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G.R. No.


July 16, 2008

AKBAYAN CITIZENS ACTION PARTY (AKBAYAN), PAMBANSANG KATIPUNAN NG MGA SAMAHAN SA KANAYUNAN (PKSK), ALLIANCE OF PROGRESSIVE LABOR (APL), VICENTE A. FABE, ANGELITO R. MENDOZA, MANUEL P. QUIAMBAO, ROSE BEATRIX CRUZ-ANGELES, CONG. LORENZO R. TANADA III, CONG. MARIO JOYO AGUJA, CONG. LORETA ANN P. ROSALES, CONG. ANA THERESIA HONTIVEROSBARAQUEL, AND CONG. EMMANUEL JOEL J. VILLANUEVA, Petitioners, vs. THOMAS G. AQUINO, Petitionersnon-government organizations, Congresspersons, citizens and taxpayersseek via the present petition for mandamus and prohibition to obtain from respondents the full text of the JapanPhilippines Economic Partnership Agreement (JPEPA) including the Philippine and Japanese offers submitted during the negotiation process and all pertinent attachments and annexes thereto. Petitioners Congressmen Lorenzo R. Taada III and Mario Joyo Aguja filed on January 25, 2005 House Resolution No. 551 calling for an inquiry into the bilateral trade agreements then being negotiated by the Philippine government, particularly the JPEPA. The Resolution became the basis of an inquiry subsequently conducted by the House Special Committee on Globalization (the House Committee) into the negotiations of the JPEPA. In the course of its inquiry, the House Committee requested herein respondent Undersecretary Tomas Aquino (Usec. Aquino), Chairman of the Philippine Coordinating Committee created under Executive Order No. 213 (Creation of A Philippine Coordinati ng Committee to Study the Feasibility of the Japan-Philippines Economic Partnership Agreement)1 to study and negotiate the proposed JPEPA, and to furnish the Committee with a copy of the latest draft of the JPEPA. Usec. Aquino did not heed the request, however. Congressman Aguja later requested for the same document, but Usec. Aquino, by letter of November 2, 2005, replied that the Congressman shall be provided with a copy thereof once the negotiations are completed and as soon as a thorough legal review of the proposed agreement has been conducted. In a separate move, the House Committee, through Congressman Herminio G. Teves, requested Executive Secretary Eduardo Ermita to furnish it with all documents on the subject including the latest draft of the proposed agreement, the requests and offers etc.2 Acting on the request, Secretary Ermita, by letter of June 23, 2005, wrote Congressman Teves as follows: In its letter dated 15 June 2005 (copy enclosed), [the] D[epartment of] F[oreign] A[ffairs] explains that the Committees request to be furnished all documents on the JPEPA may be difficult to accomplish at this time, since the proposed Agreement has been a work in progress for about three years. A copy of the draft JPEPA will however be forwarded to the Committee as soon as the text thereof is settled and complete. (Emphasis supplied)

Congressman Aguja also requested NEDA Director-General Romulo Neri and Tariff Commission Chairman Edgardo Abon, by letter of July 1, 2005, for copies of the latest text of the JPEPA. Chairman Abon replied, however, by letter of July 12, 2005 that the Tariff Commission does not have a copy of the documents being requested, albeit he was certain that Usec. Aquino would provide the Congressman with a copy once the negotiation is completed. And by letter of July 18, 2005, NEDA Assistant Director-General Margarita R. Songco informed the Congressman that his request addressed to Director-General Neri had been forwarded to Usec. Aquino who would be in the best position to respond to the request. In its third hearing conducted on August 31, 2005, the House Committee resolved to issue a subpoena for the most recent draft of the JPEPA, but the same was not pursued because by Committee Chairman Congressman Teves information, then House Speaker Jose de Venecia had requested him to hold in abeyance the issuance of the subpoena until the President gives her consent to the disclosure of the documents.3 Amid speculations that the JPEPA might be signed by the Philippine government within December 2005, the present petition was filed on December 9, 2005.4 The agreement was to be later signed on September 9, 2006 by President Gloria Macapagal-Arroyo and Japanese Prime Minister Junichiro Koizumi in Helsinki, Finland, following which the President endorsed it to the Senate for its concurrence pursuant to Article VII, Section 21 of the Constitution. To date, the JPEPA is still being deliberated upon by the Senate. The JPEPA, which will be the first bilateral free trade agreement to be entered into by the Philippines with another country in the event the Senate grants its consent to it, covers a broad range of topics which respondents enumerate as follows: trade in goods, rules of origin, customs procedures, paperless trading, trade in services, investment, intellectual property rights, government procurement, movement of natural persons, cooperation, competition policy, mutual recognition, dispute avoidance and settlement, improvement of the business environment, and general and final provisions.5 While the final text of the JPEPA has now been made accessible to the public since September 11, 2006,6 respondents do not dispute that, at the time the petition was filed up to the filing of petitioners Replywhen the JPEPA was still being negotiatedthe initial drafts thereof were kept from public view. Before delving on the substantive grounds relied upon by petitioners in support of the petition, the Court finds it necessary to first resolve some material procedural issues. Standing For a petition for mandamus such as the one at bar to be given due course, it must be instituted by a party aggrieved by the alleged inaction of any tribunal, corporation, board or person which unlawfully excludes said party from the enjoyment of a legal right.7 Respondents deny that petitioners have

such standing to sue. *I+n the interest of a speedy and definitive resolution of the substantive issues raised, however, respondents consider it sufficient to cite a portion of the ruling in Pimentel v. Office of Executive Secretary8 which emphasizes the need for a personal stake in the outcome of the controversy on questions of standing. In a petition anchored upon the right of the people to information on matters of public concern, which is a public right by its very nature, petitioners need not show that they have any legal or special interest in the result, it being sufficient to show that they are citizens and, therefore, part of the general public which possesses the right.9 As the present petition is anchored on the right to information and petitioners are all suing in their capacity as citizens and groups of citizens including petitioners-members of the House of Representatives who additionally are suing in their capacity as such, the standing of petitioners to file the present suit is grounded in jurisprudence. Mootness Considering, however, that *t+he principal relief petitioners are praying for is the disclosure of the contents of the JPEPA prior to its finalization between the two States parties, 10 public disclosure of the text of the JPEPA after its signing by the President, during the pendency of the present petition, has been largely rendered moot and academic. With the Senate deliberations on the JPEPA still pending, the agreement as it now stands cannot yet be considered as final and binding between the two States. Article 164 of the JPEPA itself provides that the agreement does not take effect immediately upon the signing thereof. For it must still go through the procedures required by the laws of each country for its entry into force, viz: Article 164 Entry into Force This Agreement shall enter into force on the thirtieth day after the date on which the Governments of the Parties exchange diplomatic notes informing each other that their respective legal procedures necessary for entry into force of this Agreement have been completed. It shall remain in force unless terminated as provided for in Article 165.11 (Emphasis supplied) President Arroyos endorsement of the JPEPA to the Senate for concurrence is part of the legal procedures which must be met prior to the agreements entry into force. The text of the JPEPA having then been made accessible to the public, the petition has become moot and academic to the extent that it seeks the disclo sure of the full text thereof. The petition is not entirely moot, however, because petitioners seek to obtain, not merely the text of the JPEPA, but also the Philippine and Japanese offers in the course of the negotiations.12 A discussion of the substantive issues, insofar as they impinge on petitioners demand for access to the Philippine and Japanese offers, is thus in order.

Grounds relied upon by petitioners Petitioners assert, first, that the refusal of the government to disclose the documents bearing on the JPEPA negotiations violates their right to information on matters of public concern13 and contravenes other constitutional provisions on transparency, such as that on the policy of full public disclosure of all transactions involving public interest.14 Second, they contend that non-disclosure of the same documents undermines their right to effective and reasonable participation in all levels of social, political, and economic decision-making.15 Lastly, they proffer that divulging the contents of the JPEPA only after the agreement has been concluded will effectively make the Senate into a mere rubber stamp of the Executive, in violation of the principle of separation of powers. Significantly, the grounds relied upon by petitioners for the disclosure of the latest text of the JPEPA are, except for the last, the same as those cited for the disclosure of the Philippine and Japanese offers. The first two grounds relied upon by petitioners which bear on the merits of respondents claim of privilege shall be discussed. The last, being purely speculatory given that the Senate is still deliberating on the JPEPA, shall not. The JPEPA is a matter of public concern To be covered by the right to information, the information sought must meet the threshold requirement that it be a matter of public concern. Apropos is the teaching of Legaspi v. Civil Service Commission: In determining whether or not a particular information is of public concern there is no rigid test which can be applied. Public concern like public interest is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public.16 (Underscoring supplied) From the nature of the JPEPA as an international trade agreement, it is evident that the Philippine and Japanese offers submitted during the negotiations towards its execution are matters of public concern. This, respondents do not dispute. They only claim that diplomatic negotiations are covered by the doctrine of executive privilege, thus constituting an exception to the right to information and the policy of full public disclosure. Respondents claim of privilege It is well-established in jurisprudence that neither the right to information nor the policy of full public disclosure is absolute, there being matters which, albeit of public concern or public interest, are

recognized as privileged in nature. The types of information which may be considered privileged have been elucidated in Almonte v. Vasquez,17Chavez v. PCGG,18Chavez v. Public Estates Authority,19 and most recently in Senate v. Ermita20 where the Court reaffirmed the validity of the doctrine of executive privilege in this jurisdiction and dwelt on its scope. Whether a claim of executive privilege is valid depends on theground invoked to justify it and thecontext in which it is made.21 In the present case, the ground for respondents claim of privilege is set forth in their Comment, viz: x x x The categories of information that may be considered privileged includes matters of diplomatic character and under negotiation and review. In this case, the privileged character of the diplomatic negotiations has been categorically invoked and clearly explained by respondents particularly respondent DTI Senior Undersecretary. The documents on the proposed JPEPA as well as the text which is subject to negotiations and legal review by the parties fall under the exceptions to the right of access to information on matters of public concern and policy of public disclosure. They come within the coverage of executive privilege.At the timewhen the Committee was requesting for copies of such documents, the negotiations were ongoing as they are still now and the text of the proposed JPEPA is still uncertain and subject to change. Considering the status and nature of such documents then and now, these are evidently covered by executive privilege consistent with existing legal provisions and settled jurisprudence. Practical and strategic considerations likewise counsel against the disclosure of the rolling texts which may undergo radical change or portions of which may be totally abandoned. Furthermore, the negotiations of the representatives of the Philippines as well as of Japan must be allowed to explore alternatives in the course of the negotiations in the same manner as judicial deliberations and working drafts of opinions are accorded strict confidentiality.22 (Emphasis and underscoring supplied) The ground relied upon by respondents is thus not simply that the information sought involves a diplomatic matter, but that it pertains to diplomatic negotiations then in progress. Privileged character of diplomatic negotiations The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In discussing valid limitations on the right to information, the Court in Chavez v. PCGG held that information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest.23 Even earlier, the same privilege was upheld in Peoples Movement for Press Freedom (PMPF) v. Manglapus24 wherein the Court discussed the reasons for the privilege in more precise terms. In PMPF v. Manglapus, the therein petitioners were seeking information from the Presidents representatives on the state of the then on-going negotiations of the RP-US Military Bases

Agreement.25 The Court denied the petition, stressing that secrecy of negotiations wi th foreign countries is not violative of the constitutional provisions of freedom of speech or of the press nor of the freedom of access to information. The Resolution went on to state, thus: The nature of diplomacy requires centralization of authority and expedition of decision which are inherent in executive action. Another essential characteristic of diplomacy is its confidential nature. Although much has been said about open and secret diplomacy, with disparagement of the latter, Secretaries of State Hughes and Stimson have clearly analyzed and justified the practice. In the words of Mr. Stimson: A complicated negotiation . . . cannot be carried through without many, many private talks and discussion, man to man; many tentative suggestions and proposals.Delegates from other countries come and tell you in confidence of their troubles at home and of their differences with other countries and with other delegates; they tell you of what they would do under certain circumstances and would not do under other circumstances. . . If these reports . . . should become public . . . who would ever trust American Delegations in another conference? (United States Department of State, Press Releases, June 7, 1930, pp. 282-284.). xxxx There is frequent criticism of the secrecy in which negotiation with foreign powers on nearly all subjects is concerned. This, it is claimed, is incompatible with the substance of democracy. As expressed by one writer, It can be said that there is no more rigid system of silence anywhere in the world. (E.J. Young, Looking Behind the Censorship, J. B. Lippincott Co., 1938) President Wilson in starting his efforts for the conclusion of the World War declared that we must have open covenants, openly arrived at. He quickly abandoned his thought. No one who has studied the question believes that such a method of publicity is possible. In the moment that negotiations are started, pressure groups attempt to muscle in. An ill -timed speech by one of the parties or a frank declaration of the concession which are exacted or offered on both sides would quickly lead to widespread propaganda to block the negotiations. After a treaty has been drafted and its terms are fully published, there is ample opportunity for discussion before it is approved. (The New American Government and Its Works, James T. Young, 4th Edition, p. 194) (Emphasis and underscoring supplied) Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright Export Corp.26 that the President is the sole organ of the nation in its negotiations with foreign countries, viz: x x x In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, The President is the sole organ of the

nation in its external relations, and its sole representative with foreign nations. Annals, 6th Cong., col. 613. . . (Emphasis supplied; underscoring in the original) Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of the JPEPA may not be kept perpetually confidentialsince there should be ample opportunity for discussion before *a treaty+ is approvedthe offers exchanged by the parties during the negotiations continue to be privileged even after the JPEPA is published. It is reasonable to conclude that the Japanese representatives submitted their offers with the understanding that historic confidentiality27 would govern the same. Disclosing these offers could impair the ability of the Philippines to deal not only with Japan but with other foreign governments in future negotiations. A ruling that Philippine offers in treaty negotiations should now be open to public scrutiny would discourage future Philippine representatives from frankly expressing their views during negotiations. While, on first impression, it appears wise to deter Philippine representatives from entering into compromises, it bears noting that treaty negotiations, or any negotiation for that matter, normally involve a process of quid pro quo, and oftentimes negotiators have to be willing to grant concessions in an area of lesser importance in order to obtain more favorable terms in an area of greater national interest. Apropos are the following observations of Benjamin S. Duval, Jr.: x x x [T]hose involved in the practice of negotiations appear to be in agreement that publicity leads to grandstanding, tends to freeze negotiating positions, and inhibits the give -and-take essential to successful negotiation. As Sissela Bok points out, if negotiators have more to gain from being approved by their own sides than by making a reasoned agreement with competitors or adversaries, then they are inclined to play to the gallery . . . In fact, the public reaction may leave them little option. It would be a brave, or foolish, Arab leader who expressed publicly a willingness for peace with Israel that did not involve the return of the entire West Bank, or Israeli leader who stated publicly a willingness to remove Israels existing settlements from Judea and Samaria in return for peace.28 (Emphasis supplied) Indeed, by hampering the ability of our representatives to compromise, we may be jeopardizing higher national goals for the sake of securing less critical ones. Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction, the JPEPA negotiations constituting no exception. It bears emphasis, however, that such privilege is only presumptive. For as Senate v. Ermita holds, recognizing a type of information as privileged does not mean that it will be considered privileged in all instances. Only after a consideration of the context in which the claim is made may it be determined if there is a public interest that calls for the disclosure of the desired information, strong enough to overcome its traditionally privileged status. Whether petitioners have established the presence of such a public interest shall be discussed later. For now, the Court shall first pass upon the arguments raised by petitioners against the application of PMPF v. Manglapus to the present case. Arguments proffered by petitioners against the application of PMPF v. Manglapus

Petitioners argue that PMPF v. Manglapus cannot be applied in toto to the present case, there being substantial factual distinctions between the two. To petitioners, the first and most fundamental distinction lies in the nature of the treaty involved. They stress that PMPF v. Manglapus involved the Military Bases Agreement which necessarily pertained to matters affecting national security; whereas the present case involves an economic treaty that seeks to regulate trade and commerce between the Philippines and Japan, matters which, unlike those covered by the Military Bases Agreement, are not so vital to national security to disallow their disclosure. Petitioners argument betrays a faulty assumption that information, to be considered privileged, must involve national security. The recognition in Senate v. Ermita29 that executive privilege has encompassed claims of varying kinds, such that it may even be more accurate to speak of executive privileges, cautions against such generalization. While there certainly are privileges grounded on the necessity of safeguarding national security such as those involving military secrets, not all are founded thereon. One example is the informers privilege, or the privilege of the Government not to disclose the identity of a person or persons who furnish information of violations of law to officers charged with the enforcement of that law.30 The suspect involved need not be so notorious as to be a threat to national security for this privilege to apply in any given instance. Otherwise, the privilege would be inapplicable in all but the most highprofile cases, in which case not only would this be contrary to long-standing practice. It would also be highly prejudicial to law enforcement efforts in general. Also illustrative is the privilege accorded to presidential communications, which are presumed privileged without distinguishing between those which involve matters of national security and those which do not, the rationale for the privilege being that x x x [a] frank exchange of exploratory ideas and assessments, free from the glare of publicity and pressure by interested parties, is essential to protect the independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial power. x x x31 (Emphasis supplied) In the same way that the privilege for judicial deliberations does not depend on the nature of the case deliberated upon, so presidential communications are privileged whether they involve matters of national security. It bears emphasis, however, that the privilege accorded to presidential communications is not absolute, one significant qualification being that the Executive cannot, any more than the other branches of government, invoke a general confidentiality privilege to shield its officials and employees from investigations by the proper governmental institutions into possible criminal wrongdoing. 32 This qualification applies whether the privilege is being invoked in the context of a judicial trial or a congressional investigation conducted in aid of legislation.33

Closely related to the presidential communications privilege is the deliberative process privilege recognized in the United States. As discussed by the U.S. Supreme Court in NLRB v. Sears, Roebuck & Co,34 deliberative process covers documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. Notably, the privileged status of such documents rests, not on the need to protect national security but, on the obvious realization that o fficials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, the objective of the privilege being to enhance the quality of agency decisions tc=-1&findtype=Y&tf=-1&db=708&utid=%7b532A6DBF-9B4C-4A5A-8F16C20D9BAA36C4%7d&vr=2.0&rp=%2ffind%2fdefault.wl&mt=WLIGeneralSubscription. 35 The diplomatic negotiations privilege bears a close resemblance to the deliberative process and presidential communications privilege. It may be readily perceived that the rationale for the confidential character of diplomatic negotiations, deliberative process, and presidential communications is similar, if not identical. The earlier discussion on PMPF v. Manglapus36 shows that the privilege for diplomatic negotiations is meant to encourage a frank exchange of exploratory ideas between the negotiating parties by shielding such negotiations from public view. Similar to the privilege for presidential communications, the diplomatic negotiations privilege seeks, through the same means, to protect the independence in decision-making of the President, particularly in its capacity as the sole organ of the nation in its external relations, and its sole representative with foreign nations. And, as with the deliberative process privilege, the privilege accorded to diplomatic negotiations arises, not on account of the content of the information per se, but because the information is part of a process of deliberation which, in pursuit of the public interest, must be presumed confidential. The decision of the U.S. District Court, District of Columbia in Fulbright & Jaworski v. Department of the Treasury37 enlightens on the close relation between diplomatic negotiations and deliberative process privileges. The plaintiffs in that case sought access to notes taken by a member of the U.S. negotiating team during the U.S.-French tax treaty negotiations. Among the points noted therein were the issues to be discussed, positions which the French and U.S. teams took on some points, the draft language agreed on, and articles which needed to be amended. Upholding the confidentiality of those notes, Judge Green ruled, thus: Negotiations between two countries to draft a treaty represent a true example of a deliberative process. Much give-and-take must occur for the countries to reach an accord. A description of the negotiations at any one point would not provide an onlooker a summary of the discussions which could later be relied on as law. It would not be working law as the points discussed and positions agreed on would be subject to change at any date until the treaty was signed by the President and ratified by the Senate. The policies behind the deliberative process privilegesupport non-disclosure.Much harm could accrue to the negotiations process if these notes were revealed. Exposure of the pre-agreement positions of

the French negotiators might well offend foreign governments and would lead to less candor by the U. S. in recording the events of the negotiations process. As several months pass in between negotiations, this lack of record could hinder readily the U. S. negotiating team. Further disclosure would reveal prematurely adopted policies. If these policies should be changed, public confusion would result easily. Finally, releasing these snapshot views of the negotiations would be comparable to releasing drafts of the treaty, particularly when the notes state the tentative provisions and language agreed on. As drafts of regulations typically are protected by the deliberative process privilege, Arthur Andersen & Co. v. Internal Revenue Service, C.A. No. 80-705 (D.C.Cir., May 21, 1982), drafts of treaties should be accorded the same protection. (Emphasis and underscoring supplied) Clearly, the privilege accorded to diplomatic negotiations follows as a logical consequence from the privileged character of the deliberative process. The Court is not unaware that in Center for International Environmental Law (CIEL), et al. v. Office of U.S. Trade Representative38where the plaintiffs sought information relating to the just-completed negotiation of a United States-Chile Free Trade Agreementthe same district court, this time under Judge Friedman, consciously refrained from applying the doctrine in Fulbright and ordered the disclosure of the information being sought. Since the factual milieu in CIEL seemed to call for the straight application of the doctrine in Fulbright, a discussion of why the district court did not apply the same would help illumine this Courts own reasons for deciding the present case along the lines of Fulbright. In both Fulbright and CIEL, the U.S. government cited a statutory basis for withholding information, namely, Exemption 5 of the Freedom of Information Act (FOIA).39 In order to qualify for protection under Exemption 5, a document must satisfy two conditions: (1) it must be either inter-agency or intra-agency in nature, and (2) it must be both pre-decisional and part of the agencys deliberative or decision-making process.40 Judge Friedman, in CIEL, himself cognizant of a superficial similarity of context between the two cases, based his decision on what he perceived to be a significant distinction: he found the negotiators notes that were sought in Fulbright to be clearly internal, whereas the documents being sought in CIEL were those produced by or exchanged with an outside party, i.e. Chile. The documents subject of Fulbright being clearly internal in character, the question of disclosure therein turned not on the threshold requirement of Exemption 5 that the document be inter-agency, but on whether the documents were part of the agencys pre-decisional deliberative process. On this basis, Judge Friedman found that Judge Greens discussion *in Fulbright+ of the harm that could result from disclosure therefore is irrelevant, sincethe documents at issue [in CIEL] are not inter-agency, and the Court does not reach the question of deliberative process. (Emphasis supp lied) In fine, Fulbright was not overturned. The court in CIEL merely found the same to be irrelevant in light of its distinct factual setting. Whether this conclusion was valid a question on which this Court

would not passthe ruling in Fulbright that *n]egotiations between two countries to draft a treaty represent a true example of a deliberative process was left standing, since the CIEL court explicitly stated that it did not reach the question of deliberative process. Going back to the present case, the Court recognizes that the information sought by petitioners includes documents produced and communicated by a party external to the Philippine government, namely, the Japanese representatives in the JPEPA negotiations, and to that extent this case is closer to the factual circumstances of CIEL than those of Fulbright. Nonetheless, for reasons which shall be discussed shortly, this Court echoes the principle articulated in Fulbright that the public policy underlying the deliberative process privilege requires that diplomatic negotiations should also be accorded privileged status, even if the documents subject of the present case cannot be described as purely internal in character. It need not be stressed that in CIEL, the court ordered the disclosure of information based on its finding that the first requirement of FOIA Exemption 5 that the documents be inter-agencywas not met. In determining whether the government may validly refuse disclosure of the exchanges between the U.S. and Chile, it necessarily had to deal with this requirement, it being laid down by a statute binding on them. In this jurisdiction, however, there is no counterpart of the FOIA, nor is there any statutory requirement similar to FOIA Exemption 5 in particular. Hence, Philippine courts, when assessing a claim of privilege for diplomatic negotiations, are more free to focus directly on the issue of whether the privilege being claimed is indeed supported by public policy, without having to consider as the CIEL court didif these negotiations fulfill a formal requirement of being inter-agency. Important though that requirement may be in the context of domestic negotiations, it need not be accorded the same significance when dealing with international negotiations. There being a public policy supporting a privilege for diplomatic negotiations for the reasons explained above, the Court sees no reason to modify, much less abandon, the doctrine in PMPF v. Manglapus. A second point petitioners proffer in their attempt to differentiate PMPF v. Manglapus from the present case is the fact that the petitioners therein consisted entirely of members of the mass media, while petitioners in the present case include members of the House of Representatives who invoke their right to information not just as citizens but as members of Congress. Petitioners thus conclude that the present case involves the right of members of Congress to demand information on negotiations of international trade agreements from the Executive branch, a matter which was not raised in PMPF v. Manglapus. While indeed the petitioners in PMPF v. Manglapus consisted only of members of the mass media, it would be incorrect to claim that the doctrine laid down therein has no bearing on a controversy such

as the present, where the demand for information has come from members of Congress, not only from private citizens. The privileged character accorded to diplomatic negotiations does not ipso facto lose all force and effect simply because the same privilege is now being claimed under different circumstances. The probability of the claim succeeding in the new context might differ, but to say that the privilege, as such, has no validity at all in that context is another matter altogether. The Courts statement in Senate v. Ermita that presidential refusals to furnish information may be actuated by any of at least three distinct kinds of considerations *state secrets privilege, informers privilege, and a generic privilege for internal deliberations], and may be asserted, with differing degrees of success, in the context of either judicial or legislative investigations,41 implies that a privilege, once recognized, may be invoked under different procedural settings. That this principle holds true particularly with respect to diplomatic negotiations may be inferred from PMPF v. Manglapus itself, where the Court held that it is the President alone who negotiates treaties, and not even the Senate or the House of Representatives, unless asked, may intrude upon that process. Clearly, the privilege for diplomatic negotiations may be invoked not only against citizens demands for information, but also in the context of legislative investigations. Hence, the recognition granted in PMPF v. Manglapus to the privileged character of diplomatic negotiations cannot be considered irrelevant in resolving the present case, the contextual differences between the two cases notwithstanding. As third and last point raised against the application of PMPF v. Manglapus in this case, petitioners proffer that the socio-political and historical contexts of the two cases are worlds apart. They claim that the constitutional traditions and concepts prevailing at the time PMPF v. Manglapus came about, particularly the school of thought that the requirements of foreign policy and the ideals of transparency were incompatible with each other or the incompatibility hypothesis, while valid when international relations were still governed by power, politics and wars, are no longer so in this age of international cooperation.42 Without delving into petitioners assertions respecting the incompatibility hypothesis, the Court notes that the ruling in PMPF v. Manglapus is grounded more on the nature of treaty negotiations as such than on a particular socio-political school of thought. If petitioners are suggesting that the nature of treaty negotiations have so changed that *a+n ill -timed speech by one of the parties or a frank declaration of the concession which are exacted or offered on both sides no longer lead*s+ t o widespread propaganda to block the negotiations, or that parties in treaty negotiations no longer expect their communications to be governed by historic confidentiality, the burden is on them to substantiate the same. This petitioners failed to discharge. Whether the privilege applies only at certain stages of the negotiation process

Petitioners admit that diplomatic negotiations on the JPEPA are entitled to a reasonable amount of confidentiality so as not to jeopardize the diplomatic process. They a rgue, however, that the same is privileged only at certain stages of the negotiating process, after which such information must necessarily be revealed to the public.43 They add that the duty to disclose this information was vested in the government when the negotiations moved from the formulation and exploratory stage to the firming up of definite propositions or official recommendations, citing Chavez v. PCGG44 and Chavez v. PEA.45 The following statement in Chavez v. PEA, however, suffices to show that the doctrine in both that case and Chavez v. PCGG with regard to the duty to disclose definite propositions of the government does not apply to diplomatic negotiations: We rule, therefore, that the constitutional right to information includes official information on ongoing negotiations before a final contract. The information, however, must constitute definite propositions by the government and should not cover recognized exceptions like privileged information, military and diplomatic secrets and similar matters affecting national security and public order. x x x46 (Emphasis and underscoring supplied) It follows from this ruling that even definite propositions of the government may not be disclosed if they fall under recognized exceptions. The privilege for diplomatic negotiations is clearly among the recognized exceptions, for the footnote to the immediately quoted ruling cites PMPF v. Manglapus itself as an authority. Whether there is sufficient public interest to overcome the claim of privilege It being established that diplomatic negotiations enjoy a presumptive privilege against disclosure, even against the demands of members of Congress for information, the Court shall now determine whether petitioners have shown the existence of a public interest sufficient to overcome the privilege in this instance. To clarify, there are at least two kinds of public interest that must be taken into account. One is the presumed public interest in favor of keeping the subject information confidential, which is the reason for the privilege in the first place, and the other is the public interest in favor of disclosure, the existence of which must be shown by the party asking for information. 47 The criteria to be employed in determining whether there is a sufficient public interest in favor of disclosure may be gathered from cases such as U.S. v. Nixon,48Senate Select Committee on Presidential Campaign Activities v. Nixon,49 and In re Sealed Case.50 U.S. v. Nixon, which involved a claim of the presidential communications privilege against the subpoena duces tecum of a district court in a criminal case, emphasized the need to balance such claim of privilege against the constitutional duty of courts to ensure a fair administration of criminal justice.

x x x the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A Presidents acknowledged need for confidentia lity in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated. The Presidents broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases. (Emphasis, italics and underscoring supplied) Similarly, Senate Select Committeev. Nixon,51which involved a claim of the presidential communications privilege against the subpoena duces tecum of a Senate committee, spoke of the need to balance such claim with the duty of Congress to perform its legislative functions. The staged decisional structure established in Nixon v. Sirica was designed to ensure that the President and those upon whom he directly relies in the performance of his duties could continue to work under a general assurance that their deliberations would remain confidential. So long as the presumption that the public interest favors confidentiality can be defeated only by a strong showing of need by another institution of governmenta showing that the responsibilities of that institution cannot responsibly be fulfilled without access to records of the Presidents deliberationswe believed in Nixon v. Sirica, and continue to believe, that the effective functioning of the presidential office will not be impaired. x x x xxxx The sufficiency of the Committees showing of need has come to depend, therefore, entirely on whether the subpoenaed materials are critical to the performance of its legislative functions.x x x (Emphasis and underscoring supplied) In re Sealed Case52 involved a claim of the deliberative process and presidential communications privileges against a subpoena duces tecum of a grand jury. On the claim of deliberative process privilege, the court stated: The deliberative process privilege is a qualified privilege and can be overcome by a sufficient showing of need. This need determination is to be made flexibly on a case-by-case, ad hoc basis. *E+ach time [the deliberative process privilege] is asserted the district court must undertake a fresh balancing of the competing interests, taking into account factors such as the relevance of the evidence, the availability of other evidence, the seriousness of the litigation, the role of the government, and the possibility of future timidity by government employees. x x x (Emphasis, italics and underscoring supplied) Petitioners have failed to present the strong and sufficient showing of need referred to in the immediately cited cases. The arguments they proffer to establish their entitlement to the subject documents fall short of this standard.

Petitioners go on to assert that the non-involvement of the Filipino people in the JPEPA negotiation process effectively results in the bargaining away of their economic and property rights without their knowledge and participation, in violation of the due process clause of the Constitution. They claim, moreover, that it is essential for the people to have access to the initial offers exchanged during the negotiations since only through such disclosure can their constitutional right to effectively participate in decision-making be brought to life in the context of international trade agreements. Whether it can accurately be said that the Filipino people were not involved in the JPEPA negotiations is a question of fact which this Court need not resolve. Suffice it to state that respondents had presented documents purporting to show that public consultations were conducted on the JPEPA. Parenthetically, petitioners consider these alleged consultations as woefully selective and inadequate.53 AT ALL EVENTS, since it is not disputed that the offers exchanged by the Philippine and Japanese representatives have not been disclosed to the public, the Court shall pass upon the issue of whether access to the documents bearing on them is, as petitioners claim, essential to their right to participate in decision-making. The case for petitioners has, of course, been immensely weakened by the disclosure of the full text of the JPEPA to the public since September 11, 2006, even as it is still being deliberated upon by the Senate and, therefore, not yet binding on the Philippines. Were the Senate to concur with the validity of the JPEPA at this moment, there has already been, in the words of PMPF v. Manglapus, ample opportunity for discussion before *the treaty+ is approved. The text of the JPEPA having been published, petitioners have failed to convince this Court that they will not be able to meaningfully exercise their right to participate in decision-making unless the initial offers are also published. It is of public knowledge that various non-government sectors and private citizens have already publicly expressed their views on the JPEPA, their comments not being limited to general observations thereon but on its specific provisions. Numerous articles and statements critical of the JPEPA have been posted on the Internet.54 Given these developments, there is no basis for petitioners claim that access to the Philippine and Japanese offers is essential to the exercise of their right to participate in decision-making. Petitioner-members of the House of Representatives additionally anchor their claim to have a right to the subject documents on the basis of Congress inherent power to regulate commerce, be it domestic or international. They allege that Congress cannot meaningfully exercise the power to regulate international trade agreements such as the JPEPA without being given copies of the initial offers exchanged during the negotiations thereof. In the same vein, they argue that the President cannot exclude Congress from the JPEPA negotiations since whatever power and authority the President has to negotiate international trade agreements is derived only by delegation of Congress,

pursuant to Article VI, Section 28(2) of the Constitution and Sections 401 and 402 of Presidential Decree No. 1464.55 The subject of Article VI Section 28(2) of the Constitution is not the power to negotiate treaties and international agreements, but the power to fix tariff rates, import and export quotas, and other taxes. Thus it provides: (2) The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government. As to the power to negotiate treaties, the constitutional basis thereof is Section 21 of Article VII the article on the Executive Departmentwhich states: No treaty or international agreement shall be valid and effective unless concurred in by at least twothirds of all the Members of the Senate. The doctrine in PMPF v. Manglapus that the treaty-making power is exclusive to the President, being the sole organ of the nation in its external relations, was echoed in BAYAN v. Executive Secretary56 where the Court held: By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the sole organ and authority in the external affairs of the country. In many ways, the President is the chief architect of the nations foreign policy; his dominance in the field of foreign relations is (then) conceded. Wielding vast powers and influence, his conduct in the external affairs of the nation, as Jefferson describes, is executive altogether. As regards the power to enter into treaties or international agreements, the Constitution vests the same in the President, subject only to the concurrence of at least two thirds vote of all the members of the Senate. In this light, the negotiation of the VFA and the subsequent ratification of the agreement are exclusive acts which pertain solely to the President, in the lawful exercise of his vast executive and diplomatic powers granted him no less than by the fundamental law itself. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it. x x x(Italics in the original; emphasis and underscoring supplied) The same doctrine was reiterated even more recently in Pimentel v. Executive Secretary57 where the Court ruled: In our system of government, the President, being the head of state, is regarded as the sole organ and authority in external relations and is the countrys sole representative with foreign nations. As the chief architect of foreign policy, the President acts as the countrys mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and

otherwise transact the business of foreign relations. In the realm of treaty-making, the President has the sole authority to negotiate with other states. Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the treaty entered into by him. x x x (Emphasis and underscoring supplied) While the power then to fix tariff rates and other taxes clearly belongs to Congress, and is exercised by the President only by delegation of that body, it has long been recognized that the power to enter into treaties is vested directly and exclusively in the President, subject only to the concurrence of at least two-thirds of all the Members of the Senate for the validity of the treaty. In this light, the authority of the President to enter into trade agreements with foreign nations provided under P.D. 146458 may be interpreted as an acknowledgment of a power already inherent in its office. It may not be used as basis to hold the President or its representatives accountable to Congress for the conduct of treaty negotiations. This is not to say, of course, that the Presidents power to enter into treaties is unlimited but for the requirement of Senate concurrence, since the President must still ensure that all treaties will substantively conform to all the relevant provisions of the Constitution. It follows from the above discussion that Congress, while possessing vast legislative powers, may not interfere in the field of treaty negotiations. While Article VII, Section 21 provides for Senate concurrence, such pertains only to the validity of the treaty under consideration, not to the conduct of negotiations attendant to its conclusion. Moreover, it is not even Congress as a whole that has been given the authority to concur as a means of checking the treaty-making power of the President, but only the Senate. Thus, as in the case of petitioners suing in their capacity as private citizens, petitioners-members of the House of Representatives fail to present a sufficient showing of need that the information sought is critical to the performance of the functions of Congress, functions that do not include treaty-negotiation. Respondents alleged failure to timely claim executive privilege On respondents invocation of executive privilege, petitioners find the same defective, not having been done seasonably as it was raised only in their Comment to the present petition and not during the House Committee hearings. That respondents invoked the privilege for the first time only in their Comment to the present petition does not mean that the claim of privilege should not be credited. Petitioners position presupposes that an assertion of the privilege should have been made during the House Committee investigations, failing which respondents are deemed to have waived it.

When the House Committee and petitioner-Congressman Aguja requested respondents for copies of the documents subject of this case, respondents replied that the negotiations were still on-going and that the draft of the JPEPA would be released once the text thereof is settled and complete. There was no intimation that the requested copies are confidential in nature by reason of public policy. The response may not thus be deemed a claim of privilege by the standards of Senate v. Ermita, which recognizes as claims of privilege only those which are accompanied by precise and certain reasons for preserving the confidentiality of the information being sought. Respondents failure to claim the privilege during the House Committee hearings may not, however, be construed as a waiver thereof by the Executive branch. As the immediately preceding paragraph indicates, what respondents received from the House Committee and petitioner-Congressman Aguja were mere requests for information. And as priorly stated, the House Committee itself refrained from pursuing its earlier resolution to issue a subpoena duces tecum on account of then Speaker Jose de Venecias alleged request to Committee Chairperson Congres sman Teves to hold the same in abeyance. While it is a salutary and noble practice for Congress to refrain from issuing subpoenas to executive officialsout of respect for their officeuntil resort to it becomes necessary, the fact remains that such requests are not a compulsory process. Being mere requests, they do not strictly call for an assertion of executive privilege. The privilege is an exemption to Congress power of inquiry.59 So long as Congress itself finds no cause to enforce such power, there is no strict necessity to assert the privilege. In this light, respondents failure to invoke the privilege during the House Committee investigations did not amount to a waiver thereof. The Court observes, however, that the claim of privilege appearing i n respondents Comment to this petition fails to satisfy in full the requirement laid down in Senate v. Ermita that the claim should be invoked by the President or through the Executive Secretary by order of the President.60 Respondents claim of privilege is being sustained, however, its flaw notwithstanding, because of circumstances peculiar to the case. The assertion of executive privilege by the Executive Secretary, who is one of the respondents herein, without him adding the phrase by order of the President, shall be considered as partially complying with the requirement laid down in Senate v. Ermita. The requirement that the phrase by order of the President should accompany the Executive Secretarys claim of privilege is a new rule laid down for the first time in Senate v. Ermita, which was not yet final and executory at the time respondents filed their Comment to the petition.61 A strict application of this requirement would thus be unwarranted in this case. Response to the Dissenting Opinion of the Chief Justice We are aware that behind the dissent of the Chief Justice lies a genuine zeal to protect our peoples right to information against any abuse of executive privilege. It is a zeal that We fully share.

The Court, however, in its endeavor to guard against the abuse of executive privilege, should be careful not to veer towards the opposite extreme, to the point that it would strike down as invalid even a legitimate exercise thereof. We respond only to the salient arguments of the Dissenting Opinion which have not yet been sufficiently addressed above. 1. After its historical discussion on the allocation of power over international trade agreements in the United States, the dissent concludes that it will be turning somersaults with history to contend that the President is the sole organ for external relations in that jurisdiction. With regard to this opinion, We make only the following observations: There is, at least, a core meaning of the phrase sole organ of the nation in its external relations which is not being disputed, namely, that the power to directly negotiate treaties and international agreements is vested by our Constitution only in the Executive. Thus, the dissent states that Congress has the power to regulate commerce with foreign nations but does not have the power to negotiate international agreements directly.62 What is disputed is how this principle applies to the case at bar. The dissent opines that petitioner-members of the House of Representatives, by asking for the subject JPEPA documents, are not seeking to directly participate in the negotiations of the JPEPA, hence, they cannot be prevented from gaining access to these documents. On the other hand, We hold that this is one occasion where the following ruling in Agan v. PIATCO63and in other cases both before and sinceshould be applied: This Court has long and consistently adhered to the legal maxim that those that cannot be done directly cannot be done indirectly. To declare the PIATCO contracts valid despite the clear statutory prohibition against a direct government guarantee would not only make a mockery of what the BOT Law seeks to preventwhich is to expose the government to the risk of incurring a monetary obligation resulting from a contract of loan between the project proponent and its lenders and to which the Government is not a party tobut would also render the BOT Law useless for what it seeks to achieveto make use of the resources of the private sector in the financing, operation and maintenance of infrastructure and development projects which are necessary for national growth and development but which the government, unfortunately, could ill-afford to finance at this point in time.64 Similarly, while herein petitioners-members of the House of Representatives may not have been aiming to participate in the negotiations directly, opening the JPEPA negotiations to their scrutiny even to the point of giving them access to the offers exchanged between the Japanese and Philippine delegationswould have made a mockery of what the Constitution sought to prevent and rendered

it useless for what it sought to achieve when it vested the power of direct negotiation solely with the President. What the U.S. Constitution sought to prevent and aimed to achieve in defining the treaty-making power of the President, which our Constitution similarly defines, may be gathered from Hamiltons explanation of why the U.S. Constitution excludes the House of Representatives from the treatymaking process: x x x The fluctuating, and taking its future increase into account, the multitudinous composition of that body, forbid us to expect in it those qualities which are essential to the proper execution of such a trust. Accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character, decision, secrecy and dispatch; are incompatible with a body so variable and so numerous. The very complication of the business by introducing a necessity of the concurrence of so many different bodies, would of itself afford a solid objection. The greater frequency of the calls upon the house of representatives, and the greater length of time which it would often be necessary to keep them together when convened, to obtain their sanction in the progressive stages of a treaty, would be source of so great inconvenience and expense, as alone ought to condemn the project.65 These considerations a fortiori apply in this jurisdiction, since the Philippine Constitution, unlike that of the U.S., does not even grant the Senate the power to advise the Executive in the making of treaties, but only vests in that body the power to concur in the validity of the treaty after negotiations have been concluded. 66 Much less, therefore, should it be inferred that the House of Representatives has this power. Since allowing petitioner-members of the House of Representatives access to the subject JPEPA documents would set a precedent for future negotiations, leading to the contravention of the public interests articulated above which the Constitution sought to protect, the subject documents should not be disclosed. 2. The dissent also asserts that respondents can no longer claim the diplomatic secrets privilege over the subject JPEPA documents now that negotiations have been concluded, since their reasons for nondisclosure cited in the June 23, 2005 letter of Sec. Ermita, and later in their Comment, necessarily apply only for as long as the negotiations were still pending; In their Comment, respondents contend that the negotiations of the representatives of the Philippines as well as of Japan must be allowed to explore alternatives in the course of the negotiations in the same manner as judicial deliberations and working drafts of opinions are accorded strict confidentiality. That respondents liken the documents involved in the JPEPA negotiations to judicial deliberations and working drafts of opinions evinces, by itself, that they were claiming confidentiality not only until, but even after, the conclusion of the negotiations. Judicial deliberations do not lose their confidential character once a decision has been promulgated by the courts. The same holds true with respect to working drafts of opinions, which are comparable

to intra-agency recommendations. Such intra-agency recommendations are privileged even after the position under consideration by the agency has developed into a definite proposition, hence, the rule in this jurisdiction that agencies have the duty to disclose only definite propositions, and not the inter-agency and intra-agency communications during the stage when common assertions are still being formulated. 67 3. The dissent claims that petitioner-members of the House of Representatives have sufficiently shown their need for the same documents to overcome the privilege. Again, We disagree. The House Committee that initiated the investigations on the JPEPA did not pursue its earlier intention to subpoena the documents. This strongly undermines the assertion that access to the same documents by the House Committee is critical to the performance of its legislative functions. If the documents were indeed critical, the House Committee should have, at the very least, issued a subpoena duces tecum or, like what the Senate did in Senate v. Ermita, filed the present petition as a legislative body, rather than leaving it to the discretion of individual Congressmen whether to pursue an action or not. Such acts would have served as strong indicia that Congress itself finds the subject information to be critical to its legislative functions. Further, given that respondents have claimed executive privilege, petitioner-members of the House of Representatives should have, at least, shown how its lack of access to the Philippine and Japanese offers would hinder the intelligent crafting of legislation. Mere assertion that the JPEPA covers a subject matter over which Congress has the power to legislate would not suffice. As Senate Select Committee v. Nixon68 held, the showing required to overcome the presumption favoring confidentiality turns, not only on the nature and appropriateness of the function in the performance of which the material was sought, but also the degree to which the material was necessary to its fulfillment. This petitioners failed to do. Furthermore, from the time the final text of the JPEPA including its annexes and attachments was published, petitioner-members of the House of Representatives have been free to use it for any legislative purpose they may see fit. Since such publication, petitioners need, if any, specifically for the Philippine and Japanese offers leading to the final version of the JPEPA, has become even less apparent. In asserting that the balance in this instance tilts in favor of disclosing the JPEPA documents, the dissent contends that the Executive has failed to show how disclosing them after the conclusion of negotiations would impair the performance of its functions. The contention, with due respect, misplaces the onus probandi. While, in keeping with the general presumption of transparency, the burden is initially on the Executive to provide precise and certain reasons for upholding its claim of privilege, once the Executive is able to show that the documents being sought are covered by a recognized privilege, the burden shifts to the party seeking information to overcome the privilege by a strong showing of need. When it was thus established that the JPEPA documents are covered by the privilege for diplomatic negotiations pursuant to PMPF v. Manglapus, the presumption arose that their disclosure would

impair the performance of executive functions. It was then incumbent on petitioner- requesting parties to show that they have a strong need for the information sufficient to overcome the privilege. They have not, however. 4. Respecting the failure of the Executive Secretary to explicitly state that he is claiming the privilege by order of the President, the same may not be strictly applied to the privilege claim subject of this case. When the Court in Senate v. Ermita limited the power of invoking the privilege to the President alone, it was laying down a new rule for which there is no counterpart even in the United States from which the concept of executive privilege was adopted. As held in the 2004 case of Judicial Watch, Inc. v. Department of Justice,69 citing In re Sealed Case,70 the issue of whether a President must personally invoke the *presidential communications+ privilege remains an open question. U.S. v. Reynolds,71 on the other hand, held that *t+here must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The rule was thus laid down by this Court, not in adherence to any established precedent, but with the aim of preventing the abuse of the privilege in light of its highly exceptional nature. The Courts recognition that the Executive Secretary also bears the power to invoke the privilege, provided he does so by order of the President, is meant to avoid laying down too rigid a rule, the Court being aware that it was laying down a new restriction on executive privilege. It is with the same spirit that the Court should not be overly strict with applying the same rule in this peculiar instance, where the claim of executive privilege occurred before the judgment in Senate v. Ermita became final. 5. To show that PMPF v. Manglapus may not be applied in the present case, the dissent implies that the Court therein erred in citing US v. Curtiss Wright72 and the book entitled The New American Government and Its Work73 since these authorities, so the dissent claims, may not be used to calibrate the importance of the right to information in the Philippine setting. The dissent argues that since Curtiss-Wright referred to a conflict between the executive and legislative branches of government, the factual setting thereof was different from that of PMPF v. Manglapus which involved a collision between governmental power over the conduct of foreign affairs and the citizens right to information. That the Court could freely cite Curtiss-Wrighta case that upholds the secrecy of diplomatic negotiations against congressional demands for information in the course of laying down a ruling on the public right to informationonly serves to underscore the principle mentioned earlier that the privileged character accorded to diplomatic negotiations does not ipso facto lose all force and effect simply because the same privilege is now being claimed under different circumstances. PMPF v. Manglapus indeed involved a demand for information from private citizens and not an executive-legislative conflict, but so did Chavez v. PEA74 which held that the *publics+ right to information . . . does not extend to matters recognized as privileged information under the

separation of powers. What counts as privileged information in an executive -legislative conflict is thus also recognized as such in cases involving the publics right to information. Chavez v. PCGG75 also involved the publics right to information, yet the Court recognized as a valid limitation to that right the same privileged information based on separation of powers closed-door Cabinet meetings, executive sessions of either house of Congress, and the internal deliberations of the Supreme Court. These cases show that the Court has always regarded claims of privilege, whether in the context of an executive-legislative conflict or a citizens demand for information, as closely intertwined, such that the principles applicable to one are also applicable to the other. The reason is obvious. If the validity of claims of privilege were to be assessed by entirely different criteria in each context, this may give rise to the absurd result where Congress would be denied access to a particular information because of a claim of executive privilege, but the general public would have access to the same information, the claim of privilege notwithstanding. Absurdity would be the ultimate result if, for instance, the Court adopts the clear and present danger test for the assessment of claims of privilege against citizens demands for information. If executive information, when demanded by a citizen, is privileged only when there is a clear and present danger of a substantive evil that the State has a right to prevent, it would be very difficult for the Executive to establish the validity of its claim in each instance. In contrast, if the demand comes from Congress, the Executive merely has to show that the information is covered by a recognized privilege in order to shift the burden on Congress to present a strong showing of need. This would lead to a situation where it would be more difficult for Congress to access executive information than it would be for private citizens. We maintain then that when the Executive has already shown that an information is covered by executive privilege, the party demanding the information must present a strong showing of need, whether that party is Congress or a private citizen. The rule that the same showing of need test applies in both these contexts, however, should not be construed as a denial of the importance of analyzing the context in which an executive privilege controversy may happen to be placed. Rather, it affirms it, for it means that the specific need being shown by the party seeking information in every particular instance is highly significant in determining whether to uphold a claim of privilege. This need is, precisely, part of the context in light of which every claim of privilege should be assessed. Since, as demonstrated above, there are common principles that should be applied to executive privilege controversies across different contexts, the Court in PMPF v. Manglapus did not err when it cited the Curtiss-Wright case. The claim that the book cited in PMPF v. Manglapus entitled The New American Government and Its Work could not have taken into account the expanded statutory right to information in the FOIA

assumes that the observations in that book in support of the confidentiality of treaty negotiations would be different had it been written after the FOIA. Such assumption is, with due respect, at best, speculative. As to the claim in the dissent that *i+t is more doubtful if the same book be used to calibrate the importance of the right of access to information in the Philippine setting considering its elevation as a constitutional right, we submit that the elevation of such right as a constitutional right did not set it free from the legitimate restrictions of executive privilege which is itself constitutionally-based.76 Hence, the comments in that book which were cited in PMPF v. Manglapus remain valid doctrine. 6.The dissent further asserts that the Court has never used need as a test to uphold or allow inroads into rights guaranteed under the Constitution. With due respect, we assert otherwise. The Court has done so before, albeit without using the term need. In executive privilege controversies, the requirement that parties presen t a sufficient showing of need only means, in substance, that they should show a public interest in favor of disclosure sufficient in degree to overcome the claim of privilege.77 Verily, the Court in such cases engages in a balancing of interests. Such a balancing of interests is certainly not new in constitutional adjudication involving fundamental rights. Secretary of Justice v. Lantion,78which was cited in the dissent, applied just such a test. Given that the dissent has clarified that it does not seek to apply the clear and present danger test to the present controversy, but the balancing test, there seems to be no substantial dispute between the position laid down in this ponencia and that reflected in the dissent as to what test to apply. It would appear that the only disagreement is on the results of applying that test in this instance. The dissent, nonetheless, maintains that it suffices that information is of public concern for it to be covered by the right, regardless of the publics need for the information, and that the same would hold true even if they simply want to know it because it interests them. As has been stated earlier, however, there is no dispute that the information subject of this case is a matter of public concern. The Court has earlier concluded that it is a matter of public concern, not on the basis of any specific need shown by petitioners, but from the very nature of the JPEPA as an international trade agreement. However, when the Executive hasas in this caseinvoked the privilege, and it has been established that the subject information is indeed covered by the privilege being claimed, can a party overcome the same by merely asserting that the information being demanded is a matter of public concern, without any further showing required? Certainly not, for that would render the doctrine of executive privilege of no force and effect whatsoever as a limitation on the right to information, because then the sole test in such controversies would be whether an information is a matter of public concern. Moreover, in view of the earlier discussions, we must bear in mind that, by disclosing the documents of the JPEPA negotiations, the Philippine government runs the grave risk of betraying the trust reposed in it by the Japanese representatives, indeed, by the Japanese government itself. How would

the Philippine government then explain itself when that happens? Surely, it cannot bear to say that it just hadto release the information because certain persons simply wanted to know it because it interests them. Thus, the Court holds that, in determining whether an information is covered by the right to information, a specific showing of need for such information is not a relevant consideration, but only whether the same is a matter of public concern. When, however, the government has claimed executive privilege, and it has established that the information is indeed covered by the same, then the party demanding it, if it is to overcome the privilege, must show that that the information is vital, not simply for the satisfaction of its curiosity, but for its ability to effectively and reasonably participate in social, political, and economic decision-making.79 7. The dissent maintains that *t+he treaty has thus entered the ultimate s tage where the people can exercise their right to participate in the discussion whether the Senate should concur in its ratification or not. (Emphasis supplied) It adds that this right will be diluted unless the people can have access to the subject JPEPA documents. What, to the dissent, is a dilution of the right to participate in decision-making is, to Us, simply a recognition of the qualified nature of the publics right to information. It is beyond dispute that the right to information is not absolute and that the doctrine of executive privilege is a recognized limitation on that right. Moreover, contrary to the submission that the right to participate in decision-making would be diluted, We reiterate that our people have been exercising their right to participate in the discussion on the issue of the JPEPA, and they have been able to articulate their different opinions without need of access to the JPEPA negotiation documents. Thus, we hold that the balance in this case tilts in favor of executive privilege. 8. Against our ruling that the principles applied in U.S. v. Nixon, the Senate Select Committee case, and In re Sealed Case, are similarly applicable to the present controversy, the dissent cites the caveat in the Nixon case that the U.S. Court was there addressing only the Presidents assertion of privilege in the context of a criminal trial, not a civil litigation nor a congressional demand for information. What this caveat means, however, is only that courts must be careful not to hastily apply the ruling therein to other contexts. It does not, however, absolutely mean that the principles applied in that case may never be applied in such contexts. Hence, U.S. courts have cited U.S. v. Nixon in support of their rulings on claims of executive privilege in contexts other than a criminal trial, as in the case of Nixon v. Administrator of General Services80 which involved former President Nixons invocation of executive privilege to challenge the constitutionality of the Presidential Recordings and Materials Preservation Act81and the abovementioned In re Sealed Case which involved a claim of privilege against a subpoena duces tecum issued in a grand jury investigation. Indeed, in applying to the present case the principles found in U.S. v. Nixon and in the other cases already mentioned, We are merely affirming what the Chief Justice stated in his Dissenting Opinion in

Neri v. Senate Committee on Accountability82a case involving an executive-legislative conflict over executive privilege. That dissenting opinion stated that, while Nixon was not concerned with the balance between the Presidents generalized interest in confidentiality and congressional demands for information, *n+onetheless the *U.S.+ Court laid down principles and procedures that can serve as torch lights to illumine us on the scope and use of Presidential communication privilege in the case at bar.83 While the Court was divided in Neri, this opinion of the Chief Justice was not among the points of disagreement, and We similarly hold now that the Nixon case is a useful guide in the proper resolution of the present controversy, notwithstanding the difference in context. Verily, while the Court should guard against the abuse of executive privilege, it should also give full recognition to the validity of the privilege whenever it is claimed within the proper bounds of executive power, as in this case. Otherwise, the Court would undermine its own credibility, for it would be perceived as no longer aiming to strike a balance, but seeking merely to water down executive privilege to the point of irrelevance. Conclusion To recapitulate, petitioners demand to be furnished with a copy of the full text of the JPEPA has become moot and academic, it having been made accessible to the public since September 11, 2006. As for their demand for copies of the Philippine and Japanese offers submitted during the JPEPA negotiations, the same must be denied, respondents claim of executive privilege being valid. Diplomatic negotiations have, since the Court promulgated its Resolution in PMPF v. Manglapus on September 13, 1988, been recognized as privileged in this jurisdiction and the reasons proffered by petitioners against the application of the ruling therein to the present case have not persuaded the Court. Moreover, petitionersboth private citizens and members of the House of Representatives have failed to present a sufficient showing of need to overcome the claim of privilege in this case. That the privilege was asserted for the first time in respondents Comment to the present petition, and not during the hearings of the House Special Committee on Globalization, is of no moment, since it cannot be interpreted as a waiver of the privilege on the part of the Executive branch. For reasons already explained, this Decision shall not be interpreted as departing from the ruling in Senate v. Ermita that executive privilege should be invoked by the President or through the Executive Secretary by order of the President. SO ORDERED.


G.R. No. 169364

3. Any idle or dissolute person who lodges in houses of ill fame; ruffians or pimps and those who habitually associate with prostitutes; 4. Any person who, not being included in the provisions of other articles of this Code, shall be found loitering in any inhabited or uninhabited place belonging to another without any lawful or justifiable purpose; 5. Prostitutes.


If a man is called to be a street sweeper, he should sweep streets even as Michelangelo painted, or Beethoven composed music, or Shakespeare wrote poetry. He should sweep streets so well that all the hosts of Heaven and Earth will pause to say, here lived a great street sweeper who did his job well. Martin Luther King, Jr. Assailed in this petition for review on certiorari is the July 29, 2005 Order of Branch 11, Davao City Regional Trial Court in Special Civil Case No. 30-500-2004 granting respondents Petition for Certiorari and declaring paragraph 2 of Article 202 of the Revised Penal Code unconstitutional. Respondents Evangeline Siton and Krystel Kate Sagarano were charged with vagrancy pursuant to Article 202 (2) of the Revised Penal Code in two separate Informations dated November 18, 2003, docketed as Criminal Case Nos. 115,716-C-2003 and 115,717-C-2003 and raffled to Branch 3 of the Municipal Trial Court in Cities,Davao City. The Informations, read:

For the purposes of this article, women who, for money or profit, habitually indulge in sexual intercourse or lascivious conduct, are deemed to be prostitutes. Any person found guilty of any of the offenses covered by this articles shall be punished by arresto menor or a fine not exceeding 200 pesos, and in case of recidivism, by arresto mayor in its medium period to prision correccional in its minimum period or a fine ranging from 200 to 2,000 pesos, or both, in the discretion of the court. Instead of submitting their counter-affidavits as directed, respondents filed separate [3] Motions to Quash on the ground that Article 202 (2) is unconstitutional for being vague and overbroad. In an Order dated April 28, 2004, the municipal trial court denied the motions and directed respondents anew to file their respective counter-affidavits. The municipal trial court also declared that the law on vagrancy was enacted pursuant to the State s police power and justified by the Latin maxim salus populi est suprem(a) lex, which calls for the subordination of individual benefit to the interest of the greater number, thus: Our law on vagrancy was enacted pursuant to the police power of the State. An authority on police power, Professor Freund describes laconically police power as the power of promoting public welfare by restraining and regulating the use of liberty and property. (Citations omitted). In fact the persons acts and acquisitions are hemmed in by the police power of the state. The justification found in the Latin maxim, salus populi est supreme ( sic) lex (the god of the people is the Supreme Law). This calls for the subordination of individual benefit to the interests of the greater number.In the case at bar the affidavit of the arresting police officer, SPO1 JAY PLAZA with Annex A lucidly shows that there was a prior surveillance conducted in view of the reports that vagrants and prostitutes proliferate in the place where the two accused (among other women) were wandering and in the wee hours of night and soliciting male customer. Thus, on that basis the prosecution should be given a leeway to prove its case. Thus, in the interest of substantial justice, both prosecution and defense must be given their day

That on or about November 14, 2003, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, willfully, unlawfully and feloniously wandered and loitered around San Pedro and Legaspi Streets, this City, without any visible means to support herself nor lawful [2] and justifiable purpose. Article 202 of the Revised Penal Code provides: Art. 202. Vagrants and prostitutes; penalty. The following are vagrants: 1. Any person having no apparent means of subsistence, who has the physical ability to work and who neglects to apply himself or herself to some lawful calling; 2. Any person found loitering about public or semi-public buildings or places or tramping or wandering about the country or the streets without visible means of support;

in Court: the prosecution proof of the crime, and the author thereof; the defense, to show that the acts of the accused in the indictment cant be categorized as a [5] crime. The municipal trial court also noted that in the affidavit of the arresting police officer, SPO1 Jay Plaza, it was stated that there was a prior surveillance conducted on the two accused in an area reported to be frequented by vagrants and prostitutes who solicited sexual favors. Hence, the prosecution should be given the opportunity to prove the crime, and the defense to rebut the evidence. Respondents thus filed an original petition for certiorari and prohibition with the Regional [6] Trial Court of Davao City, directly challenging the constitutionality of the anti-vagrancy law, claiming that the definition of the crime of vagrancy under Article 202 (2), apart from being vague, results as well in an arbitrary identification of violators, since the definition of the crime includes in its coverage persons who are otherwise performing ordinary peaceful acts. They likewise claimed that Article 202 (2) violated the equal protection clause under the Constitution because it discriminates against the poor and unemployed, thus permitting an arbitrary and unreasonable classification. The State, through the Office of the Solicitor General, argued that pursuant to the Court s [7] ruling in Estrada v. Sandiganbayan, the overbreadth and vagueness doctrines apply only to free speech cases and not to penal statutes. It also asserted that Article 202 (2) must be presumed valid and constitutional, since the respondents failed to overcome this presumption. On July 29, 2005, the Regional Trial Court issued the assailed Order granting the petition, the dispositive portion of which reads: WHEREFORE, PRESCINDING FROM THE FOREGOING, the instant Petition is hereby GRANTED. Paragraph 2 of Article 202 of the Revised Penal Code is hereby declared unconstitutional and the Order of the court a quo, dated April 28, 2004, denying the petitioners Motion to Quash is set aside and the said court is ordered to dismiss the subject criminal cases against the petitioners pending before it. SO ORDERED.

Indeed, to authorize a police officer to arrest a person fo r being found loitering about public or semi-public buildings or places or tramping or wandering about the country or the streets without visible means of support offers too wide a latitude for arbitrary determinations as to who should be arrested and who should not. Loitering about and wandering have become national pastimes particularly in these times of recession when there are many who are without visible means of support not by reason of choice but by force of circumstance as borne ou t by the high unemployment rate in the entire country. To authorize law enforcement authorities to arrest someone for nearly no other reason than the fact that he cannot find gainful employment would indeed be [10] adding insult to injury. On its pronouncement that Article 202 (2) violated the equal protection clause of the Constitution, the trial court declared: The application of the Anti-Vagrancy Law, crafted in the 1930s, to our situation at present runs afoul of the equal protection clause of the constitution as it offers no reasonable classification between those covered by the law and those who are not. Class legislation is such legislation which denies rights to one which are accorded to others, or inflicts upon one individual a more severe penalty than is imposed upon another in like case offending. Applying this to the case at bar, since the definition of Vagrancy under Article 202 of the Revised Penal Code offers no guidelines or any other reasonable indicators to differentiate those who have no visible means of support by force of circumstance and those who choose to loiter about and bum around, who are the proper subjects of vagrancy legislation, it cannot pass a judicial scrutiny of its [11] constitutionality. Hence, this petition for review on certiorari raising the sole issue of: WHETHER THE REGIONAL TRIAL COURT COMMITTED A REVERSIBLE ERROR IN [12] DECLARING UNCONSTITUTIONAL ARTICLE 202 (2) OF THE REVISED PENAL CODE Petitioner argues that every statute is presumed valid and all reasonable doubts should be [13] resolved in favor of its constitutionality; that, citing Romualdez v. Sandiganbayan, the overbreadth and vagueness doctrines have special application to free-speech cases only and are not appropriate for testing the validity of penal statutes; that respondents failed to overcome the presumed validity of the statute, failing to prove that it was vague under the standards set out by the Courts; and that

In declaring Article 202 (2) unconstitutional, the trial court opined that the law is vague and it violated the equal protection clause. It held that the void for vaguenessdoctrine is equally [9] applicable in testing the validity of penal statutes. Citing Papachristou v. City of Jacksonville, where an anti vagrancy ordinance was struck down as unconstitutional by the Supreme Court of the United States, the trial court ruled: The U.S. Supreme Courts justifications for striking down the Jacksonville Vagrancy Ordinance are equally applicable to paragraph 2 of Article 202 of the Revised Penal Code.

the State may regulate individual conduct for the promotion of public welfare in the exercise of its police power. On the other hand, respondents argue against the limited application of the overbreadth and vagueness doctrines. They insist that Article 202 (2) on its face violates the constitutionallyguaranteed rights to due process and the equal protection of the laws; that the due process vagueness standard, as distinguished from the free speech vagueness doctrine, is adequate to declare Article 202 (2) unconstitutional and void on its face; and that the presumption of constitutionality was adequately overthrown. The Court finds for petitioner. The power to define crimes and prescribe their corresponding penalties is legislative in nature and inherent in the sovereign power of the state to maintain social order as an aspect of police power. The legislature may even forbid and penalize acts formerly considered innocent and [14] lawful provided that no constitutional rights have been abridged. However, in exercising its power to declare what acts constitute a crime, the legislature must inform the citizen with reasonable precision what acts it intends to prohibit so that he may have a certain understandable rule of [15] conduct and know what acts it is his duty to avoid. This requirement has come to be known as the void-for-vagueness doctrine which states that a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its [16] meaning and differ as to its application, violates the first essential of due process of law. In Spouses Romualdez v. COMELEC, the Court recognized the application of the void-forvagueness doctrine to criminal statutes in appropriate cases. The Court therein held: At the outset, we declare that under these terms, the opinions of the dissent which seek to bring to the fore the purported ambiguities of a long list of provisions in Republic Act No. 8189 can be deemed as a facial challenge. An appropriate as applied challenge in the instant Petition should be limited only to Section 45 (j) in relation to Sections 10 (g) and (j) of Republic Act No. 8189 the provisions upon which petitioners are charged. An expanded examination of the law covering provisions which are alien to petitioners case would be antagonistic to the rudiment that for judicial review to be exercised, there must be an existing case or controversy that is appropriate or ripe for determination, and not conjectural or [18] anticipatory. The first statute punishing vagrancy Act No. 519 was modeled after American vagrancy statutes and passed by the Philippine Commission in 1902. The Penal Code of Spain of 1870 which was in force in this country up to December 31, 1931 did not contain a provision on [19] vagrancy. While historically an Anglo-American concept of crime prevention, the law on vagrancy was included by the Philippine legislature as a permanent feature of the Revised Penal Code in Article 202 thereof which, to repeat, provides:

ART. 202. Vagrants and prostitutes; penalty. The following are vagrants: 1. Any person having no apparent means of subsistence, who has the physical ability to work and who neglects to apply himself or herself to some lawful calling; 2. Any person found loitering about public or semi-public buildings or places, or tramping or wandering about the country or the streets without visible means of support;

3. Any idle or dissolute person who lodges in houses of ill-fame; ruffians or pimps and those who habitually associate with prostitutes; 4. Any person who, not being included in the provisions of other articles of this Code, shall be found loitering in any inhabited or uninhabited place belonging to another without any lawful or justifiable purpose; 5. Prostitutes.

For the purposes of this article, women who, for money or profit, habitually indulge in sexual intercourse or lascivious conduct, are deemed to be prostitutes. Any person found guilty of any of the offenses covered by this article shall be punished by arresto menor or a fine not exceeding 200 pesos, and in case of recidivism, by arresto mayor in its medium period to prision correccional in its minimum period or a fine ranging from 200 to 2,000 pesos, or both, in the discretion of the court. In the instant case, the assailed provision is paragraph (2), which defines a vagrant as any person found loitering about public or semi-public buildings or places, or tramping or wandering about the country or the streets without visible means of support. This provision was based on the second clause of Section 1 of Act No. 519 which defined vagrant as every person found loitering about saloons or dramshops or gambling houses, or tramping or straying through the country without visible means of support. The second clause was essentially retained with the modification that the places under which the offense might be committed is now expressed in general terms public or semi-public places. The Regional Trial Court, in asserting the unconstitutionality of Article 202 (2), take support [20] mainly from the U.S. Supreme Courts opinion in the Papachristou v. City of Jacksonville case, which in essence declares:

Living under a rule of law entails various suppositions, one of which is that *all persons+ are entitled to be informed as to what the State commands or forbids. Lanzetta v. New Jersey, 306U. S. 451, 306 U. S. 453. Lanzetta is one of a well recognized group of cases insisting that the law give fair notice of the offending conduct. See Connally v. General Construction Co., 269 U. S. 385, 269 U. S. 391; Cline v. Frink Dairy Co., 274 U. S. 445; United States v. Cohen Grocery Co., 255 U. S. 81. In the field of regulatory statutes governing business activities, where the acts limited are in a narrow category, greater leeway is allowed. Boyce Motor Lines, Inc. v. United States, 342 U. S. 337; United States v. National Dairy Products Corp., 372 U. S. 29; United States v. Petrillo, 332 U. S. 1. The poor among us, the minorities, the average householder, are not in business and not alerted to the regulatory schemes of vagrancy laws; and we assume they would have no understanding of their meaning and impact if they read them. Nor are they protected from being caught in the vagrancy net by the necessity of having a specific intent to commit an unlawful act. See Screws v.United States, 325 U. S. 91; Boyce Motor Lines, Inc. v. United States, supra. The Jacksonville ordinance makes criminal activities which, by modern standards, are normally innocent. Nightwalking is one. Florida construes the ordinance not to make criminal one night's wandering, Johnson v. State, 202 So.2d at 855, only the habitual wanderer or, as the ordinance describes it, common night walkers. We know, however, from experience that sleepless people often walk at night, perhaps hopeful that sleep-inducing relaxation will result. Luis Munoz-Marin, former Governor of Puerto Rico, commented once that loafing was a national virtue in his Commonwealth, and that it should be encouraged. It is, however, a crime inJacksonville. xxxx Persons wandering or strolling from place to place have been extolled by Walt Whitman and Vachel Lindsay. The qualification without any lawful purpose or object may be a trap for innocent acts. Persons neglecting all lawful business and habitually spending their time by frequenting . . . places where alcoholic beverages are sold or served would literally embrace many members of golf clubs and city clubs. Walkers and strollers and wanderers may be going to or coming from a burglary. Loafers or loiterers may be casing a place for a holdup. Letting one's wife support him is an intra-family matter, and normally of no concern to the police. Yet it may, of course, be the setting for numerous crimes.

The difficulty is that these activities are historically part of the amenities of life as we have known them. They are not mentioned in the Constitution or in the Bill of Rights. These unwritten amenities have been, in part, responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity. These amenities have dignified the right of dissent, and have honored the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits, rather than hushed, suffocating silence. xxxx Where the list of crimes is so all-inclusive and generalized as the one in this ordinance, those convicted may be punished for no more than vindicating affronts to police authority: The common ground which brings such a motley assortment of human troubles before the magistrates in vagrancytype proceedings is the procedural laxity which permits 'conviction' for almost any kind of conduct and the existence of the House of Correction as an easy and convenient dumpingground for problems that appear to have no other immediate solution. Foote, Vagrancy-Type Law and Its Administration, 104 U.Pa.L.Rev. 603, 631. xxxx Another aspect of the ordinance's vagueness appears when we focus not on the lack of notice given a potential offender, but on the effect of the unfettered discretion it places in the hands of the Jacksonville police. Caleb Foote, an early student of this subject, has called the vagrancy-type law as offering punishment by analogy. Such crimes, though long common in Russia, are not compatible with our constitutional system. xxxx A presumption that people who might walk or loaf or loiter or stroll or frequent houses where liquor is sold, or who are supported by their wives or who look suspicious to the police are to become future criminals is too precarious for a rule of law. The implicit presumption in these generalized vagrancy standards -- that crime is being nipped in the bud -- is too extravagant to deserve extended treatment. Of course, vagrancy statutes are useful to the police. Of course, they are nets making easy the roundup of so-called undesirables. But the rule of law implies equality and justice in its application. Vagrancy laws of the Jacksonville type teach that the scales of justice are so tipped that even-handed administration of the law is

not possible. The rule of law, evenly applied to minorities as well as majorities, to [21] the poor as well as the rich, is the great mucilage that holds society together. The underlying principles in Papachristou are that: 1) the assailed Jacksonville ordinance fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute; and 2) it encourages or promotes opportunities for the application of discriminatory law enforcement. The said underlying principle in Papachristou that the Jacksonville ordinance, or Article 202 (2) in this case, fails to give fair notice of what constitutes forbidden conduct, finds no application here because under our legal system, ignorance of the law excuses no one from compliance [22] therewith. This principle is of Spanish origin, and we adopted it to govern and limit legal conduct in this jurisdiction. Under American law, ignorance of the law is merely a traditional rule that admits of [23] exceptions. Moreover, the Jacksonville ordinance was declared unconstitutional on account of specific provisions thereof, which are not found in Article 202 (2). The ordinance (Jacksonville Ordinance Code 257) provided, as follows: Rogues and vagabonds, or dissolute persons who go about begging; common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children shall be deemed vagrants and, upon conviction in the Municipal Court shall be punished as provided for Class D offenses. Thus, the U.S. Supreme Court in Jacksonville declared the ordinance unconstitutional, because such activities or habits as nightwalking, wandering or strolling around without any lawful purpose or object, habitual loafing, habitual spending of time at places where alcoholic beverages are sold or served, and living upon the earnings of wives or minor children, which are otherwise common and normal, were declared illegal. But these are specific acts or activities not found in Article 202 (2) . The closest to Article 202 (2) any person found loitering about public or semi-public buildings or places, or tramping or wandering about the country or the streets without visible means of support from the Jacksonville ordinance, would be persons wandering or strolling around from place to place without any lawful purpose or object. But these two acts are still not the same: Article 202 (2) is qualified by without visible means of support while the Jacksonville ordinance prohibits wandering or strolling without any lawful purpose or object, which was held by the U.S. Supreme Court to constitute a trap for innocent acts.

Under the Constitution, the people are guaranteed the right to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the [24] persons or things to be seized. Thus, as with any other act or offense, the requirement of probable cause provides an acceptable limit on police or executive authority that may otherwise be abused in relation to the search or arrest of persons found to be violating Article 202 (2). The fear exhibited by the respondents, echoing Jacksonville, that unfettered discretion is placed in the hands of the police to make an arrest or search, is therefore assuaged by the constitutional requirement of probable [25] cause, which is one less than certainty or proof, but more than suspicion or possibility. Evidently, the requirement of probable cause cannot be done away with arbitrarily without pain of punishment, for, absent this requirement, the authorities are necessarily guilty of abuse. The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on [26] probable cause, coupled with good faith of the peace officers making the arrest. The State cannot in a cavalier fashion intrude into the persons of its citizens as well as into their houses, papers and effects. The constitutional provision sheathes the private individual with an impenetrable armor against unreasonable searches and seizures. It protects the privacy and sanctity of the person himself against unlawful arrests and other forms of restraint, and prevents him from being irreversibly cut off from that domestic security which renders the lives of the most unhappy in [27] some measure agreeable. As applied to the instant case, it appears that the police authorities have been conducting previous surveillance operations on respondents prior to their arrest. On the surface, this satisfies the probable cause requirement under our Constitution. For this reason, we are not moved by respondents trepidation that Article 202 (2) could have been a source of police abuse in their case. Since the Revised Penal Code took effect in 1932, no challenge has ever been made upon the constitutionality of Article 202 except now. Instead, throughout the years, we have witnessed the streets and parks become dangerous and unsafe, a haven for beggars, harassing watch -your-car boys, petty thieves and robbers, pickpockets, swindlers, gangs, prostitutes, and individuals performing acts that go beyond decency and morality, if not basic humanity. The streets and parks have become the training ground for petty offenders who graduate into hardened and battle-scarred criminals. Everyday, the news is rife with reports of innocent and hardworking people being robbed, swindled, harassed or mauled if not killed by the scourge of the streets. Blue collar workers are robbed straight from withdrawing hard-earned money from the ATMs (automated teller machines); students are held up for having to use and thus exhibit publicly their mobile phones; frail and helpless men are mauled by thrill-seeking gangs; innocent passers-by are stabbed to death by rowdy drunken men walking the streets; fair-looking or pretty women are stalked and harassed, if not abducted,

raped and then killed; robbers, thieves, pickpockets and snatchers case streets and parks for possible victims; the old are swindled of their life savings by conniving streetsmart bilkers and con artists on the prowl; beggars endlessly pester and panhandle pedestrians and commuters, posing a health threat and putting law-abiding drivers and citizens at risk of running them over. All these happen on the streets and in public places, day or night. The streets must be protected. Our people should never dread having to ply them each day, or else we can never say that we have performed our task to our brothers and sisters. We must rid the streets of the scourge of humanity, and restore order, peace, civility, decency and morality in them. This is exactly why we have public order laws, to which Article 202 (2) belongs. These laws were crafted to maintain minimum standards of decency, morality and civility in human society. These laws may be traced all the way back to ancient times, and today, they have also come to be associated with the struggle to improve the citizens quality of life, which is guaranteed by our [28] Constitution. Civilly, they are covered by the abuse of rights doctrine embodied in the preliminary articles of the Civil Code concerning Human Relations, to the end, in part, that any person who willfully causes loss or injury to another in a manner that is contrary to morals, good [29] customs orpublic policy shall compensate the latter for the damage. This provision is, together with the succeeding articles on human relations, intended to embody certain basic principles that are to be observed for the rightful relationship between human beings and for the stability of the [30] social order. In civil law, for example, the summary remedy of ejectment is intended to prevent criminal disorder and breaches of the peace and to discourage those who, believing themselves entitled to the possession of the property, resort to force rather than to some appropriate action in court to assert [31] their claims. Any private person may abate a public nuisance which is specially injurious to him by removing, or if necessary, by destroying the thing which constitutes the same, without committing a [32] breach of the peace, or doing unnecessary injury. Criminally, public order laws encompass a whole range of acts from public indecencies and immoralities, to public nuisances, to disorderly conduct. The acts punished are made illegal by their offensiveness to societys basic sensibilities and their adverse effect on the quality of life of the people of society. For example, the issuance or making of a bouncing check is deemed a public [33] nuisance, a crime against public order that must be abated. As a matter of public policy, the failure to turn over the proceeds of the sale of the goods covered by a trust receipt or to return said goods, if [34] not sold, is a public nuisance to be abated by the imposition of penal sanctions. Thus, public nuisances must be abated because they have the effect of interfering with the comfortable enjoyment of life or property by members of a community. Article 202 (2) does not violate the equal protection clause; neither does it discriminate against the poor and the unemployed. Offenders of public order laws are punished not for their status, as for being poor or unemployed, but for conducting themselves under such circumstances as

to endanger the public peace or cause alarm and apprehension in the community. Being poor or unemployed is not a license or a justification to act indecently or to engage in immoral conduct. Vagrancy must not be so lightly treated as to be considered constitutionally offensive. It is a public order crime which punishes persons for conducting themselves, at a certain place and time which orderly society finds unusual, under such conditions that are repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and ordered society, as would engender a justifiable concern for the safety and well-being of members of the community. Instead of taking an active position declaring public order laws unconstitutional, the State should train its eye on their effective implementation, because it is in this area that the Court perceives difficulties. Red light districts abound, gangs work the streets in the wee hours of the morning, dangerous robbers and thieves ply their trade in the trains stations, drunken men terrorize law-abiding citizens late at night and urinate on otherwise decent corners of our streets. Rugbysniffing individuals crowd our national parks and busy intersections. Prostitutes wait for customers by the roadside all around the metropolis, some even venture in bars and restaurants. Drug-crazed men loiter around dark avenues waiting to pounce on helpless citizens. Dangerous groups wander around, casing homes and establishments for their next hit. The streets must be made safe once [35] more. Though a mans house is his castle, outside on the streets, the king is fair game. The dangerous streets must surrender to orderly society.

Finally, we agree with the position of the State that first and foremost, Article 202 (2) should be presumed valid and constitutional. When confronted with a constitutional question, it is elementary that every court must approach it with grave care and considerable caution bearing in mind that every statute is presumed valid and every reasonable doubt should be resolved in favor of [36] its constitutionality. The policy of our courts is to avoid ruling on constitutional questions and to presume that the acts of the political departments are valid in the absence of a clear and unmistakable showing to the contrary. To doubt is to sustain, this presumption is based on the doctrine of separation of powers which enjoins upon each department a becoming respect for the acts of the other departments. The theory is that as the joint act of Congress and the President of the Philippines, a law has been carefully studied, crafted and determined to be in accordance with [37] the fundamental law before it was finally enacted. It must not be forgotten that police power is an inherent attribute of sovereignty. It has been defined as the power vested by the Constitution in the legislature to make, ordain, and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and for the subjects of the same. The power is plenary and its scope is vast and pervasive, reaching and justifying measures for public health, public safety, public morals, and the [38] general welfare. As an obvious police power measure, Article 202 (2) must therefore be viewed in a constitutional light.

WHEREFORE, the petition is GRANTED. The Decision of Branch 11 of the Regional Trial Court of Davao City in Special Civil Case No. 30-500-2004 declaringArticle 202, paragraph 2 of the Revised Penal Code UNCONSTITUTIONAL is REVERSED and SET ASIDE. Let the proceedings in Criminal Cases Nos. 115,716-C-2003 and 115,717-C-2003 thus continue. No costs. SO ORDERED.

strength, with intent to kill and while armed with bladed weapons, did then and there wilfully [sic], unlawfully and feloniously attack, assault and stab with their bladed weapons, to wit: knives, PRI[S]CILLA LIBAS, hitting her in the different vital parts of her body and inflicting upon her multiple stab wounds which causes (sic) hypovolemic shock which were (sic) the direct and immediate cause of her instantaneous death.5 Criminal Case No. 13202 That on or about the 21st day of October, *sic+ 1995, more or less 4:00 oclock in the afternoon at Cawa-Cawa District, Municipality of Culion, Province of Palawan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping each other, with evident premeditation, treachery and abuse of superior strength, with intent to kill and while armed with bladed weapons, did then and there wilfully, [sic] unlawfully and feloniously attack, assault and stab with their bladed weapons, to wit: knives, CESAR GANZON, hitting him in the different vital parts of his body and inflicting upon him multiple stab wounds which causes hypovolemic shock which were the direct and immediate cause of his instantaneous death.6 As Mike Regino was at large, only appellant was arraigned and he pleaded not guilty. Forthwith, joint trial ensued which resulted in the judgment of guilt against appellant as co-principal for two (2) counts of murder, with conspiracy and evident premeditation attending the commission of the felonies. Both cases were thereafter elevated to this Court on automatic review, but later referred to the Court of Appeals per People v. Mateo.7 The Court of Appeals affirmed the judgment of guilt.8 The prosecution had sought to establish the facts and events recited below. In the afternoon of 21 October 1995, an unidentified woman went to the Culion Municipal Station and reported a killing that had taken place in Sitio Cawa-Cawa, Barangay Osmea, Culion, Palawan.9 The officer-in-charge, SPO2 Ciriaco Gapas, sent to the victims house which was the scene of t he crime an investigating team led by SPO2 Crisanto Cuizon, Jr. and PO2 Isidro Macatangay. There they saw two bloodied bodies, that of a woman lying on the floor of the sala and that of a man inside the bedroom. The investigating team wrapped the bodies in blankets and loaded them in a banca to be brought to the morgue.10 The victims were later identified as Priscilla Libas and Cesar Ganzon. The Autopsy Reports11 show that the common cause of death of both victims was hypovolemic shock secondary to massive bleeding secondary to multiple stab wounds and that both bodies were in the early stages of decomposition. The medico-legal officer testified that Ganzon sustained six (6) wounds on different parts of his body while Libas bore sixteen (16) wounds.12 All the wounds of the victims were fatal and possibly caused by a sharp instrument. Upon information supplied by a certain Mr. Dela Cruz that appellant had wanted to confess to the crimes, SPO2 Gapas set out to look for appellant.13 He found appellant fishing in Asinan Island and invited the latter for questioning. Appellant expressed his willingness to make a confession in the presence of a lawyer.14 Appellant was then brought to the police station after which SPO2 Gapas

G.R. No. 169431 April 3, 2007 [Formerly G.R. Nos. 149891-92] PEOPLE OF THE PHILIPPINES, Appellee, vs. JERRY RAPEZA y FRANCISCO, Appellant. DECISION TINGA, J.: In the complex but exquisite scheme laid down by the Constitution, the Bill of Rights occupies a position of primacy, way above the articles on governmental power.1 Once again, the Court extends fresh vitality to the rights of a person under custodial investigation, which, beginning with the 1987 Constitution, has been accorded equal but segregate weight as the traditional right against selfincrimination, to tip the scales of justice in favor of the presumption of innocence and the lot of an unlettered confessant. This treats of the appeal from the Decision2 dated 1 July 2005 of the Court of Appeals affirming the Consolidated Judgment3 dated 24 July 2001 of the Regional Trial Court (RTC) of Palawan, Puerto Princesa City in Criminal Case Nos. 13064 and 13202 where Jerry Rapeza (appellant) was found guilty of two (2) counts of murder and sentenced to the penalty of reclusion perpetua for each count, plus a total of P100,000.00 as indemnity for the heirs of the two (2) victims. In two (2) separate Informations, appellant, together with Mike Regino, was charged with the murder of the Spouses Cesar Ganzon and Priscilla Libas,4 with the following accusatory allegations: Criminal Case No. 13064 That on or about the 21st day of October, *sic+ 1995, more or less 4:00 oclock in the afternoon at Cawa-Cawa District, Municipality of Culion, Province of Palawan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping each other, with evident premeditation, treachery and abuse of superior

requested Kagawad Arnel Alcantara to provide appellant with a lawyer. The following day, appellant was brought to the house of Atty. Roberto Reyes, the only available lawyer in the municipality.15 The typewriter at the police station was out of order at that time and Atty. Reyes could not go to the police station as he was suffering from rheumatism.16 At the house of Atty. Reyes, in the presence of Vice-Mayor Emiliano Marasigan of Culion, two (2) officials of the Sangguniang Barangay, SPO2 Cuizon and an interpreter, SPO2 Gapas proceeded with the custodial investigation of appellant who was assisted by Atty. Reyes. Appellant was expressly advised that he was being investigated for the death of Libas and Ganzon. Per the Sinumpaang Salaysay17 that appellant executed, he was informed of his constitutional rights in the following manner: xxxx Tanong: Bago kita kunan ng isang salaysay, ikaw ay mayroong karapatan sa ating Saligang Batas na sumusunod: a) Na, ikaw ay maaaring hindi sumagot sa tanong na sa iyong akala ay makaka-apekto sa iyong pagkatao; b) Na, ikaw ay may karapatang pumili ng isang manananggol o abogado na iyong sariling pili; c) Na, kung ikaw ay walang kakayahan kumuha ng isang ab[u]gado ang Pulisya ang siyang magbibigay sa iyo. d) Na, ang lahat na iyong sasabihin ay maaaring gawing ebidensya pabor o laban sa iyo. Sagot: Opo, sir. Tanong: Nakahanda ka na bang ipag-patuloy ang pagsisiyasat na ito, na ang ating gagamiting salita ay salitang Tagalog, na siyang ginagamit nating [sic]? Sagot: Opo, sir. x x x18 Thereupon, when asked about the subsequent events, appellant made the following narration: xxx Tanong: Maari mo bang isalaysay ang pang-yayari [sic]? Sagot: Opo, [n]oong Sabado ng umaga alas 8:00[,] petsa 21 ng Oktobre, 1995, kami ni Mike ay nagkaroon ng pag-iinuman sa kanilang bahay sa Cawa-Cawa at sinabi sa akin [sic] puntahan naming

iyong matanda, dahil may galit daw si Mike sa dalawang matanda [Pris]cilla Libas at Cesar Ganzon) na nakatira din sa Cawa-Cawa at ang layo ay humigit-kumulang isang daang metro sa aming pinagiinuman at kami ay nakaubos ng labing dalawang bote ng beer, mula umaga hanggang alas kuatro ng hapon at habang kami ay nag-iinom aming pinag-uusapan [sic] ang pagpatay sa dalawang matanda. Noong sinasabi sa akin ni Mike, ako umayaw ngunit ako ay pinilit at sinabihan ko rin siya (Mike) at pinag-tatapon [sic] pa niya ang bote ng beer at may sinabi pa si Mike "hindi ka pala marunong tumulong sa akin, pamangkin mo pa naman ako." At ang sagot ko sa kanya, ay maghintay ka, mamayang hapon natin[g] puntahan. At noong humigit-kumulang [sa alas] [sic] kuatro ng hapon, amin ng pinuntahan ang bahay ng mag-asawa, at pagdating namin sa bahay na dala naming [sic] ang patalim, tuloy-tuloy na kaming umakyat, at hinawakan ni Mike ang babae (Presing) at nilaslas na ang leeg at sinaksak ng sinaksak niya sa ibat ibang parte ng katawan at ako ay umakyat din sa bahay at nakita kong nakataob ang lalaki (Cesar)[,] aking hinawakan [sic] ko sa kanyang balikat, at siya ay nakaalam [sic] na mayroong tao sa kanyang likuran, akin nang sinaksak sa kaliwang tagiliran [sic] ng kanyang katawan, at hindi ko na alam ang sumunod na pang-yayari *sic+ dahil ako*+y tuliro. At kami ay umalis at tumalon sa likod ng kusina, nang alam na naming [sic] na patay [na] iyong dalawang matanda. x x x x19 An interpreter was provided appellant as he was not well versed in Tagalog being a native of Samar. As he is illiterate, appellant affixed only his thumbmark on the statement above his printed name. Bonifacio Abad, the interpreter, and Atty. Reyes, as the assisting counsel, also signed the statement. Atty. Reyes signed again as the notary public who notarized the statement. Thereafter, a complaint for multiple murder was filed against appellant, and Regino was likewise arrested. Judge Jacinto Manalo of the Municipal Trial Court (MTC) of Culion conducted a preliminary investigation. Finding probable cause only as against appellant, Regino was ordered released.20 The Provincial Prosecutor, however, reversed the finding of the MTC by including Regino in the Informations, but by then the latter had already left Culion.21 Testifying in his defense, appellant presented a different story during the trial. The defense presented no other witness. Appellant testified that he did not know the victims and that he had nothing to do with their deaths. He was a native of Samar and he did not know how to read or write as he never attended school.22 He arrived in Culion as a fisherman for the Parabal Fishing Boat.23 As his contract had already expired, he stayed in Culion to look for work. He lived with Regino as the latter was his only friend in Cawa-Cawa.24 Reginos house was about 40 meters away from the victims house. Several days after appellants arrival, the killings took place. Appellant, along with Regino a nd another man named Benny Macabili, was asked by a police officer to help load the bodies of the victims in a banca. Shortly thereafter, appellant was arrested and brought to the municipal hall where he was mauled by PO2 Macatangay and placed in a small cell.25 Regino, too, was arrested with him. While under detention, appellant told the police that it was Regino who was responsible for the killing of

the victims but the police did not believe appellant. But appellant later testified that he implicated Regino only in retaliation upon learning that the latter pointed to him as the perpetrator.26 Appellant was then asked by SPO2 Gapas to sign a document so that he will be released. When appellant replied that he did not know how to sign his name, SPO2 Gapas t ook appellants thumb, dipped it in ink and marked it on the document. 27 Appellant claimed he did not resist because he was afraid of being mauled again. Appellant further denied going to the house of Atty. Reyes or meeting Abad, the alleged interpreter. He never left the jail from the time he was arrested except to attend the hearing before the MTC.28 When appellant was brought to the MTC, nobody talked to him during the hearing nor did counsel assist him.29 He was thereafter brought by a police officer to a hut in a mountain where he was told to go a little bit farther. He refused for fear of being shot. The police officer then got angry and punched him in the stomach.30 On the basis of appellants extrajudicial confession, the RTC found him guilty of b oth crimes. The Court of Appeals upheld the trial court. Appellant submits for our resolution two issues, namely: (1) whether his guilt was proven beyond reasonable doubt; and (2) whether the qualifying circumstance of evident premeditation was likewise proven beyond reasonable doubt. Appellant mainly contends that the extrajudicial confession upon which the trial court placed heavy emphasis to find him guilty suffers from constitutional infirmity as it was extracted in violation of the due process guidelines. Specifically, he claims that he affixed his thumbmark through violence and intimidation. He stresses that he was not informed of his rights during the time of his detention when he was already considered a suspect as the police had already received information of his alleged involvement in the crimes. Neither did a competent and independent counsel assist him from the time he was detained until trial began. Assuming Atty. Reyes was indeed designated as counsel to assist appellant for purposes of the custodial investigation, said lawyer, however, was not appellants personal choice. Appellant likewise maintains that although the Sinumpaang Salaysay states that his rights were read to him, there was no showing that his rights were explained to him in a way that an uneducated person like him could understand. On the assumption that the confession is admissible, appellant asserts that the qualifying circumstance of evident premeditation was not amply proven as the trial court merely relied on his alleged confession without presenting any other proof that the determination to commit the crime was the result of meditation, calculation, reflection or persistent attempt. The Solicitor General, on the other hand, contends that the constitutional guidelines on custodial investigation were observed. Hence, appellants Sinumpaang Salaysay is admissible. Even if appellant was not informed of his constitutional rights at the time of his alleged detention, that would not be relevant, the government counsel argues, since custodial investigation began only when the investigators started to elicit information from him which took place at the time he was brought to

the house of Atty. Reyes. Moreover, appellant did not interpose any objection to having Atty. Reyes as his counsel. As to the qualifying circumstance of evident premeditation, the Solicitor General submits that the same was sufficiently proven when accused proceeded to the victims house together with Regino, armed with bladed weapons, in order to consummate their criminal design. He further argues that appellants defense of denial and his lame excuse of being illiterate must be rejected in the face of a valid voluntary extrajudicial confession. The fundamental issue in this case is whether appellants extrajudi cial confession is admissible in evidence to warrant the verdict of guilt. There is no direct evidence of appellants guilt except for the alleged confession and the corpus delicti. Upon careful examination of the alleged confession and the testimony of the witnesses, we hold that the alleged confession is inadmissible and must perforce be discarded. A confession is admissible in evidence if it is satisfactorily shown to have been obtained within the limits imposed by the 1987 Constitution.31 Sec. 12, Art. III thereof states in part, to wit: SEC. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. xxxx Republic Act No. 7438,32 approved on 15 May 1992, has reinforced the constitutional mandate protecting the rights of persons under custodial investigation. The pertinent provisions read: SEC. 2. Rights of Persons Arrested, Detained or under Custodial Investigation; Duties of Public Officers. a. Any person arrested, detained or under custodial investigation shall at all times be assisted by counsel. b. Any public officer or employee, or anyone acting under his order or his place, who arrests, detains or investigates any person for the commission of an offense shall inform the latter, in a language known to and understood by him, of his rights to remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to confer private

with the person arrested, detained or under custodial investigation. If such person cannot afford the services of his own counsel, he must be provided by with a competent and independent counsel. xxxx f. As used in this Act, "custodial investigation" shall include the practice of issuing an "invitation" to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the "inviting" officer for any violation of law. If the extrajudicial confession satisfies these constitutional standards, it must further be tested for voluntariness, that is, if it was given freely by the confessant without any form of coercion or inducement,33 since, to repeat, Sec. 12(2), Art. III of the Constitution explicitly provides: (2) No torture, force, violence, threat, intimidation or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. Thus, the Court has consistently held that an extrajudicial confession, to be admissible, must conform to the following requisites: 1) the confession must be voluntary; 2) the confession must be made with the assistance of a competent and independent counsel, preferably of the confessants choice; 3) the confession must be express; and 4) the confession must be in writing.34 If all the foregoing requisites are met, the confession constitutes evidence of a high order because it is presumed that no person of normal mind will knowingly and deliberately confess to a crime unless prompted by truth and conscience.35 Otherwise, it is disregarded in accordance with the cold objectivity of the exclusionary rule.36 The latter situation obtains in the instant case for several reasons. Appellant was not informed of his constitutional rights in custodial investigation. A person under custodial investigation essentially has the right to remain silent and to have competent and independent counsel preferably of his own choice and the Constitution requires that he be informed of such rights. The raison d' etre for this requirement was amply explained in People v. Ayson37 where this Court held, to wit: xxxx In Miranda, Chief Justice Warren summarized the procedural safeguards laid down for a person in police custody, "in-custody interrogation" being regarded as the commencement of an adversary proceeding against the suspect. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he

so desires. Opportunity to exercise those rights must be afforded to him throughout the interrogation. After such warnings have been given, such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer or make a statement. But unless and until such warnings and waivers are demonstrated by the prosecution at the trial, no evidence obtained as a result of interrogation can be used against him. The objective is to prohibit "incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statement without full warnings of constitutional rights." The rights above specified, to repeat, exist only in "custodial interrogations," or "in-custody interrogation of accused persons." And, as this Court has already stated, by custodial interrogation is meant "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." The situation contemplated has also been more precisely described by this Court. x x x After a person is arrested and his custodial investigation begins[,] a confrontation arises which at best may be termed unequal. The detainee is brought to an army camp or police headquarters and there questioned and "cross-examined" not only by one but as many investigators as may be necessary to break down his morale. He finds himself in strange and unfamiliar surroundings, and every person he meets he considers hostile to him. The investigators are well-trained and seasoned in their work. They employ all the methods and means that experience and study have taught them to extract the truth, or what may pass for it, out of the detainee. Most detainees are unlettered and are not aware of their constitutional rights. And even if they were, the intimidating and coercive presence of the officers of the law in such an atmosphere overwhelms them into silence. Section 20 of the Bill of Rights seeks to remedy this imbalance. x x x x38 We note that appellant did not voluntarily surrender to the police but was "invited" by SPO2 Gapas to the police station. There he was detained from 11 oclock in the morning of 22 October 1995 up to the morning of 23 October 1995 before his extrajudicial statement was allegedly taken. At this juncture, appellant should have been informed of his constitutional rights as he was already considered a suspect, contrary to the finding of the trial court that the mandatory constitutional guidelines only attached when the investigators started to propound questions to appellant on 23 October 1995 in the house of Atty. Reyes.39 In People v. Dueas, Jr.,40 we ruled, to wit: Custodial investigation refers to the critical pre-trial stage when the investigation ceases to be a general inquiry into an unsolved crime but has begun to focus on a particular person as a suspect. According to PO3 Palmero, right after appellants arrest, the latter already insinuated to him that he would confess his participation in the killing. As he testified on cross-examination: Q On December 18, 1996, when you arrested him what did he actually told [sic] you?

A Before we put him in jail at the Baler Police Station he told us that he has [sic] to reveal something about the death of Elvira Jacob. Q So you already know [sic] that on December 18, 1996 that whatever Catalino Duenas will reveal to you will give you lead in solving the investigation in connection with the death of Elvira Jacob, isnt it? A Yes, sir. Q So, you still waited until December 23, 1996 for that revelation, isnt it? A Yes, sir. Thats all, your honor.41 In the case at bar, SPO2 Gapas testified: Q By the way, when you conducted the investigation in the house of Atty. Reyes in Culion, why was Jerry Rapeza there? A I invited Jerry Rapeza and upon my invitation he voluntarily came to me.

x x x x [Emphasis ours.]42 Already being held as a suspect as early as 21 October 1995, accused should have been informed of his constitutional rights. SPO2 Gapas admitted that appellant was not so informed, thus: Q What was he doing? A He was fishing, sir. Q And you told him that youre going to arrest him? A He did not refuse to go with me, sir. xxxx Q From the Island you brought him to the station? A Yes, sir.

Q In the first place, why did you invite him? Q And there you arrived at the station at around 11:00 oclock in the morning? A To ask [a] question about the crime committed in the Island of Cawa-Cawa. A Yes, sir. xxx Q And then you started to conduct the investigation as Investigator of the Police Station? Q That was the only reason why you invited him, being a transient in that place you made him a suspect? A In the first place[,] Your Honor, he was not a suspect but 2 days after the commission of the crime a certain person came to me and said that Jerry Rapeza requested that he will give his confession but in front of a lawyer, so he said: "Puntahan nating [sic] ang isang taong nagngangalang Jerry Rapeza." xxx Q And based on your experienced [sic], would it not be quite strange that a person who committed a crime would voluntarily give confession because ordinarily a criminals [sic] will find a way to escape? A Yes, sir. [B]ut at that time the person who assisted me strongly believed that Jerry Rapeza would confess so I did not make any "tanong-tanong" in order to solve that crime so I proceeded to that place and talked to the suspect. Q So you already considered Jerry Rapeza as a suspect? Q When did you start the investigation? A When that person informed me that Jerry Rapeza would like to confess. A Yes, sir. xxxx Q And what was the[,] result of your investigation? A According to him he would confess and he would give his confession in the presence of a lawyer so I talked to Kgd. Arnel Alcantara. x x x x43 Q On October 22, 1995[,] when you brought him to the Police Station, did you start the investigation at that time? A Not yet sir, I only talked to him.

A I started the investigation when Jerry Rapeza was in front of his lawyer. Q When was that? A October 23, 1995[,] noon time, sir. Q From the Island you just talked to him? A Yes, sir.

The prosecution underscores the presence of an interpreter in the person of Abad to buttress its claim that appellant was informed of his rights in the dialect known to him. However, the presence of an interpreter during the interrogation was not sufficiently established. Although the confession bears the signature of Abad, it is uncertain whether he was indeed present to assist appellant in making the alleged confession. For one thing, SPO2 Cuizon did not mention Abad as one of the persons present during the interrogation. He testified: Q Who were present during that investigation?

Q You did not consider that as part of the investigation? A Vice Mayor Marasigan and the two other SB members. A Yes sir, my purpose at that time was to certain (sic) the suspect of the said crime. Q Can you identify who are these two SB members? xxxx A SB Mabiran and SB Alcantara. Q Please answer my question[,] Mr. Witness, on October 22, 1995, did you inform him of his constitutional rights? A No sir, I did not. x x x x(Emphasis ours.)44 Even supposing that the custodial investigation started only on 23 October 1995, a review of the records reveals that the taking of appellants confession was flawed nonetheless. It is stated in the alleged confession that prior to questioning SPO2 Gapas had informed appellant in Tagalog of his right to remain silent, that any statement he made could be used in evidence for or against him, that he has a right to counsel of his own choice, and that if he cannot afford the services of one, the police shall provide one for him.45 However, there is no showing that appellant had actually understood his rights. He was not even informed that he may waive such rights only in writing and in the presence of counsel. In order to comply with the constitutional mandates, there should likewise be meaningful communication to and understanding of his rights by the appellant, as opposed to a routine, peremptory and meaningless recital thereof.46 Since comprehension is the objective, the degree of explanation required will necessarily depend on the education, intelligence, and other relevant personal circumstances of the person undergoing investigation.47 In this case, it was established that at the time of the investigation appellant was illiterate and was not well versed in Tagalog.48 This fact should engender a higher degree of scrutiny in determining whether he understood his rights as allegedly communicated to him, as well as the contents of his alleged confession. Q Who else? A No more, sir. Q So, there were two SB members, Vice Mayor Atty. Reyes, Gapas and you? A Yes, sir. x x x x49 For another, the prosecution did not present Abad as witness. Abad would have been in the best position to prove that he indeed made the translation from Tagalog to Waray for appellant to understand what was going on. This significant circumstance lends credence to appellants claim that he had never met Abad. According to the appellate court, appellant admitted in his Brief that the confession was made in the presence of an interpreter. The passage in appellants Brief on which the admission imputed to him was based reads, thus: The extra-judicial confession was allegedly made in Tagalog when accused-appellant is admittedly not well versed in said language. Even if the confession was made in the presence of an interpreter, there is no showing that the rights of a person under investigation were effectively explained and/or interpreted to accused-appellant. The interpreter was not even presented in Court to prove that said rights were translated in a language understood by accused-appellant. 50 Clearly, the imputation is erroneous. Throughout his Brief, appellant disputes the allegation that he ever met the interpreter much less made the confession with the latters assistance. The evident

import of the passage is that on the assumption that there was an interpreter present still there was no indication that the rights of a person under investigation were effectively imparted to appellant, as the interpreter could not translate that which was not even said in the course of the proceeding. Moreover, SPO2 Gapas testified on direct examination: Q As a way of refreshing your mind[,] Mr. Witness, can you take a look at this statement [referring to appellants Sinumpaang Salaysay+ those appearing on page 1 of the same up to the word "Opo sir," kindly take a look at this, do you remember that you were the one who profounded (sic) this (sic) questions? A Yes, sir, I was the one who profounded [sic] that [sic] questions. Q And you are very definite that the answer is in [the] affirmative, in your question and answer? A I am not very sure, sir. Q You are not very sure because he has a lawyer? A Yes, sir. x x x x51 SPO2 Gapas could not say for certain if appellant had indeed understood his rights precisely because he did not explain them to appellant. In any event, SPO2 Gapas would be incompetent to testify thereon because appellants alleged confession was made through an interpreter as he did not understand Tagalog. SPO2 Gapas testimony as regards the contents of appellants confession would in fact be hearsay. In U.S. v. Chu Chio,52 this Court rendered inadmissible the extrajudicial confession of the accused therein because it was not made immediately to the officer who testified, but through an interpreter. Thus, the officer as witness on the stand did not swear of his own knowledge as to what the accused had said. Similarly in this case, SPO2 Gapass testimony as to what was translated to appellant and the latters responses thereto were not of his personal knowledge. Therefore, without the testimony of Abad, it cannot be said with certainty that appellant was informed of his rights and that he understood them. Not having been properly informed of his rights prior to questioning and not having waived them either, the alleged confession of appellant is inadmissible. Confession was not made with the assistance of competent and independent counsel of appellants choice. Appellant denies that he was ever assisted by a lawyer from the moment he was arrested until before he was arraigned. On the other hand, the prosecution admits that appellant was provided with

counsel only when he was questioned at the house of Atty. Reyes to which appellant was allegedly taken from the police station. SPO2 Gapas testified that he "talked" to appellant when they got to the police station at 11 oclock in the morning of 22 October 1995 and the result of their "talk" was that appellant would give his confession in the presence of a lawyer. Appellant was then held in the police station overnight before he was allegedly taken to the house of Atty. Reyes. The constitutional requirement obviously had not been observed. Settled is the rule that the moment a police officer tries to elicit admissions or confessions or even plain information from a suspect, the latter should, at that juncture, be assisted by counsel, unless he waives this right in writing and in the presence of counsel.53 Appellant did not make any such waiver. Assuming that Atty. Reyes did assist appellant, still there would be grave doubts as to his competence and independence as appellants counsel for purposes of the custodial investigation. The meaning of "competent counsel" and the standards therefor were explained in People v. Deniega54 as follows: The lawyer called to be present during such investigations should be as far as reasonably possible, the choice of the individual undergoing questioning. If the lawyer were one furnished in the accuseds behalf, it is important that he should be competent and independent, i.e., that he is willing to fully safeguard the constitutional rights of the accused, as distinguished from one who would be merely be giving a routine, peremptory and meaningless recital of the individuals constitutional rights. In People v. Basay, this Court stressed that an accuseds right to be informed of the right to remain silent and to counsel "contemplates the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle." Ideally therefore, a lawyer engaged for an individual facing custodial investigation (if the latter could not afford one) "should be engaged by the accused (himself), or by the latters relative or person authorized by him to engage an attorney or by the court, upon proper petition of the accused or person authorized by the accused to file such petition." Lawyers engaged by the police, whatever testimonials are given as proof of their probity and supposed independence, are generally suspect, as in many areas, the relationship between lawyers and law enforcement authorities can be symbiotic. x x x The competent or independent lawyer so engaged should be present from the beginning to end, i.e., at all stages of the interview, counseling or advising caution reasonably at every turn of the investigation, and stopping the interrogation once in a while either to give advice to the accused that he may either continue, choose to remain silent or terminate the interview. x x x x (Emphasis supplied)55 The standards of "competent counsel" were not met in this case given the deficiencies of the evidence for the prosecution. Although Atty. Reyes signed the confession as appellants counsel and he himself notarized the statement, there is no evidence on how he assisted appellant. The confession itself and the testimonies of SPO2 Gapas and SPO2 Cuizon bear no indication that Atty.

Reyes had explained to appellant his constitutional rights. Atty. Reyes was not even presented in court to testify thereon whether on direct examination or on rebuttal. It appears that his participation in the proceeding was confined to the notarization of appellants confession. Such participation is not the kind of legal assistance that should be accorded to appellant in legal contemplation. Furthermore, Atty. Reyes was not appellants counsel of choice but was picked out by the police officers allegedly through the barangay officials. Appellants failure to interpose any objection to having Atty. Reyes as his counsel cannot be taken as consent under the prevailing circumstances. As discussed earlier, appellant was not properly informed of his rights, including the right to a counsel preferably of his own choice. SPO2 Gapas testified thus: xxxx Q Now Mr. Witness, you will agree with me that the accused[,] when he allegedly gave his voluntary confession[,] he [sic] did not read the document when he made his thumbmark? A He did not because according to him he is illiterate. Q Illiterate because he only placed his thumbmark and you have all the freedom to manipulate him and in fact he doesnt know that he is entitled to have a lawyer of his own choice? A He doesnt know. x x x x56

First, the confession contains facts and details which appear to have been supplied by the investigators themselves. The voluntariness of a confession may be inferred from its language such that if, upon its face, the confession exhibits no suspicious circumstances tending to cast doubt upon its integrity, it being replete with detailswhich could only be supplied by the accused reflecting spontaneity and coherence, it may be considered voluntary.59 The trial court applied this rule but without basis. On closer examination of the evidence, the key details in the alleged confession were provided not by appellant but by the police officers themselves. The prosecution failed to establish the actual date of the killings. This is disturbing, to say the least. The trial court found that the killings were reported to the police at four oclock in the afternoon of 21 October 1995. That when the investigating team arrived at the scene of the crime, the bodies of the victims were already rank and decomposing,60 and that two days after the crimes were committed, SPO2 Gapas had set out to look for appellant following information from a certain Mr. Dela Cruz that appellant would like to confess to the crimes. Indeed, SPO2 Gapas testified that he received a report of the killings on 21 October 1995 and sent a team to investigate the incident. On direct examination, he declared that two days after the commission of the crime, he received information that appellant would give his confession in front of a lawyer.61 However, on cross-examination, he stated that it was on the following day or on 22 October 1995 when he found appellant and invited him to the police station and that appellant s custodial investigation had taken place on 23 October 1995. Likewise, SPO2 Cuizons testimony is far from enlightening. He testified, thus:

Strikingly, while it was made to appear in the alleged confession that appellant was informed of his right to a counsel of his own choice and that if he cannot afford the services of one, the police shall provide him with one, it was overlooked that it was not similarly made to appear in the same statement that appellant was advised that he had the option to reject the counsel provided for him by the police authorities.57 Set against the clear provisions of the Constitution and the elucidations thereof in jurisprudence, the foregoing lapses on the part of the police authorities preclude the admissibility of appellants alleged confession. Confession is not voluntary.

xxxx Q Now, on October 24, 1995, where were you? A I was in Culion Police Station. Q While you were there in the Police Station, what happened? A A woman reported to us regarding this incident.62 xxxx

It is settled that a confession is presumed voluntary until the contrary is proved and the confessant bears the burden of proving the contrary.58 The trial court found that appellants bare denials failed to overcome this presumption. However, several factors constrain us to hold that the confession was not given under conditions that conduce to its admissibility.

Q When was the investigation conducted? A October 24, 1995. Q On the same day that you discover [sic] the cadavers?

A The investigation was conducted on October 25, 1995. x x x x63 The actual date of the commission of the crimes is material in assessing the credibility of the prosecution witnesses and of the admissibility of the alleged confession. While the prosecution insists through the recitals of the Informations and the testimony of its witnesses that the killings took place on 21 October 1995, the totality of its evidence shows otherwise, i.e. the killings took place earlier. When the bodies were discovered on 21 October 1995, they were already decomposing, a factor that indicates that the victims had been dead long before then. How then could appellant have killed the victims at 4 oclock in the afternoon of 21 October 1995 as expressly stated in the confession, when that was the same date and time when the bodies were discovered? Had appellant voluntarily confessed and had he really been the killer, he would have given the correct date and time when he committed the horrid acts. The only sensible way to sort out the puzzle is to conclude that the police officers themselves supplied 21 October 1995 and four oclock in the afternoon as the date and time of the killings in appellants statement, a barefaced lie on which the prosecution based its allegations in the Informations and which SPO2 Gapas repeated on the witness stand. Moreover, the police officers went to the house of the victims on 21 October 1995 where they found the bodies. The autopsy on the victimss bodies was done the following day or on 22 October 1995 while appellants statement was allegedly taken on 23 October 1995. By then, the investigators knew how and where the victims were killed, circumstances that could have enabled them to fill up the details of the crime in the extrajudicial confession.64 Curiously, the autopsy report on Ganzons body shows that he sustained six (6) stab wounds, four (4) on the right side of his body and two (2) on the left side. Yet, it is stated in appellants extrajudicial confession that he stabbed Ganzon on his left side. Quite oddly, SPO2 Cuizon testified that Ganzon was wounded on the left arm only. His full account on this aspect runs, thus: Q Where did you go?

A Yes, sir[.] I was with POII Macatangay but he was a little bit far from the victim and I was the one who opened the door and went upstairs. Q What did you find out inside the house? A I have seen a woman lying down with her hands "nakadipa" on the ground and blooded (sic). xxxx Q Where else did you go when you were already inside the house? A I went to the other bedroom. Q And what did you find out? A An old man with his face facing downward. Q The woman already dead was in the sala? A Yes, sir. x x x x65 Q Do you know in what bedroom (sic) of her body she was wounded? A The neck was slashed and both arms and both foot (sic) were wounded. Q How about the man? A Left arm, sir. Q Where else? A No more, sir.

A I immediately proceeded to the house of the victim. x x x x66 (Emphasis ours.) Q What did you find out when you went to the house of the victim? A I have seen blood on the ground floor of the house. xxxx Q When you opened the house[,] you are [sic] with Macatangay? The prosecutions evidence likewise fails to establish when the custodial investigation had taken place and for how long appellant had been in detention. Strangely, the confession is undated and it cannot be ascertained from it when appellant made the confession or affixed his thumbmark thereon. What emerges only is the bare fact that it was notarized by Atty. Reyes on 23 October 1995. One can only speculate as to the reason behind what seems to be a lack of forthrightness on the part of the police officers.

These unexplained inconsistencies cast doubt on the integrity and voluntariness of appellants alleged confession. Second, again appellant was not assisted by counsel. To reiterate, the purpose of providing counsel to a person under custodial investigation is to curb the police-state practice of extracting a confession that leads appellant to make self-incriminating statements.67 And in the event the accused desires to give a confession, it is the duty of his counsel to ensure that the accused understands the legal import of his act and that it is a product of his own free choice. It bears repeating that appellant was held in the police station overnight before he was allegedly taken to the house of Atty. Reyes. He was not informed of his rights and there is no evidence that he was assisted by counsel. Thus, the possibility of appellant having been subjected to trickery and intimidation at the hands of the police authorities, as he claims, cannot be entirely discounted. Confession was not sufficiently corroborated. Courts are slow to accept extrajudicial confessions when they are subsequently disputed unless they are corroborated.68 There must be such corroboration so that when considered in connection with the confession, it will show the guilt of accused beyond a reasonable doubt.69 As a general rule, a confession must be corroborated by those to whom the witness who testified thereto refers as having been present at the time the confession was made70 or by any other evidence.71 The inconsistencies in the testimonies of the police officers as well as any lingering doubt as to the credibility of appellants statement could have been laid to rest by the testimonies of Atty. Reyes, of Abad, and of those allegedly present during the custodial investigation. However, they were not presented in court. Abads testimony was likewise crucial in proving that appellant had understood every part of hi s alleged confession. Confessions made in a language or dialect not known to the confessant must also be corroborated by independent evidence.72 As appellant is unschooled and was not familiar with the Tagalog dialect, his confession which was in Tagalog necessarily had to be read and translated to Waray allegedly by Abad. This Court has held that "such a multiple process of reading and translating the questions and translating and typing the answers and reading and translating again the said answers is naturally pregnant with possibilities of human, if unintentional, inadequacies and incompleteness which render the said confession unsafe as basis of conviction for a capital offense, unless sufficiently corroborated."73 A confession may be admissible if it is shown to have been read and translated to the accused by the person taking down the statement and that the accused fully understood every part of it.74 To repeat, we cannot accept SPO2 Gapas testimony as regards the contents of appellants alleged confession for being hearsay evidence thereon. Since appellant

allegedly made the confession to SPO2 Gapas through Abad, Abads testimony is thus indispensable in order to make the confession admissible.1a\^/ Consequently, the non-production of these material witnesses raises a doubt which must be resolved in favor of appellant75 and the confession should be disregarded as evidence.76 Verily, we are left with the unconvincing testimony of two police officers against whose abuse of authority the Constitution protects the appellant. As their respective testimonies are sated with inconsistencies and hearsay evidence, we find the same insufficient bases to hold appellants extrajudicial confession admissible against him. The only other prosecution evidence under consideration are the autopsy reports with which the alleged confession supposedly dovetails, as the trial court concluded. However, a perusal of the alleged confession would reveal that does not fit the details in the autopsy report. As discussed earlier, Ganzon was found to have sustained six (6) stab wounds on different parts of his body while appellant allegedly admitted stabbing him on his left side only. The confession does not even state how many times appellant stabbed the old man. SPO2 Cuizon testified that he saw only one stab wound on Ganzons body and it was on the latters left arm. Thus, it is not with the autopsy reports that the alleged confession dovetails but rather with what the police authorities would like us to believe as the truth. Nevertheless, since the confession is inadmissible, it becomes irrelevant whether it dovetails with the autopsy reports. The corroboration that medico-legal findings lend to an extrajudicial confession becomes relevant only when the latter is considered admissible. In People v. De la Cruz,77 we held, to wit: It is significant that, with the exception of appellants putative extrajudicial confession, no other evidence of his alleged guilt has been presented by the People. The proposition that the medical findings jibe with the narration of appellant as to how he allegedly committed the crimes falls into the fatal error of figuratively putting the horse before the cart. Precisely, the validity and admissibility of the supposed extrajudicial confession are in question and the contents thereof are denied and of serious dubiety, hence the same cannot be used as the basis for such a finding. Otherwise, it would assume that which has still to be proved, a situation of petitio principii or circulo en probando.78 No motive could be ascribed to appellant. For the purpose of meeting the requirement of proof beyond reasonable doubt, motive is essential for conviction when there is doubt as to the identity of the perpetrator.79 In view of the inadmissibility of the confession, there is no other evidence that directly points to appellant as the culprit. However, the prosecution failed to show any motive on appellants part to commit the felonies. Appellant consistently denied having known the victims. Although the confession states that Regino allegedly sought appellants help in killing the victims as Regino was his nephew, the fact of their relationship was denied by appellant and was never established by the prosecution. In People v. Aguilar,80 we held that "the absence of apparent motive to commit the offense charged would, upon

principles of logic, create a presumption of the innocence of the accused, since, in terms of logic, an action without a motive would be an effect without a cause."81 Furthermore, appellants conduct after the killings was not that of a guilty person. He never attempted to flee even if he knew that the police authorities were already investigating the incident as he was summoned to help load the bodies in a banca. Being a transient in the place, he could have easily disappeared and left the island but he remained there to continue looking for work. Taken together, these circumstances generate serious doubts that must be resolved in appellants favor, congruently with the constitutional presumption of innocence. In view of the inadmissibility of appellants confession, which is the sole evidence of the prosecution against him, the resolution of the issue of whether the qualifying circumstance of evident premeditation had attended the commission of the crimes has become academic. Indeed, there exists no other prosecution evidence on which appellants guilt beyond reasonable doubt may be based. In conclusion, the overriding consideration in criminal cases is not whether appellant is completely innocent, but rather whether the quantum of evidence necessary to prove his guilt was sufficiently met. With the exclusion of appellants alleged confession, we are left with no other recourse but to acquit him of the offenses charged for the constitutional right to be presumed innocent until proven guilty can be overcome only by proof beyond reasonable doubt. In fact, unless the prosecution discharges the burden of proving the guilt of the accused beyond reasonable doubt, the latter need not even offer evidence in his behalf.82 WHEREFORE, the Decisions of the Regional Trial Court, Branch 52, Palawan, Puerto Princesa City in Criminal Case Nos. 13064 and 13202 and the Court of Appeals in CA-G.R. CR-H.C. No. 00642 are REVERSED and SET ASIDE. Appellant Jerry Rapeza y Francisco is hereby ACQUITTED for insufficiency of evidence leading to reasonable doubt. The Director of the Bureau of Prisons is ordered to cause the immediate release of appellant from confinement, unless he is being held for some other lawful cause, and to report to this Court compliance herewith within five (5) days from receipt hereof. SO ORDERED.


CONCERNED RESIDENTS OF MANILA BAY, represented and joined by DIVINA V. ILAS, Respondents. December 18, 2008 x-----------------------------------------------------------------------------------------x DECISION VELASCO, JR., J.: The need to address environmental pollution, as a cause of climate change, has of late gained the attention of the international community. Media have finally trained their sights on the ill effects of pollution, the destruction of forests and other critical habitats, oil spills, and the unabated improper disposal of garbage. And rightly so, for the magnitude of environmental destruction is now on a scale few ever foresaw and the wound no longer simply heals by itself.[2] But amidst hard evidence and clear signs of a climate crisis that need bold action, the voice of cynicism, naysayers, and procrastinators can still be heard. This case turns on government agencies and their officers who, by the nature of their respective offices or by direct statutory command, are tasked to protect and preserve, at the first instance, our internal waters, rivers, shores, and seas polluted by human activities. To most of these agencies and their official complement, the pollution menace does not seem to carry the high national priority it deserves, if their track records are to be the norm. Their cavalier attitude towards solving, if not mitigating, the environmental pollution problem, is a sad commentary on bureaucratic efficiency and commitment. At the core of the case is the Manila Bay, a place with a proud historic past, once brimming with marine life and, for so many decades in the past, a spot for different contact recreation activities, but now a dirty and slowly dying expanse mainly because of the abject official indifference of people and institutions that could have otherwise made a difference.


This case started when, on January 29, 1999, respondents Concerned Residents of Manila Bay filed a complaint before the Regional Trial Court (RTC) in Imus, Cavite against several government agencies, among them the petitioners, for the cleanup, rehabilitation, and protection of the Manila Bay. Raffled to Branch 20 and docketed as Civil Case No. 1851-99 of the RTC, the complaint alleged that the water quality of the Manila Bay had fallen way below the allowable standards set by law, specifically

Presidential Decree No. (PD) 1152 or the Philippine Environment Code. This environmental aberration, the complaint stated, stemmed from: x x x [The] reckless, wholesale, accumulated and ongoing acts of omission or commission [of the defendants] resulting in the clear and present danger to public health and in the depletion and contamination of the marine life of Manila Bay, [for which reason] ALL defendants must be held jointly and/or solidarily liable and be collectively ordered to clean up Manila Bay and to restore its water quality to class B waters fit for swimming, skin-diving, and other forms of contact recreation.[3]

The RTC Ordered Petitioners to Clean Up and Rehabilitate Manila Bay On September 13, 2002, the RTC rendered a Decision[5] in favor of respondents. The dispositive portion reads: WHEREFORE, finding merit in the complaint, judgment is hereby rendered ordering the abovenamed defendant-government agencies, jointly and solidarily, to clean up and rehabilitate Manila Bay and restore its waters to SB classification to make it fit for swimming, skin-diving and other forms of contact recreation. To attain this, defendant-agencies, with defendant DENR as the lead agency, are directed, within six (6) months from receipt hereof, to act and perform their respective duties by devising a consolidated, coordinated and concerted scheme of action for the rehabilitation and restoration of the bay. In particular: Defendant MWSS is directed to install, operate and maintain adequate [sewerage] treatment facilities in strategic places under its jurisdiction and increase their capacities. Defendant LWUA, to see to it that the water districts under its wings, provide, construct and operate sewage facilities for the proper disposal of waste. Defendant DENR, which is the lead agency in cleaning up Manila Bay, to install, operate and maintain waste facilities to rid the bay of toxic and hazardous substances. Defendant PPA, to prevent and also to treat the discharge not only of ship-generated wastes but also of other solid and liquid wastes from docking vessels that contribute to the pollution of the bay. Defendant MMDA, to establish, operate and maintain an adequate and appropriate sanitary landfill and/or adequate solid waste and liquid disposal as well as other alternative garbage disposal system such as re-use or recycling of wastes. Defendant DA, through the Bureau of Fisheries and Aquatic Resources, to revitalize the marine life in Manila Bay and restock its waters with indigenous fish and other aquatic animals. Defendant DBM, to provide and set aside an adequate budget solely for the purpose of cleaning up and rehabilitation of Manila Bay. Defendant DPWH, to remove and demolish structures and other nuisances that obstruct the free flow of waters to the bay. These nuisances discharge solid and liquid wastes which eventually end up in Manila Bay. As the construction and engineering arm of the government, DPWH is ordered to actively participate in removing debris, such as carcass of sunken vessels, and other nonbiodegradable garbage in the bay.

In their individual causes of action, respondents alleged that the continued neglect of petitioners in abating the pollution of the Manila Bay constitutes a violation of, among others: (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12) Respondents constitutional right to life, health, and a balanced ecology; The Environment Code (PD 1152); The Pollution Control Law (PD 984); The Water Code (PD 1067); The Sanitation Code (PD 856); The Illegal Disposal of Wastes Decree (PD 825); The Marine Pollution Law (PD 979); Executive Order No. 192; The Toxic and Hazardous Wastes Law (Republic Act No. 6969); Civil Code provisions on nuisance and human relations; The Trust Doctrine and the Principle of Guardianship; and International Law

Inter alia, respondents, as plaintiffs a quo, prayed that petitioners be ordered to clean the Manila Bay and submit to the RTC a concerted concrete plan of action for the purpose. The trial of the case started off with a hearing at the Manila Yacht Club followed by an ocular inspection of the Manila Bay. Renato T. Cruz, the Chief of the Water Quality Management Section, Environmental Management Bureau, Department of Environment and Natural Resources (DENR), testifying for petitioners, stated that water samples collected from different beaches around the Manila Bay showed that the amount of fecal coliform content ranged from 50,000 to 80,000 most probable number (MPN)/ml when what DENR Administrative Order No. 34-90 prescribed as a safe level for bathing and other forms of contact recreational activities, or the SB level, is one not exceeding 200 MPN/100 ml.[4] Rebecca de Vera, for Metropolitan Waterworks and Sewerage System (MWSS) and in behalf of other petitioners, testified about the MWSS efforts to reduce pollution along the Mani la Bay through the Manila Second Sewerage Project. For its part, the Philippine Ports Authority (PPA) presented, as part of its evidence, its memorandum circulars on the study being conducted on ship-generated waste treatment and disposal, and its Linis Dagat (Clean the Ocean) project for the cleaning of wastes accumulated or washed to shore.

Defendant DOH, to closely supervise and monitor the operations of septic and sludge companies and require them to have proper facilities for the treatment and disposal of fecal sludge and sewage coming from septic tanks. Defendant DECS, to inculcate in the minds and hearts of the people through education the importance of preserving and protecting the environment. Defendant Philippine Coast Guard and the PNP Maritime Group, to protect at all costs the Manila Bay from all forms of illegal fishing. No pronouncement as to damages and costs. SO ORDERED. The MWSS, Local Water Utilities Administration (LWUA), and PPA filed before the Court of Appeals (CA) individual Notices of Appeal which were eventually consolidated and docketed as CAG.R. CV No. 76528. On the other hand, the DENR, Department of Public Works and Highways (DPWH), Metropolitan Manila Development Authority (MMDA), Philippine Coast Guard (PCG), Philippine National Police (PNP) Maritime Group, and five other executive departments and agencies filed directly with this Court a petition for review under Rule 45. The Court, in a Resolution of December 9, 2002, sent the said petition to the CA for consolidation with the consolidated appeals of MWSS, LWUA, and PPA, docketed as CA-G.R. SP No. 74944. Petitioners, before the CA, were one in arguing in the main that the pertinent provisions of the Environment Code (PD 1152) relate only to the cleaning of specific pollution incidents and do not cover cleaning in general. And apart from raising concerns about the lack of funds appropriated for cleaning purposes, petitioners also asserted that the cleaning of the Manila Bay is not a ministerial act which can be compelled by mandamus.


The issues before us are two-fold. First, do Sections 17 and 20 of PD 1152 under the headings, Upgrading of Water Quality and Clean-up Operations, envisage a cleanup in general or are they limited only to the cleanup of specific pollution incidents? And second, can petitioners be compelled by mandamus to clean up and rehabilitate the Manila Bay? On August 12, 2008, the Court conducted and heard the parties on oral arguments. Our Ruling We shall first dwell on the propriety of the issuance of mandamus under the premises.

The Cleaning or Rehabilitation of Manila Bay Can be Compelled by Mandamus Generally, the writ of mandamus lies to require the execution of a ministerial duty.[8] A ministerial duty is one that requires neither the exercise of official discretion nor judgment.*9+ It connotes an act in which nothing is left to the disc retion of the person executing it. It is a simple, definite duty arising under conditions admitted or proved to exist and imposed by law.*10+ Mandamus is available to compel action, when refused, on matters involving discretion, but not to direct the exercise of judgment or discretion one way or the other. Petitioners maintain that the MMDAs duty to take measures and maintain adequate solid waste and liquid disposal systems necessarily involves policy evaluation and the exercise of judgment on the part of the agency concerned. They argue that the MMDA, in carrying out its mandate, has to make decisions, including choosing where a landfill should be located by undertaking feasibility studies and cost estimates, all of which entail the exercise of discretion. Respondents, on the other hand, counter that the statutory command is clear and that petitioners duty to comply with and act according to the clear mandate of the law does not require the exercise of discretion. According to respondents, petitioners, the MMDA in particular, are without discretion, for example, to choose which bodies of water they are to clean up, or which discharge or spill they are to contain. By the same token, respondents maintain that petitioners are bereft of discretion on

The CA Sustained the RTC By a Decision*6+ of September 28, 2005, the CA denied petitioners appe al and affirmed the Decision of the RTC in toto, stressing that the trial courts decision did not require petitioners to do tasks outside of their usual basic functions under existing laws.[7] Petitioners are now before this Court praying for the allowance of their Rule 45 petition on the following ground and supporting arguments: THE [CA] DECIDED A QUESTION OF SUBSTANCE NOT HERETOFORE PASSED UPON BY THE HONORABLE COURT, I.E., IT AFFIRMED THE TRIAL COURTS DECISION DECLARING THAT SECTION 20 OF *PD+ 1152 REQUIRES CONCERNED GOVERNMENT AGENCIES TO REMOVE ALL POLLUTANTS SPILLED AND DISCHARGED IN THE WATER SUCH AS FECAL COLIFORMS.

whether or not to alleviate the problem of solid and liquid waste disposal; in other words, it is the MMDAs ministerial duty to attend to such services. We agree with respondents. First off, we wish to state that petitioners obligation to perform t heir duties as defined by law, on one hand, and how they are to carry out such duties, on the other, are two different concepts. While the implementation of the MMDAs mandated tasks may entail a decision -making process, the enforcement of the law or the very act of doing what the law exacts to be done is ministerial in nature and may be compelled by mandamus. We said so in Social Justice Society v. Atienza[11] in which the Court directed the City of Manila to enforce, as a matter of ministerial duty, its Ordinance No. 8027 directing the three big local oil players to cease and desist from operating their business in the so-called Pandacan Terminals within six months from the effectivity of the ordinance. But to illustrate with respect to the instant case, the MMDAs duty to put up an adequate and appropriate sanitary landfill and solid waste and liquid disposal as well as other alternative garbage disposal systems is ministerial, its duty being a statutory imposition. The MMDAs duty in this regard is spe lled out in Sec. 3(c) of Republic Act No. (RA) 7924 creating the MMDA. This section defines and delineates the scope of the MMDAs waste disposal services to include: Solid waste disposal and management which include formulation and implementation of policies, standards, programs and projects for proper and sanitary waste disposal. It shall likewise include the establishment and operation of sanitary land fill and related facilities and the implementation of other alternative programs intended to reduce, reuse and recycle solid waste. (Emphasis added.)

obligation, to perform certain functions relating directly or indirectly to the cleanup, rehabilitation, protection, and preservation of the Manila Bay. They are precluded from choosing not to perform these duties. Consider: (1) The DENR, under Executive Order No. (EO) 192,[15] is the primary agency responsible for the conservation, management, development, and proper use of the countrys environment and natural resources. Sec. 19 of the Philippine Clean Water Act of 2004 (RA 9275), on the other hand, designates the DENR as the primary government agency responsible for its enforcement and implementation, more particularly over all aspects of water quality management. On water pollution, the DENR, under the Acts Sec. 19(k), exercises jurisdiction over all aspects of water pollution, determine*s+ its location, magnitude, extent, severity, causes and effects and other pertinent information on pollution, and [takes] measures, using available methods and technologies, to prevent and abate such pollution. The DENR, under RA 9275, is also tasked to prepare a National Water Quality Status Report, an Integrated Water Quality Management Framework, and a 10-year Water Quality Management Area Action Plan which is nationwide in scope covering the Manila Bay and adjoining areas. Sec. 19 of RA 9275 provides: Sec. 19 Lead Agency.The [DENR] shall be the primary government agency responsible for the implementation and enforcement of this Act x x x unless otherwise provided herein. As such, it shall have the following functions, powers and responsibilities: a) Prepare a National Water Quality Status report within twenty-four (24) months from the effectivity of this Act: Provided, That the Department shall thereafter review or revise and publish annually, or as the need arises, said report; b) Prepare an Integrated Water Quality Management Framework within twelve (12) months following the completion of the status report; c) Prepare a ten (10) year Water Quality Management Area Action Plan within 12 months following the completion of the framework for each designated water management area. Such action plan shall be reviewed by the water quality management area governing board every five (5) years or as need arises.

The MMDA is duty-bound to comply with Sec. 41 of the Ecological Solid Waste Management Act (RA 9003) which prescribes the minimum criteria for the establishment of sanitary landfills and Sec. 42 which provides the minimum operating requirements that each site operator shall maintain in the operation of a sanitary landfill. Complementing Sec. 41 are Secs. 36 and 37 of RA 9003,[12] enjoining the MMDA and local government units, among others, after the effectivity of the law on February 15, 2001, from using and operating open dumps for solid waste and disallowing, five years after such effectivity, the use of controlled dumps. The MMDAs duty in the area of solid waste disposal, as may be noted, is set fo rth not only in the Environment Code (PD 1152) and RA 9003, but in its charter as well. This duty of putting up a proper waste disposal system cannot be characterized as discretionary, for, as earlier stated, discretion presupposes the power or right given by law to public functionaries to act officially according to their judgment or conscience.*13+ A discretionary duty is one that allows a person to exercise judgment and choose to perform or not to perform.*14+ Any suggestion that the MMDA has the opti on whether or not to perform its solid waste disposal-related duties ought to be dismissed for want of legal basis. A perusal of other petitioners respective charters or like enabling statutes and pertinent laws would yield this conclusion: these government agencies are enjoined, as a matter of statutory

The DENR has prepared the status report for the period 2001 to 2005 and is in the process of completing the preparation of the Integrated Water Quality Management Framework.[16] Within twelve (12) months thereafter, it has to submit a final Water Quality Management Area Action Plan.[17] Again, like the MMDA, the DENR should be made to accomplish the tasks assigned to it under RA 9275. Parenthetically, during the oral arguments, the DENR Secretary manifested that the DENR, with the assistance of and in partnership with various government agencies and non-government organizations, has completed, as of December 2005, the final draft of a comprehensive action plan

with estimated budget and time frame, denominated as Operation Plan for the Manila Bay Coastal Strategy, for the rehabilitation, restoration, and rehabilitation of the Manila Bay. The completion of the said action plan and even the implementation of some of its phases should more than ever prod the concerned agencies to fast track what are assigned them under existing laws. (2) The MWSS, under Sec. 3 of RA 6234,[18] is vested with jurisdiction, supervision, and control over all waterworks and sewerage systems in the territory comprising what is now the cities of Metro Manila and several towns of the provinces of Rizal and Cavite, and charged with the duty: (g) To construct, maintain, and operate such sanitary sewerages as may be necessary for the proper sanitation and other uses of the cities and towns comprising the System; x x x

On July 9, 2002, a Memorandum of Agreement was entered into between the DPWH and MMDA, whereby MMDA was made the agency primarily responsible for flood control in Metro Manila. For the rest of the country, DPWH shall remain as the implementing agency for flood control services. The mandate of the MMDA and DPWH on flood control and drainage services shall include the removal of structures, constructions, and encroachments built along rivers, waterways, and esteros (drainages) in violation of RA 7279, PD 1067, and other pertinent laws. (6) The PCG, in accordance with Sec. 5(p) of PD 601, or the Revised Coast Guard Law of 1974, and Sec. 6 of PD 979,[24] or the Marine Pollution Decree of 1976, shall have the primary responsibility of enforcing laws, rules, and regulations governing marine pollution within the territorial waters of the Philippines. It shall promulgate its own rules and regulations in accordance with the national rules and policies set by the National Pollution Control Commission upon consultation with the latter for the effective implementation and enforcement of PD 979. It shall, under Sec. 4 of the law, apprehend violators who: a. discharge, dump x x x harmful substances from or out of any ship, vessel, barge, or any other floating craft, or other man-made structures at sea, by any method, means or manner, into or upon the territorial and inland navigable waters of the Philippines; b. throw, discharge or deposit, dump, or cause, suffer or procure to be thrown, discharged, or deposited either from or out of any ship, barge, or other floating craft or vessel of any kind, or from the shore, wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state into tributary of any navigable water from which the same shall float or be washed into such navigable water; and c. deposit x x x material of any kind in any place on the bank of any navigable water or on the bank of any tributary of any navigable water, where the same shall be liable to be washed into such navigable water, either by ordinary or high tides, or by storms or floods, or otherwise, whereby navigation shall or may be impeded or obstructed or increase the level of pollution of such water.

(3) The LWUA under PD 198 has the power of supervision and control over local water districts. It can prescribe the minimum standards and regulations for the operations of these districts and shall monitor and evaluate local water standards. The LWUA can direct these districts to construct, operate, and furnish facilities and services for the collection, treatment, and disposal of sewerage, waste, and storm water. Additionally, under RA 9275, the LWUA, as attached agency of the DPWH, is tasked with providing sewerage and sanitation facilities, inclusive of the setting up of efficient and safe collection, treatment, and sewage disposal system in the different parts of the country.[19] In relation to the instant petition, the LWUA is mandated to provide sewerage and sanitation facilities in Laguna, Cavite, Bulacan, Pampanga, and Bataan to prevent pollution in the Manila Bay. (4) The Department of Agriculture (DA), pursuant to the Administrative Code of 1987 (EO 292),[20] is designated as the agency tasked to promulgate and enforce all laws and issuances respecting the conservation and proper utilization of agricultural and fishery resources. Furthermore, the DA, under the Philippine Fisheries Code of 1998 (RA 8550), is, in coordination with local government units (LGUs) and other concerned sectors, in charge of establishing a monitoring, control, and surveillance system to ensure that fisheries and aquatic resources in Philippine waters are judiciously utilized and managed on a sustainable basis.[21] Likewise under RA 9275, the DA is charged with coordinating with the PCG and DENR for the enforcement of water quality standards in marine waters.[22] More specifically, its Bureau of Fisheries and Aquatic Resources (BFAR) under Sec. 22(c) of RA 9275 shall primarily be responsible for the prevention and control of water pollution for the development, management, and conservation of the fisheries and aquatic resources. (5) The DPWH, as the engineering and construction arm of the national government, is tasked under EO 292[23] to provide integrated planning, design, and construction services for, among others, flood control and water resource development systems in accordance with national development objectives and approved government plans and specifications. In Metro Manila, however, the MMDA is authorized by Sec. 3(d), RA 7924 to perform metrowide services relating to flood control and sewerage management which include the formulation and implementation of policies, standards, programs and projects for an integrated flood control, drainage and sewerage system.

(7) When RA 6975 or the Department of the Interior and Local Government (DILG) Act of 1990 was signed into law on December 13, 1990, the PNP Maritime Group was tasked to perform all police functions over the Philippine territorial waters and rivers. Under Sec. 86, RA 6975, the police functions of the PCG shall be taken over by the PNP when the latter acquires the capability to perform such functions. Since the PNP Maritime Group has not yet attained the capability to assume and perform the police functions of PCG over marine pollution, the PCG and PNP Maritime Group shall coordinate with regard to the enforcement of laws, rules, and regulations governing marine pollution within the territorial waters of the Philippines. This was made clear in Sec. 124, RA 8550 or the Philippine Fisheries Code of 1998, in which both the PCG and PNP Maritime Group were authorized to enforce said law and other fishery laws, rules, and regulations.[25]

(8) In accordance with Sec. 2 of EO 513, the PPA is mandated to establish, develop, regulate, manage and operate a rationalized national port system in support of trade and national development.*26+ Moreover, Sec. 6-c of EO 513 states that the PPA has police authority within the ports administered by it as may be necessary to carry out its powers and functions and attain its purposes and objectives, without prejudice to the exercise of the functions of the Bureau of Customs and other law enforcement bodies within the area. Such police authority shall include the following: xxxx b) To regulate the entry to, exit from, and movement within the port, of persons and vehicles, as well as movement within the port of watercraft.[27]

structures, constructions, and other encroachments built in violation of RA 7279 and other applicable laws in coordination with the DPWH and concerned agencies. (10) The Department of Health (DOH), under Article 76 of PD 1067 (the Water Code), is tasked to promulgate rules and regulations for the establishment of waste disposal areas that affect the source of a water supply or a reservoir for domestic or municipal use. And under Sec. 8 of RA 9275, the DOH, in coordination with the DENR, DPWH, and other concerned agencies, shall formulate guidelines and standards for the collection, treatment, and disposal of sewage and the establishment and operation of a centralized sewage treatment system. In areas not considered as highly urbanized cities, septage or a mix sewerage-septage management system shall be employed. In accordance with Sec. 72[30] of PD 856, the Code of Sanitation of the Philippines, and Sec. 5.1.1[31] of Chapter XVII of its implementing rules, the DOH is also ordered to ensure the regulation and monitoring of the proper disposal of wastes by private sludge companies through the strict enforcement of the requirement to obtain an environmental sanitation clearance of sludge collection treatment and disposal before these companies are issued their environmental sanitation permit. (11) The Department of Education (DepEd), under the Philippine Environment Code (PD 1152), is mandated to integrate subjects on environmental education in its school curricula at all levels.[32] Under Sec. 118 of RA 8550, the DepEd, in collaboration with the DA, Commission on Higher Education, and Philippine Information Agency, shall launch and pursue a nationwide educational campaign to promote the development, management, conservation, and proper use of the environment. Under the Ecological Solid Waste Management Act (RA 9003), on the other hand, it is directed to strengthen the integration of environmental concerns in school curricula at all levels, with an emphasis on waste management principles.[33] (12) The Department of Budget and Management (DBM) is tasked under Sec. 2, Title XVII of the Administrative Code of 1987 to ensure the efficient and sound utilization of government funds and revenues so as to effectively achieve the countrys development objectives.*34+ One of the countrys development objectives is enshrined in RA 9275 or the Philippine Clean Water Act of 2004. This law stresses that the State shall pursue a policy of economic growth in a manner consistent with the protection, preservation, and revival of the quality of our fresh, brackish, and marine waters. It also provides that it is the policy of the government, among others, to streamline processes and procedures in the prevention, control, and abatement of pollution mechanisms for the protection of water resources; to promote environmental strategies and use of appropriate economic instruments and of control mechanisms for the protection of water resources; to formulate a holistic national program of water quality management that recognizes that issues related to this management cannot be separated from concerns about water sources and ecological protection, water supply, public health, and quality of life; and to provide a comprehensive management program for water pollution focusing on pollution prevention. Thus, the DBM shall then endeavor to provide an adequate budget to attain the noble objectives of RA 9275 in line with the countrys development objectives.

Lastly, as a member of the International Marine Organization and a signatory to the International Convention for the Prevention of Pollution from Ships, as amended by MARPOL 73/78,[28] the Philippines, through the PPA, must ensure the provision of adequate reception facilities at ports and terminals for the reception of sewage from the ships docking in Philippine ports. Thus, the PPA is tasked to adopt such measures as are necessary to prevent the discharge and dumping of solid and liquid wastes and other ship-generated wastes into the Manila Bay waters from vessels docked at ports and apprehend the violators. When the vessels are not docked at ports but within Philippine territorial waters, it is the PCG and PNP Maritime Group that have jurisdiction over said vessels. (9) The MMDA, as earlier indicated, is duty-bound to put up and maintain adequate sanitary landfill and solid waste and liquid disposal system as well as other alternative garbage disposal systems. It is primarily responsible for the implementation and enforcement of the provisions of RA 9003, which would necessary include its penal provisions, within its area of jurisdiction.[29] Among the prohibited acts under Sec. 48, Chapter VI of RA 9003 that are frequently violated are dumping of waste matters in public places, such as roads, canals or esteros, open burning of solid waste, squatting in open dumps and landfills, open dumping, burying of biodegradable or nonbiodegradable materials in flood-prone areas, establishment or operation of open dumps as enjoined in RA 9003, and operation of waste management facilities without an environmental compliance certificate. Under Sec. 28 of the Urban Development and Housing Act of 1992 (RA 7279), eviction or demolition may be allowed when persons or entities occupy danger areas such as esteros, railroad tracks, garbage dumps, riverbanks, shorelines, waterways, and other public places such as sidewalks, roads, parks and playgrounds. The MMDA, as lead agency, in coordination with the DPWH, LGUs, and concerned agencies, can dismantle and remove all structures, constructions, and other encroachments built in breach of RA 7279 and other pertinent laws along the rivers, waterways, and esteros in Metro Manila. With respect to rivers, waterways, and esteros in Bulacan, Bataan, Pampanga, Cavite, and Laguna that discharge wastewater directly or eventually into the Manila Bay, the DILG shall direct the concerned LGUs to implement the demolition and removal of such

All told, the aforementioned enabling laws and issuances are in themselves clear, categorical, and complete as to what are the obligations and mandate of each agency/petitioner under the law. We need not belabor the issue that their tasks include the cleanup of the Manila Bay. Now, as to the crux of the petition. Do Secs. 17 and 20 of the Environment Code encompass the cleanup of water pollution in general, not just specific pollution incidents? Secs. 17 and 20 of the Environment Code Include Cleaning in General The disputed sections are quoted as follows: Section 17. Upgrading of Water Quality.Where the quality of water has deteriorated to a degree where its state will adversely affect its best usage, the government agencies concerned shall take such measures as may be necessary to upgrade the quality of such water to meet the prescribed water quality standards. Section 20. Clean-up Operations.It shall be the responsibility of the polluter to contain, remove and clean-up water pollution incidents at his own expense. In case of his failure to do so, the government agencies concerned shall undertake containment, removal and clean-up operations and expenses incurred in said operations shall be charged against the persons and/or entities responsible for such pollution.

As may be noted, the amendment to Sec. 20 of the Environment Code is more apparent than real since the amendment, insofar as it is relevant to this case, merely consists in the designation of the DENR as lead agency in the cleanup operations. Petitioners contend at every turn that Secs. 17 and 20 of the Environment Code concern themselves only with the matter of cleaning up in specific pollution incidents, as opposed to cleanup in general. They aver that the twin provisions would have to be read alongside the succeeding Sec. 62(g) and (h), which defines the terms cleanup operations and accidental spills, as follows: g. Clean-up Operations [refer] to activities conducted in removing the or spilled in water to restore it to pre-spill condition. pollutants discharged

h. Accidental Spills [refer] to spills of oil or other hazardous substances in water that result from accidents such as collisions and groundings.

When the Clean Water Act (RA 9275) took effect, its Sec. 16 on the subject, Cleanup Operations, amended the counterpart provision (Sec. 20) of the Environment Code (PD 1152). Sec. 17 of PD 1152 continues, however, to be operational.

Petitioners proffer the argument that Secs. 17 and 20 of PD 1152 merely direct the government agencies concerned to undertake containment, removal, and cleaning operations of a specific polluted portion or portions of the body of water concerned. They maintain that the application of said Sec. 20 is limited only to water pollution incidents, which are situations that presuppose the occurrence of specific, isolated pollution events requiring the corresponding containment, removal, and cleaning operations. Pushing the point further, they argue that the aforequoted Sec. 62(g) requires cleanup operations to restore the body of water to pre -spill condition, which means that there must have been a specific incident of either intentional or accidental spillage of oil or other hazardous substances, as mentioned in Sec. 62(h). As a counterpoint, respondents argue that petitioners erroneously read Sec. 62(g) as delimiting the application of Sec. 20 to the containment, removal, and cleanup operations for accidental spills only. Contrary to petitioners posture, respondents assert that Sec. 62(g), in fact, even expanded the coverage of Sec. 20. Respondents explain that without its Sec. 62(g), PD 1152 may have indeed covered only pollution accumulating from the day-to-day operations of businesses around the Manila Bay and other sources of pollution that slowly accumulated in the bay. Respondents, however, emphasize that Sec. 62(g), far from being a delimiting provision, in fact even enlarged the operational scope of Sec. 20, by including accidental spills as among the water pollution incidents contemplated in Sec. 17 in relation to Sec. 20 of PD 1152. To respondents, petitioners parochial view on environmental issues, coupled with their narrow reading of their respective mandated roles, has contributed to the worsening water quality of the Manila Bay. Assuming, respondents assert, that petitioners are correct in saying that the cleanup coverage of Sec. 20 of PD 1152 is constricted by the definiti on of the phrase cleanup operations embodied in Sec. 62(g), Sec. 17 is not hobbled by such limiting definition. As pointed out, the phrases cleanup operations and accidental spills do not appear in said Sec. 17, not even in the chapter where said section is found.

The amendatory Sec. 16 of RA 9275 reads: SEC. 16. Cleanup Operations.Notwithstanding the provisions of Sections 15 and 26 hereof, any person who causes pollution in or pollutes water bodies in excess of the applicable and prevailing standards shall be responsible to contain, remove and clean up any pollution incident at his own expense to the extent that the same water bodies have been rendered unfit for utilization and beneficial use: Provided, That in the event emergency cleanup operations are necessary and the polluter fails to immediately undertake the same, the [DENR] in coordination with other government agencies concerned, shall undertake containment, removal and cleanup operations. Expenses incurred in said operations shall be reimbursed by the persons found to have caused such pollution under proper administrative determination x x x. Reimbursements of the cost incurred shall be made to the Water Quality Management Fund or to such other funds where said disbursements were sourced.

Respondents are correct. For one thing, said Sec. 17 does not in any way state that the government agencies concerned ought to confine themselves to the containment, removal, and cleaning operations when a specific pollution incident occurs. On the contrary, Sec. 17 requires them to act even in the absence of a specific pollution incident, as long as water quality has deteriorated to a degree where its state will adversely affect its best usage. This section, to stress, commands concerned government agencies, when appropriate, to take such measures as may be necessary to meet the prescribed water quality standards. In fine, the underlying duty to upgrade the quality of water is not conditional on the occurrence of any pollution incident. For another, a perusal of Sec. 20 of the Environment Code, as couched, indicates that it is properly applicable to a specific situation in which the pollution is caused by polluters who fail to clean up the mess they left behind. In such instance, the concerned government agencies shall undertake the cleanup work for the polluters account. Petitioners assertion, that they have to perform cleanup operations in the Manila Bay only when there is a water pollution incident and the erring polluters do not undertake the containment, removal, and cleanup operations, is quite off mark. As earlier discussed, the complementary Sec. 17 of the Environment Code comes into play and the specific duties of the agencies to clean up come in even if there are no pollution incidents staring at them. Petitioners, thus, cannot plausibly invoke and hide behind Sec. 20 of PD 1152 or Sec. 16 of RA 9275 on the pretext that their cleanup mandate depends on the happening of a specific pollution incident. In this regard, what the CA said with respect to the impasse over Secs. 17 and 20 of PD 1152 is at once valid as it is practical. The appellate court wrote: PD 1152 aims to introduce a comprehensive program of environmental protection and management. This is better served by making Secs. 17 & 20 of general application rather than limiting them to specific pollution incidents.*35+ Granting arguendo that petitioners position thus described vis --vis the implementation of Sec. 20 is correct, they seem to have overlooked the fact that the pollution of the Manila Bay is of such magnitude and scope that it is well-nigh impossible to draw the line between a specific and a general pollution incident. And such impossibility extends to pinpointing with reasonable certainty who the polluters are. We note that Sec. 20 of PD 1152 mentions water pollution incidents which may be caused by polluters in the waters of the Manila Bay itself or by polluters in adjoining lands and in water bodies or waterways that empty into the bay. Sec. 16 of RA 9275, on the other hand, specifically adverts to any person who causes pollution in or pollutes water bodies, which may refer to an individual or an establishment that pollutes the land mass near the Manila Bay or the waterways, such that the contaminants eventually end up in the bay. In this situation, the water pollution incidents are so numerous and involve nameless and faceless polluters that they can validly be categorized as beyond the specific pollution incident level. Not to be ignored of course is the reality that the government agencies concerned are so undermanned that it would be almost impossible to apprehend the numerous polluters of the Manila Bay. It may perhaps not be amiss to say that the apprehension, if any, of the Manila Bay polluters has been few and far between. Hence, practically nobody has been required to contain, remove, or clean up a given water pollution incident. In this kind of setting, it behooves the Government to step in and

undertake cleanup operations. Thus, Sec. 16 of RA 9275, previously Sec. 20 of PD 1152, covers for all intents and purposes a general cleanup situation. The cleanup and/or restoration of the Manila Bay is only an aspect and the initial stage of the long-term solution. The preservation of the water quality of the bay after the rehabilitation process is as important as the cleaning phase. It is imperative then that the wastes and contaminants found in the rivers, inland bays, and other bodies of water be stopped from reaching the Manila Bay. Otherwise, any cleanup effort would just be a futile, cosmetic exercise, for, in no time at all, the Manila Bay water quality would again deteriorate below the ideal minimum standards set by PD 1152, RA 9275, and other relevant laws. It thus behooves the Court to put the heads of the petitioner-department-agencies and the bureaus and offices under them on continuing notice about, and to enjoin them to perform, their mandates and duties towards cleaning up the Manila Bay and preserving the quality of its water to the ideal level. Under what other judicial discipline describes as continuing mandamus,*36+ the Court may, under extraordinary circumstances, issue directives with the end in view of ensuring that its decision would not be set to naught by administrative inaction or indifference. In India, the doctrine of continuing mandamus was used to enforce directives of the court to clean up the length of the Ganges River from industrial and municipal pollution.[37] The Court can take judicial notice of the presence of shanties and other unauthorized structures which do not have septic tanks along the Pasig-Marikina-San Juan Rivers, the National Capital Region (NCR) (Paraaque-Zapote, Las Pias) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, the Meycuayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other minor rivers and connecting waterways, river banks, and esteros which discharge their waters, with all the accompanying filth, dirt, and garbage, into the major rivers and eventually the Manila Bay. If there is one factor responsible for the pollution of the major river systems and the Manila Bay, these unauthorized structures would be on top of the list. And if the issue of illegal or unauthorized structures is not seriously addressed with sustained resolve, then practically all efforts to cleanse these important bodies of water would be for naught. The DENR Secretary said as much.[38] Giving urgent dimension to the necessity of removing these illegal structures is Art. 51 of PD 1067 or the Water Code,[39] which prohibits the building of structures within a given length along banks of rivers and other waterways. Art. 51 reads: The banks of rivers and streams and the shores of the seas and lakes throughout their entire length and within a zone of three (3) meters in urban areas, twenty (20) meters in agricultural areas and forty (40) meters in forest areas, along their margins, are subject to the easement of public use in the interest of recreation, navigation, floatage, fishing and salvage. No person shall be allowed to stay in this zone longer than what is necessary for recreation, navigation, floatage, fishing or salvage or to build structures of any kind. (Emphasis added.)

Judicial notice may likewise be taken of factories and other industrial establishments standing along or near the banks of the Pasig River, other major rivers, and connecting waterways. But while

they may not be treated as unauthorized constructions, some of these establishments undoubtedly contribute to the pollution of the Pasig River and waterways. The DILG and the concerned LGUs, have, accordingly, the duty to see to it that non-complying industrial establishments set up, within a reasonable period, the necessary waste water treatment facilities and infrastructure to prevent their industrial discharge, including their sewage waters, from flowing into the Pasig River, other major rivers, and connecting waterways. After such period, non-complying establishments shall be shut down or asked to transfer their operations. At this juncture, and if only to dramatize the urgency of the need for petitioners-agencies to comply with their statutory tasks, we cite the Asian Development Bank-commissioned study on the garbage problem in Metro Manila, the results of which are embodied in the The Garbage Book. As there reported, the garbage crisis in the metropolitan area is as alarming as it is shocking. Some highlights of the report: 1. As early as 2003, three land-filled dumpsites in Metro Manila - the Payatas, Catmon and Rodriquez dumpsites - generate an alarming quantity of lead and leachate or liquid run-off. Leachate are toxic liquids that flow along the surface and seep into the earth and poison the surface and groundwater that are used for drinking, aquatic life, and the environment. 2. The high level of fecal coliform confirms the presence of a large amount of human waste in the dump sites and surrounding areas, which is presumably generated by households that lack alternatives to sanitation. To say that Manila Bay needs rehabilitation is an understatement. 3. Most of the deadly leachate, lead and other dangerous contaminants and possibly strains of pathogens seeps untreated into ground water and runs into the Marikina and Pasig River systems and Manila Bay.[40] Given the above perspective, sufficient sanitary landfills should now more than ever be established as prescribed by the Ecological Solid Waste Management Act (RA 9003). Particular note should be taken of the blatant violations by some LGUs and possibly the MMDA of Sec. 37, reproduced below: Sec. 37. Prohibition against the Use of Open Dumps for Solid Waste.No open dumps shall be established and operated, nor any practice or disposal of solid waste by any person, including LGUs which [constitute] the use of open dumps for solid waste, be allowed after the effectivity of this Act: Provided, further that no controlled dumps shall be allowed (5) years following the effectivity of this Act. (Emphasis added.)

facilities simply discharge sludge into the Metro Manila sewerage system that ends up in the Manila Bay. Equally unabated are violations of Sec. 27 of RA 9275, which enjoins the pollution of water bodies, groundwater pollution, disposal of infectious wastes from vessels, and unauthorized transport or dumping into sea waters of sewage or solid waste and of Secs. 4 and 102 of RA 8550 which proscribes the introduction by human or machine of substances to the aquatic environment including dumping/disposal of waste and other marine litters, discharge of petroleum or residual products of petroleum of carbonaceous materials/substances [and other] radioactive, noxious or harmful liquid, gaseous or solid substances, from any water, land or air transport or other human-made structure. In the light of the ongoing environmental degradation, the Court wishes to emphasize the extreme necessity for all concerned executive departments and agencies to immediately act and discharge their respective official duties and obligations. Indeed, time is of the essence; hence, there is a need to set timetables for the performance and completion of the tasks, some of them as defined for them by law and the nature of their respective offices and mandates. The importance of the Manila Bay as a sea resource, playground, and as a historical landmark cannot be over-emphasized. It is not yet too late in the day to restore the Manila Bay to its former splendor and bring back the plants and sea life that once thrived in its blue waters. But the tasks ahead, daunting as they may be, could only be accomplished if those mandated, with the help and cooperation of all civic-minded individuals, would put their minds to these tasks and take responsibility. This means that the State, through petitioners, has to take the lead in the preservation and protection of the Manila Bay. The era of delays, procrastination, and ad hoc measures is over. Petitioners must transcend their limitations, real or imaginary, and buckle down to work before the problem at hand becomes unmanageable. Thus, we must reiterate that different government agencies and instrumentalities cannot shirk from their mandates; they must perform their basic functions in cleaning up and rehabilitating the Manila Bay. We are disturbed by petitioners hiding behind two untenable claims: (1) that there ought to be a specific pollution incident before they are required to act; and (2) that the cleanup of the bay is a discretionary duty. RA 9003 is a sweeping piece of legislation enacted to radically transform and improve waste management. It implements Sec. 16, Art. II of the 1987 Constitution, which explicitly provides that the State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. So it was that in Oposa v. Factoran, Jr. the Court stated that the right to a balanced and healthful ecology need not even be written in the Constitution for it is assumed, like other civil and political rights guaranteed in the Bill of Rights, to exist from the inception of mankind and it is an issue of transcendental importance with intergenerational implications.[41] Even assuming the absence of a categorical legal provision specifically prodding petitioners to clean up the bay, they and the men and women representing them cannot escape their obligation to future generations of Filipinos to keep the waters of the Manila Bay clean and clear as humanly as possible. Anything less would be a betrayal of the trust reposed in them.

RA 9003 took effect on February 15, 2001 and the adverted grace period of five (5) years which ended on February 21, 2006 has come and gone, but no single sanitary landfill which strictly complies with the prescribed standards under RA 9003 has yet been set up. In addition, there are rampant and repeated violations of Sec. 48 of RA 9003, like littering, dumping of waste matters in roads, canals, esteros, and other public places, operation of open dumps, open burning of solid waste, and the like. Some sludge companies which do not have proper disposal

WHEREFORE, the petition is DENIED. The September 28, 2005 Decision of the CA in CA-G.R. CV No. 76528 and SP No. 74944 and the September 13, 2002 Decision of the RTC in Civil Case No. 185199 are AFFIRMED but with MODIFICATIONS in view of subsequent developments or supervening events in the case. The fallo of the RTC Decision shall now read: WHEREFORE, judgment is hereby rendered ordering the abovenamed defendant-government agencies to clean up, rehabilitate, and preserve Manila Bay, and restore and maintain its waters to SB level (Class B sea waters per Water Classification Tables under DENR Administrative Order No. 34 [1990]) to make them fit for swimming, skin-diving, and other forms of contact recreation. In particular: (1) Pursuant to Sec. 4 of EO 192, assigning the DENR as the primary agency responsible for the conservation, management, development, and proper use of the countrys environment and na tural resources, and Sec. 19 of RA 9275, designating the DENR as the primary government agency responsible for its enforcement and implementation, the DENR is directed to fully implement its Operational Plan for the Manila Bay Coastal Strategy for the rehabilitation, restoration, and conservation of the Manila Bay at the earliest possible time. It is ordered to call regular coordination meetings with concerned government departments and agencies to ensure the successful implementation of the aforesaid plan of action in accordance with its indicated completion schedules. (2) Pursuant to Title XII (Local Government) of the Administrative Code of 1987 and Sec. 25 of the Local Government Code of 1991,*42+ the DILG, in exercising the Presidents po wer of general supervision and its duty to promulgate guidelines in establishing waste management programs under Sec. 43 of the Philippine Environment Code (PD 1152), shall direct all LGUs in Metro Manila, Rizal, Laguna, Cavite, Bulacan, Pampanga, and Bataan to inspect all factories, commercial establishments, and private homes along the banks of the major river systems in their respective areas of jurisdiction, such as but not limited to the Pasig-Marikina-San Juan Rivers, the NCR (Paraaque-Zapote, Las Pias) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other minor rivers and waterways that eventually discharge water into the Manila Bay; and the lands abutting the bay, to determine whether they have wastewater treatment facilities or hygienic septic tanks as prescribed by existing laws, ordinances, and rules and regulations. If none be found, these LGUs shall be ordered to require non-complying establishments and homes to set up said facilities or septic tanks within a reasonable time to prevent industrial wastes, sewage water, and human wastes from flowing into these rivers, waterways, esteros, and the Manila Bay, under pain of closure or imposition of fines and other sanctions. (3) As mandated by Sec. 8 of RA 9275,[43] the MWSS is directed to provide, install, operate, and maintain the necessary adequate waste water treatment facilities in Metro Manila, Rizal, and Cavite where needed at the earliest possible time.

(4) Pursuant to RA 9275,[44] the LWUA, through the local water districts and in coordination with the DENR, is ordered to provide, install, operate, and maintain sewerage and sanitation facilities and the efficient and safe collection, treatment, and disposal of sewage in the provinces of Laguna, Cavite, Bulacan, Pampanga, and Bataan where needed at the earliest possible time. (5) Pursuant to Sec. 65 of RA 8550,[45] the DA, through the BFAR, is ordered to improve and restore the marine life of the Manila Bay. It is also directed to assist the LGUs in Metro Manila, Rizal, Cavite, Laguna, Bulacan, Pampanga, and Bataan in developing, using recognized methods, the fisheries and aquatic resources in the Manila Bay. (6) The PCG, pursuant to Secs. 4 and 6 of PD 979, and the PNP Maritime Group, in accordance with Sec. 124 of RA 8550, in coordination with each other, shall apprehend violators of PD 979, RA 8550, and other existing laws and regulations designed to prevent marine pollution in the Manila Bay. (7) Pursuant to Secs. 2 and 6-c of EO 513[46] and the International Convention for the Prevention of Pollution from Ships, the PPA is ordered to immediately adopt such measures to prevent the discharge and dumping of solid and liquid wastes and other ship-generated wastes into the Manila Bay waters from vessels docked at ports and apprehend the violators. (8) The MMDA, as the lead agency and implementor of programs and projects for flood control projects and drainage services in Metro Manila, in coordination with the DPWH, DILG, affected LGUs, PNP Maritime Group, Housing and Urban Development Coordinating Council (HUDCC), and other agencies, shall dismantle and remove all structures, constructions, and other encroachments established or built in violation of RA 7279, and other applicable laws along the Pasig-Marikina-San Juan Rivers, the NCR (Paraaque-Zapote, Las Pias) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, and connecting waterways and esteros in Metro Manila. The DPWH, as the principal implementor of programs and projects for flood control services in the rest of the country more particularly in Bulacan, Bataan, Pampanga, Cavite, and Laguna, in coordination with the DILG, affected LGUs, PNP Maritime Group, HUDCC, and other concerned government agencies, shall remove and demolish all structures, constructions, and other encroachments built in breach of RA 7279 and other applicable laws along the Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other rivers, connecting waterways, and esteros that discharge wastewater into the Manila Bay. In addition, the MMDA is ordered to establish, operate, and maintain a sanitary landfill, as prescribed by RA 9003, within a period of one (1) year from finality of this Decision. On matters within its territorial jurisdiction and in connection with the discharge of its duties on the maintenance of sanitary landfills and like undertakings, it is also ordered to cause the apprehension and filing of the appropriate criminal cases against violators of the respective penal provisions of RA 9003,[47] Sec. 27 of RA 9275 (the Clean Water Act), and other existing laws on pollution. (9) The DOH shall, as directed by Art. 76 of PD 1067 and Sec. 8 of RA 9275, within one (1) year from finality of this Decision, determine if all licensed septic and sludge companies have the proper facilities for the treatment and disposal of fecal sludge and sewage coming from septic tanks. The

DOH shall give the companies, if found to be non-complying, a reasonable time within which to set up the necessary facilities under pain of cancellation of its environmental sanitation clearance. (10) Pursuant to Sec. 53 of PD 1152,[48] Sec. 118 of RA 8550, and Sec. 56 of RA 9003,[49] the DepEd shall integrate lessons on pollution prevention, waste management, environmental protection, and like subjects in the school curricula of all levels to inculcate in the minds and hearts of students and, through them, their parents and friends, the importance of their duty toward achieving and maintaining a balanced and healthful ecosystem in the Manila Bay and the entire Philippine archipelago. (11) The DBM shall consider incorporating an adequate budget in the General Appropriations Act of 2010 and succeeding years to cover the expenses relating to the cleanup, restoration, and preservation of the water quality of the Manila Bay, in line with the countrys development objective to attain economic growth in a manner consistent with the protection, preservation, and revival of our marine waters. (12) The heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA, DPWH, DBM, PCG, PNP Maritime Group, DILG, and also of MWSS, LWUA, and PPA, in line with the principle of continuing mandamus, shall, from finality of this Decision, each submit to the Court a quarterly progressive report of the activities undertaken in accordance with this Decision. No costs. SO ORDERED. G.R. No. 168338 February 15, 2008

Staff,2Social Weather Stations v. COMELEC,3 and Bayan v. Executive Secretary Ermita.4 When on its face, it is clear that a governmental act is nothing more than a naked means to prevent the free exercise of speech, it must be nullified. B. The Facts 1. The case originates from events that occurred a year after the 2004 national and local elections. On June 5, 2005, Press Secretary Ignacio Bunye told reporters that the opposition was planning to destabilize the administration by releasing an audiotape of a mobile phone conversation allegedly between the President of the Philippines, Gloria Macapagal Arroyo, and a high-ranking official of the Commission on Elections (COMELEC). The conversation was audiotaped allegedly through wiretapping.5 Later, in a Malacaang press briefing, Secretary Bunye produced two versions of the tape, one supposedly the complete version, and the other, a spliced, doctored or altered version, which would suggest that the President had instructed the COMELEC official to manipulate the election results in the Presidents favor. 6 It seems that Secretary Bunye admitted that the voice was that of President Arroyo, but subsequently made a retraction. 7 2. On June 7, 2005, former counsel of deposed President Joseph Estrada, Atty. Alan Paguia, subsequently released an alleged authentic tape recording of the wiretap. Included in the tapes were purported conversations of the President, the First Gentleman Jose Miguel Arroyo, COMELEC Commissioner Garcillano, and the late Senator Barbers.8 3. On June 8, 2005, respondent Department of Justice (DOJ) Secretary Raul Gonzales warned reporters that those who had copies of the compact disc (CD) and those broadcasting or publishing its contents could be held liable under the Anti-Wiretapping Act. These persons included Secretary Bunye and Atty. Paguia. He also stated that persons possessing or airing said tapes were committing a continuing offense, subject to arrest by anybody who had personal knowledge if the crime was committed or was being committed in their presence.9 4. On June 9, 2005, in another press briefing, Secretary Gonzales ordered the National Bureau of Investigation (NBI) to go after media organizations found to have caused the spread , the playing and the printing of the contents of a tape of an alleged wiretapped conversation involving the President about fixing votes in the 2004 national elections. Gonzales said that he was going to start with, a joint venture between the Philippine Daily Inquirer and GMA7 television network, because by the very nature of the Internet medium, it was able to disseminate the contents of the tape more widely. He then expressed his intention of inviting the editors and managers of and GMA7 to a probe, and supposedly declared, I *have+ asked the NBI to conduct a tactical interrogation of all concerned. 10 5. On June 11, 2005, the NTC issued this press release: 11 NTC GIVES FAIR WARNING TO RADIO AND TELEVISION OWNERS/OPERATORS TO OBSERVE ANTIWIRETAPPING LAW AND PERTINENT CIRCULARS ON PROGRAM STANDARDS

FRANCISCO CHAVEZ, petitioner, vs. RAUL M. GONZALES, in his capacity as the Secretary of the Department of Justice; and NATIONAL TELECOMMUNICATIONS COMMISSION (NTC), respondents. DECISION PUNO, C.J.: A. Precis In this jurisdiction, it is established that freedom of the press is crucial and so inextricably woven into the right to free speech and free expression, that any attempt to restrict it must be met with an examination so critical that only a danger that is clear and present would be allowed to curtail it. Indeed, we have not wavered in the duty to uphold this cherished freedom. We have struck down laws and issuances meant to curtail this right, as in Adiong v. COMELEC,1Burgos v. Chief of

xxx xxx xxx Taking into consideration the countrys unusual situation, and in order not to unnecessarily aggravate the same, the NTC warns all radio stations and television network owners/operators that the conditions of the authorization and permits issued to them by Government like the Provisional Authority and/or Certificate of Authority explicitly provides that said companies shall not use [their] stations for the broadcasting or telecasting of false information or willful misrepresentation. Relative thereto, it has come to the attention of the [NTC] that certain personalities are in possession of alleged taped conversations which they claim involve the President of the Philippines and a Commissioner of the COMELEC regarding supposed violation of election laws. These personalities have admitted that the taped conversations are products of illegal wiretapping operations. Considering that these taped conversations have not been duly authenticated nor could it be said at this time that the tapes contain an accurate or truthful representation of what was recorded therein, it is the position of the [NTC] that the continuous airing or broadcast of the said taped conversations by radio and television stations is a continuing violation of the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of Authority issued to these radio and television stations. It has been subsequently established that the said tapes are false and/or fraudulent after a prosecution or appropriate investigation, the concerned radio and television companies are hereby warned that their broadcast/airing of such false information and/or willful misrepresentation shall be just cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to the said companies. In addition to the above, the [NTC] reiterates the pertinent NTC circulars on program standards to be observed by radio and television stations. NTC Memorandum Circular 111-12-85 explicitly states, among others, that all radio broadcasting and television stations shall, during any broadcast or telecast, cut off from the air the speech, play, act or scene or other matters being broadcast or telecast the tendency thereof is to disseminate false information or such other willful misrepresentation, or to propose and/or incite treason, rebellion or sedition. The foregoing directive had been reiterated by NTC Memorandum Circular No. 22-89, which, in addition thereto, prohibited radio, broadcasting and television stations from using their stations to broadcast or telecast any speech, language or scene disseminating false information or willful misrepresentation, or inciting, encouraging or assisting in subversive or treasonable acts. The [NTC] will not hesitate, after observing the requirements of due process, to apply with full force the provisions of said Circulars and their accompanying sanctions on erring radio and television stations and their owners/operators. 6. On June 14, 2005, NTC held a dialogue with the Board of Directors of the Kapisanan ng mga Brodkaster sa Pilipinas (KBP). NTC allegedly assured the KBP that the press release did not violate the constitutional freedom of speech, of expression, and of the press, and the right to information. Accordingly, NTC and KBP issued a Joint Press Statement which states, among others, that: 12 NTC respects and will not hinder freedom of the press and the right to information on matters of public concern. KBP & its members have always been committed to the exercise of press freedom with high sense of responsibility and discerning judgment of fairness and honesty. NTC did not issue any MC [Memorandum Circular] or Order constituting a restraint of press freedom or censorship. The NTC further denies and does not intend to limit or restrict the interview of members of the opposition or free expression of views. What is being asked by NTC is that the exercise of press freedom [be] done responsibly. KBP has program standards that KBP members will observe in the treatment of news and public affairs programs. These include verification of sources, non-airing of materials that would constitute inciting to sedition and/or rebellion. The KBP Codes also require that no false statement or willful misrepresentation is made in the treatment of news or commentaries. The supposed wiretapped tapes should be treated with sensitivity and handled responsibly giving due consideration to the process being undertaken to verify and validate the authenticity and actual content of the same. C. The Petition Petitioner Chavez filed a petition under Rule 65 of the Rules of Court against respondents Secretary Gonzales and the NTC, praying for the issuance of the writs of certiorari and prohibition, as extraordinary legal remedies, to annul void proceedings, and to prevent the unlawful, unconstitutional and oppressive exercise of authority by the respondents.13 Alleging that the acts of respondents are violations of the freedom on expression and of the press, and the right of the people to information on matters of public concern,14 petitioner specifically asked this Court: [F]or [the] nullification of acts, issuances, and orders of respondents committed or made since June 6, 2005 until the present that curtail the publics rights to freedom of expression and of the press, and to information on matters of public concern specifically in relation to information regarding the controversial taped conversion of President Arroyo and for prohibition of the further commission of such acts, and making of such issuances, and orders by respondents. 15 Respondents16 denied that the acts transgress the Constitution, and questioned petitioners legal standing to file the petition. Among the arguments they raised as to the validity of the fair warning issued by respondent NTC, is that broadcast media enjoy lesser constitutional guarantees compared to print media, and the warning was issued pursuant to the NTCs mandate to regulate the telecommunications industry. 17 It was also stressed that most of the *television+ and radio stations continue, even to this date, to air the tapes, but of late within the parameters agreed upon between the NTC and KBP. 18 D. The Procedural Threshold: Legal Standing

To be sure, the circumstances of this case make the constitutional challenge peculiar. Petitioner, who is not a member of the broadcast media, prays that we strike down the acts and statements made by respondents as violations of the right to free speech, free expression and a free press. For another, the recipients of the press statements have not come forward neither intervening nor joining petitioner in this action. Indeed, as a group, they issued a joint statement with respondent NTC that does not complain about restraints on freedom of the press. It would seem, then, that petitioner has not met the requisite legal standing, having failed to allege such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the Court so largely depends for illumination of difficult constitutional questions. 19 But as early as half a century ago, we have already held that where serious constitutional questions are involved, the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside if we must, technicalities of procedure. 20 Subsequently, this Court has repeatedly and consistently refused to wield procedural barriers as impediments to its addressing and resolving serious legal questions that greatly impact on public interest,21 in keeping with the Courts duty under the 1987 Constitution to determine whether or not other branches of government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them. Thus, in line with the liberal policy of this Court on locus standi when a case involves an issue of overarching significance to our society,22 we therefore brush aside technicalities of procedure and take cognizance of this petition,23 seeing as it involves a challenge to the most exalted of all the civil rights, the freedom of expression. The petition raises other issues like the extent of the right to information of the public. It is fundamental, however, that we need not address all issues but only the most decisive one which in the case at bar is whether the acts of the respondents abridge freedom of speech and of the press. But aside from the primordial issue of determining whether free speech and freedom of the press have been infringed, the case at bar also gives this Court the opportunity: (1) to distill the essence of freedom of speech and of the press now beclouded by the vagaries of motherhood statements; (2) to clarify the types of speeches and their differing restraints allowed by law; (3) to discuss the core concepts of prior restraint, content-neutral and content-based regulations and their constitutional standard of review; (4) to examine the historical difference in the treatment of restraints between print and broadcast media and stress the standard of review governing both; and (5) to call attention to the ongoing blurring of the lines of distinction between print and broadcast media. E. Re-examining The law on freedom of speech, of expression and of the press No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.24

Freedom of expression has gained recognition as a fundamental principle of every democratic government, and given a preferred right that stands on a higher level than substantive economic freedom or other liberties. The cognate rights codified by Article III, Section 4 of the Constitution, copied almost verbatim from the First Amendment of the U.S. Bill of Rights,25 were considered the necessary consequence of republican institutions and the complement of free speech.26 This preferred status of free speech has also been codified at the international level, its recognition now enshrined in international law as a customary norm that binds all nations.27 In the Philippines, the primacy and high esteem accorded freedom of expression is a fundamental postulate of our constitutional system. 28 This right was elevated to constitutional status in the 1935, the 1973 and the 1987 Constitutions, reflecting our own lesson of history, both political and legal, that freedom of speech is an indispensable condition for nearly every other form of freedom.29 Moreover, our history shows that the struggle to protect the freedom of speech, expression and the press was, at bottom, the struggle for the indispensable preconditions for the exercise of other freedoms.30 For it is only when the people have unbridled access to information and the press that they will be capable of rendering enlightened judgments. In the oft-quoted words of Thomas Jefferson, we cannot both be free and ignorant. E.1. Abstraction of Free Speech Surrounding the freedom of speech clause are various concepts that we have adopted as part and parcel of our own Bill of Rights provision on this basic freedom.31 What is embraced under this provision was discussed exhaustively by the Court in Gonzales v. Commission on Elections, 32 in which it was held: At the very least, free speech and free press may be identified with the liberty to discuss publicly and truthfully any matter of public interest without censorship and punishment. There is to be no previous restraint on the communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt proceedings unless there be a clear and present danger of substantive evil that Congress has a right to prevent. 33 Gonzales further explained that the vital need of a constitutional democracy for freedom of expression is undeniable, whether as a means of assuring individual self-fulfillment; of attaining the truth; of assuring participation by the people in social, including political, decision-making; and of maintaining the balance between stability and change.34 As early as the 1920s, the trend as reflected in Philippine and American decisions was to recognize the broadest scope and assure the widest latitude for this constitutional guarantee. The trend represents a profound commitment to the principle that debate on public issue should be uninhibited, robust, and wide-open. 35 Freedom of speech and of the press means something more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, and to take refuge in the existing climate of opinion on any matter of public consequence.36 When atrophied, the right becomes meaningless.37 The right belongs as wellif not moreto those who question, who do not conform, who differ.38 The ideas that may be expressed under this freedom are confined not only to

those that are conventional or acceptable to the majority. To be truly meaningful, freedom of speech and of the press should allow and even encourage the articulation of the unorthodox view, though it be hostile to or derided by others; or though such view induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.39 To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the thought that agrees with us. 40 The scope of freedom of expression is so broad that it extends protection to nearly all forms of communication. It protects speech, print and assembly regarding secular as well as political causes, and is not confined to any particular field of human interest. The protection covers myriad matters of public interest or concern embracing all issues, about which information is needed or appropriate, so as to enable members of society to cope with the exigencies of their period. The constitutional protection assures the broadest possible exercise of free speech and free press for religious, political, economic, scientific, news, or informational ends, inasmuch as the Constitutions basic guarantee of freedom to advocate ideas is not confined to the expression of ideas that are conventional or shared by a majority. The constitutional protection is not limited to the exposition of ideas. The protection afforded free speech extends to speech or publications that are entertaining as well as instructive or informative. Specifically, in Eastern Broadcasting Corporation (DYRE) v. Dans,41 this Court stated that all forms of media, whether print or broadcast, are entitled to the broad protection of the clause on freedom of speech and of expression. While all forms of communication are entitled to the broad protection of freedom of expression clause, the freedom of film, television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspapers and other print media, as will be subsequently discussed. E.2. Differentiation: The Limits & Restraints of Free Speech From the language of the specific constitutional provision, it would appear that the right to free speech and a free press is not susceptible of any limitation. But the realities of life in a complex society preclude a literal interpretation of the provision prohibiting the passage of a law that would abridge such freedom. For freedom of expression is not an absolute, 42 nor is it an unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. Thus, all speech are not treated the same. Some types of speech may be subjected to some regulation by the State under its pervasive police power, in order that it may not be injurious to the equal right of others or those of the community or society.43 The difference in treatment is expected because the relevant interests of one type of speech, e.g., political speech, may vary from those of another, e.g., obscene speech. Distinctions have therefore been made in the treatment, analysis, and evaluation of the permissible scope of restrictions on various categories of speech. 44 We have ruled, for example, that in our jurisdiction slander or libel, lewd and obscene speech, as well as fighting words are not entitled to constitutional protection and may be penalized.45

Moreover, the techniques of reviewing alleged restrictions on speech (overbreadth, vagueness, and so on) have been applied differently to each category, either consciously or unconsciously. 46 A study of free speech jurisprudencewhether here or abroadwill reveal that courts have developed different tests as to specific types or categories of speech in concrete situations; i.e., subversive speech; obscene speech; the speech of the broadcast media and of the traditional print media; libelous speech; speech affecting associational rights; speech before hostile audiences; symbolic speech; speech that affects the right to a fair trial; and speech associated with rights of assembly and petition. 47 Generally, restraints on freedom of speech and expression are evaluated by either or a combination of three tests, i.e., (a) the dangerous tendency doctrine which permits limitations on speech once a rational connection has been established between the speech restrained and the danger contemplated; 48 (b) the balancing of interests tests, used as a standard when courts need to balance conflicting social values and individual interests, and requires a conscious and detailed consideration of the interplay of interests observable in a given situation of type of situation; 49 and (c) the clear and present danger rule which rests on the premise that speech may be restrained because there is substantial danger that the speech will likely lead to an evil the government has a right to prevent. This rule requires that the evil consequences sought to be prevented must be substantive, extremely serious and the degree of imminence extremely high. 50 As articulated in our jurisprudence, we have applied either the dangerous tendency doctrine or clear and present danger test to resolve free speech challenges. More recently, we have concluded that we have generally adhered to the clear and present danger test. 51 E.3. In Focus: Freedom of the Press Much has been written on the philosophical basis of press freedom as part of the larger right of free discussion and expression. Its practical importance, though, is more easily grasped. It is the chief source of information on current affairs. It is the most pervasive and perhaps most powerful vehicle of opinion on public questions. It is the instrument by which citizens keep their government informed of their needs, their aspirations and their grievances. It is the sharpest weapon in the fight to keep government responsible and efficient. Without a vigilant press, the mistakes of every administration would go uncorrected and its abuses unexposed. As Justice Malcolm wrote in United States v. Bustos:52 The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of clear conscience. Its contribution to the public weal makes freedom of the press deserving of extra protection. Indeed, the press benefits from certain ancillary rights. The productions of writers are classified as intellectual

and proprietary. Persons who interfere or defeat the freedom to write for the press or to maintain a periodical publication are liable for damages, be they private individuals or public officials. E.4. Anatomy of Restrictions: Prior Restraint, Content-Neutral and Content-Based Regulations Philippine jurisprudence, even as early as the period under the 1935 Constitution, has recognized four aspects of freedom of the press. These are (1) freedom from prior restraint; (2) freedom from punishment subsequent to publication; 53 (3) freedom of access to information; 54 and (4) freedom of circulation.55 Considering that petitioner has argued that respondents press statement constitutes a form of impermissible prior restraint, a closer scrutiny of this principle is in order, as well as its sub-specie of content-based (as distinguished from content-neutral) regulations. At this point, it should be noted that respondents in this case deny that their acts constitute prior restraints. This presents a unique tinge to the present challenge, considering that the cases in our jurisdiction involving prior restrictions on speech never had any issue of whether the governmental act or issuance actually constituted prior restraint. Rather, the determinations were always about whether the restraint was justified by the Constitution. Be that as it may, the determination in every case of whether there is an impermissible restraint on the freedom of speech has always been based on the circumstances of each case, including the nature of the restraint. And in its application in our jurisdiction, the parameters of this principle have been etched on a case-to-case basis, always tested by scrutinizing the governmental issuance or act against the circumstances in which they operate, and then determining the appropriate test with which to evaluate. Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination.56 Freedom from prior restraint is largely freedom from government censorship of publications, whatever the form of censorship, and regardless of whether it is wielded by the executive, legislative or judicial branch of the government. Thus, it precludes governmental acts that required approval of a proposal to publish; licensing or permits as prerequisites to publication including the payment of license taxes for the privilege to publish; and even injunctions against publication. Even the closure of the business and printing offices of certain newspapers, resulting in the discontinuation of their printing and publication, are deemed as previous restraint or censorship. 57 Any law or official that requires some form of permission to be had before publication can be made, commits an infringement of the constitutional right, and remedy can be had at the courts. Given that deeply ensconced in our fundamental law is the hostility against all prior restraints on speech, and any act that restrains speech is presumed invalid,58 and any act that restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows, 59 it is important to stress not all prior restraints on speech are invalid. Certain previous restraints may be

permitted by the Constitution, but determined only upon a careful evaluation of the challenged act as against the appropriate test by which it should be measured against. Hence, it is not enough to determine whether the challenged act constitutes some form of restraint on freedom of speech. A distinction has to be made whether the restraint is (1) a content-neutral regulation, i.e., merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under well defined standards;60 or (2) a content-based restraint or censorship, i.e., the restriction is based on the subject matter of the utterance or speech. 61 The cast of the restriction determines the test by which the challenged act is assayed with. When the speech restraints take the form of a content-neutral regulation, only a substantial governmental interest is required for its validity.62 Because regulations of this type are not designed to suppress any particular message, they are not subject to the strictest form of judicial scrutiny but an intermediate approachsomewhere between the mere rationality that is required of any other law and the compelling interest standard applied to content-based restrictions.63 The test is called intermediate because the Court will not merely rubberstamp the validity of a law but also require that the restrictions be narrowly-tailored to promote an important or significant governmental interest that is unrelated to the suppression of expression. The intermediate approach has been formulated in this manner: A governmental regulation is sufficiently justified if it is within the constitutional power of the Government, if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incident restriction on alleged [freedom of speech & expression] is no greater than is essential to the furtherance of that interest. 64 On the other hand, a governmental action that restricts freedom of speech or of the press based on content is given the strictest scrutiny in light of its inherent and invasive impact. Only when the challenged act has overcome the clear and present danger rule will it pass constitutional muster,65 with the government having the burden of overcoming the presumed unconstitutionality. Unless the government can overthrow this presumption, the content-based restraint will be struck down.66 With respect to content-based restrictions, the government must also show the type of harm the speech sought to be restrained would bring about especially the gravity and the imminence of the threatened harmotherwise the prior restraint will be invalid. Prior restraint on speech based on its content cannot be justified by hypothetical fears, but only by showing a substantive and imminent evil that has taken the life of a reality already on ground.67 As formulated, the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.68 The regulation which restricts the speech content must also serve an important or substantial government interest, which is unrelated to the suppression of free expression. 69

Also, the incidental restriction on speech must be no greater than what is essential to the furtherance of that interest. 70 A restriction that is so broad that it encompasses more than what is required to satisfy the governmental interest will be invalidated. 71 The regulation, therefore, must be reasonable and narrowly drawn to fit the regulatory purpose, with the least restrictive means undertaken. 72 Thus, when the prior restraint partakes of a content-neutral regulation, it is subjected to an intermediate review. A content-based regulation,73 however, bears a heavy presumption of invalidity and is measured against the clear and present danger rule. The latter will pass constitutional muster only if justified by a compelling reason, and the restrictions imposed are neither overbroad nor vague. 74 Applying the foregoing, it is clear that the challenged acts in the case at bar need to be subjected to the clear and present danger rule, as they are content-based restrictions. The acts of respondents focused solely on but one objecta specific contentfixed as these were on the alleged taped conversations between the President and a COMELEC official. Undoubtedly these did not merely provide regulations as to the time, place or manner of the dissemination of speech or expression. E.5. Dichotomy of Free Press: Print v. Broadcast Media Finally, comes respondents argument that the challenged act is valid on the ground that broadcast media enjoys free speech rights that are lesser in scope to that of print media. We next explore and test the validity of this argument, insofar as it has been invoked to validate a content-based restriction on broadcast media. The regimes presently in place for each type of media differ from one other. Contrasted with the regime in respect of books, newspapers, magazines and traditional printed matter, broadcasting, film and video have been subjected to regulatory schemes. The dichotomy between print and broadcast media traces its origins in the United States. There, broadcast radio and television have been held to have limited First Amendment protection,75 and U.S. Courts have excluded broadcast media from the application of the strict scrutiny standard that they would otherwise apply to content-based restrictions.76 According to U.S. Courts, the three major reasons why broadcast media stands apart from print media are: (a) the scarcity of the frequencies by which the medium operates [i.e., airwaves are physically limited while print medium may be limitless+; 77 (b) its pervasiveness as a medium; and (c) its unique accessibility to children. 78 Because cases involving broadcast media need not follow precisely the same approach that *U.S. courts+ have applied to other media, nor go so far as to demand that such regulations serve compelling government interests,79they are decided on whether the governmental restriction is narrowly tailored to further a substantial governmental interest,80 or the intermediate test. As pointed out by respondents, Philippine jurisprudence has also echoed a differentiation in treatment between broadcast and print media. Nevertheless, a review of Philippine case law on

broadcast media will show thatas we have deviated with the American conception of the Bill of Rights81we likewise did not adopt en masse the U.S. conception of freespeech as it relates to broadcast media, particularly as to which test would govern content-based prior restraints. Our cases show two distinct features of this dichotomy. First, the difference in treatment, in the main, is in the regulatory scheme applied to broadcast media that is not imposed on traditional print media, and narrowly confined to unprotected speech (e.g., obscenity, pornography, seditious and inciting speech), or is based on a compelling government interest that also has constitutional protection, such as national security or the electoral process. Second, regardless of the regulatory schemes that broadcast media is subjected to, the Court has consistently held that the clear and present danger test applies to content-based restrictions on media, without making a distinction as to traditional print or broadcast media. The distinction between broadcast and traditional print media was first enunciated in Eastern Broadcasting Corporation (DYRE) v. Dans,82 wher ein it was held that *a+ll forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause. The test for limitations on freedom of expression continues to be the clear and present danger rule83 Dans was a case filed to compel the reopening of a radio station which had been summarily closed on grounds of national security. Although the issue had become moot and academic because the owners were no longer interested to reopen, the Court still proceeded to do an analysis of the case and made formulations to serve as guidelines for all inferior courts and bodies exercising quasi-judicial functions. Particularly, the Court made a detailed exposition as to what needs be considered in cases involving broadcast media. Thus:84 xxx xxx xxx (3) All forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause. The test for limitations on freedom of expression continues to be the clear and present danger rule,that words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the lawmaker has a right to prevent, In his Constitution of the Philippines (2nd Edition, pp. 569-570) Chief Justice Enrique M. Fernando cites at least nine of our decisions which apply the test. More recently, the clear and present danger test was applied in J.B.L. Reyes in behalf of the Anti-Bases Coalition v. Bagatsing. (4) The clear and present danger test, however, does not lend itself to a simplistic and all embracing interpretation applicable to all utterances in all forums. Broadcasting has to be licensed. Airwave frequencies have to be allocated among qualified users. A broadcast corporation cannot simply appropriate a certain frequency without regard for government regulation or for the rights of others.

All forms of communication are entitled to the broad protection of the freedom of expression clause. Necessarily, however, the freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print media. The American Court in Federal Communications Commission v. Pacifica Foundation (438 U.S. 726), confronted with a patently offensive and indecent regular radio program, explained why radio broadcasting, more than other forms of communications, receives the most limited protection from the free expression clause. First, broadcast media have established a uniquely pervasive presence in the lives of all citizens, Material presented over the airwaves confronts the citizen, not only in public, but in the privacy of his home. Second, broadcasting is uniquely accessible to children. Bookstores and motion picture theaters may be prohibited from making certain material available to children, but the same selectivity cannot be done in radio or television, where the listener or viewer is constantly tuning in and out. Similar considerations apply in the area of national security. The broadcast media have also established a uniquely pervasive presence in the lives of all Filipinos. Newspapers and current books are found only in metropolitan areas and in the poblaciones of municipalities accessible to fast and regular transportation. Even here, there are low income masses who find the cost of books, newspapers, and magazines beyond their humble means. Basic needs like food and shelter perforce enjoy high priorities. On the other hand, the transistor radio is found everywhere. The television set is also becoming universal. Their message may be simultaneously received by a national or regional audience of listeners including the indifferent or unwilling who happen to be within reach of a blaring radio or television set. The materials broadcast over the airwaves reach every person of every age, persons of varying susceptibilities to persuasion, persons of different I.Q.s and mental capabilities, persons whose reactions to inflammatory or offensive speech would be difficult to monitor or predict. The impact of the vibrant speech is forceful and immediate. Unlike readers of the printed work, the radio audience has lesser opportunity to cogitate analyze, and reject the utterance. (5) The clear and present danger test, therefore, must take the particular circumstances of broadcast media into account. The supervision of radio stations-whether by government or through selfregulation by the industry itself calls for thoughtful, intelligent and sophisticated handling. The government has a right to be protected against broadcasts which incite the listeners to violently overthrow it. Radio and television may not be used to organize a rebellion or to signal the start of widespread uprising. At the same time, the people have a right to be informed. Radio and television would have little reason for existence if broadcasts are limited to bland, obsequious, or pleasantly entertaining utterances. Since they are the most convenient and popular means of disseminating varying views on public issues, they also deserve special protection.

(6) The freedom to comment on public affairs is essential to the vitality of a representative democracy. In the 1918 case of United States v. Bustos (37 Phil. 731) this Court was already stressing that. The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and dignity of the individual be exalted. (7) Broadcast stations deserve the special protection given to all forms of media by the due process and freedom of expression clauses of the Constitution. [Citations omitted] It is interesting to note that the Court in Dans adopted the arguments found in U.S. jurisprudence to justify differentiation of treatment (i.e., the scarcity, pervasiveness and accessibility to children), but only after categorically declaring that the test for limitations on freedom of expression continues to be the clear and present danger rule, for all forms of media, whether print or broadcast. Indeed, a close reading of the above-quoted provisions would show that the differentiation that the Court in Dans referred to was narrowly restricted to what is otherwise deemed as unprotected speech (e.g., obscenity, national security, seditious and inciting speech), or to validate a licensing or regulatory scheme necessary to allocate the limited broadcast frequencies, which is absent in print media. Thus, when this Court declared in Dans that the freedom given to broadcast media was somewhat lesser in scope than the freedom accorded to newspaper and print media, it was not as to what test should be applied, but the context by which requirements of licensing, allocation of airwaves, and application of norms to unprotected speech. 85 In the same year that the Dans case was decided, it was reiterated in Gonzales v. Katigbak,86 that the test to determine free expression challenges was the clear and present danger, again without distinguishing the media.87Katigbak, strictly speaking, does not treat of broadcast media but motion pictures. Although the issue involved obscenity standards as applied to movies,88 the Court concluded its decision with the following obiter dictum that a less liberal approach would be used to resolve obscenity issues in television as opposed to motion pictures: All that remains to be said is that the ruling is to be limited to the concept of obscenity applicable to motion pictures. It is the consensus of this Court that where television is concerned, a less liberal approach calls for observance. This is so because unlike motion pictures where the patrons have to pay their way, television reaches every home where there is a set. Children then will likely be among the avid viewers of the programs therein shown..It cannot be denied though that the State as parens patriae is called upon to manifest an attitude of caring for the welfare of the young. More recently, in resolving a case involving the conduct of exit polls and dissemination of the results by a broadcast company, we reiterated that the clear and present danger rule is the test we unquestionably adhere to issues that involve freedoms of speech and of the press.89

F. The Case At Bar This is not to suggest, however, that the clear and present danger rule has been applied to all cases that involve the broadcast media. The rule applies to all media, including broadcast, but only when the challenged act is a content-based regulation that infringes on free speech, expression and the press. Indeed, in Osmena v. COMELEC,90which also involved broadcast media, the Court refused to apply the clear and present danger rule to a COMELEC regulation of time and manner of advertising of political advertisements because the challenged restriction was content-neutral.91 And in a case involving due process and equal protection issues, the Court in Telecommunications and Broadcast Attorneys of the Philippines v. COMELEC92 treated a restriction imposed on a broadcast media as a reasonable condition for the grant of the medias franchise, without going into which test would apply. That broadcast media is subject to a regulatory regime absent in print media is observed also in other jurisdictions, where the statutory regimes in place over broadcast media include elements of licensing, regulation by administrative bodies, and censorship. As explained by a British author: The reasons behind treating broadcast and films differently from the print media differ in a number of respects, but have a common historical basis. The stricter system of controls seems to have been adopted in answer to the view that owing to their particularimpact on audiences, films, videos and broadcasting require a system of prior restraints, whereas it is now accepted that books and other printed media do not. These media are viewed as beneficial to the public in a number of respects, but are also seen as possible sources of harm.93 Parenthetically, these justifications are now the subject of debate. Historically, the scarcity of frequencies was thought to provide a rationale. However, cable and satellite television have enormously increased the number of actual and potential channels. Digital technology will further increase the number of channels available. But still, the argument persists that broadcasting is the most influential means of communication, since it comes into the home, and so much time is spent watching television. Since it has a unique impact on people and affects children in a way that the print media normally does not, that regulation is said to be necessary in order to preserve pluralism. It has been argued further that a significant main threat to free expression in terms of diversity comes not from government, but from private corporate bodies. These developments show a need for a reexamination of the traditional notions of the scope and extent of broadcast media regulation. 94 The emergence of digital technologywhich has led to the convergence of broadcasting, telecommunications and the computer industryhas likewise led to the question of whether the regulatory model for broadcasting will continue to be appropriate in the converged environment.95 Internet, for example, remains largely unregulated, yet the Internet and the broadcast media share similarities, 96 and the rationales used to support broadcast regulation apply equally to the Internet.97 Thus, it has been argued that courts, legislative bodies and the government agencies regulating media must agree to regulate both, regulate neither or develop a new regulatory framework and rationale to justify the differential treatment. 98 Having settled the applicable standard to content-based restrictions on broadcast media, let us go to its application to the case at bar. To recapitulate, a governmental action that restricts freedom of speech or of the press based on content is given the strictest scrutiny, with the government having the burden of overcoming the presumed unconstitutionality by the clear and present danger rule. This rule applies equally to all kinds of media, including broadcast media. This outlines the procedural map to follow in cases like the one at bar as it spells out the following: (a) the test; (b) the presumption; (c) the burden of proof; (d) the party to discharge the burden; and (e) the quantum of evidence necessary. On the basis of the records of the case at bar, respondents who have the burden to show that these acts do not abridge freedom of speech and of the press failed to hurdle the clear and present danger test. It appears that the great evil which government wants to prevent is the airing of a tape recording in alleged violation of the anti-wiretapping law. The records of the case at bar, however, are confused an d confusing, and respondents evidence falls short of satisfying the clear and present danger test. Firstly, the various statements of the Press Secretary obfuscate the identity of the voices in the tape recording. Secondly, the integrity of the taped conversation is also suspect. The Press Secretary showed to the public two versions, one supposed to be a complete version and the other, an altered version. Thirdly, the evidence of the respondents on the whos and the hows of the wiretapping act is ambivalent, especially considering the tapes different versions. The identity of the wire-tappers, the manner of its commission and other related and relevant proofs are some of the invisibles of this case. Fourthly, given all these unsettled facets of the tape, it is even arguable whether its airing would violate the anti-wiretapping law. We rule that not every violation of a law will justify straitjacketing the exercise of freedom of speech and of the press. Our laws are of different kinds and doubtless, some of them provide norms of conduct which even if violated have only an adverse effect on a persons private comfort but does not endanger national security. There are laws of great significance but their violation, by itself and without more, cannot support suppression of free speech and free press. In fine, violation of law is just a factor, a vital one to be sure, which should be weighed in adjudging whether to restrain freedom of speech and of the press. The totality of the injurious effects of the violation to private and public interest must be calibrated in light of the preferred status accorded by the Constitution and by related international covenants protecting freedom of speech and of the press. In calling for a careful and calibrated measurement of the circumference of all these factors to determine compliance with the clear and present danger test, the Court should not be misinterpreted as devaluing violations of law. By all means, violations of law should be vigorously prosecuted by the State for they breed their own evil consequence. But to repeat, the need to prevent their violation cannot per se trump the exercise of free speech and free press, a preferred right whose breach can lead to greater evils. For this failure of the respondents alone to offer proof to satisfy the clear and present danger test, the Court has no option but to uphold the exercise of free speech and free press. There is no showing that the feared violation of the anti-wiretapping law clearly endangers the national security of the State.

This is not all the faultline in the stance of the respondents. We slide to the issue of whether the mere press statements of the Secretary of Justice and of the NTC in question constitute a form of contentbased prior restraint that has transgressed the Constitution. In resolving this issue, we hold that it is not decisive that the press statements made by respondents were not reduced in or followed up with formal orders or circulars. It is sufficient that the press statements were made by respondents while in the exercise of their official functions. Undoubtedly, respondent Gonzales made his statements as Secretary of Justice, while the NTC issued its statement as the regulatory body of media. Any act done, such as a speech uttered, for and on behalf of the government in an official capacity is covered by the rule on prior restraint. The concept of an act does not limit itself to acts already converted to a formal order or official circular. Otherwise, the non formalization of an act into an official order or circular will result in the easy circumvention of the prohibition on prior restraint. The press statements at bar are acts that should be struck down as they constitute impermissible forms of prior restraints on the right to free speech and press. There is enough evidence of chilling effect of the complained acts on record. The warnings given to media came from no less the NTC, a regulatory agency that can cancel the Certificate of Authority of the radio and broadcast media. They also came from the Secretary of Justice, the alter ego of the Executive, who wields the awesome power to prosecute those perceived to be violating the laws of the land. After the warnings, the KBP inexplicably joined the NTC in issuing an ambivalent Joint Press Statement. After the warnings, petitioner Chavez was left alone to fight this 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.