the ultimate pressingly present but the evil sought to be avoided must be so substantive as
analysis, the freedom of the citizen and the State's power to regulate are not to justify a clamp over one's mouth or a writing instrument to be stilled:
antagonistic. There can be no free and honest elections if in the efforts to
maintain them, the freedom to speak and the right to know are unduly The case confronts us again with the duty our system places
curtailed. on the Court to say where the individual's freedom ends and
the State's power begins. Choice on that border, now as
There were a variety of opinions expressed in the National Press Club v. always delicate, is perhaps more so where the usual
Commission on Elections (supra) case but all of us were unanimous that presumption supporting legislation is balanced by the
regulation of election activity has its limits. We examine the limits of regulation preferred place given in our scheme to the great, the
and not the limits of free speech. The carefully worded opinion of the Court, indispensable democratic freedom secured by the first
through Mr. Justice Feliciano, shows that regulation of election campaign Amendment . . . That priority gives these liberties a sanctity
activity may not pass the test of validity if it is too general in its terms or not and a sanction not permitting dubious intrusions and it is the
limited in time and scope in its application, if it restricts one's expression of character of the right, not of the limitation, which determines
belief in a candidate or one's opinion of his or her qualifications, if it cuts off what standard governs the choice . . .
the flow of media reporting, and if the regulatory measure bears no clear and
reasonable nexus with the constitutionally sanctioned objective. For these reasons any attempt to restrict those liberties must
be justified by clear public interest, threatened not doubtfully
Even as the Court sustained the regulation of political advertisements, with or remotely, but by clear and present danger. The rational
some rather strong dissents, in National Press Club, we find the regulation in connection between the remedy provided and the evil to be
the present case of a different category. The promotion of a substantial curbed, which in other context might support legislation
Government interest is not clearly shown. against attack on due process grounds, will not suffice. These
rights rest on firmer foundation. Accordingly, whatever
A government regulation is sufficiently justified if it is within occasion would restrain orderly discussion and persuasion, at
the constitutional power of the Government, if it furthers an appropriate time and place, must have clear support in public
important or substantial governmental interest; if the danger, actual or impending. Only the greatest abuses,
governmental interest is unrelated to the suppression of free endangering permanent interests, give occasion for
expression; and if the incidental restriction on alleged First permissible limitation. (Thomas V. Collins, 323 US 516
Amendment freedoms is no greater than is essential to the [1945]). (Emphasis supplied)
furtherance of that interest. (Id., at 377, 20 L Ed 2d 672, 88 S
Ct 1673. (City Council v. Taxpayers For Vincent, 466 US 789, Significantly, the freedom of expression curtailed by the questioned prohibition
80 L Ed 2d 772, 104 S Ct 2118 [1984]) is not so much that of the candidate or the political party. The regulation
strikes at the freedom of an individual to express his preference and, by
The posting of decals and stickers in mobile places like cars and other moving displaying it on his car, to convince others to agree with him. A sticker may be
vehicles does not endanger any substantial government interest. There is no furnished by a candidate but once the car owner agrees to have it placed on his
clear public interest threatened by such activity so as to justify the curtailment private vehicle, the expression becomes a statement by the owner, primarily
of the cherished citizen's right of free speech and expression. Under the clear his own and not of anybody else. If, in the National Press Club case, the Court

57
was careful to rule out restrictions on reporting by newspapers or radio and beliefs respecting matters of public convenience may well
television stations and commentators or columnists as long as these are not support regulation directed at other personal activities, but
correctly paid-for advertisements or purchased opinions with less reason can be insufficient to justify such as diminishes the exercise of
we sanction the prohibition against a sincere manifestation of support and a rights so vital to the maintenance of democratic institutions,"
proclamation of belief by an individual person who pastes a sticker or decal on 308 US, at 161. In Cantwell v Connecticut, 310 US 296, 84 L ed
his private property. 1213, 60 S Ct. 900, 128 ALR 1352, the Court said that
"[c]onduct remains subject to regulation for the protection of
Second — the questioned prohibition premised on the statute and as couched society," but pointed out that in each case "the power to
in the resolution is void for overbreadth. regulate must be so exercised as not, in attaining a
permissible end, unduly to infringe the protected freedom."
A statute is considered void for overbreadth when "it offends the constitutional (310 US at 304) (Shelton v. Tucker, 364 US 479 [1960]
principle that a governmental purpose to control or prevent activities
constitutionally subject to state regulations may not be achieved by means The resolution prohibits the posting of decals and stickers not more than eight
which sweep unnecessarily broadly and thereby invade the area of protected and one-half (8-1/2) inches in width and fourteen (14) inches in length in any
freedoms." (Zwickler v. Koota, 19 L ed 2d 444 [1967]). place, including mobile places whether public or private except in areas
designated by the COMELEC. Verily, the restriction as to where the decals and
In a series of decisions this Court has held that, even though stickers should be posted is so broad that it encompasses even the citizen's
the governmental purpose be legitimate and substantial, that private property, which in this case is a privately-owned vehicle. In
purpose cannot be pursued by means that broadly stifle consequence of this prohibition, another cardinal rule prescribed by the
fundamental personal liberties when the end can be more Constitution would be violated. Section 1, Article III of the Bill of Rights
narrowly achieved. The breadth of legislative abridgment provides that no person shall be deprived of his property without due process
must be viewed in the light of less drastic means for achieving of law:
the same basic purpose.
Property is more than the mere thing which a person owns, it
In Lovell v. Griffin, 303 US 444, 82 L ed 949, 58 S Ct 666, the includes the right to acquire, use, and dispose of it; and the
Court invalidated an ordinance prohibiting all distribution of Constitution, in the 14th Amendment, protects these
literature at any time or place in Griffin, Georgia, without a essential attributes.
license, pointing out that so broad an interference was
unnecessary to accomplish legitimate municipal aims. In Property is more than the mere thing which a person owns. It
Schneider v. Irvington, 308 US 147, 84 L ed 155, 60 S Ct. 146, is elementary that it includes the right to acquire, use, and
the Court dealt with ordinances of four different dispose of it. The Constitution protects these essential
municipalities which either banned or imposed prior attributes of property. Holden v. Hardy, 169 U.S. 366, 391, 41
restraints upon the distribution of handbills. In holding the L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of the
ordinances invalid, the court noted that where legislative free use, enjoyment, and disposal of a person's acquisitions
abridgment of fundamental personal rights and liberties is without control or diminution save by the law of the land. 1
asserted, "the courts should be astute to examine the effect Cooley's Bl. Com. 127. (Buchanan v. Warley 245 US 60 [1917])
of the challenged legislation. Mere legislative preferences or

58
As earlier stated, we have to consider the fact that in the posting of decals and delegated power is unconfined and vagrant . . . This is delegation running riot.
stickers on cars and other moving vehicles, the candidate needs the consent of No such plentitude of power is susceptible of transfer."
the owner of the vehicle. In such a case, the prohibition would not only deprive
the owner who consents to such posting of the decals and stickers the use of Third — the constitutional objective to give a rich candidate and a poor
his property but more important, in the process, it would deprive the citizen of candidate equal opportunity to inform the electorate as regards their
his right to free speech and information: candidacies, mandated by Article II, Section 26 and Article XIII, section 1 in
relation to Article IX (c) Section 4 of the Constitution, is not impaired by posting
Freedom to distribute information to every citizen wherever decals and stickers on cars and other private vehicles. Compared to the
he desires to receive it is so clearly vital to the preservation of paramount interest of the State in guaranteeing freedom of expression, any
a free society that, putting aside reasonable police and health financial considerations behind the regulation are of marginal significance.
regulations of time and manner of distribution, it must be
fully preserved. The danger of distribution can so easily be Under section 26 Article II of the Constitution, "The State shall guarantee equal
controlled by traditional legal methods leaving to each access to opportunities for public service, . . . while under section 1, Article XIII
householder the full right to decide whether he will receive thereof "The Congress shall give highest priority to the enactment of measures
strangers as visitors, that stringent prohibition can serve no that protect and enhance the right of all the people to human dignity, reduce
purpose but that forbidden by the constitution, the naked social, economic, and political inequalities, and remove cultural inequities by
restriction of the dissemination of ideas." (Martin v. City of equitably diffusing wealth and political power for the common good."
Struthers, Ohio, 319 U.S. 141; 87 L. ed. 1313 [1943]) (Emphasis supplied)

The right to property may be subject to a greater degree of regulation but It is to be reiterated that the posting of decals and stickers on cars, calesas,
when this right is joined by a "liberty" interest, the burden of justification on tricycles, pedicabs and other moving vehicles needs the consent of the owner
the part of the Government must be exceptionally convincing and irrefutable. of the vehicle. Hence, the preference of the citizen becomes crucial in this kind
The burden is not met in this case. of election propaganda not the financial resources of the candidate. Whether
the candidate is rich and, therefore, can afford to doleout more decals and
Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits stickers or poor and without the means to spread out the same number of
the posting or display of election propaganda in any place, whether public or decals and stickers is not as important as the right of the owner to freely
private, except in the common poster areas sanctioned by COMELEC. This express his choice and exercise his right of free speech. The owner can even
means that a private person cannot post his own crudely prepared personal prepare his own decals or stickers for posting on his personal property. To
poster on his own front door or on a post in his yard. While the COMELEC will strike down this right and enjoin it is impermissible encroachment of his
certainly never require the absurd, there are no limits to what overzealous and liberties.
partisan police officers, armed with a copy of the statute or regulation, may do.
In sum, the prohibition on posting of decals and stickers on "mobile" places
The provisions allowing regulation are so loosely worded that they include the whether public or private except in the authorized areas designated by the
posting of decals or stickers in the privacy of one's living room or bedroom. This COMELEC becomes censorship which cannot be justified by the Constitution:
is delegation running riot. As stated by Justice Cardozo in his concurrence
in Panama Refining Co. v. Ryan (293 U.S. 388; 79 L. Ed. 446 [1935), "The . . . The concept of the Constitution as the fundamental law,
setting forth the criterion for the validity of any public act

59
whether proceeding from the highest official or the lowest WHEREFORE, the petition is hereby GRANTED. The portion of Section 15 (a) of
functionary, is a postulate of our system of government. That Resolution No. 2347 of the Commission on Elections providing that "decals and
is to manifest fealty to the rule of law, with priority accorded stickers may be posted only in any of the authorized posting areas provided in
to that which occupies the topmost rung in the legal paragraph (f) of Section 21 hereof" is DECLARED NULL and VOID.
hierarchy. The three departments of government in the
discharge of the functions with which it is entrusted have no SO ORDERED.
choice but to yield obedience to its commands. Whatever
limits it imposes must be observed. Congress in the Narvasa, C.J., Melencio-Herrera, Paras, Padilla, Bidin, Griño-Aquino, Medialdea,
enactment of statutes must ever be on guard lest the Regalado, Davide, Jr., Romero and Nocon, J.J., concur.
restrictions on its authority, either substantive or formal, be
transcended. The Presidency in the execution of the laws
Feliciano and Bellosillo, JJ., are on leave.
cannot ignore or disregard what it ordains. In its task of
applying the law to the facts as found in deciding cases, the
judiciary is called upon to maintain inviolate what is decreed
by the fundamental law. Even its power of judicial review to
pass upon the validity of the acts of the coordinate branches
in the course of adjudication is a logical. corollary of this basic
principle that the Constitution is paramount. It overrides any
governmental measure that fails to live up to its mandates.
Thereby there is a recognition of its being the supreme law. Separate Opinions
(Mutuc v. Commission on Elections, supra)

The unusual circumstances of this year's national and local elections call for a
more liberal interpretation of the freedom to speak and the right to know. It is CRUZ, J.: concurring:
not alone the widest possible dissemination of information on platforms and
programs which concern us. Nor are we limiting ourselves to protecting the I join Mr. Justice Gutierrez and reiterate the views expressed in my dissent
unfettered interchange of ideas to bring about political change. (Cf. New York in National Press Club v. Commission on Elections. The stand taken by the Court
Times v. Sullivan, supra) The big number of candidates and elective positions in the case at bar is a refreshing change from its usual deferential attitude
involved has resulted in the peculiar situation where almost all voters cannot toward authoritarianism as a persistent vestige of the past regime. After the
name half or even two-thirds of the candidates running for Senator. The public disappointing decision in the ad ban case, I hope that the present decision will
does not know who are aspiring to be elected to public office. guide us to the opposite direction, toward liberty and the full recognition of
freedom of expression. This decision is a small step in rectifying the errors of
There are many candidates whose names alone evoke qualifications, platforms, the past, but it is a step just the same, and on the right track this time.
programs and ideologies which the voter may accept or reject. When a person
attaches a sticker with such a candidate's name on his car bumper, he is Regarding the sticker ban, I think we are being swamped with regulations that
expressing more than the name; he is espousing ideas. Our review of the unduly obstruct the free flow of information so vital in an election campaign.
validity of the challenged regulation includes its effects in today's particular The Commission on Elections seems to be bent on muzzling the candidates and
circumstances. We are constrained to rule against the COMELEC prohibition.

60
imposing all manner of silly restraints on their efforts to reach the electorate.
Reaching the electorate is precisely the purpose of an election campaign, but
the Commission on Elections obviously believes that the candidates should be
as quiet as possible.

Instead of limiting the dissemination of information on the election issues and


the qualifications of those vying for public office, what the Commission on
Elections should concentrate on is the education of the voters on the proper
exercise of their suffrages. This function is part of its constitutional duty to
supervise and regulate elections and to prevent them from deteriorating into
popularity contests where the victors are chosen on the basis not of their
platforms and competence but on their ability to sing or dance, or play a
musical instrument, or shoot a basketball, or crack a toilet joke, or exhibit some
such dubious talent irrelevant to their ability to discharge a public office. The
public service is threatened with mediocrity and indeed sheer ignorance if not
stupidity. That is the problem the Commission on Elections should try to
correct instead of wasting its time on much trivialities as where posters shall be
allowed and stickers should not be attached and speeches may be delivered.

The real threat in the present election is the influx of the unqualified
professional entertainers whose only asset is the support of their drooling fans,
the demagogues who drumbeat to the clink of coins their professed present
virtues and past innocence, the opportunists for whom flexibility is a means of
political survival and even of financial gain, and, most dangerous of all, the
elements of our electorate who would, with their mindless ballots, impose
these office-seekers upon the nation. These are the evils the Commission on
Elections should try to correct, not the inconsequential and inane question of
where stickers should be stuck. I have nothing but praise for the zeal of the
Commission on Elections in pursuing the ideal of democratic elections, but I am
afraid it is barking up the wrong tree.

61
Republic of the Philippines groups, to conduct radio-TV coverage of the elections . . . and to make [an] exit
SUPREME COURT survey of the . . . vote during the elections for national officials particularly for
Manila President and Vice President, results of which shall be [broadcast]
immediately."2 The electoral body believed that such project might conflict
EN BANC with the official Comelec count, as well as the unofficial quick count of the
National Movement for Free Elections (Namfrel). It also noted that it had not
G.R. No. 133486 January 28, 2000 authorized or deputized Petitioner ABS-CBN to undertake the exit survey.

ABS-CBN BROADCASTING CORPORATION, petitioner, On May 9, 1998, this Court issued the Temporary Restraining Order prayed for
vs. by petitioner. We directed the Comelec to cease and desist, until further
COMMISSION ON ELECTIONS, respondent. orders, from implementing the assailed Resolution or the restraining order
issued pursuant thereto, if any. In fact, the exit polls were actually conducted
and reported by media without any difficulty or problem.
PANGANIBAN, J.:

The Issues
The holding of exit polls and the dissemination of their results through mass
media constitute an essential part of the freedoms of speech and of the press.
Hence, the Comelec cannot ban them totally in the guise of promoting clean, Petitioner raises this lone issue: "Whether or not the Respondent Commission
honest, orderly and credible elections. Quite the contrary, exit polls — properly acted with grave abuse of discretion amounting to a lack or excess of
conducted and publicized — can be vital tools in eliminating the evils of jurisdiction when it approved the issuance of a restraining order enjoining the
election-fixing and fraud. Narrowly tailored countermeasures may be petitioner or any [other group], its agents or representatives from conducting
prescribed by the Comelec so as to minimize or suppress the incidental exit polls during the . . . May 11 elections."3
problems in the conduct of exit polls, without transgressing in any manner the
fundamental rights of our people. In his Memorandum,4 the solicitor general, in seeking to dismiss the Petition,
brings up additional issues: (1) mootness and (2) prematurity, because of
The Case and the Facts petitioner's failure to seek a reconsideration of the assailed Comelec
Resolution.
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court
assailing Commission on Elections (Comelec) en banc Resolution No. 98- The Court's Ruling
14191 dated April 21, 1998. In the said Resolution, the poll body
The Petition5 is meritorious.
RESOLVED to approve the issuance of a restraining order to stop ABS-
CBN or any other groups, its agents or representatives from Procedural Issues:
conducting such exit survey and to authorize the Honorable Chairman
to issue the same. Mootness and Prematurity

The Resolution was issued by the Comelec allegedly upon "information from [a]
reliable source that ABS-CBN (Lopez Group) has prepared a project, with PR

62
The solicitor general contends that the petition is moot and academic, because transcendental constitutional issues. Direct resort to this Court through a
the May 11, 1998 election has already been held and done with. Allegedly, special civil action for certiorari is therefore justified.
there is no longer any actual controversy before us.
Main Issue:
The issue is not totally moot. While the assailed Resolution referred specifically
to the May 11, 1998 election, its implications on the people's fundamental Validity of Conducting Exit Polls
freedom of expression transcend the past election. The holding of periodic
elections is a basic feature of our democratic government. By its very nature, An exit poll is a species of electoral survey conducted by qualified individuals or
exit polling is tied up with elections. To set aside the resolution of the issue groups of individuals for the purpose of determining the probable result of an
now will only postpone a task that could well crop up again in future elections. 6 election by confidentially asking randomly selected voters whom they have
voted for, immediately after they have officially cast their ballots. The results of
In any event, in Salonga v. Cruz Paño, the Court had occasion to reiterate that it the survey are announced to the public, usually through the mass media, to
"also has the duty to formulate guiding and controlling constitutional give an advance overview of how, in the opinion of the polling individuals or
principles, precepts, doctrines, or rules. It has the symbolic function of organizations, the electorate voted. In our electoral history, exit polls had not
educating bench and bar on the extent of protection given by constitutional been resorted to until the recent May 11, 1998 elections.
guarantees."7 Since the fundamental freedoms of speech and of the press are
being invoked here, we have resolved to settle, for the guidance of posterity, In its Petition, ABS-CBN Broadcasting Corporation maintains that it is a
whether they likewise protect the holding of exit polls and the dissemination of responsible member of the mass media, committed to report balanced
data derived therefrom. election-related data, including "the exclusive results of Social Weather Station
(SWS) surveys conducted in fifteen administrative regions."
The solicitor general further contends that the Petition should be dismissed for
petitioner's failure to exhaust available remedies before the issuing forum, It argues that the holding of exit polls and the nationwide reporting their
specifically the filing of a motion for reconsideration. results are valid exercises of the freedoms of speech and of the press. It
submits that, in precipitately and unqualifiedly restraining the holding and the
This Court, however, has ruled in the past that this procedural requirement reporting of exit polls, the Comelec gravely abused its discretion and grossly
may be glossed over to prevent a miscarriage of justice,8 when the issue violated the petitioner's constitutional rights.
involves the principle of social justice or the protection of labor, 9 when the
decision or resolution sought to be set aside is a nullity, 10 or when the need for Public respondent, on the other hand, vehemently denies that, in issuing the
relief is extremely urgent and certiorari is the only adequate and speedy assailed Resolution, it gravely abused its discretion. It insists that the issuance
remedy available.11 thereof was "pursuant to its constitutional and statutory powers to promote a
clean, honest, orderly and credible May 11, 1998 elections"; and "to protect,
The instant Petition assails a Resolution issued by the Comelec en banc on April preserve and maintain the secrecy and sanctity of the ballot." It contends that
21, 1998, only twenty (20) days before the election itself. Besides, the "the conduct of exit surveys might unduly confuse and influence the voters,"
petitioner got hold of a copy thereof only on May 4, 1998. Under the and that the surveys were designed "to condition the minds of people and
circumstances, there was hardly enough opportunity to move for a cause confusion as to who are the winners and the [losers] in the election,"
reconsideration and to obtain a swift resolution in time or the May 11, 1998 which in turn may result in "violence and anarchy."
elections. Moreover, not only is time of the essence; the Petition involves

63
Public respondent further argues that "exit surveys indirectly violate the The freedom of expression is a means of assuring individual self-fulfillment, of
constitutional principle to preserve the sanctity of the ballots," as the "voters attaining the truth, of securing participation by the people in social and political
are lured to reveal the contents of ballots," in violation of Section 2, Article V of decision-making, and of maintaining the balance between stability and
the Constitution;12 and relevant provisions of the Omnibus Election Code.13 It change.17 It represents a profound commitment to the principle that debates
submits that the constitutionally protected freedoms invoked by petitioner on public issues should be uninhibited, robust, and wide open. 18 It means more
"are not immune to regulation by the State in the legitimate exercise of its than the right to approve existing political beliefs or economic arrangements,
police power," such as in the present case. to lend support to official measures, or to take refuge in the existing climate of
opinion on any of public consequence. And paraphrasing the eminent Justice
The solicitor general, in support of the public respondent, adds that the exit Oliver Wendell Holmes,19 we stress that the freedom encompasses the thought
polls pose a "clear and present danger of destroying the credibility and integrity we hate, no less than the thought we agree with.
of the electoral process," considering that they are not supervised by any
government agency and can in general be manipulated easily. He insists that Limitations
these polls would sow confusion among the voters and would undermine the
official tabulation of votes conducted by the Commission, as well as the quick The realities of life in a complex society, however, preclude an absolute
count undertaken by the Namfrel. exercise of the freedoms of speech and of the press. Such freedoms could not
remain unfettered and unrestrained at all times and under all
Admittedly, no law prohibits the holding and the reporting of exit polls. The circumstances.20 They are not immune to regulation by the State in the exercise
question can thus be more narrowly defined: May the Comelec, in the exercise of its police power.21 While the liberty to think is absolute, the power to
of its powers, totally ban exit polls? In answering this question, we need to express such thought in words and deeds has limitations.
review quickly our jurisprudence on the freedoms of speech and of the press.
In Cabansag v. Fernandez22 this Court had occasion to discuss two theoretical
Nature and Scope of Freedoms of Speech and of the Press test in determining the validity of restrictions to such freedoms, as follows:

The freedom of expression is a fundamental principle of our democratic These are the "clear and present danger" rule and the "dangerous
government. It "is a 'preferred' right and, therefore, stands on a higher level tendency" rule. The first, as interpreted in a number of cases, means
than substantive economic or other liberties. . . . [T]his must be so because the that the evil consequence of the comment or utterance must be
lessons of history, both political and legal, illustrate that freedom of thought "extremely serious and the degree of imminence extremely high"
and speech is the indispensable condition of nearly every other form of before the utterance can be punished. The danger to be guarded
freedom."14 against is the "substantive evil" sought to be prevented. . . .23

Our Constitution clearly mandates that no law shall be passed abridging the The "dangerous tendency" rule, on the other hand, . . . may be
freedom of speech or of the press.15In the landmark case Gonzales epitomized as follows: if the words uttered create a dangerous
v. Comelec,16 this Court enunciated that at the very least, free speech and a tendency which the state has a right to prevent, then such words are
free press consist of the liberty to discuss publicly and truthfully any matter of punishable. It is not necessary that some definite or immediate acts of
public interest without prior restraint. force, violence, or unlawfulness be advocated. It is sufficient that such
acts be advocated in general terms. Nor is it necessary that the
language used be reasonably calculated to incite persons to acts of

64
force, violence, or unlawfulness. It is sufficient if the natural tendency substantial government interest; if the governmental interest is
and probable effect of the utterance be to bring about the substantive unrelated to the suppression of free expression; and if the incidental
evil which the legislative body seeks to prevent.24 restriction on alleged First Amendment freedoms is no greater than is
essential to the furtherance of that interest.38
Unquestionably, this Court adheres to the "clear and present danger" test. It
implicitly did in its earlier decisions in Primicias v. Fugoso25 and American Bible Hence, even though the government's purposes are legitimate and substantial,
Society v. City of Manila;26 as well as in later ones, Vera v. Arca,27Navarro they cannot be pursued by means that broadly stifle fundamental personal
v. Villegas,28 Imbong v. Ferrer,29 Blo Umpar Adiong v. Comelec30 and, more liberties, when the end can be more narrowly achieved.39
recently, in Iglesia ni Cristo v. MTRCB.31 In setting the standard or test for the
"clear and present danger" doctrine, the Court echoed the words of Justice The freedoms of speech and of the press should all the more be upheld when
Holmes: "The question in every case is whether the words used are used in what is sought to be curtailed is the dissemination of information meant. to
such circumstances and are of such a nature as to create a clear and present add meaning to the equally vital right of suffrage.40 We cannot support any
danger that they will bring about the substantive evils that Congress has a right ruling or order "the effect of which would be to nullify so vital a constitutional
to prevent. It is a question of proximity and degree."32 right as free speech."41 When faced with borderline situations in which the
freedom of a candidate or a party to speak or the freedom of the electorate to
A limitation on the freedom of expression may be justified only by a danger of know is invoked against actions allegedly made to assure clean and free
such substantive character that the state has a right to prevent. Unlike in the elections, this Court shall lean in favor of freedom. For in the ultimate analysis,
"dangerous tendency" doctrine, the danger must not only be clear but also the freedom of the citizen and the State's power to regulate should not be
present. "Present" refers to the time element; the danger must not only be antagonistic. There can be no free and honest elections if, in the efforts to
probable but very likely to be inevitable. 33 The evil sought to be avoided must maintain them, the freedom to speak and the right to know are unduly
be so substantive as to justify a clamp over one's mouth or a restraint of a curtailed.42
writing instrument.34
True, the government has a stake in protecting the fundamental right to vote
Justification for a Restriction by providing voting places that are safe and accessible. It has the duty to secure
the secrecy of the ballot and to preserve the sanctity and the integrity of the
Doctrinally, the Court has always ruled in favor of the freedom of expression, electoral process. However, in order to justify a restriction of the people's
and any restriction is treated an exemption. The power to exercise prior freedoms of speech and of the press, the state's responsibility of ensuring
restraint is not to be presumed; rather the presumption is against its orderly voting must far outweigh them.
validity.35 And it is respondent's burden to overthrow such presumption. Any
act that restrains speech should be greeted with furrowed brows,36 so it has These freedoms have additional importance, because exit polls generate
been said. important research data which may be used to study influencing factors and
trends in voting behavior. An absolute prohibition would thus be unreasonably
To justify a restriction, the promotion of a substantial government interest restrictive, because it effectively prevents the use of exit poll data not only for
must be clearly shown.37 Thus: election-day projections, but also for long-term research.43

A government regulation is sufficiently justified if it is within the Comelec Ban on Exit Polling
constitutional power of the government, if it furthers an important or

65
In the case at bar, the Comelec justifies its assailed Resolution as having been Moreover, the prohibition incidentally prevents the collection of exit poll data
issued pursuant to its constitutional mandate to ensure a free, orderly, honest, and their use for any purpose. The valuable information and ideas that could be
credible and peaceful election. While admitting that "the conduct of an exit poll derived from them, based on the voters' answer to the survey questions will
and the broadcast of the results thereof [are] . . . an exercise of press forever remain unknown and unexplored. Unless the ban is restrained,
freedom," it argues that "[p]ress freedom may be curtailed if the exercise candidates, researchers, social scientists and the electorate in general would be
thereof creates a clear and present danger to the community or it has a deprived of studies on the impact of current events and of election-day and
dangerous tendency." It then contends that "an exit poll has the tendency to other factors on voters' choices.1âwphi1.nêt
sow confusion considering the randomness of selecting interviewees, which
further make[s] the exit poll highly unreliable. The probability that the results In Daily Herald Co. v. Munro,46 the US Supreme Court held that a statute, one of
of such exit poll may not be in harmony with the official count made by the the purposes of which was to prevent the broadcasting of early returns, was
Comelec . . . is ever present. In other words, the exit poll has a clear and unconstitutional because such purpose was impermissible, and the statute was
present danger of destroying the credibility and integrity of the electoral neither narrowly tailored to advance a state interest nor the least restrictive
process." alternative. Furthermore, the general interest of the State in insulating voters
from outside influences is insufficient to justify speech regulation. Just as
Such arguments are purely speculative and clearly untenable. First, by the very curtailing election-day broadcasts and newspaper editorials for the reason that
nature of a survey, the interviewees or participants are selected at random, so they might indirectly affect the voters' choices is impermissible, so is
that the results will as much as possible be representative or reflective of the impermissible, so is regulating speech via an exit poll restriction.47
general sentiment or view of the community or group polled. Second, the
survey result is not meant to replace or be at par with the official Comelec The absolute ban imposed by the Comelec cannot, therefore, be justified. It
count. It consists merely of the opinion of the polling group as to who the does not leave open any alternative channel of communication to gather the
electorate in general has probably voted for, based on the limited data type of information obtained through exit polling. On the other hand, there are
gathered from polled individuals. Finally, not at stake here are the credibility other valid and reasonable ways and means to achieve the Comelec end of
and the integrity of the elections, which are exercises that are separate and avoiding or minimizing disorder and confusion that may be brought about by
independent from the exit polls. The holding and the reporting of the results of exit surveys.
exit polls cannot undermine those of the elections, since the former is only part
of the latter. If at all, the outcome of one can only be indicative of the other. For instance, a specific limited area for conducting exit polls may be
designated. Only professional survey groups may be allowed to conduct the
The Comelec's concern with the possible noncommunicative effect of exit polls same. Pollsters may be kept at a reasonable distance from the voting center.
— disorder and confusion in the voting centers — does not justify a total ban They may be required to explain to voters that the latter may refuse
on them. Undoubtedly, the assailed Comelec Resolution is too broad, since its interviewed, and that the interview is not part of the official balloting process.
application is without qualification as to whether the polling is disruptive or The pollsters may further be required to wear distinctive clothing that would
not.44 Concededly, the Omnibus Election Code prohibits disruptive behavior show they are not election officials.48 Additionally, they may be required to
around the voting centers.45 There is no showing, however, that exit polls or undertake an information campaign on the nature of the exercise and the
the means to interview voters cause chaos in voting centers. Neither has any results to be obtained therefrom. These measures, together with a general
evidence been presented proving that the presence of exit poll reporters near prohibition of disruptive behavior, could ensure a clean, safe and orderly
an election precinct tends to create disorder or confuse the voters. election.

66
For its part, petitioner ABS-CBN explains its survey methodology as follows: (1) In exit polls, the contents of the official ballot are not actually exposed.
communities are randomly selected in each province; (2) residences to be Furthermore, the revelation of whom an elector has voted for is not
polled in such communities are also chosen at random; (3) only individuals who compulsory, but voluntary. Voters may also choose not to reveal their
have already voted, as shown by the indelible ink on their fingers, are identities. Indeed, narrowly tailored countermeasures may be prescribed by
interviewed; (4) the interviewers use no cameras of any sort; (5) the poll results the Comelec, so as to minimize or suppress incidental problems in the conduct
are released to the public only on the day after the elections. 49 These of exit polls, without transgressing the fundamental rights of our people.
precautions, together with the possible measures earlier stated, may be
undertaken to abate the Comelec's fear, without consequently and WHEREFORE, the Petition is GRANTED, and the Temporary Restraining Order
unjustifiably stilling the people's voice. issued by the Court on May 9, 1998 is made PERMANENT. Assailed Minute
Resolution No. 98-1419 issued by the Comelec en banc on April 21, 1998 is
With the foregoing premises, we conclude that the interest of the state in hereby NULLIFIED and SET ASIDE. No costs.
reducing disruption is outweighed by the drastic abridgment of the
constitutionally guaranteed rights of the media and the electorate. Quite the SO ORDERED.
contrary, instead of disrupting elections, exit polls — properly conducted and
publicized — can be vital tools for the holding of honest, orderly, peaceful and Davide, Jr., C.J., Bellosillo, Puno, Quisumbing, Purisima, Buena, Gonzaga-Reyes,
credible elections; and for the elimination of election-fixing, fraud and other Ynares-Santiago and De Leon, Jr., JJ., concur.
electoral ills. Kapunan, J., see dissenting opinion.
Vitug, J., please see separate opinion.
Violation of Ballot Secrecy Melo and Mendoza, JJ., are join the separate opinion of Justice Vitug.
Pardo, J., took no part.
The contention of public respondent that exit polls indirectly transgress the
sanctity and the secrecy of the ballot is off-tangent to the real issue. Petitioner
does not seek access to the ballots cast by the voters. The ballot system of
voting is not at issue here.
Separate Opinions
The reason behind the principle of ballot secrecy is to avoid vote buying
through voter identification. Thus, voters are prohibited from exhibiting the
contents of their official ballots to other persons, from making copies thereof,
or from putting distinguishing marks thereon so as to be identified. Also
proscribed is finding out the contents of the ballots cast by particular voters or
KAPUNAN, J., dissenting opinion;
disclosing those of disabled or illiterate voters who have been assisted. Clearly,
what is forbidden is the association of voters with their respective votes, for
I share the view of Justice Jose C. Vitug in his Separate Opinion that the case is
the purpose of assuring that the votes have been cast in accordance with the
technically moot. Since the Comelec has not declared exit polls to be illegal and
instructions of a third party. This result cannot, however, be achieved merely
neither did the petitioner present its methodology or system of conducting the
through the voters' verbal and confidential disclosure to a pollster of whom
exit polls to the poll body, the nullification of the Comelec's questioned
they have voted for.
resolution is bereft of empirical basis. The decision of this Court constitutes a
mere academic exercise in view of the premature nature of the issues and the

67
lack of "concreteness" of the controversy. I wish however, to express my . . . the clear-and-present danger test is not, however, a sovereign
thoughts on a few material points. remedy for all free speech problems. As has been pointed out by a
thoughtful student of constitutional law, it was originally formulated
The majority opinion cites the general rules that any restrictions to freedom of for the criminal law and only later appropriated for free speech cases.
expression would be burdened with a presumption of invalidity and should be For the criminal law is necessarily concerned with the line at which
greeted with "furrowed brews."1 While this has been the traditional approach, innocent preparation ends and guilty conspiracy or attempt begins.
this rules does not apply where, as in this case, the Comelec exercised its Clearly, it is inappropriate as a test for determining the constitutional
Constitutional functions of securing the secrecy and sanctity of the ballots and validity of law which, like §11(b) of R.A. No. 6646, are not concerned
ensuring the integrity of the elections. Thus, Mr. Justice Feliciano in National with the content of political ads but only with their incidents. To apply
Press (NPC) v. Comelec2 wrote: the clear-and-present danger test to such regulatory measures would
be like using a sledgehammer to drive a nail when a regular hammer is
The technical effect of Article IX (C) (4) of the Constitution may be all that is needed.6
seen to be that no presumption of invalidity arises in respect of
supervisory or regulatory authority on the part of the COMELEC for On the matter of methodology in conducting polls, petitioner gave assurance
the purpose of securing equal opportunity among candidates for that the exit poll results will only be made public a day after the elections, in
political office, although such supervision or regulation may result in order to allay fears of "trending," "bandwagon-effect" or disruption. This offers
some limitation of the right of free speech and free press. For little comfort considering the state of our country's electoral system. Unlike in
supervision or regulation of the operations of media enterprises is other countries where voting and counting are computerized, our elections are
scarcely conceivable without such accompanying limitation. Thus, the characterized by snail-paced counting. It is not infrequent that postponement,
applicable rule is the general, time honored one — that a statute is failure or annulment of elections occur in some areas designated as election
presumed to be constitutional and that the party asserting its hot spots.7 Such being the case, exit poll results made public after the day of
unconstitutionality must discharge the burden of clearly and voting in the regular elections but before the conduct of special elections in
convincingly proving that assertion.3 these areas may potentially pose the danger of "trending," "bandwagon-effect"
and disruption of elections.
The NPC decision holds that if the right to free speech collides with a norm of
constitutional stature,4 the rule on heavy presumption of invalidity does not In view of the foregoing discussion, I believe the Comelec committed no abuse
apply. of discretion in issuing the assailed temporary restraining order stopping
petitioner from conducting exit polls. I, therefore, vote to DENY the petition.
Our Constitution mandates the Comelec to enforce and administer laws and
regulations relative to the conduct of elections and to secure the secrecy and
sanctity of the ballots to ensure orderly, honest, credible and peaceful
elections.5 This Constitutional provision effectively displaces the general
presumption of invalidity in favor of the presumption that Comelec acted in the VITUG, J., separate opinion;
exercise of its constitutionally mandated powers. If no presumption of
invalidity arises, I see no occasion for the application of the "clear and present The instant petition, now technically moot, presents issues so significantly that
danger test." As this Court, through Mr. Justice Mendoza, succinctly observed: a slights change of circumstances can have a decisive effect on, and possibly
spell a difference in, the final outcome of the case. I am not inclined to take the

68
case in an academic fashion and pass upon the views expressed by either party
in preemptive judgment.

While I understand what the ponencia is saying quite laudably, I also


appreciate, upon the other hand, the concern of the Commission on
Elections, i.e., that the conduct of exit polls can have some adverse effects on
the need to preserve the sanctity of the ballot. The Commission performs an
indispensable task of ensuring free, honest, and orderly elections and of
guarding against any frustration of the true will of the people. Expectedly, it
utilizes all means available within its power and authority to prevent the
electoral process from being manipulated and rendered an absurdity. Like my
colleagues, I greatly prize the freedom of expression but, so also, I cherish no
less the right of the people to express their will by means of the ballot. In any
case, I must accept the reality that the right to information and free speech is
not illimitable and immune from the valid exercise of an ever demanding and
pervasive police power. Whether any kind of restraint should be upheld or
declared invalid in the proper balancing of interest is one that must be resolved
at any given moment, not on perceived circumstances, but on prevailing facts.

Neither of the advocations proffered by the parties in this instance, I believe,


should be foreclosed by the Court at this time.

I vote, therefore, to dismiss the petition on the foregoing thesis.

69
EN BANC x-----------------------------------------------------------------------
--------------x

FRANCISCO CHAVEZ, G.R. No. 168338


Petitioner, DECISION
Present:

PUNO, C.J., PUNO, C.J.:


QUISUMBING,
YNARES-SANTIAGO,
- versus - SANDOVAL-GUTIERREZ, A. Precis
CARPIO,
AUSTRIA-MARTINEZ,
CORONA, In this jurisdiction, it is established that freedom of the
CARPIO MORALES, press is crucial and so inextricably woven into the right
AZCUNA,
TINGA, to free speech and free expression, that any attempt
CHICO-NAZARIO, to restrict it must be met with an examination so
RAUL M. GONZALES, VELASCO, JR.,
critical that only a danger that is clear and present
in his capacity as the NACHURA,
Secretary of the REYES, and would be allowed to curtail it.
Department of Justice; LEONARDO-DE CASTRO, JJ.
Indeed, we have not wavered in the duty to
and NATIONAL TELECOMMUNICATIONS
COMMISSION (NTC), Promulgated: uphold this cherished freedom. We have struck down
Respondents.
laws and issuances meant to curtail this right, as
February 15, 2008
in Adiong v. COMELEC,[1] Burgos v. Chief of
[2]
Staff, Social Weather Stations v.
COMELEC,[3] and Bayan v. Executive Secretary
[4]
Ermita. When on its face, it is clear that a
governmental act is nothing more than a naked means
to prevent the free exercise of speech, it must be
nullified.

70
B. The Facts 3. On June 8, 2005, respondent Department of Justice (DOJ) Secretary
Raul Gonzales warned reporters that those who had copies of the
1. The case originates from events that occurred a year after the 2004 compact disc (CD) and those broadcasting or publishing its contents
national and local elections. On June 5, 2005, Press Secretary Ignacio could be held liable under the Anti-Wiretapping Act. These persons
Bunye told reporters that the opposition was planning to destabilize included Secretary Bunye and Atty. Paguia. He also stated that persons
the administration by releasing an audiotape of a mobile phone possessing or airing said tapes were committing a continuing offense,
conversation allegedly between the President of the Philippines, subject to arrest by anybody who had personal knowledge if the crime
Gloria Macapagal Arroyo, and a high-ranking official of the was committed or was being committed in their presence.[9]
Commission on Elections (COMELEC). The conversation was
audiotaped allegedly through wire-tapping.[5] Later, in 4. On June 9, 2005, in another press briefing, Secretary Gonzales ordered
a Malacaang press briefing, Secretary Bunye produced two versions of the National Bureau of Investigation (NBI) to go after media
the tape, one supposedly the complete version, and the other, a organizations found to have caused the spread, the playing and the
spliced, doctored or altered version, which would suggest that the printing of the contents of a tape of an alleged wiretapped
President had instructed the COMELEC official to manipulate the conversation involving the President about fixing votes in the 2004
[6]
election results in the Presidents favor. It seems that Secretary national elections. Gonzales said that he was going to start
Bunye admitted that the voice was that of President Arroyo, but with Inq7.net, a joint venture between the Philippine Daily Inquirer
[7]
subsequently made a retraction. and GMA7 television network, because by the very nature of the
Internet medium, it was able to disseminate the contents of the tape
2. On June 7, 2005, former counsel of deposed President Joseph Estrada, more widely. He then expressed his intention of inviting the editors
Atty. Alan Paguia, subsequently released an alleged authentic tape and managers of Inq7.net and GMA7 to a probe, and supposedly
recording of the wiretap. Included in the tapes were purported declared, I [have] asked the NBI to conduct a tactical interrogation of
conversations of the President, the First Gentleman Jose Miguel all concerned. [10]
Arroyo, COMELEC Commissioner Garcillano, and the late Senator 5. On June 11, 2005, the NTC issued this press release: [11]
NTC GIVES FAIR WARNING TO RADIO AND
Barbers.[8]
TELEVISION OWNERS/OPERATORS TO OBSERVE ANTI-
WIRETAPPING LAW AND PERTINENT CIRCULARS ON
PROGRAM STANDARDS

71
broadcast/airing of such false information and/or
xxx xxx xxx willful misrepresentation shall be just cause for the
suspension, revocation and/or cancellation of the
Taking into consideration the countrys unusual licenses or authorizations issued to the said
situation, and in order not to unnecessarily aggravate companies.
the same, the NTC warns all radio stations and
television network owners/operators that the In addition to the above, the [NTC] reiterates the
conditions of the authorization and permits issued to pertinent NTC circulars on program standards to be
them by Government like the Provisional Authority observed by radio and television stations. NTC
and/or Certificate of Authority explicitly provides that Memorandum Circular 111-12-85 explicitly states,
said companies shall not use [their] stations for the among others, that all radio broadcasting and
broadcasting or telecasting of false information or television stations shall, during any broadcast or
willful misrepresentation. Relative thereto, it has telecast, cut off from the air the speech, play, act or
come to the attention of the [NTC] that certain scene or other matters being broadcast or telecast
personalities are in possession of alleged taped the tendency thereof is to disseminate false
conversations which they claim involve the President information or such other willful misrepresentation,
of the Philippines and a Commissioner of the or to propose and/or incite treason, rebellion or
COMELEC regarding supposed violation of election sedition. The foregoing directive had been reiterated
laws. by NTC Memorandum Circular No. 22-89, which, in
addition thereto, prohibited radio, broadcasting and
These personalities have admitted that the taped television stations from using their stations to
conversations are products of illegal wiretapping broadcast or telecast any speech, language or scene
operations. disseminating false information or willful
misrepresentation, or inciting, encouraging or
Considering that these taped conversations have not assisting in subversive or treasonable acts.
been duly authenticated nor could it be said at this
time that the tapes contain an accurate or truthful The [NTC] will not hesitate, after observing the
representation of what was recorded therein, it is the requirements of due process, to apply with full force
position of the [NTC] that the continuous airing or the provisions of said Circulars and their
broadcast of the said taped conversations by radio accompanying sanctions on erring radio and
and television stations is a continuing violation of the television stations and their owners/operators.
Anti-Wiretapping Law and the conditions of the
Provisional Authority and/or Certificate of Authority
issued to these radio and television stations. It has 6. On June 14, 2005, NTC held a dialogue with the Board of Directors of
been subsequently established that the said tapes are
the Kapisanan ng mga Brodkaster sa Pilipinas (KBP). NTC allegedly
false and/or fraudulent after a prosecution or
appropriate investigation, the concerned radio and assured the KBP that the press release did not violate the
television companies are hereby warned that their

72
constitutional freedom of speech, of expression, and of the press, and
the right to information. Accordingly, NTC and KBP issued a Joint Press
Statement which states, among others, that: [12] C. The Petition

NTC respects and will not hinder freedom of the press


Petitioner Chavez filed a petition under Rule 65 of the Rules of Court
and the right to information on matters of public
concern. KBP & its members have always been against respondents Secretary Gonzales and the NTC, praying for the issuance
committed to the exercise of press freedom with
of the writs of certiorari and prohibition, as extraordinary legal remedies, to
high sense of responsibility and discerning
judgment of fairness and honesty. annul void proceedings, and to prevent the unlawful, unconstitutional and
oppressive exercise of authority by the respondents.[13]
NTC did not issue any MC [Memorandum Circular] or
Order constituting a restraint of press freedom or
censorship. The NTC further denies and does not Alleging that the acts of respondents are violations of the freedom on
intend to limit or restrict the interview of members
of the opposition or free expression of views. expression and of the press, and the right of the people to information on
matters of public concern,[14] petitioner specifically asked this Court:
What is being asked by NTC is that the exercise of press
freedom [be] done responsibly.
[F]or [the] nullification of acts, issuances, and orders of
KBP has program standards that KBP members will respondents committed or made since June 6, 2005 until the
observe in the treatment of news and public affairs present that curtail the publics rights to freedom of
programs. These include verification of sources, expression and of the press, and to information on matters of
non-airing of materials that would constitute public concern specifically in relation to information
inciting to sedition and/or rebellion. regarding the controversial taped conversion of President
Arroyo and for prohibition of the further commission of such
The KBP Codes also require that no false statement or acts, and making of such issuances, and orders by
willful misrepresentation is made in the treatment respondents. [15]
of news or commentaries.

The supposed wiretapped tapes should be treated with Respondents[16] denied that the acts transgress the Constitution, and
sensitivity and handled responsibly giving due questioned petitioners legal standing to file the petition. Among the arguments
consideration to the process being undertaken to
verify and validate the authenticity and actual they raised as to the validity of the fair warning issued by respondent NTC, is
content of the same. that broadcast media enjoy lesser constitutional guarantees compared to print

73
media, and the warning was issued pursuant to the NTCs mandate to regulate Court has repeatedly and consistently refused to wield procedural barriers as
the telecommunications industry. [17] It was also stressed that most of the impediments to its addressing and resolving serious legal questions that greatly
[television] and radio stations continue, even to this date, to air the tapes, but impact on public interest,[21] in keeping with the Court's duty under the 1987
of late within the parameters agreed upon between the NTC and KBP. [18] Constitution to determine whether or not other branches of government have
kept themselves within the limits of the Constitution and the laws and that
D. THE PROCEDURAL THRESHOLD: LEGAL STANDING they have not abused the discretion given to them.

To be sure, the circumstances of this case make the constitutional Thus, in line with the liberal policy of this Court on locus standi when a case
challenge peculiar. Petitioner, who is not a member of the broadcast media, involves an issue of overarching significance to our society, [22] we therefore
prays that we strike down the acts and statements made by respondents as brush aside technicalities of procedure and take cognizance of this
violations of the right to free speech, free expression and a free press. For petition,[23] seeing as it involves a challenge to the most exalted of all the civil
another, the recipients of the press statements have not come forwardneither rights, the freedom of expression. The petition raises other issues like the
intervening nor joining petitioner in this action. Indeed, as a group, they issued extent of the right to information of the public. It is fundamental, however,
a joint statement with respondent NTC that does not complain about restraints that we need not address all issues but only the most decisive one which in
on freedom of the press. the case at bar is whether the acts of the respondents abridge freedom of
speech and of the press.
It would seem, then, that petitioner has not met the requisite legal
standing, having failed to allege such a personal stake in the outcome of the But aside from the primordial issue of determining whether free speech
controversy as to assure that concrete adverseness which sharpens the and freedom of the press have been infringed, the case at bar also gives this
presentation of issues upon which the Court so largely depends for illumination Court the opportunity: (1) to distill the essence of freedom of speech and of
[19]
of difficult constitutional questions. the press now beclouded by the vagaries of motherhood statements; (2) to
clarify the types of speeches and their differing restraints allowed by law; (3)
But as early as half a century ago, we have already held that where serious to discuss the core concepts of prior restraint, content-neutral and content-
constitutional questions are involved, the transcendental importance to the based regulations and their constitutional standard of review; (4) to examine
public of these cases demands that they be settled promptly and definitely, the historical difference in the treatment of restraints between print and
brushing aside if we must, technicalities of procedure. [20] Subsequently, this broadcast media and stress the standard of review governing both; and (5) to

74
call attention to the ongoing blurring of the lines of distinction between print freedom of speech, expression and the press was, at bottom, the struggle for
and broadcast media. 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
E. RE-EXAMINING THE LAW ON FREEDOM OF SPEECH,
they will be capable of rendering enlightened judgments. In the oft-quoted
OF EXPRESSION AND OF THE PRESS
words of Thomas Jefferson, we cannot both be free and ignorant.
No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people
E.1. ABSTRACTION OF FREE SPEECH
peaceably to assemble and petition the government for
redress of grievances.[24]
Surrounding the freedom of speech clause are various concepts that
Freedom of expression has gained recognition as a fundamental we have adopted as part and parcel of our own Bill of Rights provision on this
principle of every democratic government, and given a preferred right that basic freedom.[31] What is embraced under this provision was discussed
stands on a higher level than substantive economic freedom or other exhaustively by the Court in Gonzales v. Commission on Elections, [32] in which it
liberties. The cognate rights codified by Article III, Section 4 of the Constitution, was held:
copied almost verbatim from the First Amendment of the U.S. Bill of
At the very least, free speech and free press may be
Rights,[25] were considered the necessary consequence of republican
identified with the liberty to discuss publicly and truthfully
institutions and the complement of free speech. [26] This preferred status of free any matter of public interest without censorship and
punishment. There is to be no previous restraint on the
speech has also been codified at the international level, its recognition now
communication of views or subsequent liability whether in
enshrined in international law as a customary norm that binds all nations. [27] 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
In the Philippines, the primacy and high esteem accorded freedom of to prevent. [33]
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 Gonzales further explained that the vital need of a constitutional
Constitutions, reflecting our own lesson of history, both political and legal, that democracy for freedom of expression is undeniable, whether as a means of
freedom of speech is an indispensable condition for nearly every other form of assuring individual self-fulfillment; of attaining the truth; of assuring
freedom.[29] Moreover, our history shows that the struggle to protect the participation by the people in social, including political, decision-making; and of

75
maintaining the balance between stability and change. [34] As early as the 1920s, exigencies of their period. The constitutional protection assures the broadest
the trend as reflected in Philippine and American decisions was to recognize possible exercise of free speech and free press for religious, political, economic,
the broadest scope and assure the widest latitude for this constitutional scientific, news, or informational ends, inasmuch as the Constitution's basic
guarantee. The trend represents a profound commitment to the principle that guarantee of freedom to advocate ideas is not confined to the expression of
[35]
debate on public issue should be uninhibited, robust, and wide-open. ideas that are conventional or shared by a majority.

Freedom of speech and of the press means something more than the The constitutional protection is not limited to the exposition of ideas.
right to approve existing political beliefs or economic arrangements, to lend The protection afforded free speech extends to speech or publications that are
support to official measures, and to take refuge in the existing climate of entertaining as well as instructive or informative. Specifically, in Eastern
opinion on any matter of public consequence.[36] When atrophied, the right Broadcasting Corporation (DYRE) v. Dans,[41] this Court stated that all forms of
becomes meaningless.[37] The right belongs as well -- if not more to those who media, whether print or broadcast, are entitled to the broad protection of the
question, who do not conform, who differ.[38] The ideas that may be expressed clause on freedom of speech and of expression.
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 While all forms of communication are entitled to the broad protection
the press should allow and even encourage the articulation of the unorthodox of freedom of expression clause, the freedom of film, television and radio
view, though it be hostile to or derided by others; or though such view induces broadcasting is somewhat lesser in scope than the freedom accorded to
a condition of unrest, creates dissatisfaction with conditions as they are, or newspapers and other print media, as will be subsequently discussed.
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] E.2. DIFFERENTIATION: THE LIMITS & RESTRAINTS OF FREE SPEECH
From the language of the specific constitutional provision, it would appear that
The scope of freedom of expression is so broad that it extends protection to the right to free speech and a free press is not susceptible of any limitation. But
nearly all forms of communication. It protects speech, print and assembly the realities of life in a complex society preclude a literal interpretation of the
regarding secular as well as political causes, and is not confined to any provision prohibiting the passage of a law that would abridge such
particular field of human interest. The protection covers myriad matters of freedom. For freedom of expression is not an absolute, [42] nor is it an unbridled
public interest or concern embracing all issues, about which information is license that gives immunity for every possible use of language and prevents the
needed or appropriate, so as to enable members of society to cope with the punishment of those who abuse this freedom.

76
connection has been established between the speech restrained and the
Thus, all speech are not treated the same. Some types of speech may be danger contemplated; [48] (b) the balancing of interests tests, used as a
subjected to some regulation by the State under its pervasive police power, in standard when courts need to balance conflicting social values and individual
order that it may not be injurious to the equal right of others or those of the interests, and requires a conscious and detailed consideration of the interplay
[43]
community or society. The difference in treatment is expected because the of interests observable in a given situation of type of
relevant interests of one type of speech, e.g., political speech, may vary from situation; [49] and (c) the clear and present danger rule which rests on the
those of another, e.g., obscene speech. Distinctions have therefore been made premise that speech may be restrained because there is substantial danger that
in the treatment, analysis, and evaluation of the permissible scope of the speech will likely lead to an evil the government has a right to prevent. This
[44]
restrictions on various categories of speech. We have ruled, for example, rule requires that the evil consequences sought to be prevented must be
that in our jurisdiction slander or libel, lewd and obscene speech, as well as substantive, extremely serious and the degree of imminence extremely high. [50]
fighting words are not entitled to constitutional protection and may be
penalized.[45] As articulated in our jurisprudence, we have applied either
Moreover, the techniques of reviewing alleged restrictions on speech the dangerous tendency doctrine or clear and present danger test to resolve
(overbreadth, vagueness, and so on) have been applied differently to each free speech challenges. More recently, we have concluded that we have
[46]
category, either consciously or unconsciously. A study of free speech generally adhered to the clear and present danger test. [51]
jurisprudencewhether here or abroadwill reveal that courts have developed
different tests as to specific types or categories of speech in E.3. IN FOCUS: FREEDOM OF THE PRESS
concrete situations; i.e., subversive speech; obscene speech; the speech of the
broadcast media and of the traditional print media; libelous speech; speech Much has been written on the philosophical basis of press freedom as
affecting associational rights; speech before hostile audiences; symbolic part of the larger right of free discussion and expression. Its practical
speech; speech that affects the right to a fair trial; and speech associated with importance, though, is more easily grasped. It is the chief source of information
rights of assembly and petition. [47] 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
Generally, restraints on freedom of speech and expression are government informed of their needs, their aspirations and their grievances. It is
evaluated by either or a combination of three tests, i.e., (a) the dangerous the sharpest weapon in the fight to keep government responsible and efficient.
tendency doctrine which permits limitations on speech once a rational Without a vigilant press, the mistakes of every administration would go

77
uncorrected and its abuses unexposed. As Justice Malcolm wrote in United Considering that petitioner has argued that respondents press statement
States v. Bustos:[52] 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
The interest of society and the maintenance of good
from content-neutral) regulations.
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
At this point, it should be noted that respondents in this case deny
its probe relieves the abscesses of officialdom. Men in
public life may suffer under a hostile and unjust accusation; that their acts constitute prior restraints. This presents a unique tinge to the
the wound can be assuaged with the balm of clear present challenge, considering that the cases in our jurisdiction involving prior
conscience.
restrictions on speech never had any issue of whether the governmental act or
issuance actually constituted prior restraint. Rather, the determinations were
Its contribution to the public weal makes freedom of the press deserving of
always about whether the restraint was justified by the Constitution.
extra protection. Indeed, the press benefits from certain ancillary rights. The
productions of writers are classified as intellectual and proprietary. Persons
Be that as it may, the determination in every case of whether there is an
who interfere or defeat the freedom to write for the press or to maintain a
impermissible restraint on the freedom of speech has always been based on
periodical publication are liable for damages, be they private individuals or
the circumstances of each case, including the nature of the restraint. And in its
public officials.
application in our jurisdiction, the parameters of this principle have been
etched on a case-to-case basis, always tested by scrutinizing the
E.4. ANATOMY OF RESTRICTIONS: PRIOR RESTRAINT, CONTENT-NEUTRAL AND
governmental issuance or act against the circumstances in which they
CONTENT-BASED REGULATIONS
operate, and then determining the appropriate test with which to evaluate.

Philippine jurisprudence, even as early as the period under the 1935


Prior restraint refers to official governmental restrictions on the press or other
Constitution, has recognized four aspects of freedom of the press. These are (1)
forms of expression in advance of actual publication or
freedom from prior restraint; (2) freedom from punishment subsequent to
[56]
dissemination. Freedom from prior restraint is largely freedom from
publication; [53] (3) freedom of access to information; [54] and (4) freedom of
government censorship of publications, whatever the form of censorship, and
circulation.[55]
regardless of whether it is wielded by the executive, legislative or judicial
branch of the government. Thus, it precludes governmental acts that required

78
approval of a proposal to publish; licensing or permits as prerequisites to
publication including the payment of license taxes for the privilege to publish; When the speech restraints take the form of a content-neutral regulation, only
and even injunctions against publication. Even the closure of the business and a substantial governmental interest is required for its validity. [62] Because
printing offices of certain newspapers, resulting in the discontinuation of regulations of this type are not designed to suppress any particular message,
theirprinting and publication, are deemed as previous restraint or they are not subject to the strictest form of judicial scrutiny but
censorship. [57] Any law or official that requires some form of permission to be an intermediate approachsomewhere between the mere rationality that is
had before publication can be made, commits an infringement of the required of any other law and the compelling interest standard applied to
constitutional right, and remedy can be had at the courts. 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
Given that deeply ensconced in our fundamental law is the hostility against all restrictions be narrowly-tailored to promote an important or significant
prior restraints on speech, and any act that restrains speech is presumed governmental interest that is unrelated to the suppression of expression.The
invalid,[58] and any act that restrains speech is hobbled by the presumption of intermediate approach has been formulated in this manner:
[59]
invalidity and should be greeted with furrowed brows, it is important to
A governmental regulation is sufficiently justified if it is
stress not all prior restraints on speech are invalid. Certain previous restraints
within the constitutional power of the Government, if it
may be permitted by the Constitution, but determined only upon a careful furthers an important or substantial governmental interest;
if the governmental interest is unrelated to the suppression
evaluation of the challenged act as against the appropriate test by which it
of free expression; and if the incident restriction on alleged
should be measured against. [freedom of speech & expression] is no greater than is
essential to the furtherance of that interest. [64]

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 On the other hand, a governmental action that restricts freedom of speech or

whether the restraint is (1) a content-neutral regulation, i.e., merely concerned of the press based on content is given the strictest scrutiny in light of its

with the incidents of the speech, or one that merely controls the time, place or inherent and invasive impact. Only when the challenged act has overcome

manner, and under well defined standards;[60] or (2) a content-based restraint the clear and present danger rule will it pass constitutional muster,[65] with the

or censorship, i.e., the restriction is based on the subject matter of the government having the burden of overcoming the presumed

utterance or speech. [61] The cast of the restriction determines the test by which unconstitutionality.

the challenged act is assayed with.

79
Unless the government can overthrow this presumption, the content- Thus, when the prior restraint partakes of a content-neutral regulation, it is
based restraint will be struck down.[66] subjected to an intermediate review. A content-based
[73]
With respect to content-based restrictions, the government must also show regulation, however, bears a heavy presumption of invalidity and is
the type of harm the speech sought to be restrained would bring about measured against the clear and present danger rule. The latter will pass
especially the gravity and the imminence of the threatened harm otherwise the constitutional muster only if justified by a compelling reason, and the
prior restraint will be invalid. Prior restraint on speech based on its content restrictions imposed are neither overbroad nor vague. [74]
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 Applying the foregoing, it is clear that the challenged acts in the case at bar
formulated, the question in every case is whether the words used are used in need to be subjected to the clear and present danger rule, as they are content-
such circumstances and are of such a nature as based restrictions. The acts of respondents focused solely on but one objecta
to create a clear and present danger that they will bring about the substantive specific content fixed as these were on the alleged taped conversations
evils that Congress has a right to prevent. It is a question of proximity and between the President and a COMELEC official. Undoubtedly these did not
[68]
degree. merely provide regulations as to the time, place or manner of the
dissemination of speech or expression.
The regulation which restricts the speech content must also serve an important E.5. Dichotomy of Free Press: Print v. Broadcast Media
or substantial government interest, which is unrelated to the suppression of
free expression. [69] Finally, comes respondents argument that the challenged act is valid
on the ground that broadcast media enjoys free speech rights that are lesser in
Also, the incidental restriction on speech must be no greater than what is scope to that of print media. We next explore and test the validity of this
essential to the furtherance of that interest. [70] A restriction that is so broad argument, insofar as it has been invoked to validate a content-based restriction
that it encompasses more than what is required to satisfy the governmental on broadcast media.
interest will be invalidated.[71] The regulation, therefore, must be reasonable
and narrowly drawn to fit the regulatory purpose, with the least restrictive The regimes presently in place for each type of media differ from one
means undertaken. [72] 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.

80
Our cases show two distinct features of this dichotomy. First, the
The dichotomy between print and broadcast media traces its origins in difference in treatment, in the main, is in the regulatory scheme applied to
the United States. There, broadcast radio and television have been held to broadcast media that is not imposed on traditional print media, and narrowly
have limited First Amendment protection,[75] and U.S. Courts confined to unprotected speech (e.g., obscenity, pornography, seditious and
have excluded broadcast media from the application of the strict scrutiny inciting speech), or is based on a compelling government interest that also has
standard that they would otherwise apply to content-based constitutional protection, such as national security or the electoral process.
[76]
restrictions. According to U.S. Courts, the three major reasons why
broadcast media stands apart from print media are: (a) the scarcity of the Second, regardless of the regulatory schemes that broadcast media is
frequencies by which the medium operates [i.e., airwaves are physically limited subjected to, the Court has consistently held that the clear and present danger
while print medium may be limitless]; [77] (b) its pervasiveness as a medium; and test applies to content-based restrictions on media, without making a
[78]
(c) its unique accessibility to children. Because cases involving broadcast distinction as to traditional print or broadcast media.
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 The distinction between broadcast and traditional print media was
compelling government interests,[79] they are decided on whether the first enunciated in Eastern Broadcasting Corporation (DYRE) v. Dans,[82] wherein
governmental restriction is narrowly tailored to further a substantial it was held that [a]ll forms of media, whether print or broadcast, are entitled to
governmental interest,[80] or the intermediate test. 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
As pointed out by respondents, Philippine jurisprudence has also danger rule[83]
echoed a differentiation in treatment between broadcast and print
media. Nevertheless, a review of Philippine case law on broadcast media will Dans was a case filed to compel the reopening of a radio station which
show thatas we have deviated with the American conception of the Bill of had been summarily closed on grounds of national security. Although the issue
Rights[81] we likewise did not adopt en masse the U.S. conception of free had become moot and academic because the owners were no longer
speech as it relates to broadcast media, particularly as to which test would interested to reopen, the Court still proceeded to do an analysis of the case and
govern content-based prior restraints. made formulations to serve as guidelines for all inferior courts and bodies
exercising quasi-judicial functions. Particularly, the Court made a detailed

81
The American Court in Federal Communications
exposition as to what needs be considered in cases involving broadcast
Commission v. Pacifica Foundation (438 U.S. 726),
media. Thus:[84] confronted with a patently offensive and indecent
regular radio program, explained why radio
broadcasting, more than other forms of
xxx xxx xxx
communications, receives the most limited
protection from the free expression clause. First,
(3) All forms of media, whether print or broadcast, are broadcast media have established a uniquely
entitled to the broad protection of the freedom of pervasive presence in the lives of all citizens,
speech and expression clause. The test for Material presented over the airwaves confronts the
limitations on freedom of expression continues to citizen, not only in public, but in the privacy of his
be the clear and present danger rule, that words home. Second, broadcasting is uniquely accessible to
are used in such circumstances and are of such a children. Bookstores and motion picture theaters
nature as to create a clear and present danger that may be prohibited from making certain material
they will bring about the substantive evils that the available to children, but the same selectivity cannot
lawmaker has a right to prevent, In his Constitution be done in radio or television, where the listener or
of the Philippines (2nd Edition, pp. 569-570) Chief viewer is constantly tuning in and out.
Justice Enrique M. Fernando cites at least nine of our
Similar considerations apply in the area of national
decisions which apply the test. More recently, the
security.
clear and present danger test was applied in J.B.L.
Reyes in behalf of the Anti-Bases Coalition v. The broadcast media have also established a
Bagatsing. (4) The clear and present danger test, uniquely pervasive presence in the lives of all
however, does not lend itself to a simplistic and all Filipinos. Newspapers and current books are found
embracing interpretation applicable to all utterances only in metropolitan areas and in the poblaciones of
in all forums. municipalities accessible to fast and regular
transportation. Even here, there are low income
Broadcasting has to be licensed. Airwave
masses who find the cost of books, newspapers, and
frequencies have to be allocated among qualified
magazines beyond their humble means. Basic needs
users. A broadcast corporation cannot simply
like food and shelter perforce enjoy high priorities.
appropriate a certain frequency without regard for
government regulation or for the rights of others. On the other hand, the transistor radio is found
everywhere. The television set is also becoming
All forms of communication are entitled to the broad
universal. Their message may be simultaneously
protection of the freedom of expression clause.
received by a national or regional audience of
Necessarily, however, the freedom of television and
listeners including the indifferent or unwilling who
radio broadcasting is somewhat lesser in scope than
happen to be within reach of a blaring radio or
the freedom accorded to newspaper and print
television set. The materials broadcast over the
media.
airwaves reach every person of every age, persons

82
of varying susceptibilities to persuasion, persons of of officialdom. Men in public life may suffer under a
different I.Q.s and mental capabilities, persons hostile and an unjust accusation; the wound can be
whose reactions to inflammatory or offensive assuaged with the balm of a clear conscience. A
speech would be difficult to monitor or predict. The public officer must not be too thin-skinned with
impact of the vibrant speech is forceful and reference to comment upon his official acts. Only
immediate. Unlike readers of the printed work, the thus can the intelligence and dignity of the individual
radio audience has lesser opportunity to cogitate be exalted.
analyze, and reject the utterance.
(7) Broadcast stations deserve the special protection given to
(5) The clear and present danger test, therefore, must take all forms of media by the due process and freedom
the particular circumstances of broadcast media into of expression clauses of the Constitution. [Citations
account. The supervision of radio stations-whether omitted]
by government or through self-regulation by the
industry itself calls for thoughtful, intelligent and
sophisticated handling.
It is interesting to note that the Court in Dans adopted the arguments found in
The government has a right to be protected against
U.S. jurisprudence to justify differentiation of treatment (i.e., the scarcity,
broadcasts which incite the listeners to violently
overthrow it. Radio and television may not be used pervasiveness and accessibility to children), but only after categorically
to organize a rebellion or to signal the start of declaring that the test for limitations on freedom of expression continues to
widespread uprising. At the same time, the people
have a right to be informed. Radio and television be the clear and present danger rule, for all forms of media, whether print or
would have little reason for existence if broadcasts broadcast. Indeed, a close reading of the above-quoted provisions would show
are limited to bland, obsequious, or pleasantly
entertaining utterances. Since they are the most that the differentiation that the Court in Dans referred to was
convenient and popular means of disseminating narrowly restricted to what is otherwise deemed as unprotected speech (e.g.,
varying views on public issues, they also deserve
special protection. obscenity, national security, seditious and inciting speech), or to validate a
licensing or regulatory scheme necessary to allocate the limited broadcast
(6) The freedom to comment on public affairs is essential to
the vitality of a representative democracy. In the frequencies, which is absent in print media. Thus, when this Court declared
1918 case of United States v. Bustos (37 Phil. 731)
in Dans that the freedom given to broadcast media was somewhat lesser in
this Court was already stressing that.
scope than the freedom accorded to newspaper and print media, it was not as
The interest of society and the maintenance of good
government demand a full discussion of public to what test should be applied, but the context by which requirements of
affairs. Complete liberty to comment on the conduct licensing, allocation of airwaves, and application of norms to unprotected
of public men is a scalpel in the case of free speech.
The sharp incision of its probe relieves the abscesses speech. [85]

83
In the same year that the Dans case was decided, it was reiterated in Gonzales press. Indeed, in Osmena v. COMELEC,[90] which also involved broadcast media,
v. Katigbak,[86] that the test to determine free expression challenges was the the Court refused to apply the clear and present danger rule to a COMELEC
clear and present danger, again without distinguishing the regulation of time and manner of advertising of political advertisements
media.[87] Katigbak, strictly speaking, does not treat of broadcast media but because the challenged restriction was content-neutral.[91] And in a case
motion pictures. Although the issue involved obscenity standards as applied to involving due process and equal protection issues, the Court
movies,[88] the Court concluded its decision with the following obiter in Telecommunications and Broadcast Attorneys of the Philippines v.
dictum that a less liberal approach would be used to resolve obscenity issues in COMELEC[92] treated a restriction imposed on a broadcast media as a
television as opposed to motion pictures: reasonable condition for the grant of the medias franchise, without going into
All that remains to be said is that the ruling is to be limited
which test would apply.
to the concept of obscenity applicable to motion
pictures. It is the consensus of this Court that where That broadcast media is subject to a regulatory regime absent in print media is
television is concerned, a less liberal approach calls for
observed also in other jurisdictions, where the statutory regimes in place over
observance. This is so because unlike motion pictures
where the patrons have to pay their way, television broadcast media include elements of licensing, regulation by administrative
reaches every home where there is a set. Children then will bodies, and censorship. As explained by a British author:
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 reasons behind treating broadcast and films differently
the welfare of the young. 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
More recently, in resolving a case involving the conduct of exit polls and
that owing to their particular impact on audiences, films,
dissemination of the results by a broadcast company, we reiterated that the videos and broadcasting require a system of prior
restraints, whereas it is now accepted that books and other
clear and present danger rule is the test we unquestionably adhere to issues
printed media do not. These media are viewed as beneficial
that involve freedoms of speech and of the press.[89] to the public in a number of respects, but are also seen as
possible sources of harm.[93]

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- Parenthetically, these justifications are now the subject of debate. Historically,
based regulation that infringes on free speech, expression and the the scarcity of frequencies was thought to provide a rationale. However, cable

84
and satellite television have enormously increased the number of actual and Having settled the applicable standard to content-based restrictions on
potential channels. Digital technology will further increase the number of broadcast media, let us go to its application to the case at bar. To
channels available. But still, the argument persists that broadcasting is the recapitulate, a governmental action that restricts freedom of speech
most influential means of communication, since it comes into the home, and so or of the press based on content is given the strictest
much time is spent watching television. Since it has a unique impact on people scrutiny, with the government having the burden of overcoming the
and affects children in a way that the print media normally does not, that presumed unconstitutionality by the clear and present danger rule. This rule
regulation is said to be necessary in order to preserve pluralism. It has been applies equally to all kinds of media, including broadcast media.
argued further that a significant main threat to free expressionin terms of
diversitycomes not from government, but from private corporate This outlines the procedural map to follow in cases like the one at bar as it
bodies. These developments show a need for a reexamination of the traditional spells out the following: (a) the test; (b) the presumption; (c) the burden of
[94]
notions of the scope and extent of broadcast media regulation. 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
The emergence of digital technology -- which has led to the convergence of have the burden to show that these acts do not abridge freedom of speech and
broadcasting, telecommunications and the computer industry -- has likewise of the press failed to hurdle the clear and present danger test. It appears that
led to the question of whether the regulatory model for broadcasting will the great evil which government wants to prevent is the airing of a tape
continue to be appropriate in the converged environment.[95] Internet, for recording in alleged violation of the anti-wiretapping law. The records of the
example, remains largely unregulated, yet the Internet and the broadcast case at bar, however, are confused and confusing, and respondents evidence
media share similarities, [96] and the rationales used to support broadcast falls short of satisfying the clear and present danger test. Firstly, the various
[97]
regulation apply equally to the Internet. Thus, it has been argued that courts, statements of the Press Secretary obfuscate the identity of the voices in the
legislative bodies and the government agencies regulating media must agree to tape recording. Secondly, the integrity of the taped conversation is also
regulate both, regulate neither or develop a new regulatory framework and suspect. The Press Secretary showed to the public two versions, one supposed
rationale to justify the differential treatment. [98] 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
F. The Case At Bar 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

85
unsettled facets of the tape, it is even arguable whether its airing would violate
the anti-wiretapping law. 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
We rule that not every violation of a law will justify straitjacketing the the NTC in question constitute a form of content-based prior restraint that has
exercise of freedom of speech and of the press. Our laws are of different transgressed the Constitution. In resolving this issue, we hold
kinds and doubtless, some of them provide norms of conduct which even if that it is not decisive that the press statements made by respondents were
violated have only an adverse effect on a persons private comfort but does not not reduced in or followed up with formal orders or circulars. It is sufficient
endanger national security. There are laws of great significance but their that the press statements were made by respondents while in the exercise of
violation, by itself and without more, cannot support suppression of free their official functions. Undoubtedly, respondent Gonzales made his
speech and free press. In fine, violation of law is just a factor, a vital one to be statements as Secretary of Justice, while the NTC issued its statement as the
sure, which should be weighed in adjudging whether to restrain freedom of regulatory body of media. Any act done, such as a speech uttered, for and on
speech and of the press. The totality of the injurious effects of the violation to behalf of the government in an official capacity is covered by the rule on prior
private and public interest must be calibrated in light of the preferred status restraint. The concept of an act does not limit itself to acts already converted
accorded by the Constitution and by related international covenants protecting to a formal order or official circular. Otherwise, the non formalization of an
freedom of speech and of the press. In calling for a careful and calibrated act into an official order or circular will result in the easy circumvention of the
measurement of the circumference of all these factors to determine prohibition on prior restraint. The press statements at bar are acts that should
compliance with the clear and present danger test, the Court should not be be struck down as they constitute impermissible forms of prior restraints on
misinterpreted as devaluing violations of law. By all the right to free speech and press.
means, violations of law should be vigorously prosecuted by the
State for they breed their own evil consequence. But to repeat, the need to There is enough evidence of chilling effect of the complained acts on
prevent their violation cannot per se trump the exercise of record. The warnings given to media came from no less the NTC, a regulatory
free speech and free press, a preferred right whose breach can lead to greater agency that can cancel the Certificate of Authority of the radio and broadcast
evils. For this failure of the respondents alone to offer proof to satisfy the clear media. They also came from the Secretary of Justice, the alter ego of the
and present danger test, the Court has no option but to uphold the exercise of Executive, who wields the awesome power to prosecute those perceived to be
free speech and free press. There is no showing that the feared violation of the violating the laws of the land. After the warnings, the KBP inexplicably joined
anti-wiretapping law clearly endangers the national security of the State. the NTC in issuing an ambivalent Joint Press Statement. After the warnings,

86
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.

87
Republic of the Philippines Petitioner pursued two (2) courses of action against the respondent Board. On
SUPREME COURT November 28, 1992, it appealed to the Office of the President the classification
Manila of its TV Series No. 128. It succeeded in its appeal for on December 18, 1992,
the Office of the President reversed the decision of the respondent Board.
EN BANC Forthwith, the Board allowed Series No. 128 to be publicly telecast.

On December 14, 1992, petitioner also filed against the respondent Board Civil
Case No. Q-92-14280, with the RTC, NCR Quezon City. 1 Petitioner alleged that
G.R. No. 119673 July 26, 1996 the respondent Board acted without jurisdiction or with grave abuse of
discretion in requiring petitioner to submit the VTR tapes of its TV program and
in x-rating them. It cited its TV Program Series Nos. 115, 119, 121 and 128. In
IGLESIA NI CRISTO, (INC.), petitioner,
their Answer, respondent Board invoked its power under PD No. 1986 in
vs.
relation to Article 201 of the Revised Penal Code.
THE HONORABLE COURT OF APPEALS, BOARD OF REVIEW FOR MOVING
PICTURES AND TELEVISION and HONORABLE HENRIETTA S.
MENDOZA, respondents. On January 4, 1993, the trial court held a hearing on petitioner's prayer for a
writ of preliminary injunction. The parties orally argued and then marked their
documentary evidence. Petitioner submitted the following as its exhibits, viz.:

(1) Exhibit "A," respondent Board's Voting Slip for Television


PUNO, J.:p
showing its September 9, 1992 action on petitioner's Series
No. 115 as follows: 2
This is a petition for review of the Decision dated March 24, 1995 of the
respondent Court of Appeals affirming the action of the respondent Board of
REMARKS:
Review for Moving Pictures and Television which x-rated the TV Program "Ang
Iglesia ni Cristo."
There are some inconsistencies in the particular program as it
is very surprising for this program to show series of Catholic
Petitioner Iglesia ni Cristo, a duly organized religious organization, has a
ceremonies and also some religious sects and using it in their
television program entitled "Ang Iglesia ni Cristo" aired on Channel 2 every
discussion about the bible. There are remarks which are
Saturday and on Channel 13 every Sunday. The program presents and
direct criticism which affect other religions.
propagates petitioner's religious beliefs, doctrines and practices often times in
comparative studies with other religions.
Need more opinions for this particular program. Please
subject to more opinions.
Sometime in the months of September, October and November 1992
petitioner submitted to the respondent Board of Review for Moving Pictures
and Television the VTR tapes of its TV program Series Nos. 116, 119, 121 and (2) Exhibit "A-1," respondent Board's Voting Slip for
128. The Board classified the series as "X" or not for public viewing on the Television showing its September 11, 1992 subsequent action
ground that they "offend and constitute an attack against other religions which on petitioner's Series No. 115 as follows: 3
is expressly prohibited by law."

88
REMARKS: (5) Exhibit "D," respondent Board's Voting Slip for Television
showing its November 20, 1992 action on petitioner's Series
This program is criticizing different religions, based on their No. 128 as follows: 6
own interpretation of the Bible.
REMARKS:
We suggest that the program should delve on explaining their
own faith and beliefs and avoid attacks on other faith. The episode presented criticizes the religious beliefs of the
Catholic and Protestant's beliefs.
(3) Exhibit "B," respondent Board's Voting Slip for Television
showing its October 9, 1992 action on petitioner's Series No. We suggest a second review.
119, as follows: 4
(6) Exhibits "E," "E-1," petitioner's block time contract with
REMARKS: ABS-CBN Broadcasting Corporation dated September 1,
1992. 7
The Iglesia ni Cristo insists on the literal translation of the
bible and says that our (Catholic) veneration of the Virgin (7) Exhibit "F," petitioner's Airtime Contract with Island
Mary is not to be condoned because nowhere it is found in Broadcasting Corporation. 8
the bible that we should do so.
(8) Exhibit "G," letter dated December 18, 1992 of former
This is intolerance and robs off all sects of freedom of choice, Executive Secretary Edelmiro A. Amante, Sr., addressed for
worship and decision. Henrietta S. Mendez reversing the decision of the respondent
Board which x-rated the showing of petitioner's Series No.
(4) Exhibit "C," respondent Board's Voting Slip for Television 129. The letter reads in part:
showing its October 20, 1992 action on petitioner's Series No.
121 as follows: 5 xxx xxx xxx

REMARKS: The television episode in question is


protected by the constitutional guarantee
I refuse to approve the telecast of this episode for reasons of of free speech and expression under Article
the attacks, they do on, specifically, the Catholic religion. III, section 4 of the 1987 Constitution.

I refuse to admit that they can tell, dictate any other religion We have viewed a tape of the television
that they are right and the rest are wrong, which they clearly episode in question, as well as studied the
present in this episode. passages found by MTRCB to be
objectionable and we find no indication
that the episode poses any clear and

89
present danger sufficient to limit the said The trial of the case was set and reset several times as the parties tried to reach
constitutional guarantee. an amicable accord. Their efforts failed and the records show that after
submission of memoranda, the trial court rendered a Judgment, 10 on
(9) Exhibits "H," "H-1," letter dated November 26, 1992 of December 15, 1993, the dispositive portion of which reads:
Teofilo C. Ramos, Sr., addressed to President Fidel V. Ramos
appealing the action of the respondent Board x-rating xxx xxx xxx
petitioner's Series No. 128.
WHEREFORE, judgment is hereby rendered ordering
On its part, respondent Board submitted the following exhibits, viz.: respondent Board of Review for Moving Pictures and
Television (BRMPT) to grant petitioner Iglesia ni Cristo the
(1) Exhibit "1," Permit Certificate for Television Exhibition No. necessary permit for all the series of "Ang Iglesia ni Cristo"
15181 dated December 18, 1992 allowing the showing of program.
Series No. 128 under parental guidance.
Petitioner Iglesia ni Cristo, however, is directed to refrain
(2) Exhibit "2," which is Exhibit "G" of petitioner. from offending and attacking other existing religions in
showing "Ang Iglesia ni Cristo" program.
(3) Exhibit "3," letter dated October 12, 1992 of Henrietta S.
Mendez, addressed to the Christian Era Broadcasting Service SO ORDERED.
which reads in part:
Petitioner moved for reconsideration 11 praying: (a) for the deletion of the
xxx xxx xxx second paragraph of the dispositive portion of the Decision, and (b) for the
Board to be perpetually enjoined from requiring petitioner to submit for review
In the matter of your television show "Ang the tapes of its program. The respondent Board opposed the motion. 12 On
Iglesia ni Cristo" Series No. 119, please be March 7, 1993, the trial court granted petitioner's Motion for Reconsideration.
informed that the Board was constrained to It ordered: 13
deny your show a permit to exhibit. The
material involved constitute an attack xxx xxx xxx
against another religion which is expressly
prohibited by law. Please be guided in the WHEREFORE, the Motion for Reconsideration is granted. The
submission of future shows. second portion of the Court's Order dated December 15,
1993, directing petitioner to refrain from offending and
After evaluating the evidence of the parties, the trial court issued a attacking other existing religions in showing "Ang Iglesia ni
writ of preliminary injunction on petitioner's bond o P10,000.00. Cristo" program is hereby deleted and set aside. Respondents
are further prohibited from requiring petitioner Iglesia ni
The trial court set the pre-trial of the case and the parties submitted their pre- Cristo to submit for review VTR tapes of its religious program
trial briefs. 9 The pre-trial briefs show that the parties' evidence is basically the "Ang Iglesia ni Cristo."
evidence they submitted in the hearing of the issue of preliminary injunction.

90
Respondent Board appealed to the Court of Appeals after its motion WHETHER OR NOT THE HONORABLE COURT OF APPEALS
for reconsideration was denied. 14 ERRED IN HOLDING THAT THE "ANG IGLESIA NI CRISTO," A
PURELY RELIGIOUS PROGRAM IS INDECENT AND CONTRARY
On March 5, 1995, the respondent Court of Appeals 15 reversed the trial court. TO LAW AND GOOD CUSTOMS.
It ruled that: (1) the respondent board has jurisdiction and power to review the
TV program "Ang Iglesia ni Cristo," and (2) the respondent Board did not act The basic issues can be reduced into two: (1) first, whether the respondent
with grave abuse of discretion when it denied permit for the exhibition on TV Board has the power to review petitioner's TV program "Ang Iglesia ni Cristo,"
of the three series of "Ang Iglesia ni Cristo" on the ground that the materials and (2) second, assuming it has the power, whether it gravely abused its
constitute an attack against another religion. It also found the series "indecent, discretion when it prohibited the airing of petitioner's religious program, series
contrary to law and contrary to good customs. Nos. 115, 119 and 121, for the reason that they constitute an attack against
other religions and that they are indecent, contrary to law and good customs.
In this petition for review on certiorari under Rule 45, petitioner raises the
following issues: The first issue can be resolved by examining the powers of the Board under PD
No. 1986. Its section 3 pertinently provides:
I
Sec. 3 Powers and Functions. -- The BOARD shall have the
WHETHER OR NOT THE HONORABLE COURT OF APPEALS following functions, powers and duties:
ERRED IN HOLDING THAT THE "ANG IGLESIA NI CRISTO"
PROGRAM IS NOT CONSTITUTIONALLY PROTECTED AS A xxx xxx xxx
FORM OF RELIGIOUS EXERCISE AND EXPRESSION.
b) To screen, review and examine all motion pictures as
II herein defined, television programs, including publicity
materials such as advertisements, trailers and stills, whether
WHETHER OR NOT THE HONORABLE COURT OF APPEALS such motion pictures and publicity materials be for theatrical
ERRED IN NOT HOLDING THAT BEING AN EXERCISE OF or non-theatrical distribution for television broadcast or for
RELIGIOUS FREEDOM, THE "ANG IGLESIA NI CRISTO" general viewing, imported or produced in the Philippines and
PROGRAM IS SUBJECT TO THE POLICE POWER OF THE STATE in the latter case, whether they be for local viewing or for
ONLY IN THE EXTREME CASE THAT IT POSES A CLEAR AND export.
PRESENT DANGER.
c) To approve, delete objectionable portion from
III and/or prohibit the importation, exportation, production,
copying, distribution, sale, lease, exhibition and/or television
WHETHER OR NOT THE HONORABLE COURT OF APPEALS broadcast of the motion pictures, television programs and
ERRED IN HOLDING THAT THE MTRCB IS VESTED WITH THE publicity materials, subject of the preceding paragraph,
POWER TO CENSOR RELIGIOUS PROGRAMS. which, in the judgment of the BOARD applying contemporary
Filipino cultural values as standard, are objectionable for
being immoral, indecent, contrary to law and/or good
IV

91
customs, injurious to the prestige of the Republic of the power to "approve, delete . . . and/or prohibit the . . . exhibition
Philippines and its people, or with a dangerous tendency to and/or television broadcast of . . . television programs . . ." The law
encourage the commission of violence or of a wrong or crime, also directs the Board to apply "contemporary Filipino cultural values
such as but not limited to: as standard" to determine those which are objectionable for being
"immoral, indecent, contrary to law and/or good customs, injurious to
i) Those which tend to incite subversion, the prestige of the Republic of the Philippines and its people, or with a
insurrection, rebellion or sedition against dangerous tendency to encourage the commission of violence or of a
the State, or otherwise threaten the wrong or crime."
economic and/or political stability of the
State; Petitioner contends that the term "television program" should not include
religious programs like its program "Ang Iglesia ni Cristo." A contrary
ii) Those which tend to undermine the faith interpretation, it is urged, will contravene section 5, Article III of the
and confidence of the people, their Constitution which guarantees that "no law shall be made respecting an
government and/or duly constituted establishment of religion, or prohibiting the free exercise thereof. The free
authorities; exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed."
iii) Those which glorify criminals or condone
crimes; We reject petitioner's submission which need not set us adrift in a
constitutional voyage towards an uncharted sea. Freedom of religion has been
iv) Those which serve no other purpose but accorded a preferred status by the framers of our fundamental laws, past and
to satisfy the market for violence or present. We have affirmed this preferred status well aware that it is "designed
pornography; to protect the broadest possible liberty of conscience, to allow each man to
believe as his conscience directs, to profess his beliefs, and to live as he
believes he ought to live, consistent with the liberty of others and with the
v) Those which tend to abet the traffic in
common good." 16 We have also laboriously defined in our jurisprudence the
and use of prohibited drugs;
intersecting umbras and penumbras of the right to religious profession and
worship. To quote the summation of Mr. Justice Isagani Cruz, our well-known
vi) Those which are libelous or defamatory constitutionalist: 17
to the good name and reputation of any
person, whether living or dead;
Religious Profession and Worship
vii) Those which may constitute contempt
The right to religious profession and worship has a two-fold
of court or of any quasi-judicial tribunal, or
aspect, viz., freedom to believe and freedom to act on one's
pertain to matters which are subjudice in
beliefs. The first is absolute as long as the belief is confined
nature (emphasis ours).
within the realm of thought. The second is subject to
regulation where the belief is translated into external acts
The law gives the Board the power to screen, review and examine all
that affect the public welfare.
"television programs." By the clear terms of the law, the Board has the

92
(1) Freedom to Believe dogma, not freedom from conformity to law because of
religious dogma.
The individual is free to believe (or disbelieve) as he pleases
concerning the hereafter. He may indulge his own theories Accordingly, while one has lull freedom to believe in Satan, he
about life and death; worship any god he chooses, or none at may not offer the object of his piety a human sacrifice, as this
all; embrace or reject any religion; acknowledge the divinity would be murder. Those who literally interpret the Biblical
of God or of any being that appeals to his reverence; command to "go forth and multiply" are nevertheless not
recognize or deny the immortality of his soul -- in fact, cherish allowed to contract plural marriages in violation of the laws
any religious conviction as he and he alone sees fit. However against bigamy. A person cannot refuse to pay taxes on the
absurd his beliefs may be to others, even if they be hostile ground that it would be against his religious tenets to
and heretical to the majority, he has full freedom to believe recognize any authority except that of God alone. An atheist
as he pleases. He may not be required to prove his beliefs. He cannot express in his disbelief in act of derision that wound
may not be punished for his inability to do so. Religion, after the feelings of the faithful. The police power can validly
all, is a matter of faith. "Men may believe what they cannot asserted against the Indian practice of the suttee, born of
prove." Every one has a right to his beliefs and he may not be deep religious conviction, that calls on the widow to
called to account because he cannot prove what he believes. immolate herself at the funeral pile of her husband.

(2) Freedom to Act on One's Beliefs We thus reject petitioner's postulate that its religious program is per se beyond
review by the respondent Board. Its public broadcast on TV of its religious
But where the individual externalizes his beliefs in acts or program brings it out of the bosom of internal belief. Television is a medium
omissions that affect the public, his freedom to do so becomes that reaches even the eyes and ears of children. The Court iterates the rule that
subject to the authority of the State. As great as this liberty the exercise of religious freedom can be regulated by the State when it will
may be, religious freedom, like all the other rights guaranteed bring about the clear and present danger of some substantive evil which the
in the Constitution, can be enjoyed only with a proper regard State is duty bound to prevent, i.e., serious detriment to the more overriding
for the rights of others. It is error to think that the mere interest of public health, public morals, or public welfare. A laissez faire policy
invocation of religious freedom will stalemate the State and on the exercise of religion can be seductive to the liberal mind but history
render it impotent in protecting the general welfare. The counsels the Court against its blind adoption as religion is and continues to be a
inherent police power can be exercised to prevent religious volatile area of concern in our country today. Across the sea and in our shore,
practices inimical to society. And this is true even if such the bloodiest and bitterest wars fought by men were caused by irreconcilable
practices are pursued out of sincere religious conviction and religious differences. Our country is still not safe from the recurrence of this
not merely for the purpose of evading the reasonable stultifying strife considering our warring religious beliefs and the fanaticism
requirements or prohibitions of the law. with which some of us cling and claw to these beliefs. Even now, we have yet to
settle the near century old strife in Mindanao, the roots of which have been
Justice Frankfurter put it succinctly: "The constitutional nourished by the mistrust and misunderstanding between our Christian and
provision on religious freedom terminated disabilities, it did Muslim brothers and sisters. The bewildering rise of weird religious cults
not create new privileges. It gave religious liberty, not civil espousing violence as an article of faith also proves the wisdom of our rule
immunity. Its essence is freedom from conformity to religious rejecting a strict let alone policy on the exercise of religion. For sure, we shall
continue to subject any act pinching the space for the free exercise of religion to

93
a heightened scrutiny but we shall not leave its rational exercise to the Second. The evidence shows that the respondent Board x-rated petitioners TV
irrationality of man. For when religion divides and its exercise destroys, the series for "attacking" either religions, especially the Catholic church. An
State should not stand still. examination of the evidence, especially Exhibits "A," "A-1," "B," "C," and "D"
will show that the so-called "attacks" are mere criticisms of some of the deeply
It is also petitioner's submission that the respondent appellate court gravely held dogmas and tenets of other religions. The videotapes were not viewed by
erred when it affirmed the ruling of the respondent Board x-rating its TV the respondent court as they were not presented as evidence. Yet they were
Program Series Nos. 115, 119, 121 and 128. The records show that the considered by the respondent court as indecent, contrary to law and good
respondent Board disallowed the program series for "attacking" other religions. customs, hence, can be prohibited from public viewing under section 3(c) of PD
Thus, Exhibits "A," "A-1," (respondent Board's Voting Slip for Television) reveal 1986. This ruling clearly suppresses petitioner's freedom of speech and
that its reviewing members x-rated Series 115 for ". . . criticizing different interferes with its right to free exercise of religion. It misappreciates the
religions, based on their own interpretation of the Bible." They suggested that essence of freedom to differ as delineated in the benchmark case of Cantwell
the program should only explain petitioner's ". . . own faith and beliefs and v. Connecticut, so viz.: 20
avoid attacks on other faiths." Exhibit "B" shows that Series No. 119 was x-
rated because "the Iglesia ni Cristo insists on the literal translation of the bible xxx xxx xxx
and says that our Catholic veneration of the Virgin Mary is not to be condoned
because nowhere it is found in the bible that we should do so. This is In the realm of religious faith, and in that of political belief,
intolerance . . ." Exhibit "C" shows that Series No. 121 was x-rated ". . . for sharp differences arise. In both fields, the tenets of one man
reasons of the attacks, they do on, specifically, the Catholic religion. . . . (T)hey may seem the rankest error to his neighbor. To persuade
can not tell, dictate any other religion that they are right and the rest are others to his own point of view, the pleader, as we know, at
wrong times, resorts to exaggeration, to vilification of men who
. . ." Exhibit "D" also shows that Series No. 128 was not favorably have been, or are prominent in church or state or even to
recommended because it ". . . outrages Catholic and Protestant's beliefs." On false statements. But the people of this nation have ordained
second review, it was x-rated because of its "unbalanced interpretations of in the light of history that inspite of the probability of
some parts of the bible." 18 In sum, the respondent Board x-rated petitioner's excesses and abuses, these liberties are, in the long view,
TV program series Nos. 115, 119, 121 and 128 because of petitioner's essential to enlightened opinion and right conduct on the
controversial biblical interpretations and its "attacks" against contrary religious part of the citizens of democracy.
beliefs. The respondent appellate court agreed and even held that the said
"attacks" are indecent, contrary to law and good customs. The respondent Board may disagree with the criticisms of other
religions by petitioner but that gives it no excuse to interdict such
We reverse the ruling of the appellate court. criticisms, however, unclean they may be. Under our constitutional
scheme, it is not the task of the State to favor any religion by
First. Deeply ensconced in our fundamental law is its hostility against all prior protecting it against an attack by another religion. Religious dogmas
restraints on speech, including religious speech. Hence, any act that restrains and beliefs are often at war and to preserve peace among their
speech is hobbled by the presumption of invalidity and should be greeted with followers, especially the fanatics, the establishment clause of freedom
furrowed brows. 19 It is the burden of the respondent Board to overthrow this of religion prohibits the State from leaning towards any religion. Vis-a-
presumption. If it fails to discharge this burden, its act of censorship will be vis religious differences, the State enjoys no banquet of options.
struck down. It failed in the case at bar. Neutrality alone is its fixed and immovable stance. In fine, respondent

94
board cannot squelch the speech of petitioner Iglesia ni Cristo simply Thus, in an Opinion dated November 28, 1985 then Minister of Justice,
because it attacks other religions, even if said religion happens to be now President of the Senate, Neptali Gonzales explained:
the most numerous church in our country. In a State where there
ought to be no difference between the appearance and the reality of xxx xxx xxx
freedom of religion, the remedy against bad theology is better
theology. The bedrock of freedom of religion is freedom of thought However, the question whether the BRMPT (now MTRCB)
and it is best served by encouraging the marketplace of dueling ideas. may preview and censor the subject television program of
When the luxury of time permits, the marketplace of ideas demands INC should be viewed in the light of the provision of Section
that speech should be met by more speech for it is the spark of 3, paragraph (c) of PD 1986, which is substantially the same
opposite speech, the heat of colliding ideas that can fan the embers of as the provision of Section 3, paragraph (c) of E.O. No. 876-A,
truth. which prescribes the standards of censorship, to wit:
"immoral, indecent, contrary to law and/or good customs,
Third. The respondents cannot also rely on the ground "attacks against another injurious to the prestige of the Republic of the Philippines or
religion" in x-rating the religious program of petitioner. Even a sideglance at its people or with dangerous tendency to encourage the
section 3 of PD No. 1986 will reveal that it is not among the grounds to justify commission of violence, or of a wrong" as determined by the
an order prohibiting the broadcast of petitioner's television program. The Board, "applying contemporary Filipino cultural values as
ground "attack against another religion" was merely added by the respondent standard." As stated, the intention of the Board to subject the
Board in its Rules. 21 This rule is void for it runs smack against the hoary INC's television program to "previewing and censorship is
doctrine that administrative rules and regulations cannot expand the letter and prompted by the fact that its religious program makes
spirit of the law they seek to enforce. mention of beliefs and practices of other religion." On the
face of the law itself, there can conceivably be no basis for
It is opined that the respondent board can still utilize" attack against any censorship of said program by the Board as much as the
religion" as a ground allegedly ". . . because section 3 (c) of PD No. 1986 alleged reason cited by the Board does not appear to he
prohibits the showing of motion pictures, television programs and publicity within the contemplation of the standards of censorship set
materials which are contrary to law and Article 201 (2) (b) (3) of the Revised by law. (Emphasis supplied).
Penal Code punishes anyone who exhibits "shows which offend any race or
religion." We respectfully disagree for it is plain that the word "attack" is not Fourth. In x-rating the TV program of the petitioner, the respondents failed to
synonymous with the word "offend." Moreover, Article 201 (2) (b) (3) of the apply the clear and present danger rule. In American Bible Society v. City of
Revised Penal Code should be invoked to justify the subsequent punishment of Manila, 22 this Court held: "The constitutional guaranty of free exercise and
a show which offends any religion. It cannot be utilized to justify prior enjoyment of religious profession and worship carries with it the right to
censorship of speech. It must be emphasized that E.O. 876, the law prior to PD disseminate religious information. Any restraint of such right can be justified
1986, included "attack against any religion" as a ground for censorship. The like other restraints on freedom of expression on the ground that there is
ground was not, however, carried over by PD 1986. Its deletion is a decree to a clear and present danger of any substantive evil which the State has the right
disuse it. There can be no other intent. Indeed, even the Executive Department to prevent." In Victoriano vs. Elizalde Rope Workers Union, 23we further ruled
espouses this view. that ". . . it is only where it is unavoidably necessary to prevent an immediate
and grave danger to the security and welfare of the community that

95
infringement of religious freedom may be justified, and only to the smallest test is still applied to four types of speech: speech that advocates dangerous
extent necessary to avoid the danger." ideas, speech that provokes a hostile audience reaction, out of court contempt
and release of information that endangers a fair trial. 30 Hence, even following
The records show that the decision of the respondent Board, affirmed by the the drift of American jurisprudence, there is reason to apply the clear and
respondent appellate court, is completely bereft of findings of facts to justify present danger test to the case at bar which concerns speech that attacks other
the conclusion that the subject video tapes constitute impermissible attacks religions and could readily provoke hostile audience reaction. It cannot be
against another religion. There is no showing whatsoever of the type of doubted that religious truths disturb and disturb tenribly.
harm the tapes will bring about especially the gravity and imminence of the
threatened harm. Prior restraint on speech, including religious speech, cannot It is also opined that it is inappropriate to apply the clear and present danger
be justified by hypothetical fears but only by the showing of a substantive and test to the case at bar because the issue involves the content of speech and not
imminent evil which has taken the life of a reality already on ground. the time, place or manner of speech. Allegedly, unless the speech is first
allowed, its impact cannot be measured, and the causal connection between
It is suggested that we re-examine the application of clear and present danger the speech and the evil apprehended cannot be established. The contention
rule to the case at bar. In the United States, it is true that the clear and present overlooks the fact that the case at bar involves videotapes that are pre-
danger test has undergone permutations. It was Mr. Justice Holmes who taped and hence, their speech content is known and not an X quantity. Given
formulated the test in Schenck v. US, 24 as follows: ". . . the question in every the specific content of the speech, it is not unreasonable to assume that the
case is whether the words used are used in such circumstances and are of such respondent Board, with its expertise, can determine whether its sulphur will
a nature as to create a clear and present danger that they will bring about the bring about the substantive evil feared by the law.
substantive evils that Congress has a right to prevent." Admittedly, the test was
originally designed to determine the latitude which should be given to speech Finally, it is also opined by Mr. Justice Kapunan that ". . . the determination of
that espouses anti-government action. Bannered by Justices Holmes and the question as to whether or not such vilification, exaggeration or fabrication
Brandeis, the test attained its full flowering in the decade of the forties, when falls within or lies outside the boundaries of protected speech or expression is
its umbrella was used to protect speech other than subversive speech. 25 Thus, a judicial function which cannot be arrogated by an administrative body such as
for instance, the test was applied to annul a total ban on labor picketing. 26 The a Board of Censors." He submits that a "system of prior restraint may only be
use of the test took a downswing in the 1950's when the US Supreme Court validly administered by judges and not left to administrative agencies. "The
decided Dennis v. United States involving communist conspiracy. 27 In Dennis, same submission is made by Mr. Justice Mendoza.
the components of the test were altered as the High Court adopted Judge
Learned Hand's formulation that ". . . in each case [courts] must ask whether This thoughtful thesis is an attempt to transplant another American rule in our
the gravity of the 'evil,' discounted by its improbability, justifies such invasion jurisdiction. Its seedbed was laid down by Mr. Justice Brennan in his concurring
of free speech as is necessary to avoid the danger." The imminence opinion in the 1962 case of Manual Enterprise v. Day 31 By 1965, the US
requirement of the test was thus diminished and to that extent, the protection Supreme Court in Freedman v. Maryland 32 was ready to hold that "the teaching
of the rule was weakened. In 1969, however, the strength of the test was of cases is that, because only a judicial determination in an adversary
reinstated in Brandenburg v. Ohio, 28 when the High Court restored in the test proceeding ensures the necessary sensitivity to freedom of expression only a
the imminence requirement, and even added an intent requirement which procedure requiring a judicial determination suffices to impose a valid final
according to a noted commentator ensured that only speech directed at restraint." 33
inciting lawlessness could be punished. 29 Presently in the United States, the
clear and present danger test is not applied to protect low value speeches such
as obscene speech, commercial speech and defamation. Be that as it may, the

96
While the thesis has a lot to commend itself, we are not ready to hold that it is Postmaster-General), that the courts will not interfere with
unconstitutional for Congress to grant an administrative body quasi- the decision of the Director of Posts unless clearly of opinion
judicial power to preview and classify TV programs and enforce its that it was wrong. (Bates & Guilid Co. vs. Payne [1904], 194
decision subject to review by our courts. As far back as 1921, we upheld this U.S., 106; Smith vs. Hitchcock [1912], 226 U.S., 63; Masses
set-up in Sotto vs. Ruiz, 34 viz.: Pub. Co. vs. Patten [1917], 246 Fed., 24. But see David vs.
Brown [1900], 103 Fed., 909, announcing a somewhat
The use of the mails by private persons is in the nature of a different doctrine and relied upon by the Attorney-General).
privilege which can be regulated in order to avoid its abuse.
Persons posses no absolute right to put into the mail anything To be sure, legal scholars in the United States are still debating the
they please, regardless of its character. proposition whether or not courts alone are competent to decide
whether speech is constitutionally protected. 35 The issue involves
On the other hand, the exclusion of newspaper and other highly arguable policy considerations and can be better addressed by
publications from the mails, in the exercise of executive our legislators.
power, is extremely delicate in nature and can only be
justified where the statute is unequivocably applicable to the IN VIEW WHEREOF, the Decision of the respondent Court of Appeals dated
supposed objectionable publication. In excluding any March 24, 1995 is affirmed insofar as it sustained the jurisdiction of the
publication for the mails, the object should be not to respondent MTRCB to review petitioner's TV program entitled "Ang Iglesia ni
interfere with the freedom of the press or with any other Cristo," and is reversed and set aside insofar as it sustained the action of the
fundamental right of the people. This is the more true with respondent MTRCB x-rating petitioner's TV Program Series Nos. 115, 119, and
reference to articles supposedly libelous than to other 121. No costs.
particulars of the law, since whether an article is or is not
libelous, is fundamentally a legal question. In order for there SO ORDERED.
to be due process of law, the action of the Director of Posts
must be subject to revision by the courts in case he had
abused his discretion or exceeded his authority. (Ex
parte Jackson [1878], 96 U.S., 727;

Public Cleaning House vs. Coyne [1903], 194 U.S., 497; Post
Publishing Co. vs. Murray [1916]. 23 - Fed., 773)

As has been said, the performance of the duty of determining


whether a publication contains printed matter of a libelous
character rests with the Director of Posts and involves the
exercise of his judgment and discretion. Every intendment of
the law is in favor of the correctness of his action. The rule is
(and we go only to those cases coming from the United States
Supreme Court and pertaining to the United States

97
Republic of the Philippines The showing of "The Inside Story" caused uproar in the PWU community. Dr.
SUPREME COURT Leticia P. de Guzman, Chancellor and Trustee of the PWU, and the PWU Parents
Manila and Teachers Association filed letter-complaints3 with petitioner MTRCB. Both
complainants alleged that the episode besmirched the name of the PWU and
THIRD DIVISION resulted in the harassment of some of its female students.

G.R. No. 155282 January 17, 2005 Acting on the letter-complaints, the MTRCB Legal Counsel initiated a formal
complaint with the MTRCB Investigating Committee, alleging among others,
MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD that respondents (1) did not submit "The Inside Story" to petitioner for its
(MTRCB), petitioner, review and (2) exhibited the same without its permission, thus, violating
vs. Section 74 of Presidential Decree (P.D.) No. 19865 and Section 3,6 Chapter III
ABS-CBN BROADCASTING CORPORATION and LOREN LEGARDA, respondents. and Section 7,7 Chapter IV of the MTRCB Rules and Regulations.8

DECISION In their answer,9 respondents explained that the "The Inside Story" is a "public
affairs program, news documentary and socio-political editorial," the airing of
which is protected by the constitutional provision on freedom of expression
SANDOVAL-GUTIERREZ, J.:
and of the press. Accordingly, petitioner has no power, authority and
jurisdiction to impose any form of prior restraint upon respondents.
For our resolution is the petition for review on certiorari under Rule 45 of the
1997 Rules of Court, as amended, filed by petitioner Movie and Television
On February 5, 1993, after hearing and submission of the parties’ memoranda,
Review and Classification Board (MTRCB) against ABS-CBN Broadcasting
the MTRCB Investigating Committee rendered a Decision, the decretal portion
Corporation (ABS-CBN) and former Senator Loren Legarda, respondents,
of which reads:
assailing the (a) Decision dated November 18, 1997, 1 and (b) Order dated
August 26, 20022 of the Regional Trial Court, Branch 77, Quezon City, in Civil
Case No. Q-93-16052. "WHEREFORE, the aforementioned premises, the respondents are ordered to
pay the sum of TWENTY THOUSAND PESOS (P20,000.00) for non-submission of
the program, subject of this case for review and approval of the MTRCB.
The facts are undisputed.

Heretofore, all subsequent programs of the ‘The Inside Story’ and all other
On October 15, 1991, at 10:45 in the evening, respondent ABS-CBN aired
programs of the ABS-CBN Channel 2 of the same category shall be submitted to
"Prosti-tuition," an episode of the television (TV) program "The Inside Story"
the Board of Review and Approval before showing; otherwise the Board will act
produced and hosted by respondent Legarda. It depicted female students
accordingly."101awphi1.nét
moonlighting as prostitutes to enable them to pay for their tuition fees. In the
course of the program, student prostitutes, pimps, customers, and some
faculty members were interviewed. The Philippine Women’s University (PWU) On appeal, the Office of Atty. Henrietta S. Mendez, Chairman of the MTRCB,
was named as the school of some of the students involved and the facade of issued a Decision dated March 12, 1993 affirming the above ruling of its
PWU Building at Taft Avenue, Manila conspicuously served as the background Investigating Committee.11 Respondents filed a motion for reconsideration but
of the episode. was denied in a Resolution dated April 14, 1993. 12

98
Respondents then filed a special civil action for certiorari with the Regional Trial Petitioner MTRCB through the Solicitor General, contends inter alia: first, all
Court (RTC), Branch 77, Quezon City. It seeks to: (1) declare as unconstitutional television programs, including "public affairs programs, news documentaries,
Sections 3(b),13 3(c),14 3(d),15 4,16 7,17 and 1118 of P. D. No. 1986 and Sections or socio-political editorials," are subject to petitioner’s power of review under
3,19 7,20 and 2821 (a) of the MTRCB Rules and Regulations;22 (2) (in the Section 3 (b) of P.D. No. 1986 and pursuant to this Court’s ruling in Iglesia ni
alternative) exclude the "The Inside Story" from the coverage of the above cited Cristo vs. Court of Appeals ;25second, television programs are more accessible
provisions; and (3) annul and set aside the MTRCB Decision dated March 12, to the public than newspapers, thus, the liberal regulation of the latter cannot
1993 and Resolution dated April 14, 1993. Respondents averred that the apply to the former; third, petitioner’s power to review television programs
above-cited provisions constitute "prior restraint" on respondents’ exercise of under Section 3(b) of P. D. No. 1986 does not amount to "prior restraint;"
freedom of expression and of the press, and, therefore, unconstitutional. and fourth, Section 3(b) of P. D. No. 1986 does not violate respondents’
Furthermore, the above cited provisions do not apply to the "The Inside Story" constitutional freedom of expression and of the press.
because it falls under the category of "public affairs program, news
documentary, or socio-political editorials" governed by standards similar to Respondents take the opposite stance.
those governing newspapers.
The issue for our resolution is whether the MTRCB has the power or authority
On November 18, 1997, the RTC rendered a Decision 23 in favor of respondents, to review the "The Inside Story" prior to its exhibition or broadcast by
the dispositive portion of which reads: television.

"WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered: The petition is impressed with merit.

1. ANNULLING AND SETTING ASIDE the assailed Decision and The present controversy brings into focus the provisions of Section 3 of P. D.
Resolution of MTRCB dated March 12, 1993; No. 1986, partly reproduced as follows:

2. DECLARING AND DECREEING that Sections 3 (b), (c), and (d), 4, 7, "SEC. 3. Powers and Functions. – The BOARD shall have the following
and 11 of P.D. No. 1986 and Sections 3, 7, 28 (a) of its Implementing functions, powers and duties:
Rules do not cover the TV Program "The Inside Story" and other similar
programs, they being public affairs programs which can be equated to xxxxxx
newspapers; and
b) To screen, review and examine all motion pictures as herein
3. MAKING PERMANENT the Injunction against Respondents or all defined, television programs, including publicity materials such as
persons acting in their behalf. advertisements, trailers and stills, whether such motion pictures and publicity
materials be for theatrical or non-theatrical distribution, for television
SO ORDERED." broadcast or for general viewing, imported or produced in the Philippines, and
in the latter case, whether they be for local viewing or for export.1a\^/phi1.net
Petitioner filed a motion for reconsideration but was denied.24
c) To approve or disapprove, delete objectionable portions from and/or
Hence, this petition for review on certiorari. prohibit the importation, exportation, production, copying, distribution, sale,
lease exhibition and/or television broadcast of the motion pictures, television

99
programs and publicity materials subject of the preceding paragraph, which, in which are objectionable for being ‘immoral, indecent, contrary to law and/or
the judgment of the BOARD applying contemporary Filipino cultural values as good customs, injurious to the prestige of the Republic of the Philippines and
standard, are objectionable for being immoral, indecent, contrary to law its people, or with a dangerous tendency to encourage the commission of
and/or good customs, injurious to the prestige of the Republic of the violence or of a wrong or crime.’"
Philippines or its people, or with a dangerous tendency to encourage the
commission of violence or of a wrong or crime, such as but not limited to: Settled is the rule in statutory construction that where the law does not make
any exception, courts may not except something therefrom, unless there is
xxx compelling reason apparent in the law to justify it.28 Ubi lex non distinguit nec
distinguere debemos. Thus, when the law says "all television programs," the
d) To supervise, regulate, and grant, deny or cancel, permits for the word "all" covers all television programs, whether religious, public affairs, news
importation, exportation, production, copying, distribution, sale, lease, documentary, etc.29 The principle assumes that the legislative body made no
exhibition, and/or television broadcast of all motion pictures, television qualification in the use of general word or expression.30
programs and publicity materials, to the end and that no such pictures,
programs and materials as are determined by the BOARD to be objectionable in It then follows that since "The Inside Story" is a television program, it is within
accordance with paragraph (c) hereof shall be imported, exported, produced, the jurisdiction of the MTRCB over which it has power of review.
copied, reproduced, distributed, sold, leased, exhibited and/or broadcast by
television; Here, respondents sought exemption from the coverage of the term "television
programs" on the ground that the "The Inside Story" is a "public affairs
x x x x x x." program, news documentary and socio-political editorial" protected under
Section 4,31 Article III of the Constitution. Albeit, respondent’s basis is not
Vis-a-vis the foregoing provisions, our task is to decide whether or not freedom of religion, as in Iglesia ni Cristo,32 but freedom of expression and of
petitioner has the power to review the television program "The Inside Story." the press, the ruling in Iglesia ni Cristo applies squarely to the instant issue. It is
The task is not Herculean because it merely resurrects this Court En significant to note that in Iglesia ni Cristo, this Court declared that freedom of
Banc’s ruling in Iglesia ni Cristo vs. Court of Appeals.26 There, the Iglesia ni religion has been accorded a preferred status by the framers of our
Cristo sought exception from petitioner’s review power contending that the fundamental laws, past and present, "designed to protect the broadest
term "television programs" under Sec. 3 (b) does not include "religious possible liberty of conscience, to allow each man to believe as his conscience
programs" which are protected under Section 5, Article III of the directs x x x." Yet despite the fact that freedom of religion has been accorded
Constitution.27 This Court, through Justice Reynato Puno, categorically ruled a preferred status, still this Court, did not exempt the Iglesia ni Cristo’s religious
that P.D. No. 1986 gives petitioner "the power to screen, review and examine program from petitioner’s review power.
"all television programs," emphasizing the phrase "all television programs,"
thus: Respondents claim that the showing of "The Inside Story" is protected by the
constitutional provision on freedom of speech and of the press. However, there
"The law gives the Board the power to screen, review and examine all has been no declaration at all by the framers of the Constitution that freedom
‘television programs.’ By the clear terms of the law, the Board has the power of expression and of the press has a preferred status.
to ‘approve, delete x x x and/or prohibit the x x x exhibition and/or television
broadcast of x x x television programs x x x.’ The law also directs the Board to If this Court, in Iglesia ni Cristo, did not exempt religious programs from the
apply ‘contemporary Filipino cultural values as standard’ to determine those jurisdiction and review power of petitioner MTRCB, with more reason, there is

100
no justification to exempt therefrom "The Inside Story" which, according to reporting, as distinguished from news analyses, commentaries and opinions.
respondents, is protected by the constitutional provision on freedom of Talk shows on a given issue are not considered newsreels."36 Clearly, the "The
expression and of the press, a freedom bearing no preferred status. Inside Story" cannot be considered a newsreel. It is more of a public affairs
program which is described as a variety of news treatment; a cross between
The only exceptions from the MTRCB’s power of review are those expressly pure television news and news-related commentaries, analysis and/or
mentioned in Section 7 of P. D. No. 1986, such as (1) television programs exchange of opinions.37 Certainly, such kind of program is within petitioner’s
imprinted or exhibited by the Philippine Government and/or its departments review power.
and agencies, and (2) newsreels. Thus:
It bears stressing that the sole issue here is whether petitioner MTRCB has
"SEC. 7. Unauthorized showing or exhibition. – It shall be unlawful for any authority to review "The Inside Story." Clearly, we are not called upon to
person or entity to exhibit or cause to be exhibited in any moviehouse, theatre, determine whether petitioner violated Section 4, Article III (Bill of Rights) of the
or public place or by television within the Philippines any motion picture, Constitution providing that no law shall be passed abridging the freedom of
television program or publicity material, including trailers, and stills for lobby speech, of oppression or the press. Petitioner did not disapprove or ban the
displays in connection with motion pictures, not duly authorized by the owner showing of the program. Neither did it cancel respondents’ permit.
or his assignee and passed by the BOARD; or to print or cause to be printed on Respondents were merely penalized for their failure to submit to petitioner
any motion picture to be exhibited in any theater or public place or by "The Inside Story" for its review and approval. Therefore, we need not resolve
television a label or notice showing the same to have been officially passed by whether certain provisions of P. D. No. 1986 and the MTRCB Rules and
the BOARD when the same has not been previously authorized, except motion Regulations specified by respondents contravene the Constitution.
pictures, television programs or publicity material imprinted or exhibited by
the Philippine Government and/or its departments and agencies, and Consequently, we cannot sustain the RTC’s ruling that Sections 3 (c) (d), 4, 7
newsreels." and 11 of P. D. No. 1986 and Sections 3, 7 and 28 (a) of the MTRCB Rules and
Regulations are unconstitutional. It is settled that no question involving the
Still in a desperate attempt to be exempted, respondents contend that the constitutionality or validity of a law or governmental act may be heard and
"The Inside Story" falls under the category of newsreels. decided by the court unless there is compliance with the legal requisites for
judicial inquiry, namely: (1) that the question must be raised by the proper
Their contention is unpersuasive. party; (2) that there must be an actual case or controversy; (3) that the
question must be raised at the earliest possible opportunity; and, (4) that the
decision on the constitutional or legal question must be necessary to the
P. D. No. 1986 does not define "newsreels." Webster’s dictionary defines
determination of the case itself.38
newsreels as short motion picture films portraying or dealing with current
events.33 A glance at actual samples of newsreels shows that they are mostly
reenactments of events that had already happened. Some concrete examples WHEREFORE, the instant petition is GRANTED.l^vvphi1.net The assailed RTC
are those of Dziga Vertov’s Russian Kino-Pravda newsreel series (Kino- Decision dated November 18, 1997 and Order dated August 26, 2002 are
Pravda means literally "film-truth," a term that was later translated literally hereby REVERSED. The Decision dated March 12, 1993 of petitioner MTRCB is
into the French cinema verite) and Frank Capra’s Why We Fight AFFIRMED. Costs against respondents.
series.34 Apparently, newsreels are straight presentation of events. They are
depiction of "actualities." Correspondingly, the MTRCB Rules and SO ORDERED.
Regulations35 implementing P. D. No. 1986 define newsreels as "straight news

101
Republic of the Philippines discussed issues during the campaign period (hereafter referred to as
SUPREME COURT "Survey").
Manila
The implement §5.4, Resolution 3636, §24(h), dated March I, 2001, of the
SECOND DIVISION COMELEC enjoins –

G.R. No. 147571 May 5, 2001 Surveys affecting national candidates shall not be published fifteen
(15) days before an election and surveys affecting local candidates
SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN PUBLISHING shall not be published seven (7) days be- fore an election.
CORPORATION, doing business as MANILA STANDARD, petitioners,
vs. Petitioner SWS states that it wishes to conduct an election survey throughout
COMMISSION ON ELECTIONS, respondent. the period of the elections both at the national and local levels and release to
the media the results of such survey as well as publish them directly. Petitioner
MENDOZA, J.: Kamahalan Publishing Corporation, on the other hand, states that it intends to
publish election survey results up to the last day of the elections on May
Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock, non- 14,2001.
profit social research institution conducting surveys in various fields, including
economics, politics, demography, and social development, and thereafter Petitioners argue that the restriction on the publication of election survey
processing, analyzing, and publicly reporting the results thereof. On the other results constitutes a prior restraint on the exercise of freedom of speech
hand, petitioner Kamahalan Publishing Corporation publishes the Manila without any clear and present danger to justify such restraint. They claim that
Standard, a newspaper of general circulation, which features news- worthy SWS and other pollsters conducted and published the results of surveys prior to
items of information including election surveys. 1âwphi1.nêt the 1992, 1995, and 1998 elections up to as close as two days before the
election day without causing confusion among the voters and that there is
Petitioners brought this action for prohibition to enjoin the Commission on neither empirical nor historical evidence to support the conclusion that there is
Elections from enforcing §5.4 of RA. No.9006 (Fair Election Act), which an immediate and inevitable danger to tile voting process posed by election
provides: surveys. They point out that no similar restriction is imposed on politicians
from explaining their opinion or on newspapers or broadcast media from
writing and publishing articles concerning political issues up to the day of the
Surveys affecting national candidates shall not be published fifteen
election. Consequently, they contend that there is no reason for ordinary
(15) days before an election and surveys affecting local candidates
voters to be denied access to the results of election surveys, which are
shall not be published seven (7) days be- fore an election.
relatively objective. 1âwphi1.nêt
The term "election surveys" is defined in §5.1 of the law as follows:
Respondent Commission on Elections justifies the restrictions in §5.4 of R.A.
No. 9006 as necessary to prevent the manipulation and corruption of the
Election surveys refer to the measurement of opinions and
electoral process by unscrupulous and erroneous surveys just before the
perceptions of the voters as regards a candidate's popularity,
election. It contends that (1) the prohibition on the publication of election
qualifications, platforms or a matter of public discussion in relation to
survey results during the period proscribed by law bears a rational connection
the election, including voters preference for candidates or publicly

102
to the objective of the law, i.e., the prevention of the debasement of the The technical effect of Article IX (C) (4) of the Constitution may be
electoral process resulting from manipulated surveys, bandwagon effect, and seen to be that no presumption of invalidity arises in respect of
absence of reply; (2) it is narrowly tailored to meet the "evils" sought to be exercises of supervisory or regulatory authority on the part of the
prevented; and (3) the impairment of freedom of expression is minimal, the Comelec for the Purpose of securing equal opportunity among
restriction being limited both in duration, i.e., the last 15 days before the candidates for political office, although such supervision or regulation
national election and the last 7 days before a local election, and in scope as it may result in some limitation of the rights of free speech and free
does not prohibit election survey results but only require timeliness. press.5
Respondent claims that in National Press Club v. COMELEC,1 a total ban on
political advertisements, with candidates being merely allocated broadcast MR JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of clear
time during the so-called COMELEC space or COMELEC hour, was upheld by this and present danger for determining the validity of §5.4. Indeed, as has been
Court. In contrast, according to respondent, it states that the prohibition in pointed out in Osmeña v. COMELEC,6 this test was originally formulated for the
§5.4 of RA. No. 9006 is much more limited. criminal law and only later appropriated for free speech cases. Hence, while it
may be useful for determining the validity of laws dealing with
For reasons hereunder given, we hold that §5.4 of R.A. No. 9006 constitutes an inciting to sedition or incendiary speech, it may not be adequate for such
unconstitutional abridgment of freedom of speech, expression, and the press. regulations as the one in question. For such a test is concerned with questions
of the gravity and imminence of the danger as basis for curtailing free speech,
To be sure, §5.4Iays a prior restraint on freedom of speech, expression, and the which is not the case of §5.4 and similar regulations.
press prohibiting the publication of election survey results affecting candidates
within the prescribed periods of fifteen (15) days immediately preceding a Instead, MR JUSTICE KAPUNAN purports to engage in a form of balancing by
national election seven (7) days before a local election. Because of tile "weighing and balancing the circumstances to determine whether public
preferred status of tile constitutional rights of speech, expression, and he press, interest [in free, orderly, honest, peaceful and credible elections] is served by
such a measure is vitiated by a weighty presumption of invalidity.2 Indeed, any the regulation of the free enjoyment of the rights" (page 7). After canvassing
system of prior restraints of expression comes to this Court bearing a heavy the reasons for the prohibition, i.e., to prevent last-minute pressure on voters,
Presumption against its constitutional validity. ...The Government thus carries a the creation of bandwagon effect to favor candidates, misinformation, the
heavy burden of showing justification for in enforcement of such restraint. junking" of weak and "losing" candidates by their parties, and the form of
"'3 There, thus a reversal of the normal presumption of validity that inheres in election cheating called "dagdag-bawas" and invoking the State's power to
every legislation. supervise media of information during the election period (pages 11-16), the
dissenting opinion simply concludes:
Nor may it be argued that because of Art. IX-C, §4 of the Constitution, which
gives the COMELEC supervisory power to regulate the enjoyment or utilization Viewed in the light of the legitimate and significant objectives of
of franchise for the operation of media of communication, no presumption of Section 5.4, It may be seen that its limitingimpact on the rights of free
invalidity attaches to a measure like §5.4. For as we have pointed out in speech and of the press is not unduly repressive or unreasonable. In
sustaining tile ban on media political advertisements, the grant of power to the Indeed, it is a mere restriction, not an absolute prohibition, on the
COMELEC under Art. IX-C, §4 is limited to ensuring "equal opportunity, time, publication of election surveys. It is limited in duration; it applies only
space, and the right to reply" as well as uniform and reasonable rates of during the period when the voters are presumably contemplating
charges for the use of such media facilities "public information campaigns and whom they should elect and when they are most susceptible to such
forums among candidates."4 This Court stated:

103
unwarranted persuasion. These surveys may be published thereafter. no older nor more mature than the Philippines in political development, do not
(Pages 17-18) restrict the publication of election survey results.

The dissent does not, however, show why, on balance, these considerations What test should then be employed to determine the constitutional validity of
should outweigh the value of freedom of expression. Instead, reliance is placed §5.4? The United States Supreme Court, through Chief Justice Warren, held
on Art. IX-C, §4. As already stated, the purpose of Art. IX-C, §4 is to "ensure in United States v. O 'Brien:
equal opportunity, time, and space and the right of reply, including reasonable,
equal rates therefor for public information campaigns and forums among [A] Government regulation is sufficiently justified [1] if it is within the
candidates. " Hence the validity of the ban on media advertising. It is constitutional power of the Government; [2] if it furthers an important
noteworthy that R.A. No. 9006, § 14 has lifted the ban and now allows or substantial governmental interest; [3] if the governmental interest
candidates to advertise their candidacies in print and broadcast media. Indeed, is unrelated to the suppression of free expression; and [4] if the
to sustain the ban on the publication of survey results would sanction the incidental restriction on alleged First Amendment freedoms [of
censorship of all speaking by candidates in an election on the ground that the speech, expression and press] is no greater than is essential to the
usual bombasts and hyperbolic claims made during the campaigns can confuse furtherance of that interest.8
voters and thus debase the electoral process.
This is so far the most influential test for distinguishing content-based from
In sum, the dissent has engaged only in a balancing at the margin. This form of content neutral regulations and is said to have "become canonical in the review
ad hoc balancing predictably results in sustaining the challenged legislation and of such laws."9 is noteworthy that the O 'Brien test has been applied by this
leaves freedom of speech, expression, and the press with little protection. For Court in at least two cases.10
anyone who can bring a plausible justification forward can easily show a
rational connection between the statute and a legitimate governmental Under this test, even if a law furthers an important or substantial governmental
purpose. In contrast, the balancing of interest undertaken by then Justice interest, it should be invalidated if such governmental interest is "not unrelated
Castro in Gonzales v. COMELEC,7 from which the dissent in this case takes its to the Expression of free expression." Moreover, even if the purpose is
cue, was a strong one resulting in his conclusion that , §50-B of R.A. No. 4880, unrelated to the suppression of free speech, the law should nevertheless be
which limited the period of election campaign and partisan political activity, invalidated if the restriction on freedom of expression is greater than is
was an unconstitutional abridgment of freedom of expression. necessary to achieve the governmental purpose in question.

Nor can the ban on election surveys be justified on the ground that there are Our inquiry should accordingly focus on these two considerations as applied to
other countries - 78, according to the Solicitor General, while the dissent cites §5.4.
28 - which similarly impose restrictions on the publication of election surveys.
At best this survey is inconclusive. It is note worthy that in the United States no
>First. Sec. 5.4 fails to meet criterion [3] of the O 'Brien test because the causal
restriction on the publication of election survey results exists. It cannot be
connection of expression to the asserted governmental interest makes such
argued that this is because the United States is a mature democracy. Neither
interest "not related to the suppression of free expression." By prohibiting the
are there laws imposing an embargo on survey results, even for a limited
publication of election survey results because of the possibility that such
period, in other countries. As pointed out by petitioners, the United Kingdom,
publication might undermine the integrity of the election, §5.4 actually
Austria, Belgium, Denmark, Estonia, Finland, Iceland, Ireland, Latvia, Malta,
suppresses a whole class of expression, while allowing the expression of
Macedonia, the Netherlands, Norway, Sweden, and Ukraine, some of which are
opinion concerning the same subject matter by newspaper columnists, radio

104
and TV commentators, armchair theorists, and other opinion takers. In effect, only for a period of fifteen (15) days immediately before a national election and
§5.4 shows a bias for a particular subject matter, if not viewpoint, by referring seven (7) days immediately before a local election. ..
personal opinion to statistical results. The constitutional guarantee of freedom
of expression means that "the government has no power to restrict expression This sufficiently distinguishes §5.4 from R.A. No. 6646, §11(b), which this Court
because of its message, its ideas, its subject matter, or its content."11 The found to be valid in National Press Club v. COMELEC,14 and Osmeña v.
inhibition of speech should be upheld only if the expression falls within one of COMELEC.15 For the ban imposed by R.A. No. 6646, §11(b) is not only
the few unprotected categories dealt with in Chaplinsky v. New authorized by a specific constitutional provision,16 but it also provided an
Hampshire, 12 thus: alternative so that, as this Court pointed out in Osmeña, there was actually no
ban but only a substitution of media advertisements by the COMELEC space
There are certain well-defined and narrowly limited classes of speech, and COMELEC hour.
the prevention and punishment of which have never been thought to
raise any Constitutional problem. These include the lewd and obscene, Second. Even if the governmental interest sought to be promoted is unrelated
the profane, the libelous, and the insulting or 'fighting' words - those to the suppression of speech and the resulting restriction of free expression is
which by their very utterance inflict injury or tend to incite an only incidental, §5.4 nonetheless fails to meet criterion [4] of the O 'Brien test,
immediate breach of the peace. [S]uch utterances are no essential namely, that the restriction be not greater than is necessary to further the
part of any exposition of ideas, and are of such slight social value as a governmental interest. As already stated, §5.4 aims at the prevention of last-
step to truth that any benefit that may be derived from them is clearly minute pressure on voters, the creation of bandwagon effect, "junking" of
outweighed by the social interest in order and morality weak or "losing" candidates, and resort to the form of election cheating called
"dagdag-bawas." Praiseworthy as these aims of the regulation might be, they
Nor is there justification for the prior restraint which §5.4Iays on protected cannot be attained at the sacrifice of the fundamental right of expression,
speech. Near v. Minnesota,13 it was held: when such aim can be more narrowly pursued by punishing
unlawful acts, rather than speech because of apprehension that such speech
[The] protection even as to previous restraint is not absolutely creates the danger of such evils. Thus, under the Administrative Code of
unlimited. But the limitation has been recognized only in exceptional 1987,17 the COMELEC is given the power:
cases…. No one would question but that a government might prevent
actual obstruction to its recruiting service or the publication of the To stop any illegal activity, or confiscate, tear down, and stop
sailing dates transports or the number and location of troops. On any unlawful, libelous, misleading or false election propaganda, after
similar grounds, the primary requirements of decency may be due notice and hearing.
enforced against obscene publications. The security of the community
life may be protected against incitements to acts of violence and This is surely a less restrictive means than the prohibition contained in §5.4.
overthrow by force of orderly government… Pursuant to this power of the COMELEC, it can confiscate bogus survey results
calculated to mislead voters. Candidates can have their own surveys
Thus, contrary to the claim of the Solicitor General, the prohibition imposed by conducted. No right of reply can be invoked by others. No principle of equality
§5.4 cannot be justified on the ground that it is only for a limited period and is is involved. It is a free market to which each candidate brings his ideas. As for
only incidental. The prohibition may be for a limited time, but the curtailment the purpose of the law to prevent bandwagon effects, it is doubtful whether
of the right of expression is direct, absolute, and substantial. It constitutes a the Government can deal with this natural-enough tendency of some voters.
total suppression of a category of speech and is not made less so because it is Some voters want to be identified with the "winners." Some are susceptible to

105
the herd mentality. Can these be legitimately prohibited by suppressing the
publication of survey results, which are a form of expression? It has been held
that "[mere] legislative preferences or beliefs respecting matters of public
convenience may well support regulation directed at other personal activities,
but be insufficient to justify such as diminishes the exercise of rights so vital to
the maintenance of democratic institutions."18

To summarize then, we hold that §5.4 is invalid because (1) it imposes a prior
restraint on the freedom of expression, (2) it is a direct and total suppression of
a category of expression even though such suppression is only for a limited
period, and (3) the governmental interest sought to be promoted can be
achieved by means other than suppression of freedom of expression.

On the other hand, the COMELEC contends that under Art. IX-A, §7 of the
Constitution, its decisions, orders, or resolution may be reviewed by this Court
only certiorari. The flaws in this argument is that it assumes that its Resolution
3636, March 1, 2001 is a "decision, order, or resolution" within the meaning of
Art. IX-A, §7. Indeed, counsel for COMELEC maintain that Resolution 3636 was
"rendered" by the Commission. However, the Resolution does not purport to
adjudicate the right of any party. It is not an exercise by the COMELEC of its
adjudicatory power to settle the claims of parties. To the contrary, Resolution
3636 clearly states that it is promulgated to implement the provisions of R.A.
No. 9006. Hence, there is no basis for COMELEC's claim that this petition for
prohibition is inappropriate. Prohibition has been fund appropriate for testing
the constitutionality of various election laws, rules, and regulations. 19

WHEREFORE, the petition for prohibited GRANTED and §5.4 of R.A. No. 9006
§24(h) of COMELEC Resolution 3636, March 1, 2001, are declared
unconstitutional. 1âwphi1.nêt

SO ORDERED.

106
Republic of the Philippines criminally, unlawfully and wilfully and with knowledge that Honorable
SUPREME COURT Leonard Wood was the Governor-General of the Philippine Islands and
Manila in the discharge of his functions as such authority, insult by word,
without his presence, said Governor-General, uttering in a loud voice
EN BANC and in the presence of many persons, and in a public place, the
following phrases: "Asin an mangña filipinos na caparejo co,
G.R. No. L-21049 December 22, 1923 maninigong gumamit nin sundang asin haleon an payo ni Wood huli
can saiyang recomendacion sa pag raot con Filipinas," which in English,
is as follows: "And the Filipinos, like myself, must use bolos for cutting
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
off Wood's head for having recommended a bad thing for the
vs.
Philippines.
ISAAC PEREZ, defendant-appellant.

Contrary to article 256 of the Penal Code.


Mario Guariña for appellant.
Attorney-General Villa Real for appellee.
At the trial of the case, two witnesses were called on behalf of the prosecution
and three witnesses on behalf of the defense. According to the first witness for
the Government, Juan Lumbao, the municipal president of Pilar, what Perez
said on the occasion in question was this:
MALCOLM, J.:
"The Filipinos, like myself, should get a bolo and cut off the head of Governor-
Isaac Perez, the municipal secretary of Pilar, Sorsogon, and Fortunato Lodovice,
General Wood, because he has recommended a bad administration in these
a citizen of that municipality, happening to meet on the morning of April 1,
Islands and has not made a good recommendation; on the contrary, he has
1992, in the presidencia of Pilar, they became engaged in a discussion regarding
assassinated the independence of the Philippines and for this reason, we have
the administration of Governor-General Wood, which resulted in Perez
not obtained independence and the head of that Governor-General must be
shouting a number of times: "The Filipinos, like myself, must use bolos for
cut off." Higinio J. Angustia, justice of the peace of Pilar, in a written statement,
cutting off Wood's head for having recommended a bad thing for the Filipinos,
and Gregorio Cresencio, another witness for the prosecution, corroborated the
for he has killed our independence." Charged in the Court of First Instance of
testimony of the first witness. Cresencio understood that Perez invited the
Sorsogon with a violation of article 256 of the Penal Code having to do with
Filipinos including himself to get their bolos and cut off the head of Governor-
contempt of ministers of the Crown or other persons in authority, and
General Wood and throw it into the sea.
convicted thereof, Perez has appealed the case to this court. The question
presented for decision is, What crime, if any, did the accused commit?
The witnesses for the defense did not deny that an altercation took place on
the morning of April 1, 1922, in which the accused participated. But they
A logical point of departure is the information presented in this case. It reads in
endeavored to explain that the discussion was between Perez and one Severo
translation as follows:
Madrid, the latter maintaining that the fault was due to the Nacionalista Party,
while Perez argued that the Governor-General was to blame. The accused
That on or about April 1, 1922, in the municipality of Pilar, Province of testified that the discussion was held in a peaceful manner, and that what he
Sorsogon, Philippine Islands, the said accused, Isaac Perez, while wished to say was that the Governor-General should be removed and
holding a discussion with several persons on political matters, did

107
substituted by another. On the witness stand, he stated that his words were case, is found this significant sentence: "Act No. 292 of the Philippine
the following: "We are but blaming the Nacionalista Party which is in power but Commission, the Treason and Sedition Law, may also have affected article 256,
do not take into account that above the representatives there is Governor- but as to this point, it is not necessary to make a pronouncement."
General Wood who controls everything, and I told him that the day on which
the Democrats may kill that Governor-General, then we, the Filipinos will install It may therefore be taken as settled doctrine, to which those of us who retain a
the government we like whether you Democratas want to pay or not to pay contrary opinion must bow with as good grace as we can muster, that until
taxes." otherwise decided by higher authority, so much of article 256 of the Penal
Code as does not relate to ministers of the Crown or to writings coming under
The trial judge found as a fact, and we think with abundant reason, that it had the Libel Law, exist and must be enforced. To which proposition, can properly
been proved beyond a reasonable doubt that the accused made use of the be appended a corollary, namely: Seditious words, speeches, or libels,
language stated in the beginning of this decision and set out in the information. constitute a violation of Act No. 292, the Treason and Sedition Law, and to this
The question of fact thus settled, the question of law recurs as to the crime of extent, both the Penal Code and the Libel Law are modified.
which the accused should be convicted.
Accepting the above statements relative to the continuance and status of
It should be recalled that the fiscal named, in the information, article 256 of the article 256 of the Penal Code, it is our opinion that the law infringed in this
Penal Code as having been infringed and the trial judge so found in his decision. instance is not this article but rather a portion of the Treason and Sedition Law.
The first error assigned by counsel for the appellant is addressed to this In other words, as will later appear, we think that the words of the accused did
conclusion of the lower court and is to the effect that article 256 of the Penal not so much tend to defame, abuse, or insult, a person in authority, as they did
Code is no longer in force. to raise a disturbance in the community.

In the case of United States vs. Helbig ([1920], R. G. No. 14705 1), the accused In criminal law, there are a variety of offenses which are not directed primarily
was charged with having uttered the following language: "To hell with the against individuals, but rather against the existence of the State, the authority
President of the United States and his proclamation!" Mr. Helbig was of the Government, or the general public peace. The offenses created and
prosecuted under article 256, and though the case was eventually sent back to defined in Act No. 292 are distinctly of this character. Among them is sedition,
the court of origin for a new trial, the appellate court by majority vote held as a which is the raising of commotions or disturbances in the State. It is a revolt
question of law that article 256 is still in force. against legitimate authority. Though the ultimate object of sedition is a
violation of the public peace or at least such a course of measures as evidently
In the case of People vs. Perfecto ([1922], 43 Phil., 887), the accused was engenders it, yet it does not aim at direct and open violence against the laws,
charged with having published an article reflecting on the Philippine Senate and or the subversion of the Constitution. (2 Bouvier's Law Dictionary, 974;
its members in violation of article 256 of the Penal Code. In this court, Mr. U.S. vs. Abad [1902], 1 Phil., 437; People vs. Cabrera [1922], 43 Phil., 64.)
Perfecto was acquitted by unanimous vote, with three members of the court
holding that article 256 was abrogated completely by the change from Spanish It is of course fundamentally true that the provisions of Act No. 292 must not
to American sovereignty over the Philippines, and with six members holding be interpreted so as to abridge the freedom of speech and the right of the
that the Libel Law had the effect of repealing so much of article 256 as relates people peaceably to assemble and petition the Government for redress of
to written defamation, abuse, or insult, and that under the information and the grievances. Criticism is permitted to penetrate even to the foundations of
facts, the defendant was neither guilty of a violation of article 256 of the Penal Government. Criticism, no matter how severe, on the Executive, the
Code nor of the libel Law. In the course of the main opinion in the Perfecto Legislature, and the Judiciary, is within the range of liberty of speech, unless the

108
intention and effect be seditious. But when the intention and effect of the act is to instigate others to cabal or meet together for unlawful purposes, or
seditious, the constitutional guaranties of freedom of speech and press and of which suggests or incites rebellious conspiracies or which tends to stir
assembly and petition must yield to punitive measures designed to maintain up the people against the lawful authorities, or which tends to disturb
the prestige of constituted authority, the supremacy of the constitution and the peace of the community or the safety or order of the Government,
the laws, and the existence of the State. (III Wharton's Criminal Law, pp. or who shall knowingly conceal such evil practices from the
2127 et seq.; U.S. vs. Apurado [1907], 7 Phil., 422; People vs. Perfecto, supra.) constituted authorities, shall be punished by a fine not exceeding two
thousand dollars United States currency or by imprisonment not
Here, the person maligned by the accused is the Chief Executive of the exceeding two years, or both, in the discretion of the court.
Philippine Islands. His official position, like the Presidency of the United States
and other high offices, under a democratic form of government, instead, of In the words of the law, Perez has uttered seditious words. He has made a
affording immunity from promiscuous comment, seems rather to invite abusive statement and done an act which tended to instigate others to cabal or meet
attacks. But in this instance, the attack on the Governor-General passes the together for unlawful purposes. He has made a statement and done an act
furthest bounds of free speech was intended. There is a seditious tendency in which suggested and incited rebellious conspiracies. He has made a statement
the words used, which could easily produce disaffection among the people and and done an act which tended to stir up the people against the lawful
a state of feeling incompatible with a disposition to remain loyal to the authorities. He has made a statement and done an act which tended to disturb
Government and obedient to the laws. the peace of the community and the safety or order of the Government. All of
these various tendencies can be ascribed to the action of Perez and may be
The Governor-General is an executive official appointed by the President of the characterized as penalized by section 8 of Act No. 292 as amended.
United States by and with the advice and consent of the Senate of the United
States, and holds in his office at the pleasure of the President. The Organic Act A judgment and sentence convicting the accused of a violation of section 8 of
vests supreme executive power in the Governor-General to be exercised in Act No. 292 as amended, is, in effect, responsive to, and based upon, the
accordance with law. The Governor-General is the representative of executive offense with which the defendant is charged. The designation of the crime by
civil authority in the Philippines and of the sovereign power. A seditious attack the fiscal is not conclusive. The crime of which the defendant stands charged is
on the Governor-General is an attack on the rights of the Filipino people and on that described by the facts stated in the information. In accordance with our
American sovereignty. (Concepcion vs. Paredes [1921], 42 Phil., 599; settled rule, an accused may be found guilty and convicted of a graver offense
U.S. vs. Dorr [1903], 2 Phil., 332.) than that designated in the information, if such graver offense is included or
described in the body of the information, and is afterwards justified by the
Section 8 of Act No. 292 of the Philippine Commission, as amended by Act No. proof presented during the trial. (Guevarra's Code of Criminal Procedure, p. 9;
1692, appears to have been placed on the statute books exactly to meet such a De Joya's Code of Criminal Procedure, p. 9.)
situation. This section reads as follows:
The penalty meted out by the trial court falls within the limits provided by the
Every person who shall utter seditious words or speeches, or who shall Treason and Sedition Law, and will, we think, sufficiently punish the accused.
write, publish or circulate scurrilous libels against the Government of
the United States or against the Government of the Philippine Islands, That we have given more attention to this case than it deserves, may be
or who shall print, write, publish utter or make any statement, or possible. Our course is justified when it is recalled that only last year, Mr. Chief
speech, or do any act which tends to disturb or obstruct any lawful Justice Taft of the United States Supreme Court, in speaking of an outrageous
officer in executing his office or in performing his duty, or which tends libel on the Governor of the Porto Rico, observed: "A reading of the two articles

109
removes the slightest doubt that they go far beyond the "exuberant
expressions of meridional speech," to use the expression of this court in a
similar case in Gandia vs. Pettingill (222 U.S. , 452, 456). Indeed they are so
excessive and outrageous in their character that they suggest the query
whether their superlative vilification has not overleapt itself and become
unconsciously humorous." (Balzac vs. Porto Rico [1922], 258 U.S., 298.) While
our own sense of humor is not entirely blunted, we nevertheless entertain the
conviction that the courts should be the first to stamp out the embers of
insurrection. The fugitive flame of disloyalty, lighted by an irresponsible
individual, must be dealt with firmly before it endangers the general public
peace.

The result is to agree with the trial Judge in his findings of fact, and on these
facts to convict the accused of a violation of section 8 of Act No. 292 as
amended. With the modification thus indicated, judgment is affirmed, it being
understood that, in accordance with the sentence of the lower court, the
defendant and appellant shall suffer 2 months and 1 day's imprisonment and
pay the costs. So ordered.

Street, Ostrand, Johns and Romualdez, JJ., concur.

110
Republic of the Philippines Villa-Real, E. Aguilar Cruz and Consorcio Borje, as the reporter or author of the
SUPREME COURT first article and the managing editor, the associate editor and the news editor,
Manila respectively, of said newspapers.

EN BANC After its motion to dismiss the complaint had been denied by the Court of First
Instance of Manila, in which the present action was initiated, the defendants
G.R. No. L-16027 May 30, 1962 filed a joint answer admitting the formal allegations of the complaint, denying
the other allegations thereof, alleging special defenses and setting up a
LUMEN POLICARPIO, plaintiff-appellant, counterclaim for P10,000, as attorney's fees and expenses of litigation. In due
vs. course, later on, said court rendered the aforementioned decision, upon the
THE MANILA TIMES PUB. CO., INC., CONSTANTE C. ROLDAN, ground that plaintiff had not proven that defendants had acted maliciously in
MANUEL V. VILLA-REAL, E. AGUILAR CRUZ and CONSORCIO BORJE, defendant- publishing the aforementioned articles, although portions thereof were
appellees. inaccurate or false.

Mario Bengzon for plaintiff-appellant. Plaintiff is a member of the Philippine bar. On August 11 and 13, 1956, and for
Alfredo Gonzales and Rafael M. Delfin for defendants-appellees. sometime prior thereto, she was executive secretary of the local UNESCO
National Commission. As such officer, she had preferred charges against
Herminia D. Reyes, one of her subordinates in said Commission, and caused her
CONCEPCION, J.:
to be separated from the service. Miss Reyes, in turn, preferred counter-
charges which were referred to Col. Crisanto V. Alba, a Special Investigator in
Appeal from a decision of the Court of First Instance of Manila dismissing
the Office of the President. Pending completion of the administrative
plaintiff's complaint and defendants' counterclaim, without special
investigation, which began in June, 1956, Miss Reyes filed with the Office of the
pronouncement as to costs. Originally certified to the Court of Appeals, the
City Fiscal of Manila, on August 8, 1956, a complaint against the plaintiff for
record on appeal was subsequently forwarded to us in view of the amount
alleged malversation of public funds and another complaint for alleged estafa
involved in the complaint (P300,000.00).
thru falsification of public documents, which were scheduled for investigation
by said office on August 22, 1956, at 2:00 p.m. Meanwhile, or on August 11,
Plaintiff Lumen Policarpio seeks to recover P150,000.00, as actual damages, 1956, the following appeared, with a picture of the plaintiff, in the front page
P70,000, as moral damages, P60,000 as correctional and exemplary damages, of The Saturday Mirror:
and P20,000, as attorney's fees, aside from the costs, by reason of the
publication in the Saturday Mirror of August 11, 1956, and in the Daily Mirror
WOMAN OFFICIAL SUED
of August 13, 1956, of two (2) articles or news items which are claimed to be
PCAC RAPS L. POLICARPIO ON FRAUDS
per se defamatory, libelous and false, and to have exposed her to ridicule,
Unesco Official Head Accused on
jeopardized her integrity, good name and business and official transactions,
Supplies, Funds Use by Colleague
and caused her grave embarrassment, untold and extreme moral, mental and
physical anguish and incalculable material, moral, professional and business By Constante C. Roldan
damages. The defendants are The Manila Times Publishing Co., Inc., as
publisher of The Saturday Mirror and The Daily Mirror, which are newspapers
of general circulation in the Philippines, and Constante C. Roldan, Manuel V.

111
Lumen Policarpio, executive secretary of the Unesco national commission here, Testimony indicated that a newspaper woman who was a supposed co-
was charged with malversation and estafa in complaints filed with the city passenger had even written about the plane trip in her newspaper column. The
fiscal's office by the Presidential Complaints and Action Commission today. same voucher also allegedly collected expenses for going to a Unesco
Bayambang (Pangasinan) project, although records reputedly showed that she
The criminal action was initiated as a result of current administrative was absent in that conferences.
investigation against the Unesco official being conducted by Col. Crisanto V.
Alba, Malacañan technical assistant, on charges filed by Herminia D. Reyes, a Witnesses cited on the charge include Aurelio Savalbaro, a Philippine Air Force
Unesco confidential assistant. The Unesco commission functions under the pilot, Lt. Clemente Antonio and others, also of the PAF.
Office of the President.
Miss Policarpio becomes the second high-ranking woman government official
Fiscal Manases G. Reyes, to whom the cases were assigned, immediately to face charges involving financial disbursements in their office. The first was
scheduled preliminary investigation of the charges on August 22 at 2 p.m. Sen. Pacita M. Gonzales who is still under charge mis-spending funds of the
Colonel Alba, in turn, indicated that the administrative phase of the inquiry will Social Welfare Administration and the UNAC while she had charge of these.
continue Monday and then resume on August 21 at Malacañan Park. The
Palace Investigator said there are other charges, but would not specify these. The complainant, Miss Reyes, was earlier ordered relieved from her Unesco
post by Miss Policarpio on charges including conduct "unbecoming a lady", and
Alba said Miss Reyes had testified on circumstances supposedly substantiating as a result had not been paid her salary. She appealed to Malacañan which
the malversation charge. Testimony had allegedly indicated that the accused dismissed her suit and later she sued before Judge Rafael Amparo to compel
had used Unesco stencils for private and personal purposes. Specification payment of her salary. The court also rejected her plea on the ground that she
reputedly said that Miss Policarpio had taken stencils from the Unesco had not exhausted all administrative remedies, the Palace not having made a
storeroom and used these for French lessons not at all connected with Unesco clearcut decision on her case.
work; for the preparation of contracts of sale of pianos in her business
establishment; for preparation of invitations sent to members of the League of The Daily Mirror of August 13, 1956, likewise, carried on its first page — with a
Women Voters of which she is one of the officers. picture of plaintiff and of Miss Reyes, taken during the administrative
investigation being conducted by Col. Alba — another news item, reading:
Cited as witnesses on this charge are Miss Reyes, Francisco Manalo of Barrio
Salabat, Taal, Batangas, Federico Vergara and Pablo Armesto both of the "PALACE OPENS INVESTIGATION OF RAPS AGAINST POLICARPIO
Unesco.1äwphï1.ñët Alba Probes Administrative Phase of
Fraud Charges Against Unesco Woman
Regarding the charge of estafa through falsification of public documents Official; Fiscal Sets Prelim Quiz
allegedly also committed sometime in 1955, Miss Policarpio was accused of Of Criminal Suit on Aug. 22.
having collected expenses for supposed trips. The accusation said the Unesco
official had sought reimbursement of expenses for a trip to Baler, Quezon, on The administrative phase of two-pronged investigation Miss Lumen Policarpio,
Aug. 19, last year, representing expenses of her car when in fact she head of the Unesco national commission here, opened in Malacañan before
supposedly rode in an army plane. Col. Crisanto V. Alba.

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The judicial inquiry of charges filed by Herminia D. Reyes, also the complainant The second witness was Federico Vergara of the Unesco who said that he
in the Malacañan case before the Presidential Complaints and Action received four of the 18 sheets, but he could not identify which of the sheets he
Commission, will be conducted by Fiscal Manases G. Reyes on Aug. 22 at 2 p.m. had received.

Miss Policarpio stands accused by Reyes of having malversed public property The third witness was Francisco Manalo who certified on the charge of
and of having fraudulently sought reimbursement of supposed official oppression in office against Miss Policarpio.
expenses.
The other charge of Miss Reyes corresponded to supposed reimbursements
Colonel Alba, at the start of his investigation at the Malacañan Park, clarified sought by Miss Policarpio for a trip to Quezon Province and to Pangasinan. On
that neither he nor the PCAC had initiated the criminal action before the city the first, Miss Reyes' complaint alleged the Unesco official had asked for refund
fiscal's office. The complaint before the fiscal was started by an information she of expenses for use of her car when, Miss Reyes claimed she had actually made
naming Herminia D. Reyes as complainant and citing other persons as the trip aboard an army plane.
witnesses. Fiscal Reyes set preliminary investigation of these charges for Aug.
22. Miss Reyes also said Miss Policarpio was absent from the Bayambang
conference for which she also sought allegedly refund of expenses.
Miss Reyes, technical assistant of the Unesco, stated at the Palace inquiry that
during 1955 Miss Policarpio allegedly used several sheets of government The complainant had previously been ordered relieved of her Unesco post by
stencils for her private and personal use, such as for French lessons, contracts Miss Policarpio and had later sued at the Palace and before the Court for
of sale of pianos and for invitations of the League of Women Voters of which payment of her salary.
she (Miss Policarpio) is an officer. The Unesco commission here functions under
the Office of the President. The title of the article of August 11, 1956 — "WOMAN OFFICIAL SUED" — was
given prominence with a 6-column (about 11 inches) banner headline of one-
The charge was filed with the PCAC, and the PCAC endorsed it to Colonel Alba inch types. Admittedly, its sub-title — "PCAC RAPS L. POLICARPIO PIO ON
for investigation. FRAUD" — printed in bold one-centimeter types, is not true. Similarly, the
statement in the first paragraph of the article, to the effect that plaintiff "was
Miss Policarpio this morning was not represented by an lawyer. Federico Diaz, charged with malversation and estafa in complaints filed with the city fiscal's
lawyer representing complainant Miss Reyes, petitioned for the suspension of office by the Presidential Complaint and Action Commission" — otherwise
Miss Policarpio, executive secretary of the Unesco. known as PCAC — is untrue, the complaints for said offenses having been filed
by Miss Reyes. Neither is it true that said "criminal action was initiated as a
Alba did not act immediately on the petition. He said he was holding a hearing result of current administrative, investigation", as stated in the second
on the petition on August 15. paragraph of the same article.

During this morning's investigation three witness appeared. The first witness Plaintiff maintains that the effect of these false statements was to give the
was Atty. Antonio Lopez of the PCAC who brought with him 18 sheets of stencil general impression that said investigation by Col. Alba had shown that plaintiff
which were allegedly used by Miss Policarpio for her personal use. These was guilty, or, at least, probably guilty of the crimes aforementioned, and that,
sheets were admitted as temporary exhibits. as a consequence, the PCAC had filed the corresponding complaints with the
city fiscal's office. She alleges, also, that although said article indicates that the

113
charges for malversation and for estafa through falsification against her offended party (Articles 315 to 318, Revised Penal Code). Hence, the amount or
referred, respectively, to the use by her of Unesco stencils allegedly for private value of the property embezzled is material to said offense.
and personal purposes, and to the collection of transportation expenses, it did
not mention the fact that the number of stencils involved in the charge was Again, it is obvious that the filing of criminal complaints with the city fiscal's
only 18 or 20, that the sum allegedly misappropriated by her was only P54, and office by another agency of the Government, like the PCAC, particularly after an
that the falsification imputed to her was said to have been committed by investigation conducted by the same, imparts the ideal that the probability of
claiming that certain expenses for which she had sought and secured guilty on the part of the accused is greater than when the complaints are filed
reimbursement were incurred in trips during the period from July 1, 1955 to by a private individual, specially when the latter is a former subordinate of the
September 30, 1955, although the trips actually were made, according to Miss alleged offender, who was responsible for the dismissal of the complainant
Reyes, from July 8 to August 31, 1955. By omitting these details, plaintiff avers, from her employment. It is only too apparent that the article published on
the article of August 11, 1956, had the effect of conveying the idea that the August 11, 1956, presented the plaintiff in a more unfavorable light than she
offenses imputed to her were more serious than they really were. Plaintiff, actually was.
likewise, claims that there are other inaccuracies in the news item of August
13, 1956, but, we do not deem it necessary to dwell upon the same for the It goes without saying that newspapers must enjoy a certain degree of
determination of this case. discretion in determining the manner in which a given event should be
presented to the public, and the importance to be attached thereto, as a news
Upon the other hand, defendants contend that, although the complaints in the item, and that its presentation in a sensational manner is not per se illegal.
city fiscal's office were filed, not by the PCAC, but by Miss Reyes, this Newspaper may publish news items relative to judicial, legislative or other
inaccuracy is insignificant and immaterial to the case, for the fact is that said official proceedings, which are not of confidential nature, because the public is
complaints were filed with said office. As regards the number of sheets of entitled to know the truth with respect to such proceedings, which, being
stencil allegedly misused and the amount said to have been misappropriated by official and non-confidential, are open to public consumption. But, to enjoy
plaintiff, as well as the nature of the falsification imputed to her, defendants immunity, a publication containing derogatory information must be not only
argue that these "details" do not affect the truthfulness of the article as a true, but, also, fair, and it must be made in good faith and without any
whole, and that, in any event, the insignificant value of said sheets of stencil comments or remarks.
and the small amount allegedly misappropriated, would have had, if set forth in
said article, a greater derogatory effect upon the plaintiff, aside from the Defendants maintain that their alleged malice in publishing the news items in
circumstance that defendants had no means of knowing such "details". It question had not been established by the plaintiff. However, Article 354 of the
appears, however, that prior to August 11, 1956, Col. Alba had already taken Revised Penal Code, provides:
the testimony of Antonio P. Lopez, Francisco Manalo and Federico Vergara, as
witnesses for Miss Reyes. Hence, defendants could have ascertained the
Every defamatory imputation is presumed to be malicious, even if it be
"details" aforementioned, had they wanted to. Indeed, some of the defendants
true, if no good intention and justifiable motive for making it is shown,
and/or their representatives had made appropriate inquiries from Col. Alba
except in the following cases:
before said date, and some "details" — though not those adverted to above —
appear in the article then published, whereas the number of sheets of stencil
1. A private communication made by any person to another in the
allegedly misused was mentioned in the news item of August 13, 1956.
performance of any legal, moral or social duty; and
Moreover, the penalty prescribed by law for the crime either of estafa or of
embezzlement depends partly upon the amount of the damage caused to the

114
2. A fair and true report, made in good faith, without any comments or to the plaintiff the aforementioned sums of P3,000, as moral damages, and
remarks, of any judicial, legislative or other official proceedings which P2,000, by way of attorney's fees, in addition to the costs. It is so ordered.
are not of confidential nature, or of any statement, report or speech
delivered in said proceedings, or of any other act performed by public
officers in the exercise of other functions.

In the case at bar, aside from containing information derogatory to the


plaintiff, the article published on August 11, 1956, presented her in a worse
predicament than that in which she, in fact, was. In other words, said article
was not a fair and true report of the proceedings there in alluded to. What is
more, its sub-title — "PCAC RAPS L. POLICARPIO ON FRAUD" — is a comment
or remark, besides being false. Accordingly, the defamatory imputations
contained in said article are "presumed to be malicious".

Then too, how could defendants claim to have acted with good intentions or
justifiable motive in falsely stating that the complaints had been filed with the
Office of the City Fiscal by the PCAC as a result of the administrative
investigation of Col. Alba? Either they knew the truth about it or they did not
know it. If they did, then the publication would be actually malicious. If they did
not or if they acted under a misapprehension of the facts, they were guilty of
negligence in making said statement, for the consequences of which they are
liable solidarily (Articles 2176, 2194, 2208 and 2219 [I], Civil Code of the
Philippines; 17 R.C.L. sec. 95, p. 349).

We note that the news item published on August 13, 1956, rectified a major
inaccuracy contained in the first article, by stating that neither Col. Alba nor the
PCAC had filed the aforementioned complaints with the city fiscal's office. It,
likewise, indicated the number of sheets of stencil involved in said complaints.
But, this rectification or clarification does not wipe out the responsibility arising
from the publication of the first article, although it may and should mitigate it
(Jimenez vs. Reyes, 27 Phil. 52). For this reason, we feel that the interest of
justice and of all parties concerned would be served if the defendants
indemnify the plaintiff in the sums of P3,000, by way of moral damages, and
P2,000, as attorney's fees.

WHEREFORE, the decision appealed from is hereby reversed and another one
shall be entered sentencing the defendants herein to pay jointly and severally

115
Republic of the Philippines Until republicanism caught fire in early America, the view from the top on libel
SUPREME COURT was no less dismal. Even the venerable Justice Holmes appeared to waffle as he
Manila swayed from the concept of criminal libel liability under the clear and present
danger rule, to the other end of the spectrum in defense of the constitutionally
SECOND DIVISION protected status of unpopular opinion in free society.

Viewed in modern times and the current revolution in information and


communication technology, libel principles formulated at one time or another
G.R. No. 126466 January 14, 1999 have waxed and waned through the years in the constant ebb and flow of
judicial review. At the very least, these principles have lost much of their flavor,
drowned and swamped as they have been by the ceaseless cacophony and din
ARTURO BORJAL a.k.a. ART BORJAL and MAXIMO SOLIVEN, petitioners,
of thought and discourse emanating from just about every source and
vs.
direction, aided no less by an increasingly powerful and irrepressible mass
COURT OF APPEALS and FRANCISCO WENCESLAO, respondents.
media. Public discourse, laments Knight, has been devalued by its utter
commonality; and we agree, for its logical effect is to benumb thought and
sensibility on what may be considered as criminal illegitimate encroachments
on the right of persons to enjoy a good, honorable and reputable name. This
BELLOSILLO, J.: may explain the imperceptible demise of criminal prosecutions for libel and the
trend to rely instead on indemnity suits to repair any damage on one's
PERPETUALLY HAGRIDDEN as the public is about losing one of the most basic reputation.
yet oft hotly contested freedoms of man, the issue of the right of free
expression be stirs and presents itself time and again, in cyclic occurrence, to In this petition for review, we are asked to reverse the Court of Appeals in
inveigle, nay, challenge the courts to re-survey its ever shifting terrain, explore "Francisco Wenceslao v. Arturo Borjal and Maximo Soliven," CA-G.R. No. 40496,
and furrow its heretofore uncharted moors and valleys and finally redefine the holding on 25 March 1996 that petitioners Arturo Borjal and Maximo Soliven
metes and bounds of its controversial domain. This, prominently, is one such are solidarily liable for damages for writing and publishing certain articles
case. claimed to be derogatory and offensive to private respondent Francisco
Wenceslao.
Perhaps, never in jurisprudential history has any freedom of man undergone
radical doctrinal metamorphoses than his right to freely and openly express his Petitioners Arturo Borjal and Maximo Soliven are among the incorporators of
views. Blackstone's pontifical comment that "where blasphemous, immoral, Philippines Today, Inc. (PTI), now PhilSTAR Daily, Inc., owner of The Philippine
treasonable, schismatical, seditious, or scandalous libels are punished by Star, a daily newspaper. At the time the complaint was filed, petitioner Borjal
English law ... the liberty of the press, properly understood, is by no means was its President while Soliven was (and still is) Publisher and Chairman of its
infringed or violated," found kindred expression in the landmark opinion of Editorial Board. Among the regular writers of The Philippine Star is Borjal who
England's Star Chamber in the Libelis Famosis case in 1603. 1 That case runs the column Jaywalker.
established two major propositions in the prosecution of defamatory remarks:
first, that libel against a public person is a greater offense than one directed
Private respondent Francisco Wenceslao, on the other hand, is a civil engineer,
against an ordinary man, and second, that it is immaterial that the libel be true.
businessman, business consultant and journalist by profession. In 1988 he

116
served as a technical adviser of Congressman Fabian Sison, then Chairman of has been using to implement one of his pet "seminars." Reyes
the House of Representatives Sub-Committee on Industrial Policy. said: "I would like to reiterate my request that you delete my
name." Note that Ray Reyes is an honest man who would
During the congressional hearings on the transport crisis sometime in confront anybody eyeball to eyeball without blinking.
September 1988 undertaken by the House Sub-Committee on Industrial Policy,
those who attended agreed to organize the First National Conference on Land 9 June 1989
Transportation (FNCLT) to be participated in by the private sector in the
transport industry and government agencies concerned in order to find ways Another questionable portion of the so-called conference is
and means to solve the transportation crisis. More importantly, the objective of its unauthorized use of the names of President Aquino and
the FNCLT was to draft an omnibus bill that would embody a long-term land Secretary Ray Reyes. The conference program being
transportation policy for presentation to Congress. The conference which, circulated claims that President Aquino and Reyes will be
according to private respondent, was estimated to cost around P1,815,000.00 main speakers in the conference. Yet, the word is that Cory
would be funded through solicitations from various sponsors such as and Reyes have not accepted the invitation to appear in this
government agencies, private organizations, transport firms, and individual confab. Ray Reyes even says that the conference should be
delegates or participants. 2 unmasked as a moneymaking gimmick.

On 28 February 1989, at the organizational meeting of the FNCLT, private 19 June 1989
respondent Francisco Wenceslao was elected Executive Director. As such, he
wrote numerous solicitation letters to the business community for the support . . . some 3,000 fund solicitation letters were sent by the
of the conference. organizer to every Tom, Dick and Harry and to almost all
government agencies. And the letterheads carried the names
Between May and July 1989 a series of articles written by petitioner Borjal was of Reyes and Periquet. Agrarian Reform Secretary on leave
published on different dates in his column Jaywalker. The articles dealt with Philip Juico received one, but he decided to find out front
the alleged anomalous activities of an "organizer of a conference" without Reyes himself what the project was all about. Ray Reyes, in
naming or identifying private respondent. Neither did it refer to the FNCLT as effect, advised Juico to put the fund solicitation letter in the
the conference therein mentioned. Quoted hereunder are excerpts from the waste basket. Now, if the 3,000 persons and agencies
articles of petitioner together with the dates they were published. 3 approached by the organizer shelled out 1,000 each, that's
easily P3 million to a project that seems so unsophisticated.
31 May 1989 But note that one garment company gave P100,000, after
which the Garments Regulatory Board headed by Trade and
Another self-proclaimed "hero" of the EDSA Revolution goes Industry Undersecretary Gloria Macapagal-Arroyo was
around organizing "seminars and conferences" for a huge fee. approached by the organizer to expedite the garment license
This is a simple ploy coated in jazzy letterheads and slick application of the P100,000 donor.
prose. The "hero" has the gall to solicit fees from anybody
with bucks to spare. Recently, in his usual straightforward 21 June 1989
style, Transportation Secretary Rainerio "Ray" Reyes, asked
that his name, be stricken off from the letterheads the "hero"

117
A "conference organizer" associated with shady deals seems xxx xxx xxx
to have a lot of trash tucked inside his closet. The Jaywalker
continues to receive information about the man's dubious The "organizer's" principal gamely went along, thinking that
deals. His notoriety, in according to reliable sources, has his "consultant" had nothing but the good of these sectors in
reached the Premier Guest House where his name is spoken mind. It was only later that he realized that the "consultant"
like dung. was acting with a burst of energy "in aid of extortion." The
"consultant" was fired.
xxx xxx xxx
xxx xxx xxx
The first information says that the "organizer" tried to mulct
half a million pesos from a garment producer and exporter There seems to be no end to what a man could do to pursue
who was being investigated for violation of the rules of the his dubious ways. He has tried to operate under a guise of a
Garments, Textile, Embroidery and Apparel Board. The well-meaning, reformist. He has intellectual pretensions —
"organizer" told the garment exporter that the case could be and sometimes he succeeds in getting his thoughts in the
fixed for a sum of P500,000.00. The organizer got the shock of inside pages of some newspapers, with the aid of some naive
his life when the exporter told him: "If I have that amount. I newspaper people. He has been turning out a lot of funny-
will hire the best lawyers, not you." The organizer left in a looking advice on investments, export growth, and the like.
huff, his thick face very pale.
xxx xxx xxx
xxx xxx xxx
A cabinet secretary has one big wish. He is hoping for a broad
Friends in government and the private sector have promised power to ban crooks and influence-peddlers from entering
the Jaywalker more "dope" on the "organizer." It seems that the premises of his department. But the Cabinet man might
he was not only indiscreet; he even failed to cover his tracks. not get his wish. There is one "organizer" who, even if
You will be hearing more of the "organizer's" exploits from physically banned, call still concoct ways of doing his thing.
this corner soon. Without a tinge of remorse, the "organizer" could fill up his
letterheads with, names of Cabinet members, congressmen,
22 June 1989 and reputable people from the private sector to shore up his
shady reputation and cover up his notoriety.
The scheming "organizer" we have been writing about seems
to have been spreading his wings too far. A congressional 3 July 1989
source has informed the Jaywalker that the schemer once
worked for a congressman from the North as some sort of a A supposed conference on transportation was a big failure.
consultant on economic affairs. The first thing the "organizer" The attendance was very poor and the few who participated
did was to initiate hearings and round-the-table discussions in, the affair were mostly leaders of jeepney drivers' groups.
with people from the business, export and — his favorite — None of the government officials involved in regulating public
the garments sector. transportation was there. The big names in the industry also

118
did not participate. With such a poor attendance, one Apparently not satisfied with his complaint with the NPC, private respondent
wonders why the conference organizers went ahead with the filed a criminal case for libel against petitioners Borjal and Soliven, among
affair and tried so hard to convince 3,000 companies and others. However, in a Resolution dated 7 August 1990, the Assistant Prosecutor
individuals to contribute to the affair. handling the case dismissed the complaint for insufficiency of evidence. The
dismissal was sustained by the Department of Justice and later by the Office of
xxx xxx xxx the President.

The conference was doomed from the start. It was bound to On 31 October 1990 private respondent instituted against petitioners a civil
fail. The personalities who count in the field of transpiration action for damages based on libel subject of the instant case. 8 In their answer,
refused to attend the affair or withdrew their support after petitioners interposed compulsory counterclaims for actual, moral and
finding out the background of the organizer of the exemplary damages, plus attorney's fees and costs. After due consideration,
conference. How could a conference on transportation the trial court decided in favor of private respondent Wenceslao and ordered
succeed without the participation of the big names in the petitioners Borjal and Soliven to indemnify private respondent P1,000,000.00
industry and government policy-makers? for actual and compensatory damages, in addition to P200,000.00 for moral
damages, P100,000.00 for exemplary damages, P200,000.00 for attorney's
Private respondent reacted to the articles. He sent a letter to The Philippine fees, and to pay the costs of suit.
Star insisting that he was the "organizer" alluded to in petitioner Borjal's
columns. 4 In a subsequent letter to The Philippine Star, private respondent The Court of Appeals affirmed the decision of the court a quo but reduced the
refuted the matters contained in petitioner Borjal's columns and openly amount of the monetary award to P110,000.00 actual damages, P200,000.00
challenged him in this manner — moral damages and P75,000.00 attorney's fees plus costs. In a 20-page Decision
promulgated 25 March 1996, the appellate court ruled inter alia that private
To test if Borjal has the guts to back up his holier than thou respondent was sufficiently identifiable, although not named, in the questioned
attitude, I am prepared to relinquish this position in case it is articles; that private respondent was in fact defamed by petitioner Borjal by
found that I have misappropriated even one peso of FNCLT describing him variously as a "self-proclaimed hero," "a conference organizer
money. On the other hand, if I can prove that Borjal has used associated with shady deals who has a lot of trash tucked inside his closet,"
his column as a "hammer" to get clients for his PR Firm, AA "thick face," and "a person with dubious ways;" that petitioner's claim of
Borjal Associates, he should resign from the STAR and never privilege communication was unavailing since the privileged character of the
again write a column. Is it a deal? 5 articles was lost by their publication in a newspaper of general circulation; that
petitioner could have performed his officer as a newspaperman without
necessarily transgressing the rights of Wenceslao by calling the attention of the
Thereafter, private respondent filed a complaint with the National Press Club
government offices concerned to examine the authority by which Wenceslao
(NPC) against petitioner Borjal for unethical conduct. He accused petitioner
acted, warning the public against contributing to a conference that, according
Borjal of using his column as a form of leverage to obtain contracts for his
to his perception, lacked the univocal indorsement of the responsible
public relations firm, AA Borjal Associates. 6 In turn, petitioner Borjal published
government officials, or simply informing the public of the letters Wenceslao
a rejoinder to the challenge of private respondent not only to protect his name
wrote and the favors he requested or demanded; and, that when he imputed
and honor but also to refute the claim that he was using his column for
dishonesty, falsehood and misrepresentation, shamelessness and intellectual
character assassination. 7
pretentions to Wenceslao, petitioner Borjal crossed the thin but clear line that
separated fair comment from actionable defamation.

119
Private respondent manifested his desire to appeal that portion of the The petition is impressed with merit. In order to maintain a libel suit, it is
appellate court's decision which reduced the amount of damages awarded him essential that the victim be identifiable although it is not necessary that he be
by filing with this Court a Petition for Extension of Time to File Petition and a named. It is also not sufficient that the offended party recognized himself as
Motion for Suspension of Time to File Petition. 9 However, in a Resolution dated the person attacked or defamed, but it must be shown that at least a third
27 May 1996, the Second Division denied both motions: the first, for being person could identify him as the object of the libelous
premature, and the second, for being a wrong remedy. publication. 10 Regrettably, these requisites have not been complied with in the
case at bar.
On 20 November 1996 when the First Division consolidated and transferred the
present case to the Second Division, there was no longer any case thereat with In ruling for private respondent, the Court of Appeals found that Borjal's
which to consolidate this case since G.R. No. 124396 had already been disposed column writings sufficiently identified Wenceslao as the "conference
of by the Second Division almost six (6) months earlier. organizer." It cited the First National Conference on Land Transportation, the
letterheads used listing different telephone numbers, the donation of
On their part, petitioners filed a motion for reconsideration but the Court of P100,000.00 from Juliano Lim and the reference to the '"organizer of the
Appeals denied the motion in its Resolution of 12 September 1996. Hence the conference" — the very same appellation employed in all the column items —
instant petition for review. The petitioners contend that the Court of Appeals as having sufficiently established the identity of private respondent Wenceslao
erred: (a) in ruling that private respondent Wenceslao was sufficiently for those who knew about the FNCLT who were present at its inception, and
identified by petitioner Borjal in the questioned articles; (b) in refusing to who had pledged their assistance to it.
accord serious consideration to the findings of the Department of Justice and
the Office of the President that private respondent Wenceslao was not We hold otherwise. These conclusions are at variance with the evidence at
sufficiently identified in the questioned articles, this notwithstanding that the hand. The questioned articles written by Borjal do not identify private
degree of proof required in a preliminary investigation is merely prima respondent Wenceslao as the organizer of the conference. The first of
facie evidence which is significantly less than the preponderance of evidence the Jaywalker articles which appeared in the 31 May 1989 issue of The
required in civil cases; (c) in ruling that the subject articles do not constitute Philippine Star yielded nothing to indicate that private respondent was the
qualifiedly privileged communication; (d) in refusing to apply the "public official person referred to therein. Surely, as observed by petitioners, there were
doctrine" laid down in New York Times v. Sullivan; (e) in ruling that the millions of "heroes" of the EDSA Revolution and anyone of them could be "self-
questioned articles lost their privileged character because of their publication proclaimed" or an "organizer of seminars and conferences." As a matter of fact,
in a newspaper of general circulation; (f) in ruling that private respondent has a in his 9 June 1989 column petitioner Borjal wrote about the "so-called First
valid cause of action for libel against petitioners although he failed to prove National Conference on Land Transportation whose principal organizers are not
actual malice on their part, and that the prosecutors of the City of Manila, the specified" (emphasis supplied). 11 Neither did the FNCLT letterheads 12 disclose
Department of Justice, and eventually, the Office of the President, had already the identity of the conference organizer since these contained only an
resolved that there was no sufficient evidence to prove the existence of libel; enumeration of names where private respondent Francisco Wenceslao was
and, (g) assuming arguendo that Borjal should be held liable, in adjudging described as Executive Director and Spokesman and not as a conference
petitioner Soliven solidarily liable with him. Thus, petitioners pray for the organizer. 13 The printout 14 and tentative program 15 of the conference were
reversal of the appellate court's ruling, the dismissal of the complaint against devoid of any indication of Wenceslao as organizer. The printout which
them for lack of merit, and the award of damages on their counterclaim. contained an article entitled "Who Organized the NCLT?" did not even mention
private respondent's name, while the tentative program only denominated
private respondent as "Vice Chairman and Executive Director," and not as
organizer.

120
No less than private respondent himself admitted that the FNCLT had several The trial court ruled that petitioner Borjal cannot hide behind the proposition
organizers and that he was only a part of the organization, thus — that his articles are privileged in character under the provisions of Art. 354 of
The Revised Penal Code which state —
I would like to clarify for the record that I was only a part of
the organization. I was invited then because I was the head of Art. 354. Requirement for publicity. — Every defamatory
the technical panel of the House of Representatives Sub- imputation is presumed to be malicious, even if it be true, if
Committee on Industrial Policy that took care of no good intention and justifiable motive for making it is
congressional hearings. 16 shown, except in the following cases:

Significantly, private respondent himself entertained doubt that he was the 1) A private communication made by any person to another
person spoken of in Borjal's columns. The former even called up columnist in the performance of any legal, moral or social duty; and,
Borjal to inquire if he (Wenceslao) was the one referred to in the subject
articles. 17 His letter to the editor published in the 4 June 1989 issue of The 2) A fair and true report, made in good faith, without any
Philippine Star even showed private respondent Wenceslao's uncertainty — comments or remarks, of any judicial or other official
proceedings which are not of confidential nature, or of any
Although he used a subterfuge, I was almost certain that Art statement, report or speech delivered in said proceedings, or
Borjal referred to the First National Conference on Land of any other act performed by public officers in the exercise
Transportation (June 29-30) and me in the second paragraph of their functions.
of his May 31 column . . . 18
Respondent court explained that the writings in question did not fall under any
Identification is grossly inadequate when even the alleged offended party is of the exceptions described in the above-quoted article since these were
himself unsure that he was the object of the verbal attack. It is well to note that neither "private communications" nor "fair and true report . . . without any
the revelation of the identity of the person alluded to came not from petitioner comments or remarks." But this is incorrect.
Borjal but from private respondent himself; when he supplied the information
through his 4 June 1989 letter to the editor. Had private respondent not A privileged communication may be either absolutely privileged or qualifiedly
revealed that he was the "organizer" of the FNCLT referred to in the Borjal privileged. Absolutely privileged communications are those which are not
articles, the public would have remained in blissful ignorance of his identity. It actionable even if the author has acted in bad faith. An example is found in Sec.
is therefore clear that on the element of identifiability alone the case falls. 11, Art.VI, of the 1987 Constitution which exempts a member of Congress from
liability for any speech or debate in the Congress or in any Committee thereof.
The above disquisitions notwithstanding, and on the assumption arguendo that Upon the other hand, qualifiedly privileged communications containing
private respondent has been sufficiently identified as the subject of Borjal's defamatory imputations are not actionable unless found to have been made
disputed comments, we now proceed to resolve the other issues and pass upon without good intention justifiable motive. To this genre belong "private
the pertinent findings of the courts a quo. communications" and "fair and true report without any comments or remarks."

The third, fourth, fifth and sixth assigned errors all revolve around the primary Indisputably, petitioner Borjal's questioned writings are not within the
question of whether the disputed articles constitute privileged communications exceptions of Art. 354 of The Revised Penal Code for, as correctly observed by
as to exempt the author from liability. the appellate court, they are neither private communications nor fair and true

121
report without any comments or remarks. However this does not necessarily the healthy effloresence of public debate and opinion as shining linchpins of
mean that they are not privileged. To be sure, the enumeration under Art. 354 truly democratic societies.
is not an exclusive list of qualifiedly privileged communications since fair
commentaries on matters of public interest are likewise privileged. The rule on To reiterate, fair commentaries on matters of public interest are privileged and
privileged communications had its genesis not in the nation's penal code but in constitute a valid defense in an action for libel or slander. The doctrine of fair
the Bill of Rights of the Constitution guaranteeing freedom of speech and of the comment means that while in general every discreditable imputation publicly
press. 19 As early as 1918, in United States v. Cañete, 20 this Court ruled that made is deemed false, because every man is presumed innocent until his guilt
publications which are privileged for reasons of public policy are protected by is judicially proved, and every false imputation is deemed malicious,
the constitutional guaranty of freedom of speech. This constitutional right nevertheless, when the discreditable imputation is directed against a public
cannot be abolished by the mere failure of the legislature to give it express person in his public capacity, it is not necessarily actionable. In order that such
recognition in the statute punishing libels. discreditable imputation to a public official may be actionable, it must either be
a false allegation of fact or a comment based on a false supposition. If the
The concept of privileged communications is implicit in the freedom of the comment is an expression of opinion, based on established facts, then it is
press. As held in Elizalde v. Gutierrez 21and reiterated in Santos v. Court of immaterial that the opinion happens to be mistaken, as long as it might
Appeals 22 — reasonably be inferred from the facts. 21

To be more specific, no culpability could be imputed to There is no denying that the questioned articles dealt with matters of public
petitioners for the alleged offending publication without interest. In his testimony, private respondent spelled out the objectives of the
doing violence to the concept of privileged communications conference thus —
implicit in the freedom of the press. As was so well put by
Justice Malcolm in Bustos: "Public policy, the welfare of . . . The principal conference objective is to come up with a
society, and the orderly administration of government have draft of an Omnibus Bill that will embody a long term land
demanded protection of public opinion. The inevitable and transportation policy for presentation to Congress in its next
incontestable result has been the development and adoption regular session in July. Since last January, the National
of the doctrine of privilege." Conference on Land Transportation (NCLT), the conference
secretariat, has been enlisting support from all sectors to
The doctrine formulated in these two (2) cases resonates the rule that ensure the success of the project. 25
privileged communications must, sui generis, be protective of public opinion.
This closely adheres to the democratic theory of free speech as essential to Private respondent likewise testified that the FNCLT was raising funds through
collective self-determination and eschews the strictly libertarian view that it is solicitation from the public -
protective solely of self-expression which, in the words of Yale Sterling
Professor Owen Fiss, 23 makes its appeal to the individualistic ethos that so Q: Now, in this first letter, you have
dominates our popular and political culture. It is therefore clear that the attached a budget and it says here that in
restrictive interpretation vested by the Court of Appeals on the penal provision this seminar of the First National
exempting from liability only private communications and fair and true report Conference on Land Transportation, you
without comments or remarks defeats, rather than promotes, the objective of will need around One million eight hundred
the rule on privileged communications, sadly contriving as it does, to suppress fifteen thousand pesos, is that right?

122
A: That was the budget estimate, sir. The U. S. Supreme Court speaking through Mr. Justice William J. Brennan Jr.
ruled against Sullivan holding that honest criticisms on the conduct of public
Q: How do you intend as executive officer, officials and public figures are insulated from libel judgments. The guarantees
to raise this fund of your seminar? of freedom of speech and press prohibit a public official or public figure from
recovering damages for a defamatory falsehood relating to his official conduct
A: Well, from sponsors such as government unless he proves that the statement was made with actual malice, i.e., with
agencies and private sectors or knowledge that it was false or with reckless disregard of whether it was false or
organizations as well as individual transport not.
firms and from individual
delegates/participants. 26 The raison d' être for the New York Times doctrine was that to require critics of
official conduct to guarantee the truth of all their factual assertions on pain of
The declared objective of the conference, the composition of its members and libel judgments would lead to self-censorship, since would be critics would be
participants, and the manner by which it was intended to be funded no doubt deterred from, voicing out their criticisms even if such were believed to be
lend to its activities as being genuinely imbued with public interest. An true, or were in fact true, because of doubt whether it could be proved or
organization such as the FNCLT aiming to reinvent and reshape the because of fear of the expense of having to prove it. 28
transportation laws of the country and seeking to source its funds for the
project from the public at large cannot dissociate itself from the public In the present case, we deem private respondent a public figure within the
character of its mission. As such, it cannot but invite close scrutiny by the purview of the New York Times ruling. At any rate, we have also defined "public
media obliged to inform the public of the legitimacy of the purpose of the figure" in Ayers Production Pty., Ltd. v. Capulong 29 as —
activity and of the qualifications and integrity of the personalities behind it.
. . . . a person who, by his accomplishments, fame, mode of
27
This in effect is the strong message in New York Times v. Sullivan which the living, or by adopting a profession or calling which gives the
appellate court failed to consider or, for that matter, to heed. It insisted that public a legitimate interest in his doings, his affairs and his
private respondent was not, properly speaking, a "public official" nor a "public character, has become a "public personage." He is, in other
figure," which is why the defamatory imputations against him had nothing to words, a celebrity. Obviously to be included in this category
do with his task of organizing the FNCLT. are those who have achieved some degree of reputation by
appearing before the public, as in the case of an actor, a
New York Times v. Sullivan was decided by the U. S. Supreme Court in the professional baseball player, a pugilist, or any other
1960s at the height of the bloody rioting in the American South over racial entertainer. The list is, however, broader than this. It includes
segregation. The then City Commissioner L. B. Sullivan of Montgomery, public officers, famous inventors and explorers, war heroes
Alabama, sued New York Times for publishing a paid political advertisement and even ordinary soldiers, infant prodigy, and no less a
espousing racial equality and describing police atrocities committed against personage than the Great Exalted Ruler of the lodge. It
students inside a college campus. As commissioner having charge over police includes, in short, anyone who has arrived at a position
actions Sullivan felt that he was sufficiently identified in the ad as the where the public attention is focused upon him as a person.
perpetrator of the outrage; consequently, he sued New York Times on the basis
of what he believed were libelous utterances against him. The FNCLT was air undertaking infused with public interest. It was promoted as
a joint project of the government and the private sector, and organized by top

123
government officials and prominent businessmen. For this reason, it attracted caustic and sometimes unpleasantly sharp attacks on the government and
media mileage and drew public attention not only to the conference itself but public officials. 31
to the personalities behind as well. As its Executive Director and spokesman,
private respondent consequently assumed the status of a public figure. The Court of Appeals concluded that since malice is always presumed in the
publication of defamatory matters in the absence of proof to the contrary, the
But even assuming ex-gratia argumenti that private respondent, despite the question of privilege is immaterial.
position he occupied in the FNCLT, would not qualify as a public figure, it does
not necessarily follow that he could not validly be the subject of a public We reject this postulate. While, generally, malice can be presumed from
comment even if he was not a public official or at least a public figure, for he defamatory words, the privileged character of a communication destroys the
could be, as long as he was involved in a public issue. If a matter is a subject of presumption of malice. 32 The onus of proving actual malice then lies on
public or general interest, it cannot suddenly became less so merely because a plaintiff, private respondent Wenceslao herein. He must bring home to the
private individual is involved or because in some sense the individual did not defendant, petitioner Borjal herein, the existence of malice as the true motive
voluntarily choose to become involved. The public's primary interest is in the of his conduct. 33
event; the public focus is on the conduct of the participant and the content,
effect and significance of the conduct, not the participant's prior anonymity or Malice connotes ill will or spite and speaks not in response to duty but merely
notoriety. 30 to injure the reputation of the person defamed, and implies an intention to do
ulterior and unjustifiable harm. 34 Malice is bad faith or bad motive.35 It is the
There is no denying that the questioned articles dealt with matters of public essence of the crime of libel. 36
interest. A reading of the imputations of petitioner Borjal against respondent
Wenceslao shows that all these necessarily bore upon the latter's official In the milieu obtaining, can it be reasonably inferred that in writing and
conduct and his moral and mental fitness as Executive Director of the FNCLT. publishing the articles in question petitioner Borjal acted with malice?
The nature and functions of his position which included solicitation of funds,
dissemination of information about the FNCLT in order to generate interest in
Primarily, private respondent failed to substantiate by preponderant evidence
the conference, and the management and coordination of the various activities
that petitioner was animated by a desire to inflict unjustifiable harm on his
of the conference demanded from him utmost honesty, integrity and
reputation, or that the articles were written and published without good
competence. These are matters about which the public has the right to be
motives or justifiable ends. On the other hand, we find petitioner Borjal to have
informed, taking into account the very public character of the conference itself.
acted in good faith. Moved by a sense of civic duty and prodded by his
responsibility as a newspaperman, he proceeded to expose and denounce what
Concededly, petitioner Borjal may have gone overboard in the language he perceived to be a public deception. Surely, we cannot begrudge him for
employed describing the "organizer of the conference." One is tempted to that. Every citizen has the right to enjoy a good name and reputation, but we
wonder if it was by some mischievous gambit that he would also dare test the do not consider that petitioner Borjal has violated that right in this case nor
limits of the "wild blue yonder" of free speech in this jurisdiction. But no matter abused his press freedom.
how intemperate or deprecatory the utterances appear to be, the privilege is
not to be defeated nor rendered inutile for, as succinctly expressed by Mr.
Furthermore, to be considered malicious, the libelous statements must be
Justice Brennan in New York Times v. Sullivan, "[D]ebate on public issues should
shown to have been written or published with the knowledge that they are
be uninhibited, robust and wide open, and that it may well include vehement,
false or in reckless disregard of whether they are false or not. 37"Reckless
disregard of what is false or not" means that the defendant entertains serious

124
doubt as to the truth of the publication, 38 or that he possesses a high degree of leeway and tolerance can they courageously and effectively function as critical
awareness of their probable falsity. 39 agencies in our democracy. 46 In Bulletin Publishing Corp. v. Noel 47we held -

The articles subject of the instant case can hardly be said to have been written A newspaper especially one national in reach and coverage,
with knowledge that these are false or in reckless disregard of what is false or should be free to report on events and developments in
not. This is not to say however that the very serious allegations of petitioner which the public has a legitimate interest with minimum fear
Borjal assumed by private respondent to be directed against him are true. But of being hauled to court by one group or another on criminal
we nevertheless find these at least to have been based on reasonable grounds or civil charges for libel, so long as the newspaper respects
formed after the columnist conducted several personal interviews and after and keeps within the standards of morality and civility
considering the varied documentary evidence provided him by his sources. prevailing within the general community.
Thus, the following are supported by documentary evidence: (a) that private
respondent requested Gloria Macapagal-Arroyo, then head of the Garments To avoid the self-censorship that would necessarily accompany strict liability
and Textile Export Board (GTEB), to expedite the processing and release of the for erroneous statements, rules governing liability for injury to reputation are
import approval and certificate of availability of a garment firm in exchange for required to allow an adequate margin of error by protecting some inaccuracies.
the monetary contribution of Juliano Lim, which necessitated a reply from the It is for the same reason that the New York Times doctrine requires that liability
office of Gloria Macapagal-Arroyo explaining the procedure of the GTEB in for defamation of a public official or public figure may not be imposed in the
processing applications and clarifying that all applicants were treated absence of proof of "actual malice" on the part of the person making the
equally; 40 (b) that Antonio Periquet was designated Chairman of the Executive libelous statement.
Committee of the FNCLT notwithstanding that he had previously declined the
offer; 41 and, (c) that despite the fact that then President Aquino and her At any rate, it may be salutary for private respondent to ponder upon the
Secretary of Transportation Rainerio Reyes declined the invitation to be guest advice of Mr. Justice Malcolm expressed in U.S. v. Bustos, 48 that "the interest
speakers in the conference, their names were still included in the, printout of of society and the maintenance of good government demand a full discussion
the FNCLT. 42 Added to these are the admissions of private respondent that: (a) of public affairs. Complete liberty to comment on the conduct of public men is
he assisted Juliano Lim in his application for a quota allocation with the GTEB in a scalpel in the case of free speech. The sharp incision of its probe relieves the
exchange for monetary contributions to the FNCLT; 43 (b) he included the name abscesses of officialdom. Men in public life may suffer under a hostile and
of then Secretary of Transportation Rainerio Reyes in the promotional unjust accusation; the wound may be assuaged by the balm of a clear
materials of the conference notwithstanding the latter's refusal to lend his conscience. A public official must not be too thin-skinned with reference to
name to and participate in the FNCLT; 44 and, (c) he used different letterheads comments upon his official acts."
and telephone numbers. 45
The foregoing disposition renders the second and seventh assigned errors
Even assuming that the contents of the articles are false, mere error, moot and academic, hence, we find no necessity to pass upon them.
inaccuracy or even falsity alone does not prove actual malice. Errors or
misstatements are inevitable in any scheme of truly free expression and
We must however take this opportunity to likewise remind media practitioners
debate. Consistent with good faith and reasonable care, the press should not
of the high ethical standards attached to and demanded by their noble
be held to account, to a point of suppression, for honest mistakes or
profession. The danger of an unbridled irrational exercise of the right of free
imperfections in the choice of language. There must be some room for
speech and press, that is, in utter contempt of the rights of others and in willful
misstatement of fact as well as for misjudgment. Only by giving them much
disregard of the cumbrous responsibilities inherent in it, is the eventual self-

125
destruction of the right and the regression of human society into a veritable Every man has a right to discuss matters of public interest. A
Hobbesian state of nature where life is short, nasty and brutish. Therefore, to clergyman with his flock, an admiral with his fleet, a general
recognize that there can be no absolute "unrestraint" in speech is to truly with his army, a judge with his jury; we are, all of us, the
comprehend the quintessence of freedom in the marketplace of social thought subject of public discussion. The view of our court has been
and action, genuine freedom being that which is limned by the freedom of thus stated: "It is only in despotisms that one must speak sub
others. If there is freedom of the press, ought there not also be freedom from rosa, or in whispers, with bated breath, around the corner, or
the press? It is in this sense that self-regulation as distinguished from self- in the dark on a subject touching the common welfare. It is
censorship becomes the ideal mean for, as Mr. Justice Frankfurter has warned, the brightest jewel in the crown of the law to speak and
"[W]ithout maintain the golden mean between defamation, on one
. . . a lively sense of responsibility, a free press may readily become a powerful hand, and a healthy and robust right of free public discussion,
instrument of injustice." 49 on the other.

Lest we be misconstrued, this is not to diminish nor constrict that space in WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals of
which expression freely flourishes and operates. For we have always strongly 25 March 1996 and its Resolution of 12 September 1996 denying
maintained, as we do now, that freedom of expression is man's birthright - reconsideration are, REVERSED and SET ASIDE, and the complaint for damages
constitutionally protected and guaranteed, and that it has become the singular against petitioners is DISMISSED. Petitioners' counterclaim for damages is
role of the press to act as its "defensor fidei" in a democratic society such as likewise DISMISSED for lack of merit. No costs.1âwphi1.nêt
ours. But it is also worth keeping in mind that the press is the servant, not the
master, of the citizenry, and its freedom does not carry with it an restricted SO ORDERED.
hunting license to prey on the ordinary citizen. 50

On petitioners' counterclaim for damages, we find the evidence too meager to


sustain any award. Indeed, private respondent cannot be said to have
instituted the present suit in abuse of the legal processes and with hostility to
the press; or that he acted maliciously, wantonly, oppressively, fraudulently
and for the sole purpose of harassing petitioners, thereby entitling the latter to
damages. On the contrary, private respondent acted within his rights to protect
his honor from what he perceived to be malicious imputations against him.
Proof and motive that the institution of the action was prompted by a sinister
design to vex and humiliate a person must be clearly and preponderantly
established to entitle the victim to damages. The law could not have meant to
impose a penalty on the right to litigate, nor should counsel's fees be awarded
every time a party wins a suit. 51

For, concluding with the wisdom in Warren v. Pulitzer Publishing


Co. 52 —

126
THIRD DIVISION From the pleadings submitted in this case, the undisputed facts are as
follows:

Sometime in April 1992, a complaint for libel was filed by Dr. Juan F. Torres, Jr.
[G.R. No. 113216. September 5, 1997] against Dr. Rhodora M. Ledesma, petitioner herein, before the Quezon City
Prosecutors Office, docketed as I.S. No. 92-5433A. Petitioner filed her counter-
affidavit to the complaint.

RHODORA M. LEDESMA, petitioner, vs. COURT OF APPEALS and HON. Finding sufficient legal and factual basis, the Quezon City Prosecutors Office
MAXIMIANO C. ASUNCION, in his capacity as Presiding Judge of RTC, filed on July 6, 1992 an Information for libel against petitioner with the
Quezon City, respondents. Regional Trial Court of Quezon City, Branch 104.[3] The Information filed by
Assistant City Prosecutor Augustine A. Vestil reads: [4]
DECISION
PANGANIBAN, J.: That on or about the 27th day of June 1991, in Quezon City, Metro Manila,
Philippines, the said accused, acting with malice, did, then and there, wilfully,
When confronted with a motion to withdraw an information on the unlawfully and feloniously send a letter addressed to Dr. Esperanza I. Cabral,
Director of Philippine Heart Center, East Avenue, this city, and furnished the
ground of lack of probable cause based on a resolution of the secretary of
same to other officers of the said hospital, said letter containing slanderous
justice, the bounden duty of the trial court is to make an independent
assessment of the merits of such motion. Having acquired jurisdiction over the and defamatory remarks against DR. JUAN F. TORRES, JR., which states in part,
case, the trial court is not bound by such resolution but is required to evaluate to wit:
it before proceeding further with the trial. While the secretarys ruling is
persuasive, it is not binding on courts. A trial court, however, commits 27June 1991
reversible error or even grave abuse of discretion if it refuses/neglects to
evaluate such recommendation and simply insists on proceeding with the trial Dr. Esperanza I. Cabral
on the mere pretext of having already acquired jurisdiction over the criminal
action. Director
This principle is explained in this Decision resolving a petition for review
Subject: Return of all professional fees due Dr. Rhodora M. Ledesma, Nuclear
on certiorari of the Decision[1] of the Court of Appeals,[2] promulgated on
Medicine Specialist/Consultant, Philippine Heart Center, from January 31, 1989
September 14, 1993 in CA-G.R. SP No. 30832 which in effect affirmed an order
of the Regional Trial Court of Quezon City denying the prosecutions withdrawal to January 31, 1991.
of a criminal information against petitioner.
Respondents: Dr. Juan F. Torres, Jr., Chief, Nuclear Medicine Section

Dr. Orestes P. Monzon,


The Antecedent Facts

Staff Consultant

127
Dear Dr. Cabral, share. I demand that I be indemnified of all professional fees due me on a case
to case basis.
This is to demand the return of all professional fees due me as a consultant in
Nuclear Medicine, this Center, since January 31, 1989 until my resignation Let me make clear my intention of pursuing this matter legally should there be
effective January 31, 1991, amounting to at least P100,000.00 for the year 1990 no favorable action in my behalf. Let me state at this point6 that the actions of
alone. Records in the Nuclear Medicine Section will show that from January Dr. Torres and Dr. Monzon are both unprofessional and unbecoming and are
1989 to January 1991, a total of 2,308 patients were seen. Of these, I had clearly violating the code of ethics of the medical profession and the Philippine
officially supervised, processed, and interpreted approximately a total of 1,551 Civil Service Rules and Regulations related to graft and corruption.
cases as against approximately 684 and 73 cases done by Dr. Monzon and Dr.
Torres respectively. Thank you.

Until my resignation I had received a monthly share of professional fees and other words of similar import, when in truth and in fact, as the accused
averaging P1,116.90/month supposedly representing 20% of the total monthly very well knew, the same are entirely false and untrue but were publicly made
professional fees. The rest were divided equally between Dr. Monzon and Dr. for no other purpose than to expose said DR. JUAN F. TORRES, JR. to public
Torres. There was never any agreement between us three consultants that this ridicule, thereby casting dishonor, discredit and contempt upon the person of
should be the arrangement and I am certain that this was not with your the said offended party, to his damage and prejudice.
approval. The burden of unfairness would have been lesser if there was an
equal distribution of labor and the schedule of duties were strictly followed. As A petition for review of the resolution of Assistant City Prosecutor Vestil
it was, the schedule of duties submitted monthly to the office of the Asst. was filed by petitioner before the Department of Justice pursuant to P.D. No.
Director for Medical Services was simply a dummy to comply with 77 as amended by P.D. No. 911.
administrative requirements rather than a guideline for strict compliance. Both
consultants have complete daily time records even if they did not come The Department of Justice gave due course to the petition and directed
regularly. Dr. Torres came for an hour every week, Dr. Monzon came the Quezon City prosecutor to move for deferment of further proceedings and
sporadically during the week while I was left with everything from training the to elevate the entire records of the case.[5] Accordingly, a Motion to Defer
residents and supervising the Techs to processing and interpreting the results Arraignment dated September 7, 1992 was filed by Prosecutor Tirso M. Gavero
on a regular basis. I had a part time appointment just like Dr. Monzon and Dr. before the court a quo.[6] On September 9, 1992, the trial court granted the
Torres. motion and deferred petitioners arraignment until the final termination of the
petition for review.[7]
In the interest of fairness and to set a precedent for the protection of future Without the consent or approval of the trial prosecutor, private
PHC Nuclear Medicine Alumni I am calling your attention to the unfair and complainant, through counsel, filed a Motion to Lift the Order dated
inhuman conditions I went through as a Consultant in that Section. I trust that September 9, 1992 and to Set the Case for Arraignment/Trial. [8]
your sense of professionalism will put a stop to this corruption.
On January 8, 1993, the trial court issued an Order setting aside its earlier
I suggest that a committee be formed to make an audit of the distribution of Order of September 9, 1992 and scheduling petitioners arraignment on January
professional fees in this Section. At this point, let me stress that since 18, 1993 at two oclock in the afternoon.[9]
professional fees vary according to the type of procedure done and since there
was no equity of labor between us I am not settling for an equal percentage

128
In a resolution dated January 27, 1993, then Justice Secretary Franklin M. and besmirched reputation - one year after they read the communication in
Drilon reversed the Quezon City investigating prosecutor. Pertinent portions of question.
Drilons ruling read:[10]
The claim that the case of Crespo vs. Mogul, 151 SCRA 462 is applicable to the
From the circumstances obtaining, the subject letter was written to bring to the instant case is unfounded. In the first place, the instant cases are not being
attention of the Director of the Philippine Heart Center for Asia and other reinvestigated. It is the resolutions of the investigating prosecutor that are
responsible authorities the unjust and unfair treatment that Dr. Ledesma was under review. Further, the record shows that the court has issued an order
getting from complainants. Since complainants and respondent are suspending the proceedings pending the resolutions of the petitions for review
government employees, and the subject letter is a complaint to higher by this Office. In the issuance of its order, the court recognizes that the
authorities of the PHCA on a subject matter in which respondent has an Secretary of Justice has the power and authority to review the resolutions of
interest and in reference to which she has a duty to question the same is prosecutors who are under his control and supervision.
definitely privileged (US vs. Bustos, 37 Phil. 131). Moreover, in Ang vs. Castro,
136 SCRA 455, the Supreme Court, citing Santiago vs. Calvo, 48 Phil. 922, ruled In view of the foregoing, the appealed resolutions are hereby reversed. You are
that A communication made in good faith upon any subject matter in which the directed to withdraw the Informations which you filed in Court. Inform this
party making the communication has an interest or concerning which he has a Office of the action taken within ten (10) days from receipt hereof.
duty is privileged... although it contains incriminatory or derogatory matter
which, without the privilege, would be libelous and actionable. In obedience to the above directive, Quezon City Trial Prosecutor Tirso M.
Gavero filed a Motion to Withdraw Information dated February
The follow-up letter sent by respondent to the director of the PHCA, is a direct 17,1993,[11] attaching thereto the resolution of Secretary Drilon. The trial judge
evidence of respondents righteous disposition of following the rule of law and denied this motion in his Order dated February 22, 1993, as follows:[12]
is a clear indication that her purpose was to seek relief from the proper higher
authority who is the Director of PHCA. The motion of the trial prosecutor to withdraw the information in the above-
entitled case is denied. Instead, the trial prosecutor of this court is hereby
The same interpretation should be accorded the civil and administrative directed to prosecute the case following the guidelines and doctrine laid down
complaints which respondent filed against complainants. They are mere by the Supreme Court in the case of Crespo vs. Mogul, 151 SCRA 462.
manifestations of her earnest desire to pursue proper relief for the alleged
injustice she got from complainants. If she was motivated by malice and ill-will Petitioners motion for reconsideration[13] was denied by the trial judge in
in sending the subject communication to the Director of the PHCA, she would the Order dated March 5, 1993, as follows:[14]
not have sent the second letter and filed the administrative and civil cases
against complainants.
Finding no cogent reason to justify the reconsideration of the ruling of this
Court dated February 22, 1993, the Motion for Reconsideration dated March 1,
Moreover, it is unbelievable that it took complainants one year to realize that 1993 filed by the accused through counsel is hereby denied.
the questioned letter subjected them to public and malicious imputation of a
vice or omission. It is beyond the ordinary course of human conduct for
Aggrieved, petitioner filed a petition for certiorari and prohibition with
complainants to start feeling the effects of the alleged libelous letter - that of
the Supreme Court. In a Resolution dated March 31, 1993, this Court
experiencing sleepless nights, wounded feelings, serious anxiety, moral shock
referred the case to the Court of Appeals for proper determination and
disposition pursuant to Section 9, paragraph 1 of B.P. 129.[15]

129
Respondent Court dismissed the petition for lack of merit, holding that it 8. It deprives the secretary of justice or the president of the power to control or
had no jurisdiction to overturn the doctrine laid down in Crespo vs. Mogul -- review the acts of a subordinate official;
once a complaint or information has been filed in court, any disposition of the
case, i.e., dismissal, conviction or acquittal of the accused, rests on the sound 9. It will lead to, encourage, abet or promote abuse or even corruption among
discretion of the trial court.[16] the ranks of investigating fiscals;
Hence, this recourse to this Court.
10. It does not subserve the purposes of a preliminary investigation because -

(10.a) It subjects a person to the burdens of an unnecessary trial, specially in


The Issues
cases where the investigating fiscal recommends no bail for the accused;

For unexplained reasons, petitioner failed to make an assignment of (10.b) It subjects the government, both the executive and the judiciary, to
errors against the appellate court. Her counsel merely repeated the alleged unnecessary time and expenses attendant to an unnecessary trial;
errors of the trial court: [17]
(10.c) It contributes to the clogging of judicial dockets; and
I. The Orders, dated February 22, 1993 and March 5, 1993, of respondent Judge
Asuncion relied solely on the Crespo vs. Mogul (151 SCRA 462) decision. It is 11. It has no statutory or procedural basis or precedent.
respectfully submitted that said case is not applicable because:
II. On the assumption that Crespo vs. Mogul is applicable, it is submitted that -
1. It infringes on the constitutional separation of powers between the
executive and judicial branches of the government; 1. Respondent Judge Asuncion committed grave abuse of discretion,
amounting to lack of jurisdiction, when he denied the Motion to Withdraw
2. It constitutes or it may lead to misuse or misapplication of judicial power as Information since he had already deferred to, if not recognized, the authority
defined in the Constitution; of the Secretary of Justice; and

3. It goes against the constitutional proscription that rules of procedure should 2. The facts in Crespo vs. Mogul are different from the instant case. Hence,
not diminish substantive rights; respondent Judge Asuncion committed grave abuse of discretion, amounting to
lack of jurisdiction, when he relied solely on said case in denying the Motion to
4. It goes against the principle of non-delegation of powers; Withdraw Information.

5. It sets aside or disregards substantive and procedural rules; In sum, the main issue in this petition is: Did Respondent Court commit
any reversible error in affirming the trial courts denial of the prosecutions
6. It deprives a person of his constitutional right to procedural due process; Motion to Withdraw Information?

7. Its application may constitute or lead to denial of equal protection of laws;


The Courts Ruling

130
The petition is impressed with merit. We answer the above question in prescribed by law, ever aware that any error or imprecision in compliance may
the affirmative. well be fatal to his clients cause.

FOR STRICT COMPLIANCE.


Preliminary Matter
Be that as it may, the Court noting the importance of the substantial
matters raised decided to overlook petitioners lapse and granted due course to
Before discussing the substance of this case, the Court will preliminarily the petition per Resolution dated July 15, 1996, with a warning that henceforth
address a procedural matter. Prior to the effectivity of the 1997 Rules of Civil petitions which fail to specify an assignment of errors of the proper lower court
Procedure on July 1, 1997, Section 2 of Rule 45, which governed appeals from may be denied due course motu proprio by this Court.
the Court of Appeals to the Supreme Court, provided:

SEC. 2. Contents of petition.The petition shall contain a concise statement of x x Determination of Probable Cause Is an Executive Function
x the assignment of errors made in the court below x x x.

A petition for review on certiorari under Rule 45 requires a concise The determination of probable cause during a preliminary investigation is
statement of the errors committed by the Court of Appeals, not of the trial judicially recognized as an executive function and is made by the
court. For failure to follow this Rule, the petition could have been dismissed by prosecutor. The primary objective of a preliminary investigation is to free a
this Court motu proprio, considering that under Section 4 of the same Rule, respondent from the inconvenience, expense, ignominy and stress of defending
review is not a matter of right but of sound discretion. himself/herself in the course of a formal trial, until the reasonable probability
of his or her guilt has been passed upon in a more or less summary proceeding
We take this occasion to stress the need for precision and clarity in the
by a competent officer designated by law for that purpose. Secondarily, such
assignment of errors. Review under this rule is unlike an appeal in a criminal
summary proceeding also protects the state from the burden of unnecessary
case where the death penalty, reclusin perpetua or life imprisonment is
expense and effort in prosecuting alleged offenses and in holding trials arising
imposed and where the whole case is opened for review. Under Rule 45, only from false, frivolous or groundless charges.[18]
the issues raised therein by the petitioner will be passed upon by the Court,
such that an erroneous specification of the issues may cause the dismissal of Such investigation is not a part of the trial. A full and exhaustive
the petition. We stressed this in Circular No. 2-90, entitled Guidelines to be presentation of the parties evidence is not required, but only such as may
Observed in Appeals to the Court of Appeals and to the Supreme Court, as engender a well-grounded belief that an offense has been committed and that
follows: the accused is probably guilty thereof.[19] By reason of the abbreviated nature
of preliminary investigations, a dismissal of the charges as a result thereof is
4. Erroneous Appeals. x x x x not equivalent to a judicial pronouncement of acquittal. Hence, no double
jeopardy attaches.
e) Duty of counsel.It is therefore incumbent upon every attorney who would In declaring this function to be lodged in the prosecutor, the Court
seek review of a judgment or order promulgated against his client to make sure distinguished the determination of probable cause for the issuance of a
of the nature of the errors he proposes to assign, whether these be of fact or of warrant of arrest or a search warrant from a preliminary investigation proper in
law; then upon such basis to ascertain carefully which Court has appellate this wise:[20]
jurisdiction; and finally, to follow scrupulously the requisites for appeal

131
xxx Judges and prosecutors alike should distinguish the preliminary inquiry establish the guilt of the accused beyond reasonable doubt. The reason for
which determines probable cause for the issuance of a warrant of arrest from a placing the criminal prosecution under the direction and control of the fiscal is
preliminary investigation proper which ascertains whether the offender should to prevent malicious or unfounded prosecution by private persons. It cannot be
be held for trial or released. xxx The determination of probable cause for the controlled by the complainant. Prosecuting officers under the power vested in
warrant of arrest is made by the Judge. The preliminary investigation proper-- them by law, not only have the authority but also the duty of prosecuting
whether xxx there is reasonable ground to believe that the accused is guilty of persons who, according to the evidence received from the complainant, are
the offense charged and, therefore, whether xxx he should be subjected to the shown to be guilty of a crime committed within the jurisdiction of their
expense, rigors and embarrassment of trial--is the function of the prosecutor. office. They have equally the legal duty not to prosecute when after an
investigation they become convinced that the evidence adduced is not
We reiterate that preliminary investigation should be distinguished as to sufficient to establish a prima facie case.
whether it is an investigation for the determination of a sufficient ground for
the filing of the information or it is an investigation for the determination of a In the same case, the Court added that where there is a clash of views
probable cause for the issuance of a warrant of arrest. The first kind of between a judge who did not investigate and a fiscal who conducted a
preliminary investigation is executive in nature. It is part of the prosecutors reinvestigation, those of the prosecutor should normally prevail:[23]
job. The second kind of preliminary investigation which is more properly called
preliminary examination is judicial in nature and is lodged with the judge. x x x x The Courts cannot interfere with the fiscals discretion and control of the
criminal prosecution. It is not prudent or even permissible for a Court to
Sound policy supports this distinction. Otherwise, judges would be unduly compel the fiscal to prosecute a proceeding originally initiated by him on an
laden with the preliminary examination and investigation of criminal information, if he finds that the evidence relied upon by him is insufficient for
complaints instead of concentrating on hearing and deciding cases filed before conviction. Neither has the Court any power to order the fiscal to prosecute or
their courts. The Separate Opinion of Mr. Chief Justice Andres R. Narvasa file an information within a certain period of time, since this would interfere
in Roberts, Jr. vs. Court of Appeals stressed that the determination of the with the fiscals discretion and control of criminal prosecutions. Thus, a fiscal
existence of probable cause properly pertains to the public prosecutor in the who asks for the dismissal of the case for insufficiency of evidence has
established scheme of things, and that the proceedings therein are essentially authority to do so, and Courts that grant the same commit no error. The fiscal
preliminary, prefatory and cannot lead to a final, definite and authoritative may re-investigate a case and subsequently move for the dismissal should the
judgment of the guilt or innocence of the persons charged with a felony or a re-investigation show either that the defendant is innocent or that his guilt may
crime.[21] not be established beyond reasonable doubt. In a clash of views between the
judge who did not investigate and the fiscal who did, or between the fiscal and
In Crespo vs. Mogul,[22] the Court emphasized the cardinal principle
the offended party or the defendant, those of the fiscals should normally
that the public prosecutor controls and directs the prosecution of criminal
prevail. x x x x.
offenses thus:

It is a cardinal principle that all criminal actions either commenced by


complaint or by information shall be prosecuted under the direction and Appeal as an Exercise of the Justice Secretarys Power of Control Over
control of the fiscal. The institution of a criminal action depends upon the Prosecutors
sound discretion of the fiscal. He may or may not file the complaint or
information, follow or not follow that presented by the offended party,
according to whether the evidence in his opinion, is sufficient or not to

132
Decisions or resolutions of prosecutors are subject to appeal to the Supervision and control of a department head over his subordinates have
secretary of justice who, under the Revised Administrative Code, exercises the been defined in administrative law as follows:[24]
power of direct control and supervision over said prosecutors; and who may
thus affirm, nullify, reverse or modify their rulings. In administrative law supervision means overseeing or the power or authority
of an officer to see that subordinate officers perform their duties. If the latter
Section 39, Chapter 8, Book IV in relation to Section 5, 8, and 9, Chapter 2,
fail or neglect to fulfill them, the former may take such action or step as
Title III of the Code gives the secretary of justice supervision and control over
prescribed by law to make them perform such duties. Control, on the other
the Office of the Chief Prosecutor and the Provincial and City Prosecution
hand, means the power of an officer to alter or modify or nullify or set aside
Offices. The scope of his power of supervision and control is delineated in
what a subordinate officer had done in the performance of his duties and to
Section 38, paragraph 1, Chapter 7, Book IV of the Code:
substitute the judgment of the former for that of the latter.
(1) Supervision and Control. Supervision and control shall include authority to
Review as an act of supervision and control by the justice secretary over
act directly whenever a specific function is entrusted by law or regulation to a
the fiscals and prosecutors finds basis in the doctrine of exhaustion of
subordinate; direct the performance of duty; restrain the commission of acts;
administrative remedies which holds that mistakes, abuses or negligence
review, approve, reverse or modify acts and decisions of subordinate officials
committed in the initial steps of an administrative activity or by an
or units; xxxx.
administrative agency should be corrected by higher administrative authorities,
and not directly by courts. As a rule, only after administrative remedies are
Supplementing the aforequoted provisions are Section 3 of R.A. 3783 and
exhausted may judicial recourse be allowed.
Section 37 of Act 4007, which read:

Section 3. x x x x
Appeal to the Secretary of Justice Is Not Foreclosed by the Ruling in Crespo
The Chief State Prosecutor, the Assistant Chief State Prosecutors, the Senior
State Prosecutors, and the State Prosecutors shall x x x perform such other In Marcelo vs. Court of Appeals,[25] the Court clarified that Crespo[26] did
duties as may be assigned to them by the Secretary of Justice in the interest of not foreclose the power or authority of the secretary of justice to review
public service. resolutions of his subordinates in criminal cases. The Court recognized
in Crespo that the action of the investigating fiscal or prosecutor in the
xxx xxx xxx preliminary investigation is subject to the approval of the provincial or city
fiscal or chief state prosecutor. Thereafter, it may be appealed to the secretary
Section 37. The provisions of the existing law to the contrary notwithstanding, of justice.
whenever a specific power, authority, duty, function, or activity is entrusted to
The justice secretarys power of review may still be availed of despite the
a chief of bureau, office, division or service, the same shall be understood as
filing of an information in court. In his discretion, the secretary may affirm,
also conferred upon the proper Department Head who shall have authority to
modify or reverse resolutions of his subordinates pursuant to Republic Act No.
act directly in pursuance thereof, or to review, modify, or revoke any decision
5180, as amended,[27]specifically in Section 1 (d):
or action of said chief of bureau, office, division or service.

(d) x x x Provided, finally, That where the resolution of the Provincial or City
Fiscal or the Chief State Prosecutor is, upon review, reversed by the Secretary

133
of Justice, the latter may, where he finds that no prima facie case exists, appellant had already been arraigned. If the appellant (is) arraigned during the
authorize and direct the investigating fiscal concerned or any other fiscal or pendency of the appeal, x x x appeal shall be dismissed motu proprio by the
state prosecutor to cause or move for the dismissal of the case, or, where he Secretary of Justice.
finds a prima facie case, to cause the filing of an information in court against
the respondent, based on the same sworn statements or An appeal/motion for reinvestigation from a resolution finding probable cause,
evidence submitted without the necessity of conducting another preliminary however, shall not hold the filing of the information in court.
investigation.
Apart from the foregoing statutory and administrative issuances, the
Pursuant thereto, the Department of Justice promulgated Circular No. 7 power of review of the secretary of justice is recognized also by Section 4 of
dated January 25, 1990 governing appeals in preliminary investigation. Appeals Rule 112 of the Rules of Court:
under Section 2 are limited to resolutions dismissing a criminal
complaint. However, Section 4 provides an exception: appeals from resolutions SEC. 4. Duty of investigating fiscal.--x x x x
finding probable cause upon a showing of manifest error or grave abuse of
discretion are allowed, provided the accused has not been arraigned. In the
xxx xxx xxx
present case, petitioners appeal to the secretary of justice was given due
course on August 26, 1992 pursuant to this Circular.
If upon petition by a proper party, the Secretary of Justice reverses the
On June 30, 1993, Circular No. 7 was superseded by Department Order resolution of the provincial or city fiscal or chief state prosecutor, he shall
No. 223; however, the scope of appealable cases remained unchanged: direct the fiscal concerned to file the corresponding information without
conducting another preliminary investigation or to dismiss or move for
SECTION 1. What May Be Appealed. -- Only resolutions of the Chief State dismissal of the complaint or information.
Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor dismissing a
criminal complaint may be the subject of an appeal to the Secretary of Justice This appeal rests upon the sound discretion of the secretary of justice
except as otherwise provided in Section 4 hereof. arising from his power of supervision and control over the prosecuting arm of
the government, not on a substantial right on the part of the accused as
Appeals from the resolutions of provincial/city prosecutors where the penalty claimed by petitioner.
prescribed for the offense charged does not exceed prisin
correccional, regardless of the imposable fine, shall be made to the Regional
State Prosecutors who shall resolve the appeals with finality, pursuant to Appeal Did Not Divest the Trial Court of Jurisdiction
Department Order No. 318 dated August 28, 1991 as amended by D.O. No. 34
dated February 4, 1992, D.O. No. 223 dated August 11, 1992 and D.O. No. 45
dated February 2, 1993. Such appeals shall also be governed by these rules. Where the secretary of justice exercises his power of review only after an
information has been filed, trial courts should defer or suspend arraignment
SEC. 4. Non-Appealable Cases; Exceptions.--No appeal may be taken from a and further proceedings until the appeal is resolved. Such deferment or
resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial suspension, however, does not signify that the trial court is ipso facto bound by
or City Prosecutor finding probable cause except upon showing of manifest the resolution of the secretary of justice. Jurisdiction, once acquired by the trial
error or grave abuse of discretion.Notwithstanding the showing of manifest court, is not lost despite a resolution by the secretary of justice to withdraw the
error or grave abuse of discretion, no appeal shall be entertained where the information or to dismiss the case.

134
Judicial Review of the Resolution of the Secretary of Justice withdraw the information is equivalent to effecting a disposition of the case
itself.

Judicial power is defined under the 1987 Constitution as the duty of


courts to settle actual controversies involving rights which are legally
The Marcelo and Martinez Cases Are Consistent
demandable and enforceable. Such power includes the determination of
whether there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the In Marcelo vs. Court of Appeals,[31] this Court ruled that, although it is
government.[28] Under this definition, a court is without power to directly more prudent to wait for a final resolution of a motion for review or
decide matters over which full discretionary authority has been delegated to reinvestigation from the secretary of justice before acting on a motion to
the legislative or executive branch of the government. It is not empowered to dismiss or a motion to withdraw an information, a trial court nonetheless
substitute its judgment for that of Congress or of the President. It may, should make its own study and evaluation of said motion and not rely merely
however, look into the question of whether such exercise has been made in on the awaited action of the secretary. The trial court has the option to grant
grave abuse of discretion. or deny the motion to dismiss the case filed by the fiscal, whether before or
Judicial review of the acts of other departments is not an assertion of after the arraignment of the accused, and whether after a reinvestigation or
superiority over them or a derogation of their functions. In the words of Justice upon instructions of the secretary who reviewed the records of the
Laurel in Angara vs. Electoral Commission:[29] investigation; provided that such grant or denial is made from its own
assessment and evaluation of the merits of the motion.
x x x [W]hen the judiciary mediates to allocate constitutional boundaries, it In Martinez vs. Court of Appeals,[32] this Court overruled the grant of the
does not in reality nullify or invalidate an act of the legislature, but only asserts motion to dismiss filed by the prosecuting fiscal upon the recommendation of
the solemn and sacred obligation assigned to it by the Constitution to the secretary of justice because such grant was based upon considerations
determine conflicting claims of authority under the Constitution and to other than the judges own assessment of the matter. Relying solely on the
establish for the parties in an actual controversy the rights which that conclusion of the prosecution to the effect that there was no sufficient
instrument sources and guarantees to them. This is in truth all that is involved evidence against the accused to sustain the allegation in the information, the
in what is termed judicial supremacy which properly is the power of the judicial trial judge did not perform his function of making an independent evaluation or
review under the Constitution.x x x. assessment of the merits of the case.

It is not the purpose of this Court to decrease or limit the discretion of the Despite the pronouncement in Marcelo that a final resolution of the
secretary of justice to review the decisions of the government prosecutors appeal to the Department of Justice is necessary, both decisions followed the
under him. In Crespo, the secretary was merely advised to restrict such review rule in Crespo vs. Mogul: Once a complaint or information is filed in court, any
to exceptionally meritorious cases. Rule 112, Section 4 of the Rules of Court, disposition of the case such as its dismissal or its continuation rests on the
which recognizes such power, does not, however, allow the trial court to sound discretion of the court. Trial judges are thus required to make their own
automatically dismiss the case or grant the withdrawal of the information upon assessment of whether the secretary of justice committed grave abuse of
the resolution of the secretary of justice.This is precisely the import of Crespo, discretion in granting or denying the appeal, separately and independently of
Marcelo, Martinez vs. Court of Appeals[30] and the recent case of Roberts, Jr. vs. the prosecutions or the secretarys evaluation that such evidence is insufficient
Court of Appeals, which all required the trial court to make its own evaluation or that no probable cause to hold the accused for trial exists. They should
of the merits of the case, because granting the motion to dismiss or to embody such assessment in their written order disposing of the motion.

135
The above-mentioned cases depict two extreme cases in complying with the trial court should have done. The petitioner has attached as annexes to the
this rule. In Marcelo, the dismissal of the criminal action upon the favorable present petition for review the information, which contains a complete and
recommendation of the Review Committee, Office of the City Prosecutor, was faithful reproduction of the subject letter, the resolution of the secretary of
precipitate in view of the pendency of private complainants appeal to the justice, the prosecutions motion for reconsideration of the trial courts Order of
secretary of justice. In effect, the secretarys opinion was totally disregarded by February 22, 1993, and even the private complainants opposition to said
the trial court. In contrast, in Martinez the dismissal of the criminal action was motion. The records below have been reproduced and submitted to this Court
an erroneous exercise of judicial discretion as the trial court relied hook, line for its appreciation. Thus, a remand to the trial court serves no purpose and
and sinker on the resolution of the secretary, without making its own will only clog the dockets.
independent determination of the merits of the said resolution.
We thus proceed to examine the substance of the resolution of the
secretary of justice. The secretary reversed the finding of probable cause on
the grounds that (1) the subject letter was privileged in nature and (2) the
No Grave Abuse of Discretion in theResolution of the Secretary of Justice complaint was merely a countercharge.
In every case for libel, the following requisites must concur:
In the light of recent holdings in Marcelo and Martinez; and considering
that the issue of the correctness of the justice secretarys resolution has been (a) it must be defamatory;
amply threshed out in petitioners letter, the information, the resolution of the
secretary of justice, the motion to dismiss, and even the exhaustive discussion (b) it must be malicious;
in the motion for reconsideration all of which were submitted to the court --
the trial judge committed grave abuse of discretion when it denied the motion
(c) it must be given publicity; and
to withdraw the information, based solely on his bare and ambiguous reliance
on Crespo. The trial courts order is inconsistent with our repetitive calls for an
independent and competent assessment of the issue(s) presented in the (d) the victim must be identifiable.
motion to dismiss. The trial judge was tasked to evaluate the secretarys
recommendation finding the absence of probable cause to hold petitioner At the preliminary investigation stage, these requisites must show prima
criminally liable for libel. He failed to do so. He merely ruled to proceed with facie a well-founded belief that a crime has been committed and that the
the trial without stating his reasons for disregarding the secretarys accused probably committed it. A cursory reading of the information
recommendation. immediately demonstrates a failure on the part of the complainant to establish
the foregoing elements of libel.
Had he complied with his judicial obligation, he would have discovered
that there was, in fact, sufficient ground to grant the motion to withdraw the Every defamatory imputation, even if true, is presumed malicious, if no
information. The documents before the trial court judge clearly showed that good intention or justifiable motive for making it is shown. There is malice
there was no probable cause to warrant a criminal prosecution for libel. when the author of the imputation is prompted by personal ill will or spite and
speaks not in response to duty but merely to injure the reputation of the
Under the established scheme of things in criminal prosecutions, this person who claims to have been defamed. [33] In this case however, petitioners
Court would normally remand the case to the trial judge for his or her letter was written to seek redress of proper grievance against the inaccurate
independent assessment of the motion to withdraw the information. However, distribution and payment of professional fees and against unfair treatment in
in order not to delay the disposition of this case and to afford the parties the Nuclear Medicine Department of the Philippine Heart Center. It is a
complete relief, we have decided to make directly the independent assessment

136
qualified privileged communication under Article 354(1) of the Revised Penal incriminatory or derogatory matter which, without the privilege, would be
Code which provides: libelous and actionable.

ART. 354. Requirement of publicity. -- Every defamatory imputation is The follow-up letter sent by respondent to the director of the PHCA, is a
presumed to be malicious, even if it be true, if no good intention and justifiable direct evidence of respondents righteous disposition of following the rule of
motive for making it is shown, except in the following cases: law and is a clear indication that her purpose was to seek relief from the proper
higher authority xxx.
1. A private communication made by any person to another in the performance
of any legal, moral or social duty; and The same interpretation should be accorded the civil and administrative
complaints which respondent filed against complainants. They are mere
xxx xxx xxx manifestations of her earnest desire to pursue proper relief for the alleged
injustice she got from complainants. If she was motivated by malice and ill-will
The rule on privileged communication is that a communication made in in sending the subject communication to the Director of the PHCA, she would
good faith on any subject matter in which the communicator has an interest, or not have sent the second letter and filed the administrative and civil cases
concerning which he has a duty, is privileged if made to a person having a against complainants.
corresponding interest or duty, although it contains incriminatory matter
which, without the privilege, would be libelous and actionable.Petitioners letter In Alonzo, the settled rule is that, when a public officer, in the discharge of
was a private communication made in the performance of a moral duty on her
his or her official duties, sends a communication to another officer or to a body
part. Her intention was not to inflict an unjustifiable harm on the private
of officers, who have a duty to perform with respect to the subject matter of
complainant, but to present her grievance to her superior. The privileged
the communication, such communication does not amount to publication
nature of her letter overcomes the presumption of malice. There is no malice within the meaning of the law on defamation.[35] Publication in libel means
when justifiable motive exists; and in the absence of malice, there is no
making the defamatory matter, after it has been written, known to someone
libel. We note that the information itself failed to allege the existence of
other than the person to whom it has been written. [36] The reason for such rule
malice.
is that a communication of the defamatory matter to the person defamed
Thus, we agree with the ruling of the secretary of justice:[34] cannot injure his reputation though it may wound his self-esteem. A mans
reputation is not the good opinion he has of himself, but the estimation in
x x x (T)he subject letter was written to bring to the attention of the Director of which others hold him.[37] In this case, petitioner submitted the letter to the
the Philippine Heart Center for Asia and other responsible authorities the director of said hospital; she did not disseminate the letter and its contents to
unjust and unfair treatment that Dr. Ledesma was getting from government third persons. Hence, there was no publicity and the matter is clearly covered
employees, and the subject letter is a complaint x x x on a subject matter in by paragraph 1 of Article 354 of the Penal Code.
which respondent has an interest and in reference to which she has a duty to Further, we note that the information against petitioner was filed only on
question the same is definitely privileged (US vs. Bustos, 37 Phil. July 27, 1992 or one year after June 27, 1991, the date the letter was sent. It is
131). Moreover, in Ang vs. Castro, 136 SCRA 455, the Supreme Court, citing obviously nothing more than a countercharge to give Complainant Torres a
Santiago vs. Calvo, 48 Phil. 922, ruled that a communication made in good faith leverage against petitioners administrative action against him.
upon any subject matter in which the party making the communication has an
interest or concerning which he has a duty is privileged although it contains Ineluctably, Judge Asuncions denial of the motion to withdraw the
information and the reconsideration thereof was not only precipitate but

137
manifestly erroneous. This is further compounded by the fact that he did not
explain his grounds for his denial inasmuch as he did not make an independent
assessment of the motion or the arguments in the resolution of the secretary
of justice. All in all, such rash action did not do justice to the sound ruling
in Crespo vs. Mogul upon which, ironically, he supposedly rested his action, or
to the directive in Marcelo and Martinez where this Court required trial courts
to make an independent assessment of the merits of the motion.
WHEREFORE, the assailed Decision is hereby REVERSED and SET
ASIDE. The Motion to Withdraw the Information dated February 17, 1993 filed
before the trial court is GRANTED. No costs.
SO ORDERED.

138
Republic of the Philippines without justifiable motive and with malicious intent of impeaching, discrediting
SUPREME COURT and destroying the honor, integrity, good name and reputation of the
complainant as Minister of the Presidential Commission on Government
SECOND DIVISION Reorganization and concurrently Governor of the Province of Camarines Sur,
and to expose him to public hatred, ridicule and contempt, write, edit, publish
G.R. No. 139987. March 31, 2005 and circulate an issue of the local weekly newspaper BICOL FORUM throughout
the Bicol Region, with banner headline and front page news item read by the
public throughout the Bicol Region, pertinent portions of which are quoted
SALVADOR D. FLOR, Petitioners,
verbatim as follows:
vs.
PEOPLE OF THE PHILIPPINES, Respondents.
"VILLAFUERTE’S DENIAL CONVINCES NO ONE"
DECISION
NAGA CITY-Gov. Luis Villafuerte’s denial that he did not spend government
money for his trips to Japan and Israel two weeks ago has failed to convince
CHICO-NAZARIO, J.:
people in Camarines Sur, reliable sources said.
Before Us is a petition for review on certiorari seeking to reverse the Decision
What the people know, the sources said, is that the two trips of the governor
of the Court of Appeals in CA-G.R. CR Nos. 11577 and 332041 which affirmed
who is also the minister of the Government Reorganization Commission was
the joint decision of the Regional Trial Court (RTC), Branch 33 of Pili, Camarines
purely junket.
Sur, in Criminal Case No. P-1855 convicting the petitioner and Nick Ramos2 for
libel and Civil Case No. P-1672 awarding damages in favor of the private
complainant, former Governor of Camarines Sur and Minister of the This was confirmed when capitol sources disclosed that about P700,000.00
Presidential Commission on Government Reorganization Luis R. Villafuerte. collected by way of cash advances by ranking provincial officials were allegedly
used for the two trips.
The facts are not disputed.
The cash advances, the sources said, were made at the instance of Villafuerte.
An information for libel was filed before the RTC, Branch 20, Naga City, against
the petitioner and Ramos who were then the managing editor and It was learned that the amount was withdrawn without resolution approving its
correspondent, respectively, of the Bicol Forum, a local weekly newspaper release.
circulated in the Bicol Region. The information reads as follows:
Villarfuerte however said that he spent his own money for the two trips.
That on or about the 18th day up to the 24th day of August, 1986, in the Bicol
Region comprised by the Provinces of Albay, Catanduanes, Sorsogon, Masbate, The governor was accompanied abroad by political supporters mostly
Camarines Sur, and Camarines Norte, and the Cities of Iriga and Naga, municipal mayors in Camarines Sur, the report said.
Philippines, and within the jurisdiction of this Honorable Court under R.A. No.
4363, and B.P. Blg. 129, the above-named accused who are the news This was contested by several individuals who told Bicol Forum that the
correspondent and the managing editor, respectively, of the local weekly members of Villafuerte’s entourage did not have official functions in the
newspaper Bicol Forum, did then and there willfully, unlawfully and feloniously, province.

139
Villafuerte and his companions reportedly attended the 1986 baseball games in clarified that he made his trip to Israel in his capacity as a cabinet member of
Japan. former President Corazon C. Aquino and that he spent his own money for the
said official trip thereby debunking Bicol Forum’s report that his travel to Israel
When in truth and in fact said allegations are false and utterly untrue as the was purely a junket.11 The private complainant also complained that no one
complainant has not done such acts, thus embarrassing, discrediting and from the Bicol Forum made any attempt to get his side of the story nor was he
ridiculing him before his friends, followers and other people. 3 aware of any effort exerted by the representatives of said publication to
confirm the veracity of the contents of the subject news article from any source
The information was later amended to include Jose Burgos, Jr., who was at that at the provincial capitol.12 Finally, the private complainant took exception to
time the publisher-editor of the Bicol Forum.4 The trial court, however, never the banner headline which states "Villafuerte’s Denial Convinces No One."
acquired jurisdiction over his person as he did not surrender nor was he ever According to him, the Bicol Forum seemed to be making a mockery of his
arrested by the authorities. previous explanations regarding the cash advances and his trips abroad and
such a sweeping statement subjected him to public ridicule and humiliation.13
It appears from the records that prior to the filing of the criminal complaint, the
private complainant had already instituted a separate civil action for damages On the other hand, Ramos testified that he wrote the questioned news item on
arising out of the questioned news article before the RTC, Branch 23, Naga City. the basis of a note given to him by a source whom he refused to identify.14 Said
Due to this, the criminal suit for libel was ordered consolidated with the civil source was allegedly connected with the Provincial Treasurer’s Office.15 The
case pursuant to Article 360 of the Revised Penal Code, as note reads:
amended.5 Subsequently, the consolidated actions were transferred to RTC,
Branch 33, Pili, Camarines Sur, in accordance with Republic Act No. 4363 which Media consultants of Villafuerte specially DWLV announcers had been
outlines the venue of libel cases in the event that the offended party is a public announcing the travels of Villafuerte to Israel and Japan without spending a
official such as in this case.6 Thereafter, a joint trial of the cases ensued with single centavo. This is unbelievable as lately the Gov. said he [spent] his own
accused Burgos, Jr., being declared as in default in the civil case due to his money for the trips.
failure to attend its pre-trial conference.
No one will believe this. The governor and party went to Israel and Japan as
Upon being arraigned, the petitioner and Ramos both pleaded not guilty. 7 there were some P700,000.00 cash advances collected in form of advances by
top provincial officials for the trips. No [doubt] Villafuerte had a hand on this
During the trial, the private complainant himself took the witness stand to because he is the governor approving cash advances. Among them were Panes
refute the statements contained in the subject news article. According to him, and Maceda.
there were previous news reports and broadcasts regarding the cash advances
allegedly made by some provincial government officials of Camarines Sur and There were no resolution, please publish this that people concern will react and
that it was also reported that he made a trip to Japan which was branded as a they be forced to account for the money. Authenticated papers will follow.
mere "junket."8 The private complainant, however, explained that after he Bull’s eye ito.
clarified over the radio that he never went to Japan, the issue was never
discussed again until the matter was included in the questioned news item. 9 As capr16
for the cash advances, the private complainant stated that the Provincial
Auditor and the Budget Officer had already made a statement "to the effect Ramos likewise alleged that prior to writing the subject news article, he went to
that he had no pending cash advances."10 Further, the private complainant his source to ask some clarificatory questions and was told that he would be

140
given authenticated records of the cash advances. Later, he was given a copy of Ordering the defendants Nick Ramos, Salvador D. Flor and Jose Burgos, Jr. to
the Schedule of Cash Advances of Disbursing Officers and Other Officers (as of pay jointly and severally to the plaintiff the following:
June 30 1987).17 Among the provincial government officials listed therein were
the private respondent who had a 1986 balance of P25,000.00 incurred for 1. The amount of Three Hundred Thousand Pesos (P300,000.00) as moral
cultural activities; Atty. Jose Maceda who also had a 1986 balance of damages;
P130,084.00 for sports development, Operation Smile, NAMCYA Festival, and
prisoners’ subsistence; and Eulogio Panes, Jr., who had beside his name a 1986 2. The amount of Five Thousand Pesos (P5,000.00) as exemplary damages;
balance of P250,000 for the purpose of sports development. Ramos also
claimed that when he went to the Provincial Treasurer’s Office to conduct his
3. The amount of Five Thousand Pesos (P5,000.00) as attorney’s fees; and to
investigation, he was shown some vouchers and was told that many of the
pay the costs of suit.22
members of the baseball delegation to Japan were not elected provincial
officials and, in fact, some mayors and private individuals were sent as part of
Unsatisfied with the findings of the trial court, the petitioner and Ramos filed
the Philippine group.18
an appeal with the Court of Appeals which affirmed the judgment of the trial
court through its decision dated 10 December 1996.23 They thereafter filed a
During his turn at the witness stand, the petitioner admitted that the headline
motion for reconsideration24 which was denied for lack of merit by the
was written by him in his capacity as the managing editor19 in accordance with
appellate court in its resolution of 19 August 1999.25
the policy of their paper to print as headlines matters dealing with public
concerns and public officials.20 According to him, the banner headline and the
In upholding the conclusion reached by the trial court, the Court of Appeals
sub-headline truthfully reflect the substance of the story prepared by Ramos. 21
ratiocinated, thus:
After the trial, the court a quo rendered a joint decision the dispositive portion
The informant of Nick Ramos made a sweeping conclusion that it was Gov.
of which reads:
Villafuerte who made the trips abroad using government money as there were
cash advances of P700,000.00 made by top provincial officials, without first
IN VIEW OF ALL THE FOREGOING CONSIDERATIONS, judgment is hereby
having verified the truth about the matters contained in his report. The
rendered:
imputation became malicious when they are based on mere conjectures. The
alleged libelous article must be construed as a whole. The effect of the news
In Criminal Case No. P-1855 item upon the minds of the readers must be considered in the prosecution of
libel cases. The words used in the news report tends to impute a criminal act on
Finding the accused Nick Ramos and Salvador D. Flor guilty beyond reasonable the governor which may cause the readers to hold him up to public ridicule and
doubt of the crime of Libel defined and punished under Article 353 in induce them to believe that the governor was indeed guilty. The accused editor
connection with Article 355 of the Revised Penal Code and they are each admitted that he did not make any personal investigation as to the truth of the
sentenced to pay a fine of Two Thousand Pesos (P2,000.00) with subsidiary statements made in the report. When such communication was sent for
imprisonment in case of insolvency; and to pay the costs of suit. publication, the so-called privilege was destroyed when malice in fact was
present.26
In Civil Case No. P-1672
In fine, the sole issue brought for the consideration of this Court is whether the
questioned news item is libelous. We reverse.

141
Libel is defined as "a public and malicious imputation of a crime, or of a vice or . . . To be sure, the enumeration under Art. 354 is not an exclusive list of
defect, real or imaginary, or any act, omission, condition, status, or qualifiedly privileged communications since fair commentaries on matters of
circumstance tending to cause the dishonor, discredit, or contempt of a natural public interest are likewise privileged. The rule on privileged communications
person or juridical person, or to blacken the memory of one who is had its genesis not in the nation’s penal code but in the Bill of Rights of the
dead."27 Any of these imputations is defamatory and under the general rule Constitution guaranteeing freedom of speech and of the press. As early as
stated in Article 354 of the Revised Penal Code, every defamatory imputation is 1918, in United States v. Cañete [38 Phil. 253], this Court ruled that publications
presumed to be malicious.28 The presumption of malice, however, does not which are privileged for reasons of public policy are protected by the
exist in the following instances: constitutional guaranty of freedom of speech. This constitutional right cannot
be abolished by the mere failure of the legislature to give it express recognition
1. A private communication made by any person to another in the performance in the statute punishing libels.33
of any legal, moral, or social duty; and
Clearly, when confronted with libel cases involving publications which deal with
2. A fair and true report, made in good faith, without any comments or public officials and the discharge of their official functions, this Court is not
remarks, of any judicial, legislative, or other official proceedings which are not confined within the wordings of the libel statute; rather, the case should
of confidential nature, or of any statement, report, or speech delivered in said likewise be examined under the constitutional precept of freedom of the press.
proceedings, or of any other act performed by public officers in the exercise of As enunciated in the seminal case of United States v. Bustos34 -
their functions.29
The interest of society and the maintenance of good government demand a full
The law recognizes two kinds of privileged matters. First are those which are discussion of public affairs. Complete liberty to comment on the conduct of
classified as absolutely privileged which enjoy immunity from libel suits public men is a scalpel in the case of free speech. The sharp incision of its probe
regardless of the existence of malice in fact. Included herein are statements relieves the abscesses of officialdom. Men in public life may suffer under a
made in official proceedings of the legislature by the members hostile and an unjust accusation; the wound can be assuaged with the balm of
thereof.30 Likewise, statements made in the course of judicial proceedings are a clear conscience. A public officer must not be too thin-skinned with reference
absolutely privileged but only if pertinent or relevant to the case involved. 31 to comment upon his official acts. Only thus can the intelligence and dignity of
the individual be exalted. Of course, criticism does not authorize defamation.
The other kind of privileged matters are the qualifiedly or conditionally Nevertheless, as the individual is less than the State, so must expected criticism
privileged communications which, unlike the first classification, may be be born for the common good. Rising superior to any official, or set of officials,
susceptible to a finding of libel provided the prosecution establishes the to the Chief Executive, to the Legislature, to the Judiciary – to any or all the
presence of malice in fact. The exceptions provided for in Article 354 of the agencies of Government – public opinion should be the constant source of
Revised Penal Code fall into this category. liberty and democracy.35

In the case, however, of Borjal v. Court of Appeals,32 this Court recognized that Of course, this does not mean that a public official is barred from recovering
the enumeration stated in Article 354 of the Revised Penal Code is not damages in cases involving defamations. His entitlement, however, is limited to
exclusive but is rendered more expansive by the constitutional guarantee of instances when the defamatory statement was made with actual malice – that
freedom of the press, thus: is, with knowledge that it was false or with reckless disregard of whether it was
false or not.36This is the test laid down in the leading case of New York Times
Co. v. Sullivan.37

142
In the case at bar, the Office of the Solicitor General (OSG) argues that the advances against the coffers of the provincial government of Camarines Sur
purported libelous news item was "designed to malign the integrity and was a major political topic in said locality at that time. Even the private
reputation of the [private complainant]" for it ascribed to the latter corruption respondent himself admitted during his direct testimony that he went on radio
and dishonesty in government service.38 Moreover, the OSG maintains that the in order to address the matter. It was clearly a legitimate topic to be discussed
questioned news article does not enjoy the mantle of protection afforded a not only by the members of the media but by the public as what was involved
privileged matter as the petitioner and Ramos published the news item based was the dispensation of taxpayers’ money.
on mere speculation and conjecture.39 Their decision to publish the unverified
information furnished them by the unnamed source, who was never presented Further, it bears emphasis that in this case, the petitioner and Ramos had in
before the trial court, and their failure to verify the truth of statements which their possession information relating to the cash advances and the private
appeared under the banner headline of the 18-24 August 1986 issue of the respondent’s travels abroad. The information was provided by one who worked
Bicol Forum indicates that the news item was published "intemperately and in the provincial treasurer’s office and had access to the pertinent financial
maliciously."40 The OSG is therefore of the opinion that the subject news item records of the provincial government. Their informant was familiar with the
satisfied the test pronounced in the New York Times case. We do not agree. procedure with regard to the approval of cash advances. The inference they
drew from the note given by their source that the private respondent prodded
As the US Supreme Court itself declared, "reckless disregard … cannot be fully some of the provincial government officials to take out cash advances may
encompassed in one infallible definition. Inevitably its outer limits will be have been false but the same does not warrant a conviction for libel nor
marked out through case-by-case adjudication."41 The case of Garrison v. State support a claim for damages. As discussed by Newell –
of Louisiana42 stressed that "only those false statements made with the high
degree of awareness of their probable falsity demanded by New York Slight unintentional errors, however, will be excused. If a writer in the course of
Times may be the subject of either civil or criminal sanctions"43 and concluded temperate and legitimate criticism falls into error as to some detail, or draws
by restating the "reckless disregard standard" in the following manner: an incorrect inference from the facts before him, and thus goes beyond the
limits of strict truth, such inaccuracies will not cause judgment to go against
. . . The test which we laid down in New York Times is not keyed to ordinary him, if the jury are satisfied, after reading the whole publication, that it was
care; defeasance of the privilege is conditioned, not on mere negligence, but on written honestly, fairly and with regard to what truth and justice require. "It is
reckless disregard for the truth.44 not to be expected that a public journalist will always be infallible." 47

Subsequently, in St. Amant v. Thompson45 it was stated that – During the hearing of these cases, the private complainant also refuted the
material points contained in the subject news article in an effort to prove the
. . . These cases are clear that reckless conduct is not measured by whether a falsity of the allegations contained therein. This Court finds such effort
reasonably prudent man would have published, or would have investigated inadequate to adjudge the petitioner guilty of the crime of libel or to entitle the
before publishing. There must be sufficient evidence to permit the conclusion private respondent to damages. Under the New York Times test, false
that the defendant in fact entertained serious doubts as to the truth of his statements alone are not actionable; maliciousness may be shown only
publication. Publishing with such doubts shows reckless disregard for truth or through knowledge of falsity or reckless disregard of truth or falsity.48
falsity and demonstrates actual malice. 46
Further, both the prosecution and the OSG make capital of Ramos and the
Applied to the case at bar, we hold that the prosecution failed to meet the petitioner’s failure to confirm the information supplied by the unidentified
criterion of "reckless disregard." As the records reveal, the issue of cash source which ultimately became the basis for the news article under

143
consideration in an obvious attempt to establish the element of "reckless Further, as their informant was employed in the provincial treasurer’s office, it
disregard for truth." The prosecution also painstakingly tried to establish malice is understandable why he opted not to expose himself and openly charge his
in fact on the part of the petitioner by harping on the fact that neither he nor superior, the private complainant herein, lest he incur the latter’s wrath.
Ramos took the time to give the private respondent the chance to air his side
before putting the alleged libelous news story to print. Finally, the private respondent claims that the banner headline ridiculed him
before the public does not merit consideration as the rule in this jurisdiction is
The contention fails to persuade. that "[t]he headline of a newspaper story or publication claimed to be libelous
must be read and construed in connection with the language that follows." 53 A
While substantiation of the facts supplied is an important reporting standard, perusal of the entire news story accompanying the headline in this case readily
still, a reporter may rely on information given by a lone source although it establishes the fact that the questioned article dealt with refutations by the
reflects only one side of the story provided the reporter does not entertain a private respondent’s critics of his explanation over the radio with regard to the
"high degree of awareness of [its] probable falsity."49 The prosecution, in this issues mentioned therein. The wording of the headline may have contained an
case, utterly failed to prove that the petitioner and Ramos entertained such exaggeration but the same nevertheless represents a fair index of the contents
awareness. of the news story accompanying it.54

We also hold that the petitioner’s and Ramos’s failure to present their WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals of
informant before the court as well as other evidence that would prove Ramos’ 10 December 1996 which affirmed the Joint Decision dated 18 March 1991 of
claim that he had conducted an investigation to verify the information passed the Regional Trial Court, Branch 33, Pili, Camarines Sur, and its Resolution of 19
on to him should not be taken against them. On this point, we turn to our August 1999 denying reconsideration are REVERSED and SET ASIDE. No costs.
pronouncement in the case of Rodolfo R. Vasquez v. Court of Appeals, et
al.,50 to wit: SO ORDERED.

A rule placing on the accused the burden of showing the truth of allegations of
official misconduct and/or good motives and justifiable ends for making such
allegations would not only be contrary to Art. 361 of the Revised Penal Code. It
would, above all, infringe on the constitutionally guaranteed freedom of
expression. Such a rule would deter citizens from performing their duties as
members of a self-governing community. Without free speech and assembly,
discussions of our most abiding concerns as a nation would be stifled. As Justice
Brandeis has said, "public discussion is a political duty" and "the greatest
menace to freedom is an inert people."51

Indeed, the difficulty of producing evidence, both documentary and


testimonial, on behalf of the petitioner was readily apparent when, during his
cross-examination, Ramos testified that he was not allowed by the custodians
of the material provincial financial records to photocopy the latter particularly
because said documents dealt with the matter of cash advances. 52

144
Republic of the Philippines An alleged confrontation between Thoenen and the owner of a pet he shot
SUPREME COURT recently threatens to exacerbate the problem, Angara said.

SECOND DIVISION Cristina Lee1

G.R. No. 143372 December 13, 2005 The subject of this article, Francis Thoenen, is a retired engineer permanently
residing in this country with his Filipina wife and their children. Claiming that
PHILIPPINE JOURNALISTS, INC. (PEOPLE’S JOURNAL), ZACARIAS NUGUID, JR. the report was false and defamatory, and that the petitioners acted
and CRISTINA LEE, Petitioners, irresponsibly in failing to verify the truth of the same prior to publication, he
vs. filed a civil case for damages against herein petitioners Philippine Journalists,
FRANCIS THOENEN, Respondent. Inc., Zacarias Nuguid, Jr., its publisher, and reporter Cristina Lee.

DECISION Thoenen claimed that the article destroyed the respect and admiration he
enjoyed in the community, and that since it had been published, he and his
CHICO-NAZARIO, J.: wife received several queries and angry calls from friends, neighbors and
relatives. For the impairment of his reputation and standing in the community,
and his mental anguish, Thoenen sought P200,000.00 in moral
For almost a century, this Court has sought that elusive equilibrium between
damages, P100,000.00 in exemplary damages, and P50,000.00 in attorney’s
the law on defamation on one hand, and the constitutionally guaranteed
fees.
freedoms of speech and press on the other. This case revisits that search.

The petitioners admitted publication of the news item, ostensibly out of a


On 30 September 1990, the following news item appeared in the People’s
"social and moral duty to inform the public on matters of general interest,
Journal, a tabloid of general circulation:
promote the public good and protect the moral public (sic) of the people," and
that the story was published in good faith and without malice.2
Swiss Shoots Neighbors’ Pets
The principal source of the article was a letter3 by a certain Atty. Efren Angara
RESIDENTS of a subdivision in Parañaque have asked the Bureau of Immigration
addressed to Commissioner Andrea Domingo of the Commission on
to deport a Swiss who allegedly shoots wayward neighbors’ pets that he finds
Immigration and Deportation (CID, now Bureau of Immigration), which states:
in his domain.
Dear Madame:
The BF Homes residents through lawyer Atty. Efren Angara complained that the
deportation of Francis Thoenen, of 10 Calcutta BF Homes Phase III, could help
We would like to request your office to verify the true status/authenticity of
"prevent the recurrence of such incident in the future."
the residency in the Philippines of a foreign national (a Swiss) by the name of
Francis Thoenen who is presently residing at No. 10 Calcuta cor. Beirut Street,
Angara explained that house owners could not control their dogs and cats
BF Homes (PH. III), Parañaque, Metro Manila. I received (sic) complaint from
when they slip out of their dwellings unnoticed.
my clients residing around his vicinity that this foreigner had (sic) been causing

145
troubles ever since he showed up. He is too meticulous and had (sic) been was indicated in the letter, Cristina Lee made no efforts to contact either him
shooting dogs and cats passing his house wall everytime. or the purported letter-writer, Atty. Angara.9

Such act which (sic) is unacceptable to the owners especially if inspite (sic) of The petitioners claim that Lee sought confirmation of the story from the
control their pets slips (sic) out unnoticed. A confrontation between him and newspaper’s correspondent in Parañaque, who told her that a woman who
the owner of the dog he shoot, (sic) already occurred last time. In some refused to identify herself confirmed that there had indeed been an incident of
instances this guy had been always driving his car barbarously inside the pet-shooting in the neighborhood involving the respondent.10 However, the
subdivision with children playing around (sic) the street. Before my clients correspondent in question was never presented in court to verify the truth of
petitioned themselves with the endorsement of the Homeowners Association this allegation. Neither was the alleged CID source presented to verify that the
and filed to your office for deportation we’re respectfully seeking your above letter had indeed come from the Department, nor even that the same
assistance to investigate this alien to prevent further incident occurrence (sic) was a certified true copy of a letter on file in their office.
in the future. He should not be allowed to dominate the citizens of this country.
On 31 August 1994, the Regional Trial Court, Branch 62, Makati City, rendered a
Very truly yours, Decision11 in favor of the petitioners, which reads in part:

Atty. Efren B. Angara There is no malice on the part of the defendants in publishing the news item
done in the exercise of their profession as journalists reporting to the people
The petitioners claim that Lee, as the reporter assigned to cover news events in on matters of public interest. The news report was based on an official
the CID, acquired a copy of the above letter from a trusted source in the CID’s communication filed with the Bureau of Immigration and Deportation.
Intelligence Division. They claimed to "have reasonable grounds to believe in
the truth and veracity of the information derived (from their) sources." 4 As noted by the Court of Appeals in Marti(r)ez vs. Alanao, CA-G.R No. 27086,
September 30, 1991, which is similar to the present case:
It was proven at trial that the news article contained several inaccuracies. The
headline, which categorically stated that the subject of the article engaged in While indeed, the news item subject of the present case might have ruffled the
the practice of shooting pets, was untrue.5 Moreover, it is immediately sensitivities of plaintiff, this Court however believes that the alleged
apparent from a comparison between the above letter and the news item in defamatory articles falls within the purview of a qualifiedly privileged matter,
question that while the letter is a mere request for verification of Thoenen’s and that therefore, it cannot be presumed to be malicious. The onus of proving
status, Lee wrote that residents of BF Homes had "asked the Bureau of malice is accordingly shifted to the plaintiff, that is, that he must prove that the
Immigration to deport a Swiss who allegedly shoots neighbors’ pets." No defendants were actuated by ill-will in what they caused to be printed and
complaints had in fact been lodged against him by any of the BF published, with a design to carelessly or wantonly injure the plaintiff. (US vs.
Homeowners,6 nor had any pending deportation proceedings been initiated Bustos, et al., 37 Phil. 731)
against him in the Bureau of Immigration.7
This, plaintiff failed to do, consequently, his case must fall.
Thoenen also submitted a Certification8 from the Office of the Bar Confidant
that there was no lawyer in its rolls by the name of Efren Angara, earlier cited The publication in question is a privileged communication protected by the
by petitioner Lee as the author of the letter on which she based her article. freedom of the press.
Finally, the trial also showed that despite the fact that respondent’s address

146
WHEREFORE, the Complaint is hereby ordered DISMISSED WITHOUT 2. The Court of Appeals erred in finding the petitioners liable for libel even if
PRONOUNCEMENT AS TO COSTS.12 the article was based on a letter released by the Bureau of Immigration, hence
a qualified privilege communication.
On appeal, the court a quo reversed13 the trial court. It held that although
freedom of expression and the right of speech and of the press are among the 3. The Court of Appeals erred in concluding that petitioners did not ascertain
most zealously guarded in the Constitution, still, in the exercise of these rights, the truth of the subject news item.
Article 19 of the Civil Code requires everyone to "act with justice, give everyone
his due, and observe honesty and good faith." The appellate court emphasized 4. The Court of Appeals erred in awarding damages notwithstanding that the
that Thoenen was neither a public official nor a public figure, and thus, same was excessive unconscionable and devoid of any basis.

. . . [E]ven without malice on the part of defendants-appellees, the news item The petitioners argue that this case is one for damages arising from libel, and
published in the 30 September 1990 edition of People’s Journal had been done not one for abuse of rights under the New Civil Code. They further claim the
in violation of the principle of abuse of right under Article 19 of the Civil Code, constitutional protections extended by the freedom of speech and of the press
in the absence of a bona fide effort to ascertain the truth thereof, i.e., "to clause of the 1987 Constitution against liability for libel, claiming that the
observe honesty and good faith," which makes their act a wrongful omission. article was published in fulfillment of its social and moral duty to inform the
Neither did they "act with justice and give everyone his due," because without public "on matters of general interest, promote the public good and protect
ascertaining the veracity of the information given them by the Intelligence the moral [fabric] of the people."16 They insist that the news article was based
Bureau of the Bureau of Immigration, they published a news article which they on a letter released by the Bureau of Immigration, and is thus a qualifiedly
were aware would bring the person specifically named therein, viz, Francis privileged communication. To recover damages, the respondent must prove its
Thoenen, the plaintiff-appellant in this case, into disrepute. publication was attended by actual malice - that is, with knowledge that it was
false or with reckless disregard of whether it was false or not. 17
….
For the reasons stated below, we hold that the constitutional privilege granted
WHEREFORE, the foregoing considered, the Decision appealed from is hereby under the freedom of speech and the press against liability for damages does
REVERSED and SET ASIDE. In its stead, We find for the appellant and award him not extend to the petitioners in this case.
moral damages of P200,000.00; exemplary damages of P50,000.00, and legal
fees to P30,000.00; all of which shall be borne jointly and severally by The freedom of speech and of the press is not absolute. The freedom of speech
appellees.14 and press and assembly, first laid down by President McKinley in the
Instruction to the Second Philippine Commission of 07 April 1900, is an
Petitioners’ motion for reconsideration having been denied, 15 this petition almost verbatim restatement of the first amendment of the Constitution of the
for certiorari under Rule 45 of the 1997 Rules of Civil Procedure was filed on United States.18 Enshrined in Section 4, Article III of the Bill of Rights of the
the following grounds: 1987 Constitution, it states, "No law shall be passed abridging the freedom of
speech, of expression, or of the press, or the right of the people peaceably to
1. The Court of Appeals erred in finding the petitioners Cristina Lee, Nuguid and assemble and petition the government for redress of grievances."
PJI liable under Article 19 of the Civil Code.
But not all speech is protected. "The right of free speech is not absolute at all
times and under all circumstances. There are certain well-defined and narrowly

147
limited classes of speech, the prevention and punishment of which has never Finally, malice or ill will must be present. Art. 354 of the Revised Penal Code
been thought to raise any Constitutional problem. These include the lewd and provides:
obscene, the profane, the libelous, and the insulting or ‘fighting’ words - those
which by their very utterance inflict injury or tend to incite an immediate Every defamatory imputation is presumed to be malicious, even if it be true, if
breach of the peace. It has been well observed that such utterances are no no good intention and justifiable motive for making it is shown, except in the
essential part of any exposition of ideas, and are of such slight social value as a following cases:
step to truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality." 19 1. A private communication made by any person to another in the performance
of any legal, moral or security duty; and
Libel is not protected speech. Article 353 of the Revised Penal Code defines libel
as "a public and malicious imputation of a crime, or of a vice or defect, real or 2. A fair and true report, made in good faith, without any comments or
imaginary, or any act, omission, condition, status, or circumstance tending to remarks, of any judicial, legislative or other official proceedings which are not
cause the dishonor, discredit, or contempt of a natural or juridical person, or to of confidential nature, or of any statement, report or speech delivered in said
blacken the memory of one who is dead." proceedings, or of any other act performed by public officers in the exercise of
their functions. (citations omitted, emphasis supplied)
For an imputation to be libelous, the following requisites must be met: (a) the
allegation of a discreditable act or condition concerning another; (b) In this case, there is no controversy as to the existence of the three elements.
publication of the charge; (c) identity of the person defamed; and (d) existence The respondent’s name and address were clearly indicated in the article
of malice.20 In Vasquez v. Court of Appeals,21 we had occasion to further ascribing to him the questionable practice of shooting the wayward pets of his
explain. Thus: neighbors. The backlash caused by the publication of the article was in fact
such that stones had been thrown at their house, breaking several flower pots,
An allegation is considered defamatory if it ascribes to a person the and daily and nightly calls compelled him to request a change of their
commission of a crime, the possession of a vice or defect, real or imaginary, or telephone number.22 These facts are not contested by the petitioners. What
any act, omission, condition, status or circumstance which tends to dishonor or the petitioners claim is the absence of proof of the fourth element - malice.
discredit or put him in contempt, or which tends to blacken the memory of one
who is dead. As a general rule, malice is presumed. Article 354 of the Revised Penal Code
states:
There is publication if the material is communicated to a third person. It is not
required that the person defamed has read or heard about the libelous remark. ART. 354. Requirement of Publicity. - Every defamatory imputation is presumed
What is material is that a third person has read or heard the libelous to be malicious, even if it be true, if no good intention and justifiable motive for
statement, for "a man’s reputation is the estimate in which others hold him, making it is shown, except in the following cases:
not the good opinion which he has of himself."
1. A private communication made by any person to another in the performance
On the other hand, to satisfy the element of identifiability, it must be shown of any legal, moral or social duty; and
that at least a third person or a stranger was able to identify him as the object
of the defamatory statement.
2. A fair and true report, made in good faith, without any comments or
remarks, of any judicial, legislative or other official proceedings which are not

148
of confidential nature, or of any statement, report or speech delivered in said The appellate court correctly ruled that the petitioners’ story is not privileged
proceedings, or of any other act performed by public officers in the exercise of in character, for it is neither "private communication" nor a fair and true report
their functions. without any comments or remarks.

The article is not a privileged communication. We first discussed the freedom of US v. Bustos defined the concept of private communication thus: "A
speech and press and assembly vis-a-vis the laws on libel and slander in the communication made bona fide upon any subject-matter in which the party
groundbreaking case of US v. Bustos,23 where we applied the prevailing English communicating has an interest, or in reference to which he has a duty, is
and American jurisprudence to the effect that: privileged, if made to a person having a corresponding interest or duty,
although it contained criminatory matter which without this privilege would be
The interest of society and the maintenance of good government demand a full slanderous and actionable. A pertinent illustration of the application of
discussion of public affairs. Complete liberty to comment on the conduct of qualified privilege is a complaint made in good faith and without malice in
public men is a scalpel in the case of free speech. The sharp incision of its probe regard to the character or conduct of a public official when addressed to an
relieves the abscesses of officialdom. Men in public life may suffer under a officer or a board having some interest or duty in the matter."25
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 This defense is unavailing to petitioners. In Daez v. Court of Appeals26 we held
to comment upon his official acts. Only thus can the intelligence and dignity of that:
the individual be exalted. Of course, criticism does not authorize defamation.
Nevertheless, as the individual is less than the State, so must expected criticism As a rule, it is the right and duty of a citizen to make a complaint of any
be born for the common good? Rising superior to any official, or set of officials, misconduct on the part of public officials, which comes to his notice, to those
to the Chief Executive, to the Legislature, to the Judiciary - to any or all the charged with supervision over them. Such a communication is qualifiedly
agencies of Government - public opinion should be the constant source of privileged and the author is not guilty of libel. The rule on privilege, however,
liberty and democracy. (citations omitted) imposes an additional requirement. Such complaints should be
addressed solely to some official having jurisdiction to inquire into the charges,
The demand to protect public opinion for the welfare of society and the orderly or power to redress the grievance or has some duty to perform or interest in
administration of government inevitably lead to the adoption of the doctrine of connection therewith. (emphasis supplied)
privileged communication. "A privileged communication may be either
absolutely privileged or qualifiedly privileged. Absolutely privileged In the instant case, even if we assume that the letter written by the spurious
communications are those which are not actionable even if the author has Atty. Angara is privileged communication, it lost its character as such when the
acted in bad faith. An example is found in Sec. 11, Art. VI of the 1987 matter was published in the newspaper and circulated among the general
Constitution which exempts a member of Congress from liability for any speech population. A written letter containing libelous matter cannot be classified as
or debate in the Congress or in any Committee thereof. Upon the other hand, privileged when it is published and circulated in public,27 which was what the
qualifiedly privileged communications containing defamatory imputations are petitioners did in this case.
not actionable unless found to have been made without good intention or
justifiable motive. To this genre belong ‘private communications’ and ‘fair and Neither is the news item a fair and true report without any comments or
true report without any comments or remarks.’"24 remarks of any judicial, legislative or other official proceedings; there is in fact
no proceeding to speak of. Nor is the article related to any act performed by

149
public officers in the exercise of their functions, for it concerns only false although defendants had the means to ascertain the veracity of their report.
imputations against Thoenen, a private individual seeking a quiet life. Such are the facts obtaining here.

The petitioners also claim to have made the report out of a "social and moral We must point out that Lee’s brief news item contained falsehoods on two
duty to inform the public on matters of general interest." levels. On its face, her statement that residents of BF Homes had "asked the
Bureau of Immigration to deport a Swiss who allegedly shoots neighbors’ pets"
In Borjal v. Court of Appeals, we stated that "the enumeration under Art. 354 is is patently untrue since the letter of the spurious Atty. Angara was a mere
not an exclusive list of qualifiedly privileged communications since fair request for verification of Thoenen’s status as a foreign resident. Lee’s article,
commentaries on matters of public interest are likewise privileged. We stated moreover, is also untrue, in that the events she reported never happened. The
that the doctrine of fair commentaries means "that while in general every respondent had never shot any of his neighbors’ pets, no complaints had been
discreditable imputation publicly made is deemed false, because every man is lodged against him by his neighbors, and no deportation proceedings had been
presumed innocent until his guilt is judicially proved, and every false initiated against him. Worse, the author of Lee’s main source of information,
imputation is deemed malicious, nevertheless, when the discreditable Atty. Efren Angara, apparently either does not exist, or is not a lawyer.
imputation is directed against a public person in his public capacity, it is not Petitioner Lee would have been enlightened on substantially all these matters
necessarily actionable. In order that such discreditable imputation to a public had she but tried to contact either Angara or Thoenen.
official may be actionable, it must either be a false allegation of fact or a
comment based on a false supposition."28 Although it has been stressed that a newspaper "should not be held to account
to a point of suppression for honest mistakes, or imperfection in the choice of
Again, this argument is unavailing to the petitioners. As we said, the words,"32 even the most liberal view of free speech has never countenanced
respondent is a private individual, and not a public official or public figure. We the publication of falsehoods, especially the persistent and unmitigated
are persuaded by the reasoning of the United States Supreme Court in Gertz v. dissemination of patent lies.33 "There is no constitutional value in false
Robert Welch, Inc.,29 that a newspaper or broadcaster publishing defamatory statements of fact. Neither the intentional lie nor the careless error materially
falsehoods about an individual who is neither a public official nor a public advances society’s interest in ‘uninhibited, robust, and wide-open’
figure may not claim a constitutional privilege against liability, for injury debate."34 The use of the known lie as a tool is at once at odds with the
inflicted, even if the falsehood arose in a discussion of public interest.30 premises of democratic government and with the orderly manner in which
economic, social, or political change is to be effected. Calculated falsehood falls
Having established that the article cannot be considered as privileged into that class of utterances which "are no essential part of any exposition of
communication, malice is therefore presumed, and the fourth requisite for the ideas, and are of such slight social value as a step to truth that any benefit that
imputation of libel to attach to the petitioners in this case is met. The news may be derived from them is clearly outweighed by the social interest in order
article is therefore defamatory and is not within the realm of protected speech. and morality… The knowingly false statement and the false statement made
There is no longer a need to discuss the other assignment of errors, save for with reckless disregard of the truth, do not enjoy constitutional protection"
the amount of damages to which respondent is entitled. (citations omitted).35

In Policarpio v. Manila Times Publishing Co., Inc.,31 we awarded damages where The legitimate state interest underlying the law of libel is the compensation of
the defendants deliberately presented a private individual in a worse light that the individuals for the harm inflicted upon them by defamatory falsehood.
what she actually was, and where other factual errors were not prevented After all, the individual’s right to protection of his own good name "reflects no

150
more than our basic concept of the essential dignity and worth of every human
being – a concept at the root of any decent system of ordered liberty."36

The appellate court awarded Thoenen moral damages of P200,000.00,


exemplary damages of P50,000.00 and legal fees of P30,000.00, to be borne
jointly and severally by the herein petitioners. In Guevarra v. Almario,37 we
noted that the damages in a libel case must depend upon the facts of the
particular case and the sound discretion of the court, although appellate courts
were "more likely to reduce damages for libel than to increase them."38 So it is
in this case.

WHEREFORE, the Decision of the Court of Appeals of 17 January 2000 reversing


the Decision of the Regional Trial Court, Branch 62, Makati City, of 31 August
1994 is hereby AFFIRMED, subject to the modification that petitioners are
ordered to pay, jointly and severally, moral damages in the sum
of P100,000.00, exemplary damages of P30,000.00, and legal fees
of P20,000.00. No costs.

SO ORDERED.

151
Republic of the Philippines be deemed an activity shielded from sanction by that
SUPREME COURT constitutional guaranty;
Manila
2) that such utterance or publication is also violative of "The
EN BANC Philippine Journalist's Code of Ethics" which inter
alia commands the journalist to "scrupulously report and
interpret the news, taking care not to suppress essential facts
nor to distort the truth by improper omission or emphasis,"
A.M. No. 93-2-037 SC April 6, 1995 and makes it his duty "to air the other side and to correct
substantive errors promptly;" 1
IN RE Emil (Emiliano) P. JURADO Ex Rel.: Philippine Long Distance Telephone
Company (PLDT), per its First Vice-President, Mr. Vicente R. 3) that such an utterance or publication, when it is offensive
Samson, appellant, to the dignity and reputation of a Court or of the judge
presiding over it or degrades or tends to place the courts in
disrepute and disgrace or otherwise to debase the
administration of justice, constitutes contempt of court and is
punishable as such after due proceedings; and
NARVASA, C.J.:
4) that prescinding from the obvious proposition that any
Liability for published statements demonstrably false or misleading, and
aggrieved party may file a complaint to declare the utterer or
derogatory of the courts and individual judges, is what is involved in the
writer in contempt, the initiation of appropriate contempt
proceeding at bar — than which, upon its facts, there is perhaps no more
proceedings against the latter by the court is not only its
appropriate setting for an inquiry into the limits of press freedom as it relates
prerogative but indeed its duty, imposed by the
to public comment about the courts and their workings within a constitutional
overmastering need to preserve and protect its authority and
order.
the integrity, independence and dignity of the nation's
judicial system.
1. Basic Postulates
2. Antecedents
To resolve the issue raised by those facts, application of fairly elementary and
self-evident postulates is all that is needed, these being:
This proceeding treats of Emiliano P. Jurado, a journalist who writes in a
newspaper of general circulation, the "Manila Standard." He describes himself
1) that the utterance or publication by a person of falsehood as a columnist, who "incidentally happens to be a lawyer," remarking that while
or half-truths, or of slanted or distorted versions of facts — or he values his membership in the law profession, "such membership is neither a
accusations which he made no bona fide effort previously to critical nor indispensable adjunct in the exercise of his occupation as a
verify, and which he does not or disdains to prove — cannot newspaperman." 2 His column in the "Manila Standard" is entitled "Opinion."
be justified as a legitimate exercise of the freedom of speech
and of the press guaranteed by the Constitution, and cannot

152
Jurado had been writing about alleged improperties and irregularities in the Material to the present inquiry are Jurado's published statements from late
judiciary over several months (from about October, 1992 to March, 1993). 1992 to the middle of February, 1993.
Other journalists had also been making reports or comments on the same
subject. At the same time, anonymous communications were being extensively 1. In his column of October 21, 1992, he wrote of "(j)udges in
circulated, by hand and through the mail, about alleged venality and corruption a number of regional trial courts in Metro Manila (who) have
in the courts. And all these were being repeatedly and insistently adverted to become so notorious in their dealings with litigants and
by certain sectors of society. lawyers that they are now called the "Magnificent Seven.""
He stated that "(i)t has come to a point where lawyers and
In light of these abnormal developments, the Chief Justice took an litigants try their darndest to stay away from these judges.
extraordinary step. He issued Administrative Order No. 11-93 dated January 25, The answer, of course, is obvious."
1993, "Creating an Ad Hoc Committee to Investigate Reports of Corruption in
the Judiciary," 3 reading as follows: 2. In his February 3, 1993 column, he adverted to another
group, also named "Magnificent Seven," which, he said,
WHEREAS, the Court's attention has been drawn to the many should be distinguished from the first. He wrote: "When
and persistent rumors and unverified reports respecting lawyers speak of the "Magnificent Seven" one has to make
corruption in the judiciary, said rumors and reports not only sure which group they are referring to. Makati's "Magnificent
having been mentioned by media and in anonymous Seven" are a bunch of Makati regional trial court judges who
communications, but having also been adverted to by certain fix drug-related cases. The "Magnificent Seven" in the
government officials and civic leaders. Supreme Court consists of a group of justices who vote as
one." 4
NOW, THEREFORE, by authority of the Court, an Ad
Hoc committee is hereby constituted composed of Chief 3. Aside from the "Magnificent Seven," he also wrote about a
Justice Andres R. Narvasa, as Chairman, and former Justices group which he dubbed the "Dirty Dozen." In his column of
of the Court, Hon. Lorenzo Relova and Hon. Ameurfina A. October 21, 1992 he said that there are " . . . 12 judges who
Melencio-Herrera, as Members, which shall seek to ascertain have acquired such reputation for graft and corruption that
the truth respecting said reports and statements, and to this they are collectively known as the "dirty dozen". These
end, forthwith interview at closed-door sessions or judges, I am told, are not satisfied with accepting bribes; they
otherwise, such persons as may appear to it to have some actually sell their decisions to the litigants and "solicit" their
knowledge of the matter and who may be appealed to to bids for what is clearly an auction for the judge's decision."
share that knowledge with the Court, and otherwise gather
such evidence as may be available. The Committee is hereby According to him, the most corrupt judges now are Makati's
authorized to use such facilities and personnel of the court as "Dirty Dozen" judges, supplanting some of those from Pasay,
may be necessary or convenient in the fulfillment of its Pasig and Quezon City; corruption in lower Courts had been
assigned mission, and shall submit its report to the Court admitted by an Executive Judge in a Metro Manila Regional
within thirty (30) days. Trial Court (column of November 9, 1992); and because the
"Dirty Dozen" had given Makati the reputation of having the
most corrupt RTC in the country, multi-nationals and

153
financing institutions explicitly stipulate in their agreements judges and giving detailed accounts of the bribery (January
that litigation in connection with these contracts may be held 30, 1993);
anywhere in Metro Manila except in Makati; and lawyers
confirm that Makati Judges, including some persons in the b) a bank, later identified by him as the Equitable Banking
sheriffs office, are the most corrupt, where before, Pasay and Corporation (Ermita Branch), which had "hosted a lunch at its
Quezon City had that dubious distinction (column of penthouse mainly for some justices, judges, prosecutors and
December 1, 1992). law practitioners" (January 12, 1993); 5

4. In his November 9, 1992 column, he wrote about "a former c) the lady secretary of an RTC Judge in Makati who allegedly
appellate justice (who) "holds office" at a restaurant near the makes sure, for a fee of P10,000.00 or more, depending on
Court of Appeals building. He is known as the contact man of how much money is at stake, that a case is raffled off to a
five CA divisions. Lawyers say that this former jurist really Judge who will be "extremely sympathetic," and can arrange
delivers." In his column of January 29, 1993, he adverted to to have the Court issue attachments or injunctions for a
the same unnamed former Justice as being "known for fixing service fee of 1% over and above the regular premium of the
cases for five CA divisions (that is what he tells lawyers and attachment or injunction bond; a Chinese-Filipino
litigants) for a fee. And if the price is right, the lawyer of the businessman who paid this "miracle worker" P300,000.00 on
litigant paying can even write his own decision using a CA top of the regular premium on the attachment/injunction
justice as ponente. This ex-justice holds court at the bond (October 27, 1992);
mezzanine of a restaurant owned by the wife of a former
Marcos cabinet member and which has become a meeting d) Executive Judge de la Rosa, who "has unilaterally decided
place for judges, CA justices, practicing lawyers, prosecutors to discard the rule that cases seeking provisional remedies
and even Supreme Court justices. The former CA justice also should be raffled off to the judges," thus violating the rule
has his own Chinese contact. After I exposed this last year, that no case may be assigned in multi-sala courts without a
the habitues became scarce. But they are back again, and the raffle (January 28, 1993);
ex-justice is still-doing brisk business."
e) the Secretary of the Judicial and Bar Council (JBC), who had
5. In his column of March 24, 1993, he made the claim that supposedly gotten that body to nominate him to the Court of
one can "get a temporary restraining order from a regional Appeals; and a son and a nephew of JBC members, who were
trial court in Metro-Manila by paying the judge anywhere also nominated to the Court of Appeals, contrary to ethics
between P30,000.00 and P50,000.00." and delicadeza (January l6, 1993; and January 29, 1993);

Other columns of Jurado refer to: f) what he denominates "a major determinant of
promotion," i.e., having a relative in the JBC or the Supreme
a) a police from the South Capital Command . . . (to the Court, or having a powerful politician as sponsor, citing
effect) that 8 Makati judges where paid for decisions favoring specifically, the following nominees to the Court of Appeals
drug-traffickers and other big-time criminals, naming the — Conrado Vasquez, Jr., son and namesake of the
Ombudsman and brother of the head of the Presidential

154
Management Staff; Rosalio de la Rosa, "nephew of Justice derogatory epithet for judges was coined and quickly gained currency:
Relova and cousin of Chief Justice Narvasa;" and the fact that "Hoodlums in Robes."
nomination of some worthy individuals was blocked because
they "incurred the ire of the powers that be," e.g., Judge It was at about this time and under these circumstances — particularly the
Maximiano Asuncion, Quezon City RTC, and Raul Victorino, furor caused by the Yerkes opinion that the PLDT decision was authored by a
closely identified with former Senate President Salonga PLDT lawyer — that Jurado wrote in his column on February 8, 1993, an item
(January 25, 1993). entitled, "Who will judge the Justices?" referring among other things to" . . .
(a) report that six justices, their spouses, children and grandchildren (a total of
3. Events Directly Giving Rise 36 persons) spent a vacation in Hong Kong some time last year — and that
to the Proceeding at Bar luxurious hotel accommodations and all their other expenses were paid by a
pubic utility firm . . . and that the trip . . . was arranged by the travel agency
What may be called the seed of the proceeding at bar was sown by the decision patronized by this public utility firm." 8
promulgated by this Court on August 27, 1992, in the so-called "controversial
case" of "Philippine Long Distance Telephone Company v. Eastern Telephone This was the event that directly gave rise to the proceeding at bar.
Philippines, Inc. (ETPI)," G.R. No, 94374. In that decision the Court was sharply
divided; the vote was 9 to 4, in favor of the petitioner PLDT. Mr. Justice Hugo E. a. Letter and Affidavit of PLDT
Gutierrez, Jr., wrote the opinion for the
majority. 6 A motion for reconsideration of the decision was filed in For shortly afterwards, on February 10, 1993, Mr. Vicente R. Samson, First Vice
respondent's behalf on September 16, 1992, which has recently been resolved. President of the PLDT (Philippine Long Distance Telephone Company),
addressed a letter to the Chief Justice, submitting his sworn statement in
In connection with this case, G.R. No. 94374, the "Philippine Daily Inquirer" and confutation of "the item in the column of Mr. Emil P. Jurado of the Manila
one or two other newspapers published, on January 28, 1993, a report of the Standard on a vacation trip supposedly taken by six Justices with their families
purported affidavit of a Mr. David Miles Yerkes, an alleged expert in linguistics. last year," and requesting that the Court "take such action as may be
This gentleman, it appears, had been commissioned by one of the parties in the appropriate." In his affidavit, Samson made the following averments: 9
case, Eastern Telephone Philippines, Inc. (ETPI), to examine and analyze the
decision of Justice Gutierrez in relation to a few of his prior ponencias and the xxx xxx xxx
writings of one of the lawyers of PLDT, Mr. Eliseo Alampay, to ascertain if the
decision had been written, in whole or in part, by the latter. Yerkes proffered
While the name of the public utility which supposedly
the conclusion that the Gutierrez decision "looks, reads and sounds like the
financed the alleged vacation of the Justices in Hongkong has
writing of the PLDT's counsel," 7
not been disclosed in the Jurado column, the publication
thereof, taken in relation to the spate of recent newspaper
As might be expected, the Yerkes "revelations" spawned more public discussion reports alleging that the decision of the Supreme Court,
and comment about the judiciary and the Supreme Court itself, much of it penned by Mr. Justice Hugo E. Gutierrez, Jr., in the pending
unfavorable. There were calls for impeachment of the justices, for resignation case involving the PLDT and Eastern Telecommunications
of judges. There were insistent and more widespread reiterations of Phils., Inc. was supposedly ghost written by a lawyer of PLDT,
denunciations of incompetence and corruption in the judiciary. Another gives rise to the innuendo or unfair inference that Emil Jurado
is alluding to PLDT in the said column; and, this in fact was

155
the impression or perception of those who talked to me and a.
the other officers of the PLDT after having read the Jurado Philway
column; Travel
Corpora
4. In as much as the PLDT case against Eastern tion
Telecommunications Philippines is still sub-judice, since the M-7
motions for reconsideration filed by the losing litigants Prince
therein, Eastern Telecommunications Philippines, Inc. and Tower
NTC are still pending before the Court, we have tried to Cond.
refrain from making any public comments on these matters, Tordesill
lest any statement we make be interpreted to be an attempt as St.,
on our part to unduly influence the final decision of the Salcedo
Supreme Court in the above described case. However in the Village
interest of truth and justice, PLDT is compelled to Makati,
emphatically and categorically declare that it is not the public Metro
utility firm referred to in the Jurado column and that Manila
specifically, it has never paid for any such trip, hotel or other
accommodations for any justice of the Supreme Court or his b. Citi-
family during their vacation, if any, in Hongkong last year. It is World
not even aware that any of the justices or their families have Travel
made the trip referred to in the Jurado column; Mart
Corp.
5. I further state that neither Atty. Emil P. Jurado nor anyone Suite 3-4
in his behalf has ever spoken to me or any other responsible Ramada
officer of PLDT about the matter quoted in par. 2 hereof; Midtow
n
6. PLDT further emphatically and categorically denies that it Arcade
had ever talked to or made arrangements with any travel M.
agency or any person or entity in connection with any such Adriatic
alleged trip of the Justices and their families to Hongkong, o Street
much less paid anything therefor to such agencies, fully or in Ermita,
part, in the year 1992 as referred to in Par. 2 hereinabove; Manila.

7. The travel agencies which PLDT patronizes or retains for The records of these travel agencies will bear out the fact that
the trips, hotels or other accommodations of its officers and no arrangements were made by them at the instance of PLDT
employees are: for the trip referred to in the Jurado column.

156
b. Affidavit of Atty. William Veto Emiliano Jurado to appear before it "at 2 o'clock in the
afternoon of February 4, 1993 . . . (to) give the committee
The Samson affidavit was followed by another submitted to the Court by Atty. information that will assist it in its task," i.e., to definitely and
William Veto, the "in-house counsel of Equitable Banking Corporation since accurately determine the facts as regards the published
1958," subscribed and sworn to on February 10, 1993, in relation to another rumors and reports of corruption in the judiciary;
article of Jurado. 10 Veto deposed that on Tuesday, January 5, 1993 he had
"hosted a lunch party at the Officers' Lounge, 7th Floor of the Equitable 2) that despite receipt of this letter by a responsible
Banking Corporation Building, Ermita Branch . . . upon prior permission . . . individual at the business address of Jurado, the latter failed
obtained;" that the "expenses for said party were exclusively from my personal to appear at the time and place indicated; that instead, in his
funds and the food was prepared in my house by my wife and served by my column in the issue of Manila Standard of February 4, 1993,
house help . . . and four (4) waiters . . . hired from the nearby Barrio Fiesta Jurado stated that he was told he was being summoned by
Restaurant;" that among the invited guests "were members of the Supreme the Ad Hoc Committee, but "(t)here is really no need to
Court and Court of Appeals who . . . were my friends of forty years since our summon me. The committee can go by the many things I have
days in law school;" and that the party was held in the lounge of the bank written in my column about corruption in the judiciary. Many
instead of in "my residence" "unlike in former years . . . because my birthday of these column items have been borne out by subsequent
happened to fall on a working day and my friends from the Equitable Banking events."
Corporation . . . suggested that I hold it there (at the lounge) for their
convenience because my residence is far from down town." 3) that another letter was sent by the Chairman to Jurado,
dated February 5, 1993, reiterating the Committee's
However, this birthday luncheon of Atty. Veto was reported in Jurado's column invitation, viz.:
(in the Manila Standard issues of January 12 and 28, 1993) as having been
"hosted (by the Equitable Bank) at its penthouse mainly for some justices, It is regretted that you failed to respond to the invitation of
judges, prosecutors and law practitioners. . . ." And upon this premise, Jurado the Ad Hoc Committee to appear at its session of February 4,
indulged in the following pontification: "When those in the judiciary fraternize 1992. All indications are that you are the person with the
this way, what chances before the courts do other lawyers, who are not most knowledge about corruption in the judiciary and hence,
"batang club," have against others who belong to the fraternity? In the case of appear to be best positioned to assist the Ad Hoc Committee
prosecutors and fiscals, what chances do opposing counsels have against those in its function of obtaining evidence, or leads, on the matter.
in the fraternity?" (column of January 12, 1993) You have, I believe, expressed more than once the laudable
desire that the judiciary rid itself of the incompetents and the
c. Information from Ad Hoc Committee misfits in its ranks, and we believe you will want to help the
Court do precisely that, by furnishing the Committee with
At about this time, too, the Court received information from the Ad competent evidence, testimonial or otherwise. Clearly, the
Hoc Committee (created by Administrative Order No. 11-93) to the following purging process cannot be accomplished without proof,
effect: testimonial or otherwise, as you must no doubt realize, being
yourself a lawyer.
1) that by letter dated February 1, 1993, the Chairman of
the Ad Hoc Committee extended an invitation to Atty.

157
We would like you to know that the Ad Hoc Committee the determination of whether or not the allegations made by
created by Administrative Order No. 11-93 is simply a fact- Atty. Emil Jurado herein specified are true;
finding body. Its function is evidence-gathering. Although
possessed of the authority to maintain and enforce order in 2) that the Clerk of Court SEND COPIES of the PLDT letter and
its proceedings, and to compel obedience to its processes, it affidavit, and of the affidavit of Atty. William Veto to Atty.
is not an adjudicative body in the sense that it will pronounce Emil Jurado, c/o the Manila Standard, Railroad & 21 Streets,
persons guilty or innocent, or impose sanctions, on the basis Port Area, Manila; and copies of the same PLDT letter and
of such proofs as may be presented to it. That function is affidavit, to Philway Travel Corporation, M-7 Prince Tower
reserved to the Supreme Court itself, in which it is lodged by Cond., Tordesillas St., Salcedo Village, Makati, Metro Manila;
the Constitution and the laws. Thus, at the conclusion of its and Citi-World Travel Mart Corp., Suite 3-4 Ramada Midtown
evidence-gathering mission, the Ad Hoc Committee will Arcade, M. Adriatico Street, Ermita, Manila;
submit its report and recommendations to the Court which
will then take such action as it deems appropriate. 3) that within five (5) days from their receipt of notice of this
resolution and of copies of the PLDT letter and affidavit, the
The Ad Hoc Committee has scheduled hearings on the 11th Philway Travel Corporations and the Citi-World Travel Mart
and 12th of February, 1993. Mr. Justice Hilario G. Davide, Jr. Corporation each FILE A SWORN STATEMENT affirming or
will preside as Chairman at these hearings since I will be denying the contents of the PLDT affidavit; and
unable to do so in view of earlier commitments. We reiterate
our invitation that you come before the Committee, and you 4) that within fifteen (15) days from his receipt of notice of
may opt to appear either on the 11th or 12th of February, this resolution and of copies of said PLDT letter and affidavit
1993, at 2 o'clock in the afternoon." and of the affidavit of Atty. Veto, Atty. Emil Jurado FILE A
COMMENT on said affidavits as well as the allegations made
4) that notwithstanding receipt of this second letter by a by him in his columns, herein specified, in which he shall
certain Mr. Gerry Gil of the Manila Standard, Jurado still make known to the Court the factual or evidentiary bases of
failed to appear. said allegations.

4. Statement of the Case: b. Jurado's Comment dated


Resolutions and Pleadings March 1, 1993.

a. Resolution of the February 16, 1993 As directed, Jurado filed his comment, dated March 1, 1993.

After considering all these circumstances, the Court by Resolution dated He explained that he had not "snubbed" the invitation of the Ad
February 16, 1993, ordered: Hoc Committee, it being in fact his desire to cooperate in any investigation on
corruption in the judiciary as this was what "his columns have always wanted
1) that the matter dealt with in the letter and affidavit of the to provoke." What had happened, according to him, was that the first invitation
PLDT herein mentioned be duly DOCKETED, and hereafter of the Ad Hoc Committee was routed to his desk at the Manila Standard office
considered and acted upon as an official Court proceeding for on the day of the hearing itself, when it was already impossible to cancel

158
previous professional and business appointments; and the second invitation, "if authored by Chief Inspector Laciste Jr., of the Narcotics
it was ever received" by his office, was never routed to him; and he had yet to Branch of the RPIU, South CAPCOM, PNP, addressed to Vice-
see President Joseph E. Estrada, a copy of which he had received
it." 11 If the impression had been created that he had indeed "snubbed" the Ad in the news room of the Manila Standard. The existence of
Hoc Committee, he "sincerely apologizes." the report had been affirmed by a reporter of the Manila
Standard, Jun Burgos, when he appeared at the hearing of
He averred that his columns are self-explanatory and reflect his beliefs, and the Ad Hoc Committee on January 11, 1993.
there was no need to elaborate further on what he had written. He expressed
his firm belief that justice can be administered only by a judicial system that is 5. His observations in his columns of January 6 and 29, 1993
itself just and incorruptible, and the hope that this Court would view his regarding the nominations of relatives in the Judicial and Bar
response in this light. Council echo the public perception, and constitute fair
comment on a matter of great public interest and concern.
He also made the following specific observations:
6. His columns with respect to the "RTC's Magnificent Seven"
1. The affidavit of Antonio Samson of the PLDT dated (October 20, 1992); the "RTC-Makati's Dirty Dozen" (October
February 9, 1993 was an assertion of the affiant's belief and 2, 1992, November 9, 1992, and December 1, 1992); the
opinion and he (Jurado) would not comment on it except to "Magnificent Seven" in the Supreme Court (February
say that while Mr. Samson is entitled to his beliefs and 3,1993); 12 the lady secretary of an RTC Judge (October 27,
opinions, these "bind only him and the PLDT." 1992); and the former Court of Appeals Justice "fixing" cases
(January 29, 1993) were all based on information given to him
2. Atty. William Veto's affidavit substantially corroborated in strict confidence by sources he takes to be highly reliable
what he had written in vital details; hence, further and credible; and he could not elaborate on the factual and
substantiation would be surplusage. In fact, the Supreme evidentiary basis of the information without endangering his
Court had confirmed the story in its press statement quoted sources.
by him (Jurado) in his January 30, 1993 column. His column
about the Veto party constitutes fair comment on the public By necessity and custom and usage, he relies as a journalist
conduct of public officers. not only on first-hand knowledge but also on information
from sources he has found by experience to be trustworthy.
3. The column about Executive Judge Rosalio de la Rosa He cannot compromise these sources. He invokes Republic
merely summarized the position of Judge Teresita Dy-Liaco Act No. 53, as amended by R.A. No. 1477, exempting the
Flores on the actuations of Judge de la Rosa and called the publisher, editor or reporter of any publication from revealing
attention of the Court thereto, Judge Flores' complaint, a the source of published news or information obtained in
copy of which had been sent to the Court Administrator, confidence, and points out that none of the matters subject
being on meriting its attention. of his columns has any bearing on the security of the state.

4. The "factual and evidentiary basis" of his column of January c. Resolution of March 2, 1993
30, 1993 was the police report on seven (7) Makati judges

159
Subsequent to the Resolution of February 16, 1993 and before the filing of capacity as "a full-time journalist" "who coincidentally happens to be a member
Jurado's comment above mentioned, the Court received the affidavits of the of the bar at the same time," and granted him fifteen (15) days from notice" to
executive officials of the two travel agencies mentioned in the affidavit of PLDT qualify his comment and/or assert his rights and privileges . . . in an appropriate
Executive Vice-President Vicente R. Samson — in relation to the Jurado column manifestation or pleading."
of February 8, 1993: that of Mr. Ermin Garcia, Jr., President of the Citi-World
Travel Mart Corporation, dated February 22, 1993, and that of Mrs. Marissa de f. Jurado's Manifestation
la Paz, General Manager of Philway Travel Corporation, dated February 19, dated March 31, 1993
1993. Both denied ever having made any travel arrangements for any of the
Justices of the Supreme Court or their families to Hongkong, clearly and Again in response, Jurado filed a "Manifestation" under date of March 31,
categorically belying the Jurado article. 1993. He moved for the termination of the proceeding on the following posited
premises:
By Resolution dated March 2, 1993, the Court directed that Jurado be given
copies of these two (2) affidavits and that he submit comment thereon, if 1. The court has no administrative supervision over him as a
desired, within ten (10) days from receipt thereof. member of the press or over his work as a journalist.

d. Jurado's Supplemental Comment 2. The present administrative matter is not a citation for (a)
with Request for Clarification direct contempt as there is no pending case or proceeding
out of which a direct contempt charge against him may arise,
In response, Jurado filed a pleading entitled "Supplemental Comment with or (b) indirect contempt as no formal charge for the same has
Request for Clarification" dated March 15, 1993. In this pleading he alleged that been laid before the court in accordance with Section 3 (Rule
the sworn statements of Mr. Ermin Garcia, Jr. and Mrs. Marissa de la Paz are 71) of the Rules of Court.
affirmations of matters of their own personal knowledge; that he (Jurado) had
no specific knowledge of "the contents of these, let alone their veracity;" and 3. His comments would be more relevant and helpful to the
that the affidavits "bind no one except the affiants and possibly the PLDT." He Court if taken together with the other evidence and reports
also sought clarification on two points — as to the capacity in which he is being of other journalists gathered before the Ad Hoc Committee.
cited in these administrative proceedings — whether "as full time journalist or He perceives no reason why his comments should be singled
as a member of the bar," and why he is being singled out, from all his other out and taken up in a separate administrative proceeding.
colleagues in media who had also written about wrongdoings in the judiciary,
and required to comment in a specific administrative matter before the Court
It is against this background of the material facts and occurrences that the
sitting En Banc — so that he might "qualify his comment and/or assert his right
Court will determine Jurado's liability, if any, for the above mentioned
and privileges . . . .
statements published by him, as well as "such action as may be appropriate" in
the premises, as the PLDT asks.
e. Resolution of March 18, 1993
5. Norms for Proper Exercise of
Through another Resolution, dated March 18, 1993, the Court directed the Press Freedom
Clerk of Court to inform Jurado that the Resolutions of February 16 and March
2, 1993 had been addressed to him (according to his own depiction) in his
a. Constitutional Law Norms

160
In Zaldivar v. Gonzalez (166 SCRA 316 [1988]), the Court underscored the The freedom of the press in itself
importance both of the constitutional guarantee of free speech and the reality presupposes an independent judiciary
that there are fundamental and equally important public interests which need through which that freedom may, if
on occasion to be balanced against and accommodated with one and the other. necessary, be vindicated. And one of the
There, the Court stressed the importance of the public interest in the potent means for assuring judges their
maintenance of the integrity and orderly functioning of the administration of independence is a free press. (Concurring in
justice. The Court said: 13 Pennekamp v. Florida, 328 U.S. 331 at 354-
356 [1946]).
The principal defense of respondent Gonzalez is that he was
merely exercising his constitutional right of free speech. He Mr. Justice. Malcolm of this Court expressed the same
also invokes the related doctrines of qualified privileged thought in the following terms:
communications and fair criticism in the public interest.
The Organic Act wisely guarantees freedom
Respondent Gonzalez is entitled to the constitutional of speech and press. This constitutional
guarantee of free speech. No one seeks to deny him that right must be protected in its fullest extent.
right, least of all this Court. What respondent seems unaware The Court has heretofore given evidence of
of is that freedom of speech and of expression, like all its tolerant regard for charges under the
constitutional freedoms, is not absolute and that freedom of Libel Law which come dangerously close to
expression needs on occasion to be adjusted to and its violation. We shall continue in this
accommodated with the requirements of equally important chosen path. The liberty of the citizens must
public interests. One of these fundamental public interests is be preserved in all of its completeness. But
the maintenance of the integrity and orderly functioning of license or abuse of liberty of the press and
the administration of justice. There is no antinomy between of the citizens should not be confused with
free expression and the integrity of the system of liberty in its true sense. As important as is
administering justice. For the protection and maintenance of the maintenance of an unmuzzled press and
freedom of expression itself can be secured only within the the free exercise of the rights of the citizens
context of a functioning and orderly system of dispensing is the maintenance of the independence of
justice, within the context, in other words, of viable the Judiciary. Respect for the Judiciary
independent institutions for delivery of justice which are cannot be had if persons are privileged to
accepted by the general community. As Mr. Justice scorn a resolution of the court adopted for
Frankfurter put it: good purposes, and if such persons are to
be permitted by subterranean means to
. . . A free press is not to be preferred to an diffuse inaccurate accounts of confidential
independent judiciary, nor an independent proceedings to the embarrassment of the
judiciary to a free press. Neither has parties and the court. (In Re Severino
primacy over the other; both are Lozano and Anastacio Quevedo, 54 Phil. 801
indispensable to a free society. at 807 [1930]).

161
b. Civil Law Norms improper omission or emphasis. I recognize the duty to air
the other side and the duty to correct substantive errors
The Civil Code, in its Article 19 lays down the norm for the proper exercise of promptly.
any right, constitutional or otherwise, viz.:
1. Scrupulous news gathering and beat
Art. 19. Every person must, in the exercise of his rights and in coverage is required. Relying exclusively on
the performance of his duties, act with justice, give everyone the telephone or on what fellow reporters
his due, and observe honesty and good faith. say happened at one's beat is irresponsible.

The provision is reflective of the universally accepted precept of "abuse of 2. The ethical journalist does not bend the
rights," "one of the most dominant principles which must be deemed always facts to suit his biases or to please
implied in any system of law." 14 It parallels too "the supreme norms of justice benefactors. He gathers all the facts, forms
which the law develops" and which are expressed in three familiar Latin a hypothesis, verifies it and arrives at an
maxims: honeste vivere, alterum non laedere and jus suum quique tribuere (to honest interpretation of what happened.
live honorably, not to injure others, and to render to every man his due). 15
3. The duty to air the other side means that
Freedom of expression, the right of speech and of the press is, to be sure, the journalist must contact the person or
among the most zealously protected rights in the Constitution. But every persons against whom accusations are
person exercising it is, as the Civil Code stresses, obliged "to act with justice, lodged. A court proceeding provides for this
give everyone his due, and observe honesty and good faith." The constitutional balance by presenting the prosecution and
right of freedom of expression may not be availed of to broadcast lies or half- then the defense. A news story or editorial
truths — this would not be "to observe honesty and good faith;" it may not be column that fails to present the other side is
used to insult others; destroy their name or reputation or bring them into like a court that does not hear the side of
disrepute. — this would not be "to act with justice" or "give everyone his due." the defense.

c. Philippine Journalist's 4. Correcting substantive errors is the mark


Code of Ethics of mature newspapers like the New York
Times, the International Herald Tribune, and
Also relevant to the determination of the propriety of Jurado's acts subject of some of Manila's papers.
the inquiry at bar are the norms laid down in "The Philippine Journalist's Code
of Ethics." The Code was published in the issue of February 11, 1993 of the d. Right to Private Honor
Manila Standard, for which Jurado writes, as part of the paper's "Anniversary and Reputation
Supplement." The first paragraph of the Code, 16 and its corresponding
annotations, read as follows: In the present proceeding, there is also involved an acknowledged and
important interest of individual persons: the right to private reputation. Judges,
1. I shall scrupulously report and interpret the news, taking by becoming such, are commonly and rightly regarded as voluntarily subjecting
care not to suppress essential facts nor to distort the truth by themselves to norms of conduct which embody more stringent standards of

162
honesty, integrity, and competence than are commonly required from private and that the trip reportedly was arranged by the travel agency patronized by
persons. 17 Nevertheless, persons who seek or accept from appointment to the this public utility firm," supra is — in the context of the facts under which it was
Judiciary cannot reasonably be regarded as having thereby forfeited any right made — easily and quickly perceived as a transparent accusation that the PLDT
whatsoever to private honor and reputation. For so to rule will be simply, in the had bribed or "rewarded" six (6) justices for their votes in its favor in the case
generality of cases, to discourage all save those who feel no need to maintain of "Philippine Long Distance Telephone Company v. Eastern Telephone
their self-respect as a human being in society, from becoming judges, with Philippines, Inc. (ETPI)," G.R. No. 94374, 18 by not only paying all their expenses
obviously grievous consequences for the quality of our judges and the quality — i.e., hotel accommodations and all other expenses for the trip — but also by
of the justice that they will dispense. Thus, the protection of the right of having one of its own travel agencies arrange for such a trip.
individual persons to private reputations is also a matter of public interest and
must be reckoned with as a factor in identifying and laying down the norms As already stated, that allegation was condemned as a lie, an outright
concerning the exercise of press freedom and free speech. fabrication, by the PLDT itself, through one of its responsible officers, Mr.
Vicente Samson, as well as by the heads of the two (2) travel agencies
Clearly, the public interest involved in freedom of speech and the individual "patronized by it," Ermin Garcia, Jr. and Marissa de la Paz, supra.
interest of judges (and for that matter, all other public officials) in the
maintenance of private honor and reputation need to be accommodated one That categorical denial logically and justly placed on Jurado the burden of
to the other. And the point of adjustment or accommodation between these proving the truth of his grave accusation, or showing that it had been made
two legitimate interest is precisely found in the norm which requires those through some honest mistake or error committed despite good faith efforts to
who, invoking freedom of speech, publish statements which are clearly arrive at the truth, or if unable to do either of these things, to offer to atone for
defamatory to identifiable judges or other public officials to exercise bona the harm caused.
fide care in ascertaining the truth of the statements they publish. The norm
does not require that a journalist guarantee the truth of what he says or But the record discloses that Jurado did none of these things. He exerted no
publishes. But the norm does prohibit the reckless disregard of private effort whatever to contest or qualify in any manner whatever the emphatic
reputation by publishing or circulating defamatory statements without declaration of PLDT Vice-President Samson that —
any bona fide effort to ascertain the truth thereof. That this norm represents
the generally accepted point of balance or adjustment between the two
While the name of the public utility which supposedly
interests involved is clear from a consideration of both the pertinent civil law
financed the alleged vacation of the Justices in Hongkong has
norms and the Code of Ethics adopted by the journalism profession in the
not been disclosed in the Jurado column, the publication
Philippines. 17a
thereof, taken in relation to the spate of recent newspaper
reports alleging that the decision of the Supreme Court,
6. Analysis of Jurado Columns penned by Mr. Justice Hugo E. Gutierrez, Jr., in the pending
case involving the PLDT and Eastern Telecommunications
a. Re "Public Utility Firm" Phils., Inc. was supposedly ghost written by a lawyer of PLDT,
gives rise to the innuendo or unfair inference that Emil Jurado
Now, Jurado's allegation in his column of February 8, 1993 — "that six justices, is alluding to PLDT in the said column; and, this in fact was
their spouses, children and grandchildren (a total of 36 persons) spent a the impression or perception of those who talked to me and
vacation in Hong Kong some time last year — and that luxurious hotel the other officers of the PLDT after having read the Jurado
accommodations and all their other expenses were paid by a public utility firm column.

163
The record shows that he made no effort whatsoever to impugn, modify, clarify If relying on second-hand sources of information is, as the Journalists' Code
or explain Samson's positive assertion that: states, irresponsible, supra, then indulging in pure speculation or gossip is even
more so; and a failure to "present the other side" is equally reprehensible,
. . . (the PLDT) has never paid for any such trip, hotel or other being what in law amounts to a denial of due process.
accommodations for any justice of the Supreme Court or his
family during their vacation, if any, in Hongkong last year. It is b. Re Equitable Bank Party
not even aware that any of the justices or their families have
made the trip referred to in the Jurado column; Jurado is also shown by the record to have so slanted his report of the birthday
luncheon given by Atty. William Veto (the "in-house counsel of Equitable
. . . neither Atty. Emil P. Jurado nor any one in his behalf has Banking Corporation since 1958") as to project a completely false depiction of
ever spoken to me or any other responsible officer of PLDT it. His description of that affair (in the Manila Standard issues of January 12 and
about the matter. . .; 28, 1993) as having been hosted by the Equitable Bank "at its penthouse mainly
for some justices, judges, prosecutors and law
. . . PLDT . . . (never) talked to or made arrangements with any practitioners . . . , carries the sanctimonious postscript already quoted, putting
travel agency or any person or entity in connection with any the rhetorical question about how such fraternization affects the chances in
such alleged trip of the Justices and their families to court of lawyers outside that charmed circle.
Hongkong, much less paid anything therefor to such agencies,
fully or in part, in the year 1992 as referred to in Par. 2 When confronted with Veto's affidavit to the effect that the party was given by
hereinabove; him at his (Veto's) own expense, the food having been prepared by his wife in
his house, and served by his house help and waiters privately hired by him; that
What appears from the record is that without first having made an effort to he had invited many persons including friends of long standing, among them
talk to any one from the PLDT or the Supreme Court to ascertain the veracity of justices of the Supreme Court and the Court of Appeals; and that the party had
his serious accusation, Jurado went ahead and published it. been held in the Officers' Lounge of Equitable Bank, instead of his home, as in
years past, to suit the convenience of his guests because his birthday fell on a
His explanation for having aired the accusation consists simply of a declaration working day, Jurado could not, or would not deign to, contradict any of those
that Samson's affidavit, as well as the affidavits of the heads of the two travel statements. He merely stated that Veto's affidavit substantially corroborated
agencies regularly patronized by it, were just assertions of the affiants' belief what he had written in vital details, which is obviously far from correct.
and opinion; and that he (Jurado) would not comment on them except to say
that while they are entitled to their beliefs and opinions, these were binding on Most importantly, the record does not show that before he published that
them only. This is upon its face evasion of duty of the most cavalier kind; story, Jurado ever got in touch with Veto or anyone in Equitable Bank, Ermita
sophistry of the most arrant sort. What is made plain is that Jurado is in truth Branch, to determine the accuracy of what he would later report. If he did, he
unable to challenge any of the averments in the affidavits of PLDT and its travel would quickly have learned that his sources, whoever or whatever they were,
agencies, or otherwise substantiate his accusation, and that his is a mere resort were not to be relied upon. If he did not, he was gravely at fault — at the very
to semantics to justify the unjustifiable. What is made plain is that his least for disregarding the Journalist's Code of Ethics — in failing to exert bona
accusation is false, and possesses not even the saving grace of honest error. fide efforts to verify the accuracy of his information.

164
In either case, his publication of the slanted, therefore misleading and false, This is yet another accusation which Jurado is unable to substantiate otherwise
report of the affair is censurable. His proffered explanation that the justices than, as also already pointed out, by invoking unnamed and confidential
having confirmed their presence at the luncheon, thus corroborating what he sources which he claims he considers highly credible and reliable and which
had written in vital details and making further substantiation unnecessary, and would be imperiled by elaborating on the information furnished by them. He
that his report constituted fair comment on the public conduct of public would justify reliance on those sources on grounds of necessity, custom and
officers, obviously does not at all explain why a party given by Atty. Veto was usage and claim the protection of Republic Act No. 53, as amended by Republic
reported by him as one tendered by Equitable Bank. The only conclusion that Act No. 1477 from forced, revelation of confidential news sources except when
may rationally be drawn from these circumstances is that Jurado, unable to demanded by the security of the state. 20
advance any plausible reason for the conspicuous divergence between what in
fact transpired and what he reported, again resorts to semantics and sophistry Surely it cannot be postulated that the law protects a journalist who
to attempt an explanation of the unexplainable. Paraphrasing the Code of deliberately, prints lies or distorts the truth; or that a newsman may escape
Ethics, he failed to scrupulously report and interpret the news; on the contrary, liability who publishes derogatory or defamatory allegations against a person
his failure or refusal to verify such essential facts as who really hosted and or entity, but recognizes no obligation bona fide to establish beforehand the
tendered the luncheon and spent for it, and his playing up of the Bank's factual basis of such imputations and refuses to submit proof thereof when
supposed role as such host have resulted in an improper suppression of those challenged to do so. It outrages all notions of fair play and due process, and
facts and a gross distortion of the truth about them. reduces to uselessness all the injunctions of the Journalists' Code of Ethics to
allow a newsman, with all the potential of his profession to influence popular
c. Re Other Items belief and shape public opinion, to make shameful and offensive charges
destructive of personal or institutional honor and repute, and when called
Jurado disregarded the truth again, and in the process vilified the Supreme upon to justify the same, cavalierly beg off by claiming that to do so would
Court, in the item in his column of February 3, 1993 already adverted to, 19 and compromise his sources and demanding acceptance of his word for the
more fully quoted as follows: reliability of those sources.

When lawyers speak of the "Magnificent Seven" one has to Jurado's other writings already detailed here are of the same sort. While it
make sure which group they are referring to. Makati's might be tedious to recount what has already been stated about the nature
"Magnificent Seven" are a bunch of Makati regional trial and content of those writings, it is necessary to do so briefly in order not only
court judges who fix drug related cases. The "Magnificent to stress the gravity he makes, but also to demonstrate that his response to the
Seven" in the Supreme Court consists of a group of justices call for their substantiation has been one of unvarying intransigence: an
who vote as one." advertance to confidential sources with whose reliability he professes
satisfaction and whom fuller disclosure would supposedly compromise.
About the last (italicized) statement there is, as in other accusations of Jurado,
not a shred of proof; and the volumes of the Supreme Court Reports Annotated There can be no doubt of the serious and degrading character — not only to
(SCRA) in which are reported the decisions of the Supreme Court En Banc for the Court of Appeals, but also to the judiciary in general — of his columns of
the year 1992 (January to December) and for January 1993, divulge not a single November 9, 1992 and January 29, 1993 concerning an unnamed former justice
non-unanimous decision or resolution where seven (7) justices voted "as one," of the Court of Appeals who had allegedly turned "fixer" for five of the Court's
nor any group of decisions or resolutions where the recorded votes would even divisions and who, for the right price, could guarantee that a party's lawyer
suggest the existence of such a cabal. could write his own decision for and in the name of the ponente; and of his

165
column of March 24, 1993 to the effect that anywhere from P30,000 to referred to was Judge Joselito de la Rosa, the son-in-law, not
P50,000 could buy a temporary restraining order from a regional trial court in the nephew, of Justice Relova. Had he bothered to make any
Manila. further verification, he would have learned that at all sessions
of the Council where the nomination of Judge Joselito de la
The litany of falsehoods, and charges made without bona fide effort at Rosa was considered, Justice Relova not only declined to take
verification or substantiation, continues: part in the deliberations, but actually left the conference
room; and he would also have learned that Judge Rosalio de
(a) Jurado's column of January 30, 1993 about eight (8) la Rosa had never been nominated — indeed, to this date, he
Makati judges who were "handsomely paid" for decisions has not been nominated to the Court of Appeals.
favoring drug-traffickers and other big-time criminals was
based on nothing more than raw intelligence contained is (d) He has recklessly slandered the Judicial and Bar Council by
confidential police report. It does not appear that any part of charging that it has improperly made nominations to the
that report has been reliably confirmed. Court of Appeals on considerations other than of merit or
fitness, through the manipulations of the Council's Secretary,
(b) He has refused to offer any substantiation, either before Atty. Daniel Martinez; or because the nominee happens to be
the Ad Hoc Committee or in this proceeding, for his report of a relative of a member of the Council (e.g., Judge Joselito de
October 27, 1992 concerning an unnamed lady secretary of a la Rosa, initially identified as Judge Rosalio de la Rosa) or of
Makati RTC Judge who, besides earning at least P10,000 for the Supreme Court (he could name none so situated); or has
making sure a case is raffled off to a "sympathetic" judge, can powerful political sponsor (referring to RTC Judge Conrado
also arrange the issuance of attachments and injunctions for Vasquez, Jr., son and namesake of the Ombudsman).
a fee of one (1%) percent over and above usual premium for Acceptance of the truth of these statements is precluded, not
the attachment or injunction bond, a fee that in one instance only by the familiar and established presumption of regularity
amounted to P300,000. in the performance of official functions, but also, and even
more conclusively by the records of the Judicial and Bar
Council itself, which attest to the qualifications of Atty. Daniel
(c) His report (columns of January 16 and 29, 1993) that the
Martinez, Clerk of Court of the Supreme Court, Judge Joselito
Judicial and Bar Council acted contrary to ethics
de la Rosa, and Judge Conrado Vasquez, Jr., for membership
and delicadeza in nominating to the Court of Appeals a son
in the Appellate Tribunal;
and a nephew of its members is completely untrue. The most
cursory review of the records of the Council will show that
since its organization in 1987, there has not been a single (e) Equally false is Jurado's report (column of January 25,
instance of any son or nephew of a member of the Council 1993) that nomination to the Court of Appeals of some
being nominated to the Court of Appeals during said worthy individuals like Quezon City RTC Judge Maximiano
member's incumbency; and in this connection, he mistakenly Asuncion, and Atty. Raul Victorino (who was closely identified
and carelessly identified RTC Judge Rosalio de la Rosa as the with former Senate President Salonga) had been blocked
nephew of Justice (and then Member of the Judicial and Bar because they had "incurred the ire of the powers that be,"
Council) Lorenzo Relova when the truth, which he the truth, which could very easily have been verified, being
subsequently learned and admitted, was that the person that a pending administrative case against Judge Asuncion
had stood in the way of his nomination, and since Mr.

166
Victorino had been sponsored or recommended by then 1975 (Sec. 15, Par. IV), 21 empowers
Senate President Salonga himself, the fact that he was not Executive Judges to act on all applications
nominated can hardly be attributed to the hostility or for provisional remedies (attachments,
opposition of persons in positions of power or influence. injunctions, or temporary restraining
orders, receiverships, etc.), or on
(f) Jurado was similarly unfair, untruthful and unfoundedly interlocutory matters before raffle, in order
judgmental in his reporting about Executive Judge Rosalio de to "balance the workload among courts and
la Rosa of the Manila Regional Trial Court as: judges, (Sec. l, par. 2, id.), and exercise such
other powers and prerogatives as may in his
(1) having been nominated to the Court of judgment be necessary or incidental to the
Appeals by the Judicial and Bar Council performance of his functions as a Court
chiefly, if not only, by reason of being the Administrator" (Sec. 7, par. 1, id.) — these
nephew of Justice Relova and the cousin of provisions being broad enough, not only to
Chief Justice Narvasa, the truth, as already authorize unilateral action by the Executive
pointed out, being that Judge Rosalio de la Judge himself on provisional remedies and
Rosa had never been thus nominated to the interlocutory matters even prior to raffle of
Court of Appeals, the nominee having been the main case, but also to delegate the
Judge Joselito de la Rosa, the son-in-law authority to act thereon to other judges.
(not nephew) of Justice Relova; and
Jurado does not explain why: (1) he made
(2) having discarded the rule that cases no effort to verify the state of the rules on
seeking provisional remedies should be the matter; (2) he precipitately assumed
raffled off to the judges (column of January that the views of Judge Teresita Dy-Liaco
28, 1993) and adopted a system of farming Flores, whose complaint on the subject he
out applications for temporary restraining claims he merely summarized, were
orders, etc., among all the branches of the necessarily correct and the acts of Judge de
court; here again, Jurado is shown to have la Rosa necessarily wrong or improper; and
written without thinking, and made (3) he did not try to get Judge de la Rosa's
statements without verifying the accuracy side at all.
of his information or seeking the views of
the subject of his pejorative statements; the Common to all these utterances of Jurado is the failure to undertake
merest inquiry would have revealed to him even the most cursory verification of their objective truth; the
that while Circular No. 7 dated September abdication of the journalist's duty to report and interpret the news
23, 1974 requires that no case may be with scrupulous fairness; and the breach of the law's injunction that a
assigned in multi-sala courts without raffle person act with justice, give everyone his due and observe honesty
(for purposes of disposition on the merits), and good faith both in the exercise of his rights and in the
Administrative Order No. 6, dated June 30, performance of his duties.

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7. Jurado's Proffered Excuses Contempt, by reason of publications relating to court and to
and Defenses court proceedings, are of two kinds. A publication which
tends to impede, obstruct, embarrass or influence the courts
The principle of press freedom is invoked by Jurado in justification of these in administering justice in a pending suit or proceeding,
published writings. That invocation is obviously unavailing in light of the basic constitutes criminal contempt which is summarily punishable
postulates and the established axioms or norms for the proper exercise of by courts. This is the rule announced in the cases relied upon
press freedom earlier set forth in this opinion. 22 by the majority. A publication which tends to degrade the
courts and to destroy public confidence in them or that which
Jurado next puts in issue this Court's power to cite him for contempt. The issue tends to bring them in any way into disrepute, constitutes
is quickly disposed of by adverting to the familiar principle reiterated inter likewise criminal contempt, and is equally punishable by
alia in Zaldivar v. Gonzales: 23 courts. In the language of the majority, what is sought, in the
first kind of contempt, to be shielded against the influence of
newspaper comments, is the all-important duty of the courts
. . . (T)he Supreme Court has inherent power to punish for
to administer justice in the decision of a pending case. In the
contempt, to control in the furtherance of justice the conduct
second kind of contempt, the punitive hand of justice is
of ministerial officers of the Court including lawyers and all
extended to vindicate the courts from any act or conduct
other persons connected in any manner with a case before
calculated to bring them into disfavor or to destroy public
the Court (In re Kelly, 35 Phil. 944 [1916]; In re Severino
confidence in them. In the first, there is no contempt where
Lozano and Anastacio Quevedo, 54 Phil. 801 (1930]; In
there is no action pending, as there is no decision which
re Vicente Pelaez, 44 Phil. 567 [1923]; and In re Vicente Sotto,
might in any be influenced by the newspaper publication. In
82 Phil. 595 [1949]). The power to punish for contempt is
the second, the contempt exists, with or without a pending
"necessary for its own protection against improper
case, as what is sought to be protected is the court itself and
interference with the due administration of justice," "(i)t is
its dignity. (12 Am. Jur. pp. 416-417.) Courts would lose their
not dependent upon the complaint of any of the parties
utility if public confidence in them is destroyed.
litigant" (Halili v. Court of Industrial Relations, 136 SCRA 112
[1985]; Andres v. Cabrera, 127 SCRA 802 [1984]; Montalban
v. Canonoy, 38 SCRA 1 [1971]; Commissioner of Immigration The foregoing disposes of Jurado's other contention that the present
v. Cloribel, 20 SCRA 1241 [1967]; Herras Teehankee v. administrative matter is not a citation for direct contempt, there being no
Director of Prisons, 76 Phil. 630 [1946]). pending case or proceeding out of which a charge of direct contempt against
him may arise; this, even without regard to the fact that the statements made
by him about sojourn in Hongkong of six Justices of the Supreme Court were
Contempt is punishable, even if committed without relation to a pending case.
clearly in relation to a case involving two (2) public utility companies, then
Philippine jurisprudence parallels a respectable array of English decisions
pending in this Court. 26
holding contumacious scurrilous attacks against the courts calculated to bring
them into disrepute, even when made after the trial stage or after the end of
the proceedings. The original doctrine laid down in People vs. Alarcon 24 — that His theory that there is no formal charge against him is specious. His published
there is no contempt if there is no pending case — has been abandoned in statements about that alleged trip are branded as false in no uncertain terms
subsequent rulings of this Court which have since adopted the Moran dissent by the sworn statement and letter of Vice-President Vicente R. Samson of the
therein, 25 viz.: Philippine Long Distance Telephone Company which:

168
(a) "emphatically and categorically" deny that PLDT had made media who were only asked to explain their reports and comments about
any arrangements with any travel agency, or with the two wrongdoing in the judiciary to the Ad Hoc Committee. The answer is that upon
travel agencies it patronized or retained, or paid anything, on all that has so far been said, the Court may hold anyone to answer for
account of such alleged trip; utterances offensive to its dignity, honor or reputation which tend to put it in
disrepute, obstruct the administration of justice, or interfere with the
(b) positively affirm (i) that PLDT was "not even aware that disposition of its business or the performance of its functions in an orderly
any of the justices or their families . . . (had) made the trip manner. Jurado has not been singled out. What has happened is that there
referred to in the Jurado column," and (ii) that neither Atty. have been brought before the Court, formally and in due course, sworn
Emil P. Jurado nor anyone in his behalf has ever spoken to . . . statements branding his reports as lies and thus imposing upon him the
(said Mr. Samson) or any other responsible officer of PLDT alternatives of substantiating those reports or assuming responsibility for their
about the matter . . .; and publication.

(c) beseech the Court to "take such action (on the matter) as Jurado would have the Court clarify in what capacity — whether a journalist, or
may be appropriate. as a member of the bar — he has been cited in these proceeding. Thereby he
resurrects the issue he once raised in a similar earlier proceeding: that he is
As already stated, the Court, in its Resolution of February 16, 1993: being called to account as a lawyer for his statements as a
(a) ordered the subject of Samson's letter and affidavit docketed as an official journalist. 27 This is not the case at all. Upon the doctrines and principles
Court proceeding to determine the truth of Jurado's allegations about it; and already inquired into and cited, he is open to sanctions as journalist who has
(b) directed also that Jurado be furnished copies of Atty. William Veto's misused and abused press freedom to put the judiciary in clear and present to
affidavit on the luncheon party hosted by him (which Jurado reported as one the danger of disrepute and of public obdium and opprobrium, detriment and
given by Equitable Bank) and that Jurado file comment on said affidavits as well prejudice of the administration of justice. That he is at the same time a
as allegations in specified columns of his. Jurado was also furnished copies of member of the bar has nothing to do with the setting in of those sanctions,
the affidavits later submitted by the two travel agencies mentioned in although it may aggravate liability. At any rate, what was said about the matter
Samson's statement, and was required to comment thereon. in that earlier case is equally cogent here:

It was thus made clear to him that he was being called to account for his Respondent expresses perplexity at being called to account
published statements about the matters referred to, and that action would be for the publications in question in his capacity as a member of
taken thereon against him as "may be appropriate." That that was in fact how the bar, not as a journalist. The distinction is meaningless,
he understood it is evident from his submitted defenses, denying or negativing since as the matter stands, he has failed to justify his
liability for contempt, direct indirect. Indeed, as journalist of no little actuations in either capacity, and there is no question of the
experience and a lawyer to boot, he cannot credibly claim an inability to Court's authority to call him to task either as a newsman or as
understand the nature and import of the present proceedings. a lawyer. What respondent proposes is that in considering his
actions, the Court judge them only as those of a member of
the press and disregard the fact that he is also a lawyer. But
Jurado would also claim that the Court has no administrative supervision over
his actions cannot be put into such neat compartments. In
him as a member of the press or over his work as a journalist, and asks why he
the natural order of things, a person's acts are determined
is being singled out, and, by being required to submit to a separate
by, and reflect, the sum total of his knowledge, training and
administrative proceeding, treated differently than his other colleagues in
experience. In the case of respondent in particular the Court

169
will take judicial notice of the frequent appearance in his invitation issued to him, that compelled the Court to order the matter to be
regular columns of comments and observations utilizing legal docketed on February 16, 1993 and to require respondent Jurado to file his
language and argument, bearing witness to the fact that in Comment. This is not the case at all. As is made clear in Sub-Heads 3 and 4 of
pursuing his craft as a journalist he calls upon his knowledge this opinion, supra, the direct cause of these proceedings was not Jurado's
as a lawyer to help inform and influence his readers and refusal to appear and give evidence before the Ad Hoc Committee. The direct
enhance his credibility. Even absent this circumstance, cause was the letters of PLDT and Atty. William Veto, supported by affidavits,
respondent cannot honestly assert that in exercising his denouncing certain of his stories as false, 28 with the former praying that the
profession as journalist he does not somehow, consciously or Court take such action as may be appropriate. And it was precisely "the matter
unconsciously, draw upon his legal knowledge and training. It dealt with in the letter and affidavit of the PLDT" that this Court ordered to "be
is thus not realistic, nor perhaps even possible, to come to duly DOCKETED, and hereafter considered and acted upon as an official Court
fair, informed and intelligent judgment of respondent's proceeding;" this, by Resolution dated February 16, 1993; the Court also
actuations by divorcing from consideration the fact that he is requiring, in the same Resolution, "that the Clerk of Court SEND COPIES of the
a lawyer as well as a newspaperman, even supposing, which PLDT letter and affidavit, and of the affidavit of Atty. William Veto to Atty. Emil
is not the case — that he may thereby be found without Jurado . . .," and that Jurado should comment thereon "as well as (on) the
accountability in this matter. allegations made by him in his columns, herein specified" — because of explicit
claims, and indications of the falsity or, inaccuracy thereof.
To repeat, respondent cannot claim absolution even were the
Court to lend ear to his plea that his actions be judged solely There thus also appears to be some misapprehension of the basic issues, at
as those of a newspaperman unburdened by the duties and least two of which are framed in this wise: (1) the right of newsmen to
responsibilities peculiar to the law profession of which he is refuse subpoenas, summons, or "invitations" to appear in administrative
also a member. investigations," and (2) their right "not to reveal confidential sources of
information under R.A. No. 53, as amended" — which are not really involved
8. The Dissents here — in respect of which it is theorized that the majority opinion will have an
inhibiting effect on newsmen's confidential sources of information, and thereby
The eloquent, well-crafted dissents of Messrs. Justices Puno and Melo that abridges the freedom of the press.
would invoke freedom of the press to purge Jurado's conduct of any taint of
contempt must now be briefly addressed. (1) No Summons or Subpoena
Ever Issued to Jurado
a. Apparent Misapprehension
of Antecedents and Issue The fact is that no summons or subpoena was ever issued to Jurado by the Ad
Hoc Committee; nor was the issuance of any such or similar processes, or any
Regrettably, there appears to be some misapprehension not only about the punitive measures for disobedience thereto, intended or even contemplated.
antecedents directly leading to the proceedings at bar but also the basic issues Like most witnesses who gave evidence before the Committee, Jurado was
involved. merely invited to appear before it to give information in aid of its assigned task
of ascertaining the truth concerning persistent rumors and reports about
corruption in the judiciary. When he declined to accept the invitations, the Ad
The dissents appear to be of the view, for instance, that it was chiefly Jurado's
Hoc Committee took no action save to inform the Court thereof; and the Court
failure to appear before the Ad Hoc Committee in response to two (2) letters of

170
itself also took no action. There is thus absolutely no occasion to ascribe to that punishment appropriate to the publication of stories shown to be false and
investigation and the invitation to appear thereat a "chilling effect" on the by defamatory of the judiciary — stories that he made no effort whatsoever to
and large "hard-boiled" and self-assured members of the media fraternity. If at verify and which, after being denounced as lies, he has refused, or is unable, to
all, the patience and forbearance of the Court, despite the indifference of some substantiate.
of its invitees and projected witnesses, appear to have generated an attitude
on their part bordering on defiant insolence. c. RA 53 Confers No Immunity from Liability
for False or Defamatory Publications
(2) No Blanket Excuse Under RA 53
From Responding to Subpoena This opinion neither negates nor seeks to enervate the proposition that a
newsman has a right to keep his sources confidential; that he cannot be
Even assuming that the facts were as presented in the separate opinion, i.e., compelled by the courts to disclose them, as provided by R.A. 53, unless the
that subpoenae had in fact been issued to and served on Jurado, his security of the State demands such revelation. But it does hold that he cannot
unexplained failure to obey the same would prima facie constitute constructive invoke such right as a shield against liability for printing stories that are untrue
contempt under Section 3, Rule 71 of the Rules of Court. It should be obvious and derogatory of the courts, or others. The ruling, in other words, is that when
that a journalist may not refuse to appear at all as required by a subpoena on called to account for publications denounced as inaccurate and misleading, the
the bare plea that under R.A. No 53, he may not be compelled to disclose the journalist has the option (a) to demonstrate their truthfulness or accuracy even
source of his information. For until he knows what questions will be put to him if in the process he disclose his sources, or (b) to refuse, on the ground that to
as witness — for which his presence has been compelled — the relevance of do so would require such disclosure. In the latter event, however, he must be
R.A. No. 53 cannot be ascertained. His duty is clear. He must obey ready to accept the consequences of publishing untruthful or misleading stories
the subpoena. He must appear at the appointed place, date and hour, ready to the truth and accuracy of which he is unwilling or made no bona fide effort to
answer questions, and he may invoke the protection of the statute only at the prove; for R.A. 53, as amended, is quite unequivocal that the right of refusal to
appropriate time. disclose sources is "without prejudice to . . . liability under civil and criminal
laws."
b. The Actual Issue
R.A. 53 thus confers no immunity from prosecution for libel or for other
The issue therefore had nothing to do with any failure of Jurado's to obey sanction under law. It does not declare that the publication of any news report
a subpoena, none ever having been issued to him, and the Ad Hoc Committee or information which was "related in confidence" to the journalist is not
having foreborne to take any action at all as regards his failure to accept its actionable; such circumstance (of confidentiality) does not purge, the
invitations. The issue, as set out in the opening sentence of this opinion, publication of its character as defamatory, if indeed it be such, and actionable
essentially concerns "(l)iability for published statements demonstrably false or on that ground. All it does is give the journalist the right to refuse (or not to be
misleading, and derogatory of the courts and individual judges." compelled) to reveal the source of any news report published by him which
was revealed to him in confidence.
Jurado is not being called to account for declining to identify the sources of his
news stories, or for refusing to appear and give testimony before the Ad A journalist cannot say, e.g.: a person of whose veracity I have no doubt told
Hoc Committee. He is not being compelled to guarantee the truth of what he me in confidence that Justices X and Y received a bribe of P1M each for their
publishes, but to exercise honest and reasonable efforts to determine the truth votes in such and such a case, or that a certain Judge maintains a mistress, and
of defamatory statements before publishing them. He is being meted the

171
when called to account for such statements, absolve himself by claiming A journalist's "source" either exists or is fictitious. If the latter, plainly, the
immunity under R.A. 53, or invoking press freedom. journalist is entitled to no protection or immunity whatsoever.

d. A Word about "Group Libel" If the "source" actually exists, the information furnished is either capable of
independent substantiation, or it is not. If the first, the journalist's duty is clear:
There is hardly need to belabor the familiar doctrine about group libel and how ascertain, if not obtain, the evidence by which the information may be
it has become the familiar resort of unscrupulous newsmen who can malign verified before publishing the same; and if thereafter called to account
any number of anonymous members of a common profession, calling or therefor, present such evidence and in the process afford the party adversely
persuasion, thereby putting an entire institution — like the judiciary in this case affected thereby opportunity to dispute the information or show it to be false.
— in peril of public contumely and mistrust without serious risk of being sued
for defamation. The preceding discussions have revealed Jurado's predilection If the information is not verifiable, and it is derogatory of any third party, then
for, if not his normal practice of, refusing to specifically identify or render it ought not to be published for obvious reasons. It would be unfair to the
identifiable the persons he maligns. Thus, he speaks of the "Magnificent subject of the report, who would be without means of refuting the imputations
Seven," by merely referring to undisclosed regional trial court judges in Makati; against him. And it would afford an unscrupulous journalist a ready device by
the "Magnificent Seven" in the Supreme Court, as some undesignated justices which to smear third parties without the obligation to substantiate his
who supposedly vote as one; the "Dirty Dozen," as unidentified trial judges in imputations by merely claiming that the information had been given to him "in
Makati and three other cities. He adverts to an anonymous group of justices confidence".
and judges for whom a bank allegedly hosted a party; and six unnamed justices
of this Court who reportedly spent a prepaid vacation in Hong Kong with their It is suggested that there is another face to the privileged character of a
families. This resort to generalities and ambiguities is an old and familiar but journalist's source of information than merely the protection of the journalist,
reprehensible expedient of newsmongers to avoid criminal sanctions since the and that it is intended to protect also the source itself. What clearly is implied is
American doctrine of group libel is of restricted application in this jurisdiction. that journalist may not reveal his source without the latter's clearance or
For want of a definitely identified or satisfactorily identifiable victim, there is consent. This totally overlooks the fact that the object of a derogatory
generally no actionable libel, but such a craven publication inevitably succeeds publication has at least an equal right to know the source thereof and, if indeed
in putting all the members of the judiciary thus all together referred to under a traduced, to the opportunity of obtaining just satisfaction from the traducer.
cloud of suspicion. A veteran journalist and lawyer of long standing that he is,
Jurado could not have been unaware of the foregoing realities and 9. Need for Guidelines
consequences.
Advertences to lofty principle, however eloquent and enlightening, hardly
e. Substantiation of News Report address the mundane, but immediate and very pertinent, question of whether
Not Inconsistent with RA 53 a journalist may put in print unverified information derogatory of the courts
and judges and yet remain immune from liability for contempt for refusing,
It is argued that compelling a journalist to substantiate the news report or when called upon, to demonstrate their truth on the ground of press freedom
information confidentially revealed to him would necessarily negate or dilute or by simply claiming that he need not do so since (or if) it would compel him to
his right to refuse disclosure of its source. The argument will not stand scrutiny. disclose the identity of his source or sources.

172
The question, too, is whether or not we are prepared to say that a journalist's them is clearly outweighed by the social interest in order and morality."
obligation to protect his sources of information transcends, and is greater than, Chaplinsky v, new Hampshire, 315 US 568, 572, 86 L Ed 1031, 62 S Ct 766
his duty to the truth; and that, accordingly, he has no obligation whatsoever to (1942).
verify, or exercise bona fide efforts to verify, the information he is given or
obtain the side of the party adversely affected before he publishes the same. "The use of calculated falsehood," it was observed in another case, 30 "would
put a different cast on the constitutional question. Although honest utterances,
True, the pre-eminent role of a free press in keeping freedom alive and even if inaccurate, may further the fruitful exercise of the right of free speech,
democracy in full bloom cannot be overemphasized. But it is debatable if that it does not follow that the lie, knowingly and deliberately published about a
role is well and truly filled by a press let loose to print what it will, without public official, should enjoy a like immunity. . . . (T)he knowingly false
reasonable restraints designed to assure the truth and accuracy of what is statement and the false statement made with reckless disregard of the truth,
published. The value of information to a free society is in direct proportion to do not enjoy constitutional protection."
the truth it contains. That value reduces to little or nothing when it is no longer
possible for the public to distinguish between truth and falsehood in news Similarly, in a 1969 case concerning a patently false accusation made against a
reports, and the courts are denied the mechanisms by which to make public employee avowedly in fulfillment of a "legal, moral, or social
reasonably sure that only the truth reaches print. duty," 31 this Court, through the late Chief Justice Roberto Concepcion, ruled
that the guaranty of free speech cannot be considered as according protection
a. No Constitutional Protection for Deliberately to the disclosure of lies, gossip or rumor, viz.:
False or Recklessly Inaccurate Reports
. . . Defendant's civil duty was to help the Government clean
It is worth stressing that false reports about a public official or other person are house and weed out dishonest, unfit or disloyal officers and
not shielded from sanction by the cardinal right to free speech enshrined in the employees thereof, where there is reasonable ground to
Constitution. Even the most liberal view of free speech has never believe that they fall under this category. He had no legal
countenanced the publication of falsehoods, specially the persistent and right, much less duty, to gossip, or foster the circulation of
unmitigated dissemination of patent lies. The U.S. Supreme Court, 29 while rumors, or jump at conclusions and more so if they are
asserting that "(u)nder the First Amendment there is no such thing as a false gratuitous or groundless. Otherwise, the freedom of speech,
idea," and that "(h)owever pernicious an opinion may seem, we depend for its which is guaranteed with a view to strengthening our
correction not on the conscience of judges and juries but on the competition of democratic institutions and promoting the general welfare,
other ideas" (citing a passage from the first Inaugural Address of Thomas would be a convenient excuse to engage in the vituperation
Jefferson), nonetheless made the firm pronouncement that "there is no of individuals, for the attainment of private, selfish and
constitutional value in false statements of fact," and "the erroneous statement vindictive ends, thereby hampering the operation of the
of fact is not worthy of constitutional protection (although) . . . nevertheless Government with. administrative investigations of charges
inevitable in free debate." "Neither the intentional lie nor the careless error," it preferred without any color or appearance of truth and with
said, "materially advances society's interest in "unhibited, robust, and wide- no other probable effect than the harassment of the officer
open" debate on public issues. New York Times Co. v. Sullivan, 376 US, at 270, or employee concerned, to the detriment of public service
11 L Ed 2d 686, 95 ALR2d 1412. They belong to that category of utterances and public order.
which "are no essential part of any exposition of ideas, and are of such slight
social value as a step to the truth that any benefit that may be derived from b. No "Chilling Effect"

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The fear expressed, and earlier adverted to, that the principles here affirmed perverted, law and order require that he follow the processes
would have a "chilling effect" on media professionals, seems largely unfounded provided by the Constitution and the statutes by instituting
and should be inconsequential to the greater number of journalists in this the corresponding proceedings for impeachment or
country who, by and large, out of considerations of truth, accuracy, and fair otherwise. . . .
play, have commendably refrained from ventilating what would otherwise be
"sensational" or "high-visibility" stories. In merely seeking to infuse and xxx xxx xxx
perpetuate the same attitude and sense of responsibility in all
journalists, i.e., that there is a need to check out the truth and correctness of It might be suggested that judges who are unjustly attacked
information before publishing it, or that, on the other hand, recklessness and have a remedy in an action for libel. This suggestion has,
crass sensationalism should be eschewed, this decision, surely, cannot have however, no rational basis in principle. In the first place, the
such "chilling effect," and no apprehension that it would deter the outrage is not directed to the judge as a private individual but
determination of truth or the public exposure of wrong can reasonably be to the judge as such or to the court as an organ of the
entertained. administration of justice. In the second place, public interests
will gravely suffer where the judge, as such, will, from time to
The people's right to discover the truth is not advanced by unbridled license in time, be pulled down and disrobed of his judicial authority to
reportage that would find favor only with extremist liberalism. If it has done face his assailant on equal grounds and prosecute cases in his
nothing else, this case has made clear the compelling necessity of the behalf as a private individual. The same reasons of public
guidelines and parameters elsewhere herein laid down. They are eminently policy which exempt a judge from civil liability in the exercise
reasonable, and no responsible journalist should have cause to complain of of his judicial functions, most fundamental of which is the
difficulty in their observance. policy to confine his time exclusively to the discharge of his
public duties, applies here with equal, if not superior, force
10. Afterword (Hamilton v. Williams, 26 Ala. 529; Busteed v. Parson, 54 Ala.
403; Ex parte McLeod, 120 Fed. 130; Coons v. State, 191 Ind.
It seems fitting to close this opinion, with the words of Chief Justice Moran, 580; 134 N. E. 194). . . .
whose pronouncements have already been earlier quoted, 32 and are as
germane today as when they were first written more than fifty (50) years Jurado's actuations, in the context in which they were done, demonstrate gross
ago. 33 irresponsibility, and indifference to factual accuracy and the injury that he
might cause to the name and reputation of those of whom he wrote. They
It may be said that respect to courts cannot be compelled and constitute contempt of court, directly tending as they do to degrade or abase
that public confidence should be a tribute to judicial worth, the administration of justice and the judges engaged in that function. By doing
virtue and intelligence. But compelling respect to courts is them, he has placed himself beyond the circle of reputable, decent and
one thing and denying the courts the power to vindicate responsible journalists who live by their Code or the "Golden Rule" and who
themselves when outraged is another. I know of no principle strive at all times to maintain the prestige and nobility of their calling.
of law that authorizes with impunity a discontended citizen to
unleash, by newspaper publications, the avalanche of his Clearly unrepentant, exhibiting no remorse for the acts and conduct detailed
wrath and venom upon courts and judges. If he believes that here, Jurado has maintained a defiant stance. "This is a fight I will not run
a judge is corrupt and that justice has somewhere been from," he wrote in his column of March 21, 1993; and again, "I will not run

174
away from a good fight," in his column of March 23, 1993. Such an attitude
discourages leniency, and leaves no choice save the application of sanctions
appropriate to the offense.

WHEREFORE, the Court declares Atty. Emil (Emiliano) P. Jurado guilty of


contempt of court and in accordance with Section 6, Rule 71 of the Rules of
Court, hereby sentences him to pay a fine of one thousand pesos (P1,000,00).

IT IS SO ORDERED.

Feliciano, Bidin, Regalado Davide, Jr., Romero, Bellosillo, Quiason, Mendoza and
Francisco, JJ., concur.

Vitug and Kapunan, JJ., took no part.

175
Republic of the Philippines herein petition, the DOH is deemed impleaded as a co-respondent since
SUPREME COURT respondents issued the questioned RIRR in their capacity as officials of said
Manila executive agency.1

EN BANC Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on
October 28, 1986 by virtue of the legislative powers granted to the president
G.R. No. 173034 October 9, 2007 under the Freedom Constitution. One of the preambular clauses of the Milk
Code states that the law seeks to give effect to Article 11 2 of the International
PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE Code of Marketing of Breastmilk Substitutes (ICMBS), a code adopted by the
PHILIPPINES, petitioner, World Health Assembly (WHA) in 1981. From 1982 to 2006, the WHA adopted
vs. several Resolutions to the effect that breastfeeding should be supported,
HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDER SECRETARIES promoted and protected, hence, it should be ensured that nutrition and health
DR. ETHELYN P. NIETO, DR. MARGARITA M. GALON, ATTY. ALEXANDER A. claims are not permitted for breastmilk substitutes.
PADILLA, & DR. JADE F. DEL MUNDO; and ASSISTANT SECRETARIES DR.
MARIO C. VILLAVERDE, DR. DAVID J. LOZADA, AND DR. NEMESIO T. In 1990, the Philippines ratified the International Convention on the Rights of
GAKO, respondents. the Child. Article 24 of said instrument provides that State Parties should take
appropriate measures to diminish infant and child mortality, and ensure that all
DECISION segments of society, specially parents and children, are informed of the
advantages of breastfeeding.
AUSTRIA-MARTINEZ, J.:
On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect
on July 7, 2006.
The Court and all parties involved are in agreement that the best nourishment
for an infant is mother's milk. There is nothing greater than for a mother to
nurture her beloved child straight from her bosom. The ideal is, of course, for However, on June 28, 2006, petitioner, representing its members that are
each and every Filipino child to enjoy the unequaled benefits of breastmilk. But manufacturers of breastmilk substitutes, filed the present Petition
how should this end be attained? for Certiorari and Prohibition with Prayer for the Issuance of a Temporary
Restraining Order (TRO) or Writ of Preliminary Injunction.
Before the Court is a petition for certiorari under Rule 65 of the Rules of Court,
seeking to nullify Administrative Order (A.O.) No. 2006-0012 entitled, Revised The main issue raised in the petition is whether respondents officers of the
Implementing Rules and Regulations of Executive Order No. 51, Otherwise DOH acted without or in excess of jurisdiction, or with grave abuse of discretion
Known as The "Milk Code," Relevant International Agreements, Penalizing amounting to lack or excess of jurisdiction, and in violation of the provisions of
Violations Thereof, and for Other Purposes (RIRR). Petitioner posits that the the Constitution in promulgating the RIRR.3
RIRR is not valid as it contains provisions that are not constitutional and go
beyond the law it is supposed to implement. On August 15, 2006, the Court issued a Resolution granting a TRO enjoining
respondents from implementing the questioned RIRR.
Named as respondents are the Health Secretary, Undersecretaries, and
Assistant Secretaries of the Department of Health (DOH). For purposes of

176
After the Comment and Reply had been filed, the Court set the case for oral On the issue of petitioner's standing
arguments on June 19, 2007. The Court issued an Advisory (Guidance for Oral
Arguments) dated June 5, 2007, to wit: With regard to the issue of whether petitioner may prosecute this case as the
real party-in-interest, the Court adopts the view enunciated in Executive
The Court hereby sets the following issues: Secretary v. Court of Appeals,4 to wit:

1. Whether or not petitioner is a real party-in-interest; The modern view is that an association has standing to complain of
injuries to its members. This view fuses the legal identity of an
2. Whether Administrative Order No. 2006-0012 or the Revised association with that of its members. An association has standing to
Implementing Rules and Regulations (RIRR) issued by the Department file suit for its workers despite its lack of direct interest if its
of Health (DOH) is not constitutional; members are affected by the action. An organization has standing to
assert the concerns of its constituents.
2.1 Whether the RIRR is in accord with the provisions of Executive
Order No. 51 (Milk Code); xxxx

2.2 Whether pertinent international agreements1 entered into by the x x x We note that, under its Articles of Incorporation, the respondent
Philippines are part of the law of the land and may be implemented by was organized x x x to act as the representative of any individual,
the DOH through the RIRR; If in the affirmative, whether the RIRR is in company, entity or association on matters related to the manpower
accord with the international agreements; recruitment industry, and to perform other acts and activities
necessary to accomplish the purposes embodied therein.
2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the The respondent is, thus, the appropriate party to assert the rights of
due process clause and are in restraint of trade; and its members, because it and its members are in every practical sense
identical. x x x The respondent [association] is but the medium
through which its individual members seek to make more effective
2.4 Whether Section 13 of the RIRR on Total Effect provides sufficient
the expression of their voices and the redress of their
standards.
grievances. 5 (Emphasis supplied)
_____________
which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,6 where
the Court ruled that an association has the legal personality to represent its
1 (1) United Nations Convention on the Rights of the Child; (2) the
members because the results of the case will affect their vital interests.7
WHO and Unicef "2002 Global Strategy on Infant and Young Child
Feeding;" and (3) various World Health Assembly (WHA) Resolutions.
Herein petitioner's Amended Articles of Incorporation contains a similar
provision just like in Executive Secretary, that the association is formed "to
The parties filed their respective memoranda.
represent directly or through approved representatives the pharmaceutical and
health care industry before the Philippine Government and any of its agencies,
The petition is partly imbued with merit. the medical professions and the general public."8 Thus, as an organization,
petitioner definitely has an interest in fulfilling its avowed purpose of

177
representing members who are part of the pharmaceutical and health care Under the 1987 Constitution, international law can become part of the sphere
industry. Petitioner is duly authorized9to take the appropriate course of action of domestic law either by transformation or incorporation.11 The
to bring to the attention of government agencies and the courts any grievance transformation method requires that an international law be transformed into
suffered by its members which are directly affected by the RIRR. Petitioner, a domestic law through a constitutional mechanism such as local legislation.
which is mandated by its Amended Articles of Incorporation to represent the The incorporation method applies when, by mere constitutional declaration,
entire industry, would be remiss in its duties if it fails to act on governmental international law is deemed to have the force of domestic law.12
action that would affect any of its industry members, no matter how few or
numerous they are. Hence, petitioner, whose legal identity is deemed fused Treaties become part of the law of the land through transformation pursuant
with its members, should be considered as a real party-in-interest which stands to Article VII, Section 21 of the Constitution which provides that "[n]o treaty or
to be benefited or injured by any judgment in the present action. international agreement shall be valid and effective unless concurred in by at
least two-thirds of all the members of the Senate." Thus, treaties or
On the constitutionality of the provisions of the RIRR conventional international law must go through a process prescribed by the
Constitution for it to be transformed into municipal law that can be applied to
First, the Court will determine if pertinent international instruments adverted domestic conflicts.13
to by respondents are part of the law of the land.
The ICMBS and WHA Resolutions are not treaties as they have not been
Petitioner assails the RIRR for allegedly going beyond the provisions of the Milk concurred in by at least two-thirds of all members of the Senate as required
Code, thereby amending and expanding the coverage of said law. The defense under Section 21, Article VII of the 1987 Constitution.
of the DOH is that the RIRR implements not only the Milk Code but also various
international instruments10 regarding infant and young child nutrition. It is However, the ICMBS which was adopted by the WHA in 1981 had been
respondents' position that said international instruments are deemed part of transformed into domestic law through local legislation, the Milk Code.
the law of the land and therefore the DOH may implement them through the Consequently, it is the Milk Code that has the force and effect of law in this
RIRR. jurisdiction and not the ICMBS per se.

The Court notes that the following international instruments invoked by The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to
respondents, namely: (1) The United Nations Convention on the Rights of the emphasize at this point that the Code did not adopt the provision in the ICMBS
Child; (2) The International Covenant on Economic, Social and Cultural Rights; absolutely prohibiting advertising or other forms of promotion to the general
and (3) the Convention on the Elimination of All Forms of Discrimination public of products within the scope of the ICMBS. Instead, the Milk Code
Against Women, only provide in general terms that steps must be taken by expressly provides that advertising, promotion, or other marketing materials
State Parties to diminish infant and child mortality and inform society of the may be allowed if such materials are duly authorized and approved by the
advantages of breastfeeding, ensure the health and well-being of families, and Inter-Agency Committee (IAC).
ensure that women are provided with services and nutrition in connection with
pregnancy and lactation. Said instruments do not contain specific provisions On the other hand, Section 2, Article II of the 1987 Constitution, to wit:
regarding the use or marketing of breastmilk substitutes.
SECTION 2. The Philippines renounces war as an instrument of
The international instruments that do have specific provisions regarding national policy, adopts the generally accepted principles of
breastmilk substitutes are the ICMBS and various WHA Resolutions. international law as part of the law of the land and adheres to the

178
policy of peace, equality, justice, freedom, cooperation and amity with Fr. Joaquin G. Bernas defines customary international law as follows:
all nations. (Emphasis supplied)
Custom or customary international law means "a general and
embodies the incorporation method.14 consistent practice of states followed by them from a sense of legal
obligation [opinio juris]." (Restatement) This statement contains the
In Mijares v. Ranada,15 the Court held thus: two basic elements of custom: the material factor, that is, how
states behave, and the psychological or subjective factor, that is, why
[G]enerally accepted principles of international law, by virtue of the they behave the way they do.
incorporation clause of the Constitution, form part of the laws of the
land even if they do not derive from treaty obligations. The classical xxxx
formulation in international law sees those customary rules accepted
as binding result from the combination [of] two elements: the The initial factor for determining the existence of custom is the actual
established, widespread, and consistent practice on the part of States; behavior of states. This includes several elements: duration,
and a psychological element known as the opinion juris sive consistency, and generality of the practice of states.
necessitates (opinion as to law or necessity). Implicit in the latter
element is a belief that the practice in question is rendered obligatory The required duration can be either short or long. x x x
by the existence of a rule of law requiring it.16 (Emphasis supplied)
xxxx
"Generally accepted principles of international law" refers to norms of general
or customary international law which are binding on all states, 17 i.e., Duration therefore is not the most important element. More
renunciation of war as an instrument of national policy, the principle of important is the consistency and the generality of the practice. x x x
sovereign immunity,18 a person's right to life, liberty and due
process,19 and pacta sunt servanda,20 among others. The concept of "generally
xxxx
accepted principles of law" has also been depicted in this wise:
Once the existence of state practice has been established, it becomes
Some legal scholars and judges look upon certain "general principles of law" as
necessary to determine why states behave the way they do. Do states
a primary source of international law because they have the "character of jus
behave the way they do because they consider it obligatory to behave
rationale" and are "valid through all kinds of human societies." (Judge Tanaka
thus or do they do it only as a matter of courtesy? Opinio juris, or the
in his dissenting opinion in the 1966 South West Africa Case, 1966 I.C.J. 296).
belief that a certain form of behavior is obligatory, is what makes
O'Connell holds that certain priniciples are part of international law
practice an international rule. Without it, practice is not
because they are "basic to legal systems generally" and hence part of the jus
law.22 (Underscoring and Emphasis supplied)
gentium. These principles, he believes, are established by a process of
reasoning based on the common identity of all legal systems. If there should be
Clearly, customary international law is deemed incorporated into our domestic
doubt or disagreement, one must look to state practice and determine whether
system.23
the municipal law principle provides a just and acceptable solution. x x
x 21 (Emphasis supplied)

179
WHA Resolutions have not been embodied in any local legislation. Have they and public health practices; (c) standards with respect to diagnostic
attained the status of customary law and should they then be deemed procedures for international use; (d) standards with respect to the
incorporated as part of the law of the land? safety, purity and potency of biological, pharmaceutical and similar
products moving in international commerce; (e) advertising and
The World Health Organization (WHO) is one of the international specialized labeling of biological, pharmaceutical and similar products moving in
agencies allied with the United Nations (UN) by virtue of Article 57,24 in relation international commerce.
to Article 6325 of the UN Charter. Under the 1946 WHO Constitution, it is the
WHA which determines the policies of the WHO,26 and has the power to adopt Article 22. Regulations adopted pursuant to Article 21 shall come into
regulations concerning "advertising and labeling of biological, pharmaceutical force for all Members after due notice has been given of their adoption
and similar products moving in international commerce," 27 and to "make by the Health Assembly except for such Members as may notify the
recommendations to members with respect to any matter within the Director-General of rejection or reservations within the period stated in
competence of the Organization."28 The legal effect of its regulations, as the notice. (Emphasis supplied)
opposed to recommendations, is quite different.
On the other hand, under Article 23, recommendations of the WHA do not
Regulations, along with conventions and agreements, duly adopted by the come into force for members, in the same way that conventions or
WHA bind member states thus: agreements under Article 19 and regulations under Article 21 come into force.
Article 23 of the WHO Constitution reads:
Article 19. The Health Assembly shall have authority to adopt
conventions or agreements with respect to any matter within the Article 23. The Health Assembly shall have authority to make
competence of the Organization. A two-thirds vote of the Health recommendations to Members with respect to any matter within the
Assembly shall be required for the adoption of such conventions or competence of the Organization. (Emphasis supplied)
agreements, which shall come into force for each Member when
accepted by it in accordance with its constitutional processes. The absence of a provision in Article 23 of any mechanism by which the
recommendation would come into force for member states is conspicuous.
Article 20. Each Member undertakes that it will, within eighteen
months after the adoption by the Health Assembly of a convention or The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA
agreement, take action relative to the acceptance of such convention recommendations are generally not binding, but they "carry moral and political
or agreement. Each Member shall notify the Director-General of the weight, as they constitute the judgment on a health issue of the collective
action taken, and if it does not accept such convention or agreement membership of the highest international body in the field of health."29 Even the
within the time limit, it will furnish a statement of the reasons for non- ICMBS itself was adopted as a mere recommendation, as WHA Resolution No.
acceptance. In case of acceptance, each Member agrees to make an 34.22 states:
annual report to the Director-General in accordance with Chapter XIV.
"The Thirty-Fourth World Health Assembly x x x adopts, in the sense
Article 21. The Health Assembly shall have authority to adopt of Article 23 of the Constitution, the International Code of Marketing
regulations concerning: (a) sanitary and quarantine requirements and of Breastmilk Substitutes annexed to the present resolution."
other procedures designed to prevent the international spread of (Emphasis supplied)
disease; (b) nomenclatures with respect to diseases, causes of death

180
The Introduction to the ICMBS also reads as follows: Olalia,35 Mejoff v. Director of Prisons,36 Mijares v. Rañada37 and Shangri-la
International Hotel Management, Ltd. v. Developers Group of Companies, Inc..38
In January 1981, the Executive Board of the World Health Organization
at its sixty-seventh session, considered the fourth draft of the code, The World Intellectual Property Organization (WIPO), a specialized agency
endorsed it, and unanimously recommended to the Thirty-fourth attached to the UN with the mandate to promote and protect intellectual
World Health Assembly the text of a resolution by which it would property worldwide, has resorted to soft law as a rapid means of norm
adopt the code in the form of a recommendation rather than a creation, in order "to reflect and respond to the changing needs and demands
regulation. x x x (Emphasis supplied) of its constituents."39 Other international organizations which have resorted to
soft law include the International Labor Organization and the Food and
The legal value of WHA Resolutions as recommendations is summarized in Agriculture Organization (in the form of the Codex Alimentarius).40
Article 62 of the WHO Constitution, to wit:
WHO has resorted to soft law. This was most evident at the time of the Severe
Art. 62. Each member shall report annually on the action taken with Acute Respiratory Syndrome (SARS) and Avian flu outbreaks.
respect to recommendations made to it by the Organization, and with
respect to conventions, agreements and regulations. Although the IHR Resolution does not create new international law
binding on WHO member states, it provides an excellent example of
Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA the power of "soft law" in international relations. International
Resolutions urging member states to implement the ICMBS are merely lawyers typically distinguish binding rules of international law-"hard
recommendatory and legally non-binding. Thus, unlike what has been done law"-from non-binding norms, principles, and practices that influence
with the ICMBS whereby the legislature enacted most of the provisions into state behavior-"soft law." WHO has during its existence generated
law which is the Milk Code, the subsequent WHA Resolutions,30 specifically many soft law norms, creating a "soft law regime" in international
providing for exclusive breastfeeding from 0-6 months, continued governance for public health.
breastfeeding up to 24 months, and absolutely prohibiting advertisements
and promotions of breastmilk substitutes, have not been adopted as a The "soft law" SARS and IHR Resolutions represent significant steps in
domestic law. laying the political groundwork for improved international cooperation
on infectious diseases. These resolutions clearly define WHO member
It is propounded that WHA Resolutions may constitute "soft law" or non- states' normative duty to cooperate fully with other countries and
binding norms, principles and practices that influence state behavior. 31 with WHO in connection with infectious disease surveillance and
response to outbreaks.
"Soft law" does not fall into any of the categories of international law set forth
in Article 38, Chapter III of the 1946 Statute of the International Court of This duty is neither binding nor enforceable, but, in the wake of the
Justice.32 It is, however, an expression of non-binding norms, principles, and SARS epidemic, the duty is powerful politically for two reasons. First,
practices that influence state behavior.33 Certain declarations and resolutions the SARS outbreak has taught the lesson that participating in, and
of the UN General Assembly fall under this category.34 The most notable is the enhancing, international cooperation on infectious disease controls is
UN Declaration of Human Rights, which this Court has enforced in various in a country's self-interest x x x if this warning is heeded, the "soft law"
cases, specifically, Government of Hongkong Special Administrative Region v. in the SARS and IHR Resolution could inform the development of
general and consistent state practice on infectious disease surveillance

181
and outbreak response, perhaps crystallizing eventually into Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987
customary international law on infectious disease prevention and provides that the DOH shall define the national health policy and implement a
control.41 national health plan within the framework of the government's general policies
and plans, and issue orders and regulations concerning the implementation of
In the Philippines, the executive department implemented certain measures established health policies.
recommended by WHO to address the outbreaks of SARS and Avian flu by
issuing Executive Order (E.O.) No. 201 on April 26, 2003 and E.O. No. 280 on It is crucial to ascertain whether the absolute prohibition on advertising and
February 2, 2004, delegating to various departments broad powers to close other forms of promotion of breastmilk substitutes provided in some WHA
down schools/establishments, conduct health surveillance and monitoring, and Resolutions has been adopted as part of the national health policy.
ban importation of poultry and agricultural products.
Respondents submit that the national policy on infant and young child feeding
It must be emphasized that even under such an international emergency, the is embodied in A.O. No. 2005-0014, dated May 23, 2005. Basically, the
duty of a state to implement the IHR Resolution was still considered not Administrative Order declared the following policy guidelines: (1) ideal
binding or enforceable, although said resolutions had great political influence. breastfeeding practices, such as early initiation of breastfeeding, exclusive
breastfeeding for the first six months, extended breastfeeding up to two years
As previously discussed, for an international rule to be considered as customary and beyond; (2) appropriate complementary feeding, which is to start at age six
law, it must be established that such rule is being followed by states because months; (3) micronutrient supplementation; (4) universal salt iodization; (5) the
they consider it obligatory to comply with such rules (opinio juris). exercise of other feeding options; and (6) feeding in exceptionally difficult
Respondents have not presented any evidence to prove that the WHA circumstances. Indeed, the primacy of breastfeeding for children is emphasized
Resolutions, although signed by most of the member states, were in fact as a national health policy. However, nowhere in A.O. No. 2005-0014 is it
enforced or practiced by at least a majority of the member states; neither have declared that as part of such health policy, the advertisement or promotion
respondents proven that any compliance by member states with said WHA of breastmilk substitutes should be absolutely prohibited.
Resolutions was obligatory in nature.
The national policy of protection, promotion and support of breastfeeding
Respondents failed to establish that the provisions of pertinent WHA cannot automatically be equated with a total ban on advertising for breastmilk
Resolutions are customary international law that may be deemed part of the substitutes.
law of the land.
In view of the enactment of the Milk Code which does not contain a total ban
Consequently, legislation is necessary to transform the provisions of the WHA on the advertising and promotion of breastmilk substitutes, but instead,
Resolutions into domestic law. The provisions of the WHA Resolutions cannot specifically creates an IAC which will regulate said advertising and promotion, it
be considered as part of the law of the land that can be implemented by follows that a total ban policy could be implemented only pursuant to a
executive agencies without the need of a law enacted by the legislature. law amending the Milk Code passed by the constitutionally authorized branch
of government, the legislature.
Second, the Court will determine whether the DOH may implement the
provisions of the WHA Resolutions by virtue of its powers and functions under Thus, only the provisions of the Milk Code, but not those of subsequent WHA
the Revised Administrative Code even in the absence of a domestic law. Resolutions, can be validly implemented by the DOH through the subject RIRR.

182
Third, the Court will now determine whether the provisions of the RIRR are in and supplements and related products through a. Exclusive breastfee
accordance with those of the Milk Code. adequate, consistent and objective information and (6) months.
appropriate regulation of the marketing and
In support of its claim that the RIRR is inconsistent with the Milk Code, distribution of the said substitutes, supplements and b. There is no substit
petitioner alleges the following: related products; breastmilk.

1. The Milk Code limits its coverage to children 0-12 months old, but 3. The Milk Code only regulates and does not impose unreasonable
the RIRR extended its coverage to "young children" or those from ages requirements for advertising and promotion; RIRR imposes an
two years old and beyond: absolute ban on such activities for breastmilk substitutes intended for
infants from 0-24 months old or beyond, and forbids the use of health
MILK CODE RIRR and nutritional claims. Section 13 of the RIRR, which provides for a
WHEREAS, in order to ensure that safe and adequate Section 2. Purpose – These "total effect"
Revised in the
Rules andpromotion of products within the scope of the
nutrition for infants is provided, there is a need to Code, is vague:
Regulations are hereby promulgated to ensure the
protect and promote breastfeeding and to inform the provision of safe and adequate nutrition for infants
public about the proper use of breastmilk substitutes and young children by the promotion,MILKprotection
CODE and RIRR
and supplements and related products through support of breastfeeding and by ensuring the proper
SECTION 6. The General Public and Mothers. – Section 4. Declaratio
adequate, consistent and objective information and use of breastmilk substitutes, breastmilk supplements are the underlying pr
appropriate regulation of the marketing and and related products when these are medically
(a) No advertising, promotion or other marketing rules and regulations
distribution of the said substitutes, supplements and indicated and only when necessary, on the basis
materials, of written, audio or visual,
whether
related products; adequate information and throughfor appropriate
products within the scope of this Code shall be xxxx
marketing and distribution. printed, published, distributed, exhibited and
SECTION 4(e). "Infant" means a person falling within broadcast unless such materials are duly authorized f. Advertising, promo
the age bracket of 0-12 months. Section 5(ff). "Young Child" meansanda person
approvedfrombythe
an inter-agency committee created formula, breastmilk s
age of more than twelve (12) months up to
herein the agetoofthe applicable standards provided products are prohibit
pursuant
three (3) years (36 months). for in this Code.
Section 11. Prohibitio
2. The Milk Code recognizes that infant formula may be a proper and sponsorships, or mar
possible substitute for breastmilk in certain instances; but the RIRR activities for breastm
provides "exclusive breastfeeding for infants from 0-6 months" and infants and young ch
declares that "there is no substitute nor replacement for breastmilk": months, shall be allow
convey or give sublim
MILK CODE RIRR that undermine brea
WHEREAS, in order to ensure that safe and adequate Section 4. Declaration of Principles – The following otherwise exaggerate
nutrition for infants is provided, there is a need to are the underlying principles from which the revised replacements, as wel
protect and promote breastfeeding and to inform the rules and regulations are premised upon: within the scope of th
public about the proper use of breastmilk substitutes

183
Section 13. "Total Effect" - Promotion of products that connotes to incr
within the scope of this Code must be objective and abilities of the infant
should not equate or make the product appear to be phrases shall not be a
as good or equal to breastmilk or breastfeeding in the
advertising concept. It must notRIRR
4. The in any case additional labeling requirements not found in the
imposes
undermine breastmilk or Milk breastfeeding.
Code: The "total
effect" should not directly or indirectly suggest that
buying their product would produce better
MILK CODE RIRR
individuals, or resulting in greater love, intelligence,
ability, harmony or in any manner SECTION
bring better 10. health
Containers/Label. – Section 26. Content –
to the baby or other such exaggerated and contain such message
unsubstantiated claim. (a) Containers and/or labels shall be designed to languages, and which
provide the necessary information about the separated therefrom
appropriate
Section 15. Content of Materials. - The following use of the products, and in such a way as
shall not be included in advertising, not to discourage
promotional andbreastfeeding. (a) The words or phra
marketing materials: "Government Warnin
(b) Each container shall have a clear, conspicuous and
easily readable
a. Texts, pictures, illustrations or information whichand understandable message in (b) A statement of th
Pilipino
discourage or tend to undermine the benefits or or English printed on it, or on a label, which
superiority of breastfeeding or which message
idealizecanthe
notuse
readily become separated from it, (c) A statement that t
and which
of breastmilk substitutes and milk supplements. In shall include the following points: breastmilk;
this connection, no pictures of babies and children
together with their mothers, fathers, (i) the words "Important Notice" or their equivalent; (d) A statement that
siblings,
grandparents, other relatives or caregivers (or yayas) on the advice of a he
shall be used in any advertisements (ii)for infant formula
a statement of the superiority of breastfeeding; use and the proper m
and breastmilk supplements;
(iii) a statement that the product shall be used only (e) Instructions for ap
b. The term "humanized," "maternalized,"
on the advice"closeoftoa health worker as to the need for its warning against the h
mother's milk" or similar words in use describing
and the proper methods of use; and preparation; and
breastmilk substitutes or milk supplements;
(iv) instructions for appropriate preparation, and a (f) The health hazard
c. Pictures or texts that idealize thewarning
use of infant
againstandthe health hazards of inappropriate of infant formula and
milk formula. preparation. including information
may contain pathoge
Section 16. All health and nutrition claims for prepared and used ap
products within the scope of the Code are absolutely
prohibited. For this purpose, any phrase or words

184
5. The Milk Code allows dissemination of information on infant regulations promulgated by the Ministry of Health. i. Milk companies, an
formula to health professionals; the RIRR totally prohibits such not form part of any
activity: relation to the advan

MILK CODE RIRR SECTION 22. No man


SECTION 7. Health Care System. – Section 22. No manufacturer, distributor, or representatives of pr
representatives of products covered by the Code shall be allowed to conduc
(b) No facility of the health care system shall be used be allowed to conduct or be involved in any activity on breastfeeding pro
for the purpose of promoting infant formula or other on breastfeeding promotion, education and production of Inform
products within the scope of this Code. This Code production of Information, Education and Communication (IEC)
does not, however, preclude the dissemination of Communication (IEC) materials on breastfeeding, holdin
information to health professionals as provided in breastfeeding, holding of or participating as speakers in classes or seminars
Section 8(b). in classes or seminars for women and children activities and to avoid
activities and to avoid the use of these venues to market their brands o
SECTION 8. Health Workers. - market their brands or company names.
SECTION 32. Primary
SECTION 16. All health and nutrition claims for Workers - It is the pri
(b) Information provided by manufacturers and
products within the scope of the Code are absolutely workers to promote,
distributors to health professionals regarding
prohibited. For this purpose, any phrase or words breastfeeding and ap
products within the scope of this Code shall be
that connotes to increase emotional, intellectual feeding. Part of this r
restricted to scientific and factual matters and such
abilities of the infant and young child and other like update their knowled
information shall not imply or create a belief that
phrases shall not be allowed. breastfeeding. No ass
bottle-feeding is equivalent or superior to
training from milk co
breastfeeding. It shall also include the information
specified in Section 5(b).
7. The Milk Code regulates the giving of donations; RIRR absolutely
prohibits it.
6. The Milk Code permits milk manufacturers and distributors to
extend assistance in research and continuing education of health
professionals; RIRR absolutely forbids the same. MILK CODE RIRR
SECTION 6. The General Public and Mothers. – Section 51. Donation
MILK CODE RIRR Code - Donations of p
(f) Nothing herein contained shall prevent donations covered under the M
SECTION 8. Health Workers – Section 4. Declaration of Principles –
from manufacturers and distributors of products rules and regulations
within the scope of this Code upon request by or with
(e) Manufacturers and distributors of products within The following are the underlying principles from
the approval of the Ministry of Health. Section 52. Other Do
the scope of this Code may assist in the research, which the revised rules and regulations are premised
Covered by this Code
scholarships and continuing education, of health upon:
equipments, and the
professionals, in accordance with the rules and

185
the scope of this Code or these Rules, given by milk on the gravity and ex
companies and their agents, representatives, addition thereto, the
whether in kind or in cash, may only be coursed of the CPR, suspensio
through the Inter Agency Committee (IAC), which (LTO) for one year;
shall determine whether such donation be accepted
or otherwise. e) 5th and succeeding
Administrative Fine o
8. The RIRR provides for administrative sanctions not imposed by the Pesos, the recall of th
Milk Code. cancellation of the CP
Operate (LTO) of the
MILK CODE RIRR the blacklisting of the
Department of Budge
Section 46. Administrative Sanctions. – The following
the Department of Tr
administrative sanctions shall be imposed upon any
person, juridical or natural, found to have violated
f) An additional pena
the provisions of the Code and its implementing Rules
Hundred (P2,500.00)
and Regulations:
every day the violatio
received the order fro
a) 1st violation – Warning;
appropriate body, no
company for the infra
b) 2nd violation – Administrative fine of a minimum of
Ten Thousand (P10,000.00) to Fifty Thousand
For purposes of deter
(P50,000.00) Pesos, depending on the gravity and
"repeated" violation,
extent of the violation, including the recall of the
belonging or owned b
offending product;
their subsidiaries, are
concerned milk comp
c) 3rd violation – Administrative Fine of a minimum of the specific violating
Sixty Thousand (P60,000.00) to One Hundred Fifty
Thousand (P150,000.00) Pesos, depending on the
9. The RIRR provides for repeal of existing laws to the contrary.
gravity and extent of the violation, and in addition
thereto, the recall of the offending product, and
suspension of the The Court shall
Certificate resolve the
of Product merits of the allegations of petitioner seriatim.
Registration
(CPR);
1. Petitioner is mistaken in its claim that the Milk Code's coverage is limited
th only to childrenFine
d) 4 violation –Administrative 0-12ofmonths old. Section
a minimum of 3 of the Milk Code states:
Two Hundred Thousand (P200,000.00) to Five
SECTION Pesos,
Hundred (P500,000.00) Thousand 3. Scope of the Code – The Code applies to the marketing,
depending
and practices related thereto, of the following products: breastmilk

186
substitutes, including infant formula; other milk products, foods and There is, therefore, nothing objectionable with Sections 242 and 5(ff)43 of the
beverages, including bottle-fed complementary foods, when marketed RIRR.
or otherwise represented to be suitable, with or without modification,
for use as a partial or total replacement of breastmilk; feeding bottles 2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code,
and teats. It also applies to their quality and availability, and to does not recognize that breastmilk substitutes may be a proper and possible
information concerning their use. substitute for breastmilk.

Clearly, the coverage of the Milk Code is not dependent on the age of the child The entirety of the RIRR, not merely truncated portions thereof, must be
but on the kind of product being marketed to the public. The law treats infant considered and construed together. As held in De Luna v. Pascual,44 "[t]he
formula, bottle-fed complementary food, and breastmilk substitute as separate particular words, clauses and phrases in the Rule should not be studied as
and distinct product categories. detached and isolated expressions, but the whole and every part thereof must
be considered in fixing the meaning of any of its parts and in order to produce a
Section 4(h) of the Milk Code defines infant formula as "a breastmilk substitute harmonious whole."
x x x to satisfy the normal nutritional requirements of infants up to between
four to six months of age, and adapted to their physiological characteristics"; Section 7 of the RIRR provides that "when medically indicated and only when
while under Section 4(b), bottle-fed complementary food refers to "any food, necessary, the use of breastmilk substitutes is proper if based on complete
whether manufactured or locally prepared, suitable as a complement to and updated information." Section 8 of the RIRR also states that information
breastmilk or infant formula, when either becomes insufficient to satisfy the and educational materials should include information on the proper use of
nutritional requirements of the infant." An infant under Section 4(e) is a person infant formula when the use thereof is needed.
falling within the age bracket 0-12 months. It is the nourishment of this group
of infants or children aged 0-12 months that is sought to be promoted and Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases,
protected by the Milk Code. the use of breastmilk substitutes may be proper.

But there is another target group. Breastmilk substitute is defined under 3. The Court shall ascertain the merits of allegations 3 45 and 446 together as
Section 4(a) as "any food being marketed or otherwise presented as a partial or they are interlinked with each other.
total replacement for breastmilk, whether or not suitable for that
purpose." This section conspicuously lacks reference to any particular age-
To resolve the question of whether the labeling requirements and advertising
group of children. Hence, the provision of the Milk Code cannot be
regulations under the RIRR are valid, it is important to deal first with the
considered exclusive for children aged 0-12 months. In other words,
nature, purpose, and depth of the regulatory powers of the DOH, as defined in
breastmilk substitutes may also be intended for young children more than 12
general under the 1987 Administrative Code,47 and as delegated in particular
months of age. Therefore, by regulating breastmilk substitutes, the Milk Code
under the Milk Code.
also intends to protect and promote the nourishment of children more than 12
months old.
Health is a legitimate subject matter for regulation by the DOH (and certain
other administrative agencies) in exercise of police powers delegated to it. The
Evidently, as long as what is being marketed falls within the scope of the Milk
sheer span of jurisprudence on that matter precludes the need to further
Code as provided in Section 3, then it can be subject to regulation pursuant to
discuss it..48 However, health information, particularly advertising materials on
said law, even if the product is to be used by children aged over 12 months.

187
apparently non-toxic products like breastmilk substitutes and supplements, is a (1) To promulgate such rules and regulations as are necessary
relatively new area for regulation by the DOH.49 or proper for the implementation of this Code and the
accomplishment of its purposes and objectives.
As early as the 1917 Revised Administrative Code of the Philippine
Islands,50 health information was already within the ambit of the regulatory xxxx
powers of the predecessor of DOH.51 Section 938 thereof charged it with the
duty to protect the health of the people, and vested it with such powers as "(g) (4) To exercise such other powers and functions as may be
the dissemination of hygienic information among the people and especially the necessary for or incidental to the attainment of the purposes
inculcation of knowledge as to the proper care of infants and the methods of and objectives of this Code.
preventing and combating dangerous communicable diseases."
SECTION 5. Information and Education –
Seventy years later, the 1987 Administrative Code tasked respondent DOH to
carry out the state policy pronounced under Section 15, Article II of the 1987 (a) The government shall ensure that objective and
Constitution, which is "to protect and promote the right to health of the people consistent information is provided on infant feeding, for use by
and instill health consciousness among them."52 To that end, it was granted families and those involved in the field of infant nutrition. This
under Section 3 of the Administrative Code the power to "(6) propagate health responsibility shall cover the planning, provision, design and
information and educate the population on important health, medical and dissemination of information, and the control thereof, on infant
environmental matters which have health implications."53 nutrition. (Emphasis supplied)

When it comes to information regarding nutrition of infants and young Further, DOH is authorized by the Milk Code to control the content of any
children, however, the Milk Code specifically delegated to the Ministry of information on breastmilk vis-à-vis breastmilk substitutes, supplement and
Health (hereinafter referred to as DOH) the power to ensure that there is related products, in the following manner:
adequate, consistent and objective information on breastfeeding and use of
breastmilk substitutes, supplements and related products; and the power
SECTION 5. x x x
to control such information. These are expressly provided for in Sections 12
and 5(a), to wit:
(b) Informational and educational materials, whether written, audio,
or visual, dealing with the feeding of infants and intended to reach
SECTION 12. Implementation and Monitoring –
pregnant women and mothers of infants, shall include clear
information on all the following points: (1) the benefits and superiority
xxxx of breastfeeding; (2) maternal nutrition, and the preparation for and
maintenance of breastfeeding; (3) the negative effect on
(b) The Ministry of Health shall be principally responsible for the breastfeeding of introducing partial bottlefeeding; (4) the difficulty of
implementation and enforcement of the provisions of this Code. For reversing the decision not to breastfeed; and (5) where needed, the
this purpose, the Ministry of Health shall have the following powers proper use of infant formula, whether manufactured industrially or
and functions: home-prepared. When such materials contain information about the
use of infant formula, they shall include the social and financial
implications of its use; the health hazards of inappropriate foods or

188
feeding methods; and, in particular, the health hazards of absolutely prohibit the advertising, marketing, and promotion of breastmilk
unnecessary or improper use of infant formula and other breastmilk substitutes.
substitutes. Such materials shall not use any picture or text which
may idealize the use of breastmilk substitutes. The following are the provisions of the Milk Code that unequivocally indicate
that the control over information given to the DOH is not absolute and that
SECTION 8. Health Workers – absolute prohibition is not contemplated by the Code:

xxxx a) Section 2 which requires adequate information and appropriate


marketing and distribution of breastmilk substitutes, to wit:
(b) Information provided by manufacturers and distributors to health
professionals regarding products within the scope of this Code shall be SECTION 2. Aim of the Code – The aim of the Code is to
restricted to scientific and factual matters, and such information contribute to the provision of safe and adequate nutrition for
shall not imply or create a belief that bottlefeeding is equivalent or infants by the protection and promotion of breastfeeding and
superior to breastfeeding. It shall also include the information by ensuring the proper use of breastmilk substitutes and
specified in Section 5(b). breastmilk supplements when these are necessary, on the
basis of adequate information and through appropriate
SECTION 10. Containers/Label – marketing and distribution.

(a) Containers and/or labels shall be designed to provide the necessary b) Section 3 which specifically states that the Code applies to the
information about the appropriate use of the products, and in such a marketing of and practices related to breastmilk substitutes, including
way as not to discourage breastfeeding. infant formula, and to information concerning their use;

xxxx c) Section 5(a) which provides that the government shall ensure that
objective and consistent information is provided on infant feeding;
(d) The term "humanized," "maternalized" or similar terms shall not be
used. (Emphasis supplied) d) Section 5(b) which provides that written, audio or visual
informational and educational materials shall not use any picture or
The DOH is also authorized to control the purpose of the information and to text which may idealize the use of breastmilk substitutes and should
whom such information may be disseminated under Sections 6 through 9 of include information on the health hazards of unnecessary or improper
the Milk Code54 to ensure that the information that would reach pregnant use of said product;
women, mothers of infants, and health professionals and workers in the health
care system is restricted to scientific and factual matters and shall not imply or e) Section 6(a) in relation to Section 12(a) which creates and
create a belief that bottlefeeding is equivalent or superior to breastfeeding. empowers the IAC to review and examine advertising, promotion, and
other marketing materials;
It bears emphasis, however, that the DOH's power under the Milk Code
to control information regarding breastmilk vis-a-vis breastmilk substitutes is f) Section 8(b) which states that milk companies may provide
not absolute as the power to control does not encompass the power to information to health professionals but such information should be

189
restricted to factual and scientific matters and shall not imply or These provisions of the Milk Code expressly forbid information that would
create a belief that bottlefeeding is equivalent or superior to imply or create a belief that there is any milk product equivalent to breastmilk
breastfeeding; and or which is humanized or maternalized, as such information would be
inconsistent with the superiority of breastfeeding.
g) Section 10 which provides that containers or labels should not
contain information that would discourage breastfeeding and idealize It may be argued that Section 8 of the Milk Code refers only to information
the use of infant formula. given to health workers regarding breastmilk substitutes, not to containers and
labels thereof. However, such restrictive application of Section 8(b) will result
It is in this context that the Court now examines the assailed provisions of the in the absurd situation in which milk companies and distributors are forbidden
RIRR regarding labeling and advertising. to claim to health workers that their products are substitutes or equivalents of
breastmilk, and yet be allowed to display on the containers and labels of their
Sections 1355 on "total effect" and 2656 of Rule VII of the RIRR contain some products the exact opposite message. That askewed interpretation of the Milk
labeling requirements, specifically: a) that there be a statement that there is no Code is precisely what Section 5(a) thereof seeks to avoid by mandating that all
substitute to breastmilk; and b) that there be a statement that powdered infant information regarding breastmilk vis-a-vis breastmilk substitutes be consistent,
formula may contain pathogenic microorganisms and must be prepared and at the same time giving the government control over planning, provision,
used appropriately. Section 1657 of the RIRR prohibits all health and nutrition design, and dissemination of information on infant feeding.
claims for products within the scope of the Milk Code, such as claims of
increased emotional and intellectual abilities of the infant and young child. Thus, Section 26(c) of the RIRR which requires containers and labels to state
that the product offered is not a substitute for breastmilk, is a reasonable
These requirements and limitations are consistent with the provisions of means of enforcing Section 8(b) of the Milk Code and deterring circumvention
Section 8 of the Milk Code, to wit: of the protection and promotion of breastfeeding as embodied in Section 2 60 of
the Milk Code.
SECTION 8. Health workers -
Section 26(f)61 of the RIRR is an equally reasonable labeling requirement. It
implements Section 5(b) of the Milk Code which reads:
xxxx

SECTION 5. x x x
(b) Information provided by manufacturers and distributors to health
professionals regarding products within the scope of this Code shall
be restricted to scientific and factual matters, and such xxxx
information shall not imply or create a belief that bottlefeeding
is equivalent or superior to breastfeeding. It shall also include the (b) Informational and educational materials, whether written, audio,
information specified in Section 5.58 (Emphasis supplied) or visual, dealing with the feeding of infants and intended to reach
pregnant women and mothers of infants, shall include clear
and Section 10(d)59 which bars the use on containers and labels of the terms information on all the following points: x x x (5) where needed, the
"humanized," "maternalized," or similar terms. proper use of infant formula, whether manufactured industrially or
home-prepared. When such materials contain information about the
use of infant formula, they shall include the social and financial

190
implications of its use; the health hazards of inappropriate foods or the Milk Code invested regulatory authority over advertising, promotional and
feeding methods; and, in particular, the health hazards of marketing materials to an IAC, thus:
unnecessary or improper use of infant formula and other breastmilk
substitutes. Such materials shall not use any picture or text which may SECTION 12. Implementation and Monitoring -
idealize the use of breastmilk substitutes. (Emphasis supplied)
(a) For purposes of Section 6(a) of this Code, an inter-agency
The label of a product contains information about said product intended for committee composed of the following members is hereby created:
the buyers thereof. The buyers of breastmilk substitutes are mothers of infants,
and Section 26 of the RIRR merely adds a fair warning about the likelihood of
pathogenic microorganisms being present in infant formula and other related Minister of Health -------------------
products when these are prepared and used inappropriately.
Minister of Trade and Industry -------------------
Petitioner’s counsel has admitted during the hearing on June 19, 2007 that Minister of Justice -------------------
formula milk is prone to contaminations and there is as yet no technology that
allows production of powdered infant formula that eliminates all forms of Minister of Social Services and Development -------------------
contamination.62

Ineluctably, the requirement under Section 26(f) of the RIRR for the label to The members may designate their duly authorized representative to
every meeting of the Committee.
contain the message regarding health hazards including the possibility of
contamination with pathogenic microorganisms is in accordance with Section
5(b) of the Milk Code. The Committee shall have the following powers and functions:

The authority of DOH to control information regarding breastmilk vis-a- (1) To review and examine all advertising. promotion or other
vis breastmilk substitutes and supplements and related products cannot be marketing materials, whether written, audio or visual, on
questioned. It is its intervention into the area of advertising, promotion, and products within the scope of this Code;
marketing that is being assailed by petitioner.
(2) To approve or disapprove, delete objectionable portions
In furtherance of Section 6(a) of the Milk Code, to wit: from and prohibit the printing, publication, distribution,
exhibition and broadcast of, all advertising promotion or
other marketing materials, whether written, audio or visual,
SECTION 6. The General Public and Mothers. –
on products within the scope of this Code;
(a) No advertising, promotion or other marketing materials, whether
(3) To prescribe the internal and operational procedure for
written, audio or visual, for products within the scope of this Code
the exercise of its powers and functions as well as the
shall be printed, published, distributed, exhibited and broadcast unless
performance of its duties and responsibilities; and
such materials are duly authorized and approved by an inter-agency
committee created herein pursuant to the applicable standards
provided for in this Code.

191
(4) To promulgate such rules and regulations as are SOLICITOR GENERAL DEVANADERA:
necessary or proper for the implementation of Section 6(a)
of this Code. x x x (Emphasis supplied) xxxx

However, Section 11 of the RIRR, to wit: x x x Now, the crux of the matter that is being questioned by
Petitioner is whether or not there is an absolute prohibition on
SECTION 11. Prohibition – No advertising, promotions, sponsorships, advertising making AO 2006-12 unconstitutional. We maintained that
or marketing materials and activities for breastmilk substitutes what AO 2006-12 provides is not an absolute prohibition because
intended for infants and young children up to twenty-four (24) Section 11 while it states and it is entitled prohibition it states that no
months, shall be allowed, because they tend to convey or give advertising, promotion, sponsorship or marketing materials and
subliminal messages or impressions that undermine breastmilk and activities for breast milk substitutes intended for infants and young
breastfeeding or otherwise exaggerate breastmilk substitutes and/or children up to 24 months shall be allowed because this is the standard
replacements, as well as related products covered within the scope of they tend to convey or give subliminal messages or impression
this Code. undermine that breastmilk or breastfeeding x x x.

prohibits advertising, promotions, sponsorships or marketing materials and We have to read Section 11 together with the other Sections because
activities for breastmilk substitutes in line with the RIRR’s declaration of the other Section, Section 12, provides for the inter agency committee
principle under Section 4(f), to wit: that is empowered to process and evaluate all the advertising and
promotion materials.
SECTION 4. Declaration of Principles –
xxxx
xxxx
What AO 2006-12, what it does, it does not prohibit the sale and
(f) Advertising, promotions, or sponsorships of infant formula, manufacture, it simply regulates the advertisement and the
breastmilk substitutes and other related products are prohibited. promotions of breastfeeding milk substitutes.

The DOH, through its co-respondents, evidently arrogated to itself not only the xxxx
regulatory authority given to the IAC but also imposed absolute prohibition on
advertising, promotion, and marketing. Now, the prohibition on advertising, Your Honor, must be taken
together with the provision on the Inter-Agency Committee that
Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the processes and evaluates because there may be some information
Milk Code in Section 6 thereof for prior approval by IAC of all advertising, dissemination that are straight forward information dissemination.
marketing and promotional materials prior to dissemination. What the AO 2006 is trying to prevent is any material that will
undermine the practice of breastfeeding, Your Honor.
Even respondents, through the OSG, acknowledged the authority of IAC, and
repeatedly insisted, during the oral arguments on June 19, 2007, that the xxxx
prohibition under Section 11 is not actually operational, viz:

192
ASSOCIATE JUSTICE SANTIAGO: Yes, your Honor.

Madam Solicitor General, under the Milk Code, which body has ASSOCIATE JUSTICE NAZARIO:
authority or power to promulgate Rules and Regulations regarding the
Advertising, Promotion and Marketing of Breastmilk Substitutes? But, would you nevertheless agree that there is an absolute ban on
advertising of breastmilk substitutes intended for children two (2)
SOLICITOR GENERAL DEVANADERA: years old and younger?

Your Honor, please, it is provided that the Inter-Agency Committee, SOLICITOR GENERAL DEVANADERA:
Your Honor.
It's not an absolute ban, Your Honor, because we have the Inter-
xxxx Agency Committee that can evaluate some advertising and
promotional materials, subject to the standards that we have stated
ASSOCIATE JUSTICE SANTIAGO: earlier, which are- they should not undermine breastfeeding, Your
Honor.
x x x Don't you think that the Department of Health overstepped its
rule making authority when it totally banned advertising and xxxx
promotion under Section 11 prescribed the total effect rule as well as
the content of materials under Section 13 and 15 of the rules and x x x Section 11, while it is titled Prohibition, it must be taken in
regulations? relation with the other Sections, particularly 12 and 13 and 15, Your
Honor, because it is recognized that the Inter-Agency Committee has
SOLICITOR GENERAL DEVANADERA: that power to evaluate promotional materials, Your Honor.

Your Honor, please, first we would like to stress that there is no total ASSOCIATE JUSTICE NAZARIO:
absolute ban. Second, the Inter-Agency Committee is under the
Department of Health, Your Honor. So in short, will you please clarify there's no absolute ban on
advertisement regarding milk substitute regarding infants two (2)
xxxx years below?

ASSOCIATE JUSTICE NAZARIO: SOLICITOR GENERAL DEVANADERA:

x x x Did I hear you correctly, Madam Solicitor, that there is no We can proudly say that the general rule is that there is a prohibition,
absolute ban on advertising of breastmilk substitutes in the Revised however, we take exceptions and standards have been set. One of
Rules? which is that, the Inter-Agency Committee can allow if the advertising
and promotions will not undermine breastmilk and breastfeeding,
SOLICITOR GENERAL DEVANADERA: Your Honor.63

193
Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code. (b) Information provided by manufacturers and distributors to health
professionals regarding products within the scope of this Code shall be
However, although it is the IAC which is authorized to promulgate rules and restricted to scientific and factual matters and such information shall
regulations for the approval or rejection of advertising, promotional, or other not imply or create a belief that bottle feeding is equivalent or
marketing materials under Section 12(a) of the Milk Code, said provision must superior to breastfeeding. It shall also include the information
be related to Section 6 thereof which in turn provides that the rules and specified in Section 5(b).
regulations must be "pursuant to the applicable standards provided for in this
Code." Said standards are set forth in Sections 5(b), 8(b), and 10 of the Code, xxxx
which, at the risk of being repetitious, and for easy reference, are quoted
hereunder: SECTION 10. Containers/Label –

SECTION 5. Information and Education – (a) Containers and/or labels shall be designed to provide the necessary
information about the appropriate use of the products, and in such a
xxxx way as not to discourage breastfeeding.

(b) Informational and educational materials, whether written, audio, (b) Each container shall have a clear, conspicuous and easily readable
or visual, dealing with the feeding of infants and intended to reach and understandable message in Pilipino or English printed on it, or on
pregnant women and mothers of infants, shall include clear a label, which message can not readily become separated from it, and
information on all the following points: (1) the benefits and superiority which shall include the following points:
of breastfeeding; (2) maternal nutrition, and the preparation for and
maintenance of breastfeeding; (3) the negative effect on (i) the words "Important Notice" or their equivalent;
breastfeeding of introducing partial bottlefeeding; (4) the difficulty of
reversing the decision not to breastfeed; and (5) where needed, the (ii) a statement of the superiority of breastfeeding;
proper use of infant formula, whether manufactured industrially or
home-prepared. When such materials contain information about the
(iii) a statement that the product shall be used only on the
use of infant formula, they shall include the social and financial
advice of a health worker as to the need for its use and the
implications of its use; the health hazards of inappropriate foods of
proper methods of use; and
feeding methods; and, in particular, the health hazards of unnecessary
or improper use of infant formula and other breastmilk substitutes.
(iv) instructions for appropriate preparation, and a warning
Such materials shall not use any picture or text which may idealize the
against the health hazards of inappropriate preparation.
use of breastmilk substitutes.

Section 12(b) of the Milk Code designates the DOH as the principal
xxxx
implementing agency for the enforcement of the provisions of the Code. In
relation to such responsibility of the DOH, Section 5(a) of the Milk Code states
SECTION 8. Health Workers. –
that:

xxxx

194
SECTION 5. Information and Education – x x x [T]his Court had, in the past, accepted as sufficient standards the
following: "public interest," "justice and equity," "public convenience
(a) The government shall ensure that objective and and welfare," and "simplicity, economy and welfare." 65
consistent information is provided on infant feeding, for use by
families and those involved in the field of infant nutrition. This In this case, correct information as to infant feeding and nutrition is infused
responsibility shall cover the planning, provision, design and with public interest and welfare.
dissemination of information, and the control thereof, on infant
nutrition. (Emphasis supplied) 4. With regard to activities for dissemination of information to health
professionals, the Court also finds that there is no inconsistency between the
Thus, the DOH has the significant responsibility to translate into operational provisions of the Milk Code and the RIRR. Section 7(b)66 of the Milk Code, in
terms the standards set forth in Sections 5, 8, and 10 of the Milk Code, by relation to Section 8(b)67 of the same Code, allows dissemination of
which the IAC shall screen advertising, promotional, or other marketing information to health professionals but such information is restricted to
materials. scientific and factual matters.

It is pursuant to such responsibility that the DOH correctly provided for Section Contrary to petitioner's claim, Section 22 of the RIRR does not prohibit
13 in the RIRR which reads as follows: the giving of information to health professionals on scientific and factual
matters. What it prohibits is the involvement of the manufacturer and
SECTION 13. "Total Effect" - Promotion of products within the scope of distributor of the products covered by the Code in activities for the promotion,
this Code must be objective and should not equate or make the education and production of Information, Education and Communication (IEC)
product appear to be as good or equal to breastmilk or breastfeeding materials regarding breastfeeding that are intended for women and children.
in the advertising concept. It must not in any case undermine Said provision cannot be construed to encompass even the dissemination of
breastmilk or breastfeeding. The "total effect" should not directly or information to health professionals, as restricted by the Milk Code.
indirectly suggest that buying their product would produce better
individuals, or resulting in greater love, intelligence, ability, harmony 5. Next, petitioner alleges that Section 8(e)68 of the Milk Code permits milk
or in any manner bring better health to the baby or other such manufacturers and distributors to extend assistance in research and in the
exaggerated and unsubstantiated claim. continuing education of health professionals, while Sections 22 and 32 of the
RIRR absolutely forbid the same. Petitioner also assails Section 4(i)69 of the RIRR
Such standards bind the IAC in formulating its rules and regulations on prohibiting milk manufacturers' and distributors' participation in any
advertising, promotion, and marketing. Through that single provision, the DOH policymaking body in relation to the advancement of breastfeeding.
exercises control over the information content of advertising, promotional and
marketing materials on breastmilk vis-a-vis breastmilk substitutes, supplements Section 4(i) of the RIRR provides that milk companies and their representatives
and other related products. It also sets a viable standard against which the IAC should not form part of any policymaking body or entity in relation to the
may screen such materials before they are made public. advancement of breastfeeding. The Court finds nothing in said provisions which
contravenes the Milk Code. Note that under Section 12(b) of the Milk Code, it
In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,64 the Court held: is the DOH which shall be principally responsible for the implementation and
enforcement of the provisions of said Code. It is entirely up to the DOH to
decide which entities to call upon or allow to be part of policymaking bodies on

195
breastfeeding. Therefore, the RIRR's prohibition on milk companies’ substitutes upon the request or with the approval of the DOH. The law does
participation in any policymaking body in relation to the advancement of not proscribe the refusal of donations. The Milk Code leaves it purely to the
breastfeeding is in accord with the Milk Code. discretion of the DOH whether to request or accept such donations. The DOH
then appropriately exercised its discretion through Section 5175 of the RIRR
Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits milk which sets forth its policy not to request or approve donations from
companies from giving reasearch assistance and continuing education to health manufacturers and distributors of breastmilk substitutes.
professionals. Section 2270 of the RIRR does not pertain to research assistance
to or the continuing education of health professionals; rather, it deals with It was within the discretion of the DOH when it provided in Section 52 of the
breastfeeding promotion and education for women and children. Nothing in RIRR that any donation from milk companies not covered by the Code should
Section 22 of the RIRR prohibits milk companies from giving assistance for be coursed through the IAC which shall determine whether such donation
research or continuing education to health professionals; hence, petitioner's should be accepted or refused. As reasoned out by respondents, the DOH is not
argument against this particular provision must be struck down. mandated by the Milk Code to accept donations. For that matter, no person or
entity can be forced to accept a donation. There is, therefore, no real
It is Sections 971 and 1072 of the RIRR which govern research assistance. Said inconsistency between the RIRR and the law because the Milk Code does not
sections of the RIRR provide that research assistance for health workers and prohibit the DOH from refusing donations.
researchers may be allowed upon approval of an ethics committee, and with
certain disclosure requirements imposed on the milk company and on the 7. With regard to Section 46 of the RIRR providing for administrative sanctions
recipient of the research award. that are not found in the Milk Code, the Court upholds petitioner's objection
thereto.
The Milk Code endows the DOH with the power to determine how such
research or educational assistance may be given by milk companies or under Respondent's reliance on Civil Aeronautics Board v. Philippine Air Lines, Inc.76 is
what conditions health workers may accept the assistance. Thus, Sections 9 misplaced. The glaring difference in said case and the present case before the
and 10 of the RIRR imposing limitations on the kind of research done or extent Court is that, in the Civil Aeronautics Board, the Civil Aeronautics
of assistance given by milk companies are completely in accord with the Milk Administration (CAA) was expressly granted by the law (R.A. No. 776) the
Code. power to impose fines and civil penalties, while the Civil Aeronautics Board
(CAB) was granted by the same law the power to review on appeal the order or
Petitioner complains that Section 3273 of the RIRR prohibits milk companies decision of the CAA and to determine whether to impose, remit, mitigate,
from giving assistance, support, logistics or training to health workers. This increase or compromise such fine and civil penalties. Thus, the Court upheld
provision is within the prerogative given to the DOH under Section 8(e) 74 of the the CAB's Resolution imposing administrative fines.
Milk Code, which provides that manufacturers and distributors of breastmilk
substitutes may assist in researches, scholarships and the continuing education, In a more recent case, Perez v. LPG Refillers Association of the Philippines,
of health professionals in accordance with the rules and regulations Inc.,77 the Court upheld the Department of Energy (DOE) Circular No. 2000-06-
promulgated by the Ministry of Health, now DOH. 10 implementing Batas Pambansa (B.P.) Blg. 33. The circular provided for fines
for the commission of prohibited acts. The Court found that nothing in the
6. As to the RIRR's prohibition on donations, said provisions are also consistent circular contravened the law because the DOE was expressly authorized by
with the Milk Code. Section 6(f) of the Milk Code provides that B.P. Blg. 33 and R.A. No. 7638 to impose fines or penalties.
donations may be made by manufacturers and distributors of breastmilk

196
In the present case, neither the Milk Code nor the Revised Administrative Code Section 57 reads:
grants the DOH the authority to fix or impose administrative fines. Thus,
without any express grant of power to fix or impose such fines, the DOH cannot SECTION 57. Repealing Clause - All orders, issuances, and rules and
provide for those fines in the RIRR. In this regard, the DOH again exceeded its regulations or parts thereof inconsistent with these revised rules and
authority by providing for such fines or sanctions in Section 46 of the RIRR. Said implementing regulations are hereby repealed or modified
provision is, therefore, null and void. accordingly.

The DOH is not left without any means to enforce its rules and regulations. Section 57 of the RIRR does not provide for the repeal of laws but only orders,
Section 12(b) (3) of the Milk Code authorizes the DOH to "cause the issuances and rules and regulations. Thus, said provision is valid as it is within
prosecution of the violators of this Code and other pertinent laws on products the DOH's rule-making power.
covered by this Code." Section 13 of the Milk Code provides for the penalties to
be imposed on violators of the provision of the Milk Code or the rules and An administrative agency like respondent possesses quasi-legislative or rule-
regulations issued pursuant to it, to wit: making power or the power to make rules and regulations which results in
delegated legislation that is within the confines of the granting statute and the
SECTION 13. Sanctions – Constitution, and subject to the doctrine of non-delegability and separability of
powers.78 Such express grant of rule-making power necessarily includes the
(a) Any person who violates the provisions of this Code or the rules power to amend, revise, alter, or repeal the same.79 This is to allow
and regulations issued pursuant to this Code shall, upon conviction, administrative agencies flexibility in formulating and adjusting the details and
be punished by a penalty of two (2) months to one (1) year manner by which they are to implement the provisions of a law,80 in order to
imprisonment or a fine of not less than One Thousand Pesos make it more responsive to the times. Hence, it is a standard provision in
(P1,000.00) nor more than Thirty Thousand Pesos (P30,000.00) or administrative rules that prior issuances of administrative agencies that are
both. Should the offense be committed by a juridical person, the inconsistent therewith are declared repealed or modified.
chairman of the Board of Directors, the president, general manager, or
the partners and/or the persons directly responsible therefor, shall be In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of the
penalized. DOH to promulgate and in contravention of the Milk Code and, therefore, null
and void. The rest of the provisions of the RIRR are in consonance with the Milk
(b) Any license, permit or authority issued by any government agency Code.
to any health worker, distributor, manufacturer, or marketing firm or
personnel for the practice of their profession or occupation, or for the Lastly, petitioner makes a "catch-all" allegation that:
pursuit of their business, may, upon recommendation of the Ministry
of Health, be suspended or revoked in the event of repeated violations x x x [T]he questioned RIRR sought to be implemented by the
of this Code, or of the rules and regulations issued pursuant to this Respondents is unnecessary and oppressive, and is offensive to the
Code. (Emphasis supplied) due process clause of the Constitution, insofar as the same is in
restraint of trade and because a provision therein is inadequate to
8. Petitioner’s claim that Section 57 of the RIRR repeals existing laws that are provide the public with a comprehensible basis to determine whether
contrary to the RIRR is frivolous. or not they have committed a violation.81 (Emphasis supplied)

197
Petitioner refers to Sections 4(f),82 4(i),83 5(w),84 11,85 22,86 32,87 46,88 and SECTION 5 x x x. (w) "Milk Company" shall refer to the owner,
5289 as the provisions that suppress the trade of milk and, thus, violate the due manufacturer, distributor of infant formula, follow-up milk, milk
process clause of the Constitution. formula, milk supplement, breastmilk substitute or replacement, or by
any other description of such nature, including their representatives
The framers of the constitution were well aware that trade must be subjected who promote or otherwise advance their commercial interests in
to some form of regulation for the public good. Public interest must be upheld marketing those products;
over business interests.90 In Pest Management Association of the Philippines v.
Fertilizer and Pesticide Authority,91 it was held thus: On the other hand, Section 4 of the Milk Code provides:

x x x Furthermore, as held in Association of Philippine Coconut (d) "Distributor" means a person, corporation or any other entity in
Desiccators v. Philippine Coconut Authority, despite the fact that "our the public or private sector engaged in the business (whether directly
present Constitution enshrines free enterprise as a policy, it or indirectly) of marketing at the wholesale or retail level a product
nonetheless reserves to the government the power to intervene within the scope of this Code. A "primary distributor" is a
whenever necessary to promote the general welfare." There can be manufacturer's sales agent, representative, national distributor or
no question that the unregulated use or proliferation of pesticides broker.
would be hazardous to our environment. Thus, in the aforecited case,
the Court declared that "free enterprise does not call for removal of xxxx
‘protective regulations’." x x x It must be clearly explained and
proven by competent evidence just exactly how such protective (j) "Manufacturer" means a corporation or other entity in the public or
regulation would result in the restraint of trade. [Emphasis and private sector engaged in the business or function (whether directly or
underscoring supplied] indirectly or through an agent or and entity controlled by or under
contract with it) of manufacturing a products within the scope of this
In this case, petitioner failed to show that the proscription of milk Code.
manufacturers’ participation in any policymaking body (Section 4(i)), classes
and seminars for women and children (Section 22); the giving of assistance, Notably, the definition in the RIRR merely merged together under the term
support and logistics or training (Section 32); and the giving of donations "milk company" the entities defined separately under the Milk Code as
(Section 52) would unreasonably hamper the trade of breastmilk substitutes. "distributor" and "manufacturer." The RIRR also enumerated in Section 5(w)
Petitioner has not established that the proscribed activities are indispensable the products manufactured or distributed by an entity that would qualify it as a
to the trade of breastmilk substitutes. Petitioner failed to demonstrate that the "milk company," whereas in the Milk Code, what is used is the phrase
aforementioned provisions of the RIRR are unreasonable and oppressive for "products within the scope of this Code." Those are the only differences
being in restraint of trade. between the definitions given in the Milk Code and the definition as re-stated
in the RIRR.
Petitioner also failed to convince the Court that Section 5(w) of the RIRR is
unreasonable and oppressive. Said section provides for the definition of the Since all the regulatory provisions under the Milk Code apply equally to both
term "milk company," to wit: manufacturers and distributors, the Court sees no harm in the RIRR providing
for just one term to encompass both entities. The definition of "milk company"

198
in the RIRR and the definitions of "distributor" and "manufacturer" provided for
under the Milk Code are practically the same.

The Court is not convinced that the definition of "milk company" provided in
the RIRR would bring about any change in the treatment or regulation of
"distributors" and "manufacturers" of breastmilk substitutes, as defined under
the Milk Code.

Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in
consonance with the objective, purpose and intent of the Milk Code,
constituting reasonable regulation of an industry which affects public health
and welfare and, as such, the rest of the RIRR do not constitute illegal restraint
of trade nor are they violative of the due process clause of the Constitution.

WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46 of


Administrative Order No. 2006-0012 dated May 12, 2006 are
declared NULL and VOID for being ultra vires. The Department of Health and
respondents are PROHIBITED from implementing said provisions.

The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar
as the rest of the provisions of Administrative Order No. 2006-0012 is
concerned.

SO ORDERED.

Puno, (Chief Justice), Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,


Corona, Carpio-Morales, Azcuna, Tinga, Chico-Nazario, Garcia, Velasco, Jr.,
Nachura, Reyes, JJ., concur.

199
Republic of the Philippines The principal petitioner is Jose Antonio U. Gonzalez, 3 President of the Malaya
SUPREME COURT Films, a movie production outfit duly registered as a single proprietorship with
Manila the Bureau of Domestic Trade. The respondent is the Board of Review for
Motion Pictures and Television, with Maria Kalaw Katigbak as its Chairman and
EN BANC Brig. Gen. Wilfredo C. Estrada as its Vice-Chairman, also named respondents.

G.R. No. L-69500 July 22, 1985 In a resolution of a sub-committee of respondent Board of October 23, 1984, a
permit to exhibit the film Kapit sa Patalim under the classification "For Adults
JOSE ANTONIO U. GONZALEZ in behalf of MALAYA FILMS, LINO BROCKA, JOSE Only," with certain changes and deletions enumerated was granted. A motion
F. LACABA, and DULCE Q. SAGUISAG, petitioners, for reconsideration was filed by petitioners stating that the classification of the
vs. film "For Adults Only" was without basis. 4 Then on November 12, 1984,
CHAIRMAN MARIA KALAW KATIGBAK, GENERAL WILFREDO C. ESTRADA respondent Board released its decision: "Acting on the applicant's Motion for
(Ret.), and THE BOARD OF REVIEW FOR MOTION PICTURES AND TELEVISION Reconsideration dated 29 October 1984, the Board, after a review of the
(BRMPT), respondents. resolution of the sub-committee and an examination of the film, Resolves to
affirm in toto the ruling of the sub-committee. Considering, however, certain
vital deficiencies in the application, the Board further Resolves to direct the
Irene R. Cortes, Perfecto V. Fernandez, Haydee Yorac and Joker P. Arroyo for
Chairman of the Board to Withheld the issuance of the Permit to exhibit until
petitioners.
these deficiencies are supplied. 5 Hence this petition.
The Solicitor General for respondents.
This Court, in a resolution of January 12, 1985, required respondent to answer.
In such pleading submitted on January 21, 1985, as one of its special and
affirmative defenses, it was alleged that the petition is moot as "respondent
Board has revoked its questioned resolution, replacing it with one immediately
FERNANDO, C.J.: granting petitioner company a permit to exhibit the film Kapit without any
deletion or cut [thus an] adjudication of the questions presented above would
In this case of first impression, a certiorari proceeding filed on January 10, be academic on the case." 6 Further: "The modified resolution of the Board, of
1985, there is a persuasive ring to the invocation of the constitutional right to course, classifies Kapit as for-adults-only, but the petition does not raise any
freedom of expression 1 of an artist—and for that matter a man of letters too— issue as to the validity of this classification. All that petitioners assail as
as the basis for a ruling on the scope of the power of respondent Board of arbitrary on the part of the Board's action are the deletions ordered in the
Review for Motion Pictures and Television and how it should be exercised. The film. 7 The prayer was for the dismissal of the petition.
dispute between the parties has been narrowed down. The motion picture in
question, Kapit sa Patalim was classified "For Adults Only." There is the further An amended petition was then filed on January 25, 1985. The main objection
issue then, also one of first impression, as to the proper test of what was the classification of the film as "For Adults Only." For petitioners, such
constitutes obscenity in view of the objections raised. Thus the relevance of classification "is without legal and factual basis and is exercised as
this constitutional command: "Arts and letters shall be under the patronage of impermissible restraint of artistic expression. The film is an integral whole and
the State. 2 all its portions, including those to which the Board now offers belated
objection, are essential for the integrity of the film. Viewed as a whole, there is

200
no basis even for the vague speculations advanced by the Board as basis for its of such right. This is not to deny that equally basic is the other important aspect
classification. 8 There was an answer to the amended petition filed on February of freedom from liability. Nonetheless, for the purposes of this litigation, the
18, 1985. It was therein asserted that the issue presented as to the previous emphasis should rightly be on freedom from censorship. It is, beyond question,
deletions ordered by the Board as well as the statutory provisions for review of a well-settled principle in our jurisdiction. As early as 1909, in the case
films and as to the requirement to submit the master negative have been all of United States v. Sedano, 14 a prosecution for libel, the Supreme Court of the
rendered moot. It was also submitted that the standard of the law for Philippines already made clear that freedom of the press consists in the right to
classifying films afford a practical and determinative yardstick for the exercise print what one chooses without any previous license. There is reaffirmation of
of judgment. For respondents, the question of the sufficiency of the standards such a view in Mutuc v. Commission on Elections, 15 where an order of
remains the only question at issue. respondent Commission on Elections giving due course to the certificate of
candidacy of petitioner but prohibiting him from using jingles in his mobile
It would be unduly restrictive under the circumstances to limit the issue to one units equipped with sound systems and loud speakers was considered an
of the sufficiency of standards to guide respondent Board in the exercise of its abridgment of the right of the freedom of expression amounting as it does to
power. Even if such were the case, there is justification for an inquiry into the censorship. It is the opinion of this Court, therefore, that to avoid an
controlling standard to warrant the classification of "For Adults Only." This is unconstitutional taint on its creation, the power of respondent Board is limited
especially so, when obscenity is the basis for any alleged invasion of the right to to the classification of films. It can, to safeguard other constitutional
the freedom of artistic and literary expression embraced in the free speech and objections, determine what motion pictures are for general patronage and
free press guarantees of the Constitution. what may require either parental guidance or be limited to adults only. That is
to abide by the principle that freedom of expression is the rule and restrictions
1. Motion pictures are important both as a medium for the communication of the exemption. The power to exercise prior restraint is not to be presumed,
Ideas and the expression of the artistic impulse. Their effects on the perception rather the presumption is against its validity. 16
by our people of issues and public officials or public figures as well as the
prevailing cultural traits is considerable. Nor as pointed out in Burstyn v. 3. The test, to repeat, to determine whether freedom of excession may be
Wilson 9 is the "importance of motion pictures as an organ of public opinion limited is the clear and present danger of an evil of a substantive character that
lessened by the fact that they are designed to entertain as well as to the State has a right to prevent. Such danger must not only be clear but also
inform. 10 There is no clear dividing line between what involves knowledge and present. There should be no doubt that what is feared may be traced to the
what affords pleasure. If such a distinction were sustained, there is a expression complained of. The causal connection must be evident. Also, there
diminution of the basic right to free expression. Our recent decision in Reyes v. must be reasonable apprehension about its imminence. The time element
Bagatsing 11 cautions against such a move. Press freedom, as stated in the cannot be ignored. Nor does it suffice if such danger be only probable. There is
opinion of the Court, "may be Identified with the liberty to discuss publicly and the require of its being well-nigh inevitable. The basic postulate, wherefore, as
truthfully any matter of public concern without censorship or noted earlier, is that where the movies, theatrical productions radio scripts,
punishment. 12 This is not to say that such freedom, as is the freedom of television programs, and other such media of expression are concerned —
speech, absolute. It can be limited if "there be a 'clear and present danger of a included as they are in freedom of expression — censorship, especially so if an
substantive evil that [the State] has a right to prevent. 13 entire production is banned, is allowable only under the clearest proof of a
clear and present danger of a substantive evil to public public morals, public
2. Censorship or previous restraint certainly is not all there is to free speech or health or any other legitimate public interest. 17 There is merit to the
free press. If it were so, then such basic rights are emasculated. It is however, observation of Justice Douglas that "every writer, actor, or producer, no matter
except in exceptional circumstances a sine qua non for the meaningful exercise what medium of expression he may use, should be freed from the censor. 18

201
4. The law, however, frowns on obscenity and rightly so. As categorically stated "Obscene material is material which deals with sex in a manner appealing to
by Justice Brennan in Roth v. United States 19 speaking of the free speech and prurient interest. The portrayal of sex, e.g., in art, literature and scientific
press guarantee of the United States Constitution: "All Ideas having even the works, is not itself sufficient reason to deny material the constitutional
slightest redeeming social importance — unorthodox Ideas, controversial Ideas, protection of freedom of speech and press. Sex, a great and mysterious motive
even Ideas hateful to the prevailing climate of opinion — have the full force in human life has indisputably been a subject of absorbing interest to
protection of the guaranties, unless excludable because they encroach upon mankind through the ages; it is one of the vital problems of human interest and
the limited area of the First Amendment is the rejection of obscenity as utterly public concern. 25
without redeeming social importance. 20 Such a view commends itself for
approval. 8. In the applicable law, Executive Order No. 876, reference was made to
respondent Board "applying contemporary Filipino cultural values as
5. There is, however, some difficulty in determining what is obscene. There is standard, 26 words which can be construed in an analogous manner. Moreover,
persuasiveness to the approach followed in Roth: "The early leading standard as far as the question of sex and obscenity are concerned, it cannot be stressed
of obscenity allowed material to be judged merely by the effect of an isolated strongly that the arts and letters "shall be under the patronage of the
excerpt upon particularly susceptible persons. Regina v. Hicklin [1868] LR 3 QB State. 27 That is a constitutional mandate. It will be less than true to its function
360. Some American courts adopted this standard but later decisions have if any government office or agency would invade the sphere of autonomy that
rejected it and substituted this test: whether to the average person, applying an artist enjoys. There is no orthodoxy in what passes for beauty or for reality.
contemporary community standards, the dominant theme of the material It is for the artist to determine what for him is a true representation. It is not to
taken as a whole appeals to prurient interest. The Hicklin test, judging be forgotten that art and belleslettres deal primarily with imagination, not so
obscenity by the effect of isolated passages upon the most susceptible persons, much with ideas in a strict sense. What is seen or perceived by an artist is
might well encompass material legitimately treating with sex, and so it must be entitled to respect, unless there is a showing that the product of his talent
rejected as unconstitutionally restrictive of the freedoms of speech and press. rightfully may be considered obscene. As so wen put by Justice Frankfurter in a
On the other hand, the substituted standard provides safeguards adequate to concurring opinion, "the widest scope of freedom is to be given to the
withstand the charge of constitutional infirmity. 21 adventurous and imaginative exercise of the human spirit" 28 in this sensitive
area of a man's personality. On the question of obscenity, therefore, and in the
6. The above excerpt which imposes on the judiciary the duty to be ever on light of the facts of this case, such standard set forth in Executive Order No. 878
guard against any impermissible infringement on the freedom of artistic is to be construed in such a fashion to avoid any taint of unconstitutionality. To
expression calls to mind the landmark ponencia of Justice Malcolm in United repeat, what was stated in a recent decision 29citing the language of Justice
States v. Bustos, 22 decided in 1918. While recognizing the principle that libel is Malcolm in Yu Cong Eng v. Trinidad, 30 it is "an elementary, a fundamental, and
beyond the pale of constitutional protection, it left no doubt that in a universal role of construction, applied when considering constitutional
determining what constitutes such an offense, a court should ever be mindful questions, that when a law is susceptible of two constructions' one of which
that no violation of the right to freedom of expression is allowable. It is a will maintain and the other destroy it, the courts will always adopt the
matter of pride for the Philippines that it was not until 1984 in New York Timer former. 31 As thus construed, there can be no valid objection to the sufficiency
v. Sullivan, 23 thirty-years later, that the United States Supreme Court of the controlling standard and its conformity to what the Constitution ordains.
enunciated a similar doctrine.
9. This being a certiorari petition, the question before the Court is whether or
7. It is quite understandable then why in the Roth opinion, Justice Brennan took not there was a grave abuse of discretion. That there was an abuse of
pains to emphasize that "sex and obscenity are not synonymous. 24 Further: discretion by respondent Board is evident in the light of the difficulty and
travail undergone by petitioners before Kapit sa Patalim was classified as "For

202
Adults Only," without any deletion or cut. Moreover its perception of what Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera, Plana, Escolin, Relova,
constitutes obscenity appears to be unduly restrictive. This Court concludes Gutierrez, Jr., Cuevas and Alampay, JJ., concur.
then that there was an abuse of discretion. Nonetheless, there are not enough
votes to maintain that such an abuse can be considered grave. Accordingly, Aquino, J., concurs in the result.
certiorari does not lie. This conclusion finds support in this explanation of
respondents in its Answer to the amended petition: "The adult classification De la Fuente, J., took no part.
given the film serves as a warning to theater operators and viewers that some
contents of Kapit are not fit for the young. Some of the scenes in the picture
Abad Santos, J., is on leave.
were taken in a theater-club and a good portion of the film shots concentrated
on some women erotically dancing naked, or at least nearly naked, on the
theater stage. Another scene on that stage depicted the women kissing and
caressing as lesbians. And toward the end of the picture, there exists scenes of
excessive violence attending the battle between a group of robbers and the
police. The vulnerable and imitative in the young audience will misunderstand
these scenes." 32 Further: "Respondents further stated in its answer that
petitioner company has an option to have the film reclassified to For-General-
Patronage if it would agree to remove the obscene scenes and pare down the
violence in the film." 33 Petitioners, however, refused the "For Adults Only"
classification and instead, as noted at the outset, filed this suit for certiorari.

10. All that remains to be said is that the ruling is to be limited to the concept
of obscenity applicable to motion pictures. It is the consensus of this Court that
where television is concerned: a less liberal approach calls for observance. This
is so because unlike motion pictures where the patrons have to pay their way,
television reaches every home where there is a set. Children then will likely will
be among the avid viewers of the programs therein shown. As was observed by
Circuit Court of Appeals Judge Jerome Frank, it is hardly the concern of the law
to deal with the sexual fantasies of the adult population. 34 it cannot be denied
though that the State as parens patriae is called upon to manifest an attitude of
caring for the welfare of the young.

WHEREFORE, this Court, in the light of the principles of law enunciated in the
opinion, dismisses this petition for certiorari solely on the ground that there are
not enough votes for a ruling that there was a grave abuse of discretion in the
classification of Kapit sa Patalim as "For-Adults-Only."

203
Republic of the Philippines reading materials believed to be obscene, pornographic and
SUPREME COURT indecent and later burned the seized materials in public at
Manila the University belt along C.M. Recto Avenue, Manila, in the
presence of Mayor Bagatsing and several officers and
EN BANC members of various student organizations.

G.R. No. 80806 October 5, 1989 Among the publications seized, and later burned, was "Pinoy
Playboy" magazines published and co-edited by plaintiff Leo
LEO PITA doing business under the name and style of PINOY Pita.
PLAYBOY, petitioner,
vs. On December 7, 1983, plaintiff filed a case for injunction with
THE COURT OF APPEALS, RAMON BAGATSING, and NARCISO prayer for issuance of the writ of preliminary injunction
CABRERA, respondents. against Mayor Bagatsing and Narcisco Cabrera, as
superintendent of Western Police District of the City of
William C. Arceno for petitioner. Manila, seeking to enjoin and/or restrain said defendants and
their agents from confiscating plaintiffs magazines or from
otherwise preventing the sale or circulation thereof claiming
Casibang, Perello and De Dios for private respondent.
that the magazine is a decent, artistic and educational
magazine which is not per se obscene, and that the
publication is protected by the Constitutional guarantees of
freedom of speech and of the press.
SARMIENTO, J.:
By order dated December 8, 1 983 the Court set the hearing
The petitioner, publisher of Pinoy Playboy, a "men's magazine", seeks the on the petition for preliminary injunction on December
review of the decision of the Court of Appeals, 1 rejecting his appeal from the 14,1983 and ordered the defendants to show cause not later
decision of the Regional Trial Court, dismissing his complaint for injunctive than December 13, 1983 why the writ prayed for should not
relief. He invokes, in particular, the guaranty against unreasonable searches be granted.
and seizures of the Constitution, as well as its prohibition against deprivation of
property without due process of law. There is no controversy as to the facts.
On December 12, 1983, plaintiff filed an Urgent Motion for
We quote:
issuance of a temporary restraining order. against
indiscriminate seizure, confiscation and burning of plaintiff's
On December 1 and 3, 1983, pursuing an Anti-Smut Campaign "Pinoy Playboy" Magazines, pending hearing on the petition
initiated by the Mayor of the City of Manila, Ramon D. for preliminary injunction in view of Mayor Bagatsing's
Bagatsing, elements of the Special Anti-Narcotics Group, pronouncement to continue the Anti-Smut Campaign. The
Auxilliary Services Bureau, Western Police District, INP of the Court granted the temporary restraining order on December
Metropolitan Police Force of Manila, seized and confiscated 14, 1983.
from dealers, distributors, newsstand owners and peddlers
along Manila sidewalks, magazines, publications and other

204
In his Answer and Opposition filed on December 27,1983 On January 9, 1984 defendant filed his Comment and/or
defendant Mayor Bagatsing admitted the confiscation and Rejoinder Memorandum in support of his opposition to the
burning of obscence reading materials on December 1 and 3, issuance of a writ of preliminary injunction.
1983, but claimed that the said materials were voluntarily
surrendered by the vendors to the police authorities, and that On January 11, 1984, the trial court issued an Order setting
the said confiscation and seizure was (sic) undertaken the case for hearing on January 16, 1984 "for the parties to
pursuant to P.D. No. 960, as amended by P.D. No. 969, which adduce evidence on the question of whether the publication
amended Article 201 of the Revised Penal Code. In opposing 'Pinoy Playboy Magazine alleged (sic) seized, confiscated
the plaintiffs application for a writ of preliminary injunction, and/or burned by the defendants, are obscence per se or
defendant pointed out that in that anti- smut campaign not".
conducted on December 1 and 3, 1983, the materials
confiscated belonged to the magazine stand owners and On January 16, 1984, the Court issued an order granting
peddlers who voluntarily surrendered their reading materials, plaintiffs motion to be given three days "to file a reply to
and that the plaintiffs establishment was not raided. defendants' opposition dated January 9, 1984, serving a copy
thereof to the counsel for the defendants, who may file a
The other defendant, WPD Superintendent, Narcisco Cabrera, rejoinder within the same period from receipt, after which
filed no answer. the issue of Preliminary Injunction shall be resolved".

On January 5,1984, plaintiff filed his Memorandum in support Plaintiff's supplemental Memorandum was filed on January
of the issuance of the writ of preliminary injunction, raising 18, 1984. Defendant filed his Comment on plaintiff s
the issue as to "whether or not the defendants and/or their supplemental Memorandum on January 20, 1984, and
agents can without a court order confiscate or seize plaintiffs plaintiff filed his "Reply-Memorandum" to defendants'
magazine before any judicial finding is made on whether said Comment on January 25, 1984.
magazine is obscene or not".
On February 3, 1984, the trial court promulgated the Order
The restraining order issued on December 14,1983 having appealed from denying the motion for a writ of preliminary
lapsed on January 3,1984, the plaintiff filed an urgent motion injunction, and dismissing the case for lack of merit. 2
for issuance of another restraining order, which was opposed
by defendant on the ground that issuance of a second The Appellate Court dismissed the appeal upon the grounds, among other
restraining order would violate the Resolution of the things, as follows:
Supreme Court dated January 11, 1983, providing for the
Interim Rules Relative to the Implementation of Batas
We cannot quarrel with the basic postulate suggested by
Pambansa Blg. 129, which provides that a temporary
appellant that seizure of allegedly obscene publications or
restraining order shall be effective only for twenty days from
materials deserves close scrutiny because of the
date of its issuance.
constitutional guarantee protecting the right to express
oneself in print (Sec. 9, Art. IV), and the protection afforded
by the constitution against unreasonable searches and

205
seizure (Sec. 3, Art.IV). It must be equally conceded, however, test," so Kottinger further declares, "is that which shocks the ordinary and
that freedom of the press is not without restraint as the state common sense of men as an indecency. " 7 Kottinger hastened to say, however,
has the right to protect society from pornographic literature that "[w]hether a picture is obscene or indecent must depend upon the
that is offensive to public morals, as indeed we have laws circumstances of the case, 8 and that ultimately, the question is to be decided
punishing the author, publishers and sellers of obscene by the "judgment of the aggregate sense of the community reached by it." 9
publications (Sec. I , Art. 201, Revised Penal Code, as
amended by P.D. No. 960 and P.D. No. 969). Also well settled Yet Kottinger, in its effort to arrive at a "conclusive" definition, succeeded
is the rule that the right against unreasonable searches and merely in generalizing a problem that has grown increasingly complex over the
seizures recognizes certain exceptions, as when there is years. Precisely, the question is: When does a publication have a corrupting
consent to the search or seizure, (People vs. Malesugui 63 tendency, or when can it be said to be offensive to human sensibilities? And
Phil. 22) or search is an incident to an arrest, (People vs. obviously, it is to beg the question to say that a piece of literature has a
Veloso, 48 Phil. 169; Alvero vs. Dizon, 76 Phil. 637) or is corrupting influence because it is obscene, and vice-versa.
conducted in a vehicle or movable structure (See Papa vs.
Magno, 22 SCRA 857). 3 Apparently, Kottinger was aware of its own uncertainty because in the same
breath, it would leave the final say to a hypothetical "community standard" —
The petitioner now ascribes to the respondent court the following errors: whatever that is — and that the question must supposedly be judged from case
to case.
1. The Court of Appeals erred in affirming the decision of the
trial court and, in effect, holding that the police officers could About three decades later, this Court promulgated People v. Go Pin, 10 a
without any court warrant or order seize and confiscate prosecution under Article 201 of the Revised Penal Code. Go Pin, was also even
petitioner's magazines on the basis simply of their hazier:
determination that they are obscene.
...We agree with counsel for appellant in part. If such
2. The Court of Appeals erred in affirming the decision of the pictures, sculptures and paintings are shown in art exhibit
trial court and, in effect, holding that the trial court could and art galleries for the cause of art, to be viewed and
dismiss the case on its merits without any hearing thereon appreciated by people interested in art, there would be no
when what was submitted to it for resolution was merely the offense committed. However, the pictures here in question
application of petitioner for the writ of preliminary were used not exactly for art's sake but rather for commercial
injunction. 4 purposes. In other words, the supposed artistic qualities of
said pictures were being commercialized so that the cause of
The Court states at the outset that it is not the first time that it is being asked art was of secondary or minor importance. Gain and profit
to pronounce what "obscene" means or what makes for an obscene or would appear to have been the main, if not the exclusive
pornographic literature. Early on, in People vs. Kottinger, 5 the Court laid down consideration in their exhibition; and it would not be
the test, in determining the existence of obscenity, as follows: "whether the surprising if the persons who went to see those pictures and
tendency of the matter charged as obscene, is to deprave or corrupt those paid entrance fees for the privilege of doing so, were not
whose minds are open to such immoral influences and into whose hands a exactly artists and persons interested in art and who
publication or other article charged as being obscene may fall." 6 "Another generally go to art exhibitions and galleries to satisfy and

206
improve their artistic tastes, but rather people desirous of art and who generally go to art exhibitions and galleries to satisfy and improve
satisfying their morbid curiosity and taste, and lust, and for their artistic tastes," 15 could the same legitimately lay claim to "art"? For
love for excitement, including the youth who because of their another, suppose that the exhibition was so presented that "connoisseurs of
immaturity are not in a position to resist and shield [art], and painters and sculptors might find inspiration," 16 in it, would it cease
themselves from the ill and perverting effects of these to be a case of obscenity?
pictures. 11
Padan y Alova, like Go Pin also leaves too much latitude for judicial
xxx xxx xxx arbitrament, which has permitted an ad lib of Ideas and "two-cents worths"
among judges as to what is obscene and what is art.
As the Court declared, the issue is a complicated one, in which the fine lines
have neither been drawn nor divided. It is easier said than done to say, indeed, In a much later decision, Gonzalez v. Kalaw Katigbak, 17 the Court, following
that if "the pictures here in question were used not exactly for art's sake but trends in the United States, adopted the test: "Whether to the average person,
rather for commercial purposes," 12 the pictures are not entitled to any applying contemporary standards, the dominant theme of the material taken
constitutional protection. as a whole appeals to prurient interest." 18 Kalaw-Katigbak represented a
marked departure from Kottinger in the sense that it measured obscenity in
It was People v. Padan y Alova , 13 however, that introduced to Philippine terms of the "dominant theme" of the work, rather than isolated passages,
jurisprudence the "redeeming" element that should accompany the work, to which were central to Kottinger (although both cases are agreed that
save it from a valid prosecution. We quote: "contemporary community standards" are the final arbiters of what is
"obscene"). Kalaw-Katigbak undertook moreover to make the determination of
...We have had occasion to consider offenses like the obscenity essentially a judicial question and as a consequence, to temper the
exhibition of still or moving pictures of women in the nude, wide discretion Kottinger had given unto law enforcers.
which we have condemned for obscenity and as offensive to
morals. In those cases, one might yet claim that there was It is significant that in the United States, constitutional law on obscenity
involved the element of art; that connoisseurs of the same, continues to journey from development to development, which, states one
and painters and sculptors might find inspiration in the authoritative commentator (with ample sarcasm), has been as "unstable as it is
showing of pictures in the nude, or the human body exhibited unintelligible." 19
in sheer nakedness, as models in tableaux vivants. But an
actual exhibition of the sexual act, preceded by acts of Memoirs v. Massachusettes, 20 a 1966 decision, which characterized obscenity
lasciviousness, can have no redeeming feature. In it, there is as one "utterly without any redeeming social value," 21 marked yet another
no room for art. One can see nothing in it but clear and development.
unmitigated obscenity, indecency, and an offense to public
morals, inspiring and causing as it does, nothing but lust and The latest word, however, is Miller v. California, 22 which expressly
lewdness, and exerting a corrupting influence specially on the abandoned Massachusettes, and established "basic guidelines," 23 to wit: "(a)
youth of the land. ... 14 whether 'the average person, applying contemporary standards' would find the
work, taken as a whole, appeals to the prurient interest . . .; (b) whether the
Padan y Alova, like Go Pin, however, raised more questions than answers. For work depicts or describes, in a patently offensive way, sexual conduct
one thing, if the exhibition was attended by "artists and persons interested in

207
specifically defined by the applicable state law; and (c) whether the work, taken What the Court is impressing, plainly and simply, is that the question is not, and
as a whole, lacks serious literary, artistic, political, or scientific value." 24 has not been, an easy one to answer, as it is far from being a settled matter.
We share Tribe's disappointment over the discouraging trend in American
(A year later, the American Supreme Court decided Hamling v. United decisional law on obscenity as well as his pessimism on whether or not an
States 25 which repeated Miller, and Jenkins v. Georgia, 26 yet another "acceptable" solution is in sight.
reiteration of Miller. Jenkins, curiously, acquitted the producers of the motion
picture, Carnal Knowledge, in the absence of "genitals" portrayed on screen, In the final analysis perhaps, the task that confronts us is less heroic than
although the film highlighted contemporary American sexuality.) rushing to a "perfect" definition of "obscenity", if that is possible, as evolving
standards for proper police conduct faced with the problem, which, after all, is
The lack of uniformity in American jurisprudence as to what constitutes the plaint specifically raised in the petition.
"obscenity" has been attributed to the reluctance of the courts to recognize the
constitutional dimension of the problem . 27 Apparently, the courts have However, this much we have to say.
assumed that "obscenity" is not included in the guaranty of free speech, an
assumption that, as we averred, has allowed a climate of opinions among Undoubtedly, "immoral" lore or literature comes within the ambit of free
magistrates predicated upon arbitrary, if vague theories of what is acceptable expression, although not its protection. In free expression cases, this Court has
to society. And "[t]here is little likelihood," says Tribe, "that this development consistently been on the side of the exercise of the right, barring a "clear and
has reached a state of rest, or that it will ever do so until the Court recognizes present danger" that would warrant State interference and action. 30 But, so we
that obscene speech is speech nonetheless, although it is subject — as in all asserted in Reyes v. Bagatsing,31 "the burden to show the existence of grave
speech — to regulation in the interests of [society as a whole] — but not in the and imminent danger that would justify adverse action ... lies on the. . .
interest of a uniform vision of how human sexuality should be regarded and authorit[ies]." 32
portrayed." 28
"There must be objective and convincing, not subjective or conjectural, proof of
In the case at bar, there is no challenge on the right of the State, in the the existence of such clear and present danger." 33 "It is essential for the validity
legitimate exercise of police power, to suppress smut provided it is smut. For of ... previous restraint or censorship that the ... authority does not rely solely
obvious reasons, smut is not smut simply because one insists it is smut. So is it on his own appraisal of what the public welfare, peace or safety may require." 34
equally evident that individual tastes develop, adapt to wide-ranging
influences, and keep in step with the rapid advance of civilization. What "To justify such a limitation, there must be proof of such weight and sufficiency
shocked our forebears, say, five decades ago, is not necessarily repulsive to the to satisfy the clear and present danger test." 35
present generation. James Joyce and D.H. Lawrence were censored in the
thirties yet their works are considered important literature today. 29 Goya's La
The above disposition must not, however, be taken as a neat effort to arrive at
Maja desnuda was once banned from public exhibition but now adorns the
a solution-so only we may arrive at one-but rather as a serious attempt to put
world's most prestigious museums.
the question in its proper perspective, that is, as a genuine constitutional issue.

But neither should we say that "obscenity" is a bare (no pun intended) matter
It is also significant that in his petition, the petitioner asserts constitutional
of opinion. As we said earlier, it is the divergent perceptions of men and
issues, mainly, due process and illegal search and seizure.
women that have probably compounded the problem rather than resolved it.

208
As we so strongly stressed in Bagatsing, a case involving the delivery of a Sec. 2. Disposition of the Prohibited Articles. — The
political speech, the presumption is that the speech may validly be said. The disposition of the literature, films, prints, engravings,
burden is on the State to demonstrate the existence of a danger, a danger that sculptures, paintings, or other materials involved in the
must not only be: (1) clear but also, (2) present, to justify State action to stop violation referred to in Section 1 hereof (Art. 201), RPC as
the speech. Meanwhile, the Government must allow it (the speech). It has no amended) shall be governed by the following rules:
choice. However, if it acts notwithstanding that (absence of evidence of a clear
and present danger), it must come to terms with, and be held accountable for, (a) Upon conviction of the offender, to be forfeited in favor of
due process. the Government to be destroyed.

The Court is not convinced that the private respondents have shown the (b) Where the criminal case against any violator of this decree
required proof to justify a ban and to warrant confiscation of the literature for results in an acquittal, the obscene/immoral literature, films,
which mandatory injunction had been sought below. First of all, they were not prints, engravings, sculptures, paintings or other materials
possessed of a lawful court order: (1) finding the said materials to be and articles involved in the violation referred to in Section 1
pornography, and (2) authorizing them to carry out a search and seizure, by (referring to Art. 201) hereof shall nevertheless be forfeited
way of a search warrant. in favor of the government to be destroyed, after forfeiture
proceedings conducted by the Chief of Constabulary.
The Court of Appeals has no "quarrel that ... freedom of the press is not
without restraint, as the state has the right to protect society from (c) The person aggrieved by the forfeiture action of the Chief
pornographic literature that is offensive to public morals." 36 Neither do we. But of Constabulary may, within fifteen (15) days after his receipt
it brings us back to square one: were the "literature" so confiscated of a copy of the decision, appeal the matter to the Secretary
"pornographic"? That we have laws punishing the author, publisher and sellers of National Defense for review. The decision of the Secretary
of obscence publications (Sec. 1, Art. 201, Revised Penal Code, as amended by of National Defense shall be final and unappealable. (Sec. 2,
P.D. No. 960 and P.D. No. 969)," 37 is also fine, but the question, again, is: Has PD No, 960 as amended by PD No. 969.)
the petitioner been found guilty under the statute?
Sec. 4. Additional Penalties. — Additional penalties shall be
The fact that the former respondent Mayor's act was sanctioned by "police imposed as follows:
power" is no license to seize property in disregard of due process. In Philippine
Service Exporters, Inc. v. Drilon, 38 We defined police power as "state authority 1. In case the offender is a government official or employee
to enact legislation that may interfere with personal liberty or property in order who allows the violations of Section I hereof, the penalty as
to promote the general welfare ." 39Presidential Decrees Nos. 960 and 969 are, provided herein shall be imposed in the maximum period
arguably, police power measures, but they are not, by themselves, authorities and, in addition, the accessory penalties provided for in the
for high-handed acts. They do not exempt our law enforcers, in carrying out the Revised Penal Code, as amended, shall likewise be imposed
decree of the twin presidential issuances (Mr. Marcos'), from the .40
commandments of the Constitution, the right to due process of law and the
right against unreasonable searches and seizures, specifically. Significantly, the
Under the Constitution, on the other hand:
Decrees themselves lay down procedures for implementation. We quote:

209
SEC. 3. The right of the people to be secure in their persons, there had been no warrant," 45 and that "violation of penal law [must] be
houses, papers, and effects against unreasonable searches punished." 46 For starters, there is no "accused" here to speak of, who ought to
and seizures of whatever nature and for any purpose shall be "punished". Second, to say that the respondent Mayor could have validly
not be violated, and no search warrant or warrant of arrest ordered the raid (as a result of an anti-smut campaign) without a lawful search
shall issue except upon probable cause to be determined by warrant because, in his opinion, "violation of penal laws" has been committed,
the judge, or such other responsible officer as may be is to make the respondent Mayor judge, jury, and executioner rolled into one.
authorized by law, after examination under oath or And precisely, this is the very complaint of the petitioner.
affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched, We make this resume.
and the persons or things to be seized.
1. The authorities must apply for the issuance of a search
It is basic that searches and seizures may be done only through a judicial warrant from a judge, if in their opinion, an obscenity rap is in
warrant, otherwise, they become unreasonable and subject to challenge. order;
In Burgos v. Chief of Staff, AFP, 43 We counter-minded the orders of the
Regional Trial Court authorizing the search of the premises of We 2. The authorities must convince the court that the materials
Forum and Metropolitan Mail, two Metro Manila dailies, by reason of a sought to be seized are "obscene", and pose a clear and
defective warrant. We have greater reason here to reprobate the questioned present danger of an evil substantive enough to warrant
raid, in the complete absence of a warrant, valid or invalid. The fact that the State interference and action;
instant case involves an obscenity rap makes it no different from Burgos, a
political case, because, and as we have indicated, speech is speech, whether
3. The judge must determine whether or not the same are
political or "obscene".
indeed "obscene:" the question is to be resolved on a case-
to-case basis and on His Honor's sound discretion.
The Court is not ruling out warrantless searches, as the Rules of Court (1964
rev.) (the Rules then prevailing), provide:
4. If, in the opinion of the court, probable cause exists, it may
issue the search warrant prayed for;
SEC. 12. Search without warrant of personarrested. — A
person charged with an offense may be searched for
5. The proper suit is then brought in the court under Article
dangerous weapons or anything which may be used as proof
201 of the Revised Penal Code;
of the commission of the offense. 44
6. Any conviction is subject to appeal. The appellate court
but as the provision itself suggests, the search must have been an incident to a
may assess whether or not the properties seized are indeed
lawful arrest, and the arrest must be on account of a crime committed. Here,
"obscene".
no party has been charged, nor are such charges being readied against any
party, under Article 201, as amended, of the Revised Penal Code.
These do not foreclose, however, defenses under the Constitution or applicable
statutes, or remedies against abuse of official power under the Civil Code" 47 or
We reject outright the argument that "[t]here is no constitutional nor legal
the Revised Penal code . 48
provision which would free the accused of all criminal responsibility because

210
WHEREFORE, the petition is GRANTED. The decision of the respondent court is
REVERSED and SET ASIDE. It appearing, however, that the magazines subject of
the search and seizure ave been destroyed, the Court declines to grant
affirmative relief. To that extent, the case is moot and academic.

SO ORDERED.

211
Republic of the Philippines Acting on reports of sale and distribution of pornographic materials, officers of
SUPREME COURT the Philippine National Police Criminal Investigation and Detection Group in the
Manila National Capital Region (PNP-CIDG NCR) conducted police surveillance on the
store bearing the name of Gaudencio E. Fernando Music Fair (Music Fair). On
THIRD DIVISION May 5, 1999, Judge Perfecto Laguio of the Regional Trial Court of Manila,
Branch 19, issued Search Warrant No. 99-1216 for violation of Article 201 of
G.R. No. 159751 December 6, 2006 the Revised Penal Code against petitioner Gaudencio E. Fernando and a certain
Warren Tingchuy. The warrant ordered the search of Gaudencio E. Fernando
Music Fair at 564 Quezon Blvd., corner Zigay Street, Quiapo, Manila, and the
GAUDENCIO E. FERNANDO and RUDY ESTORNINOS, petitioners,
seizure of the following items:
vs.
COURT OF APPEALS, respondent.
a. Copies of New Rave Magazines with nude obscene pictures;

b. Copies of IOU Penthouse Magazine with nude obscene pictures;

DECISION c. Copies of Hustler International Magazine with nude obscene


pictures; and

d. Copies of VHS tapes containing pornographic shows.3

QUISUMBING, J.: On the same day, police officers of the PNP-CIDG NCR served the warrant on
Rudy Estorninos, who, according to the prosecution, introduced himself as the
store attendant of Music Fair. The police searched the premises and
This petition for review on certiorari assails the Decision 1 dated March 21, 2003
confiscated twenty-five (25) VHS tapes and ten (10) different magazines, which
and the Resolution dated September 2, 2003, of the Court of Appeals in CA-
they deemed pornographic.
G.R. CR No. 25796, which affirmed the Decision of the Regional Trial Court of
Manila (RTC), Branch 21, in Criminal Case No. 99-176582.
On September 13, 1999, petitioners with Warren Tingchuy, were charged in an
Information which reads as follows:
The RTC convicted Gaudencio E. Fernando and Rudy Estorninos for violation of
Article 2012 of the Revised Penal Code, as amended by Presidential Decree Nos.
960 and 969, and sentenced each to imprisonment of four (4) years and one (1) That on or about May 5, 1999, in the City of Manila, Philippines, the
day to six (6) years of prision correccional, and to pay the fine of P6,000 and said accused, did then and there willfully, unlawfully, feloniously,
cost of suit. publicly and jointly exhibit indecent or immoral acts, scenes or shows
at Music Fair, located at 564 Quezon Blvd., corner Zigay [S]t., Quiapo[,]
this City[,] by then and there selling and exhibiting obscene copies of
The facts as culled from the records are as follows.
x-rated VHS Tapes, lewd films depicting men and women having
sexual intercourse[,] lewd photographs of nude men and women in

212
explicating (sic) positions which acts serve no other purpose but to SO ORDERED.6
satisfy the market for lust or pornography to public view.
Petitioners appealed to the Court of Appeals. But the appellate courtlatter
Contrary to law.4 affirmed in toto the decision of the trial court, as follows,

When arraigned, petitioners and Tingchuy pleaded not guilty to the offense WHEREFORE, finding no reversible error on the part of the trial court,
charged. Thereafter, trial ensued. the decision appealed from is AFFIRMED IN TOTO.

The prosecution offered the confiscated materials in evidence and presented Costs against accused-appellants.
the following witnesses: Police Inspector Rodolfo L. Tababan, SPO4 Rolando
Buenaventura and Barangay Chairperson Socorro Lipana, who were all present SO ORDERED.7
during the raid. After the prosecution presented its evidence, the counsel for
the accused moved for leave of court to file a demurrer to evidence, which the Hence the instant petition assigning the following errors:
court granted. On October 5, 2000, the RTC however denied the demurrer to
evidence and scheduled the reception of evidence for the accused. A motion
I. Respondent court erred in convicting petitioner Fernando even if he
for reconsideration was likewise denied.
was not present at the time of the raid

Thereafter, the accused waived their right to present evidence and instead
II. Respondent erred in convicting petitioner Estorninos who was not
submitted the case for decision.5
doing anything illegal at the time of the raid.8

The RTC acquitted Tingchuy for lack of evidence to prove his guilt, but
Simply, the issue in this case is whether the appellate court erred in affirming
convicted herein petitioners as follows:
the petitioners’ conviction.

WHEREFORE, premises considered, the Court finds accused


Petitioners contend that the prosecution failed to prove that at the time of the
GAUDENCIO FERNANDO and RUDY ESTORNINOS GUILTY beyond
search, they were selling pornographic materials. Fernando contends that since
reasonable doubt of the crime charged and are hereby sentenced to
he was not charged as the owner of an establishment selling obscene
suffer the indeterminate penalty of FOUR (4) YEARS and ONE (1) DAY
materials, the prosecution must prove that he was present during the raid and
as minimum to SIX (6) YEARS of prision correccional as maximum, to
that he was selling the said materials. Moreover, he contends that the
pay fine of P6,000.00 each and to pay the cost.
appellate court’s reason for convicting him, on a presumption of continuing
ownership shown by an expired mayor’s permit, has no sufficient basis since
For failure of the prosecution to prove the guilt of accused WARREN the prosecution failed to prove his ownership of the establishment. Estorninos,
TINGCHUY beyond reasonable doubt, he is hereby ACQUITTED of the on the other hand, insists that he was not an attendant in Music Fair, nor did
crime charged. he introduce himself so.9

The VHS tapes and the nine (9) magazines utilized as evidence in this The Solicitor General counters that owners of establishments selling obscene
case are hereby confiscated in favor of the government. publications are expressly held liable under Article 201, and petitioner

213
Fernando’s ownership was sufficiently proven. As the owner, according to the Thereafter, the Court in People v. Go Pin18 and People v. Padan y Alova, et
Solicitor General, Fernando was naturally a seller of the prohibited materials al.,19 involving a prosecution under Article 201 of the Revised Penal Code, laid
and liable under the Information. The Solicitor General also maintains that the tests which did little to clearly draw the fine lines of obscenity.
Estorninos was identified by Barangay Chairperson Socorro Lipana as the store
attendant, thus he was likewise liable.10 In People v. Go Pin, the Court said:

At the outset, we note that the trial court gave petitionersthem the If such pictures, sculptures and paintings are shown in art exhibits and
opportunity to adduce present their evidence to disprove refute the art galleries for the cause of art, to be viewed and appreciated by
prosecution’s evidence.11 . Instead, they waived their right to present evidence people interested in art, there would be no offense committed.
and opted to submitted the case for decision.a1 12 The trial court therefore However, the pictures here in question were used not exactly for art’s
resolved the case on the basis of prosecution’s evidence against the sake but rather for commercial purposes. In other words, the
petitioners. supposed artistic qualities of said pictures were being commercialized
so that the cause of art was of secondary or minor importance. Gain
As obscenity is an unprotected speech which the State has the right to and profit would appear to have been the main, if not the exclusive
regulate, the State in pursuing its mandate to protect, as parens patriae, the consideration in their exhibition; and it would not be surprising if the
public from obscene, immoral and indecent materials must justify the persons who went to see those pictures and paid entrance fees for the
regulation or limitation. privilege of doing so, were not exactly artists and persons interested in
art and who generally go to art exhibitions and galleries to satisfy and
One such regulation is Article 201 of the Revised Penal Code. To be held liable, improve their artistic tastes, but rather people desirous of satisfying
the prosecution must prove that (a) the materials, publication, picture or their morbid curiosity and taste, and lust, and for love [of] excitement,
literature are obscene; and (b) the offender sold, exhibited, published or gave including the youth who because of their immaturity are not in a
away such materials.13 Necessarily, that the confiscated materials are obscene position to resist and shield themselves from the ill and perverting
must be proved. effects of these pictures.20

Almost a century has passed since the Court first attempted to define obscenity People v. Padan y Alova, et al. in a way reaffirmed the standards set in Go
in People v. Kottinger.14 There the Court defined obscenity as something which Pin but with its own test of "redeeming feature." The Court therein said that:
is offensive to chastity, decency or delicacy. The test to determine the
existence of obscenity is, whether the tendency of the matter charged as [A]n actual exhibition of the sexual act, preceded by acts of
obscene, is to deprave or corrupt those whose minds are open to such immoral lasciviousness, can have no redeeming feature. In it, there is no room
influences and into whose hands a publication or other article charged as being for art. One can see nothing in it but clear and unmitigated obscenity,
obscene may fall.15 Another test according to Kottinger is "that which shocks indecency, and an offense to public morals, inspiring and causing as it
the ordinary and common sense of men as an does, nothing but lust and lewdness, and exerting a corrupting
indecency."16 But, Kottinger hastened to say that whether a picture is obscene influence specially on the youth of the land.21
or indecent must depend upon the circumstances of the case, and that
ultimately, the question is to be decided by the judgment of the aggregate Notably, the Court in the later case of Gonzales v. Kalaw Katigbak,22 involving
sense of the community reached by it.17 motion pictures, still applied the "contemporary community standards"
of Kottinger but departed from the rulings of Kottinger, Go Pin and Padan y

214
Alova in that the Court measures obscenity in terms of the "dominant theme" that obscenity is an issue proper for judicial determination and should be
of the material taken as a "whole" rather than in isolated passages. treated on a case to case basis and on the judge’s sound discretion.

Later, in Pita v. Court of Appeals, concerning alleged pornographic In this case, the trial court found the confiscated materials obscene and the
publications, the Court recognized that Kottinger failed to afford a conclusive Court of Appeals affirmed such findings. The trial court in ruling that the
definition of obscenity, and that both Go Pin and Padan y Alova raised more confiscated materials are obscene, reasoned as follows:
questions than answers such as, whether the absence or presence of artists
and persons interested in art and who generally go to art exhibitions and Are the magazines and VHS tapes confiscated by the raiding team
galleries to satisfy and improve their artistic tastes, determine what art is; or obscene or offensive to morals? . . .
that if they find inspiration in the exhibitions, whether such exhibitions cease to
be obscene.23 Go Pin and Padan y Alova gave too much latitude for judicial Pictures of men and women in the nude doing the sexual act
arbitrament, which has permitted ad lib of ideas and "two-cents worths" appearing in the nine (9) confiscated magazines namely Dalaga,
among judges as to what is obscene or what is art.24 Penthouse, Swank, Erotic, Rave, Playhouse, Gallery and two (2) issues
of QUI are offensive to morals and are made and shown not for the
The Court in Pita also emphasized the difficulty of the question and pointed out sake of art but rather for commercial purposes, that is gain and profit
how hazy jurisprudence is on obscenity and how jurisprudence actually failed as the exclusive consideration in their exhibition. The pictures in the
to settle questions on the matter. Significantly, the dynamism of human magazine exhibited indecent and immoral scenes and acts…The
civilization does not help at all. It is evident that individual tastes develop, exhibition of the sexual act in their magazines is but a clear and
adapt to wide-ranging influences, and keep in step with the rapid advance of unmitigated obscenity, indecency and an offense to public morals,
civilization.25 It seems futile at this point to formulate a perfect definition of inspiring…lust and lewdness, exerting a corrupting influence especially
obscenity that shall apply in all cases. on the youth. (Citations omitted)

There is no perfect definition of "obscenity" but the latest word is that of Miller The VHS tapes also [exhibit] nude men and women doing the sexual
v. California which established basic guidelines, to wit: (a) whether to the intercourse. The tape entitled "Kahit sa Pangarap Lang" with Myra
average person, applying contemporary standards would find the work, taken Manibog as the actress shows the naked body of the actress. The tape
as a whole, appeals to the prurient interest; (b) whether the work depicts or exhibited indecent and immoral scenes and acts. Her dancing
describes, in a patently offensive way, sexual conduct specifically defined by movements excited the sexual instinct of her male audience. The
the applicable state law; and (c) whether the work, taken as a whole, lacks motive may be innocent, but the performance was revolting and
serious literary, artistic, political, or scientific value. 26 But, it would be a serious shocking to good minds...
misreading of Miller to conclude that the trier of facts has the unbridled
discretion in determining what is "patently offensive."27 No one will be subject In one (1) case the Supreme Court ruled:
to prosecution for the sale or exposure of obscene materials unless these
materials depict or describe patently offensive "hard core" sexual
Since the persons who went to see those pictures and paid
conduct.28 Examples included (a) patently offensive representations or
entrance fees were usually not artists or persons interested in
descriptions of ultimate sexual acts, normal or perverted, actual or simulated;
art to satisfy and inspire their artistic tastes but persons who
and (b) patently offensive representations or descriptions of masturbation,
are desirous of satisfying their morbid curiosity, taste and lust
excretory functions, and lewd exhibition of the genitals. 29 What remains clear is
and for [love] of excitement, including the youth who

215
because of their immaturity are not in a position to resist and permit and illegal operation a shield from prosecution of an unlawful act.
shield themselves from the ill and perverting effects of the Furthermore, when he preferred not to present contrary evidence, the things
pictures, the display of such pictures for commercial purposes which he possessed were presumptively his. 36
is a violation of Art. 201. If those pictures were shown in art
exhibits and art galleries for the cause of art, to be viewed Petitioner Estorninos is likewise liable as the store attendant actively engaged
and appreciated by people interested in art, there would be in selling and exhibiting the obscene materials. Prosecution witness Police
no offense committed (People vs. Go Pin, 97 Phil 418). Inspector Tababan, who led the PNP-CIDG NCR that conducted the search,
identified him as the store attendant upon whom the search warrant was
[B]ut this is not so in this case.30 served.37 Tababan had no motive for testifying falsely against Estorninos and
we uphold the presumption of regularity in the performance of his duties.
Findings of fact of the Court of Appeals affirming that of the trial court are Lastly, this Court accords great respect to and treats with finality the findings of
accorded great respect, even by this Court, unless such findings are patently the trial court on the matter of credibility of witnesses, absent any palpable
unsupported by the evidence on record or the judgment itself is based on error or arbitrariness in their findings.38 In our view, no reversible error was
misapprehension of facts.31 In this case, petitioners neither presented contrary committed by the appellate court as well as the trial court in finding the herein
evidence nor questioned the trial court’s findings. There is also no showing that petitioners guilty as charged.
the trial court, in finding the materials obscene, was arbitrary.
WHEREFORE, the Decision dated March 21, 2003 and the Resolution dated
Did petitioners participate in the distribution and exhibition of obscene September 2, 2003, of the Court of Appeals affirming the Decision of the
materials? Regional Trial Court of Manila, Branch 21, in Criminal Case No. 99-176582 are
hereby AFFIRMED.
We emphasize that mere possession of obscene materials, without intention to
sell, exhibit, or give them away, is not punishable under Article 201, considering SO ORDERED.
the purpose of the law is to prohibit the dissemination of obscene materials to
the public. The offense in any of the forms under Article 201 is committed only
when there is publicity.32 The law does not require that a person be caught in
the act of selling, giving away or exhibiting obscene materials to be liable, for as
long as the said materials are offered for sale, displayed or exhibited to the
public. In the present case, we find that petitioners are engaged in selling and
exhibiting obscene materials.

Notably, the subject premises of the search warrant was the Gaudencio E.
Fernando Music Fair, named after petitioner Fernando.33 The mayor’s permit
was under his name. Even his bail bond shows that Hhe lives in the same
place.34 Moreover, the mayor’s permit dated August 8, 1996, shows that he is
the owner/operator of the store.35 While the mayor’s permit had already
expired, it does not negate the fact that Fernando owned and operated the
establishment. It would be absurd to make his failure to renew his business

216
That as stated in Primicias v. Fugoso, 80 Phil. 75, respondent Mayor possesses
reasonable discretion to determine or specify the streets or public places to be
used for the assembly in order to secure convenient use thereof by others and
Republic of the Philippines provide adequate and proper policing to minimize the risks of disorder and
SUPREME COURT maintain public safety and order;
Manila
That respondent Mayor has expressly stated his willingness to grant permits for
EN BANC peaceful assemblies at Plaza Miranda during Saturdays, Sundays and holidays
when they would not cause unnecessarily great disruption of the normal
activities of the community and has further offered Sunken Gardens as an
alternative to Plaza Miranda as the site of the demonstration sought to be held
this afternoon;
G.R. No. L-31687 February 26, 1970

That experiences in connection with present assemblies and demonstrations do


NAVARRO, petitioner,
not warrant the Court's disbelieving respondent Mayor's appraisal that a public
vs.
rally at Plaza Miranda, as compared to one at the Sunken Gardens as he
CITY MAYOR ANTONIO J. VILLEGAS, respondent.
suggested, poses a clearer and more imminent danger of public disorders,
breaches of the peace, criminal acts, and even bloodshed as an aftermath of
RESOLUTION
such assemblies, and petitioner has manifested that it has no means of
preventing such disorders;

That, consequently, every time that such assemblies are announced, the
GENTLEMEN: community is placed in such a state of fear and tension that offices are closed
early and employees dismissed, storefronts boarded up, classes suspended,
Quoted hereunder, for your information, is a resolution of this Court of even and transportation disrupted, to the general detriment of the public:
date:
That civil rights and liberties can exist and be preserved only in an order
"In Case G.R. No. L-31687 (Navarro vs. Villegas), the Court, after considering the society;
pleadings and arguments of the parties, issued the following Resolution:
The petitioner has failed to show a clear specific legal duty on the part of
Without prejudice to a more extended opinion and taking into account the respondent Mayor to grant their application for permit unconditionally;
following considerations:
The Court resolved to DENY the writ prayed for and to dismiss the petition.
That respondent Mayor has not denied nor absolutely refused the permit
sought by petitioner;

217
that a law subjecting the exercise of First Amendment freedoms to the prior
restraint of a license, without narrow, objective, and definite standards to
Separate Opinions guide the licensing authority, is unconstitutional."2 This is without prejudice to
a more extended opinion being written later.

VILLAMOR, J., concurring:

The right to freedom of assembly is not denied; but this right is neither
unlimited nor absolute. It is not correct to say that the Mayor has refused to
grant the permit applied for; he offered an alternative which, in my opinion, is
not unreasonable. There being no arbitrary refusal to grant permit, petitioner is
not entitled to the writ.

CASTRO and FERNANDO, JJ., dissenting:

Two members of the Court, Castro and Fernando, find themselves unable to
concur with their brethren and would vote to grant the petition. The right to
freedom of assembly while not unlimited is entitled to be accorded the utmost
deference and respect. If respondent Mayor premised his refusal to grant the
permit as sought by petitioner on a clear showing that he was so empowered
under the criteria supplied by Primicias W. Fugoso, then this petition should
not prosper as petitioner himself did invoke such authority. The grounds for his
refusal are however, set forth thus in his letter of February 24, 1970 addressed
to petitioner: "In the greater interest of the general public, and in order not to
unduly disturb the life of the community, this Office, guided by a lesson gained
from the events of the past few weeks, has temporarily adopted the policy of
not issuing any permit for the use of Plaza Miranda for rallies or
demonstrations during week days."1 They do not, in the opinion of the above
two justices, meet the standard of the Primicias ruling. Under the
circumstances, the effect is one of prior restraint of a constitutional right. This
is not allowable. An excerpt from a 1969 American Supreme Court decision is
persuasive. Thus: "For in deciding whether or not to withhold a permit, the
members of the Commission were to be guided only by their own ideas of
'public welfare, peace, safety, health, decency, good order, morals or
convenience.' This ordinance as it was written, therefore, fell squarely within
the ambit of the many decisions of this Court over the last 30 years, holding

218
Republic of the Philippines speech and assembly, all the necessary steps would be taken by it "to ensure a
SUPREME COURT peaceful march and rally." 4
Manila
The filing of this suit for mandamus with alternative prayer for writ of
EN BANC preliminary mandatory injunction on October 20, 1983 was due to the fact that
as of that date, petitioner had not been informed of any action taken on his
G.R. No. L-65366 November 9, 1983 request on behalf of the organization to hold a rally. On October 25, 1983, the
answer of respondent Mayor was filed on his behalf by Assistant Solicitor
JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION (ABC), petitioner, General Eduardo G. Montenegro. 5 It turned out that on October 19, such
vs. permit was denied. Petitioner was unaware of such a fact as the denial was
RAMON BAGATSING, as Mayor of the City of Manila, respondent. sent by ordinary mail. The reason for refusing a permit was due to police
intelligence reports which strongly militate against the advisability of issuing
such permit at this time and at the place applied for." 6 To be more specific,
Lorenzo M. Tañada Jose W. Diokno and Haydee B. Yorac for petitioner.
reference was made to persistent intelligence reports affirm[ing] the plans of
subversive/criminal elements to infiltrate and/or disrupt any assembly or
The Solicitor General for respondent.
congregations where a large number of people is expected to
attend." 7 Respondent Mayor suggested, however, in accordance with the
recommendation of the police authorities, that "a permit may be issued for the
rally if it is to be held at the Rizal Coliseum or any other enclosed area where
FERNANDO, C.J.:ñé+.£ªwph!1 the safety of the participants themselves and the general public may be
ensured." 8
This Court, in this case of first impression, at least as to some aspects, is called
upon to delineate the boundaries of the protected area of the cognate rights to The oral argument was heard on October 25, 1983, the very same day the
free speech and peaceable assembly, 1 against an alleged intrusion by answer was filed. The Court then deliberated on the matter. That same
respondent Mayor Ramon Bagatsing. Petitioner, retired Justice JB L. Reyes, on afternoon, a minute resolution was issued by the Court granting the mandatory
behalf of the Anti-Bases Coalition sought a permit from the City of Manila to injunction prayed for on the ground that there was no showing of the existence
hold a peaceful march and rally on October 26, 1983 from 2:00 to 5:00 in the of a clear and present danger of a substantive evil that could justify the denial
afternoon, starting from the Luneta, a public park, to the gates of the United of a permit. On this point, the Court was unanimous, but there was a dissent by
States Embassy, hardly two blocks away. Once there, and in an open space of Justice Aquino on the ground that the holding of a rally in front of the US
public property, a short program would be held. 2 During the course of the oral Embassy would be violative of Ordinance No. 7295 of the City of Manila. The
argument, 3 it was stated that after the delivery of two brief speeches, a last sentence of such minute resolution reads: "This resolution is without
petition based on the resolution adopted on the last day by the International prejudice to a more extended opinion." 9 Hence this detailed exposition of the
Conference for General Disbarmament, World Peace and the Removal of All Court's stand on the matter.
Foreign Military Bases held in Manila, would be presented to a representative
of the Embassy or any of its personnel who may be there so that it may be 1. It is thus clear that the Court is called upon to protect the exercise of the
delivered to the United States Ambassador. The march would be attended by cognate rights to free speech and peaceful assembly, arising from the denial of
the local and foreign participants of such conference. There was likewise an a permit. The Constitution is quite explicit: "No law shall be passed abridging
assurance in the petition that in the exercise of the constitutional rights to free

219
the freedom of speech, or of the press, or the right of the people peaceably to of force. Such utterance was not meant to be sheltered by the
assemble and petition the Government for redress of grievances." 10 Free Constitution." 22 What was rightfully stressed is the abandonment of reason,
speech, like free press, may be Identified with the liberty to discuss publicly and the utterance, whether verbal or printed, being in a context of violence. It must
truthfully any matter of public concern without censorship or always be remembered that this right likewise provides for a safety valve,
punishment. 11 There is to be then no previous restraint on the communication allowing parties the opportunity to give vent to their-views, even if contrary to
of views or subsequent liability whether in libel suits, 12 prosecution for the prevailing climate of opinion. For if the peaceful means of communication
sedition, 13 or action for damages, 14 or contempt proceedings 15 unless there cannot be availed of, resort to non-peaceful means may be the only alternative.
be a clear and present danger of a substantive evil that [the State] has a right to Nor is this the sole reason for the expression of dissent. It means more than
prevent." 16 Freedom of assembly connotes the right people to meet peaceably just the right to be heard of the person who feels aggrieved or who is
for consultation and discussion of matters Of public concern. 17 It is entitled to dissatisfied with things as they are. Its value may lie in the fact that there may
be accorded the utmost deference and respect. It is hot to be limited, much be something worth hearing from the dissenter. That is to ensure a true
less denied, except on a showing, as 's the case with freedom of expression, of ferment of Ideas. There are, of course, well-defined limits. What is guaranteed
a clear and present danger of a substantive evil that the state has a right to is peaceable assembly. One may not advocate disorder in the name of protest,
prevent. 18 Even prior to the 1935 Constitution, Justice Maicolm had occasion much less preach rebellion under the cloak of dissent. The Constitution frowns
to stress that it is a necessary consequence of our republican institutions and on disorder or tumult attending a rally or assembly. resort to force is ruled out
complements the right of free speech. 19 To paraphrase opinion of Justice and outbreaks of violence to be avoided. The utmost calm though is not
Rutledge speaking for the majority of the American Supreme Court Thomas v. required. As pointed out in an early Philippine case, penned in 1907 to be
Collins, 20 it was not by accident or coincidence that the right to freedom of precise, United States v. Apurado: 23 "It is rather to be expected that more or
speech and of the press were toupled in a single guarantee with the and to less disorder will mark the public assembly of the people to protest against
petition the rights of the people peaceably to assemble and to petition the grievances whether real or imaginary, because on such occasions feeling is
government for redress of grievances. All these rights, while not Identical, are always wrought to a high pitch of excitement, and the greater the grievance
inseparable. the every case, therefo re there is a limitation placed on the and the more intense the feeling, the less perfect, as a rule, will be the
exercise of this right, the judiciary is called upon to examine the effects of the disciplinary control of the leaders over their irresponsible followers." 24 It bears
challenged governmental actuation. The sole justification for a limitation on the repeating that for the constitutional right to be invoked, riotous conduct, injury
exercise of this right, so fundamental to the maintenance of democratic to property, and acts of vandalism must be avoided, To give free rein to one's
institutions, is the danger, of a character both grave and imminent, of a serious destructive urges is to call for condemnation. It is to make a mockery of the
evil to public safety, public morals, public health, or any other legitimate public high estate occupied by intellectual liberty in our scheme of values.
interest. 21
3. There can be no legal objection, absent the existence of a clear and present
2. Nowhere is the rationale that underlies the freedom of expression and danger of a substantive evil, on the choice of Luneta as the place where the
peaceable assembly better expressed than in this excerpt from an opinion of peace rally would start. The Philippines is committed to the view expressed in
Justice Frankfurter: "It must never be forgotten, however, that the Bill of Rights the plurality opinion, of 1939 vintage, of Justice Roberts in Hague v.
was the child of the Enlightenment. Back of the guaranty of free speech lay CIO: 25 Whenever the title of streets and parks may rest, they have
faith in the power of an appeal to reason by all the peaceful means for gaining immemorially been held in trust for the use of the public and, time out of mind,
access to the mind. It was in order to avert force and explosions due to have been used for purposes of assembly, communicating thoughts between
restrictions upon rational modes of communication that the guaranty of free citizens, and discussing public questions. Such use of the streets and public
speech was given a generous scope. But utterance in a context of violence can places has, from ancient times, been a part of the privileges, immunities, rights,
lose its significance as an appeal to reason and become part of an instrument and liberties of citizens. The privilege of a citizen of the United States to use the

220
streets and parks for communication of views on national questions may be liberties, as guaranteed by the Constitution, imply the existence of an
regulated in the interest of all; it is not absolute, but relative, and must be organized society maintaining public order without which liberty itself would
exercised in subordination to the general comfort and convenience, and in be lost in the excesses of unrestricted abuses. The authority of a municipality to
consonance with peace and good order; but it must not, in the guise of impose regulations in order to assure the safety and convenience of the people
regulation, be abridged or denied. 26 The above excerpt was quoted with in the use of public highways has never been regarded as inconsistent with civil
approval in Primicias v. Fugoso. 27 Primicias made explicit what was implicit liberties but rather as one of the means of safeguarding the good order upon
in Municipality of Cavite v. Rojas," 28 a 1915 decision, where this Court which they ultimately depend. The control of travel on the streets of cities is
categorically affirmed that plazas or parks and streets are outside the the most familiar illustration of this recognition of social need. Where a
commerce of man and thus nullified a contract that leased Plaza Soledad of restriction of the use of highways in that relation is designed to promote the
plaintiff-municipality. Reference was made to such plaza "being a promenade public convenience in the interest of all, it cannot be disregarded by the
for public use," 29 which certainly is not the only purpose that it could serve. To attempted exercise of some civil right which in other circumstances would be
repeat, there can be no valid reason why a permit should not be granted for entitled to protection." 31
the or oposed march and rally starting from a public dark that is the Luneta.
5. There is a novel aspect to this case, If the rally were confined to Luneta, no
4. Neither can there be any valid objection to the use of the streets, to the question, as noted, would have arisen. So, too, if the march would end at
gates of the US Embassy, hardly two block-away at the Roxas another park. As previously mentioned though, there would be a short
Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the matter. In program upon reaching the public space between the two gates of the United
holding that the then Mayor Fugoso of the City of Manila should grant a permit States Embassy at Roxas Boulevard. That would be followed by the handing
for a public meeting at Plaza Miranda in Quiapo, this Court categorically over of a petition based on the resolution adopted at the closing session of the
declared: "Our conclusion finds support in the decision in the case of Willis Cox Anti-Bases Coalition. The Philippines is a signatory of the Vienna Convention on
vs. State of New Hampshire, 312 U.S., 569. In that case, the statute of New Diplomatic Relations adopted in 1961. It was concurred in by the then
Hampshire P. L. chap. 145, section 2, providing that 'no parade or procession Philippine Senate on May 3, 1965 and the instrument of ratification was signed
upon any ground abutting thereon, shall 'De permitted unless a special license by the President on October 11, 1965, and was thereafter deposited with the
therefor shall first be explained from the selectmen of the town or from Secretary General of the United Nations on November 15. As of that date then,
licensing committee,' was construed by the Supreme Court of New Hampshire it was binding on the Philippines. The second paragraph of the Article 22 reads:
as not conferring upon the licensing board unfettered discretion to refuse to "2. The receiving State is under a special duty to take appropriate steps to
grant the license, and held valid. And the Supreme Court of the United States, protect the premises of the mission against any intrusion or damage and to
in its decision (1941) penned by Chief Justice Hughes affirming the judgment of prevent any disturbance of the peace of the mission or impairment of its
the State Supreme Court, held that 'a statute requiring persons using the public dignity. " 32 The Constitution "adopts the generally accepted principles of
streets for a parade or procession to procure a special license therefor from the international law as part of the law of the land. ..." 33 To the extent that the
local authorities is not an unconstitutional abridgment of the rights of assembly Vienna Convention is a restatement of the generally accepted principles of
or of freedom of speech and press, where, as the statute is construed by the international law, it should be a part of the law of the land. 34 That being the
state courts, the licensing authorities are strictly limited, in the issuance of case, if there were a clear and present danger of any intrusion or damage, or
licenses, to a consideration of the time, place, and manner of the parade or disturbance of the peace of the mission, or impairment of its dignity, there
procession, with a view to conserving the public convenience and of affording would be a justification for the denial of the permit insofar as the terminal
an opportunity to provide proper policing, and are not invested with arbitrary point would be the Embassy. Moreover, respondent Mayor relied on Ordinance
discretion to issue or refuse license, ... " 30 Nor should the point made by Chief No. 7295 of the City of Manila prohibiting the holding or staging of rallies or
Justice Hughes in a subsequent portion of the opinion be ignored, "Civil demonstrations within a radius of five hundred (500) feet from any foreign

221
mission or chancery and for other purposes. Unless the ordinance is nullified, — especially so where the assembly is scheduled for a specific public — place is
or declared ultra vires, its invocation as a defense is understandable but not that the permit must be for the assembly being held there. The exercise of such
decisive, in view of the primacy accorded the constitutional rights of free a right, in the language of Justice Roberts, speaking for the American Supreme
speech and peaceable assembly. Even if shown then to be applicable, that Court, is not to be "abridged on the plea that it may be exercised in some other
question the confronts this Court. place." 37

6. There is merit to the observation that except as to the novel aspects of a 7. In fairness to respondent Mayor, he acted on the belief that Navarro v.
litigation, the judgment must be confined within the limits of previous Villegas 38 and Pagkakaisa ng Manggagawang Pilipino (PMP.) v.
decisions. The law declared on past occasions is, on the whole, a safe guide, So Bagatsing, 39 called for application. While the General rule is that a permit
it has been here. Hence, as noted, on the afternoon of the hearing, October 25, should recognize the right of the applicants to hold their assembly at a public
1983, this Court issued the minute resolution granting the mandatory place of their choice, another place may be designated by the licensing
injunction allowing the proposed march and rally scheduled for the next day. authority if it be shown that there is a clear and present danger of a
That conclusion was inevitable ill the absence of a clear and present danger of a substantive evil if no such change were made. In the Navarro and the
substantive, evil to a legitimate public interest. There was no justification then Pagkakaisa decisions, this Court was persuaded that the clear and present
to deny the exercise of the constitutional rights of tree speech and peaceable danger test was satisfied. The present situation is quite different. Hence the
assembly. These rights are assured by our Constitution and the Universal decision reached by the Court. The mere assertion that subversives may
Declaration of Human Rights. 35 The participants to such assembly, composed infiltrate the ranks of the demonstrators does not suffice. Not that it should be
primarily of those in attendance at the International Conference for General overlooked. There was in this case, however, the assurance of General Narciso
Disbarmament, World Peace and the Removal of All Foreign Military Bases Cabrera, Superintendent, Western Police District, Metropolitan Police Force,
would start from the Luneta. proceeding through Roxas Boulevard to the gates that the police force is in a position to cope with such emergency should it arise
of the United States Embassy located at the same street. To repeat, it is settled That is to comply with its duty to extend protection to the participants of such
law that as to public places, especially so as to parks and streets, there is peaceable assembly. Also from him came the commendable admission that
freedom of access. Nor is their use dependent on who is the applicant for the there were the least five previous demonstrations at the Bayview hotel Area
permit, whether an individual or a group. If it were, then the freedom of access and Plaza Ferguson in front of the United States Embassy where no untoward
becomes discriminatory access, giving rise to an equal protection question. The event occurred. It was made clear by petitioner, through counsel, that no act
principle under American doctrines was given utterance by Chief Justice offensive to the dignity of the United States Mission in the Philippines would
Hughes in these words: "The question, if the rights of free speech and take place and that, as mentioned at the outset of this opinion, "all the
peaceable assembly are to be preserved, is not as to the auspices under which necessary steps would be taken by it 'to ensure a peaceful march and rally.'
the meeting is held but as to its purpose; not as to The relations of the " 40 Assistant Solicitor General Montenegro expressed the view that the
speakers, but whether their utterances transcend the bounds of the freedom of presence of policemen may in itself be a provocation. It is a sufficient answer
speech which the Constitution protects." 36 There could be danger to public that they should stay at a discreet distance, but ever ready and alert to cope
peace and safety if such a gathering were marked by turbulence. That would with any contingency. There is no need to repeat what was pointed out by
deprive it of its peaceful character. Even then, only the guilty parties should be Chief Justice Hughes in Cox that precisely, it is the duty of the city authorities to
held accountable. It is true that the licensing official, here respondent Mayor, is provide the proper police protection to those exercising their right to
not devoid of discretion in determining whether or not a permit would be peaceable assembly and freedom of expression.
granted. It is not, however, unfettered discretion. While prudence requires that
there be a realistic appraisal not of what may possibly occur but of what 8. By way of a summary The applicants for a permit to hold an assembly should
may probably occur, given all the relevant circumstances, still the assumption inform the licensing authority of the date, the public place where and the time

222
when it will take place. If it were a private place, only the consent of the owner Plana certainly cannot be summarily brushed aside. The high estate accorded
or the one entitled to its legal possession is required. Such application should the rights to free speech and peaceable assembly demands nothing less.
be filed well ahead in time to enable the public official concerned to appraise
whether there may be valid objections to the grant of the permit or to its grant 10. Ordinarily, the remedy in cases of this character is to set aside the denial or
but at another public place. It is an indispensable condition to such refusal or the modification of the permit sought and order the respondent official, to
modification that the clear and present danger test be the standard for the grant it. Nonetheless, as there was urgency in this case, the proposed march
decision reached. If he is of the view that there is such an imminent and grave and rally being scheduled for the next day after the hearing, this Court. in the
danger of a substantive evil, the applicants must be heard on the matter. exercise of its conceded authority, granted the mandatory injunction in the
Thereafter, his decision, whether favorable or adverse, must be transmitted to resolution of October 25, 1983. It may be noted that the peaceful character of
them at the earliest opportunity. Thus if so minded, then, can have recourse to the peace march and rally on October 26 was not marred by any untoward
the proper judicial authority. Free speech and peaceable assembly, along with incident. So it has been in other assemblies held elsewhere. It is quite
the other intellectual freedoms, are highly ranked in our scheme of reassuring such that both on the part of the national government and the
constitutional values. It cannot be too strongly stressed that on the judiciary, — citizens, reason and moderation have prevailed. That is as it should be.
even more so than on the other departments — rests the grave and delicate
responsibility of assuring respect for and deference to such preferred rights. No WHEREFORE, the mandatory injunction prayed for is granted. No costs.
verbal formula, no sanctifying phrase can, of course, dispense with what has
been so felicitiously termed by Justice Holmes "as the sovereign prerogative of
Concepcion, Jr., Guerrero, Melencio-Herrera, Escolin, Relova and Gutierrez, ,
judgment." Nonetheless, the presumption must be to incline the weight of the
Jr.,JJ., concur.
scales of justice on the side of such rights, enjoying as they do precedence and
primacy. Clearly then, to the extent that there may be inconsistencies between
De Castro, J, is on leave.
this resolution and that of Navarro v. Villegas, that case is pro tanto modified.
So it was made clear in the original resolution of October 25, 1983.

9. Respondent Mayor posed the issue of the applicability of Ordinance No.


7295 of the City of Manila prohibiting the holding or staging of rallies or
demonstrations within a radius of five hundred (500) feet from any foreign
mission or chancery and for other purposes. It is to be admitted that it finds
support In the previously quoted Article 22 of the Vienna Convention on
Diplomatic Relations. There was no showing, however, that the distance
between the chancery and the embassy gate is less than 500 feet. Even if it
could be shown that such a condition is satisfied. it does not follow that
respondent Mayor could legally act the way he did. The validity of his denial of
the permit sought could still be challenged. It could be argued that a case of
unconstitutional application of such ordinance to the exercise of the right of
peaceable assembly presents itself. As in this case there was no proof that the
distance is less than 500 feet, the need to pass on that issue was obviated,
Should it come, then the qualification and observation of Justices Makasiar and

223
Republic of the Philippines Anastacio D. Ramento, Director of the National Capital Region of the Ministry
SUPREME COURT of Education, Culture and Sports and the Gregorio Araneta University
Manila Foundation. 1 The nullification of the decision of respondent Ramento
affirming the action taken by respondent Gregorio Araneta University
EN BANC Foundation finding petitioners guilty of illegal assembly and suspending them is
sought in this petition.
G.R. No. L-62270 May 21, 1984
The facts are not open to dispute. Petitioners were officers of the Supreme
CRISPIN MALABANAN, EVELIO JALOS, BEN LUTHER LUCAS, SOTERO LEONERO, Student Council of respondent University. They sought and were granted by tile
and JUNE LEE, petitioners, school authorities a permit to hold a meeting from 8:00 A.M. to 12:00 P.M, on
vs. August 27, 1982. Pursuant to such permit, along with other students, they held
THE HONORABLE ANASTACIO D. RAMENTO, in his capacity as the Director of a general assembly at the Veterinary Medicine and Animal Science basketball
the National Capital Region of the Ministry of Education, Culture and Sports, court (VMAS), the place indicated in such permit, not in the basketball court as
THE GREGORIO ARANETA UNIVERSITY FOUNDATION; CESAR MIJARES, in his therein stated but at the second floor lobby. At such gathering they manifested
capacity as the President of the Gregorio Araneta University Foundation, in vehement and vigorous language their opposition to the proposed merger of
GONZALO DEL ROSARIO, in his capacity as the Director for Academic Affairs of the Institute of Animal Science with the Institute of Agriculture. At 10:30 A.M.,
the Gregorio Araneta University Foundation; TOMAS B. MESINA, in his the same day, they marched toward the Life Science Building and continued
capacity as the Dean of Student Affairs of the Gregorio Araneta University their rally. It was outside the area covered by their permit. They continued
Foundation; ATTY. LEONARDO PADILLA, in his capacity as Chief Legal Counsel their demonstration, giving utterance to language severely critical of the
& Security Supervisor of the Gregorio Araneta University Foundation; ATTY. University authorities and using megaphones in the process. There was, as a
FABLITA AMMAY, ROSENDO GALVANTE and EUGENIA TAYAO, in their result, disturbance of the classes being held. Also, the non-academic
capacities as members of the Ad Hoc Committee of the Gregorio Araneta employees, within hearing distance, stopped their work because of the noise
University Foundation, respondents. created. They were asked to explain on the same day why they should not be
held liable for holding an illegal assembly. Then on September 9, 1982, they
were formed through a memorandum that they were under preventive
Honesto N. Salcedo for petitioners.
suspension for their failure to explain the holding of an illegal assembly in front
of the Life Science Building. The validity thereof was challenged by petitioners
The Solicitor General and Leonardo G. Padilla & Pablita G. Ammay for
both before the Court of First Instance of Rizal in a petition for mandamus with
respondents.
damages against private respondents 2 and before the Ministry of Education,
Culture, and Sports. On October 20, 1982, respondent Ramento, as Director of
the National Capital Region, found petitioners guilty of the charge of having
violated par. 146(c) of the Manual for Private Schools more specifically their
FERNANDO, CJ.: holding of an illegal assembly which was characterized by the violation of the
permit granted resulting in the disturbance of classes and oral defamation. The
The failure to accord respect to the constitutional rights of freedom of penalty was suspension for one academic year. Hence this petition.
peaceable assembly and free speech is the grievance alleged by petitioners,
students of the Gregorio Araneta University Foundation, in this certiorari, On November 16, 1982, this Court issued the following resolution: "Acting on
prohibition and mandamus proceeding. The principal respondents are the urgent ex-parte motion for the immediate issuance of a temporary

224
mandatory order filed by counsel for petitioners, dated November 12, 1982, being violative of the constitutional rights of freedom of peaceable assembly
the Court Resolved to ISSUE A TEMPORARY RESTRAINING ORDER enjoining all and free speech, there is need to pass squarely on the question raised.
respondents or any person or persons acting in their place or stead from
enforcing the order of the Ministry of' Education and Culture dated October 20, This Court accordingly rules that respect for the constitutional rights of
1982 finding the petitioners guilty of the charges against them and suspending peaceable assembly and free speech calls for the setting aside of the decision
them for one (1) academic year with a stern warning that a commission of of respondent Ramento, the penalty imposed being unduly severe. It is true
the same or another offense will be dealt with utmost severity, effective as of that petitioners held the rally at a place other than that specified in the permit
this date and continuing until otherwise ordered by this Court, thus allowing and continued it longer than the time allowed. Undeniably too, they did disturb
them to enroll, if so minded. 3 the classes and caused the work of the non-academic personnel to be left
undone. Such undesirable consequence could have been avoided by their
Both public and private respondents submitted their comments. Private holding the assembly in the basketball court as indicated in the permit.
respondents prayed for the dismissal of the petition "for lack of factual and Nonetheless, suspending them for one year is out of proportion to their
legal basis and likewise [prayed] for the lifting of the temporary restraining misdeed. The petition must be granted and the decision of respondent
order dated November 16, 1982." 4 Public respondent Ramento, on the other Ramento nullified, a much lesser penalty being appropriate.
hand, through the Office of the Solicitor General, prayed for the dismissal of
the petition based on the following conclusion: "Consequently, it is respectfully 1. As is quite clear from the opinion in Reyes v. Bagatsing, 6 the invocation of
submitted that respondent Director of the MECS did not commit any error, the right to freedom of peaceable assembly carries with it the implication that
much less abused his discretion, when he affirmed the decision of respondent the right to free speech has likewise been disregarded. Both are embraced in
University finding petitioners guilty of violations of the provisions of the concept of freedom of expression which is Identified with the liberty to
the Manual of Regulations for Private Schools and the Revised Student's Code discuss publicly and truthfully, any matter of public interest without censorship
of Discipline .and ordering their suspension for one (1) academic school year. or punishment and which "is not to be limited, much less denied, except on a
However, since said suspension has not been enforced except only briefly, showing ... of a clear and present danger of a substantive evil that the state has
thereby enabling petitioners Leonero, Jr., Lucas and Malabanan to finish their a right to prevent." 7
courses, and allowing petitioners Lee and Jalos to continue their schooling, if
they so desire, this proceeding is now moot and academic. 5 2. In the above case, a permit was sought to hold a peaceful march and rally
from the Luneta public park to the gates of the united States Embassy, hardly
With the submission of such comments considered as the answers of public two blocks away, where in an open space of public property, a short program
and private respondents, the case was ready for decision. would be held. Necessarily then, the question of the use of a public park and of
the streets leading to the United States Embassy was before this Court. We
This petition may be considered moot and academic if viewed solely from the held that streets and parks have immemorially been held in trust for the use of
fact that by virtue of the temporary restraining order issued by this Court the public and have been used for purposes of assembly to communicate
petitioners were allowed to enroll in the ensuing semester, with three of them thoughts between citizens and to discuss public issues. 8
doing so and with the other two equally entitled to do so. Moreover, there is
the added circumstance of more than a year having passed since October 20, 3. The situation here is different. The assembly was to be held not in a public
1982 when respondent Ramento issued the challenged decision suspending place but in private premises, property of respondent University. There is in the
them for one year. Nonetheless, with its validity having been put in issue, for Reyes opinion as part of the summary this relevant excerpt: "The applicants for
a permit to hold an assembly should inform the licensing authority of the date,

225
the public place where and the time when it will take place. If it were a private 5. As tested by such a standard, what is the verdict on the complaint
place, only the consent of the owner or the one entitled to its legal possession of petitioners that there was a disregard of their constitutional rights to
is required." 9 Petitioners did seek such consent. It was granted. According to peaceable assembly and free speech. It must be in their favor, but subject to
the petition: "On August 27, 1982, by virtue of a permit granted to them by the qualification in view of their continuing their demonstration in a place other
school administration, the Supreme Student Council where your petitioners are than that specified in the permit for a longer period and their making use of
among the officers, held a General Assembly at the VMAS basketball court of megaphones therein, resulting in the disruption of classes and the stoppage of
the respondent university." 10 There was an express admission in the work by the non-academic personnel in the vicinity of such assembly.
Comment of private respondent University as to a permit having been granted
for petitioners to hold a student assembly. 11 The specific question to be 6. Objection is made by private respondents to the tenor of the speeches by
resolved then is whether on the facts as disclosed resulting in the disciplinary the student leaders. That there would be a vigorous presentation of views
action and the penalty imposed, there was an infringement of the right to opposed to the proposed merger of the Institute of Animal Science with the
peaceable assembly and its cognate right of free speech. Institute of Agriculture was to be expected. There was no concealment of the
fact that they were against such a move as it confronted them with a serious
4. Petitioners invoke their rights to peaceable assembly and free speech. They problem (iisang malaking suliranin.") 15 They believed that such a merger
are entitled to do so. They enjoy like the rest of the citizens the freedom to would result in the increase in tuition fees, an additional headache for their
express their views and communicate their thoughts to those disposed to listen parents ("isa na naman sakit sa ulo ng ating mga magulang."). 16 If in the
in gatherings such as was held in this case. They do not, to borrow from the course of such demonstration, with an enthusiastic audience goading them on,
opinion of Justice Fortas in Tinker v. Des Moines Community School utterances, extremely critical, at times even vitriolic, were let loose, that is
District, 12 "shed their constitutional rights to freedom of speech or expression quite understandable. Student leaders are hardly the timid, diffident types.
at the schoolhouse gate." 13 While, therefore, the authority of educational They are likely to be assertive and dogmatic. They would be ineffective if during
institutions over the conduct of students must be recognized, it cannot go so a rally they speak in the guarded and judicious language of the academe. At any
far as to be violative of constitutional safeguards. On a more specific level there rate, even a sympathetic audience is not disposed to accord full credence to
is persuasive force to this formulation in the Fortas opinion: "The principal use their fiery exhortations. They take into account the excitement of the occasion,
to which the schools are dedicated is to accommodate students during the propensity of speakers to exaggerate, the exuberance of youth, They may
prescribed hours for the purpose of certain types of activities. Among those give the speakers the benefit of their applause, but with the activity taking
activities is personal intercommunication among the students. This is not only place in the school premises and during the daytime, no clear and present
an inevitable part of the process of attending school; it is also an important danger of public disorder is discernible. This is without prejudice to the taking
part of the educational process. A student's rights, therefore, do not embrace of disciplinary action for conduct, which, to borrow from Tinker, "materially
merely the classroom hours. When he is in the cafeteria, or on the playing field, disrupts classwork or involves substantial disorder or invasion of the rights of
or on the campus during the authorized hours, he may express his opinions, others."
even on controversial subjects like the conflict in Vietnam, if he does so
without 'materially and substantially interfer[ing] with the requirements of 7. Nor is this a novel approach to the issue raised by petitioners that they were
appropriate discipline in the operation of the school' and without colliding with denied the right to peaceable assembly. In a 1907 decision, United States v.
the rights of others. ... But conduct by the student, in class or out of it, which Apurado, 17 the facts disclosed that shortly before the municipal council of San
for any reason — whether it stems from time, place, or type of behavior — Carlos, Occidental Negros, started its session, some five hundred residents of
materially disrupts classwork or involves substantial disorder or invasion of the the municipality assembled near the municipal building, and, upon the opening
rights of others is, of course, not immunized by the constitutional guarantee of of the session, a substantial number of such persons barged into the council
freedom of speech." 14 chamber, demanding that the municipal treasurer, the municipal secretary, and

226
the chief of police be dismissed, submitting at the same time the proposed took place-there was a disruption of the classes and stoppage of work of the
substitutes. The municipal council gave its conformity. Such individuals were non-academic personnel. They would not be unjustified then if they did take a
wholly unarmed except that a few carried canes; the crowd was fairly orderly much more serious view of the matter. Even then a one-year period of
and well-behaved except in so far as their pressing into the council chamber suspension is much too severe. While the discretion of both respondent
during a session of that body could be called disorder and misbehavior. It University and respondent Ramento is recognized, the rule of reason, the
turned out that the movement had its origin in religious differences. The dictate of fairness calls for a much lesser penalty. If the concept of
defendant Filomeno Apurado and many other participants were indicted and proportionality between the offense connoted and the sanction imposed is not
convicted of sedition in that they allegedly prevented the municipal followed, an element of arbitrariness intrudes. That would give rise to a due
government from freely exercising its duties. On appeal, the Supreme Court process question. To avoid this constitutional objection, it is the holding of this
reversed. Justice Carson, who penned the opinion, correctly pointed out that "if Court that a one-week suspension would be punishment enough.
the prosecution be permitted to seize upon every instance of such disorderly
conduct by individual members of a crowd as an excuse to characterize the 9. One last matter. The objection was raised that petitioners failed to exhaust
assembly as a seditious and tumultuous rising against the authorities, then the administrative remedies. That is true, but hardly decisive. Here, a purely legal
right to assemble and to petition for redress of grievances would become a question is presented. Such being the case, especially so where a decision on a
delusion and a snare and the attempt to exercise it on the most righteous question of law is imperatively called for, and time being of the essence, this
occasion and in the most peaceable manner would expose all those who took Court has invariably viewed the issue as ripe for adjudication. What cannot be
part therein to the severest form of punishment, if the purposes which they too sufficiently stressed is that the constitutional rights to peaceable assembly
sought to attain did not happen to be pleasing to the prosecuting and free speech are invoked by petitioners. Moreover, there was, and very
authorities." 18 The principle to be followed is enunciated thus: "If instances of likely there will continue to be in the future, militancy and assertiveness of
disorderly conduct occur on such occasions, the guilty individuals should be students on issues that they consider of great importance, whether concerning
sought out and punished therefor, but the utmost discretion must be exercised their welfare or the general public. That they have a right to do as citizens
in drawing the line between disorderly and seditious conduct and between an entitled to all the protection in the Bill of Rights.
essentially peaceable assembly and a tumultuous uprising." 19 A careful
reading of this decision is in order before private respondents attach, as they 10. It would be most appropriate then, as was done in the case of Reyes v.
did in their comments, a subversive character to the rally held by the students Bagatsing, 21 for this Court to lay down the principles for the guidance of school
under the leadership of petitioners. authorities and students alike. The rights to peaceable assembly and free
speech are guaranteed students of educational institutions. Necessarily, their
8. It does not follow, however, that petitioners can be totally absolved for the exercise to discuss matters affecting their welfare or involving public interest is
events that transpired. Admittedly, there was a violation of the terms of the not to be subjected to previous restraint or subsequent punishment unless
permit. The rally was held at a place other than that specified, in the second there be a showing of a clear and present danger to a substantive evil that the
floor lobby, rather than the basketball court, of the VMAS building of the state, has a right to present. As a corollary, the utmost leeway and scope is
University. Moreover, it was continued longer than the period allowed. accorded the content of the placards displayed or utterances made. The
According to the decision of respondent Ramento, the "concerted activity peaceable character of an assembly could be lost, however, by an advocacy of
[referring to such assembly] went on until 5:30 p. m. 20 Private respondents disorder under the name of dissent, whatever grievances that may be aired
could thus, take disciplinary action. On those facts, however, an admonition, being susceptible to correction through the ways of the law. If the assembly is
even a censure-certainly not a suspension-could be the appropriate penalty. to be held in school premises, permit must be sought from its school
Private respondents could and did take umbrage at the fact that in view of such authorities, who are devoid of the power to deny such request arbitrarily or
infraction considering the places where and the time when the demonstration unreasonably. In granting such permit, there may be conditions as to the time

227
and place of the assembly to avoid disruption of classes or stoppage of work of
the non-academic personnel. Even if, however, there be violations of its terms,
the penalty incurred should not be disproportionate to the offense.

WHEREFORE, the petition is granted. The decision dated October 20, 1982 of
respondent Ramento imposing a one-year suspension is nullified and set aside.
The temporary restraining order issued by this Court in the resolution of
November 18, 1982 is made permanent. As of that date, petitioners had been
suspended for more than a week. In that sense, the one-week penalty had
been served. No costs.

Teehankee, Makasiar, Guerrero, Abad Santos, Melencio-Herrera, Plana, Escolin,


Relova, Gutierrez, Jr., and De la Fuente, JJ., concur.

Aquino, Concepcion, Jr., and De Castro, JJ., took no part.

228
Republic of the Philippines ACTING UNDER THEIR CONTROL, SUPERVISION AND
SUPREME COURT INSTRUCTIONS, Respondents.
Manila
x---------------------------------x
EN BANC
G.R. No. 169881 April 25, 2006
G.R. No. 169838 April 25, 2006
KILUSANG MAYO UNO, represented by its Chairperson ELMER C. LABOG and
BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP), Secretary General JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR
GABRIELA, Fr. Jose Dizon, Renato Constantino, Jr., Froyel Yaneza, and Fahima UNIONS-KILUSANG MAYO UNO (NAFLU-KMU), represented by its National
Tajar, Petitioners, President, JOSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T.
vs. CARRANZA, GILDA SUMILANG, FRANCISCO LASTRELLA, and ROQUE M.
EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City Mayor TAN, Petitioners,
LITO ATIENZA, Chief of the Philippine National Police, Gen. ARTURO M. vs.
LOMIBAO, NCRPO Chief Maj. Gen. VIDAL QUEROL, and Western Police District THE HONORABLE EXECUTIVE SECRETARY, PNP DIRECTOR GENRAL ARTURO
Chief Gen. PEDRO BULAONG, Respondents. LOMIBAO, HONORABLE MAYOR LITO ATIENZA, and PNP MPD CHIEF SUPT.
PEDRO BULAONG, Respondents.
x---------------------------------x
DECISION
G.R. No. 169848 April 25, 2006
AZCUNA, J.:
Jess Del Prado, Wilson Fortaleza, Leody de Guzman, Pedro Pinlac, Carmelita
Morante, Rasti Delizo, Paul Bangay, Marie Jo Ocampo, Lilia dela Cruz, Cristeta Petitioners come in three groups.
Ramos, Adelaida Ramos, Mary Grace Gonzales, Michael Torres, Rendo
Sabusap, Precious Balute, Roxanne Magboo, Ernie Bautista, Joseph de Jesus, The first petitioners, Bayan, et al., in G.R. No. 169838,1 allege that they are
Margarita Escober, Djoannalyn Janier, Magdalena Sellote, Manny Quiazon, citizens and taxpayers of the Philippines and that their rights as organizations
Ericson Dizon, Nenita Cruzat, Leonardo De los Reyes, Pedrito and individuals were violated when the rally they participated in on October 6,
Fadrigon, Petitioners, 2005 was violently dispersed by policemen implementing Batas Pambansa
vs. (B.P.) No. 880.
EDUARDO ERMITA, in his official capacity as The Executive Secretary and in
his personal capacity, ANGELO REYES, in his official capacity as Secretary of The second group consists of 26 individual petitioners, Jess del Prado, et al., in
the Interior and Local Governments, ARTURO LOMIBAO, in his official G.R. No. 169848,2 who allege that they were injured, arrested and detained
capacity as the Chief, Philippine National Police, VIDAL QUEROL, in his official when a peaceful mass action they held on September 26, 2005 was preempted
capacity as the Chief, National Capital Regional Police Office (NCRPO), PEDRO and violently dispersed by the police. They further assert that on October 5,
BULAONG, in his official capacity as the Chief, Manila Police District (MPD) 2005, a group they participated in marched to Malacañang to protest issuances
AND ALL OTHER PUBLIC OFFICERS GARCIA, and AND PRIVATE INDIVIDUALS of the Palace which, they claim, put the country under an "undeclared" martial

229
rule, and the protest was likewise dispersed violently and many among them Sec. 2. Declaration of policy. – The constitutional right of the people peaceably
were arrested and suffered injuries. to assemble and petition the government for redress of grievances is essential
and vital to the strength and stability of the State. To this end, the State shall
The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No. ensure the free exercise of such right without prejudice to the rights of others
169881,3 allege that they conduct peaceful mass actions and that their rights as to life, liberty and equal protection of the law.
organizations and those of their individual members as citizens, specifically the
right to peaceful assembly, are affected by Batas Pambansa No. 880 and the Sec. 3. Definition of terms. – For purposes of this Act:
policy of "Calibrated Preemptive Response" (CPR) being followed to implement
it. (a) "Public assembly" means any rally, demonstration, march, parade,
procession or any other form of mass or concerted action held in a
KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to be public place for the purpose of presenting a lawful cause; or
conducted at the Mendiola bridge but police blocked them along C.M. Recto expressing an opinion to the general public on any particular issue; or
and Lepanto Streets and forcibly dispersed them, causing injuries to several of protesting or influencing any state of affairs whether political,
their members. They further allege that on October 6, 2005, a multi-sectoral economic or social; or petitioning the government for redress of
rally which KMU also co-sponsored was scheduled to proceed along España grievances.
Avenue in front of the University of Santo Tomas and going towards Mendiola
bridge. Police officers blocked them along Morayta Street and prevented them The processions, rallies, parades, demonstrations, public meetings and
from proceeding further. They were then forcibly dispersed, causing injuries on assemblages for religious purposes shall be governed by local
one of them.4 Three other rallyists were arrested. ordinances; Provided, however, That the declaration of policy as
provided in Section 2 of this Act shall be faithfully observed.
All petitioners assail Batas Pambansa No. 880, some of them in toto and others
only Sections 4, 5, 6, 12, 13(a), and 14(a), as well as the policy of CPR. They seek The definition herein contained shall not include picketing and other
to stop violent dispersals of rallies under the "no permit, no rally" policy and concerted action in strike areas by workers and employees resulting
the CPR policy recently announced. from a labor dispute as defined by the Labor Code, its implementing
rules and regulations, and by the Batas Pambansa Bilang 227.
B.P. No. 880, "The Public Assembly Act of 1985," provides:
(b) "Public place" shall include any highway, boulevard, avenue, road,
Batas Pambansa Blg. 880 street, bridge or other thoroughfare, park, plaza, square, and/or any
open space of public ownership where the people are allowed access.
An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To
Assemble And Petition The Government [And] For Other Purposes (c) "Maximum tolerance" means the highest degree of restraint that
the military, police and other peace keeping authorities shall observe
Be it enacted by the Batasang Pambansa in session assembled: during a public assembly or in the dispersal of the same.

Section 1. Title. – This Act shall be known as "The Public Assembly Act of 1985." (d) "Modification of a permit" shall include the change of the place
and time of the public assembly, rerouting of the parade or street

230
march, the volume of loud-speakers or sound system and similar (a) It shall be the duty of the mayor or any official acting in his behalf
changes. to issue or grant a permit unless there is clear and convincing evidence
that the public assembly will create a clear and present danger to
Sec. 4. Permit when required and when not required. – A written permit shall be public order, public safety, public convenience, public morals or public
required for any person or persons to organize and hold a public assembly in a health.
public place. However, no permit shall be required if the public assembly shall
be done or made in a freedom park duly established by law or ordinance or in (b) The mayor or any official acting in his behalf shall act on the
private property, in which case only the consent of the owner or the one application within two (2) working days from the date the application
entitled to its legal possession is required, or in the campus of a government- was filed, failing which, the permit shall be deemed granted. Should
owned and operated educational institution which shall be subject to the rules for any reason the mayor or any official acting in his behalf refuse to
and regulations of said educational institution. Political meetings or rallies held accept the application for a permit, said application shall be posted by
during any election campaign period as provided for by law are not covered by the applicant on the premises of the office of the mayor and shall be
this Act. deemed to have been filed.

Sec. 5. Application requirements. – All applications for a permit shall comply (c) If the mayor is of the view that there is imminent and grave danger
with the following guidelines: of a substantive evil warranting the denial or modification of the
permit, he shall immediately inform the applicant who must be heard
(a) The applications shall be in writing and shall include the names of on the matter.
the leaders or organizers; the purpose of such public assembly; the
date, time and duration thereof, and place or streets to be used for (d) The action on the permit shall be in writing and served on the
the intended activity; and the probable number of persons applica[nt] within twenty-four hours.
participating, the transport and the public address systems to be used.
(e) If the mayor or any official acting in his behalf denies the
(b) The application shall incorporate the duty and responsibility of the application or modifies the terms thereof in his permit, the applicant
applicant under Section 8 hereof. may contest the decision in an appropriate court of law.

(c) The application shall be filed with the office of the mayor of the city (f) In case suit is brought before the Metropolitan Trial Court, the
or municipality in whose jurisdiction the intended activity is to be held, Municipal Trial Court, the Municipal Circuit Trial Court, the Regional
at least five (5) working days before the scheduled public assembly. Trial Court, or the Intermediate Appellate court, its decisions may be
appealed to the appropriate court within forty-eight (48) hours after
(d) Upon receipt of the application, which must be duly acknowledged receipt of the same. No appeal bond and record on appeal shall be
in writing, the office of the city or municipal mayor shall cause the required. A decision granting such permit or modifying it in terms
same to immediately be posted at a conspicuous place in the city or satisfactory to the applicant shall be immediately executory.
municipal building.
(g) All cases filed in court under this section shall be decided within
Sec. 6. Action to be taken on the application. – twenty-four (24) hours from date of filing. Cases filed hereunder shall

231
be immediately endorsed to the executive judge for disposition or, in (e) To take positive steps that demonstrators do not molest any
his absence, to the next in rank. person or do any act unduly interfering with the rights of other
persons not participating in the public assembly.
(h) In all cases, any decision may be appealed to the Supreme Court.
Sec. 9. Non-interference by law enforcement authorities. – Law enforcement
(i) Telegraphic appeals to be followed by formal appeals are hereby agencies shall not interfere with the holding of a public assembly. However, to
allowed. adequately ensure public safety, a law enforcement contingent under the
command of a responsible police officer may be detailed and stationed in a
Sec. 7. Use of Public throroughfare. – Should the proposed public assembly place at least one hundred (100) meters away from the area of activity ready to
involve the use, for an appreciable length of time, of any public highway, maintain peace and order at all times.
boulevard, avenue, road or street, the mayor or any official acting in his behalf
may, to prevent grave public inconvenience, designate the route thereof which Sec. 10. Police assistance when requested. – It shall be imperative for law
is convenient to the participants or reroute the vehicular traffic to another enforcement agencies, when their assistance is requested by the leaders or
direction so that there will be no serious or undue interference with the free organizers, to perform their duties always mindful that their responsibility to
flow of commerce and trade. provide proper protection to those exercising their right peaceably to assemble
and the freedom of expression is primordial. Towards this end, law
Sec. 8. Responsibility of applicant. – It shall be the duty and responsibility of the enforcement agencies shall observe the following guidelines:
leaders and organizers of a public assembly to take all reasonable measures
and steps to the end that the intended public assembly shall be conducted (a) Members of the law enforcement contingent who deal with the
peacefully in accordance with the terms of the permit. These shall include but demonstrators shall be in complete uniform with their nameplates
not be limited to the following: and units to which they belong displayed prominently on the front and
dorsal parts of their uniform and must observe the policy of
(a) To inform the participants of their responsibility under the "maximum tolerance" as herein defined;
permit;|avvphi|.net
(b) The members of the law enforcement contingent shall not carry
(b) To police the ranks of the demonstrators in order to prevent non- any kind of firearms but may be equipped with baton or riot sticks,
demonstrators from disrupting the lawful activities of the public shields, crash helmets with visor, gas masks, boots or ankle high shoes
assembly; with shin guards;

(c) To confer with local government officials concerned and law (c) Tear gas, smoke grenades, water cannons, or any similar anti-riot
enforcers to the end that the public assembly may be held peacefully; device shall not be used unless the public assembly is attended by
actual violence or serious threats of violence, or deliberate destruction
of property.
(d) To see to it that the public assembly undertaken shall not go
beyond the time stated in the permit; and
Sec. 11. Dispersal of public assembly with permit. – No public assembly with a
permit shall be dispersed. However, when an assembly becomes violent, the
police may disperse such public assembly as follows:

232
(a) At the first sign of impending violence, the ranking officer of the said permit: Provided, however, That no person can be punished or
law enforcement contingent shall call the attention of the leaders of held criminally liable for participating in or attending an otherwise
the public assembly and ask the latter to prevent any possible peaceful assembly;
disturbance;
(b) Arbitrary and unjustified denial or modification of a permit in
(b) If actual violence starts to a point where rocks or other harmful violation of the provisions of this Act by the mayor or any other official
objects from the participants are thrown at the police or at the non- acting in his behalf;
participants, or at any property causing damage to such property, the
ranking officer of the law enforcement contingent shall audibly warn (c) The unjustified and arbitrary refusal to accept or acknowledge
the participants that if the disturbance persists, the public assembly receipt of the application for a permit by the mayor or any official
will be dispersed; acting in his behalf;

(c) If the violence or disturbance prevailing as stated in the preceding (d) Obstructing, impeding, disrupting or otherwise denying the
subparagraph should not stop or abate, the ranking officer of the law exercise of the right to peaceful assembly;
enforcement contingent shall audibly issue a warning to the
participants of the public assembly, and after allowing a reasonable (e) The unnecessary firing of firearms by a member of any law
period of time to lapse, shall immediately order it to forthwith enforcement agency or any person to disperse the public assembly;
disperse;
(f) Acts in violation of Section 10 hereof;
(d) No arrest of any leader, organizer or participant shall also be made
during the public assembly unless he violates during the assembly a
(g) Acts described hereunder if committed within one hundred (100)
law, statute, ordinance or any provision of this Act. Such arrest shall
meters from the area of activity of the public assembly or on the
be governed by Article 125 of the Revised Penal Code, as amended;
occasion thereof:

(e) Isolated acts or incidents of disorder or breach of the peace during


1. the carrying of a deadly or offensive weapon or device such
the public assembly shall not constitute a ground for dispersal.
as firearm, pillbox, bomb, and the like;

Sec. 12. Dispersal of public assembly without permit. – When the public
2. the carrying of a bladed weapon and the like;
assembly is held without a permit where a permit is required, the said public
assembly may be peacefully dispersed.
3. the malicious burning of any object in the streets or
thoroughfares;
Sec. 13. Prohibited acts. – The following shall constitute violations of the Act:
4. the carrying of firearms by members of the law
(a) The holding of any public assembly as defined in this Act by any
enforcement unit;
leader or organizer without having first secured that written permit
where a permit is required from the office concerned, or the use of
such permit for such purposes in any place other than those set out in

233
5. the interfering with or intentionally disturbing the holding Sec. 17. Repealing clause. – All laws, decrees, letters of instructions,
of a public assembly by the use of a motor vehicle, its horns resolutions, orders, ordinances or parts thereof which are inconsistent with the
and loud sound systems. provisions of this Act are hereby repealed, amended, or modified accordingly.

Sec. 14. Penalties. – Any person found guilty and convicted of any of the Sec. 18. Effectivity. – This Act shall take effect upon its approval.
prohibited acts defined in the immediately preceding section shall be punished
as follows: Approved, October 22, 1985.

(a) violation of subparagraph (a) shall be punished by imprisonment of CPR, on the other hand, is a policy set forth in a press release by Malacañang
one month and one day to six months; dated September 21, 2005, shown in Annex "A" to the Petition in G.R. No.
169848, thus:
(b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4,
subparagraph (g) shall be punished by imprisonment of six months Malacañang Official
and one day to six years;
Manila, Philippines NEWS
(c) violation of item 1, subparagraph (g) shall be punished by
imprisonment of six months and one day to six years without Release No. 2 September 21, 2005
prejudice to prosecution under Presidential Decree No. 1866;
STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA
(d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be
punished by imprisonment of one day to thirty days.
On Unlawful Mass Actions

Sec. 15. Freedom parks. – Every city and municipality in the country shall within
In view of intelligence reports pointing to credible plans of anti-government
six months after the effectivity of this Act establish or designate at least one
groups to inflame the political situation, sow disorder and incite people against
suitable "freedom park" or mall in their respective jurisdictions which, as far as
the duly constituted authorities, we have instructed the PNP as well as the local
practicable, shall be centrally located within the poblacion where
government units to strictly enforce a "no permit, no rally" policy, disperse
demonstrations and meetings may be held at any time without the need of any
groups that run afoul of this standard and arrest all persons violating the laws
prior permit.
of the land as well as ordinances on the proper conduct of mass actions and
demonstrations.
In the cities and municipalities of Metropolitan Manila, the respective mayors
shall establish the freedom parks within the period of six months from the
The rule of calibrated preemptive response is now in force, in lieu of maximum
effectivity this Act.
tolerance. The authorities will not stand aside while those with ill intent are
herding a witting or unwitting mass of people and inciting them into actions
Sec. 16. Constitutionality. – Should any provision of this Act be declared invalid that are inimical to public order, and the peace of mind of the national
or unconstitutional, the validity or constitutionality of the other provisions shall community.
not be affected thereby.

234
Unlawful mass actions will be dispersed. The majority of law-abiding citizens Regarding the CPR policy, it is void for being an ultra vires act that alters the
have the right to be protected by a vigilant and proactive government. standard of maximum tolerance set forth in B.P. No. 880, aside from being void
for being vague and for lack of publication.
We appeal to the detractors of the government to engage in lawful and
peaceful conduct befitting of a democratic society. Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the
right to assembly and therefore B.P. No. 880 cannot put the prior requirement
The President’s call for unity and reconciliation stands, based on the rule of of securing a permit. And even assuming that the legislature can set limits to
law. this right, the limits provided are unreasonable: First, allowing the Mayor to
deny the permit on clear and convincing evidence of a clear and present danger
Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a is too comprehensive. Second, the five-day requirement to apply for a permit is
violation of the Constitution and the International Covenant on Civil and too long as certain events require instant public assembly, otherwise interest
Political Rights and other human rights treaties of which the Philippines is a on the issue would possibly wane.
signatory.5
As to the CPR policy, they argue that it is preemptive, that the government
They argue that B.P. No. 880 requires a permit before one can stage a public takes action even before the rallyists can perform their act, and that no law,
assembly regardless of the presence or absence of a clear and present danger. ordinance or executive order supports the policy. Furthermore, it contravenes
It also curtails the choice of venue and is thus repugnant to the freedom of the maximum tolerance policy of B.P. No. 880 and violates the Constitution as
expression clause as the time and place of a public assembly form part of the it causes a chilling effect on the exercise by the people of the right to peaceably
message for which the expression is sought. Furthermore, it is not content- assemble.
neutral as it does not apply to mass actions in support of the government. The
words "lawful cause," "opinion," "protesting or influencing" suggest the Respondents in G.R. No. 169838 are Eduardo Ermita, as Executive Secretary,
exposition of some cause not espoused by the government. Also, the phrase Manila City Mayor Lito Atienza, Chief, of the Philippine National Police
"maximum tolerance" shows that the law applies to assemblies against the (PNP) Gen. Arturo Lomibao, National Capital Region Police Office (NCRPO)
government because they are being tolerated. As a content-based legislation, it Chief, PNP Maj. Gen. Vidal Querol, and Manila Police District (MPD) Chief Gen.
cannot pass the strict scrutiny test. Pedro Bulaong.

Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is Respondents in G.R. No. 169848 are Eduardo Ermita as Executive Secretary
unconstitutional as it is a curtailment of the right to peacefully assemble and and in his personal capacity; Angelo Reyes, as Secretary of the Interior and
petition for redress of grievances because it puts a condition for the valid Local Governments; Arturo Lomibao, as Chief Vidal Querol, as Chief,
exercise of that right. It also characterizes public assemblies without a permit NCRPO; Pedro Bulaong, as Chief, MPD, and all other public officers and private
as illegal and penalizes them and allows their dispersal. Thus, its provisions are individuals acting under their control, supervision and instruction.
not mere regulations but are actually prohibitions.
Respondents in G.R. No. 169881 are the Honorable Executive Secretary,
Furthermore, the law delegates powers to the Mayor without providing clear PNP Director General Arturo Lomibao, the Honorable Mayor Joselito Atienza,
standards. The two standards stated in the laws (clear and present danger and and PNP MPD Chief Pedro Bulaong.
imminent and grave danger) are inconsistent.
Respondents argue that:

235
1. Petitioners have no standing because they have not presented narrowly circumscribed by Sections 5 (d), and 6 (a), (b), (c), (d), (e), 13
evidence that they had been "injured, arrested or detained because of and 15 of the law.
the CPR," and that "those arrested stand to be charged with violating
Batas Pambansa [No.] 880 and other offenses." 6. The standards set forth in the law are not inconsistent. "Clear and
convincing evidence that the public assembly will create a clear and
2. Neither B.P. No. 880 nor CPR is void on its face. Petitioners cannot present danger to public order, public safety, public convenience,
honestly claim that the time, place and manner regulation embodied public morals or public health" and "imminent and grave danger of a
in B.P. No. 880 violates the three-pronged test for such a measure, to substantive evil" both express the meaning of the "clear and present
wit: (a) B.P. No. 880 is content-neutral, i.e., it has no reference to danger test."10
content of regulated speech; (b) B.P. No. 880 is narrowly tailored to
serve a significant governmental interest, i.e., the interest cannot be 7. CPR is simply the responsible and judicious use of means allowed by
equally well served by a means that is less intrusive of free speech existing laws and ordinances to protect public interest and restore
interests; and (c) B.P. No. 880 leaves open alternative channels for public order. Thus, it is not accurate to call it a new rule but rather it is
communication of the information.6 a more pro-active and dynamic enforcement of existing laws,
regulations and ordinances to prevent chaos in the streets. It does not
3. B.P. No. 880 is content-neutral as seen from the text of the law. replace the rule of maximum tolerance in B.P. No. 880.
Section 5 requires the statement of the public assembly’s time, place
and manner of conduct. It entails traffic re-routing to prevent grave Respondent Mayor Joselito Atienza, for his part, submitted in his Comment
public inconvenience and serious or undue interference in the free that the petition in G.R. No. 169838 should be dismissed on the ground that
flow of commerce and trade. Furthermore, nothing in B.P. No. 880 Republic Act No. 7160 gives the Mayor power to deny a permit independently
authorizes the denial of a permit on the basis of a rally’s program of B.P. No. 880; that his denials of permits were under the "clear and present
content or the statements of the speakers therein, except under the danger" rule as there was a clamor to stop rallies that disrupt the economy and
constitutional precept of the "clear and present danger test." The to protect the lives of other people; that J. B. L. Reyes v. Bagatsing,11 Primicias
status of B.P. No. 880 as a content-neutral regulation has been v. Fugoso,12 and Jacinto v. CA,13 have affirmed the constitutionality of requiring
recognized in Osmeña v. Comelec.7 a permit; that the permit is for the use of a public place and not for
the exercise of rights; and that B.P. No. 880 is not a content-based regulation
4. Adiong v. Comelec8 held that B.P. No. 880 is a content-neutral because it covers all rallies.
regulation of the time, place and manner of holding public assemblies
and the law passes the test for such regulation, namely, these The petitions were ordered consolidated on February 14, 2006. After the
regulations need only a substantial governmental interest to support submission of all the Comments, the Court set the cases for oral arguments on
them. April 4, 2006,14 stating the principal issues, as follows:

5. Sangalang v. Intermediate Appellate Court9 held that a local chief 1. On the constitutionality of Batas Pambansa No. 880, specifically
executive has the authority to exercise police power to meet "the Sections 4, 5, 6, 12 13(a) and 14(a) thereof, and Republic Act No. 7160:
demands of the common good in terms of traffic decongestion and
public convenience." Furthermore, the discretion given to the mayor is (a) Are these content-neutral or content-based regulations?

236
(b) Are they void on grounds of overbreadth or vagueness? The Court will now proceed to address the principal issues, taking into account
the foregoing developments.
(c) Do they constitute prior restraint?
Petitioners’ standing cannot be seriously challenged. Their right as citizens to
(d) Are they undue delegations of powers to Mayors? engage in peaceful assembly and exercise the right of petition, as guaranteed
by the Constitution, is directly affected by B.P. No. 880 which requires a permit
(e) Do they violate international human rights treaties and for all who would publicly assemble in the nation’s streets and parks. They
the Universal Declaration of Human Rights? have, in fact, purposely engaged in public assemblies without the required
permits to press their claim that no such permit can be validly required without
violating the Constitutional guarantee. Respondents, on the other hand, have
2. On the constitutionality and legality of the policy of Calibrated
challenged such action as contrary to law and dispersed the public assemblies
Preemptive Response (CPR):
held without the permit.
(a) Is the policy void on its face or due to vagueness?
Section 4 of Article III of the Constitution provides:
(b) Is it void for lack of publication?
Sec. 4. No law shall be passed abridging the freedom of speech, of expression,
or of the press, or the right of the people peaceably to assemble and petition
(c) Is the policy of CPR void as applied to the rallies of
the government for redress of grievances.
September 26 and October 4, 5 and 6, 2005?
The first point to mark is that the right to peaceably assemble and petition for
During the course of the oral arguments, the following developments took
redress of grievances is, together with freedom of speech, of expression, and of
place and were approved and/or noted by the Court:
the press, a right that enjoys primacy in the realm of constitutional protection.
For these rights constitute the very basis of a functional democratic polity,
1. Petitioners, in the interest of a speedy resolution of the petitions, without which all the other rights would be meaningless and unprotected. As
withdrew the portions of their petitions raising factual issues, stated in Jacinto v. CA,15 the Court, as early as the onset of this century, in U.S.
particularly those raising the issue of whether B.P. No. 880 and/or CPR v. Apurado,16 already upheld the right to assembly and petition, as follows:
is void as applied to the rallies of September 20, October 4, 5 and 6,
2005.
There is no question as to the petitioners’ rights to peaceful assembly to
petition the government for a redress of grievances and, for that matter, to
2. The Solicitor General agreed with the observation of the Chief organize or form associations for purposes not contrary to law, as well as to
Justice that CPR should no longer be used as a legal term inasmuch as, engage in peaceful concerted activities. These rights are guaranteed by no less
according to respondents, it was merely a "catchword" intended to than the Constitution, particularly Sections 4 and 8 of the Bill of Rights, Section
clarify what was thought to be a misunderstanding of the maximum 2(5) of Article IX, and Section 3 of Article XIII. Jurisprudence abounds with
tolerance policy set forth in B.P. No. 880 and that, as stated in the hallowed pronouncements defending and promoting the people’s exercise of
affidavit executed by Executive Secretary Eduardo Ermita and these rights. As early as the onset of this century, this Court in U.S. vs. Apurado,
submitted to the Ombudsman, it does not replace B.P. No. 880 and already upheld the right to assembly and petition and even went as far as to
the maximum tolerance policy embodied in that law. acknowledge:

237
"It is rather to be expected that more or less disorder will mark the public government through its legislative branch by the enactment of laws regulating
assembly of the people to protest against grievances whether real or those and other constitutional and civil rights, and it may be delegated to
imaginary, because on such occasions feeling is always wrought to a high pitch political subdivisions, such as towns, municipalities and cities by authorizing
of excitement, and the greater, the grievance and the more intense the feeling, their legislative bodies called municipal and city councils to enact ordinances
the less perfect, as a rule will be the disciplinary control of the leaders over for the purpose.18
their irresponsible followers. But if the prosecution be permitted to seize upon
every instance of such disorderly conduct by individual members of a crowd as Reyes v. Bagatsing19 further expounded on the right and its limits, as follows:
an excuse to characterize the assembly as a seditious and tumultuous rising
against the authorities, then the right to assemble and to petition for redress of 1. It is thus clear that the Court is called upon to protect the exercise
grievances would become a delusion and a snare and the attempt to exercise it of the cognate rights to free speech and peaceful assembly, arising
on the most righteous occasion and in the most peaceable manner would from the denial of a permit. The Constitution is quite explicit: "No law
expose all those who took part therein to the severest and most unmerited shall be passed abridging the freedom of speech, or of the press, or
punishment, if the purposes which they sought to attain did not happen to be the right of the people peaceably to assemble and petition the
pleasing to the prosecuting authorities. If instances of disorderly conduct occur Government for redress of grievances." Free speech, like free press,
on such occasions, the guilty individuals should be sought out and punished may be identified with the liberty to discuss publicly and truthfully any
therefor, but the utmost discretion must be exercised in drawing the line matter of public concern without censorship or punishment. There is
between disorderly and seditious conduct and between an essentially to be then no previous restraint on the communication of views or
peaceable assembly and a tumultuous uprising." subsequent liability whether in libel suits, prosecution for sedition, or
action for damages, or contempt proceedings unless there be a "clear
Again, in Primicias v. Fugoso,17 the Court likewise sustained the primacy of and present danger of a substantive evil that [the State] has a right to
freedom of speech and to assembly and petition over comfort and convenience prevent." Freedom of assembly connotes the right of the people to
in the use of streets and parks. meet peaceably for consultation and discussion of matters of public
concern. It is entitled to be accorded the utmost deference and
Next, however, it must be remembered that the right, while sacrosanct, is not respect. It is not to be limited, much less denied, except on a showing,
absolute. In Primicias, this Court said: as is the case with freedom of expression, of a clear and present
danger of a substantive evil that the state has a right to prevent. Even
The right to freedom of speech, and to peacefully assemble and petition the prior to the 1935 Constitution, Justice Malcolm had occasion to stress
government for redress of grievances, are fundamental personal rights of the that it is a necessary consequence of our republican institutions and
people recognized and guaranteed by the constitutions of democratic complements the right of free speech. To paraphrase the opinion of
countries. But it is a settled principle growing out of the nature of well-ordered Justice Rutledge, speaking for the majority of the American Supreme
civil societies that the exercise of those rights is not absolute for it may be so Court in Thomas v. Collins, it was not by accident or coincidence that
regulated that it shall not be injurious to the equal enjoyment of others having the rights to freedom of speech and of the press were coupled in a
equal rights, nor injurious to the rights of the community or society. The power single guarantee with the rights of the people peaceably to assemble
to regulate the exercise of such and other constitutional rights is termed the and to petition the government for redress of grievances. All these
sovereign "police power," which is the power to prescribe regulations, to rights, while not identical, are inseparable. In every case, therefore,
promote the health, morals, peace, education, good order or safety, and where there is a limitation placed on the exercise of this right, the
general welfare of the people. This sovereign police power is exercised by the judiciary is called upon to examine the effects of the challenged
governmental actuation. The sole justification for a limitation on the

238
exercise of this right, so fundamental to the maintenance of the greater the grievance and the more intense the feeling, the less
democratic institutions, is the danger, of a character both grave and perfect, as a rule, will be the disciplinary control of the leaders over
imminent, of a serious evil to public safety, public morals, public their irresponsible followers." It bears repeating that for the
health, or any other legitimate public interest. constitutional right to be invoked, riotous conduct, injury to property,
and acts of vandalism must be avoided. To give free rein to one’s
2. Nowhere is the rationale that underlies the freedom of expression destructive urges is to call for condemnation. It is to make a mockery
and peaceable assembly better expressed than in this excerpt from an of the high estate occupied by intellectual liberty in our scheme of
opinion of Justice Frankfurter: "It must never be forgotten, however, values.
that the Bill of Rights was the child of the Enlightenment. Back of the
guaranty of free speech lay faith in the power of an appeal to reason There can be no legal objection, absent the existence of a clear and
by all the peaceful means for gaining access to the mind. It was in present danger of a substantive evil, on the choice of Luneta as the
order to avert force and explosions due to restrictions upon rational place where the peace rally would start. The Philippines is committed
modes of communication that the guaranty of free speech was given a to the view expressed in the plurality opinion, of 1939 vintage, of
generous scope. But utterance in a context of violence can lose its Justice Roberts in Hague v. CIO: "Whenever the title of streets and
significance as an appeal to reason and become part of an instrument parks may rest, they have immemorially been held in trust for the use
of force. Such utterance was not meant to be sheltered by the of the public and, time out of mind, have been used for purposes of
Constitution." What was rightfully stressed is the abandonment of assembly, communicating thoughts between citizens, and discussing
reason, the utterance, whether verbal or printed, being in a context of public questions. Such use of the streets and public places has, from
violence. It must always be remembered that this right likewise ancient times, been a part of the privileges, immunities, rights and
provides for a safety valve, allowing parties the opportunity to give liberties of citizens. The privilege of a citizen of the United States to
vent to their views, even if contrary to the prevailing climate of use the streets and parks for communication of views on national
opinion. For if the peaceful means of communication cannot be questions may be regulated in the interest of all; it is not absolute, but
availed of, resort to non-peaceful means may be the only alternative. relative, and must be exercised in subordination to the general
Nor is this the sole reason for the expression of dissent. It means more comfort and convenience, and in consonance with peace and good
than just the right to be heard of the person who feels aggrieved or order; but must not, in the guise of regulation, be abridged or denied."
who is dissatisfied with things as they are. Its value may lie in the fact The above excerpt was quoted with approval in Primicias v. Fugoso.
that there may be something worth hearing from the dissenter. That is Primicias made explicit what was implicit in Municipality of Cavite v.
to ensure a true ferment of ideas. There are, of course, well-defined Rojas, a 1915 decision, where this Court categorically affirmed that
limits. What is guaranteed is peaceable assembly. One may not plazas or parks and streets are outside the commerce of man and thus
advocate disorder in the name of protest, much less preach rebellion nullified a contract that leased Plaza Soledad of plaintiff-municipality.
under the cloak of dissent. The Constitution frowns on disorder or Reference was made to such plaza "being a promenade for public
tumult attending a rally or assembly. Resort to force is ruled out and use," which certainly is not the only purpose that it could serve. To
outbreaks of violence to be avoided. The utmost calm though is not repeat, there can be no valid reason why a permit should not be
required. As pointed out in an early Philippine case, penned in 1907 to granted for the proposed march and rally starting from a public park
be precise, United States v. Apurado: "It is rather to be expected that that is the Luneta.
more or less disorder will mark the public assembly of the people to
protest against grievances whether real or imaginary, because on such 4. Neither can there be any valid objection to the use of the streets to
occasions feeling is always wrought to a high pitch of excitement, and the gates of the US embassy, hardly two blocks away at the Roxas

239
Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the xxx
matter. In holding that the then Mayor Fugoso of the City of Manila
should grant a permit for a public meeting at Plaza Miranda in Quiapo, 6. x x x The principle under American doctrines was given utterance by
this Court categorically declared: "Our conclusion finds support in the Chief Justice Hughes in these words: "The question, if the rights of free
decision in the case of Willis Cox v. State of New Hampshire, 312 U.S., speech and peaceable assembly are to be preserved, is not as to the
569. In that case, the statute of New Hampshire P.L. chap. 145, section auspices under which the meeting is held but as to its purpose; not as
2, providing that no parade or procession upon any ground abutting to the relations of the speakers, but whether their utterances
thereon, shall be permitted unless a special license therefor shall first transcend the bounds of the freedom of speech which the
be obtained from the selectmen of the town or from licensing Constitution protects." There could be danger to public peace and
committee,’ was construed by the Supreme Court of New Hampshire safety if such a gathering were marked by turbulence. That would
as not conferring upon the licensing board unfettered discretion to deprive it of its peaceful character. Even then, only the guilty parties
refuse to grant the license, and held valid. And the Supreme Court of should be held accountable. It is true that the licensing official, here
the United States, in its decision (1941) penned by Chief Justice respondent Mayor, is not devoid of discretion in determining whether
Hughes affirming the judgment of the State Supreme Court, held that or not a permit would be granted. It is not, however, unfettered
‘a statute requiring persons using the public streets for a parade or discretion. While prudence requires that there be a realistic appraisal
procession to procure a special license therefor from the local not of what may possibly occur but of what may probably occur, given
authorities is not an unconstitutional abridgment of the rights of all the relevant circumstances, still the assumption – especially so
assembly or of freedom of speech and press, where, as the statute is where the assembly is scheduled for a specific public place – is that
construed by the state courts, the licensing authorities are strictly the permit must be for the assembly being held there. The exercise of
limited, in the issuance of licenses, to a consideration of the time, such a right, in the language of Justice Roberts, speaking for the
place, and manner of the parade or procession, with a view to American Supreme Court, is not to be "abridged on the plea that it
conserving the public convenience and of affording an opportunity to may be exercised in some other place."
provide proper policing, and are not invested with arbitrary discretion
to issue or refuse license, * * *. "Nor should the point made by Chief xxx
Justice Hughes in a subsequent portion of the opinion be ignored:
"Civil liberties, as guaranteed by the Constitution, imply the existence
8. By way of a summary. The applicants for a permit to hold an
of an organized society maintaining public order without which liberty
assembly should inform the licensing authority of the date, the public
itself would be lost in the excesses of unrestricted abuses. The
place where and the time when it will take place. If it were a private
authority of a municipality to impose regulations in order to assure the
place, only the consent of the owner or the one entitled to its legal
safety and convenience of the people in the use of public highways
possession is required. Such application should be filed well ahead in
has never been regarded as inconsistent with civil liberties but rather
time to enable the public official concerned to appraise whether there
as one of the means of safeguarding the good order upon which they
may be valid objections to the grant of the permit or to its grant but at
ultimately depend. The control of travel on the streets of cities is the
another public place. It is an indispensable condition to such refusal or
most familiar illustration of this recognition of social need. Where a
modification that the clear and present danger test be the standard
restriction of the use of highways in that relation is designed to
for the decision reached. If he is of the view that there is such an
promote the public convenience in the interest of all, it cannot be
imminent and grave danger of a substantive evil, the applicants must
disregarded by the attempted exercise of some civil right which in
be heard on the matter. Thereafter, his decision, whether favorable or
other circumstances would be entitled to protection."

240
adverse, must be transmitted to them at the earliest opportunity.
Thus if so minded, they can have recourse to the proper judicial application should be filed well institution which shall be subject to
authority. Free speech and peaceable assembly, along with the other ahead in time to enable the public the rules and regulations of said
intellectual freedoms, are highly ranked in our scheme of official concerned to appraise educational institution. Political
constitutional values. It cannot be too strongly stressed that on the whether there may be valid meetings or rallies held during any
judiciary, -- even more so than on the other departments – rests the objections to the grant of the election campaign period as
grave and delicate responsibility of assuring respect for and deference permit or to its grant but at another provided for by law are not covered
to such preferred rights. No verbal formula, no sanctifying phrase can, public place. It is an indispensable by this Act.
of course, dispense with what has been so felicitiously termed by condition to such refusal or
Justice Holmes "as the sovereign prerogative of judgment." modification that the clear and Sec. 5. Application requirements.--
Nonetheless, the presumption must be to incline the weight of the present danger test be the standard All applications for a permit shall
scales of justice on the side of such rights, enjoying as they do for the decision reached. If he is of comply with the following
precedence and primacy. x x x. the view that there is such an guidelines:
imminent and grave danger of a
B.P. No. 880 was enacted after this Court rendered its decision in Reyes. substantive evil, the applicants (a) The applications shall
must be heard on the matter. be in writing and shall
The provisions of B.P. No. 880 practically codify the ruling in Reyes: Thereafter, his decision, whether include the names of the
favorable or adverse, must be leaders or organizers; the
transmitted to them at the earliest purpose of such public
opportunity. Thus if so minded, assembly; the date, time
Reyes v. Bagatsing B.P. No. 880
they can have recourse to the and duration thereof, and
proper judicial authority. place or streets to be used
(G.R. No. L-65366, November 9, Sec. 4. Permit when required and
1983, when not required.-- A written for the intended activity;
permit shall be required for any and the probable number
person or persons to organize and of persons participating,
125 SCRA 553, 569)
hold a public assembly in a public the transport and the
place. However, no permit shall be public address systems to
8. By way of a summary. The
required if the public assembly shall be used.
applicants for a permit to hold an
assembly should inform the be done or made in a freedom park
duly established by law or (b) The application shall
licensing authority of the date, the
ordinance or in private property, in incorporate the duty and
public place where and the time
which case only the consent of the responsibility of applicant
when it will take place. If it were a
owner or the one entitled to its under Section 8 hereof.
private place, only the consent of
the owner or the one entitled to its legal possession is required, or in
legal possession is required. Such the campus of a government- (c) The application shall be
owned and operated educational filed with the office of the

241
mayor of the city or official acting in his behalf
municipality in whose shall act on the application
jurisdiction the intended within two (2) working
activity is to be held, at days from the date the
least five (5) working days application was filed,
before the scheduled failing which, the permit
public assembly. shall be deemed granted.
Should for any reason the
(d) Upon receipt of the mayor or any official acting
application, which must be in his behalf refuse to
duly acknowledged in accept the application for
writing, the office of the a permit, said application
city or municipal mayor shall be posted by the
shall cause the same to applicant on the premises
immediately be posted at a of the office of the mayor
conspicuous place in the and shall be deemed to
city or municipal building. have been filed.

Sec. 6. Action to be taken on the (c) If the mayor is of the


application. – view that there is
imminent and grave
(a) It shall be the duty of danger of a substantive
the mayor or any official evil warranting the denial
acting in his behalf to issue or modification of the
or grant a permit unless permit, he shall
there is clear and immediately inform the
convincing evidence that applicant who must be
the public assembly will heard on the matter.
create a clear and present
danger to public order, (d) The action on the
public safety, public permit shall be in writing
convenience, public morals and served on the
or public health. applica[nt] within twenty-
four hours.
(b) The mayor or any

242
(e) If the mayor or any immediately endorsed to
official acting in his behalf the executive judge for
denies the application or disposition or, in his
modifies the terms thereof absence, to the next in
in his permit, the applicant rank.
may contest the decision
in an appropriate court of (h) In all cases, any
law. decision may be appealed
to the Supreme Court.
(f) In case suit is brought
before the Metropolitan (i) Telegraphic appeals to
Trial Court, the Municipal be followed by formal
Trial Court, the Municipal appeals are hereby
Circuit Trial Court, the allowed.
Regional Trial Court, or the
Intermediate Appellate
Court, its decisions may be
It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public
appealed to the
assemblies but a restriction that simply regulates the time, place and manner
appropriate court within
of the assemblies. This was adverted to in Osmeña v. Comelec,20 where the
forty-eight (48) hours after
Court referred to it as a "content-neutral" regulation of the time, place, and
receipt of the same. No
manner of holding public assemblies.21
appeal bond and record on
appeal shall be required. A
decision granting such A fair and impartial reading of B.P. No. 880 thus readily shows that it refers
permit or modifying it in to all kinds of public assemblies22 that would use public places. The reference
terms satisfactory to the to "lawful cause" does not make it content-based because assemblies really
applicant shall be have to be for lawful causes, otherwise they would not be "peaceable" and
immediately executory. entitled to protection. Neither are the words "opinion," "protesting" and
"influencing" in the definition of public assembly content based, since they can
refer to any subject. The words "petitioning the government for redress of
(g) All cases filed in court
grievances" come from the wording of the Constitution, so its use cannot be
under this section shall be
avoided. Finally, maximum tolerance is for the protection and benefit of all
decided within twenty-
rallyists and is independent of the content of the expressions in the rally.
four (24) hours from date
of filing. Cases filed
hereunder shall be Furthermore, the permit can only be denied on the ground of clear and present
danger to public order, public safety, public convenience, public morals or
public health. This is a recognized exception to the exercise of the right even

243
under the Universal Declaration of Human Rights and the International 3. The exercise of the rights provided for in paragraph 2 of this article
Covenant on Civil and Political Rights, thus: carries with it special duties and responsibilities. It may therefore be
subject to certain restrictions, but these shall only be such as are
Universal Declaration of Human Rights provided by law and are necessary:

Article 20 (a) For respect of the rights or reputations of others;

1. Everyone has the right to freedom of peaceful assembly and association. (b) For the protection of national security or of public order
(ordre public), or of public health or morals.
xxx
Contrary to petitioner’s claim, the law is very clear and is nowhere vague in its
Article 29 provisions. "Public" does not have to be defined. Its ordinary meaning is well-
known. Webster’s Dictionary defines it, thus:23
1. Everyone has duties to the community in which alone the free and
full development of his personality is possible. public, n, x x x 2a: an organized body of people x x x 3: a group of people
distinguished by common interests or characteristics x x x.
2. In the exercise of his rights and freedoms, everyone shall be subject
only to such limitations as are determined by law solely for the Not every expression of opinion is a public assembly. The law refers to "rally,
purpose of securing due recognition and respect for the rights and demonstration, march, parade, procession or any other form of mass or
freedoms of others and of meeting the just requirements of morality, concerted action held in a public place." So it does not cover any and all kinds
public order and the general welfare in a democratic society. of gatherings.

3. These rights and freedoms may in no case be exercised contrary to Neither is the law overbroad. It regulates the exercise of the right to peaceful
the purposes and principles of the United Nations. assembly and petition only to the extent needed to avoid a clear and present
danger of the substantive evils Congress has the right to prevent.
The International Covenant on Civil and Political Rights
There is, likewise, no prior restraint, since the content of the speech is not
relevant to the regulation.
Article 19.

As to the delegation of powers to the mayor, the law provides a precise and
1. Everyone shall have the right to hold opinions without interference.
sufficient standard – the clear and present danger test stated in Sec. 6(a). The
reference to "imminent and grave danger of a substantive evil" in Sec. 6(c)
2. Everyone shall have the right to freedom of expression; this right
substantially means the same thing and is not an inconsistent standard. As to
shall include freedom to seek, receive and impart information and whether respondent Mayor has the same power independently under Republic
ideas of all kinds, regardless of frontiers, either orally, in writing or in
Act No. 716024 is thus not necessary to resolve in these proceedings, and was
print, in the form of art, or through any other media of his choice.
not pursued by the parties in their arguments.

244
Finally, for those who cannot wait, Section 15 of the law provides for an the right. Advance notices should, however, be given to the authorities to
alternative forum through the creation of freedom parks where no prior permit ensure proper coordination and orderly proceedings.
is needed for peaceful assembly and petition at any time:
The Court now comes to the matter of the CPR. As stated earlier, the Solicitor
Sec. 15. Freedom parks. – Every city and municipality in the country shall within General has conceded that the use of the term should now be discontinued,
six months after the effectivity of this Act establish or designate at least one since it does not mean anything other than the maximum tolerance policy set
suitable "freedom park" or mall in their respective jurisdictions which, as far as forth in B.P. No. 880. This is stated in the Affidavit of respondent Executive
practicable, shall be centrally located within the poblacion where Secretary Eduardo Ermita, submitted by the Solicitor General, thus:
demonstrations and meetings may be held at any time without the need of any
prior permit. 14. The truth of the matter is the policy of "calibrated preemptive response" is
in consonance with the legal definition of "maximum tolerance" under Section
In the cities and municipalities of Metropolitan Manila, the respective mayors 3 (c) of B.P. Blg. 880, which is the "highest degree of restraint that the military,
shall establish the freedom parks within the period of six months from the police and other peacekeeping authorities shall observe during a public
effectivity this Act. assembly or in the dispersal of the same." Unfortunately, however, the phrase
"maximum tolerance" has acquired a different meaning over the years. Many
This brings up the point, however, of compliance with this provision. have taken it to mean inaction on the part of law enforcers even in the face of
mayhem and serious threats to public order. More so, other felt that they need
The Solicitor General stated during the oral arguments that, to his knowledge, not bother secure a permit when holding rallies thinking this would be
only Cebu City has declared a freedom park – Fuente Osmeña. "tolerated." Clearly, the popular connotation of "maximum tolerance" has
departed from its real essence under B.P. Blg. 880.
That of Manila, the Sunken Gardens, has since been converted into a golf
course, he added. 15. It should be emphasized that the policy of maximum tolerance is provided
under the same law which requires all pubic assemblies to have a permit, which
allows the dispersal of rallies without a permit, and which recognizes certain
If this is so, the degree of observance of B.P. No. 880’s mandate that every city
instances when water cannons may be used. This could only mean that
and municipality set aside a freedom park within six months from its effectivity
"maximum tolerance" is not in conflict with a "no permit, no rally policy" or
in 1985, or 20 years ago, would be pathetic and regrettable. The matter
with the dispersal and use of water cannons under certain circumstances for
appears to have been taken for granted amidst the swell of freedom that rose
indeed, the maximum amount of tolerance required is dependent on how
from the peaceful revolution of 1986.
peaceful or unruly a mass action is. Our law enforcers should calibrate their
response based on the circumstances on the ground with the view to
Considering that the existence of such freedom parks is an essential part of the
preempting the outbreak of violence.
law’s system of regulation of the people’s exercise of their right to peacefully
assemble and petition, the Court is constrained to rule that after thirty (30)
16. Thus, when I stated that calibrated preemptive response is being enforced
days from the finality of this Decision, no prior permit may be required for the
in lieu of maximum tolerance I clearly was not referring to its legal definition
exercise of such right in any public park or plaza of a city or municipality until
but to the distorted and much abused definition that it has now acquired. I only
that city or municipality shall have complied with Section 15 of the law. For
wanted to disabuse the minds of the public from the notion that law enforcers
without such alternative forum, to deny the permit would in effect be to deny
would shirk their responsibility of keeping the peace even when confronted

245
with dangerously threatening behavior. I wanted to send a message that we and the freedom of expression is primordial.1avvphil.net Towards this end, law
would no longer be lax in enforcing the law but would henceforth follow it to enforcement agencies shall observe the following guidelines:
the letter. Thus I said, "we have instructed the PNP as well as the local
government units to strictly enforce a no permit, no rally policy . . . arrest all (a) Members of the law enforcement contingent who deal with the
persons violating the laws of the land . . . unlawful mass actions will be demonstrators shall be in complete uniform with their nameplates
dispersed." None of these is at loggerheads with the letter and spirit of Batas and units to which they belong displayed prominently on the front and
Pambansa Blg. 880. It is thus absurd for complainants to even claim that I dorsal parts of their uniform and must observe the policy of
ordered my co-respondents to violate any law.25 "maximum tolerance" as herein defined;

At any rate, the Court rules that in view of the maximum tolerance mandated (b) The members of the law enforcement contingent shall not carry
by B.P. No. 880, CPR serves no valid purpose if it means the same thing as any kind of firearms but may be equipped with baton or riot sticks,
maximum tolerance and is illegal if it means something else. Accordingly, what shields, crash helmets with visor, gas masks, boots or ankle high shoes
is to be followed is and should be that mandated by the law itself, namely, with shin guards;
maximum tolerance, which specifically means the following:
(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot
Sec. 3. Definition of terms. – For purposes of this Act: device shall not be used unless the public assembly is attended by
actual violence or serious threats of violence, or deliberate destruction
xxx of property.

(c) "Maximum tolerance" means the highest degree of restraint that the Sec. 11. Dispersal of public assembly with permit. – No public assembly with a
military, police and other peace keeping authorities shall observe during a permit shall be dispersed. However, when an assembly becomes violent, the
public assembly or in the dispersal of the same. police may disperse such public assembly as follows:

xxx (a) At the first sign of impending violence, the ranking officer of the
law enforcement contingent shall call the attention of the leaders of
Sec. 9. Non-interference by law enforcement authorities. – Law enforcement the public assembly and ask the latter to prevent any possible
agencies shall not interfere with the holding of a public assembly. However, to disturbance;
adequately ensure public safety, a law enforcement contingent under the
command of a responsible police officer may be detailed and stationed in a (b) If actual violence starts to a point where rocks or other harmful
place at least one hundred (100) meters away from the area of activity ready to objects from the participants are thrown at the police or at the non-
maintain peace and order at all times. participants, or at any property causing damage to such property, the
ranking officer of the law enforcement contingent shall audibly warn
Sec. 10. Police assistance when requested. – It shall be imperative for law the participants that if the disturbance persists, the public assembly
enforcement agencies, when their assistance is requested by the leaders or will be dispersed;
organizers, to perform their duties always mindful that their responsibility to
provide proper protection to those exercising their right peaceably to assemble (c) If the violence or disturbance prevailing as stated in the preceding
subparagraph should not stop or abate, the ranking officer of the law

246
enforcement contingent shall audibly issue a warning to the Furthermore, there is need to address the situation adverted to by petitioners
participants of the public assembly, and after allowing a reasonable where mayors do not act on applications for a permit and when the police
period of time to lapse, shall immediately order it to forthwith demand a permit and the rallyists could not produce one, the rally is
disperse; immediately dispersed. In such a situation, as a necessary consequence and
part of maximum tolerance, rallyists who can show the police an application
(d) No arrest of any leader, organizer or participant shall also be made duly filed on a given date can, after two days from said date, rally in accordance
during the public assembly unless he violates during the assembly a with their application without the need to show a permit, the grant of the
law, statute, ordinance or any provision of this Act. Such arrest shall permit being then presumed under the law, and it will be the burden of the
be governed by Article 125 of the Revised Penal Code, as amended; authorities to show that there has been a denial of the application, in which
case the rally may be peacefully dispersed following the procedure of
(d) Isolated acts or incidents of disorder or breach of the peace during maximum tolerance prescribed by the law.
the public assembly shall not constitute a ground for dispersal.
In sum, this Court reiterates its basic policy of upholding the fundamental rights
xxx of our people, especially freedom of expression and freedom of assembly. In
several policy addresses, Chief Justice Artemio V. Panganiban has repeatedly
vowed to uphold the liberty of our people and to nurture their prosperity. He
Sec. 12. Dispersal of public assembly without permit. – When the public
said that "in cases involving liberty, the scales of justice should weigh heavily
assembly is held without a permit where a permit is required, the said public
against the government and in favor of the poor, the oppressed, the
assembly may be peacefully dispersed.
marginalized, the dispossessed and the weak. Indeed, laws and actions that
restrict fundamental rights come to the courts with a heavy presumption
Sec. 13. Prohibited acts. – The following shall constitute violations of the Act:
against their validity. These laws and actions are subjected
to heightened scrutiny."26
(e) Obstructing, impeding, disrupting or otherwise denying the exercise of the
right to peaceful assembly;
For this reason, the so-called calibrated preemptive response policy has no
place in our legal firmament and must be struck down as a darkness that
(f) The unnecessary firing of firearms by a member of any law enforcement shrouds freedom. It merely confuses our people and is used by some police
agency or any person to disperse the public assembly; agents to justify abuses. On the other hand, B.P. No. 880 cannot be condemned
as unconstitutional; it does not curtail or unduly restrict freedoms; it merely
(g) Acts described hereunder if committed within one hundred (100) meters regulates the use of public places as to the time, place and manner of
from the area of activity of the public assembly or on the occasion thereof: assemblies. Far from being insidious, "maximum tolerance" is for the benefit of
rallyists, not the government. The delegation to the mayors of the power to
xxx issue rally "permits" is valid because it is subject to the constitutionally-sound
"clear and present danger" standard.
4. the carrying of firearms by members of the law enforcement unit;
In this Decision, the Court goes even one step further in safeguarding liberty by
5. the interfering with or intentionally disturbing the holding of a public giving local governments a deadline of 30 days within which to designate
assembly by the use of a motor vehicle, its horns and loud sound systems. specific freedom parks as provided under B.P. No. 880. If, after that period, no

247
such parks are so identified in accordance with Section 15 of the law, all public
parks and plazas of the municipality or city concerned shall in effect be deemed
freedom parks; no prior permit of whatever kind shall be required to hold an
assembly therein. The only requirement will be written notices to the police
and the mayor’s office to allow proper coordination and orderly activities.

WHEREFORE, the petitions are GRANTED in part, and respondents, more


particularly the Secretary of the Interior and Local Governments,
are DIRECTED to take all necessary steps for the immediate compliance with
Section 15 of Batas Pambansa No. 880 through the establishment or
designation of at least one suitable freedom park or plaza in every city and
municipality of the country. After thirty (30) days from the finality of this
Decision, subject to the giving of advance notices, no prior permit shall be
required to exercise the right to peaceably assemble and petition in the public
parks or plazas of a city or municipality that has not yet complied with Section
15 of the law. Furthermore, Calibrated Preemptive Response (CPR), insofar as
it would purport to differ from or be in lieu of maximum tolerance,
is NULL and VOID and respondents are ENJOINED to REFRAIN from using it and
to STRICTLY OBSERVE the requirements of maximum tolerance. The petitions
are DISMISSED in all other respects, and the constitutionality of Batas
Pambansa No. 880 is SUSTAINED.

No costs.

SO ORDERED.

248

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